text:
    Carol Ann GILLETTE, Appellant, v. ALL PRO SPORTS, LLC., d/b/a Family Fun Town, Appellee.
    No. 5D12-1527.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2014.
    Rehearing Denied Jan. 24, 2014.

      D. Paul McCaskill of David & Philpot, P.A., and J. Michael Matthews of J. Michael Matthews, P.A. Maitland, for Appellant.
    Bruce R. Bogan of Hilyard, Bogan & Palmer, PA, Orlando, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We deny Appellee’s motions for rehearing and rehearing en banc. For purposes of clarification, we withdraw our prior opinion and substitute this opinion in its place.

Appellant challenges a summary final judgment in favor of Appellee on her complaint for injuries she received in a Go-Kart accident at a facility operated by Appellee. Appellant contends that Appel-lee’s employee negligently increased the Go-Kart speed during a race, causing her to lose control of the Go-Kart and crash into the railing. The lower court held that a waiver and release form signed by Appellant precluded her negligence action. We reverse.

The sole issue on appeal is whether the waiver and release signed by Appellant effectively precludes an action based on Appellee’s purported negligence. The document provides in material part as follows:

WAIVER AND RELEASE FROM LIABILITY FOR GO CARTS AND TRACK
In consideration for being permitted to drive Go Karts at Family Fun Town, 401 S. Volusia Avenue, Orange City, Florida, I acknowledge and agree as follows:
1. I HAVE READ THE RULES FOR OPERATING THE Go Karts, and accept full responsibility for obeying the rules and all other posted rules and warning signs;
2. I understand that the course of [sic] which the Go Karts operate has curves, which require a degree of skill and responsibility to navigate safely. I have the necessary skill and will exercise the responsibility necessary to operate the Go Karts and navigate the course safely;
3. The Go Karts are controlled by individual drivers, who are capable of making mistakes and intentionally causing harm to others. I could be potentially injured, disabled, or killed, whether by my own actions (or inactions) or the actions or inac-tions of another driver. I freely and knowingly assume this risk. I take full responsibility for any claims or personal injury, death, or damage to personal property arising out of my use of the G[sic] Karts and/or the Go Kart track, whether to me or to other people. On behalf of myself, my heirs, my assigns and my next of kin, I waive all claims for damages, injuries and death sustained to me or property that I may have against Family Fun Town, and its members, managers, agents, employees, successors, and assigns (each a “Released Party”).
4. I have been provided the opportunity to inspect the Go Karts and the track prior to signing this Waiver AND Release, and the conditions of each is completely satisfactory to me. If they were not, I would not sign this document or operate or ride in the Go Karts and the track are [sic] completely satisfactory to me.
5. I understand that the terms of this release are contractual and not a mere recital, and that I have signed this document of my own free act. I have read this waiver and release in its entirety. I understand that I am assuming all the risk inherent in operating and/or riding the Go Karts on the track. I understand that it is a release of all claims that I may have against any released part [sic], I understand that this is the entire agreement between me and any released party and that it cannot be modified or changed in any way by the representation or statements by any released party or by me. I voluntarily sign my name as evidence of my acceptance of all the provisions in this waiver and release and my agreement to be bound by them.

Clauses that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability. UCF Athletics Ass’n v. Plancher, 121 So.3d 1097, 1101 (Fla. 5th DCA 2013) (citing Cain v. Banka, 932 So.2d 575 (Fla. 5th DCA 2006); Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (Fla. 3d DCA 1998)). To be effective, the wording of such clauses must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. Raveson v. Walt Disney World Co., 793 So.2d 1171, 1173 (Fla. 5th DCA 2001) (citing Lantz v. Iron Horse Saloon, Inc., 717 So.2d 590, 591 (Fla. 5th DCA 1998)). Here, the release is not clear that negligence of the sort here was intended to be within the scope of the release.

REVERSED AND REMANDED.

TORPY, C.J., LAWSON and WALLIS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Susan E. KARR, Appellant, v. Rebecca Karr VITRY, Appellee.
    No. 5D12-4579.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2014.
    Rehearing Denied Feb. 25, 2014.
    William A. Johnson, of William A. Johnson, P.A., Melbourne, for Appellant.
    Michelle L. Naberhaus, of Michelle L. Naberhaus, P.L., Melbourne, for Appellee.
   PER CURIAM.

In this guardianship case, Susan Karr, guardian of the person and property of her aunt, Nettie Pearson (“the ward”), appeals two orders — one denying her motion for discharge and one denying her motion for guardian fees. This court has jurisdiction. We affirm as to the order denying the motion for guardian fees and as to most aspects of the order denying discharge. However, we reverse as to the trial court’s ruling that two Florida bank accounts and a Tennessee credit union account were solely owned by the ward.

At the evidentiary hearing held below, Karr established that all three accounts were titled in both her name and the ward’s name at the time of the ward’s death. As argued by Karr, this gave rise to a presumption of survivorship in her favor by virtue of section 655.79, Florida Statutes (2012). Because there was no evidence presented to overcome the statutory presumption, the trial court erred in determining that the funds in these accounts belonged to the ward’s estate. The funds belong to Karr. We reverse that part of the trial court’s order addressing this issue, and affirm in all other respects. On remand, the trial court is directed to close the guardianship in a fashion consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED FOR FURTHER PROCEEDINGS.

PALMER, LAWSON and COHEN, JJ., concur.

      . Although the order denying her motion for discharge is not a final order because it contemplates further judicial labor, it is appeal-able under Florida Rule of Appellate Procedure 9.170(b), which authorizes appeals from orders that "finally determine a right or obligation of an interested person....” The order did just that by determining that bank accounts and a mobile home Karr claimed were jointly owned by her and the ward were solely owned by the ward and thus part of her estate. The order denying guardian fees is final and otherwise appealable under rule 9.170 as well.

      . This statute replaced former sections 658.56 and 665.063, Florida Statutes, in 1992. See Ch. 92-303, §§ 48, 194, Laws of Fla. The former statutes contained similar presumptions of survivorship, but were generally construed by courts to require evidence containing some language of survivorship, before the presumption was applied. See, e.g., Merkle v. Cannata, 642 So.2d 811, 812 (Fla. 2d DCA 1994). Under section 655.79, no specific language of survivorship is required to give rise to the presumption. In Re Estate of Herring, 670 So.2d 145, 148 (Fla. 1st DCA 1996).


author: EVANDER, J.

text:
    STATE of Florida, Appellant, v. Michael LEE, Appellee.
    No. 5D12-4793.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2014.
    Rehearing and Rehearing En Banc Denied Feb. 27, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    William R. Ponall, of Snure & Ponall, P.A., Winter Park and Matthew P. Ferry, of Law Offices of Warren W. Lindsey, Winter Park, for Appellee.
   EVANDER, J.

The State appeals the trial court’s order granting Michael Lee’s motion to dismiss the amended information that charged him with attempting to solicit a minor for sexual activity using an electronic device or internet server, and traveling to meet a minor for unlawful sexual activity after first using an electronic device or internet service to attempt to solicit the minor. We reverse.

The trial court granted Lee’s dismissal motion based on Lee’s argument that a defendant could not be convicted under the statute unless there was direct communication between the defendant and a child or person believed by the defendant to be a child. We recently rejected this argument in State v. Wilson, 128 So.3d 946 (Fla. 5th DCA 2013). For the reasons articulated in Wilson, we reverse the instant order, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

COHEN and WALLIS, JJ., concur.

      . § 847.0135(3)(a), Fla. Stat. (2011).

      . § 847.0135(4)(a), Fla. Stat. (2011).


text:
    Tony GERMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2569.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2014.
    Tony German, Monticello, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No.2011-CF-000275-AO, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, LAWSON and COHEN, JJ., concur.


text:
    Robert MARRERO, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2802.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2014.
    Rehearing Denied April 7, 2014.
    Robert Marrero, Milton, pro se Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Robert Marrero petitions for habeas corpus, asserting five claims of ineffective assistance of appellate counsel. Only one claim merits discussion. As Marrero argues, the sentencing documents relating to his two sexual battery convictions erroneously indicate the imposition of a twenty-five-year minimum mandatory sentence for use of a firearm pursuant to section 775.087(2)(a)3., Florida Statutes, as well as the properly imposed twenty-five-year minimum mandatory sentence for dangerous sexual felony offenders. See § 794.0115, Fla. Stat. (2009).

As there was no finding that Marrero used a firearm during the commission of these offenses, we order that the trial court correct the sentencing documents relating to the sexual battery charges by deleting the firearm minimum mandatory, leaving only the dangerous sexual felony offender minimum mandatory sentence. Marrero has not demonstrated entitlement to any other relief.

PETITION GRANTED IN PART; CORRECTION OF SENTENCING DOCUMENTS ORDERED.

GRIFFIN, LAWSON and BERGER, JJ., concur.


author: ORFINGER, J.

text:
    REEMA HOSPITALITY, INC., etc., et al., Appellant, v. MSC1 2007-IQ13 DIKE ROAD, LLC, etc., Appellee.
    No. 5D13-3158.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2014.
    Jaequlyn Mack, of The Mack Law Firm, Englewood, for Appellant.

      Kimberly A. Ashby, of Akerman Senter-fitt, Orlando, for Appellee.
   ORFINGER, J.

Reema Hospitality, Inc. and Hasmukh Patel appeal a non-final order appointing a receiver in a pending foreclosure action. We affirm the trial court’s decision to appoint a receiver without discussion, but reverse the order to the extent that it authorized a fixed hourly fee for all services performed by the receiver.

Florida law authorizes the trial court to award reasonable fees to a receiver for services and expenses. In obtaining a fee award, the receiver has the burden to establish a basis for the award of fees he or she seeks through affidavits, testimony, depositions or other competent evidence. Lewis v. Gramil Corp., 94 So.2d 174, 176 (Fla.1957). There is no fixed fee schedule. Rather, it is within the trial court’s discretion to set an appropriate receiver’s fee, based on the circumstances of the case. Id. Among factors to be considered in setting a receiver’s compensation are the nature and complexity of the services rendered, the character of the property involved, the amount of money coming into the receiver’s hands, the time and responsibility involved, and the beneficial results of the receiver’s management. Id. at 177.

While sufficient fees should be allowed to induce competent people to serve as receivers, receiverships should be administered as economically as reasonably possible. Thus, fees for services performed by a receiver must be just, but moderate, rather than generous. Id. To determine an appropriate fee, the court must conduct a hearing to determine the value of the receiver’s services and what compensation would be just. In order to properly evaluate the receiver’s compensation, the court must consider the scope and complexity of the receiver’s various activities, as different services may support different rates. The appropriate hourly rate should be based upon the reasonable rate for similar services, making a fixed hourly fee for all services inappropriate.

For these reasons, we affirm the trial court’s order appointing receiver, but reverse the order authorizing a fixed hourly fee for the receiver.

AFFIRMED in. part; REVERSED in part; and REMANDED.

BERGER and WALLIS, JJ., concur.


text:
    Alphonso JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3392.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 2014.
    Alphonso James, Coleman, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Alphonso James appeals from the denial of his petition for writ of habeas corpus, which sought to challenge two 1989 Lee County convictions on grounds that no “complaint” was filed in those cases. As the State correctly argues, because James challenges the validity of his underlying convictions, his petition should have been filed in the Circuit Court of Lee County. See, e.g., Gisi v. State, 119 So.3d 534, 535 (Fla. 5th DCA 2013) (“a habeas petition attacking the validity of a conviction and asserting issues related to the trial court proceedings, must be brought in the circuit court of the county that rendered the judgment of conviction”). As such, we dismiss this appeal. See id.

TORPY, C.J., SAWAYA and LAWSON, JJ., concur.


text:
    Danny O. DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-0444.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2014.
    Rehearing Denied March 6, 2014.
    Danny O. Davis, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

CLARK, WETHERELL, and RAY, JJ., i concur.


text:
    Ronald D. WILLARD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0009.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2014.
    Rehearing Denied March 12, 2014.
    Ronald D. Willard, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

CLARK, WETHERELL, and RAY, JJ., concur.


text:
    Vidyawattie MATURA, Appellant, v. Andrew GRIFFITH, Appellee.
    No. 5D12-4182.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.
    Ileana Haedo, of Ileana Haedo, P.A., Gainesville, for Appellant.
    Andrew P. Griffith, Jamaica, West Indies, pro se.
   PER CURIAM.

Vidyawattie Matura (“the mother”) appeals from a final judgment dissolving her marriage to Andrew Griffith (“the father”). The only issue on appeal is the trial court’s decision to allow the father to have visitation with the parties’ two sons in Jamaica, a non-signatory to the Hague Convention of the Civil Aspects of International Child Abduction (“Hague Convention”). The father was deported to Jamaica upon convictions for two batteries (reduced from sexual battery and aggravated battery with a deadly weapon) on the mother and had repeatedly threatened to kidnap the children. Because of the obvious risk factors present, the court required the father to post a $50,000 bond for each child before each visit to discourage him from kidnapping the children and to ensure sufficient funds were available for the mother to retrieve the children if he did not return them. She appeals, arguing that the court’s decision to allow time-sharing in Jamaica was not in the children’s best interests and was not based on competent, substantial evidence. We reverse as to the challenged portion of the final judgment.

First, although the court considered the best interest factors in section 61.13(3), Florida Statutes, it appears to have overlooked section 61.13(2)(c)2., Florida Statutes, which creates a presumption of detriment to the children when the parent seeking a parenting plan and time-sharing has been convicted of misdemeanor battery involving domestic violence. Additionally, although the trial court’s concern about abduction by the father is well supported by the evidence, its decision to address that concern through a monetary bond is not. Given the fact that Jamaica is not a signatory to the Hague Convention, there is no evidence suggesting that the mother would be able to gain return of the children from Jamaica through legal processes, no matter how much money was available to her from a bond. See Jacqueline D. Golub, The International Parental Kidnapping Crime Act of 1993: The United States’ Attempt to Get Our Children Backr-How Is It Working?, 24 Brook. J. Int’l L. 797 (1999) (“While the Hague Convention has been successful in facilitating the return of many abducted children, it is rendered useless when a child is taken to a country which is not a signatory to the Hague Convention.”). Nor would the evidence support a finding that the bond, standing alone, could deter a potential kidnapping given the father’s demonstrated disregard for the law and repeated threats to take the children from the mother.

For these reasons, we reverse that portion of the final judgment authorizing transportation of the children to Jamaica for visitation with the father, and remand for further proceedings regarding visitation.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

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

      . Because the undisputed evidence demonstrated that the father was "convicted of a misdemeanor of the first degree or higher involving domestic violence,” a rebuttable presumption of detriment to the child was created. Thus, the trial court was obligated to inform the father of the existence of this presumption, which it did not do, and if the father failed to rebut it, the court was precluded from ordering shared parental responsibility, including time-sharing for the father. Because the trial court failed to consider this provision, its analysis appears to have been incorrectly skewed toward granting time-sharing instead of determining whether the father had overcome the presumption of detriment.


author: SAWAYA, J.

text:
    Gilbert CARINO, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1715.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.

      Robert Wesley, Public Defender, and Andrew Clark, Assistant Public Defender, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, J.

This appeal presents an issue regarding juror questioning during trial. It is whether the due process rights of Appellant, Gilbert Carino, were violated when the trial court notified Carino and the State of a question posed by a juror in the midst of the State’s case-in-chief inquiring as to the whereabouts of a certain witness and noting the juror’s belief that the jury needs to hear from that witness. Carino contends that this query allowed the juror to give aid and assistance to the State, prompted the State to subsequently present that witness and his testimony to the jury, and deprived him of his due process rights to a fair and impartial trial where the State was required to meet its burden of proof without assistance from the jury. Carino, having been convicted of attempted sexual activity with a child and attempted lewd and lascivious exhibition, concludes that his motion for mistrial raising these arguments should have been granted.

When the trial court announced, its decision to allow juror questioning of the witnesses, Carino lodged an objection to any questions being asked of any witness on due process grounds. The trial court overruled the objection. The first witness called by the State was the victim’s mother. After her testimony concluded, the victim was called to testify. At the conclusion of the victim’s examination and cross-examination, a juror submitted in writing the following question and comment: “Where is the father now? We need to hear from him.” We digress briefly to explain that the “father” is the victim’s stepfather and Carino’s brother. When the trial court advised the attorneys of this question and comment during the ensuing bench conference, Carino once again objected and moved for a mistrial, contending that the trial court erred in advising the State of the question and comment because it aided and assisted the State in the presentation of its evidence and in meeting its burden of proof. The trial court denied the motion. After calling two other witnesses, the State called the stepfather to testify. The trial proceeded to conclusion, resulting in the verdict of guilty to the crimes previously mentioned. Carino appeals the denial of his motion for mistrial, contending that the trial court erred in disclosing the question and comment to the State.

As a prelude to his disclosure argument, Carino condemns the practice of juror questioning as a violation of due process and contends that the trial court erred in permitting juror questioning of any witness. The submission of juror questions during trial is not a new or novel concept in the realm of trial procedure. See Ferrara v. State, 101 So.2d 797, 801 (Fla.1958) (stating that there may be appropriate circumstances when a juror “might be completely justified in propounding a question” and that the procedure for juror questioning “should be ... controlled by the discretion of the trial judge”). Although some courts have expressed misgivings and concerns about the practice, fearing unintended consequences that could disrupt the orderly process of the trial and deprive a litigant of a fair and impartial proceeding, see United States v. Bush, 47 F.3d 511, 514-16 (2d Cir.1995) (holding that “direct questioning by jurors is a ‘matter within the judge’s discretion, like witness-questioning by the judge himself,’ ” but stating that the court strongly discourages the practice due to its associated dangers (quoting United States v. Witt, 215 F.2d 580, 584 (2d Cir.1954)) (other citations omitted)), juror questioning “ ‘has been condoned as permissible trial practice’ ” in more recent decisions emanating from the Florida Supreme Court. Morris v. State, 931 So.2d 821, 829 (Fla.2006) (quoting Watson v. State, 651 So.2d 1159, 1163 (Fla.1994)). The supreme court has also adopted a rule of criminal procedure that implements the practice of juror questioning during trial proceedings. Fla. R. Crim. P. 3.371. As indicated by the cases and rule just cited, this practice is a matter directed to the discretion of the trial court, and the rule governs the procedure to be followed should that discretion be exercised in favor of questioning. We do not believe that the practice violates due process, and we see no abuse of discretion in allowing juror questioning during Carino’s trial, so we will address Cari-no’s specific disclosure argument.

We reject the notion that a juror posing a question concerning the whereabouts of a certain witness and expressing the need to hear from that witness transforms the juror into an aider and abettor in the State’s quest to convict the defendant of the crime charged. And the trial court disclosing that query to both Carino and the State does not constitute error: to the contrary, failure of the trial court to advise the parties of the question and comment would have been error. See Rushen v. Spain, 464 U.S. 114, 119, 104 S.Ct. 458, 78 L.Ed.2d 267 (1983) (“When an ex parte communication [between judge and juror] relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties.” (footnote omitted)); State v. Hunter, 358 So.2d 50, 51 (Fla. 4th DCA 1978) (“The determination of what must be done in response to a jury inquiry must be made in the presence of the defendant and his counsel.”); see also Fla. R. Crim. P. 3.371(b) (implicitly requiring that the questions be disclosed to the parties to give them an opportunity to object).

Equally unavailing is Carino’s argument that the juror’s question was the impetus for the State’s presentation of the stepfather’s testimony to the jury. The record reflects that the State listed the stepfather on its witness list well before trial; the stepfather had been deposed by Carino prior to trial; the State had issued the stepfather a subpoena to appear at trial; at the beginning of voir dire the State announced its list of potential witnesses (presumably to determine whether any of the potential jurors knew any of them), which included the stepfather; and the juror presented his question in the midst of the State’s case-in-chief and before it rested. Although Carino elicited proffered testimony from the stepfather outside the hearing of the jurors that he did not want or intend to testify (remember that he is Carino’s brother), that he did not expect to testify, and that he appeared at trial because his wife told him he had to appear, these facts do not establish that the State did not intend to call him as a witness prior to revelation of the juror’s question and comment. The prosecutor formulates trial strategy on behalf of the State and shepherds it through the trial process and, having made adequate preparation prior to trial to call the stepfather as a witness, it was up to the prosecutor to decide whether to call the witness despite the juror’s question and comment. See, e.g., Paey v. State, 943 So.2d 919, 931 (Fla. 2d DCA 2006) (discussing generally the state’s trial strategy); West v. State, 912 So.2d 665, 666 (Fla. 4th DCA 2005) (“The rules of criminal procedure do not require a separate notice of the state’s trial strategy.”); State v. Reeves, 444 So.2d 20, 23 (Fla. 2d DCA 1983) (holding that prosecutor decides which witnesses to call on behalf of the state and he may not be compelled to call a witness by the defendant).

We conclude that the practice of juror questioning during trial does not violate due process; disclosing the question and comment to the State was not error and did not deprive Carino of a fair trial; and the trial court did not abuse its discretion in denying Carino’s motion for mistrial. See Floyd v. State, 913 So.2d 564, 576 (Fla.2005) (“The standard of review applied to motions for mistrial is abuse of discretion.” (citation omitted)). We thus affirm the convictions under review.

AFFIRMED.

TORPY, C.J. and LAWSON, JJ„ concur.

      . Carino raises another issue: whether the trial court erred in refusing to strike two jurors for cause. We affirm as to this issue without further discussion.


text:
    Giovanni K. VEGA, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2154.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.
    Christopher M. Stephenson, of C. Stephenson Law, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We reverse the summary denial of Giovanni Vega’s rule 3.850 motion and remand for an evidentiary hearing. We conclude, based on the unique facts of this case, that the findings and conclusions set forth in Dr. Shanklin’s report constitute newly discovered evidence to the extent they support an allegation that the testimony of the medical examiner at Vega’s trial was knowingly and patently false (or, at a minimum, given in reckless disregard of the truth).

REVERSED and REMANDED for an evidentiary hearing.

SAWAYA, PALMER and EVANDER, JJ., concur.

      . According to Dr. Shanklin's detailed report, the scientific evidence available to the then-medical examiner, Dr. Sashi Gore, would, if honestly and competently evaluated, establish beyond a reasonable doubt that the child victim died of meningitis, not abuse. Subsequent to Vega's trial, Dr. Gore was disciplined by the Medical Examiners’ Commission for negligence and violation of professional standards in unrelated cases. As part of the imposed discipline, Dr. Gore was barred from performing further autopsies.


text:
    Justin Cordero MILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4490.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.
    James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Justin Cordero Millan, Malone, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the trial court’s order finding Millan in violation of his probation. However, the trial court’s sentencing order must be amended to properly reflect that Millan was sentenced as a Youthful Felony Offender.

AFFIRMED; REMANDED for correction of sentencing order.

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


text:
    Robert BUCKNER, et al., Appellants, v. Janet COWLING, Jerry Cowling, et al., Appellees.
    No. 5D13-2971.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.
    Frank A. Miller, Carl F. Yeich and Susanne M. Suiter of Caglianone, Miller & Lao, P.A., Brooksville, for Appellants.
    James R. Spears of Law Office of James R. Spears, PLLC, Orlando, for Appellees.
   PER CURIAM.

Robert Buckner appeals from the trial court’s nonfinal orders granting Janet and Jerry Cowling’s motion to set aside an order of dismissal and granting the Cowlings’ motion for extension of time to serve summons and complaint. Buckner raises two issues on appeal, only one of which merits discussion. He argues that the trial judge erred in ruling on those two motions, when, two days later, the judge recused himself on his own initiative. Buckner contends that the court should not have ruled on the Cowlings’ motions because the grounds for recusal were known to the court at the time it entered the orders. Accordingly, he asks this Court to reverse those orders and remand with instructions to set them aside.

Prior rulings of a disqualified judge may be reconsidered and vacated by a successor judge upon the filing of a motion for reconsideration. See Fla. R. Jud. Admin. 2.330(h). Although an order entered by a judge who is later disqualified is subject to reconsideration by a successor judge, a party is not entitled to have the order vacated as a matter of right. See Sehlesinger v. Chem. Bank, 707 So.2d 868, 869 (Fla. 4th DCA 1998); see also Doe ex rel. Doe v. Publix Supermarkets, 814 So.2d 1249, 1251 (Fla. 2d DCA 2002) (“Orders entered by a disqualified judge are voidable not void.” (quoting Schlesinger, 707 So.2d at 869)). Thus, we cannot grant Buckner the relief that he seeks on appeal. However, because Buckner filed a timely motion for reconsideration challenging the merits of the orders entered by the disqualified judge, upon remand the successor judge should grant that motion and reconsider those prior rulings.

REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

EVANDER, COHEN and WALLIS, JJ., concur.


text:
    Harold Douglas BLUE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1104.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.
    Richard J. D’Amico, Ormond Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Harold Blue appeals his judgment and sentence imposed after he entered a plea admitting to a violation of probation in his possession of cocaine case, resulting in a thirty-six-month prison sentence. After sentencing, Blue timely filed a pro se motion to withdraw plea (based upon allegations relating to his appointed counsel) pursuant to Florida Rule of Criminal Procedure 3.170(7). The trial court denied the motion after a hearing at which the prosecutor appeared but at which Blue was not offered conflict-free counsel. The State requests that we relinquish jurisdiction for a new hearing after the appointment of conflict-free counsel. We decline the State’s request and instead reverse the denial order and remand for a new hearing after Blue is offered conflict-free counsel. See, e.g., Rouse v. State, 990 So.2d 1197 (Fla. 5th DCA 2008).

ORDER DENYING MOTION TO WITHDRAW PLEA REVERSED; REMANDED FOR FURTHER PROCEEDINGS ON MOTION.

TORPY, C.J., SAWAYA and LAWSON, JJ., concur.


author: LAWSON, J.

text:
    Frederick J.C. VYFVINKEL, Appellant, v. Carol W. VYFVINKEL n/k/a Carol Dagny Williams, Appellee.
    No. 5D13-2321.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.

      Theodore R. Doran and Carol A. Yoon, of Doran, Sims, Wolfe & Kundid, Daytona Beach, for Appellant.
    Philip F. Bonus, of Bonus McCabe Law Firm, Orlando, for Appellee.
   LAWSON, J.

Frederick J.C. Vyfvinkel appeals from an order finding that he was not entitled to a cumulative annual inflation adjustment to his alimony payment based on the language of the contractual stipulation entered between the parties and adopted in the court’s final judgment. The parties’ agreement provided that:

Alimony shall continue at $4,000.00 per month to be increased only annually beginning January, 2012, at the rate of the “Consumer Price Index” (“CPI”) as such CPI is published from time to time by the U.S. Government. The parties shall utilize the CPI rate as reflected in the last published United States CPI rate for the year ending before the annual January change date. (Example: First change date January 1, 2012; therefore use last published CPI rate closest to December 31, 2011, and so on from year to year).

The trial court adopted Appel-lee’s interpretation of this language and held that each year Appellee was permitted to multiply the one-year CPI rate stipulated in the agreement by the original $4,000.00, to calculate the alimony amount for the new year. For example, if CPI for 2011 had been three percent, the formula would have yielded an alimony payment of $4,120.00 during 2012. For 2013, according to Appellee, if CPI for 2012 had been two percent, she was entitled to essentially wipe out the adjustment for the prior year and reduce the 2013 alimony payment to $4,080.00 ($4,000.00 + [$4,000.00 x 2%] = $4,080.00). We read the agreement as requiring an adjustment that takes into account the cumulative effect of inflation, so that (using the hypothetical CPI numbers in this paragraph) the 2013 alimony payment would be $4,200.00 ($4,000.00 + [$4,000.00 x (3% +2%)]). Given the arguments made on appeal, this is the only reasonable reading of the quoted language. As explained in BED Twenty-One Management Co. v. Delsordo, 127 So.3d 527 (Fla. 4th DCA 2012):

“[a] true ambiguity does not exist [in a contract] merely because [the] contract can possibly be interpreted in more than one manner. Indeed, fanciful, inconsistent, and absurd interpretations of plain language are always possible. It is the duty of the trial court to prevent such interpretations.” Am. Med. Int’l, Inc. v. Scheller, 462 So.2d 1, 7 (Fla. 4th DCA 1984). Accordingly, contractual language is ambiguous only if it is susceptible to more than one reasonable interpretation. See Penzer v. Transportation Ins. Co., 29 So.3d 1000, 1005 (Fla.2010). It thus follows that where one interpretation of a contract would be absurd and another would be consistent with reason and probability, the contract should be interpreted in the rational manner. King v. Bray, 867 So.2d 1224, 1227 (Fla. 5th DCA 2004).

Id. at 530.

Here, reason and probability lead us to conclude that the CPI adjustment language in the agreement was intended to protect the negotiated alimony amount from erosion by inflation. The language should be read in a manner that will actually accomplish, rather than defeat, that intended purpose. Id. As such, we reverse the order on appeal and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . Calculated using the formula $4,000.00 + [$4,000.00 x 3%] = $4,120.00. We reiterate that we are using a hypothetical CPI figure for illustration purposes only. We also note that Appellant would erroneously have the adjustments start prior to January 1, 2012, in apparent contradiction to the language in the agreement.

      . Appellant expressly "does not argue that alimony should be compounded annually.”


text:
    Harley Alexander McMILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2186.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hess v. State, 794 So.2d 1249, 1261 (Fla.2001) (“Because we find sufficient evidence of felony murder, we need not address appellant’s claim that the trial court erred in denying his motion for judgment of acquittal because the evidence was insufficient to establish premeditation.”); see also Brooks v. State, 762 So.2d 879, 896 (Fla.2000); Brown v. State, 644 So.2d 52, 53 (Fla.1994).

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


text:
    MASCI CORPORATION, et al., Appellant, v. MSC WATERWORKS COMPANY, INC., ETC., Appellee.
    Nos. 5D13-513, 5D13-765, 5D13-767, 5D13-768, 5D13-769.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.

      Howard M. Allen of Railey, Harding & Allen, P.A., Orlando, for Appellant.
    David J. Kohs and Houston E. Short of Pohl & Short, P.A., Winter Park, for Ap-pellee.
   PER CURIAM.

We affirm all orders in this consolidated appeal with one exception. The computation of interest shall be corrected to reflect the statutory rate of interest, rather than eighteen percent.

AFFIRMED in part; REVERSED in part and REMANDED.

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


text:
    Billy LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3267.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

- Billy Lewis appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for the trial court to conduct an evidentiary hearing or attach those portions of the record that refute Lewis’s claim that his attorney misadvised him about his eligibility for the habitual offender sentence he received upon violating his probation. See Hill v. State, 611 So.2d 115 (Fla. 5th DCA1993).

REVERSED and REMANDED with directions.

SAWAYA, PALMMER and ORFINGER, JJ., concur.

      . The court did not attach a copy of the violation of probation plea colloquy.


text:
    Gustavo A. PERALTA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3368.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.
    Gustavo A. Peralta, Bushnell, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal of the March 22, 2013, order granting a motion for rehearing and denying a motion to withdraw plea filed pursuant to Florida Rule of Criminal Procedure 3.850, in Case No. 48-2005-CF-4582-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

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


text:
    Larry GREGG, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 5D13-3979.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.
    Larry Gregg, Deltona, pro se.
    Louis A. Gutierrez, of Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Larry Gregg appeals a final order of the Reemployment Assistance Appeals Commission, which dismissed as untimely his appeal of an adverse decision from the referee assigned to his case. The adverse decision was mailed to Gregg on May 30, 2013, and notified Gregg of the twenty-day appeal deadline set forth in section 443.151(4)(b), Florida Statutes (2012). Despite the timely notice, Gregg did not attempt to appeal the referee’s decision until September 13, 2013 — 106 days later. Although the Commission gave Gregg an opportunity to show cause why his appeal should not be considered untimely, Gregg presented nothing in response that could legally justify accepting a belated appeal. See, e.g., Colson v. Fla. Unemp’t Appeals Comm’n, 76 So.3d 1042 (Fla. 1st DCA 2011). As such, we affirm the Commission’s decision to dismiss Gregg’s appeal.

AFFIRMED.

PALMER, ORFINGER and LAWSON, JJ., concur.


text:
    Leandro L. JORRIN, II, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3994.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2014.

      Leandro L. Jorrin II, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We treat the petition for belated appeal as a petition for writ of habeas corpus, asserting a claim of ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(d), and grant the petition. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment in Case No. 2010-003646-CFAWS in the Circuit Court in and for Volusia County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, ORFINGER and WALLIS, JJ., concur.


text:
    Joshua CUMMINGS, Petitioner, v. Brilliant MONTALVO, Respondent.
    No. 5D13-4431.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 2014.
    Adam Pollack, Law Office of Adam L. Pollack, P.A., Orlando, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner seeks prohibition following an order denying his motion to disqualify the trial judge. The motion, which sought disqualification based upon the judge’s statements indicating that she had strongly and definitively prejudged Petitioner’s credibility in an unfavorable fashion, should have been granted. See Brown v. St. George Island, Ltd., 561 So.2d 253, 257 (Fla.1990). Because Petitioner has alleged facts that would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial, id., we quash the order denying the motion to disqualify and remand to the trial court for further proceedings consistent with this opinion. We trust that the issuance of a formal writ will be unnecessary.

PETITION GRANTED.

SAWAYA, PALMER and LAWSON, JJ., concur.


text:
    Preben OLESEN, Appellant, v. GENERAL ELECTRIC CAPITAL CORPORATION, et al., Appellee.
    No. 5D12-297.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2014.

      Tim B. Wright, of Wright, Ponsoldt & Lozeau, L.L.P. Stuart, for Appellant.
    Stephen D. Busey and Allen E. Wul-bern, of Smith Hulsey & Busey, Jacksonville, for Appellee.
   PER CURIAM.

Preben Olesen [“Olesen”] appeals a partial final judgment entered against him and in favor of General Electric Capital Corporation [“GECC”], in which the trial court dismissed all claims against GECC for failure to state a cause of action and denied Olesen’s ore tenus motion to amend his Second Amended Complaint.

On November 25, 2009, Olesen filed a complaint against Lowndes, Drosdick, Doster, Kantor & Reed Professional Association [“the Lowndes Firm”], attorney Jennifer R. Dixon [“Attorney Dixon”], attorney James Steven Toscano [“Attorney Toscano”], and attorney Terry Cressler Young [“Attorney Young”], [collectively “the Lowndes Defendants”], as a result of the Lowndes Defendants’ representation of Olesen in a guaranty suit filed against him by GECC. In a Second Amended Complaint, Olesen named GECC as an additional defendant. He alleged the following causes of action: Count I — legal malpractice as to the Lowndes Defendants; Count II — fraud as to the Lowndes Defendants; Count III — constructive fraud as to the Lowndes Defendants; Count IV— fraud as to GECC; and Count V — civil conspiracy as to GECC and the Lowndes Defendants.

Olesen’s complaint in this lawsuit alleged the following facts. Olesen was the owner of the Arkansas Bus Exchange Corporation [“ABE”], a private company that was in the business of leasing new and used motor coach vehicles or “buses” and selling or subleasing them to entities for profit. In 2000, GECC offered Olesen a five million dollar ($5,000,000) line of credit to facilitate the leasing of buses through ABE. On June 2, 2000, ABE leased six T2145 Van Hool buses through its credit line with GECC.

Pursuant to an amended lease agreement, commencing August 2, 2002, ABE was to pay GECC twenty-four thousand dollars ($24,000) a month for sixty-one (61) months with a final payment of twenty-eight thousand two hundred twenty-seven dollars ($28,227) for the lease. The total lease obligation to GECC at the commencement of the lease was one million five hundred fifty thousand dollars ($1,550,000). The final payment pursuant to the lease agreement was due in September 2007.

Olesen and his wife, Darla Olesen [“Darla”], were divorced in January 2007. The Lowndes Firm represented Olesen in the divorce. Darla acquired ABE in the divorce.

Olesen moved to the Bahamas and began a new business venture. After Darla took over ABE, ABE made a partial payment of $7,000 to GECC in December 2006 and was not timely in making the January and February 2007 payments, although later those payments were made. Olesen was not aware that the payments had not been made.

At the time ABE went into default, the payments remaining due for the unexpired term of the Lease totaled $287,277. On February 9, 2007, without the knowledge of Olesen, GECC wrote a letter to Luis Pineda e/o E-Z Bus, Inc. [“E-Z Bus”] regarding five 2000 Van Hool T2145 buses E-Z Bus subleased from ABE. GECC notified E-Z Bus that ABE was in default of its Lease with GECC and that pursuant to section (7) of the Consent to Sublease entered between GECC, ABE and E-Z Bus, E-Z Bus should now deliver its monthly lease payments directly to GECC. E-Z Bus complied with this request and made full monthly payments to GECC for the rest of the Lease term.

On February 9, 2007, without the knowledge of Olesen, GECC wrote a letter to Ernest Givens c/o Angelic Luxury Coach, Inc. [“Angelic”] regarding one 2000 Van Hool T2145 bus that Angelic had subleased from ABE. GECC notified Angelic that ABE was in default of its Lease with GECC and pursuant to section (7) of the Consent to Sublease entered between GECC, ABE and Angelic, Angelic should now deliver its monthly lease payments directly to GECC. Angelic complied with this request and made full monthly payments to GECC for the rest of the Lease term.

On or about June 14, 2007, GECC initiated a lawsuit [the “GECC Lawsuit”] against ABE, Darla, and Olesen for default of the Lease. The Lowndes Firm and Olesen became aware of the GECC Lawsuit on or about July 25, 2007, when John Urban, counsel for GECC, was seeking to have someone accept service on behalf of Olesen, who was residing in the Bahamas. According to GECC, as of August 22, 2007, ABE was in arrears $29,118.22.

According to Olesen, the Lowndes Defendants repeatedly advised him that he had no defense to the GECC lawsuit and the only route to take was to pursue a cross-claim judgment against Darla and attempt to collect on it. They never advised him that it would be financially beneficial for him to pay the arrearages. Oles-en theorized that because the Lowndes Firm also represented GECC in other matters and was a “bigger better” client, the Lowndes Defendants conspired with GECC to allow GECC to obtain a judgment of $1,210,662 against Olesen, to which it was not entitled.

On August 30, 2007, GECC filed its First Amended Complaint. The Lowndes Firm filed a Notice of Appearance and Motion for Extension of Time on behalf of Olesen on November 7, 2007. On November 14, 2007, Attorney Young sent a letter to Olesen and requested that he execute a waiver to allow the Lowndes Firm to represent both him and GECC in distinct matters [the “Waiver Letter”] at the same time. Attorney Young wrote that, although they were not representing GECC in the lawsuit against Olesen, they did represent it in other unrelated matters. Olesen insisted that he never executed the Waiver Letter and never gave consent to waive the conflict.

Unbeknownst to Olesen, John Stine, on behalf of GECC, executed a waiver letter [“GECC Waiver Letter”] on December 5, 2007. In a letter addressed to GECC, Dale A. Burket, an attorney with the Lowndes Firm, had written in part:

The purpose of this letter is to request a waiver of a conflict of interest in connection with our law firm’s representation of Mr. Preben Olesen in the above-referenced matter. In this action, GE Electric Capital Corporation (“GE”) is suing Mr. Olesen, Arkansas Bus Exchange Corporation (a business entity awarded to Mr. Olesen’s Former Wife in their divorce), and Mr. Olesen’s Former Wife because of a default with respect to certain financing provided by GE. Mr. Ol-esen is not disputing GE’s claim, but rather will be seeking indemnification and contribution from his Former Wife pursuant to the Final Judgment of Dissolution of Marriage.
We seek your assent to such a waiver subject to the following conditions:
1. Mr. Olesen agrees not to object to our law firm’s continued ability to represent GE or its affiliates on existing and future matters.
2. Our representation of Mr. Olesen will not involve the assertion against GE or any of its affiliates of a claim of fraud, misrepresentation, or other dishonest conduct.
3. Our law firm is representing Mr. Olesen for the sole purpose of defending the referenced litigation and it is understood that GE reserves the right to claim a potential or actual conflict of interest and take appropriate action regarding any other matter in which our law firm may be engaged, or representation by our law firm which is broader than specified in this sentence.
4. Our law firm’s personnel providing services to Mr. Olesen in connection with this matter will not be among those concurrently providing services to GE or a GE affiliate.
5. Mr. Olesen has been informed of the conditions set forth in this letter and has agreed to these conditions by signing, below.
If this request is acceptable to you, please sign this letter and return it to me Thank you for your consideration of this request.

The letter provides “Received and agreed to,” and bears the signature of John Stine “On behalf of General Electric Capital Corporation,” dated “12.5.07.” This letter was not provided to Olesen prior to the GECC Lawsuit, and none of the promises the Lowndes Firm made to GECC regarding Olesen were known to Olesen.

On December 12, 2007, Attorney Young sent Olesen a letter describing for Olesen the reasons the Lowndes Firm should not represent him in the GECC Lawsuit. Attorney Young told Olesen that when the GECC Waiver Letter was requested from GECC, their representative implied to Attorney Toscano that they expected the Lowndes Firm to “cooperate,” which they understood to mean that GECC expected the Lowndes Firm to advance their interests. “I believe that they are expecting us to attempt to sell your interests down the river or advance theirs, neither of which we are comfortable with.” Attorney Young also explained that the attorney for GECC in the GECC Lawsuit had a law partner who “currently is a significant client (client representative) on a major, multi-million dollar matter” of the Lowndes Firm. Attorney Young described this as “an intellectual and possibly a client relations conflict.” The Lowndes Firm did not, however, withdraw from representing Olesen; and, according to Oles-en, repeatedly assured him that, despite GECC’s request, they would protect his interests.

On January 7, 2008, GECC filed a Motion for Summary Judgment and a notice of filing the affidavit of Dale Shores in support of its motion. In his affidavit, Dale Shores, GECC’s vice president, made sworn statements as to amounts due. 01-esen contends that these documents were false because damages were calculated based on the entire contract value, not the unpaid amount, and because there was no disclosure of the amounts GECC had been paid.

The Lowndes Defendants filed Olesen’s Answer, Affirmative Defenses and Cross-Claim. The Affirmative Defenses consisted of one affirmative defense: that Darla was solely responsible for any indebtedness to GECC pursuant to the Final Judgment of Dissolution of Marriage. Olesen claimed that the Lowndes Firm failed to properly plead the affirmative defenses available to Olesen because of their agreement with GECC to “throw Mr. Olesen under the bus.”

GECC’s Motion for Summary Judgment was noticed by GECC for hearing on March 3, 2008. Prior to the hearing, Attorney Dixon went through the GECC records provided at Mr. Shores’s deposition and created a summary of payments made to GECC from the sublessees after the alleged default, which she sent to Attorney Toscano. These totaled $192,029.36. According to Olesen, although the exact amount of arrearages, if any, still remained uncertain, the maximum damages to GECC, after receiving payments from the sublessees, could only be approximately $45,247.64.

The Lowndes Defendants filed nothing opposing summary judgment in advance of the hearing. There was no court reporter at the hearing. The trial court verbally granted GECC’s Motion for Summary Judgment.

The trial court sua sponte set a status hearing for March 20, 2008, based on its own misgivings about the amount of the judgment. The trial court particularly wanted clarification of the sublessee payment issue prior to entering an order. It questioned the parties about the subleases and the continuation of payments under the Lease. When informed, however, that, as of the summary judgment hearing, the only record evidence of amounts due was GECC’s affidavit and that there was no record evidence concerning amounts GECC had been paid, the trial court entered judgment in favor of GECC:

“The Plaintiff shall recover from the defendants, Arkansas Bus Exchange Corporation, Darla M. Olesen, and Preben Olesen, jointly and severally, the principal amount of $1,210,662.54, plus statutory prejudgment interest since March 2, 2007. The Defendant, Preben Olesen’s Motion for Reconsideration is DENIED. The. Court reserves jurisdiction to, upon proper motion, enter an award of attorney fees and costs incurred by the Plaintiff in this matter.” [emphasis added ]

Including attorneys’ fees and costs, the judgment against Olesen totaled $1,462,265.73, with interest accruing at eleven percent per annum. It appears that GECC ended up collecting substantially all of the money payable under the Lease, plus a judgment against Olesen for $1,462,265.73, and, at the conclusion of the lease, recovered all the leased buses.

According to Olesen, the Lowndes Defendants told him that an appeal of the GECC Final Judgment would be futile; hence no appeal was filed. The Lowndes Defendants did not withdraw as counsel of record for Olesen until November 19, 2009.

In this lawsuit, Olesen contended that he became aware that he had multiple viable defenses to the claims of GECC, and that he was entitled to set-offs and credits that would have eliminated or substantially reduced any liability. In his complaint, Oles-en alleged that GECC defrauded the court and him by secretly conspiring with the Lowndes Defendants to not provide him with an effective defense against GECC’s claims, and that GECC defrauded the court and Olesen by sentiently setting in motion an unconscionable scheme calculated to interfere with the judicial system’s ability to fairly adjudicate the lawsuit. The complaint alleged that GECC knew its claims were fraudulent, knew the affidavits filed in support of the summary judgment motion and the motion itself were false and perjurious, knew that the court and Olesen were being deceived, and knew that the judicial process itself was being undermined.

GECC filed a motion to dismiss for failure to state a cause of action. At the hearing below on the motion, GECC made two basic arguments. First, GECC argued that, as alleged in Olesen’s complaint, the fraud that was perpetrated was, as a matter of law, intrinsic, not extrinsic. Therefore, the claim was subject to the one-year limitation in Florida Rule of Civil Procedure 1.540. Olesen responded that the fraud alleged was extrinsic and, thus, not subject to the one-year limitation.

The distinction between extrinsic fraud and intrinsic fraud was discussed in DeClaire v. Yohanan, 453 So.2d 375, 380 (Fla.1984). There, the Florida Supreme Court explained:

Determining the conduct that constitutes intrinsic fraud, which requires action under the rule within one year of the entry of a final judgment, and the conduct that constitutes extrinsic fraud, for which an action may be brought at any time, is the critical issue in the instant case. The cases distinguish between false and misleading information being presented on an issue to be tried and conduct which prevents a party from trying the issue. When an issue is before a court for resolution, and the complaining party could have addressed the issue in the proceeding, such as attacking the false testimony or misrepresentation through cross examination and other evidence, then the improper conduct, even though it may be perjury, is intrinsic fraud and an attack on a final judgment based on such fraud must be made within one year of the entry of the judgment.

The court specifically explained how extrinsic fraud differs from intrinsic fraud, and why no time limit like that applicable to intrinsic fraud applies to extrinsic fraud.

At the outset we must distinguish between extrinsic fraud and intrinsic fraud because only extrinsic fraud may constitute fraud on the court. Extrinsic fraud involves conduct which is collateral to the issues tried in a case. The definition of extrinsic fraud was specifically articulated in United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878), in which the United States Supreme Court said:
Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interest to the other side-these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. (Citations omitted.)
Consistent with the general rule, this Court has defined extrinsic fraud as the prevention of an unsuccessful party [from] presenting his case, by fraud or deception practiced by his adversary; keeping the opponent away from court; falsely promising a compromise; ignorance of the adversary about the existence of the suit or the acts of the plaintiff; fraudulent representation of a party without his consent and connivance in his defeat; and so on.
Fair v. Tampa Electric Co., 158 Fla. 15, 18, 27 So.2d 514, 515 (1946). See Black’s Law Dictionary 595 (rev. 5th ed. 1979). In other words, extrinsic fraud occurs where a defendant has somehow been prevented from participating in a cause. Intrinsic fraud, on the other hand, applies to fraudulent conduct that arises within a proceeding and pertains to the issues in the case that have been tried or could have been tried. This Court, consistent with the general rule, has expressly held that false testimony given in a proceeding is intrinsic fraud. We have stated that
[i]f a judgment was obtained upon false testimony or a fraudulent instrument and the parties were heard, the evidence submitted to and received consideration by the court, then it may be said that the matter has been actually tried, or was so in issue that it might have been tried and the parties are estopped to set up an intrinsic or direct fraud to vitiate the judgment, because the judgment is the highest evidence and cannot be contradicted by the parties to it.
Johnson v. Wells, 72 Fla. 290, 299, 73 So. 188, 191 (1916) (citation omitted).

Id. at 376-77 (emphasis added).

Based upon rule 1.540(b) and DeClaire, Olesen sufficiently alleged conduct amounting to extrinsic fraud. Taking the allegations in the Second Amended Complaint together, as detailed above, Olesen essentially alleged that, despite assurances from the Lowndes Defendants that they would represent him and protect his interests, GECC and the Lowndes Defendants secretly agreed to act together in a way in which Olesen’s viable defense would not be presented to the trial court, including the failure to challenge or contest GECC’s submission of a fraudulent claim supported by a false affidavit as to amounts due and owing, and the Lowndes Defendants’ failure to assert any viable defense. And, without a record of the sublessees’ payments, the trial court could not even address, on its own, the issue of whether the payments impacted the amount Olesen owed. ■

Also, we are not persuaded that Olesen had no defense to the GECC claims and, hence, could not have been damaged by any alleged conspiracy on the part of GECC and the Lowndes Defendants. GECC collected payments directly from the sublessees of the buses after ABE’s default, yet there was no challenge to GECC’s claim that the Stipulated Loss Value was a damage GECC was entitled to recover as a result of ABE’s default. Even if Olesen’s liability under the guaranty were “indefensible,” the issue of whether any amounts were due under the lease and calculation of these amounts were critical to Olesen’s representation.

To avoid the claim of extrinsic fraud, GECC asserted what amounts to a conversion theory. The idea is that the extrinsic fraud became intrinsic fraud because the Lowndes Firm’s correspondence put Oles-en on notice of the potential for the fraud on the court. According to GECC, by expressly alleging in his complaint that he was told by the Lowndes Firm of its divided loyalties, the fraud became intrinsic.

For this proposition of law, GECC relies on a single case, Arrieta-Gimenez v. Arrieta-Negron, 551 So.2d 1184 (Fla.1989). This case concerned a dispute between two sets of heirs to the estate of Mr. Arrieta. Appellant was his daughter by his second wife. Appellees, the remaining heirs, were Arrieta’s children by his first wife. A dispute arose over the division of Arrieta’s substantial assets and holdings in Florida and Puerto Rico. The Appellees proposed a settlement to Appellant, which she accepted in 1960, and the matter was resolved by a consent judgment. Twenty-three years later, she filed suit in federal court seeking to undo the settlement based on her contention that Appellees had fraudulently misrepresented or concealed facts material to the settlement. In answering a certified question posed by the federal court of appeal, our supreme court had no difficulty identifying this circumstance as being a case of intrinsic fraud, subject to the one-year limit. The extent of Arrieta’s holdings was the issue litigated and resolved in the lawsuit: “[The] misrepresentation is the type considered to be intrinsic fraud.” Citing to DeClaire, the court said that intrinsic fraud is fraud that occurs during the proceeding such as false testimony, whereas extrinsic fraud is fraud that prevents a party from having an opportunity to represent his case in court. Id. at 1185. The Court said:

We disagree with appellant that the alleged misrepresentation amounts to extrinsic fraud that deprived appellant of the opportunity to present her case in court. Appellant had full access to discovery (in fact, the record reveals that appellant made full use of her discovery rights), and she had every right to reject the settlement offer until she could adequately explore the extent of her father’s holdings in Puerto Rico. Appellant had sufficient opportunity from the outset to discover the fraudulent behavior, and thus bring an action in court either before the settlement offer was made or within the one year time limit expressed in rule 1.540(b).

Id. at 1186.

Contrary to GECC’s reading of Arrieta-Gimenez, it is not the “opportunity to discover the fraud” that determines whether a fraud is intrinsic or extrinsic, it is the nature of the fraud itself. The fraud alleged in Arrieta-Gimenez was typical intrinsic fraud involving the presentation of false facts by a litigant. Once the litigation has concluded, any such falseness inheres in the judgment and only a limited time is given to determine the true facts. Olesen contends that he never got his day in court because his interests were corruptly sold out to the other side by attorneys ostensibly representing him. Assuming for the sake of GECC’s argument that Olesen was put on notice by the Lowndes Defendants that they were going to “throw” his case to benefit GECC, such a fact might go to whether there was fraud, but not the nature of it.

Turning to GECC’s second argument, GECC contended that Olesen’s complaint failed to state a cause of action for civil conspiracy. Olesen countered that he sufficiently stated a cause of action for civil conspiracy against GECC. Civil conspiracy consists of the following elements: “(a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant to the conspiracy.” Walters v. Blankenship, 931 So.2d 137, 140 (Fla. 5th DCA 2006).

Based on the allegations in the Second Amended Complaint along with the attached supportive documents, taken as true, and together with the inferences drawn from them in favor of Olesen, as presented above, a trier of fact could have found that GECC and the Lowndes Defendants conspired to and did commit fraud on the court as related to the issue of the amounts due and owing by Olesen under the guaranty, a finding that encompasses the first three elements of civil conspiracy. As for the fourth element, damage, because Olesen alleged both that the Lowndes Defendants failed to effectively contest the amounts due and owing, and that had the Lowndes Defendants effectively done so, they could have limited the amount due and owing by him under the guaranty, a trier of fact could have found that Olesen was damaged as a result of GECC’s and the Lowndes Defendants’ conspiracy to commit fraud on the court. As such, the allegations of the Second Amended Complaint were sufficient.

Accordingly, we reverse the trial court’s dismissal of Counts IV and V of Olesen’s Second Amended Complaint for failure to state a cause of action.

REVERSED and REMANDED.

GRIFFIN, PALMER and WALLIS, JJ., concur.

      . In an e-mail sent to Olesen, dated August 22, 2007, Alberto D. Lopez, the Portfolio Collections Specialist with GECC, wrote:
      I am contacting you in regards to your guarantee for Arkansas Bus Exchange. I am sure you know of the situation of the account being delinquent and past due for the amount of $29,118.22 for approximately a month and a half of payments. I need to speak with you immediately on this matter in order to get it resolved. Please contact me at your earliest convenience, thanks

      . A letter addressed to Olesen, dated August 3, 2007, from Attorney Young explained:
      [B]oth of these actions seem indefensible from your point of view as it relates to the lenders. However, it does seem that you need to get cross-claim judgments against Darla for her obligations under the Final Judgment of Dissolution of Marriage to indemnify and hold you harmless.

      .Also, in a letter addressed to Olesen, dated November 14, 2007, Attorney Young wrote in part:
      Obviously, we are not representing them in this action since John L. Urban, Esquire, is. However, because we do have other work that we are prosecuting on their behalf, there is a facial conflict of interest; and we need to make sure that you have no objection to us representing your interests in this case while at the same time we are representing GE Capital in other cases unrelated to you. Of course, for all practical purposes, you have no defense to their action other than to seek indemnity and contribution from Darla for the obligation pursuant to the terms of the Final Judgment.

      . In his affidavit filed in support of GECC’s motion for summary judgment, Dale Shores stated in part:
      1. My name is Dale Shores. I am Vice President of General Electric Capital Corporation. The following statements are true and correct based upon my personal knowledge and upon the books and records of GENERAL ELECTRIC CAPITAL CORPORATION (hereinafter "GECC”), of which I am the custodian. I am authorized by GECC to make this affidavit.
      2. On June 2, 2000, GECC entered into a Commercial Transportation Lease Agreement with ARKANSAS BUS EXCHANGE CORPORATION (hereinafter "Arkansas Bus”) (as amended, the "Lease”) setting forth the terms and conditions upon which six (6) 2000 Van Hool coach vehicles (the "Vehicles”) would be leased to Arkansas Bus. A true and correct copy of the Lease is attached to the First Amended Complaint as Exhibit "A”.
      3. Pursuant to the Lease, Arkansas Bus agreed to make eighty-four (84) monthly payments in the amount of $28,227.00 per month, commencing on June 2, 2000.
      4. The Lease was amended on or about September 30, 2002, pursuant to which Arkansas Bus’ monthly Lease payments were modified to $24,000.00 per month with a final payment of $28,227.00 due in September 2007. A true and correct copy of the Lease amendment is attached to the First Amended Complaint as Exhibit "Al”.
      5. The failure to make any monthly rent payment when due constitutes an Event of Default under the Lease See First Amended Complaint as Ex. A, ¶ 17.
      6. The Lease provides that upon an Event of Default GECC may recover from Arkansas Bus, among other things, all damages sustained as a result of the default, including but not limited to the full amount of the Stipulated Loss Value of the Vehicles (as defined in the Lease), together with all rent and other amounts due and payable. See First Amended Complaint Ex. A, ¶ 17.
      7. The Lease also provides that GECC may collect from Arkansas Bus "all costs of collection and repossession including attorneys' fees and collection fees.” See First Amended Complaint Ex. A, ¶ 17.
      8. As additional security for Arkansas Bus’ obligations under the Lease, and to induce GECC to enter into the Lease with Arkansas Bus, the Guarantors each executed an Individual Guaranty in favor of GECC agreeing to "primary, absolute, continuing and unconditional” liability for all amounts due to GECC under the Lease. See Individual Guaranty of DARLA M. OLESEN (hereinafter "D. Olesen”) and PREBEN OLESEN (hereinafter "P. Olesen”) (copies of which are attached to the First Amended Complaint as Exhibits "B” and "C”).
      9. The Guarantors also contractually waived any requirement that GECC first enforce its rights against Arkansas Bus or any other person or collateral. See First Amended Complaint Ex. B; C.
      10. The Guarantors also agreed "to pay upon demand all losses, costs, attorneys’ fees and expenses which may be suffered by [GECC] by reason of [Arkansas Bus'] default or default of [either of the Guarantors].” See First Amended Complaint Ex. B; C.
      11. Arkansas Bus failed to make its payment for December 2006, instead paying only $7,000 of the $24,000.00 due and owing.
      12. Arkansas Bus has failed to make any payment for January 2007 or any month thereafter as required under the Lease.
      13. Following these defaults of the Lease, GECC demanded that Arkansas Bus cure these defaults, however Arkansas Bus refused or otherwise failed to cure those defaults.
      14. Thereafter, GECC contacted D. Olesen and P. Olesen, the Guarantors of the Lease, to notify them that Arkansas Bus was in default under the Lease and to demand payment of all amounts due under the Lease.
      15. However, despite numerous communications by phone and e-mail, the Guarantors have refused to comply with their obligations under their duly executed Individual Guarantees.
      16. By letters dated March 2, 2007, GECC again contacted Arkansas Bus, D. Olesen and P. Olesen, notifying them of the defaults under the Lease and their Guarantees and demanding immediate payment of all amounts due and owing to GECC. See letters dated March 2, 2007 (collectively attached to the First Amended Complaint as Exhibit "D").
      17. However, Arkansas Bus, D. Olesen and P. Olesen ignored these demands as well as have refused to comply with their contractual obligations.
      18. As a result of the Arkansas Bus' default and refusal to honor its contractual obligations, Arkansas Bus is, and continues to be, in default of the Lease, and all amounts due and owing are still outstanding and unpaid.
      19. At the time of the default notice on March 2, 2007, the amount due under the Lease included past due rental of $65,000.00, plus accrued late charges in the amount of $3,6000.00, together with the Stipulated Loss Value of the Vehicles in an amount of $1,142,062.54, together with costs of suit, including attorneys fees, and all other amounts which are justly due GECC.
      20.Pursuant to the Guarantors’ individual, absolute and unconditional Guarantees, the Guarantors are personally and primarily liable for all amounts due and owing to GECC.
      21. Notwithstanding, the Guarantors have failed to satisfy their contractual obligations to GECC pursuant to the Individual Guaranty that each Guarantor executed in an effort to induce GECC to enter into the Lease. See First Amended Complaint Ex. B; C.
      22. The factual statements contained in the First Amended Complaint and the exhibits attached thereto are true and correct to the best of my knowledge.

      . This ruling moots Olesen’s claim of error as to the denial of his ore tenus motion to amend,


text:
    Joshua BOSQUE, Appellant, v. Eric RIVERA, Appellee.
    No. 5D12-4324.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2014.

      Justin H. Presser and Kevin B. Weiss, of The Nation Law Firm, Longwood, for Appellant.
    Jane Anderson and Kansas R. Gooden, of Boyd & Jenerette, P.A., Jacksonville, for Appellee.
   EVANDER, J.

The sole issue in this appeal is whether the trial court erred in dismissing with prejudice a personal injury action filed by Joshua Bosque based upon his purported fraud on the court. We conclude that there was insufficient evidence to support the dismissal and, accordingly, reverse.

Bosque sued the defendant for negligence resulting from an automobile collision that occurred on January 14, 2010. Bosque claimed that as a result of the collision, he sustained injuries to his neck, upper back, and lower back. Ultimately, Bosque underwent laser surgery on his lower back in December 2010.

Shortly after the commencement of the case, the defendant propounded interrogatories and a request for production upon Bosque. The interrogatory pertinent to this case read as follows:

20) List any automobile accidents, slip and falls, worker’s compensation claims, etc. for which you have reported an injury in the past ten years with specific dates of injury, and describe in detail the type, extent of the injury and any medical treatment which you have received for the injury, and indicate the names and addresses of the treating physicians and whether they assigned you a disability rating. If so, state what this disability rating was and to what party [sic] of your body it applied.
ANSWER:
None.

The request for production served on Bos-que sought, inter alia, “copies of any and all medical reports, hospital reports, emergency room reports, consultations, and reports from any health care provider pertaining to the treatment of the Plaintiff for any injuries sustained in the accident described in Plaintiffs Complaint.” One of the documents produced by Bosque in response thereto was an initial treatment note from Sunshine State Medical, Inc., regarding Bosque’s visit on the date of the collision. That note contained a statement regarding Bosque’s medical history, which read: “History reveals one previous accident but no injuries were claimed from the incident.”

Six months later, the defendant deposed Bosque. In that deposition, Bosque answered “no” when asked if he had ever been involved in a car accident prior to January 14, 2010. He also denied any prior injuries to his lower back or neck.

Bosque was twenty years old at the time of his deposition. In his deposition, he disclosed that he had previously attended Herzing University. Subsequent to the deposition, the defendant subpoenaed Bos-que’s student records from Herzing. Included in the documents was an unsigned note purportedly prepared in conjunction with a physical examination that Bosque was required to undergo as a condition to taking a particular class. That note read:

MVA 2 yr. ago 0 pain today. LBP under chiropractic eval.

Thereafter, the defense hired an investigator to research whether Bosque had been involved in a prior accident. That investigation resulted in the discovery that Bos-que had been a passenger in a vehicle that had skidded off the road and overturned. At the time of the prior accident, which occurred in 2006, Bosque was sixteen years old. The Orange County Fire Rescue Department patient care report for the incident reflected that Bosque declined “transport,” and denied any head, neck, or back pain. The only injury cited on the patient care report was a “small laceration” to Bosque’s right forearm.

Without first taking any further steps to determine whether, in fact, Bosque had previously received chiropractic treatment and, if so, the nature of such treatment, the defendant filed a motion to dismiss Bosque’s complaint for fraud on the court. After a non-evidentiary hearing, the trial court granted the defendant’s motion finding that Bosque’s non-disclosure had “eviscerate[d] the defense’s ability to provide a defense and does rise to a scheme to defraud.”

Although this court reviews a dismissal for fraud on the court under an abuse of discretion standard, that standard of review is “somewhat narrowed” to take into account that the dismissal must be established by clear and convincing evidence. Gautreaux v. Maya, 112 So.3d 146, 149 (Fla. 5th DCA 2013). Furthermore, where the trial court does not receive live testimony, appellate deference is further narrowed because the appellate court’s review is based on the same record. Id.

To support a dismissal for fraud on the court, the movant must establish, by clear and convincing evidence,

that a party has senti'ently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998). Because dismissal sounds the “death knell of a lawsuit,” courts must reserve this remedy for instances where a party’s conduct is “egregious.” Id. The dismissal of a lawsuit for fraud on the court is an extraordinary remedy to be utilized only when a deliberate scheme to subvert the judicial process has been clearly and convincingly proved. Bologna v. Schlanger, 995 So.2d 526, 528 (Fla. 5th DCA 2008). As we explained in Bologna, “poor recollection, dissemblance, even lying, can be well managed through cross-examination.” Id.

Here, the record does not establish, by clear and convincing evidence, that Bos-que engaged in “a deliberate scheme to subvert the judicial process” by failing to disclose his involvement in the 2006 car accident. Although Bosque’s deposition answer on this matter was apparently false, it is noteworthy that in response to an earlier request for production, Bosque produced a document reflecting that he had, in fact, been in a previous accident.

Similarly, the record does not establish, by clear and convincing evidence, that Bosque engaged in “a deliberate scheme to subvert the judicial process” by failing to disclose prior chiropractic treatment. Even assuming that the unsigned note in Bosque’s student record accurately reflected that he had previously undergone a chiropractic evaluation, the record does not reflect whether Bosque had received chiropractic treatment and, if so, the extent thereof.

REVERSED and REMANDED.

SAWAYA and ORFINGER, JJ., concur.

      . It is unclear whether Bosque’s answer to interrogatory number 20 was inaccurate, given that the interrogatory requested a list of automobile accidents for which Bosque reported an injury. The Orange County Fire Rescue Department's patient care report does not reflect that Bosque “reported an injury.” Rather, the report suggests that the emergency responders examined Bosque and accepted his request to have a family member take him home.


author: COHEN, J.

text:
    Anthony ALASCIA, Ginlin, LLC., and Megjon, LLC., Appellants, v. STATE of Florida, DEPARTMENT OF LEGAL AFFAIRS, Appellee.
    No. 5D13-1504.
    District Court of Appeal of Florida, Fifth District.
    Feb. 7, 2014.

      Michael A. Gold and Barry A. Cohen of The Cohen Law Group, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana R. Esposito, Assistant Attorney General, Tampa, for Appellee.
   COHEN, J.

Appellants, Anthony Alascia, GINLIN, LLC, and MEGJON, LLC, appeal a non-final order finding probable cause to support the State’s seizure of four parcels of real property under the Florida Contraband Forfeiture Act (“FCFA”) and imposing a lis pendens on that property (“the Subject Properties”).

The State initiated civil proceedings against Appellants requesting, among other things, civil forfeiture of the Subject Properties pursuant to the FCFA. The complaint alleged that Appellants were part of the Allied Veterans of the World (“AVOTW’) criminal enterprise, which operated illegal gambling centers throughout Florida. It requested forfeiture of “all real property that was acquired by the proceeds of the [crimes specified in the complaint] in violation of the [FCFA].” The State “seized” the Subject Properties by filing a lis pendens with the Hernando County Clerk of Court.

An adversarial hearing was then held to determine whether probable cause existed to support the seizure of the Subject Properties under the FCFA. The State relied on two affidavits to establish probable cause: the Master Affidavit and the Seizure Affidavit. According to the Master Affidavit, the gambling scheme involved the operation of “internet sweepstakes cafes.” Customers of the internet cafes actually participated in illegal gaming by accessing a computer terminal to play virtual slot machines. AVOTW acted as the parent company for over forty affiliates throughout Florida. The owners of the affiliates were for-profit companies that undertook the management of the day-today operations of the cafes. Appellant Anthony Alascia owned three of the for-profit companies that operated the cafes, including Appellants GINLIN, LLC, and MEGJON, LLC.

The Seizure Affidavit, which was attached to the Master Affidavit, specifically outlined the State’s basis for seizing the Subject Properties. The Seizure Affidavit alleged that there “is probable cause to believe that ... the real property listed ... constitute^] property involved in or traceable to Gambling violations, R.I.C.O. violations, and Money Laundering by members of the AVOTW Enterprise.” It stated that:

The Court’s authority to order forfeiture of property for violations of [the gambling laws] is found within F.S. 895.05(3) and F.S. 932.702. Florida Statute 932.702 provides for the forfeiture of any property, real or personal, which constitutes or is derived from proceeds from any offense constituting “specified unlawful activity” .... A “specified unlawful activity” ... includes [violations of the gambling laws].[]

It further alleged that the affiant had “evidence that will show that the [Subject Properties] ... were purchased directly or indirectly with illegal proceeds or were purchased during the time frame of the racketeering activity and criminal violations whereas your affiant believes the funds would have been proceeds of the illegal activities of the AVOTW Enterprise.”

The trial court ultimately found that probable cause existed to believe that the Subject Properties were used in violation the FCFA. The trial court ordered the Subject Properties to be seized for the remainder of the litigation by the recording of a lis pendens on each of the Subject Properties.

Jurisdiction

Before reaching the merits of this case, we must first address a jurisdictional question. The State has argued that we lack jurisdiction to review the non-final order at issue. Appellants contend that the non-final order can be appealed under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) because it determines “the right to immediate possession of property.” We find the State’s argument more persuasive.

Appeals of non-final orders are limited to those that fall into one of several enumerated categories. See Fla. R. App. P. 9.130(a)(3). The purpose of this rule is to limit the number of appealable non-final orders. Travelers Ins. Co. v. Bruns, 443 So.2d 959, 961 (Fla.1984). Under rule 9.130(a)(3)(C)(ii), we can review non-final orders that determine “the right to immediate possession of property.”

A' lis pendens is fundamentally different from physical seizure of property. Lis pendens literally means “pending lawsuit.” Adhin v. First Horizon Home Loans, 44 So.3d 1245, 1251 (Fla. 5th DCA 2010). The purpose of a lis pendens is to warn third parties that “whoever subsequently acquires an interest in the property will stand in the same position as the current owner/vendor, and take the property subject to whatever valid judgment may be rendered in the litigation.” Id. (quoting Avalon Assocs. of Del. Ltd. v. Avalon Park Assocs., Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000)). We acknowledge that a lis pendens puts a cloud on title and makes it more difficult to transfer the property. See DeGuzman v. Balsini, 930 So.2d 752, 754 (Fla. 5th DCA 2006). However, we also recognize that it is less restrictive than physical seizure, see Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 962 (Fla.1991), and does not affect the immediate possession of the property. For example, in this case, the lis pendens does not oust Appellants from their property or grant possession of the property to the State; rather, it merely preserves assets, puts third parties on notice of the litigation, and grants the court jurisdiction over the property. See id. at 963; Adhin, 44 So.3d at 1251; see also Finney v. Wonder Dev. Corp., 392 So.2d 583, 584 (Fla. 5th DCA 1980) (holding that non-final order denying motion to discharge lis pendens was not appealable). Thus, we lack jurisdiction to entertain this appeal under rule 9.130(a)(3).

Nonetheless, we can consider this appeal as a petition for writ of certio-rari. See Fla. R. App. P. 9.040(c). “The certiorari jurisdiction of district courts of appeal may be sought to review ... non-final orders of lower tribunals other than as prescribed by rule 9.130.” Fla. R. App. P. 9.030(b)(2)(A). We may utilize certiora-ri review where the petitioner demonstrates a departure from the essential requirements of the law resulting in material injury for the remainder of the case that cannot be remedied on post-judgment appeal. Cohen v. D.R. Horton, Inc., 121 So.3d 1121, 1124 (Fla. 5th DCA 2013) (citing Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)). Certiorari review is appropriate in this case. See Suarez v. KMD Constr., Inc., 965 So.2d 184, 186 (Fla. 5th DCA 2007) (utilizing certiorari review to hear appeal from denial of motion to dissolve notice of lis pendens); Loidl v. I & E Grp., Inc., 927 So.2d 1016, 1017-18 (Fla. 2d DCA 2006) (discussing why certiorari review is the proper method to review order discharging lis pendens).

Merits

Appellants argue that the State failed to present sufficient evidence at the adversarial hearing to establish probable cause. We agree and quash the order on review because the State has failed to present sufficient evidence to establish probable cause that the Subject Properties constitute “contraband” as defined by the FCFA.

We first note that, “because forfeiture actions are considered harsh extractions, [the Florida Supreme Court] has long followed a policy of strictly construing forfeiture statutes.” Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1166 (Fla.2006) (citing DeGregorio v. Balkwill, 853 So.2d 371, 373 (Fla.2003)). Thus, if there is any ambiguity in the FCFA, it must be construed against forfeiture. Id. (citing DeGregorio, 853 So.2d at 373).

The FCFA allows state agencies to seize contraband and subjects that contraband to permanent forfeiture. § 932.703(l)(a), Fla. Stat. The statute defines contraband as “[a]ny real property ... which was used, is being used, or was attempted to be used as an instrumentality in the commission of ... any felony, or which is acquired by proceeds obtained as a result of a violation of the [FCFA].'” § 932.701(2)(a)6., Fla. Stat. (emphasis added). It is a violation of the FCFA to:

(1) ... transport, carry, or convey any contraband article in, upon, or by means of any vessel, motor vehicle, or aircraft.
(2) ... conceal or possess any contraband article.
(3) ... use any vessel, motor vehicle, aircraft, or other personal property, or real property to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
(4) ... conceal, or possess, or use any contraband article as an instrumentality in the commission of or in aiding or abetting in the commission of any felony or violation of the Florida Contraband Forfeiture Act.
(5) ... acquire real or personal property by the use of proceeds obtained in violation of the Florida Contraband Forfeiture Act.

§ 932.702, Fla. Stat. Thus, “property connected to a violation of the gambling laws ... is not per se ‘used, in violation of the FCFA.” Campbell v. Racetrack Bingo, Inc., 75 So.3d 321, 323 (Fla. 1st DCA 2011). The FCFA “does not prohibit acquisition of property from proceeds from violation of the gambling laws, nor does the act subject property so acquired to forfeiture.” Id.

A similar conclusion was reached by this Court in Sheriff of Seminole County v. Oliver, 59 So.3d 232 (Fla. 5th DCA 2011). In that case, we held that the property at issue — stolen checks — could not be forfeited as traceable proceeds of a felony, despite the appellant’s argument to the contrary. Id. at 234. We explained:

[The appellant’s] argument ignores the statutory language that limits the type of proceeds subject to forfeiture to those “obtained as a result of a violation of the Florida Contraband Forfeiture Act.” The violations of the Act are listed in section 932.702. The only violation relevant here is the prohibition against possession of any “contraband article.” Because the checks were not “contraband articles,” the proceeds from the possession of the checks cannot be considered proceeds obtained from a “violation of the Act.”

Id. (citations omitted).

Similarly, here, the State apparently believes that the Subject Properties are subject to forfeiture because they were purchased with proceeds from an illegal gambling operation. The complaint requested forfeiture of “all real property that was acquired by the proceeds of the above specified crimes in violation of the [FCFA].” The “above specified crimes” were various violations of Florida’s RICO statute and gambling laws. However, as noted above, real property is not subject to forfeiture if the only basis for forfeiture is that the property was acquired with proceeds derived from violations of the gambling laws. Campbell, 75 So.3d at 323.

In sum, the Subject Properties are not contraband subject to forfeiture under the FCFA because they were neither used as instrumentalities in the commission of a felony nor acquired by proceeds obtained as a result of a violation of the FCFA. See id.; see also § 932.701(2)(a)6., Fla. Stat. Accordingly, we are compelled to quash the probable cause order.

PETITION GRANTED; ORDER QUASHED.

PALMER and WALLIS, JJ., concur.

      . §§ 932.701-.706, Fla. Stat. (2013).

      . The State contends that the trial court also reviewed four Real Estate Affidavits, which further outlined the basis for probable cause. However, it is unclear based on the record whether the trial court considered the Real Estate Affidavits in making its probable cause determination.

      . As will be demonstrated by our discussion of the FCFA, this is a misstatement of the law.

      . Appellants also raise other issues that do not warrant discussion.

      . The statute contains other definitions of contraband, but we find them inapplicable to the instant case. This includes the definition found in subsection (2)(a)2., which states: " 'Contraband article' means ... [a]ny gambling paraphernalia, lottery tickets, money, currency, or other means of exchange which was used, was attempted, or intended to be used in violation of the gambling laws of the state.” This definition does not apply here for two reasons. First, it does not appear to encompass real property; second, no evidence exists to prove that the Subject Properties were "used in violation of the gambling laws,” see Campbell v. Racetrack Bingo, Inc., 75 So.3d 321, 323 (Fla. 1st DCA 2011) ("[I]n order for the [property] to meet the statutory definition, some association with violations of the gambling law is not enough — [the property] must have been 'used' to carry out the violations ....").

      . Additionally, the Real Estate Affidavits— which may or may not have been considered by the trial court — alleged that the affiant had "cause to believe that the [Subject Properties were] purchased in whole, or in part, with illegal proceeds derived from Racketeering Activities to include Gambling and Money Laundering.”