author: TAYLOR, J.

text:
    Adam Tramane WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1857.
    District Court of Appeal of Florida, Fourth District.
    Dec. 12, 2014.

      Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and ■ Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Adam Tramane Williams appeals his conviction and sentence for possession of cocaine with intent to sell or deliver. He argues that the trial court erred in denying his motion for judgment of acquittal because, the state failed to present sufficient evidence that he had actual or constructive possession of cocaine. We agree and reverse.

An officer on road patrol received a BOLO that there was an active arrest warrant for appellant in connection with a murder. The officer went to an area where he thought he might find appellant. When the officer arrived at this location, he saw appellant sitting on the front porch of a house with several other men. The officer parked his car in the driveway. When the officer exited the vehicle, appellant went inside the house, shut the door, and locked it. The other men remained in front of the house and did not move.

The officer waited outside the house until backup officers arrived. When the backup officers arrived, they established a perimeter around the house and waited for a search warrant. Shortly thereafter, appellant came out the front door of the house with his hands up.

As officers were handcuffing appellant in the front yard, an officer with a drug detection dog, Bingo, arrived at the scene. Bingo sat by the front door next to the officer. Suddenly, Bingo threw his head up and started sniffing along the front of the house. Bingo approached an open window to the left of the front door and jumped up with his paws on the windowsill. When the officer attempted to stop Bingo from jumping into the window, he noticed a Krazy Glue tube on the inside windowsill.

No one entered or exited the house while the officers waited for the search warrant. Once they obtained the search warrant, the canine officer used Bingo to search the house. Bingo alerted again to the windowsill, where the Krazy Glue tube was located. Sixty crack cocaine rocks were found inside the tube. Bingo did not alert on any other drugs or drug paraphernalia in the house.

No fingerprints were recovered from the Krazy Glue tube or the windowsill. No one saw appellant in actual possession of the cocaine or even in close proximity to it. The police investigation revealed that the house was leased to a female and that “a lot of individuals sit at this house and frequent this house.” The house did not look like anyone lived there.

An officer transported appellant from the scene to the police department. During the transport, appellant told the officer, “I ran into the house to put up my dope. I’m a dope boy, you know how we do. I might sell a little dope, but I ain’t never killed anybody.”

At the close of the state’s case, defense counsel moved for a judgment of acquittal. He argued that the case was based on circumstantial evidence and that the state failed to exclude a reasonable hypothesis that the cocaine found by the police belonged to someone else. He argued that anyone who had access to the house could have placed the container of cocaine rocks on the windowsill.

The court denied the motion for judgment of acquittal and, after the defense rested, the jury found appellant guilty as charged. At sentencing, defense counsel informed the court that appellant had 43.2 points on the score sheet and requested the court sentence him to two years drug offender probation. Instead, the court followed the state’s recommendation to sentence appellant to fifteen years in state prison because of his extensive criminal history.

“A motion for judgment of acquittal should be granted only when it is apparent that no legally sufficient evidence has been submitted under which a jury could find a verdict of guilty.” Meme v. State, 72 So.3d 254, 256 (Fla. 4th DCA 2011) (citing Toole v. State, 472 So.2d 1174 (Fla.1985)). The standard of review on a motion for judgment of acquittal is de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. Id.

Possession of cocaine may be either actual or constructive. Meme, 72 So.3d at 256. Actual possession exists where a defendant has physical possession of contraband. See Scruggs v. State, 785 So.2d 605, 607 (Fla. 4th DCA 2001). Constructive possession exists where a defendant does not have actual physical possession of contraband but knows of its presence on or about his premises and has the ability to exercise dominion' and control over it. Duncan v. State, 986 So.2d 653, 655 (Fla. 4th DCA 2008). Mere proximity to contraband, standing alone, is insufficient to establish constructive possession of the substance. Brown v. State, 8 So.3d 1187, 1188 (Fla. 4th DCA 2009); Edmond v. State, 963 So.2d 344, 346 (Fla. 4th DCA 2007). The state must present independent proof of the defendant’s knowledge and ability to control the contraband. Martoral v. State, 946 So.2d 1240, 1242-43 (Fla. 4th DCA 2007). However, in the case of jointly-occupied premises, the knowledge element may be satisfied where the contraband is found in plain view in a common area of the premises. Brown v. State, 428 So.2d 250, 252 (Fla.1983); Mitchell v. State, 958 So.2d 496, 500 (Fla. 4th DCA 2007).

Here, the evidence showed that several people were at the residence when the cocaine rocks were found by the police. Appellant did not live at the residence; it was leased to a female and frequented by drug dealers. No one observed appellant near the windowsill where the cocaine was found or saw him in physical possession of the cocaine. Appellant’s fingerprints were not found on the Krazy Glue container or anywhere near the area. No evidence was presented that appellant knew of the presence of the cocaine found on the windowsill or that the cocaine was so close to him as to be within his ready reach. Moreover, the evidence did not establish that the Krazy Glue container of cocaine rocks was actually in plain view in a common area; the evidence showed only that it was found on the interior windowsill of a window. See, e.g., Edmond, 963 So.2d at 346 (noting that “[t]he authority upholding a constructive possession conviction in the case of a defendant’s joint possession of the premises where the drugs or contraband were found in plain view and in a common area are of no help to the State here because there was no evidence that the drugs and contraband were found in plain view in a common area.”).

The state argues that this was not a case involving constructive possession, but a case involving actual possession established by independent evidence. The state contends that appellant’s entry into the house upon the arrival of the police and his statement that “I ran into the house to put up my dope” provided independent proof that he actually possessed the cocaine rocks found on the windowsill. Alternatively, the state argues that these circumstances furnished independent proof from which the jury could reasonably infer the accused’s knowledge of the presence of the drugs and the ability to exercise dominion and control over them. We disagree.

Appellant’s statement that he went into the house to “put up” his dope does not tend to prove actual or constructive possession of the cocaine found on the windowsill. See Clark v. State, 670 So.2d 1061, 1062 (Fla. 2d DCA 1996) (noting that although the defendant’s statement showed that he might be in possession of other cocaine, it was not sufficient to show he was in possession of the cocaine found during execution of the search warrant). The fact that appellant may have been hiding other “dope” does not prove that he possessed the cocaine that was found inside the Krazy Glue container on the windowsill. Indeed, placing cocaine on the windowsill of an open window, with police outside watching the premises, is contrary to the state’s theory regarding appellant’s statement of hiding or destroying his drugs.

In sum, the state’s evidence failed to connect the cocaine rocks found on the windowsill of the house to appellant and to establish his knowledge of the drugs and ability to control them. The evidence in this case was insufficient for conviction for actual or constructive possession of the cocaine. Accordingly, we reverse the trial court’s denial of appellant’s motion for judgment of acquittal and remand for discharge.

Reversed and Remanded for Discharge.

WARNER and KLINGENSMITH, JJ., concur.

      . We find the other argument raised by the appellant to be without merit.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Aracely SALAZAR, Appellant, v. Abilio COELLO, M.D., et al., Appellees.
    No. 3D12-335.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2014.
    Eaton & Wolk and William G. Wolk; Podhurst Orseck, and Joel D. Eaton, Miami, for appellant.
    Sedgwick LLP and Kimberly A. Cook and Erin E. Dardis, Miami, for appellees Martin Moliver, M.D., Opal Hew, C.R.N.A., and Drs. Ellis, Rojas, Ross & Debs, Inc.; Falk, Waas, Hernandez, Cor-tina, Solomon & Bonner and Scott L. Mendlestein, Coral Gables, and Tiffany A. Hiller, Boca Raton, for appellee Baptist Hospital.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   SUAREZ, J.

In this medical malpractice action, Plaintiff-Appellant Aracely Salazar (“Salazar”) appeals the entry of summary judgment in favor of Defendants-Appellees Martin Mo-liver, M.D. (“Dr.Moliver”), Opal Hew, CRNA (“Hew”) and Drs. Ellis, Rojas, Ross & Debs, Inc., d/b/a Kendall Anesthesia Associates (“KAA”). We reverse, finding that Salazar’s pre-suit Notice of Intent to Initiate Litigation served on those Defendants/Appellees was timely under Section 766.106, Florida Statutes (2009). We note that the particular factual issue presented in this appeal appears to be an issue of first impression in Florida.

(1) In order to understand the facts of this case, it is necessary to first examine the portions of the statutory provisions which are at the crux of the issue in this appeal:

Florida Statutes Section 766.106 states:

(2) PRESUIT NOTICE.—
(a) After completion of presuit investigation pursuant to s. 766.203(2) and pri- or to filing a complaint for medical negligence, a claimant shall notify each prospective defendant by certified mail, return receipt requested, of intent to initiate litigation for medical negligence. Notice to each prospective defendant must include, if available, a list of all known health care providers seen by the claimant for the injuries complained of subsequent to the alleged act of negligence, all known health care providers during the 2-year period pri- or to the alleged act of negligence who treated or evaluated the claimant, copies of all of the medical records relied upon by the expert in signing the affidavit, and the executed authorization form provided in s. 766.1065....
(3) PRESUIT INVESTIGATION BY PROSPECTIVE DEFENDANT.—
(a) No suit may be filed for a period of 90 days after notice is mailed to any prospective defendant. During the 90-day period, the prospective defendant or the defendant’s insurer or self-insurer shall conduct a review as provided in s. 766.203(3) to determine the liability of the defendant. Each insurer or self-insurer shall have a procedure for' the prompt investigation, review, and evaluation of claims during the 90-day period....
(4)SERVICE OF PRESUIT NOTICE AND TOLLING. — The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit, (all emphasis added).

Simply, the issue in this appeal is: does the Section 766.106(3)(a) 90-day tolling of the statute of limitations, effective upon receipt of a notice of intent to initiate litigation, toll the statute of limitations only as to the defendant receiving the notice, or does it also toll the statute of limitations for ninety days as to other likely defendants, known to the claimant but who have yet to be served with a notice of intent to initiate litigation? If the tolling is not effective as to the other likely defendants, then the notices of intent sent to the Appellees were untimely. However, if the 90-day tolling applied to other possible defendants, then Salazar’s notices to the Appellees were timely. For the reasons stated below, we find that in this factual scenario, the Section 766.106(3)(a) 90-day tolling of the statute of limitations applied to the Appellees and, therefore, the Notices of Intent to Initiate Litigation sent to the Appellees were timely and summary judgment should not have been entered in their favor.

This lawsuit arises from surgery performed on Salazar on August 22, 2007. Dr. Moliver, Hew and KAA were the anesthesia providers for the surgery. For purposes of this opinion we will assume that Salazar became aware (or should have become aware) shortly after the surgery that Dr. Moliver, Hew and KAA were involved in the surgery. Salazar alleges that as a result of the surgical procedure she suffered a severe right brachial plexus injury. Following the surgery, she became aware that her injury might have been the result of medical malpractice. On August 10, 2009, less than two weeks prior to the running of the two-year statute of limitations, she obtained an automatic ninety-day extension of the statute of limitations pursuant to subsection 766.104(2), Florida Statutes (2009). As a result of that extension, the statute of limitations for Salazar’s claim as to all medical providers would have expired on November 20, 2009 — i.e. two years and ninety days after the date of the surgery — had she taken no other action.

However, on October 21, 2009, with thirty days remaining on what was then left of the extended statute of limitations, Salazar sent a Notice of Intent to Initiate Litigation to the surgeon who performed the surgery and the hospital at which the surgery was performed. Those notices were received on October 22, 2009. Pursuant to subsection 766.106(3), Salazar could not file her medical malpractice action for ninety days after those notices were received. This is so because subsection 766.106(3)(a) states: “No suit may be filed for a period of 90 days after notice is mailed to any prospective defendant.” [e.s.]. Boyd v. Becker, 627 So.2d 481, 483-84 (Fla.1993) (finding that the statute of limitations is tolled from the time the defendant receives the notice). Additionally, and of upmost importance in this appeal, Section 766.106(4), states that during this ninety day period “the statute of limitations is tolled as to all potential defendants.” [e.s.].

Salazar did not send a Notice of Intent to Initiate Litigation to Dr. Moliver, Hew or KAA until February 12, 2010, and those notices were not received until February 16, 2010. Dr. Moliver, Hew and KAA claim that, as to them, the statute of limitations expired on November 20, 2009 and that Salazar’s notices were untimely and the action against them had to be dismissed. Salazar argues that by sending the Notices of Intent to Initiate Litigation to the surgeon and the hospital on October 21, 2009, Section 766.106(4) tolled the statute of limitations not only as to the surgeon and the hospital but also as to “all potential defendants” which would include the appellees and, therefore, the Notices to the appellees were timely.

The gist of the Appellees’ argument to the trial court, as well as on appeal, is that subsection 766.106(2), requires that, after completion of the statutorily-required pre-suit investigation, • a medical negligence claimant “shall notify each prospective defendant” (e.s.) of his or her intent to initiate litigation for medical negligence and that subsection 766.106(4) requires that “[t]he notice of intent to initiate litigation shall be served within the time limits set for the in s. 95.11.” Appellees argue that the statute of limitations would have run as to all defendants on November 20, 2009, but prior to that date Salazar sent her Notice of Intent to Initiate Litigation to the surgeon and to the hospital. Appellees concede that as a result of that notice, the statute of limitations did not run as to the surgeon and the hospital because Section 766.106(3) tolled the statute of limitations for an additional 90 days.

Appellees argue, however, that the 90-day tolling does not also apply to them because Salazar became aware shortly after the surgery that the Appellees participated in the surgery and they were therefore “prospective defendants” of Salazar’s claim. Appellees assert that, pursuant to Section 766.106(2)(a), the only way Salazar could toll the running of the statute of limitations as to them (as “prospective defendants”) was by serving a Notice of Intent to initiate Litigation on each of them prior to November 20, 2009. Appellees posit that once Salazar served them with a Notice of Intent, Section 766.106(4) would have tolled the statute of limitations for 90 days for Salazar to file her lawsuit against them. According to Appellees, Salazar’s failure to send Notices of Intent to them prior to November 20, 2009 defeated her claims against them. The trial court agreed and entered summary judgment in their favor on that issue. This appeal followed.

We disagree with the trial court’s ruling. We find that the Notices of Intent received by the surgeon and the hospital on October 22, 2009 did toll the statute of limitations, not only as to the surgeon and hospital, but also as to all of Salazar’s defendants, however denominated (and regardless of whether they received those notices or not). The October 22, 2009 date of the Notices of Intent to Initiate Litigation sent to the surgeon and hospital is critical for the issues on appeal because subsection 766.106(4) states:

SERVICE OF PRESUIT NOTICE AND TOLLING. — The notice of intent to initiate litigation shall be served within the time limits set forth in s. 95.11. However, during the 90-day period, the statute of limitations is tolled as to all potential defendants. Upon stipulation by the parties, the 90-day period may be extended and the statute of limitations is tolled during any such extension. Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit, (emphasis added).

We acknowledge that subsections 766.106(4) and 766.106(2) use different terminology, one uses “prospective defendant” and one uses “potential defendant.” The use of the differing terms gives rise to the question of whether the terms are interchangeable or whether the Legislature intended them to have different meanings. After extensive review of the Florida Statutes and the history of Section 766.104 we are unable to conclude that the Florida Legislature intended the different terms to carry different meanings in the context of Chapter 766. Consequently, we hold that subsection 766.106(4) means what it says and that the statute of limitations on Salazar’s claims as to any defendant was tolled for a period of ninety days from October 22, 2009 and that Salazar’s notices to Appellees were timely as they were sent within the statute of limitations as properly calculated under all of the terms of Section 766.104 and Hankey, 755 So.2d at 99-100 n. 7 (Fla.2000).

We base this conclusion on several grounds. First, as was well stated by the court in Apostolico v. Orlando Regional Health Care Systems, Inc., 871 So.2d 283, 286 n. 3 (Fla. 5th DCA 2004) (internal citations omitted):

In interpreting the Medical Malpractice Act, we are guided by legislative intent. But in doing so, we begin with the proposition that the statutory medical malpractice scheme must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses.... While it is true that the presuit requirements are conditions precedent to instituting a malpractice suit, the provisions of the statute are not intended to deny access to the courts on the basis of technicalities. [] Instead, the presuit notice and screening statute should be construed in a manner that favors access to courts.

See also, Largie v. Gregorian, 913 So.2d 635, 643 (Fla. 3d DCA 2005) (“In construing this statute liberally, courts have recognized that the statutory intent of the pre-suit investigation and notice requirements was to screen out frivolous lawsuits and alleviate the high costs of medical malpractice claims.”). Thus, we begin with the concept that in creating the statutes relating to medical malpractice claims, the Legislature was motivated not only to prevent frivolous claims, but to also ensure claimants full access to the courts. Accordingly, Salazar is not to be deprived of the opportunity to fully prove her claim solely on the basis of potentially confusing terminology in the statutes guiding her access.

We are further supported in our determination that the terms are synonymous by the use of similar terms throughout the Florida Statutes. As the Florida Supreme Court has stated, one “way of determining the Legislative intent in using [a term] is by examining other uses of the word in similar contexts.” Hankey, 755 So.2d at 96. A review of Chapter 766 reveals that subsection 766.202(5) defines “investigate” to mean “that an attorney has reviewed the case against each and every potential defendant and has consulted with a medical expert and has obtained a written opinion from said expert.” By contrast, as above-quoted, subsection 766.106(2), Florida Statutes (2009) states that after completion of the presuit investigation and prior to filing a complaint “a claimant shall notify each prospective defendant by certified mail” of their intent to initiate litigation for medical negligence. Further, section 766.106(6)(b)(3) states:

Physical and mental examinations. — A prospective defendant may require an injured claimant to appear for examination by an appropriate health care provider. The prospective defendant shall give reasonable notice in writing to all parties as to the time and place for examination. Unless otherwise impractical, a claimant is required to submit to only one examination on behalf of all potential defendants. The practicality of a single examination must be determined by the nature of the claimant’s condition, as it relates to the liability of each prospective defendant.(e.s.).

Thus, within the statutory chapter addressing medical malpractice claims, the Legislature uses the terms “potential” and “prospective” interchangeably and as synonyms, demonstrating that it did not intend the two terms to carry different meanings.

Further evidence of the Legislature’s lack of differentiation between the terms is found in sections 400.0233 and 429.293, Florida Statutes (2009), which provide for pre-suit notice and investigation of claims against nursing homes and assisted living facilities respectively. Both those sections use the term “prospective defendant” throughout, including within the subsections which parallel the tolling of the statute of limitations set forth in section 766.106(4).

Finally, the difference in the language in the two subsections has existed since the statute was first enacted in 1985, see Chapters 85-175, § 14 at 1200, Laws of Florida, and has continued to exist throughout the re-enactments of the statute. Nothing in the initial legislative history or any reenactment indicates any intent for the terms to have a different meaning. See Wood v. Fraser, 677 So.2d 15 (Fla. 2d DCA 1996) (“[W]e find it significant that since our judicial interpretation of the interplay between section 95.11(4)(b) and [ ] section 766.106(4) the legislature has continually reenacted these statutory provisions without any change in the language. We note, in that regard, Florida’s well-settled rule of statutory construction that the legislature is presumed to know the existing law when a statute is enacted, including ‘judicial decisions on the subject concerning which it subsequently enacts a statute.’ ”).

Appellees argue that “the intent behind the medical malpractice statutes supports the position that the statute of limitations is tolled only as to the medical provider served with a notice of intent.” (Answer Brief at p. 18) (emphasis added). We find nothing in the text of Chapter 766 or any case law interpreting it which supports that conclusion. Likewise, the language of Chapter 766 does not support Appellees’ argument that “[t]he purpose of the ninety-day tolling period is not to give a claimant an additional ninety days within which to pursue claims against another healthcare provider not yet served with a notice of intent.... [Tjhere is nothing in Florida Statutes Section 766.106 that provides that a plaintiff is entitled to the benefit of more than one ninety-day tolling period.” (Answer Brief at p. 19-20).

In fact, the only cases that have addressed the difference in language between subsections 766.106(2) and (4) have determined that the tolling applies to all defendants and that multiple tolling periods may exist. In Burbank v. Kero, 813 So.2d 292 (Fla. 5th DCA 2002) the Fifth District concluded that the two-year statute of limitations for Burbank’s claim would have expired on November 19, 1996 but under Hankey, the ninety-day extension of subsection 766.104(2) “is tacked onto the end of the statute of limitations” and that “in the absence of any other tolling, Burbank’s statute of limitations would have expired on February 18, 1997.” On January 12, 1997, notices of intent to sue were sent to Dr. Kero, Suncoast OB-GYN and Oak Hill Hospital. The court reasoned that in light of those notices, “[t]he statute of limitations was then tolled ninety days from the date that the defendants received the notice.” The court also concluded: “Applying the holding of Han-key and the plain language of section 766.106(4) Florida Statutes, the statute of limitations clock stopped running as to ‘all potential defendants’ for ninety days, or until April 13, 1997.” Id. at 294. On March 25, 1997, Oak Hill Hospital sent documents which indicated that a Dr. Sztulman was involved in the incident. Burbank sent a notice of intent to sue Dr. Sztulman on March 31, 1997, and it was received by him on April 7, 1997. Under those facts, the court stated that: “At that time, there was still time remaining on the statute of limitations. Because of the tolling effect of the notice of intent, the statute of limitations, as to Sztulman, did not expire until July 6, 1997. (emphasis added).”

Similarly, in CORA Health Services v. Steinbronn, 867 So.2d 587 (Fla. 5th DCA 2004), the claimant sent notice of intent to Daytona Healthcare Investors, LLC in May 2002, but filed suit against both Day-tona and CORA Health Services in October 2002. The statute of limitations for the negligence claim would have expired on December 26, 2002. On January 2, 2003, the claimant sent a notice of intent to CORA. Applying Burbank, the Fifth District found that the statute of limitations for the claim against CORA was affected by the notice to Daytona, stating:

Two extended ninety-day periods were activated by first the notice to Daytona and then the notice to CORA within the first extended period. Notice to Dayto-na extended the two-year period prescribed by section 95.11, Florida Statutes, as to CORA because the statute of limitations is tolled as to all potential defendants when a notice of intent to initiate litigation is served upon any prospective defendant.
More specifically, if the statute of limitations began to run on December 26, 2000, the date of the injury, then the claim would have been barred had it been filed after December 26, 2002, in the absence of any extension or tolling. But the time was tolled for ninety days when Steinbronn served the notice of intent to initiate litigation against Dayto-na. Assuming receipt of the notice on the day of service, May 20, 2002, the statute of limitations would not expire until March 27, 2003....

Id. at 589.

Thus, the Fifth District has twice concluded that notice of intent to sue received by one defendant tolls the statute of limitations as to all defendants for the ninety-day period set forth in section 766.106(4). We agree with those decisions and hold that Salazar’s Notice of Intent to the surgeon and hospital tolled the statute of limitations as to her claims against Appel-lees.

Appellees argue that Burbank is distinguishable because the claimant there was unaware of Dr. Sztulman’s involvement at the time of her initial notices of intent whereas Salazar knew of Appellees’ involvement in her care at all relevant times. We do not read Burbank as relying on that fact for its finding that the statute of limitations was tolled as to all defendants once the original notices of intent were received. We also find that a claimant’s absence of knowledge of a medical practitioner’s participation in their care may not -be the only reason for delaying the sending of a notice of intent. It does not strain the imagination to hypothesize that a claimant may not receive corroborative opinions from medical experts for all claims at the same time. If a claimant is delayed in receiving an opinion from one expert there is no basis in the statutes or the purpose of the legislation for requiring a claimant to delay sending notices to those practitioners as to whom he or she has received the necessary expert opinion. Moreover, to follow Appellees’ argument would lead to a multitude of potential hearings in almost every case on the issue of the timing of a claimant’s knowledge as to each practitioner’s involvement in his or her care. Such proceedings would not serve the legislative purposes of the statutes as such proceedings would add to and not decrease the cost of the claim and would also slow the progress of the claim.

In further support of their claim that notice of intent to one defendant does not toll the statute of limitations as to all defendants, Appellees posit a situation in which there are ten different known but unrelated defendants. Appellees argue that a claimant could extend the statute of limitations nine separate times, thus extending the statute as to the tenth defendant years after the statute applicable to the first noticed defendant. We acknowledge that such an unlikely scenario could exist under Chapter 766, but do not consider its improbable potentiality as a reason to read language into subsection 766.106(4) that does not exist. Additionally, Section 95.11 makes clear that claims based upon negligence must be brought within four years.

In summary, to give the required broad meaning to the language of the controlling statutes and to follow the intent of the Legislature to preclude frivolous claims, but still provide access to the courts, we find that Salazar was not required to send notices of intent to initiate litigation to all practitioners at the same time and that she properly complied with all of the requirements of section 766.106.

We further agree with Salazar that her Complaint against Appellees was timely filed in light of the ninety-day tolling period which arose upon Appellees’ receipt of her Notices of Intent. Those notices were received by Appellees on February 16, 2010. At that point, Salazar had three days remaining under the statute of limitations. Upon receipt of the notices by Ap-pellees, under subsection 766.106(4), the statute of limitations was tolled as to Ap-pellees until May 13, 2010. Thereafter, the time for Salazar to file suit was controlled by Florida Rule of Civil Procedure 1.650(d)(3), which provides:

(3) To avoid being barred by the applicable statute of limitations, an action must be filed within 60 days or the remainder of the time of the statute of limitations after the notice of intent to initiate litigation was received, whichever is longer, after the earliest of the following:
a. The expiration of 90 days after the date of receipt of the notice of intent to initiate litigation, (emphasis added).

Subsection 766.106(4) also states: “Upon receiving notice of termination of negotiations in an extended period, the claimant shall have 60 days or the remainder of the period of the statute of limitations, whichever is greater, within which to file suit.” Thus, Salazar had sixty days from May 18, 2010 within which to file her action against Appellees, since that was a longer period than the three days remaining on the statute of limitations. Salazar’s Complaint was filed June 8, 2010, well within that time period.

Reversed and remanded.

      . Dr. Moliver, Hew and KAA are sometimes referred to collectively as "the Appellees.”

      . Salazar argues that the trial court improperly determined the date of discovery of her injury. It is not necessary to reach that point in light of our finding that her notices were timely calculated from the date of surgery. For the same reason, we need not address Salazar's claim that Appellees had a "legal relationship” with the hospital at which the surgery occurred.

      . “Upon petition to the clerk of the court where the suit will be filed and payment to the clerk of a filing fee, not to exceed $42, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable investigation required by subsection (1). This period shall be in addition to other tolling periods. No court order is required for the extension to be effective. The provisions of this subsection shall not be deemed to revive a cause of action on which the statute of limitations has run.”

      . Salazar’s claims against those parties are not at issue in this appeal.

      . Because Salazar had thirty days remaining on the statute of limitations at the time she sent her notices to the surgeon and the hospital, the ninety-day tolling effectively gave Salazar until February 19, 2010 to send any additional notices of intent or file suit. Specifically, ninety days after October 22, 2009 was January 20, 2010. Adding the remaining thirty days to that date provides a statute of limitations expiration date of February 19, 2010. See Hankey v. Yarian, 755 So.2d 93, 99-100 n. 7 (Fla.2000). The suit was filed against the surgeon and the hospital on March 23, 2010 consistent with agreements to extend the statute of limitations with those defendants.

      . The Court in Hankey also held that "toll” as used in subsection 766.106(4) means a suspension of the statute of limitations, stating: "In essence, the clock stops until the tolling period expires and then begins to run again.” 755 So.2d at 797 (quoting Rothschild v. NME Hosps., Inc., 707 So.2d 952 (Fla. 4th DCA 1998)).

      . That language is echoed in Florida Rule of Civil Procedure 1.650(b)(1) which states that “Notice of Intent to initiate litigation sent by certified mail to and received by any prospective defendant” operates as notice to any other "prospective” defendant with a legal relationship to the "prospective” defendant receiving notice.

      . The cases relied upon by Appellees for this point, Melanson v. Agravat, 675 So.2d 1032 (Fla. 1st DCA 1996), Creel v. Danisi, 868 So.2d 603 (Fla. 1st DCA 2004) and Stone v. Rosenthal, 665 So.2d 276 (Fla. 4th DCA 1995) involve attempted multiple notices to the same medical practitioner and thus do not apply to the facts here.

      . Salazar also argues that her agreement with the surgeon and the hospital to extend the statute of limitations, as is permitted under subsection 766.106(4), operated to extend the statute of limitations as to her claims against Appellees, but we need not address that argument in light of the timely filing of her claims under Rule 1.650.


author: PER CURIAM.

text:
    Lance SALTZMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-4181.
    District Court of Appeal of Florida, Fourth District.
    Dec. 17, 2014.
    Rehearing Denied Feb. 3, 2015.
    Lance M. Saltzman, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of appellant’s untimely and successive rule 3.850 motion for postconviction relief. We reject appellant’s claim that the trial court was required to consider the “supplemental ground” that he filed before the State had responded to his motion. The supplemental ground was unauthorized because, effective July 1, 2013, appellant needed leave of Court to file an amendment after the court had issued an order requiring a response. Fla. R. Crim. P. 3.850(e); In re Amendments to Fla. Rules of Criminal Procedure, 132 So.3d 734 (Fla. 2013).

Further, we have reviewed the “supplemental ground” and find that it raises a frivolous and procedurally barred claim regarding an alleged defect in the charging information. Fla. R. Crim. P. 3.140(o). Appellant is cautioned that the filing of frivolous postconviction proceedings may result in the sanction of the courts no longer accepting his pro se filings and referral to prison officials for disciplinary procedures. See State v. Spencer, 751 So.2d 47 (Fla.1999); § 944.279(1), Fla. Stat. (2014).

Affirmed.

TAYLOR, CONNER and FORST, JJ„ concur.


author: KELLY, Judge.

text:
    Jeannette M. SMALLEY, Loren Lee Wieland, Stacee Peltz, and Kyle Peltz, for themselves and on behalf of a class of all others similarly situated, Appellants, v. DUKE ENERGY FLORIDA, INC., a Florida corporation, formerly Florida Power Corp., d/b/a Progressive Energy Florida, Inc., and Florida Power & Light Co., Appellees.
    No. 2D13-4746.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2014.
    Frank B. Arenas, Coleman, and Alberto E. Lugo-Janer, Windermere, for Appellants.
    Stephen H. Grimes, D. Bruce May, Jr., Elizabeth L. Bevington, and Kevin W. Cox of Holland & Knight, LLP, Tallahassee, for Appellees.
   KELLY, Judge.

The appellants, customers of Duke Energy Florida, Inc., and Florida Power & Light Company (the Utilities), brought suit against the Utilities challenging the constitutionality of sections 366.93 and 403.519, Florida Statutes (2012), and seeking a refund of monies paid under the statutes. They appeal from the trial court’s order dismissing the action with prejudice. We affirm.

In 2006, the Legislature enacted section 366.93, Florida Statutes, and amended section 403.519, Florida Statutes, with the stated purpose of encouraging utility companies to invest in new nuclear power plants. See Ch. 2006-230, § 1, at 2595-96, Laws of Fla.; Ch. 2006-230, § 44, at 2648^49, Laws of Fla. As contemplated by the statutes, the Florida Public Service Commission (PSC) authorized the Utilities to begin the construction of a nuclear plant and, in the case of Florida Power & Light Company, to modify its existing nuclear plants to increase their generating capacity. Normally, a public utility is required to wait until after an electrical power plant is constructed and fully operational before it can recover the cost of constructing the new plant from its customers. See S. Alliance For Clean Energy v. Graham, 113 So.3d 742, 745 (Fla. 2013). However, the 2006 legislation allows public utilities to recover preconstruction and carrying costs before a nuclear power plant begins to operate. Section 366.93(6) provides in pertinent part:

If the utility elects not to complete or is precluded from completing construction of the nuclear power plant, including new, expanded, or relocated electrical transmission lines Or facilities necessary thereto, or of the integrated gasification combined cycle power plant, the utility shall be allowed to recover all prudent preconstruction and construction costs incurred following the commission’s issuance of a final order granting a determination of need for the nuclear power plant, and electrical transmission lines and facilities necessary thereto or for the integrated gasification combined cycle power plant.

§ 366.93(6), Fla. Stat. (2012).

The appellants sued the Utilities alleging that the 2006 legislation is unconstitutional and seeking a refund of the monies paid to the Utilities pursuant to the cost recovery statutes. The Utilities moved to dismiss. The trial court dismissed the amended complaint, but with leave to amend. The appellants filed a second amended complaint and the Utilities again moved to dismiss. After a hearing, the trial court granted the Utilities’ motion and dismissed the second amended complaint with prejudice.

The second amended complaint contained two counts, only one of which is at issue in this appeal. In that count the appellants allege that sections 366.93 and 403.519 are facially unconstitutional under Article I, Section 10 of the Constitution of the United States. Specifically, they allege that pursuant to the statutes, the Utilities have been charging additional amounts above the amount charged for the electricity they have consumed and that this constitutes an unconstitutional impairment of their contractual relationship with the Utilities. The complaint alleges that any public purpose justifying the impairment is destroyed by the fact that the statutes authorize the Utilities to elect not to build, complete, or operate the nuclear power plants yet keep the preconstruction costs charged to customers, plus a rate of return.

The constitutionality of a statute is a question of law we review de novo. Fla. Dep’t of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005). A facial constitutional challenge considers only the text of the statute, not its application to a particular set of circumstances. Abdool v. Bondi, 141 So.3d 529, 538 (Fla. 2014). A determination that a statute is facially unconstitutional means that no set of circumstances exists under which the statute would be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987); City of Gainesville, 918 So.2d at 256. “If any state of facts, known or to be assumed, justify the law, the court’s power of inquiry ends.” State v. Bales, 343 So.2d 9, 11 (Fla.1977) (citing United States v. Carolene Prods. Co., 304 U.S. 144, 154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938)). A facial challenge fails when a statute has a “plainly legitimate sweep.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (citation omitted).

While the appellants argue that the challenged statutes are facially unconstitutional, they have utterly failed in their burden to demonstrate that no circumstances exist under which the statutes would be valid. Rather, the crux of the appellants’ challenge focuses only on one particular circumstance contemplated by the statute — the recovery of costs of construction where a utility “elects” not to build the plant. The appellants contend that the “statutes authorize each Defendant to elect not to build, complete or operate the nuclear power plants and thereby defeat any public purpose or public use.” They have not alleged nor argued that in the event a utility is precluded from completing a power plant due to factors beyond its control, the public purpose for the legislation, which is to encourage investment in new nuclear power plants, is defeated. As noted by the Florida Supreme Court, transferring the risk for proposed nuclear projects to encourage utilities to invest in new facilities is a “policy consideration best addressed by the Legislature,” and not the courts. Graham, 113 So.3d at 753. Because the appellants have not met their burden of demonstrating that the statute is unconstitutional in all its possible applications, we affirm.

Affirmed.

ALTENBERND and SILBERMAN, JJ., Concur.

      . The applicable version of section 403.519(4)(e), Florida Statutes (2012), provides in pertinent part:
      After a petition for determination of need for a nuclear or integrated gasification combined cycle power plant has been granted, the right of a utility to recover any costs incurred prior to commercial operation, including, but not limited to, costs associated with the siting, design, licensing, or construction of the plant and new, expanded, or relocated electrical transmission lines or facilities of any size that are necessary to serve the nuclear power plant, shall not be subject to challenge unless and only to the extent the commission finds, based on a preponderance of the evidence adduced at a hearing before the commission under s. 120.57, that certain costs were imprudently incurred.
      Section 366.93(2), Florida Statutes (2012), retains the same language as the 2006 version of the statute and directs the Florida Public Service Commission (PSC) to “establish, by rule, alternative cost recovery mechanisms for the recovery of costs incurred in the siting, design, licensing, and construction of a nuclear power plant.” Subsection (l)(a) defines “cost” and states that it "includes, but is not limited to, all capital investments, including rate of return, any applicable taxes, and all expenses ... related to or resulting from the siting, licensing, design, construction, or operation of the nuclear power plant.”


author: EMAS, J.

text:
    Windell SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2767.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, EMAS and SCALES, JJ.
   EMAS, J.

Sanchez appeals from his conviction and sentence for tampering with physical evidence. Sanchez contends that the trial court erred in denying his motion for judgment of acquittal because the evidence failed to establish the requisite intent for the crime of tampering, and established an intent merely to abandon the crack cocaine rocks. We disagree, and hold that the evidence, together with the reasonable inferences therefrom, taken in a light most favorable to the State, was sufficient to establish that Sanchez acted with the intent to “alter, destroy, conceal, or remove” the crack cocaine rocks for the purpose of impairing the availability of this evidence in the police investigation. See § 918.13(l)(a), Fla. Stat. (2012); Chapman v. State, 36 So.3d 822 (Fla. 5th DCA 2010); Hayes v. State, 634 So.2d 1153 (Fla. 4th DCA 1994).

Affirmed.

      . Sanchez was also convicted of, and sentenced for, resisting an officer without violence, but has not appealed that conviction or sentence.


text:
    Jose OTERO, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D13-3251.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.
    Lopez & Best, and Virginia M. Best, for appellant.
    Methe & Rockenback, P.A., and Kara Berard Rockenbach (West Palm Beach); Cole, Scott & Kissane, P.A., and Andrea B. Chirls, Miami, for appellee.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Ergas v. Universal Property and Cas. Ins. Co., 114 So.3d 286 (Fla. 4th DCA 2013).


text:
    Londan DAVIS, Appellant, v. CITY OF HOMESTEAD, et al., Appellees.
    No. 3D14-1239.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.
    The Law Firm of Brill Rinaldi Garcia, and David W. Brill (Weston); Joel S. Per-win, Miami, for appellant.
    Haliczer, Pettis & Schwamm, and Debra Potter Klauber and Eugene K. Pettis (Fort Lauderdale); Walter J. Harvey and John-Philip M. Iafelice, for appellees.
    Before SUAREZ, LAGOA and SCALES, JJ.
   PER CURIAM.

Affirmed. See Francis v. Sch. Bd. of Palm Beach Cnty., 29 So.3d 441 (Fla. 4th DCA 2010).


author: ROTHENBERG, J.

text:
    Christopher Neil MORLOCK, Appellant, v. NATIONSTAR MORTGAGE, LLC, Appellee.
    No. 3D14-1247.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.
    Stratton Feinstein & Associates, P.A., and Douglas D. Stratton, Miami Beach, for appellant.

      Álbertelli Law, for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   ROTHENBERG, J.

Nationstar Mortgage, LLC (“Nations-tar”) filed a foreclosure action against Christopher Neil Morlock (“Morlock”) in 2012. Morlock responded by filing a pro se motion for an extension of time to file his answer, asserting that he needed additional time to retain counsel. Morlock then retained counsel and filed a motion to stay the proceedings based on his allegation that Nationstar had offered to modify his loan. However, without notice to Mor-lock or his counsel, Nationstar moved for the issuance of a default based on Mor-lock’s alleged failure to file a responsive pleading, and the trial court granted that motion.

On November 22, 2013, Morlock filed a motion to vacate the judicial default and for leave to file a response, asserting that Nationstar improperly moved for a default without serving Morlock with the motion, citing to rule 1.500(b), Florida Rules of Civil Procedure, which provides: “When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter default against such party; provided that if such party has filed or served any paper in the action, that party shall be served with notice of the application for default.” (emphasis added). Importantly, Morlock attached his answer and affirmative defenses to his November 22, 2013 motion to vacate the judicial default.

On December 27, 2013, while Morlock’s motion to vacate the judicial default was pending, a senior judge entered a final default judgment of foreclosure in favor of Nationstar. Thereafter, the trial court properly granted Morlock’s pending motion to set aside the judicial default and ordered Morlock to file an answer within ten days even though he had already filed his answer and affirmative defenses on November 22, 2013. Morlock moved to vacate the final default judgment of foreclosure entered by the senior judge since the trial court had set aside the judicial default as improperly entered. Rather than granting Morlock’s motion to vacate the final default judgment, the trial court entered an order vacating its previously-entered order setting aside the judicial default and denied Morlock’s motion to vacate the final default judgment of foreclosure. This order resulted in the judicial default being reinstated and the final default judgment standing.

Morlock contends that the trial court abused its discretion by denying his motion to vacate the final default judgment of foreclosure and by vacating the previously-entered order setting aside the judicial default. We agree.

It appears that when the trial court denied Morlock’s motion to vacate the final default judgment and reinstated its previously-entered order setting aside the judicial default, it was under the mistaken impression that Morlock had not filed a responsive pleading. However, the record clearly demonstrates that Morlock filed his answer and affirmative defenses not once, but twice: (1) on November 22, 2013, when he filed his motion to set aside the judicial default; and (2) on February 25, 2014, when he attached a copy of his answer and affirmative defenses to his emergency motion to cancel the foreclosure sale.

Because the record and the trial court’s order do not provide a basis for the entry of a judicial default, we reverse the order under review and remand with directions to the trial court to reinstate its order setting aside the judicial default, vacate the final judgment of foreclosure, and cancel the certificate of title. We also direct the clerk of court to return the bid monies.

Reversed and remanded with instructions.


author: SALTER, J.

text:
    Victor LERNER, etc., et al., Appellants, v. Ino HALEGUA, etc., et al., Appellees.
    No. 3D14-1841.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.
    Anna Lenchus, Boca Raton, for appellants.
    Jones & Adams and Matthew L. Jones and Giovanna A. Abreu, Miami, for appel-lees.
    Before SALTER, EMAS and SCALES, JJ.
   SALTER, J.

Victor Lerner appeals an order imposing sanctions for litigation misconduct and a partial final judgment on liability. We reverse and remand based on Mr. Lerner’s well-taken objections to the admission of certain photographs during the evidentiary hearing on the appellees’ claims of litigation misconduct.

Facts and Procedural History

The claims and counterclaims in an otherwise unremarkable civil lawsuit were in mid-trial before a jury. On a Saturday morning, after four days of trial, a strange sequence of events unfolded. Mr. Lesley Winston, a professional advisor to appellee Ino Halegua, received a call at his condominium from the Aventura Police asking if they could visit him there. When Mr. Winston’s wife opened the door to admit the police, several notes fell to the floor. The Winstons and the police found crudely-printed anonymous messages on the notes threatening Mr. Winston and others with bodily harm, as well as five live-round bullets and a photo of Mr. Winston marked “X” on each leg.

The police had been called by Mr. Winston’s housekeeper from his office. While cleaning the office earlier that Saturday morning, the housekeeper found other notes and bullets that had been inserted through the office mail slot. When she was unable to reach Mr. Winston by telephone, she contacted the police and asked them to visit his condominium.

When the police interviewed Mr. Winston, he identified only one person he thought might have left the messages and bullets — a former business relation of Mr. Winston’s who had no connection whatsoever to the pending lawsuit and trial. The police asked the condominium security officer to review the video surveillance camera tapes for the main entrance gate and the building lobby. The police report stated that “[n]o evidence was found from both camera systems.”

Later that weekend, and before the resumption of the scheduled trial Monday morning, Mr. Winston himself reviewed the condominium surveillance tapes at the lobby desk and said that he recognized Mr. Lerner as an individual coming through the third floor parking garage door early that Saturday morning, shortly before the notes and bullets were found. Mr. Winston took several still photographs of frames from the surveillance tape, purporting to show Mr. Lerner and the date and time shown by the video camera. Mr. Winston shared this information with the police, identified Mr. Lerner from a photo lineup, and pressed criminal charges against Mr. Lerner.

•When the civil trial resumed Monday morning, defense counsel proffered Mr. Winston’s testimony regarding the threats, moved for a mistrial, and moved to strike Mr. Lerner’s pleadings based on litigation misconduct. The trial court declared a mistrial and scheduled an evidentiary hearing on the litigation misconduct issues. Mr. Lerner’s • counsel withdrew, and his replacement counsel sought a continuance of the evidentiary hearing to allow additional preparation and for the completion of the criminal case. That motion was granted in part, but the evidentiary hearing in the civil case was conducted before the originally-scheduled trial date in the criminal case. At the evidentiary hearing, and after consultation with his attorney, Mr. Lerner invoked his Fifth Amendment rights to decline to answer questions regarding the placement of the bullets and notes at Mr. Winston’s office and condominium.

At the hearing, Mr. Halegua’s counsel moved into evidence the four still photographs purportedly taken by Mr. Winston from the condominium surveillance camera videotape recorded the morning of the incident. Over timely objection, the photos were admitted. The trial court granted Mr. Halegua’s motion for sanctions for litigation misconduct, struck Mr. Lerner’s (and his companies’) pleadings, and entered judgment in favor of Mr. Halegua and his companies. This appeal followed. Analysis

Mr. Lerner raises several arguments here, but we address one we have determined to be well taken and substantially prejudicial. The still photographs allegedly depicting the condominium surveillance camera frames of Mr. Lerner at Mr. Winston’s condominium the morning of the incident were admitted over a timely objection to authenticity and identification. Section 90.901, Florida Statutes (2014), states:

Authentication or identification of evidence is required as a condition precedent to its admissibility. The requirements of this section are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Counsel for Mr. Halegua argues that Mr. Winston properly identified and authenticated the photos as depictions of Mr. Lerner, who Mr. Winston had observed in court during the trial. As proponent for the introduction of the photos, .however, Mr. Halegua asserted that the underlying surveillance video (and thus the photos taken from the video) had recorded Mr. Lerner in the act of entering the condominium building at a time and date linking Mr. Lerner to the delivery of the threatening, anonymous notes and bullets.

However, no authentication or identification testimony for the underlying surveillance video was offered from the condominium security officer or vendor responsible for the operation of the vi-deocamera and knowledgeable regarding the date, time, and storage procedures for the particular video footage and scenes photographed by Mr. Winston. On several of the photos, the date and time information was obscured or inconsistent.

In Cirillo v. Davis, 732 So.2d 387 (Fla. 4th DCA 1999), the Fourth District reviewed the requirements for authentication of videotape under the-“silent witness” theory (when there is no individual videographer available to testify regarding videotape taken by a remotely-controlled surveillance camera). Cirillo and a First District case upon which it relies, Wagner v. State, 707 So.2d 827 (Fla. 1st DCA), rev. denied, 717 So.2d 542 (Fla.1998), establish a practical and reliable means for authenticating such “silent witness” videotapes. A witness responsible for the videotape system, able to confirm the accuracy of the time and date on which the tape was made, and able to confirm that the tape was not edited or tampered with, should be presented if there is no stipulation on these points, to “provide the indicia of reliability required to authenticate a videotape for purposes of the ‘silent witness theory.’ ” Wagner, 707 So.2d at 830.

Mr. Halegua argues that the individual photos depicting frames of the surveillance videotape are admissible under the analysis in H.A. v. State, 24 So.3d 752 (Fla. 3d DCA 2009). In that case, however, the drugstore employee who authenticated photos of videotape frames had actually observed the theft depicted on the videotape and in the photos. The same employee also testified that the photos had been downloaded directly from the surveillance video recorded the night of the theft, and that he had seen the photos on a video monitor. That employee then identified the defendant charged with the theft shown in the photos.

In the present case, Mr. Winston did not personally, observe the events depicted on the surveillance videos or the photos. The record here reflects that Mr. Winston had no responsibility for the operation, placement, or maintenance of the videocamera in question, and he had no direct knowledge regarding the procedure for retrieving or copying those portions of a video record that might be pertinent to the investigation at issue here.

In the absence of the photos admitted over Mr. Lerner’s objection, the evidence at the hearing in the civil case fell short of the “clear and convincing” showing necessary to support the dismissal of Lerner’s claims and defenses for fraudulent or unconscionable litigation misconduct. Sky Dev., Inc. v. Vistaview Dev., Inc., 41 So.3d 918 (Fla. 3d DCA 2010). Our reversal on this point obviates the need to consider Lerner’s other points on appeal, as his counsel have now had ample opportunity to complete their investigation, and Mr. Lerner’s concerns regarding the pending criminal case have since been eliminated.

The order of July 10, 2014, granting the defendants’ motion for sanctions is reversed, as is the final judgment in their favor. The case is remanded for a new evidentiary hearing in the event the defendants renew their motion for sanctions.

Reversed and remanded.


text:
    Michael Angelo CORBIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2467.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.
    Ronald Haber, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 124 So.3d 757 (Fla.2012); Bee v. State, 132 So.3d 857 (Fla. 4th DCA 2013); Mortimer v. State, 96 So.3d 1060 (Fla. 4th DCA 2012).


author: LAGOA, J.

text:
    James WALKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1016.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.

      Carlos J. Martinez, Public Defender, and Shannon Hemmendinger, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   LAGOA, J.

The defendant, James Walker (“Walker”), appeals from a final judgment of conviction and sentence for burglary with a battery and criminal mischief. As to Walker’s claim of fundamental error based upon allegedly improper comments made by the prosecutor in closing argument, we affirm without discussion. See Davis v. State, 136 So.3d 1169 (Fla.2014); Braddy v. State, 111 So.3d 810 (Fla.2012), cert. denied, — U.S.-, 134 S.Ct. 275, 187 L.Ed.2d 199 (2013). We reverse, however, Walker’s conviction for criminal mischief and remand for his discharge on this count.

I. FACTUAL AND PROCEDURAL HISTORY

Walker was charged with burglary 'with a battery as well as criminal mischief. The charges stemmed from an incident on March 22, 2012, in which Walker had an altercation with Errol Tilwaites (“Til-waites”), who was the security guard at an apartment complex. During the course of the incident Walker pushed Tilwaites into the apartment complex’s gatehouse. As a result of the push, Tilwaites landed against a glass door which completely shattered. At the close of the defense case, Walker moved for a judgment of acquittal as to the criminal mischief charge. The trial court denied the motion.

II. STANDARD OF REVIEW

This Court reviews a trial court’s ruling on a motion for judgment of acquittal under a de novo standard of review. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). It is well settled that if, after construing the evidence in a light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, the conviction will be sustained. Id.; see also Jenkins v. State, 1 So.3d 317, 320-21 (Fla. 3d DCA 2009) (“[T]he State ... is required during its case in chief to present a prima facie case of guilt through the offer of competent substantial evidence on each element of the crime ... failing which the accused is entitled to a judgment of acquittal.... ”) (citations omitted).

III. ANALYSIS

Walker was charged with and convicted of criminal mischief, in violation of section 806.13(l)(b)2, Florida Statutes (2012), which provides as follows:

(l)(a) A person commits the offense of criminal mischief if he or she willfully and maliciously injures or damages by any means any real or personal property belonging to another, including, but not limited to, the placement of graffiti thereon or other acts of vandalism thereto.
• (b)l. If the damage to such property is $200 or less, it is a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
2. If the damage to such property is greater than $200 but less than $1,000, it is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(emphasis added). In M.H. v. State, 936 So.2d 1, 3 (Fla. 3d DCA 2006), this Court held that criminal mischief is a general intent crime, and that “[wjhile malice does not require a specific intent to damage the property, malice cannot be presumed based upon a finding of property damage.” In order to determine whether the element of malice was present, “one must look to the circumstances surrounding the conduct which caused the damage.” Id.; accord J.R.S. v. State, 569 So.2d 1323, 1325 (Fla. 1st DCA 1990).

Significantly, this Court also recognized in M.H. that “the doctrine of transferred intent cannot sustain a conviction for criminal mischief.” 936 So.2d at 4. In other words, the criminal mischief statute requires that when a defendant acts with malice toward another person, rather than toward property, that malice does not transfer to the property. Id. at 5; see also H.F. v. State, 927 So.2d 163, 164 (Fla. 3d DCA 2006) (concluding that “the evidence is insufficient to support a finding that the defendant intended to damage or destroy the telephone as opposed to acting with malice towards the victim”); Sanchez v. State, 909 So.2d 981, 985 (Fla. 5th DCA 2005) (finding that the State failed to prove the crime of criminal mischief where the defendant, with ill will and malice toward a store clerk attempted to rob him and in the process the clerk’s telephone was damaged); In re J.G., 655 So.2d 1284, 1285 (Fla. 4th DCA 1995) (“[T]he criminal mischief statute requires that the offender act against the property of another willfully and with malice....”).

Given this, we find that the trial court erred in denying Walker’s motion for judgment of acquittal on the charge of criminal mischief. Viewing the evidence in the light most favorable to the State, the State failed to present competent, substantial evidence that Walker acted with malice toward the property at issue (the glass door), rather than toward Tilwaites. The evidence at trial established that Walker pushed Tilwaites. As a result of being pushed, Tilwaites landed against a glass door and the glass door shattered. Even viewed in the light most favorable to the State, the circumstances surrounding Walker’s conduct establish only that he acted with malice toward the person of Tilwaites. Because the malice directed toward Tilwaites cannot be transferred to the glass door, M.H., 936 So.2d at 4, the evidence presented by the State was insufficient to sustain a conviction of criminal mischief. See H.F., 927 So.2d at 164. As a result, Walker’s conviction and sentence for criminal mischief must be reversed and the matter remanded for his discharge on this count.

IV. CONCLUSION

Because the State failed to prove the crime of criminal mischief, we reverse Walker’s conviction and sentence for that crime and .the cause remanded for his discharge on that count. Walker’s conviction and sentence for burglary with a battery is otherwise affirmed.

Affirmed in part, reversed in part, and remanded with directions.


text:
    Xavier HYLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1554.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.
    Xavier Hyland, in proper person.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SCALES, JJ.
   PER CURIAM.

Affirmed. See Miguez v. Miguez, 824 So.2d 258 (Fla. 3d DCA 2002).


author: SCALES, J.

text:
    Charles BLOOMGARDEN, et al., Appellants, v. Roberta F. MANDEL, et al., Appellees.
    No. 3D14-556.
    District Court of Appeal of Florida, Third District.
    Dec. 31, 2014.

      Stanley E. Orzechowski, pro hac vice, New York, for appellants.
    Kaufman Dolowich & Voluck, LLP, Matthew H. Ginder, and Gregg J. Breitbart, Boca Raton; and Vincent S. Green, pro hac vice, for appellees.
    Before SHEPHERD, C.J., and LAGOA and SCALES, JJ.
   SCALES, J.

Charles and Joan Bloomgarden (the “Bloomgardens”) appeal a non-final order of the trial court (the “Order on Appeal”) denying their motion to cancel a charging lien for attorney’s fees filed by Appellee Anthony Lanza (“Lanza”) in the underlying professional malpractice action. Because we lack jurisdiction to hear the Bloomgardens’ premature appeal, we dismiss the appeal sua sponte.

I. Facts

The Bloomgardens hired Lanza to bring a professional malpractice action against attorney Roberta Mandel (“Mandel”) and Mandel’s former law firm, Houck, Hamilton & Anderson (“HHA”). Pursuant to the Contingent Hybrid Fee Agreement (“Fee Contract”) between the Bloomgar-dens and Lanza, Lanza was to be paid $175/hour plus 15% of any recovery.

Mandel is a criminal defense lawyer. The Bloomgardens hired Mandel to prepare and file a Habeas Corpus petition in federal court in New York on behalf of their son Howard, who, in 1996, entered a guilty plea to murder and was sentenced to more than 33 years in prison. The hiring of Mandel was prompted by Howard’s extradition to California to stand trial in a related case for capital murder.

In 2007, Lanza filed the underlying malpractice (and breach of contract) lawsuit in Miami-Dade County Circuit Court on behalf of the Bloomgardens and Howard. The Bloomgardens alleged that, despite having paid HHA and Mandel over $200,000 in fees, Mandel never completed the work for which she was hired.

During the discovery phase of the malpractice action, Lanza sought Mandel’s file, which raised an attorney-client privilege issue. Mandel required a waiver from Howard. The criminal defense attorney in Howard’s ongoing California murder case advised Howard not to sign the waiver document for fear that any information in the file could jeopardize Howard’s defense in the California criminal case. Lanza advised the Bloomgardens to hold their malpractice case in abeyance until Howard’s criminal case had concluded, and the requested files from Mandel could then be produced.

The Bloomgardens, however, insisted that the malpractice case move forward because they needed money to fund Howard’s defense in the criminal case.

In 2009, Lanza withdrew from representing the Bloomgardens, citing irreconcilable differences. Specifically, Lanza alleged that strategies related to the criminal case against Howard created difficulties in his prosecution of the malpractice action in Florida; i.e., that the Bloomgardens’ insistence on pushing the case forward undermined his strategy. Lanza also alleged he was not being paid as the Bloomgardens had agreed in the Fee Contract.

The trial judge’s order allowing Lanza’s withdrawal did not reference any potential charging lien. The Fee Contract, however, purports to grant Lanza a charging lien.

The Bloomgardens hired replacement counsel for Lanza. After new counsel was retained, the Bloomgardens dismissed their claims against Mandel and reached a $75,000 settlement with HHA.

The Bloomgardens’ efforts to complete the settlement with HHA, and collect the $75,000 settlement proceeds, were hampered by Lanza’s assertion of the charging lien in the malpractice case. It appears that Lanza filed his charging lien seeking both (1) unpaid portions of the hourly fee earned prior to Lanza’s withdrawal; and (2) a percentage of the $75,000 settlement as a contingency fee.

In October 2013, the Bloomgardens filed a motion in the malpractice case to cancel the charging lien claimed by Lanza. The Bloomgardens alleged several grounds supporting their motion to cancel Lanza’s charging lien: (1) Lanza committed malpractice, thereby defeating any charging lien; (2) Lanza’s withdrawal from representation was voluntary, thereby forfeiting any rights to compensation under Faro v. Romani, 641 So.2d 69 (Fla.1994); (3) Lanza did not contribute to the efforts that resulted in the settlement with HHA; and (4) the statute of limitations for breach of the Fee Contract expired.

On January 24, 2014, the trial court held a day-long evidentiary hearing on the Bloomgardens’ motion to cancel Lanza’s charging lien and, on February 11, 2014, entered the Order on Appeal that denied the Bloomgardens’ motion. The Order on Appeal does not quantify the amount of Lanza’s lien.

II. Analysis

Neither the Bloomgardens nor Lanza questioned this Court’s jurisdiction to review the Order on Appeal. Florida’s appellate courts, however, have an independent duty to determine the existence of jurisdiction in every case and must dismiss those cases over which there is no jurisdiction. Gleicher v. Claims Verification Inc., 908 So.2d 560, 561 (Fla. 4th DCA 2005).

Prior to oral argument, we issued the parties an order to be prepared to argue whether this Court has jurisdiction to review the Order on Appeal.

The parties either assert or suggest three alternate arguments as to why this Court has jurisdiction: (1) the Order on Appeal is a final order subject to review pursuant to rule 9.030(b)(1)(A); (2) the Order on Appeal is a non-final order determining the right to immediate possession of property (the $75,000 settlement proceeds) as contemplated by rules 9.030(b)(1)(B) and 9.130(a)(3)(C)(ii); or (3) the Order on Appeal represents a departure from the essential requirements of law resulting in irreparable harm which cannot be remedied on direct appeal thus entitling the Bloomgardens to certiorari review pursuant to rule 9.030(b)(2)(A).

We reject each suggested characterization of the Order on Appeal, and we address each in turn:

(i) Order on Appeal is Not a Final Order

Florida’s test of finality for appellate purposes is well established: the order constitutes the end of judicial labor in the trial court, and nothing further remains to be done to terminate the dispute between the parties. Miami-Dade Water and Sewer Auth. v. Metro. Dade County, 469 So.2d 813, 814 (Fla. 3d DCA 1985).

In the context of attorney’s fees, Florida courts have routinely held that an order entitling a party to the recovery of attorney’s fees where the amount of such fees is not yet set is not final for appellate purposes. Easley, McCaleb & Stallings, Ltd. v. Gibbons, 667 So.2d 988 (Fla. 4th DCA 1996).

The rationale for such cases is plain: because the trial court has not determined the amount of any fee entitlement, further judicial labor is required to adjudicate fully the parties’ dispute.

Similarly, in this case, while the court has declined to cancel Lanza’s charging lien, the trial court has not determined the amount of Lanza’s lien, and ultimately the amount of the HHA settlement proceeds to which Lanza is entitled.

The trial court is still required to conduct an evidentiary hearing to determine the amount of any fee to which Lanza may be entitled. Smith & Burnetti, P.A. v. Faulk, 677 So.2d 404 (Fla. 2d DCA 1996). Any such fee would be based on quantum. meruit principles without regard to a lodestar,taking'into account the amount of fees paid to the Bloomgardens’ current counsel. In no instance should the Bloom-gardens be responsible for fees exceeding their original Fee Contract with Lanza. Collier v. Bohnet, 966 So.2d 1033, 1035 (Fla. 4th DCA 2007).

Thus, the Order on Appeal is not final because further judicial labor is required to effectuate a termination of the dispute between the Bloomgardens and Lanza.

(ii) Order on Appeal is Not an Appeal-able Non-Final Order

The Bloomgardens argue, in the alternative, that the Order on Appeal determined the right to immediate possession of property, and therefore constitutes an appeal-able non-final order as contemplated in rule 9.130(a)(3)(C)(ii).

Presumably, the argument in this regard is that, had the trial court cancelled Lanza’s charging lien as the Bloomgardens sought in their motion, the trial court would have removed an impediment to consummating the settlement, and the Bloomgardens could then receive the HHA settlement proceeds.

An order determining possession of money may constitute, under certain circumstances, an appealable non-final order. See, e.g., Greene v. Borsky, 961 So.2d 1057 (Fla. 4th DCA 2007). The Order on Appeal, however, does not serve to determine immediate possession of property because it merely denies the Bloomgardens’ motion to cancel Lanza’s charging lien.

In that regard, the Order on Appeal adjudicated the validity of a charging lien; it did not adjudicate the immediate possession of anything. Higgins v. Ryan, 81 So.3d 588 (Fla. 3d DCA 2012).

(iii) Order on Appeal is Not Subject to Certiorari Review

In our sifting for jurisdiction, we finally consider whether the Order on Appeal may be subject to certiorari review; i.e., whether we should treat the Bloomgar-dens’ appeal as a petition for writ of certio-rari.

Only those interlocutory orders that represent a departure from the essential requirements of law resulting in irreparable harm, which cannot be adequately remedied on appeal, are subject to certiorari review. Mana v. Cho, 147 So.3d 1098 (Fla. 3d DCA 2014).

Irreparable harm has been neither alleged nor established. Additionally, no argument has been asserted as to why any error by the trial court regarding the validity of Lanza’s charging lien could not be remedied on plenary appeal.

This is simply not a certiorari case.

III. Conclusion

The Order on Appeal is not a final order, not an appealable non-final order, and not an order subject to certiorari review. Therefore, this appeal is premature and the Court lacks jurisdiction to review the Order on Appeal.

We dismiss the appeal, without prejudice.

      . Howard was dropped as a Plaintiff soon after the case began.

      . Apparently, HHA insisted on a final resolution of Lanza's lien before paying the settlement.

      . The record reflects that Lanza has filed a state court breach of contract action against the Bloomgardens in California, alleging breach of the Fee Contract. The parties appear to argue that the outcome of that California breach of contract case somehow will affect the amount of Lanza’s lien on the HHA settlement proceeds and, therefore, the trial court's judicial labor ended when it rendered the Order on Appeal. While the issues in the California litigation might be similar to the issues determined by the trial court in this case, there is nothing in the record, and the parties have provided no authority, suggesting that the California trial court has jurisdiction to determine the amount of Lanza’s charging lien in this case or that any determination in the California case would be binding on the trial court below.

      . This case is readily distinguishable from Kerrigan, Estess, Rankin & McLeod v. State, 711 So.2d 1246 (Fla. 4th DCA 1998). In Kerrigan, the trial court (without hearing and without the issues having been pled) sua sponte declared the subject contingency fee contracts unenforceable and quashed the attorney charging liens. Id. at 1247-48. Finding that the trial court’s order departed from the essential requirements of law by denying the attorneys due process, the Kerrigan court granted the petition for writ of certiorari and remanded for appropriate proceedings consistent with the requirements of due process. In the instant case, no due process issues are implicated. Indeed, the trial court granted the parties a properly noticed evidentiary hearing.


text:
    James Mitchel REED, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-4274.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2014.

      James Mitchel Reed, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

James Mitchel Reed, the' defendant in three felony cases pending below in Volu-sia County, petitions for a writ of prohibition, alleging that the State violated his right to a speedy trial in each case. Florida Rule of Criminal Procedure 3.191(a) provides that a person charged with a felony “shall be brought to trial within ... 175 days of arrest.” Reed was granted the right to represent himself in these cases and, pursuant to Florida Rule of Criminal Procedure 3.191(p)(2), he filed a Notice of Expiration of Speedy Trial Time, after having been in continuous custody in the Volusia County Jail for more than 175 days following his arrest. The trial court, thinking Reed was represented by counsel, erroneously entered an order striking the notice. The court, therefore, did not hold a hearing on the notice of expiration of speedy trial within five days from the date Reed filed the notice, and Reed was not brought to trial within ten days of that date, as required by rule 3.191(p)(3). At this point, Reed, who through no fault of his own had not been brought to trial, was entitled to be “forever discharged” from the crimes “on motion of the defendant or the court.” Id. Instead, Reed then separately filed a Demand for Speedy Trial pursuant to rule 3.191(b), unwittingly providing the State an additional 60 days to bring him to trial. No calendar call was held on Reed’s demand as required under rule 3.191(b)(1), and the time to bring Reed to trial again expired. At that time, Reed appropriately filed a motion for discharge in his cases, which the trial court subsequently denied.

“‘Prohibition is the appropriate remedy to prevent a trial court from proceeding against an accused after the erroneous denial of a motion for discharge based on a violation of the speedy trial rule.’ ” Hill v. State, 132 So.3d 925, 930 (Fla. 1st DCA 2014) (quoting Cespedes v. State, 17 So.3d 302, 303 (Fla. 4th DCA 2009)). Based on the allegations in the petition for writ of prohibition, we ordered the State to file a response. The State, in its response, did not expressly argue that the petition should be denied, but asserted only that this court should “rule as necessitated by the interests of justice.” Because the record in this case established that Reed’s right to a speedy trial was violated, we grant the petition for writ of prohibition and order the trial court to discharge James Mitchel Reed in Volusia County Case Nos.2013-CF-306690, 2013-CF-306776, and 2013-CF-306786.

PETITION GRANTED.

TORPY, C. J., SAWAYA and LAMBERT, J.J., concur.

      . The trial court cited to Davis v. State, 586 So.2d 1038, 1041 (Fla.1991), vacated on other grounds by 505 U.S. 1216, 112 S.Ct. 3021, 120 L.Ed.2d 893 (1992), which held that "[a] criminal defendant does not simultaneously enjoy a right to assistance of counsel and the right to represent himself.”


author: BERGER, J.

text:
    Douglas H. DOTY, Appellant, v. Grant BRYSON, Appellee.
    No. 5D13-2819.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.

      Kevin K. -Dixon, of Kevin K. Dixon, P.A., Inverness, for Appellant.
    Keith R. Taylor, of the Law Office of Keith R. Taylor, P.A., Lecanto, for Appel-lee.
   ON MOTION FOR REHEARING OR CLARIFICATION

BERGER, J.

We grant Appellee’s motion for clarification, withdraw our previous opinion, and substitute the following in its place.

Appellant, Douglas H. Doty, timely appeals the summary final judgment entered in favor of Appellee, Grant Bryson, on Doty’s claim for breach of a promissory note. Doty argues that the trial court erred in finding the relevant promissory note, identified as Promissory Note “C,” ambiguous as to whether Bryson’s conveyance of 35% of. the outstanding stock in three companies extinguished Promissory Note “C.” We agree and reverse.

Bryson paid $2,000,000.00 for 50% of the outstanding stock in three companies. He put $1,000,000.00 down towards the purchase of the stock and executed three separate promissory notes with respect to the remaining $1,000,000.00: Promissory Note “C” in the amount of $500,000.00, minus certain credits; Promissory Note “D” in the amount of $250,000.00; and Promissory Note “E” in the amount of $250,000.00. Note “C” was the primary obligation intended to be paid first. In the event of a default on Note “C,” paragraph 6 of the “Payment Schedule” in the Note requires Bryson to transfer back to Doty 35% of the stock he acquired. Specifically, paragraph 6 provides:

In the event that all principal and interest due to Lender under the terms of this Promissory Note is not paid in full on or before September 21, 2008, such shall constitute an event of default and Borrower shall immediately convey twelve point five percent (12.5%) of the outstanding stock of Cool Space of Florida, Inc., Nature Coast Marine Sales, Inc., and Gulf to Lake Sales, Inc., to Lender without further action necessary by Lender. Should Borrower fail to so convey said stock to Lender, such stock shall automatically be transferred to Lender without any further action required of Lender. Subsequent to September 21, 2008, Borrower shall have an additional One Hundred Eighty (180) days in which to pay all principal and accrued interest due under this Promissory Note to Lender. Should Borrower fail to pay to Lender all principal and accrued interest due under this Promissory Note to Lender within 180 days after September 21, 2008, Borrower shall immediately convey to Lender an additional Twenty-Two Point Five per cent (22.50%) of the outstanding issued stock of Cool Space of Florida, Inc., Nature Coast Marine Sales, Inc., and Gulf to Lake Sales, Inc. to Lender without any further action necessary by Lender. Should Borrower fail to convey said stock to Lender, then such stock shall automatically transfer to Lender without any further action required of Lender.
In addition, should Borrower fail to pay all principal and interest due to Lender pursuant to the terms of this Promissory Note on or before the expiration of one hundred eighty days (180) subsequent to September 21, 2008, Borrower shall forfeit credit for any and all payments made by Borrower to Lender or made to Lender by any person, firm, trust or corporation pursuant to the terms of any other promissory note given by Borrower to Lender. Thereafter, upon Borrowers conveyance of stock to Lender as set forth in this Section, those certain Promissory Notes given to Lender of even date herewith in the amount of $250,000.00 each shall be extinguished.

It is undisputed that Bryson defaulted on Note “C” and did not cure the default within the 180 day time period. It is also undisputed that Notes “D” and “E” would be extinguished upon transfer of the 35% share of stock back to Doty. At issue in this appeal is whether the stock transfer contained within paragraph 6 also extinguished Note “C.”

Doty contends that Promissory Note “C” is clear and unambiguous, and. that the language of Promissory Note “C” does not imply that the transfer of the stock extinguishes Promissory Note “C.” Bry-son counters that Promissory Note “C” is ambiguous because the language in paragraph 6 of the “Payment Schedule” provision “somewhat” conflicts with the language in paragraph 2 of the “Default and Remedies” provision.

Paragraph 2 of the Default and Remedies provision states:

Upon the occurrence of an Event of Default and at any time thereafter while an Event of Default shall be continuing, Lender shall have the right, exercisable at Lender’s discretion, to declare the entire unpaid principal amount of this Note, and all accrued interest on this Note, immediately due and payable without notice to Borrower. Borrower expressly waives notice of the exercise of such right.

“Whether an ambiguity in a written agreement exists is a question of law which appellate courts review pursuant to the de novo standard of review.” Lab. Corp. of Am. v. McKown, 829 So.2d 311, 313 (Fla. 5th DCA 2002). “ ‘In determining whether the trial judge has erred as a matter of law in his construction of the contract, we must be guided first by the language of the contract itself and where the contract is clear and unambiguous there is no reason to go further.’” Id. (quoting Automatic Canteen Co. of Am. v. Butler, 177 So.2d 712, 715 (Fla. 3d DCA 1965)).

Here, the trial court found paragraph 6 of Note “C” ambiguous, stating:

1. Although Note “C” is clear that Notes “D” and “E” were extinguished by the stock transfer, it is ambiguous as to whether Note “C” is extinguished.
2. Here, the Defendant paid $1,000,000.00 up front, conveyed a 35% stock share valued at $1.4 million upon default on Note “C”, and forfeited any money he had paid towards all Notes prior to the default. Giving meaning to the whole agreement and fairly considering all its parts, the language of paragraph 6 “implies” that the stock transfer is the agreed upon remedy for a default of Note “C” that extinguishes it, and in addition, extinguishes Notes “D” and “E”. Any further judgment of $478,570.00 against the Defendant for breach of promissory Note “C” would be unfair and yield an unwarranted windfall in favor of the Plaintiff.
3. Accordingly, this Court is constrained to strictly construe the contract ambiguity against the drafter and find that Note “C” was extinguished upon transfer of the 35% stock share after default....

The trial court, however, failed to identify any words or phrases within paragraph 6 that it considered ambiguous. Instead, it concluded that “[g]iving meaning to the whole agreement and fairly considering all its parts, the language of paragraph 6 ‘implies’ that the stock transfer is the agreed upon remedy for a default of Note “C” that extinguishes it, and in addition, extinguishes Notes ‘D’ and ‘E.’ ” (emphasis added). We find this to be a strained interpretation of the plain language in the contract. For having reviewed the entire agreement ourselves, we can find no language expressly providing or otherwise implying that Note “C” is extinguished by the stock transfer outlined in paragraph 6. Quite the contrary, the plain language of paragraph 6 states that upon transfer of the stock, “those certain Promissory Notes given to Lender of even date herewith in the amount of $250,000.00 each shall be extinguished.” The only notes with a value of $250,000.00 are Notes “D” and “E.” In fact, the following language provided in Notes “D” and “E” confirms that only Notes “D” and “E” are to be extinguished by the stock transfer:

[I]n the event of a Default under that certain Promissory Note given by Borrower to Lender of even date herewith identified as Note “C”, a copy of which is attached hereto and the terms of which are incorporated herein, should such Default continue after 30 months from the date of such Note and provided only if Borrower complies with the terms of said Promissory Note “C” by conveying to Lender stock of Gulf to Lake Sales, Inc., Nature Coast Marine Sales, Inc., and Cool Space of Florida, Inc. without further action on the part of the Lender, then this Promissory Note shall be extinguished.

Because the plain language of paragraph 6 of Note “C” is clear and unambiguous, we need not look beyond it to discern the intent of the parties. See NCP Lake Power, Inc. v. Florida Power Corp., 781 So.2d 531, 536 (Fla. 5th DCA 2001) (“As a general rule when the terms and provisions of a contract are unambiguous and complete, parol evidence is not admissible to define or explain them.”). While we are sympathetic to the trial court’s concern that a judgment on Note “C” may be unfair, “[a] party is bound by the language it adopts in an agreement, no matter how disadvantageous that language later proves to be.” Sec. First Fed. Sav. & Loan Ass’n v. Jarchin, 479 So.2d 767, 770 (Fla. 5th DCA 1985); see also Kel Homes, LLC v. Burris, 933 So.2d 699, 704 (Fla. 2d DCA 2006) (“[Pjarties may enter into any contract they desire, and they are bound by the language of that contract.... This is true no matter how disadvantageous that language later proves to be for one party or the other.” (citations omitted)). To the extent that the trial court considered extrinsic evidence to discern the intent of the parties, it erred in doing so.

Because the only issue in this appeal involves the interpretation of Note “C,” and because we find the plain language of paragraph 6 of Note “C” to be clear and unambiguous, we reverse the summary final judgment entered in favor of Bryson and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

LAWSON, J. and MURPHY, M„ Associate Judge, concur.

      . Cool Space of Florida, Inc., Nature Coast Marine Sales, Inc., and Gulf to Lake Sales, Inc.

      . After applying credits, the principle sum due on Note “C” was $478,570.00.


author: TORPY, C.J.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Russell AZBELL, Respondent.
    No. 5D14-838.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2015.
    Stephen D. Hurm, General Counsel, and Kimberly A. Gibbs, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Orlando, for Petitioner.
    Michael H. Lambert, Daytona Beach, for Respondent.
   TORPY, C.J.

We address this driver’s license suspension case for the second time. The circuit court granted Respondent’s petition for certiorari, concluding that Petitioner had failed to introduce substantial, competent evidence to justify the suspension of Respondent’s driver’s license. In the first case before this court, we denied by order Petitioner’s petition for certiorari directed to that order. After our mandate issued, the circuit court ordered Petitioner to reinstate Respondent’s driver’s license. Petitioner challenges that order, contending that the circuit court should have instead given it the opportunity to have a new hearing with different evidence. We deny the instant petition.

Petitioner contends that the law is “well settled” that “when a circuit court determines that there has been an eviden-tiary error in an administrative hearing and/or that there is not substantial competent evidence in the record to support the administrative order, the circuit court is limited to quashing the administrative order and remanding the matter to Petitioner for further proceedings.” (Emphasis added). It cites three precedents from this court in support of this proposition. Contrary to Petitioner’s representation, however, none of the cited authorities supports the latter part of its argument—that a new hearing is required when the evidence is lacking because of the unexcused failure of Petitioner to present sufficient proof.

Lillyman v. Department of Highway Safety & Motor Vehicles, 645 So.2d 113 (Fla. 5th DCA 1994), addressed a situation where the hearing officer had denied the driver the due process right to cross-examine a witness. We analogized that situation to a similar trial error concerning erroneous exclusion of evidence in a criminal case and held that a new hearing was necessary. In Department of Highway Safety & Motor Vehicles v. Icaza, 37 So.3d 309 (Fla. 5th DCA 2010), we ordered a new hearing because of a change in the law that occurred after the hearing. Our decision was premised upon the conclusion that the department had been denied due process because it did not have a fair opportunity to present the necessary evidence. In Department of Highway Safety & Motor Vehicles v. Corcoran, 133 So.3d 616 (Fla. 5th DCA 2014), the hearing officer made an erroneous evidentiary ruling that denied the licensee due process. Consistent with our prior precedent, we directed the trial court to order a new hearing.

All of these cases involved situations where the merits of the controversy were not reached because one party or the other was denied the right to present pertinent evidence. The instant case involves a simple failure by Petitioner to meet its evidentiary burden. To grant a new hearing in situations like this simply affords Petitioner another bite at the apple and could result in an endless series of hearings until it finally presents sufficient evidence to support suspension. Absent circumstances where Petitioner is prevented from presenting material evidence it should only get one opportunity to present its proof. See Doll v. Dep’t of Health, 969 So.2d 1103, 1107 (Fla. 1st DCA 2007), and cases cited therein (in administrative proceeding, upon failure of agency to present sufficient proof of costs, no entitlement to second opportunity).

The foregoing notwithstanding, Petitioner contends that the circuit court lacked the authority to “direct the administrative agency to take any particular action on remand.” In support of this argument, Petitioner relies upon Broward County v. G.B.V. International, Ltd., 787 So.2d 838 (Fla.2001). Again, we think Petitioner’s reliance upon the cited authority is misplaced. G.B.V. International, Ltd. addressed the authority of an appellate court on second-tier review. In that case, the circuit court had erroneously concluded that it did not have authority to review a zoning decision because it believed it to be legislative in nature, rather than quasi-judicial. 787 So.2d at 844. On second-tier review, the Fourth District Court of Appeal properly quashed the order because the zoning decision was quasi-judicial and should have been reviewed using a competent, substantial evidence standard by the circuit court. Instead of remanding the matter to the circuit court to conduct that review, the fourth district court itself determined that there was not substantial, competent evidence to support the zoning decision, and it ordered that the zoning request by the property owner be approved. Id. at 845. The Florida Supreme Court held that this was in excess of the fourth district court’s authority on second-tier review. Id.

Here, by contrast, the circuit court on first-tier review made the determination that the evidence to support the suspension was lacking. On review, we allowed that decision to stand. After our mandate issued, the circuit court simply enforced its mandate. A reviewing court on first-tier certiorari review has the inherent authority to enforce its mandate. See Citibank, N.A. v. Plapinger, 469 So.2d 144, 145 (Fla. 3d DCA 1985) (after trial court attempted to stay appellate court’s mandate, appellate court ordered mandate’s enforcement).

Accordingly, we deny the petition.

PETITION DENIED.

WALLIS and EVANDER, JJ., concur.