author: WELLS, Judge. SHEPHERD, C.J.,

text:
    ROSS DRESS FOR LESS VIRGINIA, INC., and U.S. Security Associates, Inc., Petitioners, v. Rodolfo CASTRO, et al., Respondents.
    No. 3D13-1425.
    District Court of Appeal of Florida, Third District.
    March 5, 2014.

      Cole, Scott & Kissane and Scott A. Cole; Cole, Scott & Kissane, Sally Slaybaugh and Sarah Egan, Tampa, for petitioners.
    Sina Negahbani, Miami, for respondents.
    Before SHEPHERD, C.J., and WELLS and SALTER, JJ.
   WELLS, Judge.

Ross Dress for Less Virginia, Inc., and U.S. Security Associates, Inc., seek certio-rari relief from an order holding them in contempt and sanctioning them for discovery violations by imposing a $200 a day fine; striking their pleadings; entering a default against them; and allowing an amendment to the complaint against them to include “by interlineation” a claim for punitive damages. On the analysis outlined below, we grant the petition and quash the order under review in its entirety. Additionally we note what transpired here was a textbook case of the tail wagging the dog. Relying on the solitary uncorroborated comment of a single non-party, Respondents’ counsel, employing hyperbole and declared outrage, set out on a quest to collect hundreds of apprehension reports, continuing even when Petitioners swore under oath that they had handed over all such reports in their possession, leaving unanswered the real issues before the court, as counsel chased the non-existent and irrelevant.

The Facts

This case arises from an incident that occurred on July 13, 2006. On that day, Rodolfo Castro and his son were shopping at the Miracle Mile Ross Dress for Less located in Coral Gables, Florida, when they were apprehended by police, after Victor Soca, a U.S. Security employee, alerted authorities that he suspected the two of shoplifting. At the time, U.S. Security had been providing security services to the Miracle Mile store for only forty-five days. After Castro and his son were apprehended, they were transported to the police department where Castro Sr. was charged with retail theft, a charge that was later nolle prossed. The charge against his son also was later dropped.

Thereafter, on March 7, 2007, Castro and his son, claiming that they were wrongfully stopped and accused of stealing merchandise, sued Ross and U.S. Security for false imprisonment, malicious prosecution, and slander:

Although merely shopping around in the store, the Plaintiffs, however, were shockingly accosted by a representative of the Defendant (one “Victor Soca”-U.S. SECURITY’S and/or ROSS loss prevention manager and/or an individual authorized to act on behalf of the Defendants) who called them thieves and falsely accused them of allegedly offering some unknown person money and a pair of pliers to facilitate theft of merchandise (allegedly valued at $77.91). At all times material hereto, Victor Sosa [sic] and any other employee, agent or representative of the Defendants were acting in the course and scope of their employment and in furtherance of the Defendant, ROSS’ business interests thereby rendering Defendant, ROSS jointly, severally and vicariously liable for all damages caused by, or resulting from, the acts or omissions of U.S. SECURITY, and co-Defendant U.S. SECURITY is independently liable for the acts of its own agents/employees/representatives.

The Castros simultaneously propounded interrogatories and a request for production to Ross seeking, among other things, production of Ross’s policy manuals and procedures and guidelines regarding apprehension, detention, treatment and handling of shoplifters. The Castros also sought all documents related to the Cast-ros’ arrest and detention and any other lawsuit lodged against Ross for false arrest, defamation, malicious prosecution, assault, and negligent hiring, training, supervision,, and retention. No specific request was made for “incident” or “apprehension reports” relating to anyone other than the Castros.

Ross, as authorized by the rules of procedure, filed objections to these requests claiming, among other things that some of the documents sought were protected by the attorney-client privilege while others were in the possession of U.S. Security, the entity that actually handled its security. The Castros moved to compel the discovery sought and made the first of increasingly shrill accusations of wrongdoing to secure an order striking Ross’s pleadings as a sanction for asserting authorized objections:

12. Thus, despite Plaintiff propounding formal discovery upon the Defendant directly relating to the events giving rise to this action, The Defendant remarkably has refused to respond appropriately and has thus interrupted the orderly and proper progression of this proceeding and hindered the truth finding process (to be sure, it is unfathomable and remarkable that the Defendant refuses to even state its version of the events despite the fact that it has raised a number of purported affirmative defenses — one of which is the allegation that it had probable cause for it’s [sic] action).
13. Under the circumstances, the Plaintiffs are entitled to an order compelling Defendant to fully and accurately respond to the outstanding and overdue discovery request and/or striking of Defendant’s pleading/affirmative defenses as it appears as same cannot be supported by the Defendant and/or their [sic] were raised without any good faith bases. Cf, Section 57.105, Fla. Stat.

On August 28, 2007, Judge Maria Espi-nosa Dennis, the first of four judges assigned to date to this case, ordered Ross to produce its policy and procedures manuals as well as a number of other documents. The court did not, however, either order production of any incident or apprehension reports or sanction Ross in any way.

Over a year later, in October of 2008, Victor Soca, the U.S. Security employee actually involved in the Castros’ apprehension was deposed. During that deposition, Soca testified that he had been a part-time employee at U.S. Security from 2002 to 2007, working only two days a week at different businesses for which U.S. Security provided services. Soca also testified as to his observations of the Castro family on the day in question and produced the documents in his possession relating to their apprehension. Those documents were comprised of three apprehension reports consisting of six pages each detailing his observations and listing the items that he concluded the Castros were attempting to steal.

While producing these documents, Soca, who at the time had been employed by U.S. Security for approximately four years, represented that he kept copies of incident reports relating to all of the apprehensions in which he was involved:

No, no, I always keep copies. Oh, I got files going back in Sear[s], Publix. You know, like I’ve got a library that you walk in. It’s like a loss library. I’ve got them alphabetically, you know. You tell me — I have them categories [sic] by Publix, Wal-Mart, Sears, Ross.... So I go back and research it.

Soca also testified that during the time he worked at the Miracle Mile Ross store, he was aware that “sometimes” as many as “ten, twelve, twenty people a day” were being apprehended.

Five months after Soca’s deposition was taken, in March of 2009, the Castros served a subpoena duces tecum on Soca — a non-party — seeking production of all incident reports in Soca’s “control or possession generated, created or written by [Soca], in regards to any arrest, detention, apprehension or incidents relating to theft that took place while [Soca was] employed by U.S. Security.” No similar request was made of either U.S. Security or Ross.

When Soca did not comply with the subpoena, the Castros moved to compel production and sought sanctions in the form of a fee award against him. U.S. Security, Soca’s employer, claiming to be the rightful owner of the requested documents, moved for a protective order on the grounds that the requested documents were protected by the work product privilege. On July 8, 2009, Judge Maxine Cohen Lando, the second judge assigned to this matter, ordered both Ross and U.S. Security, within ten days, to gather all documents responsive to the subpoena served on Soca and to submit a detailed privilege log referencing any item claimed to be work product. Although no motion for sanctions had been asserted against U.S. Security or Ross, the court below reserved ruling on the imposition of sanctions “against the Defendants and Victor Soca” and set a follow-up hearing for July 14, to determine whether Ross and U.S. Security had complied with her order and whether any of the documents gathered constituted work product materials.

Within two days, U.S. Security and Ross served their privilege log. That privilege log spanned a period of time from 2003 to 2008 — the period during which Soca had been employed by U.S. Security — and listed by date, seventy six different incident/apprehension reports in which Soca was involved. Of those seventy six incidents, all but two occurred at grocery stores at which Soca worked. This amounted to approximately fifteen apprehensions a year, barely more than one a month, and did not come close to supporting a conclusion that Soca ever made anything close to ten, twelve or twenty apprehensions a day.

In a memorandum of law accompanying this privilege log, U.S. Security and Ross re-asserted their claim that all of these documents were protected by the work product privilege and supported that contention with the affidavit of Kirk Gatchell, U.S. Security’s the regional manager, who attested that the listed incident/apprehension reports were prepared by U.S. Security employees “in anticipation of litigation.” Gatchell further attested that such documentation was retained by U.S. Security for only five years absent pending litigation.

On July 14, the court below revisited the Castros’ motion to compel and for sanctions and U.S. Security’s and Ross’s motion for protective order. This time, the court orally ordered U.S. Security and Ross to gather all documents responsive to the Castros’ subpoena within ten days and to file those documents with the court for an in camera review. The court again ordered U.S. Security and Ross to submit a detailed privilege log listing any item claimed to be work product and reserved jurisdiction to consider imposition of sanctions against Soca, U.S. Security, and Ross.

One week later, on July 21, U.S. Security timely filed with the trial court for in camera inspection the seventy six documents which it had previously listed in its privilege log as being responsive to the subpoena served on Soca. On September 9, 2009, Judge Cohen Lando granted U.S. Security’s and Ross’s motion for protective order, relieving them of any obligation to produce the documents listed on their privilege log and produced for in camera inspection.

The court then, in that same order, inconsistently denied the motion for protec-five order for the exact same documents in Soca’s possession:

ORDERED AND ADJUDGED that Defendant’s Motion for Protective Order is GRANTED for the incident reports identified in Defendant’s July 21, 2009 Notice of Filing Incident Reports for In Camera Inspection.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant’s Motion for Protective order is DENIED regarding any incident reports in the possession, custody or control of Victor Soca.

Two days later, on September 11, 2009, Judge Cohen Lando entered a wholly contradictory order denying the exact same relief granted to Defendants two days before, this time granting the Castros’ motion to compel U.S. Security and Ross to produce documents not only in Soca’s possession but also in their possession:

ORDERS AND ADJUDGES that Plaintiffs motion to compel discovery is GRANTED.
IT IS ORDERED AND FURTHER ADJUDGED that Defendant’s motion for Protective Order is DENIED regarding any incident reports referenced in Plaintiffs subpoena and which are in the care, custody, control or possession of Victor Soca and or the Defendants. All documents shall be forthwith delivered to Plaintiffs counsel.

(Emphasis added).

No sanctions were imposed at that time.

Six days after this last order, on September 17, the Castros moved to hold both Ross and U.S. Security in contempt and to impose “severe sanctions” against them because they had not produced documents purportedly in Soca’s possession. This motion was premised on the legally incorrect assumption that U.S. Security and Ross had control over the documents in Soca’s possession because they had asserted their work product privilege in response to the subpoena served on Soca:

Defendants [are] being wholly uncandid and disingenuous with the Court in claiming that they allegedly do not keep such records, the Defendants have control over the documents that are separately maintained by Victor Soca as they would not otherwise would/could have filed an objection to a third party subpoena (to be sure, the Court even remarked at one of the hearings on the same fact).

(Emphasis added).

The Castros’ motion asserted as a basis for imposing “severe sanctions” that U.S. Security, Ross and Soca had acted in bad faith because: (1) Soca, U.S. Security and Ross had tried to prevent the Castros from serving a subpoena on Soca to secure the documents he had testified about in his deposition by providing a “false address”; (2) the Castros’ lawyer had contacted Soca directly who “shockingly” advised that U.S. Security’s and Ross’s attorney also represented him and had advised him not to produce documents; and (3) Soca, U.S. Security and Ross had “intentionally mislead” the trial court by claiming that the requested documents were privileged and related to irrelevant slip and fall incidents.

U.S. Security and Ross responded to this motion advising the court below that Soca had provided his address at his deposition and that they had provided no “false” address for him. They also confirmed that they had properly asserted their objections to the production requested and following the July 14 hearing they had produced all of the documents that they had responsive to the Castros’ subpoena which consisted of “over 70 incident reports prepared by Mr. Soca.” (Emphasis added). U.S. Security and Ross also denied that they mislead the court because the reports produced, while mostly concerning incidents at a Publix Supermarket, were apprehension, not slip and fall reports.

With regard to Soca’s failure to produce documents, U.S. Security and Ross denied that their counsel ever advised Soca not to comply with the trial court’s order and claimed to the contrary, that their attorney had contacted Soca to secure his cooperation in producing the incident reports ordered, but that Soca “expressed concern in producing the incident reports he authored based upon the confidential information contained therein.” U.S. Security and Ross further advised that Soca had filed a response with the court raising his concerns about producing documents relating to incidents at other entities, such as Wal-Mart, and about producing documents detailing the personal information, such as the dates of birth and Social Security numbers, of third persons.

On April 27, 2010, U.S. Security and Ross provided to the trial court, for an in camera inspection, the documents that they had received from Soca which purportedly responded to the Castros’ subpoena. Two days later, they filed two versions of a privilege log (one listing documents as they were received, one listing documents by date) of “documents from the files of Victor Soca,” asserting “that each and every one of these documents is protected by the work product privilege.” That log listed 105 reports prepared by Soca spanning a period from early 2004 to 2008. This amounts to a little over twenty six reports a year or a little more than two per month and again, all but two of these reports involved incidents at a grocery store. This log was reinforced by a memorandum of law supporting U.S. Security’s and Ross’s claim that the documents were prepared in anticipation of litigation and thus protected by the work product privilege.

On August 5, 2010, the Castros’ September 17, 2009 motion for contempt and severe sanctions was heard. At that time, the trial court granted the Castros’ motion and ordered U.S. Security and Ross to provide all apprehension reports for the Ross Miracle Mile store for a year before the Castros’ apprehension until six months after. No sanctions were awarded against either defendant.

Eight days later, Kirk Gatchell, U.S. Security’s regional manager, filed an affidavit in which he represented that U.S. Security had provided services to the Miracle Mile Ross store for only forty-five days commencing on May 31, 2006, and thus there were no apprehension reports for the Miracle Mile store prior to that date. He also represented that when U.S. Security produced documents in July of 2009, it produced “what [it] believe[d] to be all apprehension reports initiated by Victor Soca” but since that time it had discovered six more such reports which had been misfiled by a former employee. These additional six reports were turned over to the court. The following day, Ross filed the affidavit of the director of its loss prevention department, who stated that “pursuant to its procedures, Ross does not maintain nor have in its possession Apprehension Reports from prior to 2008 for the Miracle Mile Store.”

On August 18, 2010, Ross and U.S. Security sought certiorari review in this court, maintaining that the reports at issue were work product. Certiorari was denied on March 2, 2011. See Ross Dress for Less Virginia, Inc. v. Castro, 56 So.3d 781 (Fla. 3d DCA 2011).

On April 21, 2011, the Castros filed an unsworn motion for contempt and “severe sanctions” seeking to strike U.S. Security and Ross’s pleadings, for entry of a default against both U.S. Security and Ross, and to allow an amendment to their complaint to add a claim by interlineation for punitive damages for allegedly committing fraud upon the court and/or destroying or concealing court ordered documents. At the heart of this motion was the Castros’ claim that “because U.S. Security and Ross [and Soca] ultimately produced only a handful of apprehension reports prepared by Soca” when compared to “Soca’s deposition that sometimes he made as many as twenty apprehensions a day,” it [was] “abundantly ... clear that the Defendants have continued ... not to be ‘forthright’ and continue instead with their calculated attempt to commit further fraud upon the Court .... ”

This demand was further “supported” by the following allegations asserted as though they were established facts:

1. That this action arose from “knowingly” “false” accusations of Victor Sosa regarding the Castros’ conduct which resulted in their “false” arrest, “defamatory” allegations of theft being made against them and their “subsequent malicious prosecution”;
2. That Soca’s October 2008 deposition proved that Soca, U.S. Security and Ross had falsely, maliciously and deliberately fabricated[] the charges against the Castros and that U.S. Security and Ross knew that they were false and were covering up their wrongdoing;
3. That not only Soca but also U.S. Security and Ross had provided a “false” address for Soca because when the Castros’ attempted to serve Soca with a subpoena duces tecum at the address which he had provided at his deposition, it turned out to be “outdated”;
4. That U.S. Security and Ross were guilty of “bad faith and [an] ongoing attempt to hamper the fact finding process and hide critical evidence” because they asserted their work product objections to production of documents;
5. That when Soca appeared before the court below and expressed his concerns about providing unredacted documents in his possession, Cast-ros’ counsel was shocked;
6. That U.S. Security and Ross had hidden or destroyed documents brought to court by Soca on April 17, 2010, because no one knows what they did with the documents after they took possession of them from a copy service for the purpose of making a court ordered comparison of those documents with documents they had previously provided;
7. That U.S. Security and Ross had done “everything possible under the sun ... to hide the documents that the Court (repeatedly) ordered to be produced, or claim that they allegedly do not exist (notwithstanding Victor Soca’s own sworn deposition testimony and the fact that the large binder that he came to court with was several inches thick ....)”

U.S. Security and Ross responded to these allegations citing to the record to contradict each and every one. As part of that response, they confirmed that in full compliance with the trial court’s July 8, and August 17, 2009 orders, they had turned over for in camera inspection those incident reports in their possession that had been created by Soca and, with one exception, those reports related to Soca’s work at a local grocery store. U.S. Security and Ross further confirmed that on April 17, 2010, Soca had appeared before the court and produced the documents in his possession and that on April 29, U.S. Security and Ross had provided the trial court with “a complete copy of the records provided by Mr. Soca and two versions of a privilege log.” Finally* U.S. Security and Ross advised the court that pursuant to the court’s August 5, 2010 order to provide all apprehension reports at the Ross Miracle Mile store and not just those prepared by Soca, they had gathered the documents and had provided them to the court.

With regard to the Castros’ claim that U.S. Security and Ross had to be hiding or destroying documents based on Soca’s deposition testimony that during his tenure at the Miracle Mile Ross store he was aware that “sometimes” “ten, twelve, twenty people a day” were apprehended, U.S. Security and Ross advised the court below that for the period between May 2005 and January 2007, certain records showed a total of twenty one apprehensions at the Miracle Mile store, most of which were made by someone other than Soca. For the period between the end of May 2006 and the middle of January 2007, other records indicated twenty two apprehensions and Coral Gables Police Department records indicated twenty seven such incidents. Thus, while Defendants conceded these numbers did not “match up 100%,” and they may have been guilty of “bad record keeping,” they had “[n]o hidden agenda,” and the figures in no way reflected Soca’s earlier guesstimates. In sum, while internal records were somewhat contradictory as to the exact number of apprehensions made for the time period in question, there was no evidence of thousands or even hundreds of missing, hidden or destroyed reports.

On June 16, 2011, a hearing was held on the Castros’ motion to compel and for severe sanctions. During that hearing, U.S. Security and Ross were orally ordered to provide the Castros with Soca’s documents (which had previously been filed with the court) after they were redacted. Following a discussion as to whether Soca’s testimony regarding up to twenty apprehensions on some days was accurate, the trial court stated:

THE COURT: Well, I want to have a hearing. I want to have an evidentiary hearing. And I’m giving you a heads-up. I’m going to be looking for answers to those questions.
I am not satisfied. There have been allegations of fraud. I don’t know if I would call it fraud, but it could be construed destruction of evidence. And that’s what I’m really concerned about is whether evidence is destroyed, whether it’s being deliberately withheld, or whether there was some issue concerning the intent not to follow the court’s order.
Am I being clear on that?

One week after this hearing, all of the apprehension reports retained by Soca were provided to the Castros. A little over a week after that, all records in U.S. Security’s and Ross’s possession were produced.

Almost a year later, on June 4, 2012, the hearing ordered by Judge Cohen Lando was commenced by Judge Victoria Platzer, the third judge assigned to this case. At that hearing the loss prevention director for Ross testified without contradiction that Ross neither prepared nor kept incident or apprehension reports. This witness also testified that Ross relied solely on U.S. Security to make and keep such documents and did not receive or retain them. Significantly, this witness confirmed that while it did not receive or retain actual apprehension reports, it did receive a monthly status report of the number of apprehensions that had been made at its over 220 stores and that on average only two to four apprehensions were made a week.

The loss prevention director from U.S. Security also testified at this hearing and unequivocally rejected Soca’s statement that sometimes ten, twelve, or twenty apprehensions a day were being made at the Miracle Mile Ross store. To the contrary, he testified that during the period in which U.S. Security provided security at that store, the apprehension reports that it received evidenced that only two to four apprehensions were being made per week. While admitting that U.S. Security had not done a good job in managing its documents or in locating those requested, it reconfirmed that it had turned over everything that it could find, including six reports that it discovered in the desk drawer of an employee who had been laid off.

The court below rejected this testimony, awarding fees and costs to the Castros “incurred since 2008” from both Ross and U.S. Security and sanctioned them by allowing the Castros to provide the jury with a spoliation instruction:

The Plaintiffs are entitled to recoup all costs and fees incurred since 2008 from the Defendants associated with litigating any of the issues and compelling compliance/seeking sanctions ... The Court shall provide the jury with a spoliation instruction concerning Defendants’ willful and deliberate failures to turn over the highly critical apprehension reports notwithstanding clearly being ordered to do so by the Court, from which the jury can make or reach any reasonable adverse inference towards the Defendants... the Defendants shall turn over to the Plaintiffs each and every document relating or referring to Victor Soca, particularly his entire personnel employment file-records, including, but not limited to, any complaints or grievance made against him, any employment applications, background searches, all work schedules, time cards, pay records, and disciplinary record... [and] In addition to amending their complaint to assert any additional counts against the Defendants (e.g., spoliation of evidence, or negligent retention/supervision, etc.), the Plaintiffs may file a revised motion for leave to assert a claim — for punitive damages (which the Court will reconsider at a subsequent hearing in light of the forgoing).

(Emphasis added).

Additionally, the trial court warned:

Any further disregard by the Defendants of the Court’s orders or further acts reflecting concealment/destruction of documents, fraud, dishonesty, perjury or lack of candor by any of the Defendants, shall result in the striking of their pleadings and entering of defaults in favor of the Plaintiffs, along with other appropriate sanctions.

On January 11, 2013, the Castros, repeating the representations made in their April 21, 2011 motion filed yet another motion to strike U.S. Security’s and Ross’s pleadings, for entry of default against them, and for permission to add a punitive damage claim and for other relief.

On February 28, 2013, defendants filed a Notice of Compliance. Attached to that notice were copies of the previously disclosed apprehension reports which had been prepared by Soca for the period spanning November 2003 through May of 2008. The notice also attached nine apprehension reports (also previously disclosed) which had been prepared by other U.S. Security personnel at the Miracle Mile store. Of these eighty eight apprehension reports provided, only nineteen were generated at that Miracle Mile store.

In addition to these documents, U.S. Security and Ross attached an additional seventy three apprehension reports which were in its possession for that same period — all of which related to incidents at Publix Supermarkets. In sum, approximately 160 apprehension reports spanning a period of over four years were provided.

On May 3, 2013, Judge Rosa Rodriguez, the fourth judge assigned to this case, relying primarily on the orders of three earlier judges (and following a hearing comprised of only twenty-three pages), granted the Castros’ motion and struck U.S. Security’s and Ross’s pleadings, entered default against them, allowed the Castros to amend to add a claim for punitive damages and assessed a $200 per day fine against them until they produced all documents purportedly in their possession:

This Court finds and concludes that the Defendants, once again, willfully, deliberately, contumaciously and in bad faith disregarded the Court’s clear and specific directives and order; despite even being found in contempt of Court, the Defendants continued to exhibit a deliberate and willful disregard of the Court’s authority and directives. Accordingly, the plaintiffs are entitled to the requests sought and the Defendants subject to the severest sanctions possible[.] The Court thus:
1. Strikes the Defendants’ pleadings and enters defaults against them; although the Court is well aware that the striking of pleadings and entry of default is the most severe sanction available and must be commensurate with the violation, the record here is rife with Defendants’ willful, bad faith, and contumacious disregard of court orders;
2. Grants leave to the Plaintiffs and the complaint is hereby deemed amended by interlineation to include claims for punitive damages against the Defendants;
5. The Court also hereby imposes a $200 a day monetary sanctions (to commence on April 29, 2013) against each individual Defendant to be paid to the Plaintiffs until there is full compliance with the Court’s outstanding directives.

U.S. Security and Ross seek certiorari review of this order which we grant because the order departs from the essential requirements of the law in ways that will result in irreparable harm not correctable on direct appeal. See Boby Express Co. v. Guerin, 930 So.2d 842, 843 (Fla. 3d DCA 2006) (“The applicable standard of review is whether the challenged order (1) constitutes a departure from the essential requirements of the law; (2) causes material injury throughout the remainder of the proceedings below; and (3) causes injury that is irreparable, as it effectively leaves no adequate remedy at law.”).

1. The daily monetary fine for failure to comply with outstanding directives

We review the instant order imposing a $200 a day fine pending compliance with the trial court’s outstanding directives as a prejudgment civil contempt order subject to certiorari review. See Knorr v. Knorr, 751 So.2d 64, 65 (Fla. 2d DCA 1999) (concluding that “prejudgment civil contempt orders are ... properly reviewed by certiorari”); see also Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla.1977) (stating that “[i]f the purpose of the proceedings is to coerce action or non-action by a party, the order of contempt is characterized as civil”); Dep’t of Children & Families v. R.H., 819 So.2d 858, 861 (Fla. 5th DCA 2002) (“Because a civil contempt proceeding is remedial in nature, its primary purpose is to obtain compliance with a court order by the person subject to the order. See Shook v. Alter, 729 So.2d 527 (Fla. 4th DCA 1999)”).

It is well established that a party cannot be sanctioned for contempt for violating a court directive or order which is not clear and definite as to how a party is to comply with the court’s command. Northstar Inves. & Dev., Inc. v. Pobaco, Inc., 691 So.2d 565, 566 (Fla. 5th DCA 1997) (“A party may not be held in contempt of court for violation of an order ... which is not clear and definite so as to make the party aware of its command and direction.”); Lawrence v. Lawrence, 384 So.2d 279, 280 (Fla. 4th DCA 1980) (“One may not be held in contempt of court for violation of an order or a provision of a judgment which is not clear and definite so as to make the party aware of its command and direction.”); see also Miranda v. Miranda, 566 So.2d 16, 18 (Fla. 4th DCA 1990) (quoting Kranis v. Kranis, 313 So.2d 135 (Fla. 3d DCA 1975) for the proposition that a party should not be held in contempt for violation of an order which is not clear and definite as to how the party is to act to come into compliance). As our sister court recently confirmed:

“[T]he law ... imposes upon the court the requirement to be explicit and precise in its commands if strict compliance is to be exacted in the form of a contempt citation.”

Reder v. Miller, 102 So.3d 742, 743 (Fla. 2d DCA 2012) (quoting Cooley v. Moody, 884 So.2d 148,145 (Fla. 2d DCA 2004)).

The order imposing daily monetary sanctions on U.S. Security and Ross for contempt of court does not comply with this mandate. While the order does reference a number of prior orders directing U.S. Security and Ross to act, it does not state precisely what U.S. Security and Ross are now to do to come into “full compliance with the Court’s outstanding directives.” This is especially troubling in light of the number of different and conflicting directives previously issued by the court below regarding the production of documents.

Even more troubling is the unre-butted testimony from both U.S. Security and Ross that they have no ability to further comply with the court’s many directives. As the Florida Supreme Court long ago confirmed, where a party is being sanctioned for civil contempt for failing to abide by a court order, that person must “carr[y] the key to his cell in his own pocket.” Pugliese, 347 So.2d at 424; see Parisi v. Broward County, 769 So.2d 359, 365 (Fla.2000) (“[T]he key safeguard in civil contempt proceedings is a finding by the trial court that the contemnor has the ability to purge the contempt.”); R.H., 819 So.2d at 862 (same). Put another way, a party held in civil contempt and ordered to comply with a court order must be able to do so — -that is, the party must have the ability to comply. No such showing has been made here.

Despite Soca’s statement in 2008 that he was aware that “sometimes” between ten and twenty apprehensions were being made a day at the Ross store, nothing in the record demonstrates this to be true. More to the point, nothing in the record demonstrates that any documents exist to support that statement. Neither U.S. Security’s nor Ross’s documents support such a claim, and the documents produced by Soca from his “library” come nowhere close to confirming this statement. Nor do the records of apprehensions from any other place where Soca worked while at U.S. Security. The record simply does not establish that more records exist to be provided.

In Beck’s Transfer, Inc. v. Peairs, 532 So.2d 1136, 1137 (Fla. 4th DCA 1988), the court confirmed that a contempt order premised on a failure to produce documents represented early on in the action to exist but later represented not to exist, will not support a contempt order absent some competent evidence — not just pleadings and argument — to show that documents actually exist:

It appears the trial court relied heavily upon appellants’ early representations concerning the existence of the records and concluded that the documents did exist despite appellants’ later representations to the contrary. Appellee did not present any competent evidence to establish that the ... records furnished by appellants did not comply with the court’s previous order, and no evidence that the documents did in fact exist. Appellants asserted in their response to appellee’s motion for sanctions that it had complied with appellee’s request to produce and also claimed that they did not have copies of the [documents].... Appellee’s pleadings and argument did not constitute evidence.

The same rationale applies here.

The only evidence of U.S. Security’s and Ross’s ability to produce more documents of any kind other than those already produced comes from the sworn testimony of their representatives who testified, without contradiction, that they had no further ability to comply. Against this competent substantial evidence, neither speculation by Castros’ counsel that it is “logical” that more documents exist nor the trial court’s assumption that more documents must exist because these parties “must be getting sued all over the place for detaining people and not keeping records,” will support the order entered below holding these parties in contempt and fining them daily for failing to comply with unspecified directives to produce more documents.

A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the claimant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed separately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days before the hearing.

Because the order on review fails to clearly and definitively state which directives U.S. Security and Ross are to satisfy and because the record does not demonstrate that they have the ability to comply with any order mandating production of additional documents, that portion of the order imposing a $200 a day fine until more documents are produced is quashed.

2. The amendment to allow a claim for punitive damages

Section 768.72 of the Florida Statutes creates a “substantive legal right” not to be subject to a punitive damages claim until the trial court makes a determination that there is a reasonable evidentiary basis for recovery of punitive damages. Simeon, Inc. v. Cox, 671 So.2d 158, 160 (Fla.1996); Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla.1995). Thus, section 768.72(1) provides “[i]n any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.”

This Court reviews an order granting a motion to amend to include a claim for punitive damages solely to determine whether the trial court conformed with the procedural requirements of section 768.72, in making the required evidentiary determination. As Globe, 658 So.2d at 519, explains:

We conclude that appellate courts do have certiorari jurisdiction to review whether a trial judge has conformed with the procedural requirements of section 768.72, but do not have certiorari jurisdiction to review a decision of a trial judge granting leave to amend a complaint to include a claim for punitive damages when the trial judge has followed the procedural requirements of section 768.72. Certiorari is not available to review a determination that there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.

See Simeon, 671 So.2d at 160 (“[Ajppellate courts should grant certiorari in instances in which there is a demonstration by a petitioner that the procedures of section 768.72 have not been followed.”).

The instant motion to amend was granted as a sanction for Defendants’ purported “willful disregard of the Court’s authority and directives” not from a determination that there was a reasonable evidentiary basis for recovery of punitive damages, as required by section 768.72. The question of evidentiary support for the amendment sought was not even broached at the short April 29, 2013 hearing which precipitated the court’s May 3rd ruling. The Castros did not present any evidence, nor did they proffer how any yet unproduced reports would provide the statutorily required evi-dentiary support for a punitive damages claim.'

Instead, the entire hearing addressed whether the sanctions sought, including leave to amend to state a claim for punitive damages, should be granted. The court questioned defense counsel as to how she refuted the Castros’ January 11, 2013 twenty-one page, seventy-seven paragraph sanctions motion which included the request for leave to seek punitive damages. However, neither that motion nor the hearing considered the issue of the eviden-tiary support for such a claim. Likewise, there was no mention or discussion of the Castros’ “Motion for Leave to Amend Complaint to Assert a claim for Punitive Damages and Memorandum of Law” of April 21, 2009, which had been denied without prejudice September 9, 2009.

The entire discussion at the April 29th hearing went to Defendants’ non-compliance with prior court directives. The court ultimately concluded “[ajecordingly, the Plaintiffs are entitled to the requests sought and the Defendants subject to the severest sanctions possible. The Court thus... [gjrants leave to the Plaintiffs and the complaint is hereby deemed amended by interlineation to include claims for punitive damages against the Defendants.” This does not comply with the procedural requirements of section 768.72. See Royal Caribbean Cruises, Ltd. v. Doe, 44 So.3d 230, 233 (Fla. 3d DCA 2010) (“Because there is no evidence in this record to suggest that the trial court made an evidentia-ry inquiry and/or factual determinations as required by section 768.72, we grant RCCL’s petition and quash the trial court’s order granting the plaintiffs’ motion to amend their complaint to include a claim for punitive damages.”); Cypress Aviation, Inc. v. Bollea, 826 So.2d 1091, 1092 (Fla. 2d DCA 2002) (granting writ as trial court departed from the essential requirements of the law by allowing plaintiffs to proceed with claim for punitive damages without providing any evidentiary basis for their claim). We therefore quash that part of the order granting the Cast-ros’ motion to amend.

3. Striking U.S. Security’s and Ross’s pleadings, and entry of default

While “[d]eliberate and contumacious disregard of a court’s authority justifies application of the severe sanction of striking pleadings or entering default for noncompliance with a discovery order, as will bad faith, willful disregard or gross indifference to the court’s order, or conduct which evidences deliberate callousness[,] ... [a]nything short of this standard is an abuse of discretion.” Smith Original Homes, Inc. v. Carpet King Carpets, Inc., 896 So.2d 844, 847 (Fla. 2d DCA 2005); see also Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) (confirming that absent extreme circumstances, such as where a showing has been made of a deliberate and contumacious disregard for a court’s order or its authority, a party’s pleadings should not be stricken and a default entered). Thus, where sanctions such as these are being imposed for purportedly deliberate and contumacious conduct, the record must reflect a “refusal to obey” not just an inability to comply or confusion as to how to comply. Mittleman v. Rowe Int’l, Inc., 511 So.2d 766, 768 (Fla. 4th DCA 1987); Garden-Aire Village Sea Haven, Inc. v. Decker, 433 So.2d 676, 678 (Fla. 4th DCA 1983) (“When failure to comply with a court order is due to confusion or inability rather than gross indifference, a default ... should not be entered against the noncomplying party.”).

In this case, the record does not reflect that U.S. Security and Ross “refused to obey” the court’s directives. To the contrary, these parties’ repeatedly attempted to comply with the trial court’s directives until finally in June of 2011 Judge Cohen Lando ordered an evidentiary hearing to determine whether they were able to comply. As of that date, no findings of refusal to comply had been made.

At the subsequently held evidentiary hearing ordered by Judge Cohen Lando but conducted by Judge Platzer, the loss prevention officers for both U.S. Security and Ross appeared and testified under oath. Both representatives testified that they had no further ability to comply with the Castros’ demands.

Yet based on no more than the trial court’s “assumption” that because Ross was a large national concern, it had to be keeping more apprehension records than it claimed to have, and on the Castros’ counsel’s argument that it was just “logical” that these entities had to have more documents, the court below concluded that these parties had either destroyed documents or intentionally failed to produce them and held them in contempt and ordered a spoliation instruction to be given at trial. Using these determinations as a springboard, the court below, in its subsequent May 3rd order, struck the parties’ pleadings and entered a default against them. This is legally insufficient.

Because the record does not demonstrate that by the time of the May 3rd order, the documents the Castros sought currently existed or for that matter ever existed, there was no basis for the trial court’s determination that U.S. Security and Ross had “refused to obey” the court’s prior directive. The order striking U.S. Security’s and Ross’s pleadings and entering default against them for “refusal to obey” must therefore be quashed.

4. The remainder of the sanctions imposed against U.S. Security and Ross

On the above analysis, we quash the remainder of the sanctions orders imposing fees and costs against U.S. Security and Ross for their purportedly contumacious behavior.

This is a simple straight forward action about only one thing: whether the Defendants’ actions supported the Castros’ claims for false imprisonment, malicious prosecution, and slander. It is not about whether U.S. Security and Ross are good record keepers. As this court in Zayres Department Stores v. Fingerhut, 383 So.2d 262, 265 (Fla. 3d DCA 1980), confirmed, discovery in a false imprisonment, malicious prosecution action about other arrests or apprehensions similar to the one at issue is of such limited value as to make sanctions for the failure to provide such information virtually superfluous:

The requested information as to prior such cases or experiences of Zayres, occurring at other times and under other facts and circumstances, would have been of little substantial value or materiality to the plaintiff. For such other prior cases, if there were any, to be of material assistance to plaintiff, the establishment of their materiality, if any, would necessitate the equivalent of a collateral trial thereof.

(Citations omitted).

The same reasoning applies here.

In short, the record does not support the numerous scandalous accusations repeatedly asserted by the Castros against U.S. Security and Ross. Soca was never a party in this action. The unrefuted evidence was that Ross did not keep any apprehension reports at all. U.S. Security turned over the reports it had after the parties’ claims of work product privilege were resolved and as those reports were located. This left the hypothesized hundreds of yet outstanding reports with no evidentiary basis but Soca’s comment. The Castros nonetheless went on a five year quest to acquire these documents, and the failure to produce these documents did not justify the draconian sanctions imposed on U.S. Security and Ross or to obligate them to pay for this fruitless hunt.

As the Florida Supreme Court has said, “it is essential that we keep in mind the purpose of discovery. Pretrial discovery was implemented to simplify the issues in a case, to eliminate the element of surprise, to encourage the settlement of cases, to avoid costly litigation, and to achieve a balanced search for the truth to ensure a fair trial.” Elkins v. Syken, 672 So.2d 517, 522 (Fla.1996). In this case, discovery pursued by the Castros accomplished none of these goals. It also bears repeating that a constant chant by an attorney of fraud, misrepresentation, bad faith, and other wrongdoing does not make it so, no matter how often and how loudly the refrain is repeated.

For all of the above reasons, the May 3, 2013 order is quashed in its entirety including the earlier orders granting fees and ordering a spoliation instruction and the matter is remanded to proceed to trial.

SHEPHERD, C.J.,

concurring.

I write to underscore the initial point made by my distinguished colleague who penned the majority opinion in this case. Courts are not fact-free zones. Tactics of the type exhibited in this case are corrosive to the rule of law.

      . U.S. Security was not named in the initial complaint, but thereafter added.

      . For example, in response to the Castros' request for the "[ejntire personnel file of all employees/agents involved in the arrest and/or detention of the Plaintiff,” Ross responded: "Ross is unable to identify any employees involved in this matter; it was handled by Victor Soca who was employed by non-party, U.S. Security.”

      . As previously stated, at the time of the incident, U.S. Security had been providing security for this Ross store for only some forty-five days.

      . This order was not reduced to writing until August 17, 2009.

      . This is baseless. Rule 1.280(c), generally authorizes a party to seek protection from a discovery request made to a non-party in an action where the items sought belong to the party. Fla. R. Civ. P. 1.280(c) ("Protective Orders. Upon motion by a party or by the person from whom discovery is sought ... the court in which the action is pending may make any order to protect a party or person"); see Engel v. Rigot, 434 So.2d 954, 957 (Fla. 3d DCA 1983) (Pearson, J., concurring) ("It is apodictic that one who is a party has no standing to object to a subpoena issued to a non-party witness unless that subpoena asks for documents in which the party claims some personal right or privilege or asks for documents in the party’s possession.”) (Emphasis added).

      . Soca testified at his deposition on October 22, 2008, that his current address was 2434 Southwest Third Street, Miami, Florida. There is no showing here that this was not his address at that time or that U.S. Security or Ross knew otherwise.

      . Nothing precludes the attorney for a corporate party from representing a non-party corporate employee subpoenaed to testify. Based on the assertion of the work product privilege by U.S. Security and Ross as to documents in Soca’s possession, no impropriety arises from advising Soca not to produce documents until motions for protective orders relating to those documents had been resolved.

      . This accusation is completely inaccurate; the reports listed were for apprehensions not slip and falls.

      . To the contrary, the deposition lays out in excruciating detail an attempt by the Castros to steal merchandise.

      . U.S. Security also pointed out that portion of the August 5, 2010 transcript where the trial court acknowledged that the incident 'reports from a local grocery store were not related to slip and falls but were indeed apprehension reports.

      . This number is consistent with Soca's record of the number of apprehensions he was actually making while working at both Publix and the Miracle Mile Ross. The document log provided for all apprehension reports made by Soca over a four year period shows that he made fewer than two apprehensions per week.

      . Florida Rule of Civil Procedure 1.190(f), likewise provides:

      . The Castros had also filed an April 21, 2011 “Motion for Contempt and Severe Sanctions,” which included a request for leave to amend to include a claim punitive damages in their complaint. A prior judge’s August 28, 2012 order had ruled only that the Castros could revise that request for the court’s subsequent consideration.

      . This analysis necessarily nullifies the trial court’s earlier order granting a spoliation instruction:
      In order for a court to effect any sort of remedy for a party's alleged spoliation of evidence, the court must determine whether: (1) "the evidence existed at one time,” (2) "the spoliator had a duty to preserve the evidence, and” (3) "the evidence was crucial to the opposing party['s] being able to prove its prima facie case or a defense.” Golden Yachts, Inc. v. Hall, 920 So.2d 777, 781 (Fla. 4th DCA 2006) (citing Jordan ex rel. Shealey v. Masters, 821 So.2d 342, 347 (Fla. 4th DCA 2002)).

        Osmulski v. Oldsmar Fine Wine, Inc., 93 So.3d 389, 392 (Fla. 2d DCA 2012); see also Jones v. Publix Super Markets, Inc., 114 So.3d 998, 1005 (Fla. 5th DCA 2012) (concluding that although the “unexplained lack of any surveillance video” was suspicious, especially after the defendant had initially stated one did exist, there were not enough facts to conclude the defendant "caused [it] to disappear” so as to support a spoliation instruction).
      In this case, and despite Soca's never supported claim that many apprehensions were made each day, no evidence exists that this occurred or that documents evidencing it ever existed. There also has never been a finding that U.S. Security or Ross had a duty to preserve any such documents or a showing that absent these documents the Castros will not be able to adduce prima facie evidence to support their defense.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    S.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-892.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2014.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant, S.B., appeals the trial court’s finding that he was competent to proceed to trial, arguing that the competency issue was improperly decided. We agree. We affirm the trial court’s ruling as to Defendant’s other point on appeal, without comment.

Defendant was found incompetent to proceed to trial in two separate cases. Three years later, the court held a hearing, and his attorney advised the court that: “[Defendant] was evaluated by [a doctor]. I just reviewed the — thanks to the State, their copy of the report. And based on that my conversation with [Defendant] and the mother, we are going ahead and stipulate that the child is competent to proceed today.” The State also stipulated to Defendant’s competency, but there was no stipulation to the contents and admission of the doctor’s report for the determination of competency.

Without further hearing or evidence, the court entered a written order finding that Defendant was competent, based solely upon the stipulations by the State and defense, and its own review of the doctor’s report. Both cases proceeded to trial. A jury found Defendant guilty of battery on a school board official and disrupting a school function, as charged in the first case, and burglary of a conveyance, as charged in the second case.

Florida Rule of Criminal Procedure 3.212(c)(7) provides: “If, at any time after such commitment, the court decides, after hearing, that the defendant is competent to proceed, it shall enter its order so finding and shall proceed.” A hearing to determine whether competency has been restored after a period of incompetence requires “the calling of court-appointed expert witnesses designated under [rule 3.211], a determination of competence to proceed, and the entry of an order finding competence.” Samson v. State, 853 So.2d 1116, 1117 (Fla. 4th DCA 2003).

However, “where the parties and the judge agree, the trial Court may decide the issue of competency on the basis of the written reports alone.” Fowler v. State, 255 So.2d 513, 515 (Fla. 1971); see also Molina v. State, 946 So.2d 1103, 1105 (Fla. 5th DCA 2006) (noting that it is appropriate for the trial court to consider only reports to determine a defendant’s competency at a hearing following a period of incompetency so long as the parties agree).

In a similar case, Macaluso v. State, 12 So.3d 914, 915 (Fla. 4th DCA 2009), we held that lawyers may not stipulate to a defendant’s restored competency without an evidentiary hearing. In another case, Jones v. State, 125 So.3d 982, 983 (Fla. 4th DCA 2013), the defendant was initially declared incompetent to proceed to trial. After a period of incompetency, a new hearing was conducted. Defense counsel presented two expert competency evaluations to the court, both finding the defendant competent to proceed. Id. The State stipulated to the admission and contents of the reports, and pursuant to the parties’ requests, accepted the reports in lieu of expert testimony. Id. After considering this evidence, the court declared the defendant competent. Id. The defendant later appealed the competency hearing, relying on this court’s opinion in Macaluso, and this court affirmed:

Macaluso recognized that Rule 3.212 does not sanction stipulations to the ultimate issue of competency. That task is expressly left to the trial judge and that authority may not be delegated to the lawyers in the case. Id. at 915. See Fowler, 255 So.2d at 515 (holding that a court considering the issue of competency can rely on an expert’s written reports if the parties agree).
Jones’ reliance on Macaluso is misplaced. Here, the parties stipulated to the expert reports. The reports became the evidence upon which the trial court relied to decide the ultimate issue. Finally, nothing in the record suggests that either side was prohibited from presenting any other evidence or arguments, and the trial court entered a written order concluding Jones was competent to proceed as required by the Rule. Based upon the foregoing, we hold that the trial court held a proper competency hearing as contemplated by Rule 3.212.

Jones, 125 So.3d at 984 (footnote omitted).

In the instant case, it is clear from the record that neither party stipulated to the contents and admission of the doctor’s report. Nor was there any form of agreement between the parties and the judge to decide the issue of competency on the basis of the written report alone. Although it can be argued that by stipulating to the report’s determination of competency, the parties stipulated to the report and agreed to determine competency based on the report alone, there is nothing in the case law to suggest that such implicit stipulations and agreements are sufficient to satisfy rule 3.212. See, e.g., Fowler, 255 So.2d at 515; Jones, 125 So.3d at 983; Macaluso, 12 So.3d at 915.

Therefore, the trial court erred in its finding of Defendant’s competency. We remand this case to the trial court for a new hearing, and the court may consider any stipulations in accordance with this opinion. See Fowler, 255 So.2d at 515.

Affirmed in part; Reversed in part and Remanded.

STEVENSON, CIKLIN and KLINGENSMITH, JJ., concur.


text:
    Kenneth M. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D14-52.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.
    Kenneth M. Robinson, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Two copies of this opinion shall be filed with the trial court and be treated as the notices of appeal from the December 21, 2010 and the October 16, 2013, orders denying Petitioner’s motions to correct illegal sentence in Case No. 05-2936-CF, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

GRIFFIN, EVANDER and WALLIS, JJ., concur.


text:
    Aamir WAHEED, Cheri Black Waheed, et al., Appellants, v. STATE of Florida, etc., et al., Appellees.
    No. 5D13-1670.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.
    John C. Ross, Titusville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Ft. Lauderdale, for Appellee.
   PER CURIAM.

Aamir Waheed, Cheri Black Waheed, Tariq Waheed, Comptrac, Inc., Game Advice, Inc., Digitrac, Inc., Intelitek, Inc., Media Advice, Inc., Infohub, Inc., Realvice, Inc., Developco, Inc., Infovice, Inc., and Realtrack, Inc., appeal a non-final order finding probable cause to support the State’s seizure of various assets pursuant to the Florida Contraband Forfeiture Act (“FCFA”). We affirm in part and reverse in part.

In early 2013, the State seized various assets owned by the appellants, including motor vehicles. The seizure was based on the appellants’ alleged involvement with the Allied Veterans of the World criminal enterprise, which allegedly conducted an illegal gambling scheme throughout Florida. The scheme involved the operation of “internet sweepstakes cafes” that, in reality, were illegal gaming rooms. Allied Veterans of the World acted as the parent company, and over forty affiliates throughout Florida undertook the management of the day-to-day operations of the cafes. The appellants are alleged to have owned several of these affiliates. In relation to these allegations, the trial court found that probable cause existed to believe that the seized assets were used, attempted to be used, or intended to be used in violation of the FCFA. On appeal, the appellants argue that the trial court’s order should be reversed because the State failed to present evidence sufficient to establish probable cause.

The FCFA provides the State with a method for seeking civil forfeiture of contraband. A FCFA proceeding begins when the State seizes the property and files a complaint in the circuit court. §§ 932.703(2)(b), 932.704(4), Fla. Stat. (2013). Upon seizure, an adversarial hearing must be held to determine whether probable cause exists to believe that the property “was used, is being used, was attempted to be used, or was intended to be used” in violation of the FCFA. § 932.703(2)(c), Fla. Stat. If the court determines that probable cause exists, a jury trial will be held on the ultimate issue of forfeiture. § 932.704(3), Fla. Stat.

The statute sets forth twelve definitions of “contraband,” only one of which is relevant to our analysis. Namely, contraband is defined as “[a]ny personal property ... which was used, is being used, or was attempted to be used as an instrumentality in the commission of ... any felony ... or which is acquired by proceeds obtained as a result of a violation of the [FCFA].” § 932.701(2)(a)5., Fla. Stat. Based on the plain language of this section, this definition does not include proceeds — or property acquired by proceeds — of any felony. Rather, only property acquired by proceeds obtained as a result of a violation of the FCFA is defined as contraband. It is a violation of the FCFA to:

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

§ 932.702, Fla. Stat. Thus, “property connected to a violation of the gambling laws ... is not per se ‘used, in violation of the FCFA.” Campbell v. Racetrack Bingo, Inc., 75 So.3d 321, 323 (Fla. 1st DCA 2011) (citing §§ 932.701-.706, Fla. Stat.). The FCFA “does not prohibit acquisition of property from proceeds from violation of the gambling laws, nor does the act subject property so acquired to forfeiture.” Id.; accord Sheriff of Seminole Cnty. v. Oliver, 59 So.3d 232, 234 (Fla. 5th DCA 2011) (holding that stolen checks could not be forfeited as traceable proceeds of a felony because they were not obtained as a result of a violation of the FCFA).

In examining the various items seized in this case, we reverse only as to the seizure of the motor vehicles. The State did not establish that the motor vehicles were either used as instrumentalities in the commission of a felony or acquired by proceeds obtained as a result of a violation of the FCFA. See § 932.701(2)(a)5., Fla. Stat. Even if probable cause existed to believe they were acquired with proceeds of a violation of the gambling laws— an issue that we do not decide here — a violation of the gambling laws is not per se a violation of the FCFA. See Campbell, 75 So.3d at 323.

We find the remaining issues raised to be without merit and affirm the trial court’s order in all other respects.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

EVANDER, COHEN and WALLIS, JJ., concur.

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


author: ORFINGER, J.

text:
    David Thomas PYLANT, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-3835.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.

      David T. Pylant, Lake City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

David T. Pylant filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Py-lant sought to withdraw his plea or be resentenced in accordance with his understanding of the plea agreement, the trial court treated his motion as one filed under Florida Rule of Criminal Procedure 3.850, and summarily denied it. We reverse, as the record does not conclusively refute Pylant’s claim of affirmative misadvice by counsel.

Pylant pled guilty to attempted sexual battery. He was sentenced to ten years in prison followed by ten years of sex offender probation. Following his release from prison, Pylant admitted that he violated probation (VOP), and was sentenced to 140 months in prison, with credit for the time spent in jail after his VOP arrest. The trial court also directed the Department of Corrections (DOC) to compute Pylant’s prison credit. In his postconviction motion, Pylant claimed that his counsel informed him that the State had offered a 140-month sentence recommendation and his prior ten-year sentence, including gain time, would be deducted from his newly-imposed sentence. He alleged that had he been advised that DOC would forfeit his original gain time (547 days), he would not have entered the plea.

Affirmative misadvice by counsel as to gain time or the actual sentence length is a cognizable basis for postconviction relief, and an evidentiary hearing must be held unless the record conclusively refutes the claim. See State v. Leroux, 689 So.2d 235, 236 (Fla.1996). A defendant’s general acknowledgment that no one had made any promises to induce the plea is insufficient to conclusively rebut a misadvice claim. Id. at 237. The plea colloquy in the instant case does not conclusively refute Pylant’s misadvice claim, nor did the written plea make clear that DOC had the discretion to forfeit gain time. If Pylant can prove at an evidentia-ry hearing that he relied on counsel’s erroneous advice that his previous gain time would not be forfeited, then he would be entitled to withdraw the plea.

For these reasons, we reverse the order denying relief and remand the case for an evidentiary hearing.

REVERSED and REMANDED.

GRIFFIN and EVANDER, JJ., concur.


text:
    Melissa Anne HORAHAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4526.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.
    Robert Wesley, Public Defender, and Kathleen MacMillan, Assistant Public Defender, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges a restitution order based on a lack of substantial, competent evidence to support the restitution award. The State concedes error. Accordingly, we reverse the award and remand it for a new hearing. Johnson v. State, 856 So.2d 1085,1086 (Fla. 5th DCA 2003).

REVERSED AND REMANDED.

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


author: GRIFFIN, J.

text:
    Victor JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-30.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Victor Jones [“Jones”], appeals his convictions for kidnapping with intent to commit bodily harm or terrorize and false imprisonment. On appeal, Jones argues for the first time that the dual convictions violate double jeopardy. Under the facts of this case, we agree that the act of restraining the victim during the attack was part of the same criminal episode out of which the kidnapping charge and conviction arose. Accordingly, we vacate the conviction and sentence for false imprisonment. See Fleming v. State, 75 So.3d 397 (Fla. 5th DCA 2011).

AFFIRMED in part, as to kidnapping charge; REVERSED and REMANDED to vacate false imprisonment charge.

PALMER and LAWSON, JJ., concur.


text:
    Vinzett WATKINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D13-3081, 5D13-3082.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.
    Vinzett Watkins, Chipley, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

In these consolidated appeals, the State concedes that Appellant Vinzett Watkins does not appear to have been credited with fifteen days for time served in a juvenile detention center prior to sentencing. See, e.g., Jones v. State, 53 So.3d 1146, 1147 (Fla. 2d DCA 2011) (“Time spent in such detention is credited like time spent in county jail.”). As such, we reverse the order denying Watkins’ motion for additional jail credit and remand with directions that the trial court either credit Watkins with fifteen additional days of time served as to each charge, or attach documents to a denial order demonstrating that Watkins is not entitled to the additional credit.

REVERSED AND REMANDED.

SAWAYA, LAWSON and WALLIS, JJ., concur.


text:
    Robert YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4324.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2014.
    Robert M. Young, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the order denying Robert Young’s motion to correct sentence filed pursuant to Florida Rule Criminal Procedure 3.800(a) without prejudice to Young raising the asserted scoresheet errors in a sworn, timely filed motion for postconviction relief filed under rule 3.850.

AFFIRMED.

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


author: EMAS, J.

text:
    Francisco and Sonia PAGES, Appellants, v. Julio Rafael SELIMAN-TAPIA, Appellee.
    No. 3D12-3432.
    District Court of Appeal of Florida, Third District.
    March 12, 2014.
    Rehearing Denied April 4, 2014.

      Richard G. Bartmon, Boca Raton, for appellants.
    Fleitas, Bujan & Fleitas and Jesus Bu-jan, Miami, and Christine Marichal, for appellee.
    Before SUAREZ, EMAS and LOGUE, JJ.
   EMAS, J.

Francisco and Sonia Pages (“Dr. and Mrs. Pages”) appeal two lower court orders: (1) an order denying their exceptions to, and adopting, the general magistrate’s Report and Recommendation; and (2) a final order dismissing their amended complaint with prejudice and entering final judgment in favor of Julio Rafael Seliman-Tapia (“Tapia”). For the reasons that follow, we affirm.

On December 27, 2009, Dr. and Mrs. Pages were in the parking lot of the Dolphin Mall when they were confronted by Tapia, who accused Dr. Pages of parking too close to his car, causing it to become inoperable. According to witnesses who testified at an evidentiary hearing, Dr. Pages became very agitated, and was acting in an aggressive and confrontational manner toward Tapia, who had his hands in his pockets and was backing away from Dr. Pages. Dr. Pages continued to be confrontational and was bumping into Ta-pia with his chest. Mrs. Pages got between her husband and Tapia. At some point, Dr. Pages turned toward Tapia’s wife, Ms. Singer, who was telling Dr. Pages to calm down. Dr. Pages then rushed toward Ms. Singer in an aggressive manner. At this point Tapia became worried about his wife, who was disabled, and Tapia rushed toward Dr. Pages and pushed him down, causing Dr. Pages to hit his head. Mrs. Pages testified that Tapia picked Dr. Pages up and threw him in the air, causing him to land on his head. She also testified that in doing so, Tapia made contact with Mrs. Pages, and that her back hurt for a few days afterward. Mrs. Pages was the only witness who testified that Tapia came into contact with her when Tapia pushed Dr. Pages down.

Tapia was later charged by information with felony battery on Dr. Pages and misdemeanor battery on Mrs. Pages. Pursuant to a negotiated plea, Tapia pled guilty to the misdemeanor battery, was adjudicated guilty, and the State entered a nolle prosequi to the felony battery charge.

The Pages filed a civil lawsuit against Tapia, and in the complaint asserted two counts — assault and battery against Dr. Pages and loss of consortium on Mrs. Pages’ behalf. The complaint was later amended to include an additional count of assault and battery upon Mrs. Pages.

Tapia asserted entitlement to immunity based on Florida’s Stand Your Ground laws. The issue of immunity was referred to a general magistrate, who conducted an evidentiary hearing on June 14, 2012. The general magistrate found that Tapia had established his entitlement to immunity under section 776.032, Florida Statutes (2009), applying a preponderance of the evidence standard. See State v. Yaqubie, 51 So.3d 474 (Fla. 3d DCA 2010). Specifically, the magistrate found that Mrs. Pages was not credible, and that the testimony of all the other witnesses established that Dr. Pages was the aggressor, and that Tapia acted only when Dr. Pages began moving aggressively toward Tapia’s wife. Dr. and Mrs. Pages filed exceptions to the general magistrate’s Report and Recommendation and, after a hearing, the trial court denied the exceptions and adopted the general magistrate’s Report and Recommendation. The court later entered final judgment in favor of Tapia, and dismissed the amended complaint with prejudice.

On appeal, we apply a mixed standard of review: “The trial court’s legal conclusion[s are] reviewed de novo, but its findings of fact are presumed correct and can be reversed only if not supported by competent substantial evidence.” Darling v. State, 81 So.3d 574, 577 (Fla. 3d DCA 2012).

Chapter 776, Florida Statutes, encompasses what is referred to as Florida’s “Stand Your Ground” law. Under section 776.032(1):

A person who uses force as permitted in s.776.012, s.776.013, or s.776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer....

Section 776.012 (“Use of force in defense of person”) provides in pertinent part:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.

Section 776.013, titled “Home protection; use of deadly force; presumption of fear of death or great bodily harm,” provides, inter alia:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another....

§ 776.018(3).

Dr. and Mrs. Pages assert that Tapia was not entitled to immunity because, under section 776.013(3), he was “engaged in unlawful activity” when he pushed Dr. Pages. As evidence that Tapia was “engaged in unlawful activity,” Dr. and Mrs. Pages point to Tapia’s plea of guilty to the misdemeanor battery charge on Mrs. Pages. In other words, Dr. and Mrs. Pages argue, Tapia’s guilty plea and adjudication of guilt for a battery upon Mrs. Pages established, as a matter of law, that Tapia was “engaged in unlawful activity” when he pushed Dr. Pages, barring Tapia from seeking immunity under section 776.032.

Even if we were to find that the guilty plea to misdemeanor battery upon Mrs. Pages established as a matter of law that Tapia was “engaged in criminal activity” under section 776.013, it is beside the point: Tapia was entitled to, and did, assert immunity not only under section 776.013, but under section 776.012 as well. Under section 776.012, Tapia would be justified in using non-deadly force against Dr. Pages if he reasonably believed such force was necessary to defend himself or Ms. Singer (Tapia’s disabled wife) against Dr. Pages’ imminent use of unlawful force.

It is true that under section 776.013(3), a person may “meet force with force, including deadly force” (emphasis supplied), which on its face appears to contemplate the use of both deadly and non-deadly force. We also acknowledge that the person seeking immunity under section 776.013(3) must establish that he was “not engaged in unlawful activity.” However, this “not engaged in unlawful activity” language is not present in the applicable portion of section 776.012, which unambiguously provides for the justified use of non-deadly force. Section 776.032, by its express language, provides immunity for a person “who uses force as permitted in sections 776.012, 776.013 or 776.031.” This language evidences a clear legislative intent to provide alternative bases for asserting immunity under the Stand Your Ground Law.

Therefore, even if Tapia was determined to have been “engaged in unlawful activity” (the misdemeanor battery upon Mrs. Pages) at the time of his use of force upon Dr. Pages, it is of no moment because the force used by Tapia upon Dr. Pages was non-deadly force and, under the relevant portion of section 776.012, Tapia need not establish that he was not engaged in unlawful activity.

Following an evidentiary hearing, the magistrate issued a detailed fourteen-page report and recommendation with factual findings, credibility assessments, and a conclusion that Tapia established by a preponderance of that evidence that he “had a reasonable fear for the safety of his wife, Ms. Singer, given Dr. Pages’ immediate and continuing aggressive behavior and, based on this reasonable fear, [Tapia] rushed over and pushed Dr. Pages hard to keep him from coming closer to his wife, Ms. Singer.” Thus, because a determination was made that Tapia reasonably believed he had to act to defend against Pages’ imminent use of “unlawful force” upon Tapia’s wife, Tapia was justified in the use of non-deadly force under section 776.012, rendering unnecessary any further discussion of the alternative provisions or requirements of section 776.013(3).

We conclude that there is competent substantial evidence to support the magistrate’s findings, and the trial court properly adopted the Report and Recommendation and dismissed the claims against Tapia. See In re Drummond, 69 So.3d 1054, 1056 (Fla. 2d DCA 2011) (holding “a trial court must accept the magistrate’s findings of fact if they are supported by competent, substantial evidence.”)

Affirmed.

      . Tapia’s car was equipped with a disabling device which renders the vehicle unable to start if it is struck or moved.

      . Section 776.032(1), Florida Statutes (2009) provides immunity "from criminal prosecution and civil action.”

      . A total of eight witnesses testified at the hearing before the general magistrate, including Tapia, his wife Ms. Singer, his cousin Francisco Ramirez, Dr. and Mrs. Pages, two mall security guards who witnessed the incident, the tow truck driver who was at the scene to tow Tapia’s car, and a retired police officer who was leaving the mall and witnessed the incident.

      .Even Dr. Pages admitted he was screaming and waving his arms at Tapia and that he bumped Tapia with his chest.

      . The reference to "any other place” distinguishes this provision from the preceding subsections of section 776.013, which address the use of force in a dwelling, residence, or occupied vehicle. See §§ 776.013(l)-(2), Fla. Stat. (2009).

      . Appellant’s argument would require us to conclude that the Legislature, in enacting section 776.013(3), abolished the long-recognized and near-universal common-law concept that there is no duty to retreat when using non-deadly force in defense of self or others. See Weiand v. State, 732 So.2d 1044, 1049 n. 4 (Fla.1999) (observing there is no duty to retreat when using non-deadly force in self-defense); Redondo v. State, 380 So.2d 1107, 1110 n. 1 (Fla. 3d DCA 1980), quashed in part on other grounds, 403 So.2d 954 (Fla.1981) (recognizing there is "no duty to retreat when the defender uses non-deadly force to defend himself against an unlawful assault. ‘It seems everywhere agreed that one who can safely retreat need not do so before using non-deadly force.’ W. LaFave & A. Scott, Jr., Criminal Law 395 (1972). 'If he does not resort to a deadly force, one who is assailed may hold his ground whether the attack upon him be of a deadly or some lesser character. Although it might be argued that a safe retreat should be taken if thereby the use of any force could be avoided, yet ... the logic of this position never has been accepted when moderate force is used in self-defense.’ State v. Abbott, 36 N.J. 63, 174 A.2d 881, 885 (1961). Indeed all the duty to retreat cases in Florida have involved homicides in which deadly force was employed by the person asserting self defense. 16 Fla. Jur. Homicide's 60 (1957)’’).
      There is nothing in the language of the Stand Your Ground Law, or its legislative history, evidencing an intent to effectuate such a change. See Fla. S. Comm, on CJ, CS for SB 436 (2005). To the contrary, the Stand Your Ground Law expanded the circumstances in which one using deadly force has no duty to retreat and may stand his or her ground (hence the name of the law) and meet force with force. The creation of a duty to retreat before using non-deadly force in defense of self or others would require express legislative language. See Thomber v. City of Ft. Walton Beach, 568 So.2d 914, 918 (Fla. 1990) (recognizing that "[t]he presumption is that no change in the common law is intended unless the statute is explicit and clear in that regard. Unless a statute unequivocally states that it changes the common law, or is so repugnant to the common law that the two cannot coexist, the statute will not be held to have changed the common law”)(internal citations omitted).

      . The magistrate determined that Tapia's guilty plea to (and adjudication of guilt for) misdemeanor battery did not, as a matter of law, bar Tapia from contending that he was not "engaged in unlawful activity.” The magistrate further determined, as a finding of fact, that Tapia was not engaged in unlawful activity and that the credible testimony established that Tapia had no physical contact with Mrs. Pages.
      Although the magistrate concentrated on the immunity provisions of section 776.013, Tapia had raised entitlement to immunity under sections 776.013 and 776.012. Because there was competent substantial evidence to support a finding of immunity under section 776.012, we need not address whether, under section 776.013, Tapia's guilty plea and adjudication conclusively established, for immunity purposes, that he was engaged in unlawful activity.


author: SUAREZ, J.

text:
    EVERBANK, a Federal Savings Bank, Appellant, v. ATLANTIC HOSPITALITY OF FLORIDA, LLC, East Coast Public Adjusters, Inc., East Coast Appraisers, LLC and Mintz Truppman, P.A., Appellees.
    No. 3D13-2619.
    District Court of Appeal of Florida, Third District.
    March 12, 2014.
    Shutts & Bowen and Suzanne Youmans Labrit and Tirso M. Carreja, Jr., Tampa, for appellant.
    Richard C. Wolfe, Miami, for appellee.
    Before WELLS, SUAREZ, and SCALES, JJ.
   SUAREZ, J.

Appellant EverBank, a federal savings bank, appeals the trial court’s Order denying EverBank’s motion to enforce a venue selection provision in a settlement agreement, which would require issues from the present litigation to be tried in an entirely separate action pending in Osceola County, and which granted Appellee Mintz Trupp-man, P.A.’s, motion to intervene. We reverse that portion of the trial court’s Order denying enforcement of the venue provision and affirm the remainder of the Order.

In 2004, Atlantic Hospitality of Florida, LLC [Atlantic] sustained a loss to a hotel it owned in Osceola County. In 2009, Atlantic sued its insurance carrier, General Star Indemnity Company, in Miami-Dade County Circuit Court to recover monies it claimed were owed under the policy of insurance due to the loss. Atlantic was represented in the Miami-Dade County action by the law firm of Mintz Truppman, P.A.

Also in 2009, EverBank brought a foreclosure action against Atlantic in Osceola County on the mortgage it held on the hotel. In 2012, the foreclosure action was settled. EverBank and Atlantic entered into a Stipulated Settlement Agreement in which Atlantic assigned to EverBank “50% of the net proceeds awarded for damages” in the General Star litigation pending in Miami-Dade County. EverBank and Atlantic are the only parties to, and the only two signatories of, the Stipulated Settlement Agreement.

The Stipulated Settlement Agreement contained the following venue provision:

(G) Venue. This Agreement shall be interpreted in accordance with the laws of the State of Florida. In the event of litigation, Osceola County shall be deemed the venue.

In May 2013, the General Star litigation settled and the proceeds were placed in the Mintz Truppman P.A. trust account. EverBank subsequently demanded 50% of the net proceeds of the General Star settlement and objected to any disbursements of the settlement proceeds. At the same time, East Coast Public Adjusters, Inc. and East Coast Appraisers also demanded a portion of the General Star settlement money.

In July 2013, Atlantic brought in Miami-Dade County Circuit Court the present declaratory action against EverBank and the East Coast entities. Atlantic is seeking a declaration that the 50% provision of the Stipulated Settlement Agreement does not entitle EverBank to any of the General Star settlement proceeds and also claims that the East Coast Entities are not entitled to any more money from the settlement. The trial court permitted Mintz Truppman, P.A. to intervene in the declaratory judgment action.

EverBank moved to dismiss, arguing that the venue provision of the Stipulated Settlement Agreement required that all of the causes of action had to be brought in Osceola County. After an extensive hearing, the trial court denied EverBank’s motion citing to Manrique v. Fabbri, 493 So.2d 437, 440 (Fla.1986) and Ware Else, Inc. v. Ofstein, 856 So.2d 1079, 1082 (Fla. 5th DCA 2003). The trial court determined that although the venue clause was mandatory, in this situation it would be unreasonable and unjust to the other parties to have to litigate in Osceola County, and that the entire matter should remain in Miami-Dade County Circuit Court. We reverse in part and affirm in part.

We reverse that portion of the trial court’s Order denying enforcement of the venue provision of the Stipulated Settlement Agreement. The agreement contains a venue provision stating, in pertinent part: “in the event of litigation, Osceola County, Florida shall be deemed the venue.” We agree with EverBank that, as to the dispute between Ever-Bank and Atlantic concerning the 50% provision of the Stipulated Settlement Agreement, the venue selection clause is mandatory. Espresso Disp. Corp. v. Santana Sales & Mktg. Group, Inc., 105 So.3d 592 (Fla. 3d DCA 2013). Further, no compelling reason exists for not enforcing the venue provision as to those two parties. Manrique, 493 So.2d at 437 (Fla.1986).

In light of the venue provision, we conclude that the dispute between EverBank and Atlantic concerning the interpretation of the provision in the Stipulated Settlement Agreement assigning EverBank “50% of the net proceeds awarded for damages” in the General Star litigation should be determined in Osceola County as agreed to by EverBank and Atlantic.

We affirm the remainder of the trial court’s Order requiring all other issues remain in the Circuit Court of Miami-Dade County for resolution and allowing the intervention of Mintz Truppman, P.A. The other issues in the Miami-Dade County action are between parties that did not sign the Stipulated Settlement Agreement and raise questions as to which of these parties is entitled to how much money out of the General Star settlement. These issues arise out of a completely separate contract, the insurance policy between General Star and Atlantic, and not out of the Stipulated Settlement Agreement, the only contract that has the Osceola County venue provision. No issue between these parties concerns the interpretation of the Stipulated Settlement Agreement. As the causes of action do not involve matters relating to the Stipulated Settlement Agreement and as these parties are not signatories to that agreement, the venue provision does not apply. Drucker v. Duvall, 61 So.3d 468, 471-72 (Fla. 4th DCA 2011); Leatherwood v. Cardservice Int’l, Inc., 885 So.2d 997 (Fla. 4th DCA 2004).

Accordingly, we reverse the portion of the Order on appeal which effectively refused to enforce the venue provision of the Stipulated Settlement Agreement and which attempted to stay the proceedings in Osceola County.

We affirm as to all other issues on appeal.

      . It appears Atlantic is arguing that the proceeds obtained in settlement of the General Star litigation are not an “award” as required by the Stipulation as they are the product of a settlement. This is not an issue in this appeal and we do not address the merits of the argument.

      . We agree with the trial court’s findings but for different reasons. Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 645 (Fla.1999) (discussing the "tipsy coachman” rule).


author: WELLS, Judge.

text:
    Henry T. COURTNEY and the Courtney Law Firm, Petitioners, v. Joan HALL-EDWARDS, etc., et al., Respondents.
    No. 3D13-2662.
    District Court of Appeal of Florida, Third District.
    March 12, 2014.

      James C. Blecke, for petitioners.
    Law Office of Robertson & Hunter and Loriellen Robertson, Key West; Gutierrez & Gutierrez and Gustavo Gutierrez, Coconut Grove, for respondents.
    Before WELLS, SUAREZ and LAGOA, JJ.
   WELLS, Judge.

We quash the decision of the court below denying any fee award to a discharged attorney who sought to enforce a charging lien for $114,250 in fees — an amount stipulated as reasonable — following a settlement post-dating a $19,000,000 jury award. This order, while acknowledging that the petitioner/lawyer is “a fine lawyer” who conducted the initial investigation in this case and conducted “well-drafted general crashworthiness discovery,” was entitled to no fee whatsoever for his efforts because subsequent counsel had to fight long and hard before the case finally settled, thereby dwarfing petitioner’s efforts and entitling his fee request to no consideration:

After Kastor and attorney Richard Denny appeared in the case, the case was aggressively prosecuted on specific defect theories regarding skate, restraint systems, and stability. Both attorneys were active in the Firestone litigation MDL regarding Ford Explorers and knew where key witnesses and key documents were located, and how to access them. The case went to trial before Judge Piniero, resulting in a $60 million verdict overturned on appeal. The case went to trial before Judge Genden resulting in a mistrial after several weeks. The case went to trial before Judge Platzer and the parties could not secure a jury. Finally, the case went to trial before the undersigned with a nearly four week trial resulting in a verdict of $19 million which was settled post-judgment. The case was tried three times before the last verdict.
Mr. Courtney is a fine lawyer. Had the case settled earlier and easier, the Court may have considered the [attorneys’ fee] claim. It didn’t. Successor counsel and Mrs. Hall-Edwards had to fight an uphill battle for years, and Ford did not surrender an inch of hill willingly. The contributions of Mr. Courtney at the commencement of this case were dwarfed by the subsequent efforts of successor counsel. Mr. Courtney’s contributions, while typical and competent at the commencement of such a case, did not proportionately contribute to the result. Mr. Courtney left the case at the earliest stages in 2001. The last verdict occurred twelve years and four trial attempts later, resulting in settlement.
Therefore the claim for quantum merit [sic] fees is respectfully denied.

We quash the order in part because a client’s desire to hire a more aggressive lawyer with greater “expertise” than the lawyer initially hired does not deprive the initially discharged attorney of entitlement to be paid for his or her work. This would make charging liens all but superfluous. See Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1384 (Fla.1983) (“The charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It serves to protect the rights of the attorney. Worley v. Phillips, 264 So.2d 42 (Fla. 2d DCA 1972). Charging liens have been recognized in Florida for more than a century. See, e.g., Carter v. Davis, 8 Fla. 183 (1858); Carter v. Bennett, 6 Fla. 214 (1855); Randall v. Archer, 5 Fla. 438 (1854).”); accord Rosenthal, Levy & Simon, P.A. v. Scott, 17 So.3d 872, 874 (Fla. 1st DCA 2009). That is especially so where, as here, it appears that the subsequent “more aggressive” lawyer’s behavior needlessly prolonged the matter.

That the case purportedly was an uphill battle that took many years to resolve after petitioner’s discharge also does not support denial of a fee award to petitioner. This matter was first tried in November of 2005, only four years after petitioner was discharged, and resulted in a $60,000,000 verdict in respondent’s favor. During that trial, respondent called to testify two expert witnesses that petitioner identified, interviewed and educated about this case. The reason this case was not resolved at that time (that is, at a time sufficiently close to the time of petitioner’s discharge arguably to justify a fee award to him under the trial judge’s reasoning) was not because the case involved any new or novel theory of liability as respondents assert but because the attorneys then representing respondent improperly adduced at trial similar incident evidence without laying a proper foundation, an error that resulted in nullification of the $60,000,000 verdict. See Ford Motor Co. v. Hall-Edwards, 971 So.2d 854 (Fla. 3d DCA 2007). This failure on subsequent counsel’s part cannot be laid at petitioner’s door so as to deny a fee award to him because this case did not resolve earlier.

This is certainly so in light of the fact that this matter was not brought to trial again for another six years, again not for anything petitioner did, but because under subsequent counsel’s guidance the case had gone astray:

This case appears to have gone astray after we reversed and remanded [in 2007]. Our opinion and the quoted passages from the testimony seem to reveal that at one point the plaintiff had been prepared to argue, and indeed argued, that Ford Explorers were defective regarding handling and stability characteristics. During the 2005 trial, the plaintiff bolstered these characteristics through the testimony of experts who had warned Ford about the problem about “150 times.” Our reversal was not based on any new evidentiary requirement that the plaintiff lay a sufficient predicate to establish substantial similarity between this accident and the other accidents which had “killed hundreds of people.” The predicate for admissibility of similar accident evidence is not a new evidentiary requirement. We thus fail to see how these discovery disputes have now surfaced more than eleven years after the accident and three years after the first trial.

Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, 1152 (Fla. 3d DCA 2009) (citations omitted). Again, the fact that this case did not resolve earlier or easier falls squarely on subsequent counsel’s shoulders and serves no basis for denying petitioner a fee award.

As the trial court recognized, petitioner’s early efforts on respondent’s behalf were not nugatory. He interviewed witnesses, located and preserved the automobile involved in the accident, he crafted meaningful and appropriate discovery, he located, interviewed and educated two experts both of whom testified at the first trial wherein a $60,000,000 verdict was entered and one of whom testified at the fourth trial where a $19,000,000 verdict was entered. Petitioner also sent Ford a $10,000,000 demand letter. Together, these actions establish that petitioner’s efforts were of some significance and entitled him to a fee award.

Lastly, we note that this case was settled after a $19,000,000 jury award and while the record does not state the amounts finally paid to respondent or to her attorneys, no argument has been made that the $114,250 that the parties stipulated to be a reasonable fee for petitioner’s efforts would in any manner be disproportionate to the amount respondent and her lawyers received.

We therefore quash the order on review and remand for entry of an award in the amount stipulated by all parties to have been a reasonable fee. Kushner v. Engelberg, Cantor & Leone, P.A., 750 So.2d 33, 35-6 (Fla. 4th DCA 1999) (confirming that even where an attorney has been terminated for cause the proper basis for compensating an attorney is “ ‘the quantum meru-it value of the services rendered less any damages which the client incurred due to the attorney’s conduct and discharge’ ” (quoting Kushner v. Engelberg, Cantor & Leone, P.A., 699 So.2d 850, 851 (Fla. 4th DCA 1997))).

Petition granted; order quashed.

      . We also note that there is no claim that the amount of the fee sought by petitioner is in any manner not proportional to either the fee secured by subsequent counsel or the recovery secured by the client following settlement of a $19,000,000 jury award.

      . The court was critical of this demand letter's brevity and its failure to discuss theories of liability. However, as petitioner points out, "one inconsequential letter does not support a total forfeiture of the substantial stipulated reasonable fee.”