source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mohamed S. ALNAJJAR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2752.
    District Court of Appeal of Florida, First District.
    Sept. 24, 2013.
    Mohamed Alnajjar, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., MARSTILLER and OSTERHAUS, JJ., concur.


text:
    Guenevere L. HUDNALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-660.
    District Court of Appeal of Florida, First District.
    Sept. 24, 2013.
    Guenevere L. Hudnall, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The second amended petition for belated appeal is denied on the merits.

LEWIS, C.J., MARSTILLER and OSTERHAUS, JJ., concur.


author: DAVIS, Chief Judge.

text:
    John J. COPPOLA, Appellant, v. Maureen A. COPPOLA, Appellee.
    No. 2D12-333.
    District Court of Appeal of Florida, Second District.
    Sept. 25, 2013.

      John J. Coppola, pro se.
    No appearance for Appellee.
   DAVIS, Chief Judge.

John J. Coppola, the Former Husband, challenges the trial court’s order denying his motions to enforce an attorney’s fee award entered against Maureen A. Coppola, the Former Wife, who makes no appearance in this appeal. The Former Husband also challenges the trial court’s subsequent denial of his motion for rehearing. We reverse.

The parties’ marriage was dissolved by final order entered August 29, 2000. Subsequently, the Former Husband experienced a material change in circumstances which resulted in the trial court’s reducing his alimony obligation to $1 per month in June 2009 retroactive to January 2007. As a result of the ongoing litigation between the parties, on December 18, 2009, the trial court entered an order adopting the general magistrate’s report and recommendation ordering the Former Wife to pay $31,163.36 of the Former Husband’s attorney’s fees. That report and recommendation specifically stated as follows:

The former husband’s request for an award of attorney’s fees and costs is hereby granted and the former wife shall, within thirty (30) days of this order, pay to the former husband $31,163.36. Payment shall be made to the former husband’s legal counsel at the address set forth within the certificate of service below.

Since the entry of the December 18, 2009, order, the Former Husband has filed numerous pleadings seeking the payment of the $31,163.36 in attorney’s fees, as well as roughly $14,000 he alleges he overpaid in alimony during the time that his petition to modify his alimony obligation was pending. In June 2011, the trial court held a hearing on these motions. The record before us does not include a transcript of that hearing, but on December 22, 2011, the court issued the order on appeal. In the order, the trial court makes a factual finding that the report and recommendation upon which the December 18, 2009, attorney’s fee order was based “concluded that the [Former] Wife should pay direct to the Former Husband’s legal counsel the amount of $31,163.36. The judgment was not in favor of the Former Husband; rather, it was in favor of his attorneys.” Based on this factual finding, the court concluded that “[t]he Former Husband has no standing or right to collect a judgment for fees that was ordered to be paid directly to his attorneys.” We do not agree.

While the report and recommendation does direct that the payment should be sent to the Former Husband’s attorney’s office, it also plainly states that “the former husband is hereby awarded ... $31,163.36” and that “the former wife shall, within (30) days of this order, pay to the former husband $31,163.36.” The findings of fact included in the report and recommendation further support that the award was made to the Former Husband. The general magistrate found that the Former Husband was seeking $60,000 in fees, that roughly $55,000 in fees was a reasonable attorney’s fee, and that the Former Husband already had paid approximately $49,295 in fees to his own attorney. Based on these findings, only approximately $5000 was due the attorney. As such, the record before us does not support the trial court’s finding that the fee award imposed against the Former Wife was to be paid directly to the Former Husband’s attorney. See generally Thorpe v. Myers, 67 So.3d 338, 341 (Fla. 2d DCA 2011) (“We defer to the circuit court’s findings of fact when they are based on competent, substantial evidence.”).

We note that the order on appeal does not address the Former Husband’s argument that the Former Wife owes him $14,000 in alimony overpayments. However, the record before us does not include a judgment in this amount in favor of the Former Husband. It appears that the general magistrate’s report and recommendation modifying the Former Husband’s alimony obligation did so retroactively to the date he filed the petition. However, the trial court’s order adopting the report and recommendation merely states that it “ratifie[s] and approve[s]” the general magistrate’s report and “adopts each and every finding and recommendation contained” in the report. Based on the record before us, no judicial determination has been made that the Former Husband ever overpaid on his alimony obligation or in what amount. On November 24, 2010, the trial court did enter a Stipulated Order Granting Motion for Money Judgment, Motion to Void Orders, and Motion for Contempt and to Compel Production in which it acknowledged a $13,982 alimony overpayment. However, on July 25, 2011, the trial court entered an order setting aside that stipulated order. On appeal, this court affirmed the July 25, 2011, order setting aside the stipulated order. See Coppola v. Coppola, 94 So.3d 590 (Fla. 2d DCA 2012) (table decision). As such, there is currently no judgment to enforce with regard to an alimony overpayment.

Because the trial court’s factual finding that the fee award was made directly to the Former Husband’s attorney and not to the Former Husband is not supported by the record, we reverse and remand for the trial court to consider the merits of the Former Husband’s motions to enforce the attorney’s fee award.

Reversed and remanded.

MORRIS and BLACK, JJ., Concur.

      . The general magistrate also made the specific finding that the Former Husband had the need and the Former Wife had the ability to pay half of the Former Husband's attorney’s fees.


author: CIKLIN, J.

text:
    Kimberly DINKINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1845.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 2013.
    Opinion on Rehearing Sept. 25, 2013.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

CIKLIN, J.

The Appellant, Kimberly Dinkines, moved for rehearing, requesting that on remand, her resentencing be conducted by a different judge. We grant the motion, withdraw our previously issued opinion, and substitute the following in its place.

Kimberly Dinkines appeals the sentence imposed after she was found guilty of false verification of ownership or false identification given to a pawnbroker. Dinkines argues that because her Criminal Punishment Code score was four, her conviction was for a non-forcible felony, and no competent evidence existed that she was a danger to the public, the court was required to impose a nonstate prison sanction instead of the three years in prison she received. We agree with Dinkines. Absent a proper finding that she was a danger to the public, the trial court could not impose a three-year sentence as it did. As such, we reverse Dinkines’s sentence and remand for a new sentencing hearing with instructions that the trial court impose a nonstate prison sentence.

In 2010, the state charged Dinkines with dealing in stolen property and false verification of ownership or false identification given to a pawn broker. The matter proceeded to a jury trial in 2012.

A state witness testified that he purchased a lawn mower in early 2010 for approximately one hundred dollars. He kept the lawn mower underneath the covered carport at his house in Broward County. Early on September 28, 2010, he noticed that the lawn mower was missing and reported it stolen.

A few days later, the man received a call from a detective saying that he believed he had located the lawn mower at a local pawnshop and asked the man to meet him there. As soon as the man saw the lawn mower at the pawnshop, he knew it was his. The man was required to pay the pawnshop forty-five dollars to reclaim his property.

The pawnshop’s owner testified that he recognized a Florida Pawn Broker Transaction Form from his shop that indicated Dinkines sold the mower to the pawnshop on September 27, 2010. He testified that the form listed Dinkines’s address based on whatever her personal identification document indicated at the time. The pawnshop owner said that Dinkines was with someone else when she sold the mower but the pawnshop owner could not remember any details. Also on the same form, Dinkines signed and gave a fingerprint, both of which served as pledges that the mower was hers.

The jury acquitted Dinkines on the charge of dealing in stolen property and returned a guilty verdict on the charge of false verification. A month later, the trial court held a sentencing hearing. Defense counsel submitted multiple letters from individuals familiar with Dinkines who vouched for her character. The defense requested a withhold of adjudication and one year of probation, which is what the presentence investigation report also recommended. The state noted that Dinkines had received a withhold on an unrelated 1999 felony conviction.

The state then told the trial court about an individual, Christopher Lynn, who was allegedly involved with Dinkines in the lawn mower incident. The state requested that the trial court take judicial notice of Lynn’s case file, which was still pending. According to the state, Lynn had been classified as a career criminal and had two counts of burglary and two counts of petit theft that were still open. The state then explained to the trial court that Lynn’s case file revealed evidence indicating that Dinkines was more involved with the scheme to pawn stolen property than her trial revealed. Based on this additional information, the state sought an adjudication of guilt, three years of probation and 180 days in the county jail.

Defense counsel disagreed ■ with the state’s characterization of Dinkines’s involvement with other thefts and pawnings.

The trial court then made'the following pronouncement, apparently based solely on the state’s representations:

All right, look, I presided over this trial. I heard the testimony. Ms. Dinkines, you are a thief, that’s what it comes down to. Without your participation, Mr. Lynn wouldn’t have been able to pawn these items. That much is clear to me. You’re the yin to his yang, so to speak, you are the other side of the coin here. You are a facilitator in these transactions. You are a participant in all of them, especially with regards to this one here, the one I’m looking at, it’s clear your participation.
I don’t think you are remorseful. I don’t think you care about the victim in this case. I think without a meaningful punishment here the reality is you would go out and do it again. The best I can hope for is a meaningful punishment to protect the citizens of Broward County from you.
So I’m adjudicating you on this charge and I’m sentencing you to three years in Florida State Prison with credit for all time served.

Defense counsel filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(1), and at a later hearing argued that the trial court could not impose prison time because Din-kines scored only four in the Criminal Punishment Code, the conviction was for a non-forcible felony, and the trial court based its finding that Dinkines was a danger to the community on the argument of the assistant state attorney during the sentencing hearing-and not evidence or testimony. The trial court disagreed, finding that the maximum possible sentence was five years. The trial court held steadfast to its position that Dinkines was an integral participant in a theft and pawning scheme:

My problem with this ... is without Ms. Dinkines, this other, I can’t remember his name, the other participant in the crime, he could not have completed this crime. He couldn’t have made it happen. It required her. It required her to do this.

Defense counsel suggested to the trial judge that his conclusions were unsubstantiated and based oh no proof offered at the trial or at the sentencing hearing “as to how the lawn mower was stolen, by whom it was stolen.” Defense counsel reminded the court that Dinkines was found guilty only of the false verification of ownership charge and was actually acquitted of dealing in stolen property. Additionally, defense counsel noted, Dinkines was not charged with grand theft or burglary or any other crime: “There is no evidence that she stole the lawn mower from the home.... There is no evidence that anyone connected with Ms. Dinkines stole the lawn mower from the lawn mower owner’s home.” The trial court responded that “[t]he record will speak for itself.”

The trial court rejected all of defense counsel’s arguments but agreed that written findings were necessary to exceed the statutorily mandated maximum sentence. The trial court’s written order included the following findings:

(1) That this crime was not an isolated incident and that the Defendant was an important actor in same and critical to the completion of the crime in that the stolen item could not have been sold to the pawnbroker without her participation.
(2) That the Defendant refused to cooperate in any meaningful way with law enforcement and is not sincere in her expression of remorse.
(3) That the Defendant poses a very real threat to the community and that imprisonment is the only real deterrent this Court sees to future criminal acts by this Defendant.
Dinkines appeals her sentence.

Section 775.082(10), Florida Statutes (2010), adopted in 2009, provides:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

§ 775.082(10), Fla. Stat. (2010). Both parties agree that this statute applied to Din-kines as she received a Criminal Punishment Code score of four and was convicted of a non-forcible felony.

As such, the trial court was required to sentence Dinkines to a nonstate prison sanction. The only exception to this mandated sentence was upon the trial court’s written findings that imposing a nonstate prison sentence could be a danger to the public.

In the written order entered to justify its decision to not mitigate the defendant’s sentence, the trial court clearly took Din-kines’s perceived lack of sincere remorse into consideration. This constitutes reversible error.

Whether a defendant has shown remorse is, of course, a consideration the court may give when determining whether to grant a mitigation sentence under section 921.0026(2)(j), Florida Statutes (2010) (listing whether the “offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse” as a factor to consider in a mitigation request). See Green v. State, 84 So.3d 1169, 1171 (Fla. 3d DCA 2012) (“[A] defendant’s expression of remorse and acceptance of responsibility are appropriate factors for the court to consider in mitigation of a sentence....”).

However, this remorse factor was of no legal import regarding Dinkines’s sentence pursuant to the various requirements of section 775.082(10). By virtue of the statute, Dinkines automatically fell under the mandatory mitigated sentence of a nonstate prison sanction. The trial court did not have discretion to consider whether Dinkines was entitled to the mitigation sentence under the traditional factors of section 921.0026(2) because those factors were not applicable to Dinkines. Thus, the trial court’s clear consideration of Dinkines’s perceived lack of meaningful remorse in imposing a three-year state prison sentence constituted a due process violation and is therefore grounds for reversal. Indeed, “[r]esentencing is required even if this was but one of several factors the court considered in imposing its sentence.” Id. (citations omitted).

The second argument advanced by Din-kines — that the trial court erred by considering other crimes for which she was acquitted or not charged at all — also appears to warrant a remand for resentencing. This court has held that “[i]t is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing a sentence.” Doty v. State, 884 So.2d 547, 549 (Fla. 4th DCA 2004) (citations omitted). If it appears that the trial court has done so, the state thán has the burden to prove that the trial court did not rely on improper factors in sentencing. Id. (citation omitted); see also Williams v. State, 8 So.3d 1266, 1267 (Fla. 1st DCA 2009) (“When portions of the record show the trial court relied upon prior acquittals in determining a defendant’s sentence, the State has the burden to demonstrate those considerations played no part in the sentence imposed.” (citation and quotation marks omitted)).

Here, the trial court did not merely express surprise that Dinkines was acquitted of dealing in stolen property but also labeled her a “thief.” The trial court surmised that Dinkines was an integral part of Lynn’s plan in that Lynn could not have committed multiple acts of theft without the assistance of Dinkines. Further, the trial court went beyond just its consideration of the charge on which Dinkines was acquitted (dealing in stolen property) and brought into the sentencing mix a host of uncharged crimes and Lynn’s criminal file even though Dinkines was not listed as a co-defendant in Lynn’s case.

Thus, the burden is the state’s to prove that the impermissible factors played no role in Dinkines’s sentence. The state’s brief argument as to this issue amounted to nothing more than a conclusory statement. This is insufficient; and, based on the trial court’s statements — both oral and written — it does not appear that the state could possibly advance any persuasive argument that the trial court did not rely on these impermissible factors in sentencing Dinkines.

Therefore, we reverse Dinkines’s sentence and remand for resentencing with instructions to impose a nonstate prison sanction. The record in this case does not support the trial court’s finding that Din-kines could be a danger to the public without a prison sentence. Thus, the trial court must fashion a nonstate prison sentence that comports with section 775.082(10). See Sprott v. State, 99 So.3d 634, 635 (Fla. 1st DCA 2012) (remanding for resentencing with restriction that the trial court impose a nonstate prison sanction); Jones v. State, 71 So.3d 173, 176 (Fla. 1st DCA 2011) (finding that the record did not support the trial court’s finding of potential future dangerousness and therefore remanding for a nonstate prison sanction only). Resentencing shall be before a different judge. See Jackson v. State, 39 So.3d 427 (Fla. 1st DCA 2010); Doty, 884 So.2d at 551.

Reversed and remanded with instructions.

DAMOORGIAN, C.J., and CONNER, J., concur.

      . "Any person who knowingly gives false verification of ownership or gives a false or altered identification and who receives money from a pawnbroker for goods sold or pledged commits” a third- or second-degree felony depending on the amount of money involved. § 539.00 l(8)(b)8., Fla. Stat. (2010).

      . Dinkines stipulated that the thumbprint on the Florida Pawn Broker Transaction Form from the pawnshop belonged to her.

      . As Dinkines's conviction was for a third-degree felony, the statutory maximum for her crime was five years. See § 775.082(3)(d), Fla. Stat. (2010). This court has recently characterized section 775.082(10) as a "mandated mitigation of an otherwise available maximum penalty.” Porter v. State, 110 So.3d 962, 963 (Fla. 4th DCA 2013).

      . In light of our decision, we do not find it necessary to discuss Dinkines’s other arguments for reversing her sentence.


text:
    D.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2558.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.
    Opinion on Rehearing Oct. 11, 2013.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

      Before SHEPHERD, C.J., and SUAREZ and LAGOA, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the State of Florida’s motion for rehearing, withdraw our prior opinion filed April 11, 2012, and substitute the following in its place:

D.S., a minor, appeals from a withhold of adjudication of delinquency entered following an adjudicatory hearing. The issue on appeal is whether the trial court erred in not granting his motion to suppress marijuana discovered incident to his arrest for loitering and prowling. We reject the argument raised by D.S. and affirm the trial court.

Officer Collier, the arresting officer, testified at the suppression hearing that he responded to a location in reference to a call on a burglary in progress. He testified that when he arrived at the scene, responding officers had already taken'D.S. out of the home. D.S. was detained, along with the other juveniles found inside the unoccupied home, on suspicion of burglary. Officer Collier testified he spoke to a witness at the scene who observed D.S. and two others breaking down the door to the home in which D.S. was found. Officer Lambert testified that when she arrived at the scene she saw D.S. being escorted out of the house. She also testified that D.S. was being detained in reference to the investigation of the call on a burglary in progress. Officer Lambert searched D.S. prior to placing him in the squad car, and discovered a baggie of marijuana in his pocket. D.S. was arrested by officer Collier for loitering and prowling as well as possession of marijuana. D.S. argues the marijuana should have been suppressed because there was no probable cause to arrest him for loitering and prowling. Therefore, he argues, the search incident to his arrest for loitering and prowling was illegal. We disagree.

Probable cause existed to arrest D.S. for burglary. It is undisputed D.S. was found inside the unoccupied home by the responding police officers. A witness at the scene observed D.S. and two others break down the door to the home. Given this testimony alone, there was probable cause to arrest him for burglary. See State v. Clark, 721 So.2d 1202 (Fla. 3d DCA 1998); McKee v. State, 430 So.2d 983 (Fla. 3d DCA 1983); Brescher v. Pirez, 696 So.2d 370 (Fla. 4th DCA 1997); State v. Cote, 547 So.2d 993 (Fla. 4th DCA 1989).

Even if probable cause to arrest D.S. for loitering and prowling did not exist, the search incident to that arrest is still lawful as there was probable cause to arrest him for another charge, burglary. See Freeman v. State, 909 So.2d 965 (Fla. 3d DCA 2005) (finding that there existed, notwithstanding the officers’ mistaken and contrary belief, probable cause to arrest the defendant on a charge of burglary). We observed in Thomas v. State, that, “[w]here, by objective standards, probable cause to arrest for a certain offense exists, the validity, of an arrest does not turn on the fact that an arrest was' effected on another charge.” Thomas v. State, 395 So.2d 280, 281 (Fla. 3d DCA 1981) (citing Rawlings v. Kentucky, 448 U.S. 98, 100, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), and Dixon v. State, 343 So.2d 1345, 1347 n. 3 (Fla. 2d DCA 1977)); see also Blanding v. State, 446 So.2d 1135, 1136 (Fla. 3d DCA 1984) (“[a]n arrest based on probable cause is not rendered unlawful because the arresting officer attaches an improper label to it”); see also State v. Clark, 721 So.2d 1202, 1206 (Fla. 3d DCA 1998) (“[T]he validity of a search of a defendant after establishing probable cause to arrest him has arisen is unaffected by the fact that the search comes before the arrest.” (quoting State v. James, 526 So.2d 188,190 (Fla. 3d DCA 1988))).

Probable cause to arrest exists when the totality of the facts and circumstances within the officer’s knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it. The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based. An officer is permitted to take a realistic view of the facts in making a probable cause determination, ‘for probable cause is a matter of practicalities, not technicalities.’

State v. Cortez, 705 So.2d 676, 678 (Fla. 3d DCA 1998) (quoting State v. Russell, 659 So.2d 465, 468 (Fla. 3d DCA 1995) (internal citations omitted)). Therefore, even if no probable cause existed to arrest D.S. for loitering and prowling, as long as there was probable cause to arrest him for burglary, the search incident to arrest was lawful. See Lugo v. State, 992 So.2d 415, 418 (Fla. 3d DCA 2008); State v. Orozco, 607 So.2d 464, 465 n. 1 (Fla. 3d DCA 1992).

Accordingly, the fact D.S. was arrested for loitering and prowling does not render the search incident to arrest unlawful, or the marijuana discovered pursuant to that search subject to suppression as the fruit of an illegal search and seizure.

Affirmed.

      . This Court is bound by its own precedent of Freeman and nomas. Further, those cases relied upon by the appellant are inapplicable to the case at hand. The appellant's reliance on stop-and-frisk cases is misplaced because these facts do not concern a temporary stop or detention pursuant to the Stop and Frisk Law, but rather a search incident to arrest. See Thomas, 395 So.2d at 281. Similarly, the loitering-and-prowling line of authorities cited by the appellant are not applicable, where here, an eyewitness observed and reported D.S. breaking down the door to the unoccupied home where he was found.


author: SUAREZ, J.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. William PRUITT, as personal representative of the estate of Oswaldo St. Blanchard a/k/a Oswaldo Blanchard, et al., Appellees.
    Nos. 3D12-1928, 3D12-1923, 3D12-1926.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.

      Shutts & Bowen and Frank A. Zacherl and Stephen T. Maher, Fort Lauderdale, for appellant.
    Joel S. Perwin, Miami; Kuvin & Stettin and Eric Stettin, Weston, for appellee William Pruitt, as personal representative of the estate of Oswaldo St. Blanchard a/k/a Oswaldo Blanchard.
    James C. Blecke, Coral Gables; Deutsch & Blumberg and Edward R. Blumberg, Miami, for appellees Edelmida and Paulino Rodriguez.
    Before SUAREZ and LOGUE, JJ„ and SCHWARTZ, Senior Judge.
   ON MOTIONS TO DISMISS

SUAREZ, J.

I. BACKGROUND

The litigation underlying this appeal spans six years and three lower court cases. In 2006, appellees Edelmida and Paulino Rodriguez sued Oswaldo St. Blanchard for injuries allegedly resulting from an automobile accident. GEICO, as Mr. St. Blanchard’s insurer, defended the suit but ultimately issued a reservation of rights based on his alleged misrepresentations regarding his eyesight. Upon Mr. St. Blanchard’s passing, appellee William Pruitt, as personal representative of Mr. St. Blanchard’s estate, refused GEICO’s representation because of the reservation of rights and proceeded with independent counsel. As sanctions for Mr. St. Blanchard’s misrepresentations, the trial court entered two fee and cost judgments against the estate. GEICO was joined as a defendant solely on the issue of coverage. The trial court determined GEICO was estopped from asserting misrepresentation as a defense because it was untimely under the Florida Claims Administration Statute, section 627.426, Florida Statutes (1983). Based on this statutory violation, the trial court precluded GEI-CO from raising additional coverage defenses. This resulted in an implicit finding that GEICO had wrongfully refused to defend the insured. The trial court also granted summary judgment in favor of the Rodriguezes and the estate on the issue of coverage. The estate ultimately stipulated to a consent judgment, without GEICO’s approval. The fee and cost judgments, as well as the determinations on coverage and wrongful refusal to defend, are currently pending before this Court in a separate appeal under case no. 3D12-506.

Prior to the entry of judgment in the tort action, the estate and GEICO initiated separate declaratory actions which remain pending. The estate sought a declaration that GEICO must tender all available coverage and indemnify the fee/cost and consent judgments. The estate also alleged breach of fiduciary duty, legal malpractice, and bad faith based on GEICO’s failure to settle and wrongful refusal to defend. These actions are currently abated. The Rodriguezes were joined as defendants and cross-claimed for bad faith and breach of contract. GEICO, by contrast, sought a declaration that there was no coverage. The estate counterclaimed to declare coverage and allege bad faith. These two declaratory actions were consolidated for limited purposes.

GEICO now appeals three orders entered in the consolidated cases. The first two orders grant partial summary judgment in favor of the estate and the plaintiffs as to the reasonableness and good faith of the consent judgment. The third order granted the plaintiffs’ motion to strike GEICO’s defenses regarding the consent judgment. All three orders state “granted” without explanation. GEICO has appealed these orders as final, and the estate and the Rodriguezes have moved to dismiss the appeal as taken from non-final, non-appealable orders. GEICO opposes the motions to dismiss but has also moved to remand the cases with instructions to sever the declaratory counts and enter final judgments. For the following reasons, we dismiss the appeal.

II. ANALYSIS

GEICO argues immediate appellate review is necessary because the orders at issue end judicial labor regarding its liability for policy limits under the Coblentz agreement, thereby clearing the path to litigate the bad faith claims in the event we affirm the coverage determination. We disagree.

GEICO correctly points out that this case presents a novel issue. An insurer is entitled to appellate review of a determination on liability and damages before an attendant bad faith claim may proceed. United Auto. Ins. Co. v. Tienna, 780 So.2d 1010, 1011 n. 4 (Fla. 4th DCA 2001). However, there is no precedent addressing whether immediate appellate review of a partial summary judgment ruling on the validity of a Coblentz agreement is proper while a bad faith claim remains pending. In American Reliance Insurance Co. v. Perez, 712 So.2d 1211 (Fla. 3d DCA 1998), this Court reviewed a partial summary judgment order finding coverage in a declaratory action after the insured had entered a consent judgment in the separate personal injury action. This Court based jurisdiction on Florida Rule of Appellate Procedure 9.110(n) (1997) and Canal Insurance Co. v. Reed, 666 So.2d 888 (Fla.1996). However, in contrast to the instant appeal, Perez concerned a direct coverage determination. Perez, 712 So.2d at 1212. Moreover, it is unclear whether in Perez, as here, a related bad faith claim remained pending in the trial court. See also Wilshire Ins. Co. v. Birch Crest Apartments, Inc., 69 So.Bd 975 (Fla. 4th DCA 2011) (granting review of coverage determination as final order under declaratory count in action for breach of contract and bad faith following consent judgment).

The jurisdictional analysis in Universal Underwriters Insurance Co. v. Stathopoulos, 113 So.3d 957 (Fla. 2d DCA 2013), more directly applies to these facts. After obtaining a consent judgment, the plaintiffs in Stathopoulos sued the insurer for declaratory relief, breach of contract, and bad faith. Id. at 958. The insurer appealed a partial final judgment declaring the driver an insured while the other counts remained pending. Id. The court concluded the ruling was “based on the same facts and ... intertwined” with the remaining counts and therefore not reviewable as a partial final judgment. Id. at 959 (citing Fla. R. App. P. 9.110(k)). It dismissed the appeal, concluding the ruling was neither an appealable non-final order nor reviewable under the court’s certiorari jurisdiction. Id. at 960.

We reach the same conclusion regarding the orders now at issue. The partial summary judgment orders are non-final and non-appealable as related claims remain pending between the parties. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 100 (Fla.1974). The order striking GEICO’s defenses is also non-final and non-appealable. Northcutt v. Pathway Fin., 555 So.2d 368, 369 (Fla. 3d DCA 1989). The coverage determination from the first suit is already pending appeal before this Court. GEICO improperly conflates the question of wrongful refusal to defend with the question of the insured’s good faith in entering the consent judgment. See Chomat v. N. Ins. Co. of N.Y., 919 So.2d 535, 538 (Fla. 3d DCA 2006) (“Without attempting a comprehensive definition, we think a bad faith claim includes a false claim, or collusion in which the plaintiffs agree to share the recovery with the insured.”). The former is already before this Court in the other appeal.

We also deny GEICO’s motion to remand with instructions to sever the bad faith causes of action and enter final judgment on the declaratory counts. The sev-erability of a declaratory action from the remaining counts does not affect appellate jurisdiction. Stathopoulos, 113 So.3d at 959-60. Remanding the cases with instructions to sever the declaratory counts and enter final judgments would result in impermissible piecemeal review. See S.L.T. Warehouse Co., 304 So.2d at 99.

For the foregoing reasons, this appeal is hereby dismissed.

      . The determinations regarding coverage and wrongful refusal to defend satisfy two of the four elements required to hold an insurer liable for a consent judgment. Coblentz v. Amer. Surety Co. of N.Y., 416 F.2d 1059 (5th Cir.1969); Quintana v. Barad, 528 So.2d 1300, 1301 n. 1 (Fla. 3d DCA 1988). The remaining elements, reasonableness and good faith, are the subject of the instant appeal. Quintana, 528 So.2d at 1301 n. 1.

      . Coblentz v. Amer. Surety Co. of N.Y., 416 F.2d 1059 (5th Cir.1969).


author: LAGOA, J.

text:
    GLOBAL XTREME, INC., Appellant, v. ADVANCED AIRCRAFT CENTER, INC., Appellee.
    No. 3D12-2220.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.

      Guy Spiegelman, Miami, for appellant.
    Restani, Dittmar & Hauser and Helen Ann Hauser, Coral Gables; Dennis R. Haber, Miami, for appellee.
    Before LAGOA and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   LAGOA, J.

Global Xtreme, Inc. (“Global”) appeals from an order awarding attorney’s fees to Advanced Aircraft Center, Inc. (“Advanced”) pursuant to sections 57.105 and 713.29, Florida Statutes (2010). For the following reasons, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Global entered into an oral contract with Advanced, the operator of an aircraft storage and repair center, to repair an aircraft owned by Global. A dispute arose concerning the amount Global owed for the repairs, and Advanced filed a mechanic’s lien on the aircraft pursuant to sections 329.51 and 713.58, Florida Statutes (2010). Subsequently, on June 29, 2010, Global brought suit against Advanced, seeking a writ of replevin and damages for breach of contract.

On July 21, 2010, Advanced sent Global a letter (the “July 21 letter”), stating that Global should “consider this your twenty-one (21) day notice pursuant to Florida Statute Section 57.105(4) to withdraw your complaint against Defendant.” The July 21 letter does not reference a motion or state that it contains any attachment or enclosure.

On August 12, 2010, Advanced served Global with a motion for attorney’s fees under section 57.105 (the “57.105 Motion”), asserting that it was entitled to attorney’s fees under section 57.105(4) because twenty-one days earlier, on July 21, 2010, it “demanded ... that Plaintiff withdraw their Complaint” and that Global failed to do so. In the certificate of service, the 57.105 Motion states:

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed on 12 day of August, 2010, to Guy Spiegelman, Esq., 19 West Flagler Street, Suite 912, Miami, FL 33130, and the original shall not be filed with the court until 21 days.

(emphasis added). Advanced filed the 57.105 Motion with the trial court four days later, on August 16, 2010.

Subsequently, Advanced filed a counterclaim. Among other things, it sought to foreclose its mechanic’s lien. In its mechanic’s lien count, Advanced alleged that it was entitled to recover attorney’s fees pursuant to section 713.29, Florida Statutes (2010).

The matter proceeded to trial, and Advanced obtained a judgment in its favor. Advanced then filed a motion for attorney’s fees and costs pursuant to section 57.105(4). In the motion, Advanced asserted that it complied with the twenty-one day notice provision of section 57.105(4). In support of its argument, Advanced relied upon two documents: (1) the July 21 letter; and (2) the 57.105 Motion, which was served on Global on August 12 and filed with the trial court on August 16. Advanced also claimed that Global “was put on ample notice of their meritless position ... through the [July 21] demand letter....”

Global responded that it was never served with the 57.105 Motion pursuant to the notice provision of section 57.105(4), and that Advanced’s reliance on the July 21 letter to satisfy the requirements of the statute was misplaced. At a hearing, the attorneys disputed whether the 57.105 Motion had been sent with the July 21 letter. The attorney for Advanced argued that the 57.105Motion had indeed been sent with the July 21 letter, while the attorney for Global claimed that he received only the letter, with no accompanying 57.105 Motion.

Based on the attorneys’ unsworn statements alone, the trial court determined that the 57.105 Motion had been sent with the July 21 letter, and that Advanced was entitled to attorney’s fees under both sections 57.105 and 713.29. The trial court subsequently entered an order awarding Advanced attorney’s fees in the amount of $30,141.00. On appeal, Global argues that the trial court erred in awarding fees under either statute.

II. STANDARD OF REVIEW

The standard of review for an award of attorney’s fees, whether based on contract or statute, is abuse of discretion. Universal Beverages Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005). When the issue is the entitlement to fees based' on the interpretation of a statute, however, the standard of review is de novo. Hinkley v. Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., 971 So.2d 955, 956 (Fla. 5th DCA 2007); Allstate Ins. Co. v. Regar, 942 So.2d 969, 971 (Fla. 2d DCA 2006).

III. ANALYSIS

A. Section 57.105

Section 57.105(4) provides: “A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” This Court has repeatedly stated that the statute is in derogation of common law and must be strictly construed. See Anchor Towing, Inc. v. Fla. Dep’t of Transp., 10 So.3d 670 (Fla. 3d DCA 2009); Nathan v. Bates, 998 So.2d 1178 (Fla. 3d DCA 2008).

In order to comply with section 57.105, a party must first serve a motion seeking fees, “followed by its filing twenty-one days later.” Nathan, 998 So.2d at 1179. This is commonly known as the safe harbor provision, see Bionetics Corp. v. Kenniasty, 69 So.3d 943 (Fla.2011), and “give[s] a pleader a last clear chance to withdraw a frivolous claim.” Davidson v. Ramirez, 970 So.2d 855, 856 (Fla. 3d DCA 2007). A letter, as this Court has previously stated, does “not meet the mandatory notice requirements of section 57.105(4).” Anchor, 10 So.3d at 672; see also Nathan, 998 So.2d at 1179 (“The statute, however, clearly provides for a motion, not a letter.”).

Here, no record evidence exists to support the trial court’s finding that Advanced complied with the notice requirements of section 57.105(4). Instead, the record shows that Advanced intended the July 21 letter to serve as the “twenty-one (21) day notice” required by section 57.105(4). The July 21 letter, however, does not attach or reference any proposed 57.105 motion for attorney’s fees, and thus cannot meet the requirements of section 57.105. Even more persuasive, the 57.105 Motion’s certificate of service states that it was served by mail on Global on August 12, and that the original “shall not be filed with the court until 21 days.” In short, there is nothing in the record to support Advanced’s argument that it sent Global the 57.105Motion along with the July 21 letter. Rather, the record is clear that Advanced served Global with the 57.105 Motion on August 12, and then filed the 57.105Motion with the trial court four days later, on August 16, in contravention of the mandatory twenty-one-day notice provision of section 57.105(4).

Lastly, in light of the absence of an evidentiary hearing or the presentation of sworn testimony on the issue, we conclude that the trial court was without the discretion to find that Advanced sent the 57.105 Motion with the July 21 letter. Indeed, “unsworn representations by counsel about factual matters do not have any evidentia-ry weight in the absence of a stipulation.” Daughtrey v. Daughtrey, 944 So.2d 1145, 1148 (Fla. 2d DCA 2006); see State v. Bauman, 425 So.2d 82, 35 n. 3 (Fla. 4th DCA 1982) (“We say again that facts are not established for consideration by the trial court or by appellate review when attorneys make representations in their arguments before the trial court. Facts are established by testimony, affidavits and stipulations.”); accord Craig v. Craig, 982 So.2d 724 (Fla. 1st DCA 2008); Lazcar Int’l, Inc. v. Caraballo, 957 So.2d 1191 (Fla. 3d DCA 2007); Polygram Latino U.S. v. Torres, 751 So.2d 90 (Fla. 3d DCA 1999). Because no record evidence establishes that Advanced complied with section 57.105(4), we find that the trial court abused its discretion in awarding fees pursuant to section 57.105.

B. Section 713.29

Alternatively, Advanced argues that the trial court’s order can be sustained as an award made pursuant to section 713.29. This argument is without merit.

Section 713.29 is contained in Part I, Chapter 713, “Construction Liens.” Section 713.29 provides:

Attorney’s fees
In any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions.

(emphasis added).

Advanced sought attorney’s fees under section 713.29 for a lien it filed pursuant to sections 713.58 and 329.51. Section 713.58 concerns possessory liens for labor or services on personal property, and is contained in Part II of Chapter 713, “Miscellaneous Liens.” Section 329.51 is a notice statute that applies to liens claimed on an aircraft. See generally Commercial Jet, Inc. v. U.S. Bank, N.A., 45 So.3d 887 (Fla. 3d DCA 2010). Neither section 713.58 nor section 329.51 provides for attorney’s fees.

Advanced contends that the phrase “under this part” as used in section 713.29 is ambiguous, and can be read to include all types of mechanic’s liens contained in the entirety of Chapter 713, rather than just the construction liens provided for in Part I of Chapter 713. We disagree that the statute is ambiguous. Based on the plain language of the statute, the phrase “under this part” clearly limits section 713.29 to Part I, “Construction Liens.” The statute does not say “under this Chapter,” which would mean that section 713.29 applies to all types of liens contained in Chapter 713, including possessory liens on personal property. Additionally, section 713.001, Florida Statutes (2012), entitled “Short title of part” (referring to Part I) states: “This part may be cited as the ‘Construction Lien Law.’ ” This is a clear statement by the legislature that “under this part” as used in section 713.29 is limited to construction liens. Cf. Mashan Contractors, Inc. v. Bailey, 922 So.2d 330, 330 (Fla. 3d DCA 2006) (interpreting section 713.29 as applying to construction liens; “‘In any action brought to enforce a [construction] lien ... under this part [Part I of chapter 713], the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal....’”). Therefore, the trial court erred in finding entitlement to attorney’s fees pursuant to section 713.29, where Advanced did not file its lien under Part I, Chapter 713.

IV. CONCLUSION

Accordingly, for the reasons stated, we reverse the order on appeal awarding Advanced attorney’s fees in the amount of $30,141.00, and remand with directions to the trial court to vacate the award.

REVERSED AND REMANDED.


author: MORRIS, Judge.

text:
    Terek DIASTI a/k/a Derek Diasti, Appellant, v. DEPARTMENT OF REVENUE, Appellee.
    No. 2D12-5582.
    District Court of Appeal of Florida, Second District.
    Sept. 25, 2013.
    Lorena L. Kiely, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   MORRIS, Judge.

Terek Diasti a/k/a Derek Diasti appeals a nonfinal order that determines both that the trial court had personal jurisdiction over Diasti and that the trial court had subject matter jurisdiction over the cause of action. We have jurisdiction to review a nonfinal order that determines the jurisdiction over the person, Fla. R.App. P. 9.130(a)(3)(C)(i), and to the extent that the order on appeal deals with that issue, we affirm without further comment. However, to the extent that the order on appeal addresses subject matter jurisdiction, it is a nonfinal, nonappealable order. See Grasso v. Grasso, 113 So.3d 855, 856 (Fla. 2d DCA 2012); L.A.D. Prop. Ventures, Inc. v. First Bank, 19 So.3d 1126, 1128 (Fla. 2d DCA 2009); Hitt v. Homes & Land Brokers, Inc., 993 So.2d 1162, 1165 (Fla. 2d DCA 2008). We therefore dismiss that portion of the appeal.

Affirmed in part, dismissed in part.

NORTHCUTT and BLACK, JJ., Concur.


text:
    Michael Leslie LAKE, Appellant, v. Nancy Dora PELOTTE, Appellee.
    No. 2D12-455.
    District Court of Appeal of Florida, Second District.
    Sept. 25, 2013.

      James W. Chandler of Agoston & Chandler, P.A., Naples, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

We have reviewed the record before the trial court and conclude that there was insufficient evidence to support the permanent injunction against repeat violence entered against Michael Leslie Lake. Consequently, we reverse and remand with instructions to vacate the injunction.

DAVIS, C.J., and CASANUEVA and CRENSHAW, JJ., Concur.


text:
    Michael B. SMILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1823.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2013.
    Michael B. Smiley, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

As the trial judge correctly noted, any credit for the time defendant served between the date of the sentence and his transfer to the Florida Department of Corrections is calculated by the Florida Department of Corrections. For this reason, the trial judge’s decision is affirmed without prejudice to the defendant filing an appropriate administrative or other proceeding in the event that such time was not properly calculated by the Department.

Affirmed.


author: EVANDER, J.

text:
    Edward CHEW and Phyllis Chew, Petitioners, v. Earnest ROBERTS, Cynthia Roberts and Department of Children and Families, Respondents.
    No. 5D13-2697.
    District Court of Appeal of Florida, Fifth District.
    Sept. 27, 2013.

      Edward Martin Chew and Phyllis Diaz Chew, Orlando, Petitioners, pro se.
    Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Respondents, Earnest Roberts and Cynthia Roberts.
    Rosemarie Farrell, Appellate Counsel, Children’s Legal Services, Orlando, for Respondent, Department of Children and Families.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, Guardian ad Litem.
   EVANDER, J.

Edward and Phyllis Chew seek certio-rari review of a non-final order consolidating an adoption case brought by Respondents Earnest and Cynthia Roberts with a termination of parental rights case brought by the Department of Children and Families (“DCF”), and scheduling an evidentiary hearing on the Roberts’ amended motion to modify placement. Because Petitioners were denied due process when the trial court considered and ruled upon the Roberts’ motion to consolidate, we grant relief.

Petitioners are the foster parents of B.E., a young boy who has been in their care for the past three years. B.E.’s parents’ parental rights were terminated on November 30, 2012. The final judgment of termination of parental rights committed B.E. to DCF for subsequent adoption. See § 39.811(2), Fla. Stat. (2012). Petitioners -wish to adopt B.E. and on May, 22, 2013, moved to intervene as parties in the dependency case under the authority of I.B. v. Department of Children & Families, 876 So.2d 581 (Fla. 5th DCA 2004). That motion was granted by the trial court on June 13, 2013.

The Roberts are the maternal great uncle and great aunt of B.E. and also wish to adopt him. In February 2013, the Roberts filed a separate action seeking to adopt B.E. The Roberts’ filing would appear to be contrary to the dictates of section 39.812(5), Florida Statutes (2012). That statute provides: “[t]he petition for adoption must be filed in the division of the circuit court which entered the judgment terminating parental rights unless a motion for change of venue is granted....”

On May 1, 2013, the Roberts filed an amended motion to modify placement in both cases, seeking to have B.E. placed in their home. This motion was noticed for a hearing to be held on June 25, 2013. On June 19, 2013, Petitioners filed a motion to strike the Roberts’ amended motion to modify placement, asserting that the Roberts were not “parties” in the dependency case and, therefore, lacked standing to file a motion to modify placement. On June 21, 2013, the Roberts filed a motion to consolidate the two above-referenced cases, but failed to include Petitioners in the certificate of service.

At the onset of the June 25, 2003 hearing, the Roberts requested the trial court grant their motion to consolidate. Petitioners objected to the trial court considering the motion to consolidate because they had not been served with a copy of the motion (or a notice of hearing for said motion). The trial court determined that before it could consider the amended motion to modify placement, it would be necessary to consolidate the two cases. The court then overruled Petitioners’ lack of notice objection, granted the motion to consolidate, and scheduled the amended motion to modify placement for an eviden-tiary hearing to be held at a later date.

Certiorari review of a non-final order is limited to errors that constitute a departure from the essential requirements of law, causing irreparable injury, for which there is no adequate remedy on direct appeal. In re A.W.P., Jr., 10 So.3d 134, 135 (Fla. 2d -DCA 2009). Here, the trial court departed from the essential requirements of law when it proceeded, over objection, to consider and rule upon the Roberts’ motion to consolidate despite the lack of notice to Petitioners. Id. at 136 (“Because the father was denied due process, we grant certiorari relief and quash the Order Approving Educational Plans.”); see Dep’t of Children & Families v. W.H., 109 So.3d 1269, 1270 (Fla. 1st DCA 2013) (“The lack of notice and the lack of an evidentiary hearing on reunification violated the Department’s right to due process”).

In the instant case, the trial court’s granting of the Roberts’ motion to consolidate had potentially significant legal implications beyond merely having two separate actions heard together. The trial court’s decision on the motion to consolidate implicitly granted the Roberts status as “parties” rather than as “participants” in the dependency case — a legal status to which they may well not be entitled. See, e.g., In re J.P., 12 So.3d 258 (Fla. 2d DCA 2009); In re K.M., 978 So.2d 211 (Fla. 2d DCA 2008).

A petition for writ of certiorari is appropriate to review an order granting a participant’s motion to intervene as a party in a dependency proceeding. J.P., 12 So.3d at 254. The jurisdictional requirements for certiorari review are met because the erroneous granting of a participant’s motion to intervene as a party “may reasonably cause material injury of an irreparable nature.” Id. Because neither the Petitioners nor the Roberts were afforded the opportunity to be fully heard on this issue below, we decline to determine whether the Roberts may be granted “party” status in the dependency case below. For the same reason, we decline to determine the legal sufficiency of the Roberts’ Petition for Adoption by Relatives filed in their separate action.

PETITION FOR WRIT OF CERTIO-RARI GRANTED; ORDER GRANTING MOTION TO CONSOLIDATE AND SCHEDULING EVIDENTIARY HEARING ON AMENDED MOTION TO MODIFY PLACEMENT QUASHED.

LAWSON and COHEN, JJ„ concur.

      . Powers of disposition; order of disposition:
      (2) If the child is in the custody of the department and the court finds that the grounds for termination of parental rights have been established by clear and convincing evidence, the court shall, by order, ■place the child in the custody of the department for the purpose of adoption.

      . Section 39.01(51), Florida Statutes (2012), defines a "party” as:

        [T]he parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad litem program when the program has been appointed, and the child....

        See also Fla. R. Juv. P. 8.210(a).

      . Section 39.01(50), Florida Statutes (2012), provides:
      “Participant,” for purposes of a shelter proceeding, dependency proceeding, or termination of parental rights proceeding, means any person who is not a party but who should receive notice of hearings involving the child, including the actual custodian of the child, the foster parents or the legal custodian of the child, identified prospective parents, and any other person whose participation may be in the best interest of the child. A community-based agency under contract with the department to provide protective services may be designated as a participant at the discretion of the court. Participants may be granted leave by the court to be heard without the necessity of filing a motion to intervene.

        See also Fla. R. Juv. P. 8.210(b).


author: FERNANDEZ, J.

text:
    Jonathan MILLEN, II, Appellant, v. Elizabeth MILLEN, Appellee.
    No. 3D12-2871.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 2013.

      Karen J. Haas, Miami, for appellant.
    Lisa A. Baird, Miami, for appellee.
    Before LAGOA and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   FERNANDEZ, J.

Jonathan Millen, II appeals the trial court’s final judgment that dissolved his marriage to Elizabeth Millen. Because the husband waived any objection to the guardian ad litem’s questioning of witnesses at trial, we affirm.

The Millens married on September 11, 2003, in London, England. They later returned to the United States and resided in Florida. By June of 2010, the marriage had begun to unravel. The husband filed for divorce on September 9, 2010.

The dissolution of marriage trial commenced July 16, 2012. The guardian ad litem, a psychologist appointed to represent the parties’ minor child, requested the trial court’s permission to ask witnesses questions at trial. The trial court asked the parties whether they had any objection to the guardian’s questioning of witnesses. Neither party objected.

Throughout the four-day trial, the guardian ad litem questioned the parties and six witnesses. The guardian ad li-tem’s questions covered substantially similar subject matter that the wife’s questions covered. The questions also elicited comparable testimony to that which the wife’s questions elicited. The trial court subsequently entered its final judgment, after which the husband appealed.

The husband contends for the first time on appeal that the guardian’s participation in the trial requires reversal. We disagree. We first note, “[i]t is a mistake to hold a pro se litigant to a lesser standard than a reasonably competent attorney.” Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992). Secondly, the guardian ad litem serves an important fact-finding role in cases that involve minor children. Section 61.401, Florida Statutes (2010), makes it abundantly clear that the guardian ad litem is to “act as next friend of the child, investigator or evaluator, not as attorney or advocate.” To that end, “[t]he duties and rights of nonattorney guardians do not include the right to practice law.” § 61.403(7), Fla. Stat. (2010). Additionally, any participation by the guardian ad litem in trial proceedings must be “through counsel.” § 61.403(6), Fla. Stat. (2010). Examination of witnesses constitutes the practice of law and is a function reserved for licensed attorneys. See e.g. State v. Foster, 674 So.2d 747, 749 (Fla. 1st DCA 1996) (concluding that “the taking of a deposition constitutes the practice of law”). The trial court thus erred when it allowed the guardian ad litem to question the witnesses. See § 61.401, Fla. Stat. (2010). See also Perez v. Perez, 769 So.2d 389 (Fla. 3d DCA 1999).

However, in the absence of an objection below, this Court will not consider issues for the first time on appeal except in cases of fundamental error. Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). Fundamental error is error that goes to the foundation of the case or goes to the merits of the cause of action. Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970); Marks v. Delcastillo, 386 So.2d 1259, 1267 (Fla. 3d DCA 1980). As the Florida Supreme Court noted in Ray v. State, 403 So.2d 956 (Fla.1981):

The failure to object is a strong indication that, at the time and under the circumstances, the [party] did not regard the alleged fundamental error as harmful or prejudicial. Tt is well-established law that where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error ... will not warrant reversal.’

Id. at 960. While the trial court’s allowance of the guardian ad litem to question witnesses at trial was contrary to sections 61.401 and 61.403, reversal is not warranted because the error was not fundamental to the case. We cannot say with any certainty that the guardian’s examination of witnesses affected the outcome of the trial or even had a substantial effect. See Marks, 386 So.2d at 1267. Her questions targeted the same subject matter as those asked by the wife and elicited markedly similar responses. Additionally, the trial court offered the parties the opportunity to object to the guardian’s participation in the trial, and neither party accepted the trial court’s invitation to object. The guardian’s participation in this trial plainly did not go to the foundation of the case and, thus, cannot constitute fundamental error.

Accordingly, the husband’s failure to object to the guardian ad litem’s questioning of witnesses at trial constitutes a waiver of this issue. For these reasons, we affirm the final judgment of dissolution of marriage.

Affirmed.

LAGOA, J., concurs.

Schwartz, Senior Judge, agrees to the conclusion.


text:
    Charles A. TOVEY, Jr., Appellant, v. BREVARD COUNTY, Florida, etc., Appellee.
    No. 5D13-1093.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2013.

      Charles A. Tovey, Jr., Melbourne, pro se.
    L. Rebecca Behl-Hill, Assistant County Attorney, Office of the County Attorney, Viera, for Appellee.
   PER CURIAM.

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

PALMER, EVANDER, and BERGER, JJ., concur.


text:
    KCF SITE DEVELOPMENT, LLC, et al., Appellant, v. PNC BANK, NATIONAL ASSOCIATION, et al., Appellee.
    No. 5D12-2028.
    District Court of Appeal of Florida, Fifth District.
    Oct. 1, 2013.
    Michael R. Riemenschneider and Jonathan S. Seminer, of O’Brien, Riemen-schneider & Wattwood, P.A., Melbourne, for Appellant.
    Dean A. Morande, of Carlton Fields, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See J.G. Plumbing Serv., Inc. v. Coastal Mortg. Co., 329 So.2d 393 (Fla. 2d DCA 1976).

PALMER, EVANDER and BERGER, ■ JJ., concur.


author: WARNER, J.

text:
    S.S., a child and C.T., a child, Appellants, v. STATE of Florida, Appellee.
    Nos. 4D12-506, 4D12-507.
    District Court of Appeal of Florida, Fourth District.
    Oct. 2, 2013.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellants.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

S.S. and C.T. appeal orders of restitution entered after their pleas to burglary and criminal mischief. The trial court ordered restitution for items not contained within the arrest affidavits or in the facts admitted by the juveniles. The order contained no findings as to the juveniles’ respective abilities to pay. We reverse the order of restitution because the trial court included property not within the arrest affidavit and because the order contained no findings regarding ability to pay.

S.S. and C.T., who were both seventeen, were arrested on charges of burglary, criminal mischief, and grand theft. The arrest affidavit for S.S. indicates that the property taken was: “Xbox game console with controllers, Fujifilm digital camera, (17) Video games” with “Approximate Total Value: $520.00.” It also listed interior damage to the residence of $15,000. The arrest affidavit for C.T. indicates that the property taken was: “Wenger Watch, Surf Board, Skate Board, Picture Frame, Decorative glass plate[,] Band Aids, Change/Money” with “Approximate Total Value: $365.82,” as well as interior damage to the residence of $15,000.

S.S.entered a no contest plea to the burglary and criminal mischief counts, while the state nolle prossed the grand theft count as part of the plea agreement. The plea agreement stated that S.S. “agrees to pay restitution due for all counts, in an amount to be determined[.]” C.T. likewise entered a no contest plea with the same terms of the agreement; C.T.’s plea agreement indicated that she “agrees to pay restitution in an amount to be determined[.]” At S.S.’s change of plea hearing, the prosecutor pointed out “for the record that there is restitution for Count 3 [grand theft] as well,” and S.S. agreed to pay restitution at that time. At C.T.’s hearing, the prosecutor again pointed out that although the state was “dropping Count 3, ... everybody agrees that there were items stolen from the house and there will be restitution for the stolen items ... and everybody understands that we’re going to have a restitution hearing, that restitution is going to be in, probably to exceed $20,000.” C.T. indicated that she understood. Both S.S. and C.T. were sentenced to juvenile probation; adjudication of delinquency was withheld.

At the disposition hearing, after listening to S.S.’s taped statement, the court inquired of her as to whether she understood how long it would take to pay back $20,000 if the state proved that amount. S.S.stated that she did and was trying to get a job at a sandwich shop. The court also asked C.T. whether she understood that she could have a civil judgment against her, to which C.T. responded that she did. An insurance company claims representative testified that the insurance company had paid out in excess of $49,000 for damages to the residence and for lost personal property, although the personal property payments to the victim were based on replacement cost, not the value of the item at the date of the loss. The insurance company paid the victim $9,619.29 for the damage to the interior of the home. It paid $2,532.54 directly to a company for home repairs and $200 for loss of silver coins. It also paid the victim $2,500 for luxury items taken.

The victim also testified at the restitution hearing. He claimed that his Rolex watch had been taken. Eight years earlier, he paid $8,041.85 for the watch; however, this was also the appraisal value. He also stated that a diamond bracelet had been taken. He did not know its value, but on the insurance adjustor’s summary the bracelet was listed at $6,995. Although the trial court did not admit an appraisal on these items, it did admit the summary prepared by the insurance company containing these same values.

Counsel objected to restitution for the Rolex watch and the bracelet, because they were not contained within the charging documents. Over this objection, the trial court granted restitution to the victim of $12,747.04 which consisted of the appraised value of the Rolex watch and diamond bracelet less the $2,500 payment from his insurance company for these items plus his deductible on the property damage of $1,000. It granted restitution to the insurance company in the amount of $14,851.83, rejecting $34,000 of the company’s payment because the company had not presented evidence of the fair market value of the property taken, only its replacement value. It entered an order finding both juveniles jointly and severally liable for the total of $27,598. Both juveniles appealed this order.

After filing the appeal, both juveniles moved to correct a disposition error pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2).- They argued that the trial court erred in failing to consider the ability to pay restitution before determining the amount of the restitution order. The trial court denied the motion to vacate the restitution orders on this ground, although it did grant the motions to reduce restitution by minor amounts unrelated to the issues in this appeal.

The juveniles contend that the court erred in ordering restitution for the Rolex watch and diamond bracelet which the victim claimed was taken, because these items were not within the arrest affidavit, the factual basis for the plea, nor in any discovery that the juveniles received prior to the plea. “[W]hen a defendant agrees to pay restitution as part of a plea agreement, the defendant’s agreement is limited to restitution arising out of the offense charged by the State as reflected in the information and/or by the factual basis for the plea....” Malarkey v. State, 975 So.2d 538, 540-41 (Fla. 2d DCA 2008). We recently agreed with Malarkey in T.J.J. v. State, 121 So.3d 635 (Fla. 4th DCA 2013), where under similar circumstances to those present in this case we held that, in order for the court to require restitution, either the arrest affidavit or the facts admitted by the juvenile at the time of the plea must include the items for which the court orders restitution.

In this case, the arrest affidavits did not list either the Rolex or the diamond bracelet, and they were not mentioned at the change of plea hearings. In fact, at those hearings, the state represented that the victim’s damages were the amount of his deductible, or $1,000. The first mention of the two items was an insurance summary provided to the juveniles’ attorney after the entry of their pleas. Consistent with T.J.J. and Malarkey, we reverse the restitution order with respect to these two items. For the victim, this will reduce the amount he is to receive in restitution to $1,000, or his deductible. For the insurance company, this will reduce its award by the $2,500 which it paid to the victim for these two items.

The juveniles also argue that the court did not comply with section 985.437(2), Florida Statutes, when it failed to make any findings that the juveniles had the ability to pay the restitution amount. The state argues that the issue was not preserved and also that it was not error. We conclude that the issue was preserved when the juveniles filed them Rule 8.135(b)(2) motions, and we find that the trial court erred in failing to make findings regarding the statutory requirement.

When the juveniles entered their pleas to the crimes, they affirmatively agreed on the record to make restitution. They also knew the amount could be as much as $20,000. Both children were in school and did not have jobs. At the disposition hearing, the trial court ordered both children to obtain at least part-time jobs and required them to make at least three job applications per week until they found employment. Other than to inquire about their school status, the court made no further inquiry, nor did it inquire of the situation of the children’s parents. No other evidence of the respective circumstances of the juveniles was presented at the restitution hearing. Neither the order of disposition nor the restitution order provided any-finding that the children and their parents could reasonably be expected to repay the amounts ordered.

Section 985.437(2), Florida Statutes, provides that in the context of juvenile delinquency proceedings, “When restitution is ordered by the court, the amount of restitution may not exceed an amount the child and the parent or guardian could reasonably be expected to pay or make.” Although a child need not have a present ability to pay restitution, the court must make a finding as to the juvenile’s expected earning capacity prior to setting an amount for restitution. See M.W.G. v. State, 945 So.2d 597, 601 (Fla. 2d DCA 2006); A.J. v. State, 677 So.2d 935, 938 (Fla. 4th DCA 1996). In the absence of such findings, the appellate court must reverse the restitution order and remand for a hearing to determine the child’s ability to pay. See K.T.M. v. State, 969 So.2d 542, 543 (Fla. 2d DCA 2007); see also C.Y. v. State, 989 So.2d 1235, 1237 (Fla. 4th DCA 2008) (noting the absence of findings of ability to pay in a juvenile restitution order). These findings are absent from the court’s orders in this case. In accordance with the foregoing authorities, we reverse for a hearing in which both juveniles’ ability to pay is determined.

The juveniles did not raise the non-compliance with section 985.437(2) until they filed post-disposition motions pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), the juvenile rule equivalent to Florida Rule of Criminal Procedure 3.800(b)(2). The state contends that they did not preserve the issue, as the rule does not apply to insufficiency of proof. In Jackson v. State, 983 So.2d 562 (Fla.2008), the court explained that the rule was intended to permit correction of errors in the order itself:

The rule was intended to permit preservation of errors in orders entered as a result of the sentencing process — in other words, errors in cost and restitution orders, probation or community control orders, or in the sentence itself. It was not intended to abrogate the requirement for contemporaneous objections.

Id. at 566. In this case, however, the error is in the order itself, entered as a result of the sentencing process. The order did not contain the requisite findings of ability to pay in determining the amount of restitution. Thus, the juveniles could move to correct it by filing a Rule 8.135(b)(2) motion, preserving the issue for appeal.

Although the juveniles pled to the charges and agreed to pay some amount of restitution, the court has a duty to assure that the amount is within the child’s ability to pay. The court did not make any findings, on the issue. As we noted in A.B. v. State, 910 So.2d 415, 417 (Fla. 4th DCA 2005), the trial court must determine the ability to pay prior to setting restitution.

For the foregoing reasons, we reverse the orders of restitution to determine the amount after making findings as to each juvenile’s ability to pay. We also direct that any restitution order eliminate restitution for the Rolex watch and diamond bracelet in accordance with this opinion.

Reversed and remanded for further proceedings.

CIKLIN and CONNER, JJ„ concur.

      . Because more persons than just the two juveniles entered the victim’s residence on more than one occasion, it is entirely plausible that the juveniles had no knowledge at all of any theft of the Rolex or bracelet, assuming that they were taken during the time when dle juveniles were in die home. Thus, without knowing about these items, they would not have understood that their agreement regarding restitution would have included them.

      . The state erroneously suggests in its brief that the order of disposition contained a finding that the child and her parents could reasonably pay the restitution amount. That section of the pre-printed form was not checked or filled in. Instead, the trial court checked the subsequent form which scheduled a hearing on restitution. The restitution order itself did not contain a finding that the child could reasonably pay the amount.

      . The previous version of this statute was located in section 985.231.

      .That statute also refers to the parents’ ability to pay. Because the trial court has not imposed any restitution requirements on the parents, such as cosigning a note as set forth in section 985.437(2), the trial court need not consider the parents’ ability. If, however, the trial court would impose any requirement on the parents, the court would have to make findings as to their ability to pay.


author: SHEPHERD, C.J.

text:
    M.B., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 3D12-2204.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 2013.
    No appearance for appellant.
    Richard Tritschler, General Counsel, Brian F. McGrail, Assistant General Counsel, and Richard C. Beliak, Agency Counsel (Tallahassee), and Tornea Sippio-Smith, Agency Counsel, for appellee.
    Before SHEPHERD, C.J., and LAGOA and EMAS, JJ.
   ON ORDER TO SHOW CAUSE

SHEPHERD, C.J.

On March 20, 2013, the Court sua sponte issued an order in this case to Richard C. Beliak, counsel of record for the appellee, Agency for Persons with Disabilities, and the Agency itself, to show cause why it should not be sanctioned for maintaining a frivolous defense to M.B.’s appeal in this case. See Fla. R.App. P. 9.410(a).

Richard Tritschler, the General Counsel for the Agency, appeared at the hearing held on this matter, conceded that the Agency’s maintenance of the defense to M.B.’s appeal was frivolous, and represented he has instituted procedures to prevent conduct of this type by the Agency and retained counsel from occurring again. Accordingly, the court discharges the order to show cause.

SO ORDERED.

      . Mr. Tritschler was not General Counsel for the Agency at the time appellate counsel filed its answer brief in this case.


author: EMAS, J.

text:
    MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, etc., Petitioner, v. Guy LEWIS, Esquire, et al., Respondents.
    No. 3D13-2123.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 2013.

      Bernardo Roman, III, Tribal Attorney for Miccosukee Tribe and Yesenia F. Rey, counsel for petitioner.
    Carlton Fields, and Nancy C. Ciampa, Jack R. Reiter and Paul A. Calli, Miami, for respondents.
    Before SHEPHERD, C.J., and EMAS and FERNANDEZ, JJ.
   EMAS, J.

Petitioner Miccosukee Tribe of Indians of Florida filed a petition for writ of certio-rari, seeking review of a non-final discovery order rendered on July 13, 2013. Respondents Lewis Tein, P.L., Michael R. Tein and Guy A. Lewis filed a motion to dismiss the petition for lack of jurisdiction. For the reasons that follow, we dismiss the petition for lack of jurisdiction.

FACTS

The relevant facts are not in dispute:

1. On July 15, 2013, the trial court rendered an Order Clarifying Fact Discovery Deadline.
2. On July 23, 2013, Petitioner filed a motion for reconsideration of the trial Court’s clarification order, and the court denied the motion for reconsideration on July 25, 2013.
3. On August 19, 2013, Petitioner filed a Petition for Writ of Certiorari, seeking review of the clarification order rendered July 15, 2013.

ANALYSIS

Pursuant to Florida Rule of Appellate Procedure 9.100(c)(1), a petition for writ of certiorari “shall be filed within 30 days of rendition of the order to be reviewed.” This time limit is jurisdictional. § 59.081(2), Fla. Stat. (2013) (providing that failure to timely invoke the jurisdiction of a reviewing court “shall divest such court of jurisdiction to review such cause”); Wibbens v. State, Dep’t of Highway Safety & Motor Vehicles, 956 So.2d 503 (Fla. 1st DCA 2007); Hofer v. Gil De Rubio, 409 So.2d 527 (Fla. 5th DCA 1982).

Florida Rule of Appellate Procedure 9.020(f) provides that “an order is rendered when a signed, written order is filed with the clerk of the lower tribunal.”

In their motion to dismiss, Respondents argue the motion for reconsideration (filed July 23, 2013) was not an authorized motion because it sought reconsideration of a non-final order. See Canfield v. Cantele, 837 So.2d 371, 376 n. 3 (Fla.2002); Bak v. Bak, 110 So.3d 523 (Fla. 4th DCA 2013). As a result, the motion for reconsideration neither suspended rendition of the July 15th order nor tolled the thirty-day time period for filing the instant petition. Canfield, 837 So.2d at 376; LaCarrere v. Reilly, 987 So.2d 816 (Fla. 3d DCA 2008).

Petitioner concedes that the motion for reconsideration was not an authorized motion and did not suspend rendition or toll the time for filing the petition, but contends, nevertheless, that the petition was filed in a timely manner. Petitioner argues it was entitled to an additional five days to file the petition because the July 15th order was e-mailed to Petitioner’s counsel. For this proposition, Petitioner relies upon Florida Rule of Judicial Administration 2.514(b), which provides:

(b) Additional Time after Service by Mail or E-Mail. When a party may or must act within a specified time after service and service is made by mail or email, 5 days are added after the period that would otherwise expire under subdivision (a).

Petitioner misconstrues this rule. The additional five-day time period applies when another rule requires a party to act within a specified time after service. Rule 2.514(b) affords no additional time when a rule (in this case rule 9.100(c)(1)) requires a party to act within a specified time after rendition of an order. See e.g., Bell v. U.S.B. Acquisition Co., 734 So.2d 403 (Fla.1999); Turner v. State, 557 So.2d 939 (Fla. 5th DCA 1990); Bouchard v. State, Dep’t of Bus. Regulation, 448 So.2d 1126 (Fla. 2d DCA 1984).

The petition was required to be filed within thirty days of the order rendered on July 15, 2013. Because the petition was filed on August 19, 2013, thirty-five days after rendition, the petition is untimely and this court is therefore without jurisdiction.

Petition dismissed.


text:
    Yulian PAYARES, Appellant, v. FLORIDA REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D13-2077.
    District Court of Appeal of Florida, Third District.
    Oct. 2, 2013.
    Yulian Payares, in proper person. Louis A. Gutierrez, Senior Attorney, Florida Reemployment Assistance Appeals Commission (Tallahassee), for appellees.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   ON MOTION TO DISMISS

PER CURIAM.

The appellees’ motion to dismiss is granted because the Reemployment Assistance Appeals Commission vacated the decision by the appeals referee and remanded the case for a rehearing. There is therefore no appealable order. See Fla. R.App. P. 9.030(b)(1)(B).


text:
    Karl Mason JOHNSTON, Sr., Former Husband, Appellant, v. Susan Lynn JOHNSTON, Former Wife, Appellee.
    No. 1D13-3427.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2013.
    David A. Garfinkel, Gray-Robinson, Jacksonville, for Appellant.
    Nina R. Price, Price & Johnson, P.A., Jacksonville, for Appellee (no appearance).
   PER CURIAM.

DISMISSED. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

ROBERTS, SWANSON, and MAKAR, JJ., concur.


text:
    Michael Anthony HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3350.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2013.
    Bryan D. McLeod, Office of Criminal Conflict and Civil Regional Counsel, Milton; Jeffrey E. Lewis, General Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee (no appearance), for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R. Jud. Admin. 2.514(a)(1)(B); Truett v. State, 71 So.3d 933 (Fla. 1st DCA 2011).

ROBERTS, SWANSON, and MAKAR, JJ., concur.


text:
    Julius J. WELLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2970.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.

      Julius Wells, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the April 16, 2018, Order Denying Defendant’s Motions for Post-Conviction Relief, in Duval County Circuit Court case number 16-2007-CF-04420-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

LEWIS, C.J., MARSTILLER and OSTERHAUS, JJ., concur.


text:
    PROFORMANCE PLASTERING OF PENSACOLA, INC., Appellant, v. The WINDMERE OWNERS' ASSOCIATION, INC., Citizen Property Insurance Corporation; McCrory Building Co., Inc., Delta/United Specialties, Inc., All-South Subcontractors, Inc., Bradley Masonry, Inc., et al., Appellees.
    No. 1D13-3447.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.
    Carol M. Rooney and Jared M. Krukar, of Butler Pappas Weihmuller Katz Craig LLP, Tampa; Ryan M. Garrett, of Butler Pappas Weihmuller Katz Craig LLP, Tallahassee, for Appellant.
    Edward P. Fleming, Matthew A. Bush, and Raymond Oldach, Jr., of McDonald Fleming Moorhead, Pensacola, for Appel-lees.
   PER CURIAM.

Having considered appellant’s arguments on jurisdiction, we dismiss this appeal as premature because there is a related claim pending below. Raymond James Assocs., Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003) (dismissing appeal where money judgment included reservation of jurisdiction to determine additional damages). Specifically, the order on appeal expressly reserved jurisdiction to enter a supplemental judgment on a claim for indemnity. The pending indemnity claim involved the same construction services as the claims resolved in the order on appeal. Although damages under the pending claim may be limited in this case, in a claim for indemnification, attorneys fees and costs are elements of damages that are not collateral to the main claim for indemnification. See American & Foreign Ins. Co. v. Avis Rent-A-Car System, Inc., 401 So.2d 855, 857 (Fla. 1st DCA 1981) (“As a general rule, an indemnitee is entitled to recover, as part of his damages, reasonable attorney’s fees and reasonable and proper legal costs and expenses, ... ”); see also Continental Cas. Co. v. City of South Daytona, 807 So.2d 91, 93 (Fla. 5th DCA 2002) (distinguishing between fees incurred in defense of an indemnified claim and fees incurred in action for indemnity). The order on appeal is not final because it does not bring an end to the judicial labor required of the cause. DISMISSED.

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Charles DAWSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2501.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.
   PER CURIAM.

The second amended petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the February 1, 2013, Order Designating Defendant As Sexual Predator, in Bay County Circuit Court case number 2008-569CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

LEWIS, C.J., MARSTILLER and OSTERHAUS, JJ., concur.


text:
    David SANDERS, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D13-785.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.
    Matt Shirk, Public Defender, and Brian Morrisey, Special Assistant Public Defender, Yulee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Barbara Debelius, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

David Sanders, Appellant, appeals from an order denying his petition for a writ of mandamus directing the Department of Corrections to structure sentences he received in Duval and Nassau Counties as concurrent with sentences he received in Osceola County, as provided in sentencing orders issued by courts in Duval and Nassau Counties. The Department has a ministerial duty to implement sentencing orders as written, and it lacks the authority to adjudicate the legality of a court order. Canete v. Fla. Dep’t of Corrs., 967 So.2d 412, 416-17 (Fla. 1st DCA 2007); Pearson v. Moore, 767 So.2d 1235, 1238 (Fla. 1st DCA 2000). The orders from Duval and Nassau Counties unambiguously require the concurrent sentencing Appellant seeks; do not contradict the legal effect of the Osceola County order; and, according to the undisputed facts presented to the circuit court, have not been altered by appeal or collateral attack. Therefore, we reverse the order denying Appellant’s petition for writ of mandamus and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    BOARD OF TRUSTEES OF THE JACKSONVILLE POLICE & FIRE FUND, Appellant, v. Joseph KICKLIGHTER, Appellee.
    No. 1D12-0300.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.
    Robert D. Klausner, Stuart A. Kaufman and Shaun H. Malvin of Klausner, Kaufman, Jensen & Levinson, for Appellant.
    T.A. “Tad” Delegal, III of the Delegal Law Offices, P.A., Jacksonville; and D. Gray Thomas of the Law Offices of D. Gray Thomas, Jacksonville, for Appellee.
   OPINION ON MOTION FOR REVIEW

PER CURIAM.

On remand from this court’s decision in Board, of Trustees v. Kicklighter, 106 So.3d 8 (Fla. 1st DCA 2013), after hearing arguments of counsel, the trial court awarded Joseph Kicklighter, appellee, appellate attorney’s fees in the total amount of $52,991.10 allocated between the two law firms representing appellee on appeal. In awarding fees to Delegal Law Offices, P.A., the trial court used a fee multiplier of 1.5, ruling as follows:

This Court previously determined that a fee multiplier of 1.5 is appropriate for attorneys fees awarded to Delegal Law Offices, P.A. Pursuant to the case of Stack v. Lewis, 641 So.2d 969 (Fla. 1st DCA 1994), when a trial court makes the determination as to the appropriateness of a fee multiplier, that same determination applies to the appellate fees expended by the same counsel in litigating the case on appeal. Accordingly, the Court finds that a fee multiplier of 1.5 is appropriate for the fees awarded to Dele-gal Law Offices, P.A.

Pursuant to Rule 9.400(c), Florida Rules of Appellate Procedure, the Board of Trustees of the Jacksonville Police & Fire Pension Fund, appellant, seeks review of the trial court’s order setting the amount of the fee arguing that, although the parties stipulated to the loadstar attorney’s fees for appellee’s attorneys, the trial court erred in applying a 1.5 contingency multiplier to appellate fees awarded Delegal. Appellant asserts that the trial court’s reliance on Stack is misplaced because here, unlike in Stack, special appellate counsel was retained and there is not a “substantial uncertainty of collecting.” Stack, 641 So.2d at 970.

We find Stack controlling. Although the trial counsel associated an appellate specialist, the record reflects that trial counsel provided approximately 75% of the legal services performed on appeal. Further, the multiplier was not applied to the fees awarded the appellate specialist. We review the order under an abuse of discretion standard. Jones & Granger v. Johnson, 788 So.2d 381, 382 (Fla. 1st DCA 2001). Finding no abuse of discretion, we affirm.

Appellant also asserts that it is challenging the appellee’s entitlement to fees based upon the Second District’s recent decision in Board of Trustees of City Pension Fund for Firefighters & Police Officers in the City of Tampa v. Parker, 113 So.3d 64 (Fla. 2d DCA 2013). In Parker, the court held that the prevailing party attorney’s fees provision in section 175.061(5) and 185.05(5), Florida Statutes, did not apply to a local government pension fund established pursuant to special law. Appellant’s argument ignores the fact that entitlement was decided here in the direct appeal and that appellant failed to make any argument, before the trial court or this court, that sections 175.061 and 185.05(c) were not applicable in this case. Thus, appellant has failed to preserve the Parker issue by failing to make this argument before the trial court and has waived the argument by failing to make it on appeal. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985)); see also David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 280 (Fla. 2d DCA 2008) (holding that any potential issue pertaining to the final judgment for attorney’s fees and costs in favor was waived or abandoned by the appellant’s failure to make any argument on appeal regarding the issue)).

In fact, appellant actually acquiesced to the entitlement of attorney’s fees pursuant to section 175.061. In particular, appellant requested this court, in the concluding paragraph of its initial brief on the direct appeal, to reverse and reward appellant attorney’s fees and costs pursuant to section 175.061(5). Additionally, in its reply brief, appellant also stated that it “does not dispute that Chapter 175 allows for the award of a reasonable fee.” As such, appellant affirmatively acquiesced to the entitlement of attorney’s fees pursuant to section 175.061.

Based upon the foregoing, we AFFIRM.

WOLF, VAN NORTWICK, and CLARK, JJ., concur.

      . Appellant's first attempt to even assert the entitlement issue was not until it filed its motion for rehearing in the direct appeal of this case. This, however, was already too late. See Fla. R. App. P. 9.330(a) ("A motion for rehearing ... shall not present issues not previously raised in the proceeding”.)


text:
    Eddison ARNOLD, Appellant, v. Coralis SANTANA, Appellee.
    No. 1D13-1112.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2013.

      Seth Schwartz and Shachar Spiegel of the Schwartz Law Group, P.A., Jacksonville, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant, Eddison Arnold, appeals the Final Judgment of Injunction For Protection Against Domestic Violence With Minor Child(ren) entered in favor of Appel-lee, Coralis Santana, and raises two issues, only one of which merits discussion. Appellant argues that the trial court erred by entering the injunction because Appellee failed to demonstrate that she reasonably feared an imminent danger of domestic violence. We agree and, therefore, reverse the Final Judgment of Injunction.

Appellee filed a petition for injunction against Appellant, her husband, alleging that Appellant was “willfully, maliciously, and repeatedly harassing and stalking [her] by engaging in a series of acts that serve[d] no legitimate purpose and cause[d] [her] substantial emotional distress”; on January 23, 2013, Appellant “texted [her] repeatedly to let [her] know that he [was] watching [her]”; in September of 2012, “[she] locked [her]self in the bathroom when [Appellant] pushed the door open, breaking everything”; and she feared for her life. During the hearing on the petition, Appellee testified that when she locked herself into the bathroom during an argument she had with Appellant in September of 2012, he kicked the door down and thereby damaged the door frame. Following this incident, the parties attended counseling and “everything was okay”; in fact, “[t]hey made [her]” recall this incident when she was filing the petition for injunction. The parties separated in November of 2012. Appellee further testified that on January 23, 2013, Appellant sent her text messages in which he warned her to change her passwords because he was tracking everything she was doing, and informed her that he was also following her. When the trial court inquired as to what had happened to make her feel she needed protection, she responded, “[h]is anger.” Appellee further testified that three or four years ago, while they were dating, Appellant hit her. Lastly, she testified that the marriage involved “a lot of’ verbal abuse, but no physical abuse. The trial court entered a Final Judgment of Injunction, effective until June 7, 2013. This appeal followed.

A trial court has broad discretion to enter an injunction against domestic violence, but its finding that the petitioner reasonably believes he or she is in imminent danger must be supported by competent, substantial evidence. See Oettmeier v. Oettmeier, 960 So.2d 902, 905 (Fla. 2d DCA 2007) (holding that no competent, substantial evidence supported the trial court’s finding that the appellee reasonably feared imminent violence where she claimed that the appellant left angry messages, broke into her home, about nine months earlier spat in her face and pushed her away, was a heavy and angry drinker, beat on the doors and walls of the home, smashed a trash can, and threatened to make her life miserable “until the end”). The party seeking an injunction must demonstrate “an objectively reasonable fear that he or she is in ‘imminent danger of becoming a victim of any act of domestic violence.’ ” Randolph v. Rich, 58 So.3d 290, 291 (Fla. 1st DCA 2011) (quoting section 741.30(1)(a), Florida Statutes, and finding that the appellee failed to show an objectively reasonable fear of imminent violence where the appellant tried to snatch papers out of her hands; he “repeatedly” harassed her, but the appellee cited only one e-mail, which was nonthreatening, and one voicemail, in which the appellant threatened to “devote all of his time to getting [her]”; he had “physically gotten [her] in the past”; and a domestic violence incident had occurred years earlier). “An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance.” Young v. Young, 96 So.3d 478, 479 (Fla. 1st DCA 2012); see also Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005) (noting that “the statutory definition of ‘domestic violence’ requires some showing of violence or a threat of violence and that general harassment does not suffice”). An isolated incident of domestic violence that occurred years before the filing of the petition for injunction is insufficient. See Randolph, 58 So.3d at 292 n. 2; Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010).

In the present case, Appellee did not allege that Appellant threatened violence in the January 23, 2013 text messages, or that he physically hurt her during the September 2012 incident. The only allegation of violence involved an isolated incident that occurred years before Appellee filed her petition. Indeed, Appel-lee did not allege that Appellant threatened violence toward her. Thus, competent, substantial evidence does not support a finding that Appellee’s fear of imminent domestic violence was objectively reasonable. See Young, 96 So.3d at 479; Randolph, 58 So.3d at 291-92; Oettmeier, 960 So.2d at 903, 905; Smith, 901 So.2d at 373.

Accordingly, we REVERSE the final judgment and REMAND with directions that the trial court vacate the injunction.

LEWIS, C.J., MARSTILLER and OSTERHAUS, JJ., CONCUR.