author: WELLS, Judge.

text:
    PROFESSIONAL ROOFING AND SALES, INC., and Jose Alvarez, Petitioners, v. Derrick Roy FLEMMINGS, Respondent.
    No. 3D13-2162.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.

      Beth M. Gordon, Williston, for petitioners.
    Billbrough & Marks and Geoffrey B. Marks, Coral Gables, for respondent.
    Before WELLS, SUAREZ and LAGOA, JJ.
   WELLS, Judge.

Professional Roofing & Sales, Inc. and Jose Alvarez, the defendants below, petition for review of’an order denying their motion to dismiss the instant civil action under the provisions of Chapter 776 of the Florida Statutes (Florida’s Stand Your Ground Law). We treat the matter as a petition for writ of prohibition. See Mederos v. State, 102 So.3d 7, 11 (Fla. 1st DCA 2012) (“A writ of prohibition is the proper vehicle for challenging a trial court’s denial of a motion to dismiss a charge on the ground of immunity from prosecution pursuant to the Stand Your Ground Law.”). Because the trial court denied the motion without first holding an evidentiary hearing to determine whether Alvarez was justified in using force against the plaintiff below, Derrick Roy Flemmings, under Florida’s Stand Your Ground Law, we grant the petition and remand for further proceedings consistent with this opinion. See § 776.012, Fla. Stat. (2014); § 776.032(1), Fla. Stat. (2014).

The State of Florida charged Jose Alvarez with aggravated battery with a deadly weapon for striking Flemmings, a former employee, with a baseball bat at the place of employment, Professional Roofing & Sales, Inc., on December 4, 2008. Claiming that he was immune from criminal prosecution because he had used justifiable force to defend himself against Flemmings’ imminent use of unlawful force, Alvarez filed a motion to dismiss under Florida’s Stand Your Ground Law on July 26, 2010. After conducting an evidentiary hearing on the motion to dismiss at which Alvarez, his wife and Flemmings testified, the criminal court granted the motion and dismissed the criminal charges against Alvarez on April 6, 2011.

While the criminal matter was still pending, Flemmings filed the instant civil action against Alvarez on October 19, 2010, raising claims for assault, battery, negligence and intentional infliction of emotional distress. Flemmings also sued the employer, Professional Roofing, on theories of vicarious liability for negligence and negligent retention of a dangerous employee. All of the claims raised therein are based on the same underlying facts as those in the dismissed criminal prosecution. Namely, that Alvarez had “severely and repeatedly beaten [Flemmings] with a baseball bat” on December 4, 2008. Flem-mings later amended the complaint to add a claim for punitive damages against both defendants.

On May 9, 2011, the petitioners filed their “Sworn Motion to Dismiss,” claiming immunity under Florida’s Stand Your Ground Law. Specifically, the petitioners argued that Alvarez was immune from this civil action because the criminal court had already dismissed the criminal charges against him under the same statute applicable here (section 766.082(1)) and on the same underlying facts. The trial court summarily denied the motion on September 14, 2011.

The petitioners did not seek appellate review at that time. Instead, on November 29, 2011, Alvarez filed an answer to the complaint and raised the following affirmative defense, among others: “Defendant JOSE ALVAREZ is immune from suit for the claims asserted by the Plaintiff.” On March 8, 2013, Professional Roofing filed its answer to the complaint, raising the following affirmative defense, among others: “Defendant PROFESSIONAL ROOFING is not liable for the acts alleged in Plaintiff’s complaint because the Defendant JOSE ALVAREZ ... is immune from suit and subject to dismissal based on Collateral Estoppel and Res Judicata.”

On or about March 4, 2013, the petitioners filed their “Motion to Dismiss for Res Judicata and/or Collateral Estoppel and for an Award of Attorney Fees.” Therein, petitioners again claimed immunity under Florida’s Stand Your Ground Law because Alvarez had already been found immune from criminal prosecution on the same underlying facts, citing the common law doctrines of res judicata and collateral estoppel. After holding a non-evidentiary hearing, the trial court summarily denied the motion to dismiss on July 22, 2013.

The hearing transcripts indicate that the trial court denied the motion as successive because it had previously denied the immunity claim. Nevertheless, expressing the belief that it would be more appropriate to consider the issue at the summary judgment stage of the proceeding, the court stated on the record it would “deal with it [on] a motion for summary judgment.” The matter is now before this court on petition for writ of prohibition. For the following reasons, we find that principles of res judicata/collateral estop-pel do not apply, but nevertheless remand for an evidentiary hearing on Alvarez’ entitlement to immunity from the instant civil action.

Res judicata/collateral estoppel do not apply

Section 776.012 provides for justifiable use of force in defense of person:

A person is justified in using 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.

§ 776.012, Fla. Stat. (2014). Section 776.032 provides that a person who uses such justifiable force receives immunity for the use of that force:

(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 ...

§ 776.032(1), Fla. Stat. (2014).

Under these statutes, once the criminal circuit court made the legal determination that Alvarez’ use of force against Flemmings was justified, Alvarez was entitled to immunity from criminal prosecution for aggravated battery with a deadly weapon and the criminal charges were dismissed. See §§ 776.012, 776.032(1), Fla. Stat. (2014). According to the petitioners, such legal determination only needed to be made once, so that immunity should automatically apply in this civil action under common law principles of res judicata and/or collateral estoppel. We disagree.

The doctrine of res judicata, also known as claim preclusion, applies where four elements are present:

(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim in made.

Topps v. State, 865 So.2d 1253, 1255 (Fla.2004). Whereas, collateral estoppel, also known as issue preclusion, applies only where:

1) the identical issues were presented in a prior proceeding; 2) there was a full and fair opportunity to litigate the issues in the prior proceeding; 3) the issues in the prior litigation were a critical and necessary part of the prior determination; 4) the parties in the two proceedings were identical; and 5) the issues were actually litigated in the prior proceeding.

Porter v. Saddlebrook Resorts, Inc., 679 So.2d 1212, 1214-15 (Fla. 2d DCA 1996).

The critical element that is missing in this case as to both of these doctrines is mutuality of parties because the State of Florida, not Flemmings, was the opposing party to Alvarez in the criminal prosecution. See, e.g., Massey v. David, 831 So.2d 226, 232 (Fla. 1st DCA 2002) (“In order for res judicata or collateral estoppel ... to apply, Florida requires ‘mutuality’ and ‘identity of parties.’ Identity of parties and mutuality do not exist unless the same parties or their privies participated in pri- or litigation that eventuated in a judgment by which they are mutually bound.”) (footnote omitted; citation omitted). Res judi-cata and collateral estoppel do not, therefore, apply to preclude prosecution of the instant action.

We also do not find that the Florida legislature modified or abrogated application of these common law doctrines when it conferred immunity from both civil and criminal actions under the Stand Your Ground Law. See McGhee v. Volusia County, 679 So.2d 729, 733 (Fla.1996) (recognizing that “a statute will not be construed to modify the common law unless such intent is evident or the statute cannot otherwise be given effect”). We decline to so find because the Stand Your Ground Law does not express an intent to abrogate doctrines requiring mutuality and because when the legislature has sought by legislative enactment to abrogate these doctrines, it has clearly and expressly done so. For example, sections 772.14 and 775.089 of the Florida Statutes aid crime victims in obtaining a civil recovery against defendants convicted of certain crimes (i.e. civil theft), by estopping those defendants from challenging in a civil action matters that were already adjudicated in a criminal proceeding:

772.14 Estoppel of defendant. A final judgment or decree rendered in favor of the state in any criminal proceeding concerning the conduct of the defendant which forms the basis for a civil cause of action under this chapter, or in any criminal proceeding under chapter 895, shall estop the defendant in any action brought pursuant to this chapter as to all matters as to which such judgment or decree would be an estoppel as if the plaintiff had been a party in the criminal action.
775.089 Restitution—
(8) The conviction of a defendant for an offense involving the act giving rise to restitution under this section shall estop the defendant from denying the essential allegations of that offense in any subsequent civil proceeding. An order of restitution hereunder will not bar any subsequent civil remedy or recovery, but the amount of such restitution shall be set off against any subsequent independent civil recovery.

§ 772.14, Fla. Stat. (2014); § 775.089(8), Fla. Stat (2014) (emphasis supplied); see J & P Transp., Inc. v. Fid. & Cas. Co. of N.Y., 750 So.2d 752, 753 (Fla. 5th DCA 2000) (recognizing that sections 772.14 and 775.089(8) “estop a defendant from denying the essential elements of a crime in a subsequent civil .proceeding involving the same matters”). “The plain intent of these statutes is to eliminate the common law requirement of identity of parties for collateral estoppel to be used offensively in a civil theft suit.” Stafford v. Don Reid Ford, Inc., 920 So.2d 791, 793 (Fla. 5th DCA 2006); see also Starr Tyme, Inc. v. Cohen, 659 So.2d 1064, 1067 (Fla.1995) (“Section 772.14 abrogates the requirement of mutuality of parties in the context of civil actions brought by crime victims under chapter 772. The statute abrogates the requirement by allowing a plaintiff in a chapter 722 civil suit to use as an estoppel a ‘final judgment or decree rendered in favor of the state’ in a prior criminal proceeding that concerned the conduct at issue in the civil action.”).

Fui'thermore, as noted by the Florida Supreme Court, sections 775.089(8) and 772.14 did not abolish the doctrine of mutuality in its entirety, but rather evidenced the legislature’s specific intent to restrict it in the manner expressly set forth:

Stogniew also contends that the legislature effectively abolished the doctrine of mutuality when it enacted sections 775.089(8) and 772.14, Florida Statutes (1993) which give collateral estoppel effect to criminal convictions in subsequent civil proceedings brought by the victim of the crime. We disagree. The legislature’s limited involvement in this arena shows that it only chose to restrict the doctrine of mutuality in a few specifically identified situations. The legislature has not mandated the total abandonment of the mutuality requirement for collateral estoppel in other circumstances.

Stogniew v. McQueen, 656 So.2d 917, 920 (Fla.1995) (footnote omitted).

Similarly, under section 776.085 of the Florida Statutes, a person may not be held liable for damages for personal injury or the wrongful death of a person who attempted, or who was attempting, to engage in a forcible felony at the time the injuries were sustained. The Florida legislature accomplished this result first by creating the defense to such a civil action and then clearly and specifically providing that the defense is established by evidence of a criminal conviction for a forcible felony or attempted forcible felony:

(1) It shall be a defense to any action for damages for personal injury or wrongful death, or for injury to property, that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony. The defense authorized by this section shall be established by evidence that the participant has been convicted of such forcible felony or attempted forcible felony, or by proof of the commission of such crime or attempted crime by a preponderance of the evidence.

§ 776.085(1), Fla. Stat. (2014). The legislature further provided for a stay of the civil action pending the outcome of the criminal proceeding which forms the basis for establishing the defense:

(3) Any civil action in which the defense recognized by this section is raised shall be stayed by the court on the motion of the civil defendant during the pendency of any criminal action which forms the basis for the defense, unless the court finds that a conviction in the criminal action would not form a valid defense under this section.

§ 776.085(3), Fla. Stat. (2014).

In contrast, Florida’s Stand Your Ground Law includes no language evidencing an intent by the legislature that a criminal court’s determination that a person’s use of force was justified, making him or her immune from criminal prosecution, is determinative on this issue in a civil action brought by a non-party to the criminal proceeding, and involving the same nucleus of facts and the same use of force. See § 776.032, Fla. Stat. (2014). And while such a reading might be implied from some language in subsections (1) and (3) of 776.032, given the well-established jurisprudence that statutes should be construed strictly and in a manner such that “no change in the common law can be said to be legislatively intended unless the statute speaks plainly in such regard or cannot otherwise be given effect,” we decline to infer such an intent. Fullerton v. Fla. Med. Ass’n, Inc., 938 So.2d 587, 592 (Fla. 1st DCA 2006).

An evidentiary hearing is required

In State v. Yaqubie, 51 So.3d 474, 476 (Fla. 3d DCA 2010), this court confirmed that “section 776.032 is a true immunity provision, not merely an affirmative defense, which requires a trial court to adjudicate disputed fact issues rather than passing them on to a jury as it would an affirmative defense.” Thus, determining such an immunity claim on a motion for summary judgment is not appropriate. See Ramos v. Wright Superior, Inc., 610 So.2d 46, 48 (Fla. 3d DCA 1992) (confirming that “summary judgment is proper only when there is a complete absence of genuine issues of material fact”). Rather, the appropriate procedure for determining such a claim, we believe, is that enunciated in Peterson v. State, 983 So.2d 27, 29 (Fla. 1st DCA 2008), and approved by the Florida Supreme Court in Dennis v. State, 51 So.3d 456, 463 (Fla.2010), for resolution of such claims in the context of a criminal prosecution. That procedure requires an evidentiary hearing to confront and weigh factual disputes, wherein the defendant bears the burden of establishing, by a preponderance of the evidence, entitlement to the immunity conferred by the Stand Your Ground Law:

We now hold that when immunity under this law is properly raised by a defendant, the trial court must decide the matter by confronting and weighing only factual disputes. The court may not deny a motion simply because factual disputes exist. Here, the trial court did what was required. Petitioner is not precluded from submitting the matter to the jury as an affirmative defense in his criminal trial.
In the absence of a procedure for handling these matters, we find guidance from the Colorado Supreme Court’s decision in People v. Guenther, 740 P.2d 971 (Colo.1987). In that case, the court decided that Colorado’s similar immunity statute authorized a trial court to dismiss a criminal prosecution at the pretrial stage and did not merely create an affirmative defense for adjudication at trial. Id. at 976. The court further determined that a defendant raising the immunity would have the burden of establishing the factual prerequisites to the immunity claim by a preponderance of the evidence. Id. at 980. The court imposed the same burden of proof as it would in motions for postconviction relief or motions to suppress. Id.
Likewise, we hold that a defendant may raise the question of statutory immunity pretrial and, when such a claim is raised, the trial court must determine whether the defendant has shown by a preponderance of the evidence that the immunity attaches.

Dennis, 51 So.3d at 459-60 (quoting Peterson, 983 So.2d at 29); see Pages v. Seliman-Tapia, 134 So.3d 536 (Fla. 3d DCA 2014) (affirming the dismissal of a civil action under Florida’s Stand Your Ground Law, where the trial court referred the issue of immunity to a general magistrate for an evidentiary hearing, applying a preponderance of the evidence standard).

Conclusion

We therefore agree with the trial court that res judicata and collateral estoppel do not apply to bar prosecution of the instant case; however, we find that the trial court should have conducted an evidentiary hearing on petitioners’ Stand Your Ground immunity claim. Accordingly, the petition for writ of prohibition is granted, the order on review is quashed and the matter remanded for farther proceedings consistent ■with this opinion.

Petition granted, order quashed and case remanded.

      . As a preliminary matter, we reject Flem-mings’ argument that either the petition is untimely and/or the issue was waived when petitioners did not seek review of the lower court’s denial of their initial motion to dismiss, but instead waited until after the court denied their second motion to dismiss. "There is no requirement in the Florida Rules of Appellate Procedure that a petition for writ of prohibition be filed within a certain time period of the order to be reviewed. We may therefore review both the trial court's first order and its second order denying [the] motion to dismiss ...." Gordon v. Regier, 839 So.2d 715, 717 n. 2 (Fla. 2d DCA 2003).

      . Section 776.032(3) provides for an award of attorney’s fees, costs, compensation for loss of income and expenses incurred in defending a civil action that stems from the use of justifiable force:
      (3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
      § 776.032(3), Fla. Stat. (2014).


source: Caselaw Access Project

author: VAN NORTWICK, J.

license: Public Domain

text:
    John R. FERIS, Jr., Appellant, v. CLUB COUNTRY OF FORT WALTON BEACH, INC., d/b/a The Block And Founders Insurance Company, d/b/a, Prosure Insurance Company, Appellees.
    No. 1D12-4633.
    District Court of Appeal of Florida, First District.
    April 30, 2014.

      Charles F. Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
    Michael W. Kehoe of Fuller, Johnson, Kehoe, Horky & Rettig, LLC, Pensacola, for Appellees;
   VAN NORTWICK, J.

John R. Feris, Jr. appeals the trial court’s entry of final summary judgment on count I of his complaint which asserted a slip-and-fall cause of action against Club Country of Fort Walton Beach, Inc. (Club Country), pursuant to section 768.0710, Florida Statutes (2009). As explained below, because there are genuine issues of material fact that preclude summary judgment, we reverse and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

Feris filed a complaint alleging that, while he was an invitee on Club Country’s premises, Club Country negligently maintained the premises by allowing a slippery substance, possibly containing alcohol, to remain on the premises; that Club Country failed to warn him of the condition; that he slipped and fell in the slippery substance; that Club Country knew or should have known of the dangerous condition because it permits patrons to take drinks onto the dance floor in the area in which he slipped and fell; that Club Country caused or created this condition, or knew or should have known of the condition because it existed long enough for Club Country to have discovered it; and that he suffered bodily and other injury as a direct and proximate result of Club Country’s negligence. Club Country responded with an answer and affirmative defenses.

Club Country filed a motion for summary judgment, arguing that section 768.0755, Florida Statutes (2010), requires a plaintiff to establish the defendant’s knowledge of the dangerous condition. Further, Club Country asserts that, while constructive knowledge may be established by showing that the condition existed for such a length of time that the defendant should have known of the condition through the exercise of ordinary care, here there was no evidence as to how long the slippery substance leading to Feris’ fall had been on the floor at Club Country’s premises.

Feris filed affidavits and deposition transcripts in opposition to the motion for summary judgment, including depositions from himself, Laura Sandy, and Darius Parker. In his deposition, Feris testified that Sandy and Shannon Schillaci saw him fall, at which time they were standing on the dance floor with drinks in hand. He further testified that, while Club Country had a policy against allowing drinks on the dance floor, the policy was ignored and Club Country staff were present when the fall occurred and it was obvious that people had drinks on the dance floor. Feris also stated that the first time he noticed the substance on the floor was after he had fallen; that after he fell, the substance on which he slipped was on his clothing and smelled of alcohol; that he did not have a drink with him when he fell on the dance floor; and that he had no idea how the substance got on the dance floor or how long it had been there prior to the fall.

Sandy testified at deposition that she did not see what Feris slipped on, but believed it had to have been on something based on the way he fell. Further, as soon as Feris was helped off the dance floor, a Club Country employee went to the location where Feris fell and wiped the area. Sandy stated that she did not see anyone spill a drink on the floor where Feris slipped, but remembered that “everyone” had drinks- on the floor that night. She added that she had seen many people spill drinks on the dance floor on other occasions and that she was not sure if Club Country had a policy about drinks on the dance floor, but, if such a policy exists, it is not enforced and there is no signage in the room indicating a policy.

Darius Parker testified at deposition that, after Feris fell, he noticed that the floor where the accident occurred was wet. He stated that the accident occurred near an audio speaker and that patrons often placed their drinks on the speakers. Further, he testified that he had seen people with drinks on the dance floor and people spill their drinks on the dance floor. Parker stated that he had no idea how long the spill existed or how it was caused, and that he did not know if Club Country had a drink policy or if any signs notifying of such policy were in the dance room.

Feris also submitted a memorandum of law in opposition to the motion for summary judgment, arguing that section 768.0710 applied to the case and that the statute did not require him to prove Club Country’s actual or constructive knowledge of the dangerous condition. At the hearing on the motion for summary judgment, Club Country argued that there was no evidence as to how long the substance was on the floor, therefore Feris could not create a reasonable inference from which the jury could conclude that Club Country created or allowed a dangerous condition to exist. Feris contended that he had offered testimony that, if Club Country had a policy prohibiting drinks on the dance floor, the policy was not enforced in the room where the accident occurred, which at least created a question of fact on that issue.

The trial court held that subsection (2)(b) of section 768.0710, requires “some evidence of negligence by failing to exercise reasonable care in the maintenance, inspection, repair, warning or mode of operation of the business premises,” and that no such evidence appeared in the record. Based on that reasoning, the trial court pronounced summary judgment in favor of Club Country, which was followed by a written order to that effect. Feris filed a motion for rehearing, which the trial court denied. This appeal ensued.

Analysis

A trial court’s order granting a motion for summary judgment is reviewed de novo. Ramsey v. Home Depot U.S.A, Inc., 124 So.3d 415, 416 (Fla. 1st DCA 2013). “Summary judgment should be entered only when there is no genuine issue of any material fact, and even the slightest doubt as to the existence of such a question precludes summary judgment.” Id. at 416-17 (quoting Laidlaw v. Krystal Co., 53 So.3d 1128, 1129 (Fla. 1st DCA 2011)).

Under section 768.0710(2), Florida Statutes (2009), which was in effect when Fer-is’ cause of action accrued, a plaintiff must plead and prove the following three elements:

(a) The person or entity in possession or control of the business premises owed a duty to the claimant;
(b) The person or entity in possession or control of the business premises acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises. Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim. However, evidence of notice or lack of notice offered by any party may be considered together with all of the evidence; and
(c) The failure to exercise reasonable care was a legal cause of the loss, injury, or damage.

Section 768.0755, Florida Statutes (2010), which became effective July 1, 2010, approximately a month before Feris filed his complaint, provides that:

(1) If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:
(a) The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or
(b) The condition occurred with regularity and was therefore foreseeable.
(2) This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.

Thus, under either statute, to survive a motion for summary judgment a plaintiff must show sufficient facts, taken as true, to create a genuine issue of material fact that the party in control of the premises owed a duty of reasonable care to the plaintiff; that the defendant breached the duty of care (and had actual or constructive knowledge of the existence of the breach or dangerous condition when moving under section 768.0755); and that the defendant’s breach was the legal cause of the plaintiffs injuries or damages.

Here, Feris showed that he was Club Country’s business invitee, which would trigger a duty of reasonable care on Club Country’s part towards him. Food Lion, LLC v. Monument/Julington Assoc. Ltd. Partnership, 939 So.2d 1106, 1107-08 (Fla. 1st DCA 2006) (“A landowner owes a business invitee a duty not only to react to hazards of which it has notice but also to inspect to ensure conditions are safe or, at the least, that hazards (unless open and obvious) are discovered and warned against.”). Club Country’s primary contention is that Feris has offered no evidence as to its knowledge or notice of the existence of the transitory substance on the dance floor that created a dangerous condition. Indeed, the trial court predicated its entry of summary judgment in Club Country’s favor on this perceived lack of evidence as to Club Country’s knowledge or notice. In other words, the trial court found that Feris had failed to present sufficient evidence to create a genuine issue of material fact on the question of Club Country’s breach of its duty of care.

While none of the deposition testimony offered by Feris establishes how the substance that caused Feris’ accident came to be on the dance floor, each deponent testified that patrons in the dance room where the fall occurred routinely took drinks onto the dance floor, which commonly resulted in spills on the dance floor. Additionally, both Feris and Sandy testified that Sandy and her friend were on the floor with their drinks when Feris’ accident occurred. Further, Parker testified that Feris’ fall took place near a speaker, and that patrons customarily put their drinks on the speakers. Finally, Feris and Parker each stated that the spot where Feris fell was wet, and Feris testified that after the fall his jeans were wet with a substance that smelled like alcohol.

We conclude that the testimony of Feris, Sandy, and Parker presents circumstantial evidence from which a jury could infer that Club Country or its agents allowed or caused a dangerous condition to exist, or that this condition existed with such regularity that Club Country knew or reasonably should have known of its existence. If, as the deposition testimony reflects, it was normal for patrons to take and spill drinks on the dance floor in the room where the fall occurred, it could logically be inferred that such was done with either Club Country’s allowance or actual knowledge. Similarly, if drinks were typically taken and spilled on the dance floor, one could reasonably deduce that Club Country would have discovered the presence of drinks and the attendant spills through the exercise of ordinary care in inspecting the premises. Therefore, the testimonial evidence presented here would be a valid basis upon which a jury could find that Club Country “acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises.” § 768.0710. Furthermore, this evidence could form the basis of a jury’s charging Club Country with constructive knowledge based on the dangerous condition’s existence “for a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or [that] [t]he condition occurred with regularity and was therefore foreseeable.” § 768.0755. Accordingly, under either statute, Feris has met his burden of pleading and offering sufficient evidence as to the breach of duty element of a Florida transitory substance/premises liability claim in order to survive a motion for summary judgment.

Retroactive Application

Because of our holding, whether section 768.0755 applies retroactively is not dispositive of the issue at bar. Nevertheless, we observe that:

The Florida Supreme Court has adopted a two-pronged test for determining whether a statute may apply retroactively: a reviewing court must ascertain (1) whether the Legislature clearly expressed its intent that the statute have retroactive application; and if so, (2) whether retroactive application would violate any constitutional principles.

Presmy v. Smith, 69 So.3d 383, 386 (Fla. 1st DCA 2011) (citing Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass’n One, 986 So.2d 1279, 1284 (Fla.2008)). “The statute must pass both parts of this test to be applied retroactively.” Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So.3d 269, 279 (Fla. 1st DCA 2012). See also Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc., 67 So.3d 187, 194, 196 (Fla.2011) (“Our precedent makes abundantly clear that in determining the question of retroactivity of a legislative enactment, the court must apply the two-prong test — beginning with a search for clear evidence of legislative intent for ret-roactivity. ...”).

Devon Neighborhood also provides guidance on the question of whether clear legislative intent exists for retroactive application of a new statute. In its search for legislative intent, the Court referenced the language of the new statute, the effective date of the new statute, and the effective dates of related statutory amendments within other sections contained in the same chapter. Id. at 196. The Court noted that “the Legislature’s inclusion of an effective date for an amendment is considered to be evidence rebutting intent for retroactive application of a law,” but provided that “‘clearly expressed’ legislative intent for retroactive application,” may supersede the presumption against retroactive application raised by inclusion of an effective date. Id. (citations omitted). Finally, the Court observed that courts may apply statutory construction of the “language, structure, purpose, and legislative history of the enactment” to determine if a statute is intended to be retroactive. Id. at 196-97 (citations omitted).

We note that the law enacting section 768.0755 contains no express statement as to the Legislature’s intent on retroactive application. See Ch. 2010-8, §§ 1-3 Laws of Fla. Section 1 of chapter 2010-8 provides the language of the new statute; section 2 provides that section 768.0710 is repealed; and section 3 provides that the new statute shall take effect July 1, 2010. Id. The summary appearing before the enacting clause mirrors the language of the three sections, but makes no mention of legislative intent for or against retroactive application. Id. There are no other statutory amendments in chapter 2010-8. Id. At the very least, the circumstances here do not establish “clear evidence' of legislative intent for retroactivity,” which is required under the first prong of the retroactivity test. See Devon Neighborhood, 67 So.3d at 196.

Accordingly, we REVERSE the entry of summary judgment and REMAND for further proceedings in accordance with this opinion.

WOLF and MARSTILLER, JJ., concur.

      . The second count of the complaint asserted a contract claim against Club Country's insurer; only the tort claim against Club Country is before us on this appeal.

      . In Kenz v. Miami-Dade County, 116 So.3d 461 (Fla. 3d DCA 2013), the Third District reviewed whether the trial court erred by granting summary judgment for the defendant county based on the court’s retroactive application of section 768.0755, instead of the older section 768.0710. Kenz, 116 So.3d at 462. The Kenz court did not apply the first prong of the two-part test for retroactivity, but confined its analysis solely to "whether the statute sought to be applied retroactively is substantive in nature, or procedural/remedial in nature." Kenz held that substantive changes require clear legislative intent for retroactive application, but "a procedural/remedial statute ‘should be applied to pending cases in order to fully effectuate the legislation's intended purpose.’ ” Id. at 463-64 (quoting Smiley v. State, 966 So.2d 330, 334 (Fla.2007)).


author: PER CURIAM.

text:
    James A. CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4797.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.

      Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

James A. Carter appeals his convictions for attempted felony murder and arson, claiming that the trial court erred (1) in ruling that the State’s videotaped demonstration was admissible, and (2) in denying his motion to disqualify the trial judge. We affirm on the first ground without discussion. We reverse on the second ground.

The record reflects that officers were dispatched to a residence in response to a report that a woman had been set on fire. Upon arrival, officers observed that the victim, Carter’s wife, had severe burns all over her body, causing her skin to melt off. According to the police report, she told the officers that her husband had doused her with rubbing alcohol and set her on fire in their apartment.

A statement was taken from Carter in which he denied his wife’s allegations. Carter could not explain how she became engulfed in flames, but refused to admit that he intentionally set her on fire.

At the plea hearing, the trial judge engaged in a discussion with the victim, in which she agreed to a twenty-year sentence that was offered to Carter as part of a plea agreement. During the conversation, the victim described her current physical and mental state, as well as the effect her injuries have had on her family. In response, the trial judge told the victim:

THE COURT: No person deserves that type of treatment at the hands of anyone for any reason.
But, as I said, no human being, no animal, no insect deserves that kind of treatment.
I’m not sure he deserves what you’re giving him.

At that point, Carter interjected and stated to the judge: “Give me the death penalty, then,” to which the trial judge then replied: “Believe me, I wish I could.”

Afterwards, Carter signed the plea agreement, and the judge began the plea colloquy. However, the plea colloquy stopped when Carter denied his liability, and the court proceeded to set the matter for trial.

Shortly thereafter, Carter filed a sworn affidavit and a motion for disqualification of the trial judge premised on the judge’s statements during the plea hearing. Specifically, Carter noted the judge’s statement, “Believe me, I wish I could” — in response to Carter’s comment, “Give me the death penalty, then,” as well as the judge’s expressions of sympathy for the alleged victim, telling her not to blame herself for what happened to her and that, “no human being, no animal, no insect deserves that kind of treatment.” Carter argued that these comments created in him a well-founded fear that the trial judge was predisposed to ruling in the State’s favor and that the court would sentence him to the maximum penalty if he were convicted of the charges or any lesser included offense. The court denied Carter’s motion as legally insufficient. After a jury trial, Carter was found guilty of attempted felony murder and arson.

On appeal, the denial of a motion to disqualify a judge is reviewed de novo. Edwards v. State, 976 So.2d 1177, 1178 (Fla. 4th DCA 2008).

Pursuant to Florida Rule of Judicial Administration 2.330(f):

The judge against whom an initial motion to disqualify ... is directed shall determine only the legal sufficiency of the motion, and shall not pass on the truth of the facts alleged. If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.

Fla. R. Jud. Admin. 2.330(f) (emphasis added). This court has explained that a motion to disqualify is considered legally sufficient where “the facts would objectively cause a well-founded fear in the moving party that [he or she] would not receive a fair and impartial trial.” Edwards, 976 So.2d at 1178 (citing Zuchel v. State, 824 So.2d 1044 (Fla. 4th DCA 2002)).

This court has previously held that a trial judge’s announcement before resen-tencing that he intended to impose the maximum period allowable under sentencing guidelines is the paradigm of judicial bias and prejudice. Gonzalez v. Goldstein, 633 So.2d 1183, 1184 (Fla. 4th DCA 1994).

Additionally, in a factually similar case from the Second District, a trial judge rejected a negotiated plea agreement on the morning of trial and stated that if the defendant was found guilty of the charges, he deserved a life sentence. Konior v. State, 884 So.2d 334, 335 (Fla. 2d DCA 2004). Notwithstanding the fact that the comments were made during a plea hearing, the Second District held that the defendant’s “resulting fear that he had been prejudged and would not receive a fair trial” before the trial judge was reasonable and was a legally sufficient reason for the judge’s disqualification. Id. (citing Martin v. State, 804 So.2d 360, 364 (Fla. 4th DCA 2001); Gonzalez, 633 So.2d at 1184; Lewis v. State, 530 So.2d 449, 450 (Fla. 1st DCA 1988)).

Likewise, Carter’s alleged fear that the trial judge had prejudged him and that he would not receive a fair trial was reasonable in light of the trial judge’s sympathetic comments towards the victim, coupled with the statement that he wished he could give Carter the death penalty. Therefore, having alleged facts that would objectively cause a well-founded fear in a reasonably prudent person that he would not receive a fair and impartial trial, we hold that Carter’s motion was legally sufficient to require disqualification, and the trial court erred in denying the motion.

Accordingly, we reverse and remand the case to be heard before a new judge.

Affirmed in part and reversed in part.

WARNER, GROSS and CONNER, JJ., concur.


text:
    Roy W. SIMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-1688.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.

      Roy W. Simpson, Live Oak, pro se.
    No appearance required for appellee.
   PER CURIAM.

Roy Simpson appeals an order summarily denying his “motion for effectuation of the plea agreement,” seeking additional credit for jail time served, which this court has treated as a rule 3.850 summary appeal. We affirm without prejudice to his filing a timely rule 3.801 motion.

Simpson entered an open guilty plea to a third-degree felony and two misdemeanors. On July 1, 2003, the trial court sentenced him to time served for the misdemeanors; for the felony, he received a suspended fifteen-year sentence as a violent career criminal (VCC), with a ten-year mandatory minimum and credit for 278 days jail time served. As part of a downward departure sentence, he was placed on community control for two years, followed by eight years of probation.

Subsequently, the trial court found Simpson guilty of violating his probation, revoked his probation, and imposed the previously suspended fifteen-year prison sentence as a VCC, with a mandatory minimum of ten years. Simpson was awarded credit for 329 days jail time served. His direct appeal from the revocation of probation and new sentence did not raise any issue concerning his jail time credit. The mandate issued on August 18, 2006. Simpson v. State, 930 So.2d 629 (Fla. 4th DCA 2006) (Table).

In May 2012, Simpson filed the instant unsworn pro se “motion for effectuation of the plea agreement.” He alleged that at the time of his original sentencing, the trial court was aware he had pending criminal charges in Miami-Dade County which he would have to face before beginning to serve his Broward County sentence. The judge offered to allow the defendant to move to modify his sentence within sixty days if the Miami-Dade court imposed a prison sentence. Then the judge would run his prison sentence concurrent to the Miami-Dade sentence. Simpson contended in his motion that the “promise” should have applied when his Miami-Dade sentence was imposed, interpreting the judge’s offer as a plea “agreement.” By the time the Miami-Dade sentence expired, Simpson had been incarcerated for 668 days — 278 days in Broward, plus an additional 390 days. He argued that the expiration of the sixty-day period did not defeat the court’s authority to effectuate “the intent of the plea agreement.”

Simpson then alleged that he remained incarcerated for 688 days until his release from the Miami-Dade sentence on June 1, 2004, and was arrested for the Broward violation of probation on August 16, 2004. He remained in custody until imposition of the fifteen-year sentence on November 27, 2004, 103 more days. Yet the trial court awarded him only 329 days of jail time credit, when he should have received 771 days. He asked to be awarded 771 days.

We agree with the state’s response below, in which it explained that the fact the trial court’s offer to give Simpson the opportunity to seek a modification of the instant sentence, depending on the disposition of the Miami-Dade case, did not convert the trial court’s offer into a condition of Simpson’s open plea. It was simply made in anticipation of a possibly lengthy sentence in another county, and if that occurred, Simpson could (but apparently did not) ask the Broward court to impose a sentence in this case concurrent with that sentence. However, instead he served a prison term of two years in his Miami-Dade case. Simpson was not entitled to have the time he served in the Miami-Dade County case applied as credit against his sentence in the instant case. Thus, we affirm the denial of the motion.

Simpson’s initial brief refers to his motion as a rule 3.800(a) motion seeking additional jail time credit so that he does not serve more than the fifteen-year statutory maximum for a third-degree felony sentenced as a VCC. § 775.084(4)(d)3., Fla. Stat. (2002). He raises several new issues on appeal, now claiming to be entitled to a total of 830 days of jail time credit — all the time from his initial arrest on August 7, 2002, through the imposition of his current prison sentence on November 23, 2004. We address those matters only to specify which may be considered in a new motion for jail time credit pursuant to rule 3.801.

Simpson’s argument — that, because he never waived any jail time credit, the trial court should have issued another order “cumulating” the two amounts of jail time credit, 278 days on July 1, 2003, and 329 days on November 23, 2004 — is obviously without merit; the second amount should have included within it the first award of credit, adding, to the original award of credit, the number of days Simpson served after his arrest on VOP charges until his ultimate sentencing. § 921.161(1), Fla. Stat. (2004). (“[T]he court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.”) (emphasis added); Walker v. State, 543 So.2d 343 (Fla. 1st DCA 1989) (reversing sentence where trial court, imposing sentence following revocation of probation, failed to credit defendant with time served before initial placement on probation).

Nor could Simpson be entitled to credit for the seventy-five days from his release on June 1, 2004, until he was detained on August 16, 2004, when he was on probation in the instant case. Generally, there is no credit against a prison term for time spent on probation or community control. Young v. State, 678 So.2d 427 (Fla. 4th DCA 1996), approved, 697 So.2d 75 (Fla.1997). He cites Waters v. State, 662 So.2d 332, 333 (Fla.1995) (holding that on revocation of probation after community control, court must credit time served on probation and community control against any new term of imprisonment and probation for the same offense, so total period of control, probation, and imprisonment does not exceed statutory maximum), but that case does not apply; the trial court did not impose a new split sentence, but imposed a straight prison sentence.

However, Simpson does count 101 days from the time he was arrested for the VOP on August 16, 2004, until he was sentenced to jail on November 23, 2004. If he was jailed continuously, those 101 days plus the initial credit of 278 days should have yielded a total credit of 379 days, yet he was credited with only 329 — perhaps a scrivener’s error.

Additionally, his computation includes all the time from his arrest on August 7, 2002, through his first sentencing on July 1, 2003, which Simpson calculates as 324 days. If he was not released prior to his initial sentencing, that period would appear to entitle him to 329 days. He originally was awarded 278 days for that period of time. If that amount was insufficient, it would have caused the ultimate amount calculated when the prison sentence was imposed also to be insufficient.

Because it appears Simpson may be entitled to additional credit for time served from his initial arrest on August 7, 2002, until his initial sentencing on July 1, 2003, and additional credit for the time served from his arrest for VOP on August 6, 2004, until his ultimate sentencing on November 23, 2004, this affirmance is without prejudice to his filing a rule 3.801 motion prior to the July 1, 2014 deadline, see Fla. R. Crim. P. 3.801(b), seeking such additional jail time credit.

Affirmed without prejudice.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.

      . Rule 3.801(b) (underlined emphasis added) provides as follows:
      (b) Time Limitations. No motion shall be filed or considered pursuant to this rule if filed more than 1 year after the sentence becomes final. For sentences imposed prior to July 1, 2013, a motion under this rule may be filed on or before July 1, 2014.


author: SUAREZ, J.

text:
    David RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2238.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.

      Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and LAGOA, JJ.
   SUAREZ, J.

David Rodriguez appeals the trial court’s Final Order of Civil Commitment finding him a sexually violent predator pursuant to Sections 394.910 through 394.930, Florida Statutes (2011). He argues on appeal that the trial court committed errors, each of which is grounds for reversal. We affirm the trial court, but as to the first issue on appeal certify conflict with Special v. Baux, 79 So.3d 755, 772 (Fla. 4th DCA 2011), which is presently pending before the Florida Supreme Court, sub nom Special v. West Boca Medical Center, 90 So.3d 273 (Fla.2012).

Rodriguez’s first claim, and the one as to which we certify conflict, is that the trial court erred in failing to give a proper curative instruction, and in denying his companion motion for mistrial, following his objection to a statement by the State’s expert witness. The expert stated that “we don’t have any way of knowing if this was the first time he raped anybody,” and upon objection, the trial court instructed the jury that “the last objection is sustained. Ladies and gentlemen of the jury, you are to disregard the last answer.” Rodriguez argues that the instruction was too cursory to render the error harmless and cites to Hayes v. State, 55 So.3d 699 (Fla. 4th DCA 2011). In Hayes, the court stated that the “test for harmless error in a civil case ‘is whether, but for the error, a different result would have been reached.’” Id. at 704 (emphasis added). That ruling was receded from in Special v. Baux, 79 So.3d 755, 772 (Fla. 4th DCA 2011), which determined that “[t]o avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.” Id. at 771 (emphasis added). The Florida Supreme Court accepted jurisdiction over that ease, sub nom, Special v. West Boca Medical Center, 90 So.3d 273 (Fla.2012), but has not yet issued an opinion.

Pending ruling by the Florida Supreme Court, this Court adheres to its standard for determination of harmless error in civil matters. As set forth in Katos v. Cushing, 601 So.2d 612 (Fla. 3d DCA 1992), “the test for harmful error is whether, but for such error, a different result may have been reached.” Id. at 613, (emphasis added). Under that formulation of the test, and based on the totality of the evidence presented below, we conclude that there is no reasonable basis upon which to conclude that a different result might have been reached had the trial court provided the curative instruction requested by Rodriguez. Likewise, we conclude that there is no support for the argument that a different result might have been obtained had the expert not made the statement.

Rodriguez next argues that the trial court erred in denying his motion for mistrial based upon comments made by the prosecutor in closing argument, despite sustaining his objection to the comments. Rodriguez argues that the comments constituted improper “Golden Rule” argument. The case law does not support his position. Merck v. State, 975 So.2d 1054, 1062 (Fla.2007). Moreover, Rodriguez’s reliance on Pedroza v. State, 773 So.2d 639 (Fla. 5th DCA 2000) is unavailing because that case did not address claims of improper “Golden Rule” arguments.

Rodriguez next argues that denial of his motion for mistrial cannot be viewed as harmless error and that this court “must look at whether there is a reasonable possibility that the error influenced the jury and contributed to the verdict.” That standard does not apply to this civil commitment proceeding, as it is applicable only in the context of a criminal proceeding. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). As stated above, the harmless error test in this district is “whether, but for such error, a different result may have been reached.” Kotos, 601 So.2d at 613. As with the defendant’s arguments regarding the expert’s statement, we conclude that there is no possibility that a different result would have been reached in the absence of the comments made by the prosecutor in closing argument.

Consequently, we affirm the trial court’s Final Order of Civil Commitment finding Rodriguez to be a sexually violent predator pursuant to Sections 394.910 through 394.930, Florida Statutes (2011). However, we also certify conflict with Special v. Baux, 79 So.3d 755, 772 (Fla. 4th DCA 2011), sub nom Special v. West Boca Med ical Center, 90 So.3d 273 (Fla.2012) on the issue of the standard to be applied for determining harmless error in a civil proceeding.

Affirmed; conflict certified.

      . The proceedings at issue occurred under Florida Statutes Chapter 394, Involuntary Civil Commitment of Sexually Violent Predators, and thus were not criminal proceedings.


text:
    Patty HIGHSMITH, Julie Wrenn, and Eleanor Ann Perry, Appellants, v. ECAA, LLC, a foreign limited liability company, Kathy L. Anderson, an individual, David J. Heekin, an individual, Landmark Title, LLC, and First American Title Company, Inc., a Florida corporation, Appellees.
    No. 1D13-1892.
    District Court of Appeal of Florida, First District.
    April 30, 2014.
    Harold S. Lippes of Lippes & Bryan, P.A., Ponte Vedra, for Appellants.
    Kathryn L. Smith of Cole, Scott & Kis-sane, P.A. for Appellees David J. Heekin and Landmark Title, LLC; Steven E. Brust, Scott S. Gallagher, and Jonathon D. Pressley of Smith, Gambrell & Russell, LLP, Jacksonville, for Appellee First American Title Company, Inc.
   PER CURIAM.

We affirm on all issues except one. We find the trial court erred in granting summary judgment on appellants’ claims for breach of fiduciary duty based on its finding that appellants failed to establish entitlement to damages. “Where a breach of fiduciary duty is shown but no actual damages are proved, nominal damages may be awarded.” Minotty v. Baudo, 42 So.3d 824, 836 (Fla. 4th DCA 2010). The trial court found that an award of nominal damages must be reduced by the value of appellants’ occupancy of the condominium units at issue, and that value would exceed the nominal damages.

The trial court relied on Fong v. Batton, 214 So.2d 649, 653 (Fla. 3d DCA 1968), in which the Third District held that where a plaintiff was awarded both the full purchase price of a piece of real property and fee simple title, the award of damages should have been reduced by the value of the plaintiffs years of occupancy of the property. Fong is distinguishable. Here, appellants do not seek rescission or return of the full purchase price. By finding that nominal damages must be reduced by the value of occupancy, the trial court effectively found that appellants would be required to pay for their occupancy twice— once through their purchase, and a second time through a reduction in their damages. This was error. We find that appellants are entitled to seek nominal damages for their claims of breach of fiduciary duty, and there is no reason to set off nominal damages by the years of occupancy in this case.

Further, we note that appellants have not challenged on appeal the trial court’s denial of their motion to amend their complaint to add claims for punitive damages. Therefore, that issue is not before this court, and we do not address it.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

LEWIS, C.J., WOLF and MAKAR, JJ., concur.


text:
    James BOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1844.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013). We certify conflict with Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011), and certify the following questions to the Florida Supreme Court:

1. DOES GRAHAM V. FLORIDA, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), APPLY TO LENGTHY TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES?
2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE?

Affirmed; conflict certified; questions certified.

TAYLOR, CONNER and KLINGENSMITH, JJ., concur.


text:
    Daryl Levon TINDALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2324.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013). We certify conflict with Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011), and certify the following questions to the Florida Supreme Court:

1. DOES GRAHAM V. FLORIDA, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), APPLY TO LENGTHY TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES?
2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE?

Affirmed; conflict certified; questions certified.

WARNER, MAY and LEVINE, JJ., concur.


text:
    Kyan BUCKNOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2872.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo. Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Guzman v. State, 110 So.3d 480 (Fla. 4th DCA 2013). We certify conflict with Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011), and certify the following questions to the Florida Supreme Court:

1. DOES GRAHAM V. FLORIDA, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), APPLY TO LENGTHY TERM-OF-YEARS SENTENCES THAT AMOUNT TO DE FACTO LIFE SENTENCES?
2. IF SO, AT WHAT POINT DOES A TERM-OF-YEARS SENTENCE BECOME A DE FACTO LIFE SENTENCE?

Affirmed; conflict certified; questions certified.

DAMOORGIAN, C.J., GROSS and KLINGENSMITH, JJ., concur.


text:
    Kosha ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4637.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.
    Eric S. Rudenberg of Eric S. Ruden-berg, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allen R. Geesey, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant, Kosha Robinson, appeals the trial court’s revocation of his community control and resulting sentence. Finding no issue of arguable merit, we affirm the trial court’s order revoking Defendant’s community control. However, the trial court never entered a formal, written statement outlining the specific conditions Defendant was found to have violated, and instead only made a hand-written notation on the disposition order stating that the court found: “willful and substantial and material violations on allegations II[and] III.” This was insufficient, and we remand this case to the trial court for entry of a written order of revocation of community control, specifying the conditions Defendant was found to have violated. See M.A.L. v. State, 110 So.3d 493, 498 (Fla. 4th DCA 2013); A.T.J.F. v. State, 78 So.3d 57 (Fla. 4th DCA 2012); Cato v. State, 845 So.2d 250, 251 (Fla. 2d DCA 2003) (finding that if a formal written order does not exist, it is appropriate to “remand for entry of a proper order ”).

Further, we note that at the conclusion of the testimony the trial court’s oral pronouncement stated: “The standard before the Court is does it shock the conscience of the Court and preponderance of the evidence standard.” The Court went on to state: “[Defendant] shocked the conscience of the Court. It’s been proven by ... it’s been proven by the preponderance of the evidence on those two that I stated on the record.”

Although this statement amounted to harmless error in the context of this ease, we remind the trial court that the standard of proof for finding a violation of community control is whether the violation is established by a preponderance of the evidence. In other words, a trial court may revoke a defendant’s community control upon a determination that the “greater weight of the evidence supports a finding of a willful and substantial violation.” Dundas v. State, 891 So.2d 1178, 1179 (Fla. 2d DCA 2005). Whether or not the violation “shocks the conscience of the Court” is irrelevant to the ultimate finding.

Reversed and Remanded.

DAMOORGIAN, C.J., GROSS and KLINGENSMITH, JJ., concur.


text:
    Tillman MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-751.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.

      Tillman Moore, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Carter v. State, 127 So.3d 572, 574 (Fla. 4th DCA 2012).

WARNER, CIKLIN and GERBER, JJ., concur.


text:
    Jose GRANADOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-752.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2014.
    Jose Granados, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Johnson v. State, 60 So.3d 1045, 1051 n. 2 (Fla.2011).

WARNER,. TAYLOR and CONNER, JJ., concur.


author: ROTHENBERG, J.

text:
    Ivan Jovan HALL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2538.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.
    Ivan Jovan Hall, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, SALTER, and LOGUE, JJ.
   ROTHENBERG, J.

The defendant, Ivan Jovan Hall, appeals the denial of his motion to correct what he contends is an illegal sentence. As the trial court’s order and the record on appeal reflect that Hall’s claims are without merit, we affirm.

On June 12, 2009, Hall accepted a State-offered plea whereby he: (1) admitted to violating his probation in case number 05-30956(A), for which he was on probation for burglary and grand theft, and also in case number 08-19168, for which he was on probation for grand theft; and (2) pled guilty to the new charges of grand theft in case number 08^13419 and felony fleeing in case number 08-45491. In exchange for Hall’s admissions, Hall and the State agreed to the following sentences in each case, which were imposed by the trial court:

05-30956(A): ten years incarceration;
08-19168: five years incarceration to run concurrent with the sentence imposed in case number 05-30956(A);
08-48419: ten years incarceration as a habitual felony offender, to run concurrent with the sentences imposed in case numbers 05-30956(A) and 08-19168; and
08-45491: five years as a habitual felony offender, to run consecutive to the ten-year habitual felony offender sentence imposed in case number 08-43419.

Because the sentences imposed were legally permissible sentences that Hall agreed to accept, Hall’s motion to correct an illegal sentence was properly denied, and we affirm.

Affirmed.


author: EMAS, J.

text:
    Jose and Migdalia QUINONES, Appellants, v. SOUTHEASTERN INVESTMENT GROUP CORP., etc., Appellee.
    No. 3D14-615.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.
    Rehearing Denied May 28, 2014.
    Kenneth U. Pinos, for appellants.
    Ira B. Price; Lourdes Soto, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   EMAS, J.

Jose and Migdalia Quinones (“Appellants”) appeal a final judgment of foreclosure and an order denying their motion to intervene. For the reasons that follow, we dismiss the appeal for lack of jurisdiction.

Southeastern Investment Group Corporation brought a foreclosure action against Orestes Gonzalez and Ibis Hernandez. Appellants were not named in the action but, claiming they had a first mortgage on the same property, filed a motion seeking to intervene in the action.

On October 2, 2013, the trial court denied Appellants’ motion to intervene. Appellants did not immediately appeal that order, instead waiting until rendition of the agreed final judgment of foreclosure (which did not name or reference Appellants), on February 19, 2014, to appeal both the final judgment and the order denying their motion to intervene.

As to the foreclosure final judgment, because Appellants were non-parties in the action and were not included in the final judgment, they are considered legal strangers to the action and, as such, have no standing to appeal that final judgment. See Portfolio Inv. Corp. v. Deutsche Bank Nat’l Trust Co., 81 So.3d 534 (Fla. 3d DCA 2012) and eases cited therein.

With regard to the order denying Appellants’ motion to intervene, because the order constituted a final determination of the proceedings as to Appellants , they were required to seek direct review of the order by filing a notice of appeal within thirty days of its rendition. Fla. R.App. P. 9.030(b)(1)(A) and 9.110(b). Instead, they waited until rendition of the final judgment of foreclosure before filing their notice of appeal of the order denying the motion to intervene. Given that Appellants have no standing to seek review of the final judgment of foreclosure, the failure to timely file a notice of appeal of the order denying intervention constitutes an irremediable jurisdictional defect. State ex rel. Cantera v. Dist. Court of Appeal, Third Dist, 555 So.2d 360 (Fla.1990); Scott v. Darling, 118 So.3d 268 (Fla. 3d DCA 2013); Hawks v. Walker, 409 So.2d 524 (Fla. 5th DCA 1982).

Appeal dismissed.

      . See Superior Fence & Rail of N. Fla. v. Lucas, 35 So.3d 104 (Fla. 5th DCA 2010); In re S.N.W., 912 So.2d 368 (Fla. 2d DCA 2005); Y.H. v. F.L.H., 784 So.2d 565 (Fla. 1st DCA 2001); City of Dania v. Broward Cnty., 658 So.2d 163 (Fla. 4th DCA 1995).


text:
    Jorge VIERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-625.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.
    Rehearing Denied May 30, 2014.
    Jorge Viera, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See § 948.06(2)(e), Fla. Stat. (2011) (providing that when a court revokes a defendant’s community control it may “impose any sentence which it might have originally imposed before placing the ... offender on probation or into community control.”); cf. § 958.14, Fla. Stat. (2011) (providing that if a defendant was placed on community control as a youthful offender, upon revocation the court may not sentence the defendant to more than six years’ imprisonment where the violation is technical or nonsubstantive); Dunbar v. State, 664 So.2d 1093 (Fla. 2d DCA 1995) (applying section 958.14 and holding a defendant placed on probation as a youthful offender cannot be sentenced to more than six years’ imprisonment following a revocation of probation based upon a technical violation).


text:
    Jessie SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-778.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.

      Jessie Smith, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, LAGOA, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012); Falcon v. State, 111 So.3d 973 (Fla. 1st DCA 2013), review granted, No. SC 13-865 (Fla. June 3, 2013); Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012). But see Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014).


text:
    Keith Douglas RANCIFER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0572.
    District Court of Appeal of Florida, First District.
    April 30, 2014.
    Bruce A. Miller, Public Defender, and Marshawn Griffin, Assistant Public Defender, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Meredith Hinshelwood, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered January 6, 2014, in Escambia County Circuit Court case number 2013-CF-002789-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the services of appointed counsel at public expense, the lower tribunal is directed to appoint counsel to represent petitioner in the belated appeal authorized by this opinion.

WOLF, CLARK, and SWANSON, JJ., concur.


text:
    CHOICE PLUS LLC, claimant’s representative, f/b/o, Suzanne Blake, Petitioner, v. FLORIDA DEPARTMENT OF FINANCIAL SERVICES, BUREAU OF UNCLAIMED PROPERTY, Respondent.
    No. 1D14-0625.
    District Court of Appeal of Florida, First District.
    April 30, 2014.
    Michael Farrar, Doral; Seann M. Frazier of Parker, Hudson, Rainer & Dobbs, LLP, Tallahassee, for Petitioner.
    P.K. Jameson, General Counsel, and Josephine Schultz, Assistant General Counsel, Florida Department of Financial Services, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is dismissed as moot.

WOLF, CLARK, and SWANSON, JJ„ concur.


author: GRIFFIN, J.

text:
    Odaine W. KERR, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2699.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2014.
    Odaine W. Kerr, Live Oak, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Odaine W. Kerr [“Kerr”] has appealed the denial of the two grounds of his claim of ineffective assistance of trial counsel after his violation of probation. The first claim was summarily denied without an evidentiary hearing. The second claim was denied after a hearing. We find no error as to the second ground, but conclude an evidentiary hearing should be held on the first claim.

Although, as the trial court correctly found, most of Kerr’s claims and contentions are legally insufficient or simply irrelevant, the underlying core claim is that each of his violations of probation was directly due to his inability to pay money because he had none, and that his counsel was deficient for having failed to marshal the evidence to establish that, despite his best efforts, he was destitute. As to his violation of probation for failing to attend sex offender evaluation, Kerr would have to show that obtaining a sex offender evaluation was impossible without the money he lacked and could not obtain and this impossibility was the sole reason he did not attend as ordered. He would further have to show that his counsel was ineffective for having failed to establish that fact. Doubtful though we are about this claim, it is sufficient to warrant an evidentiary hearing.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

      . For example, it is not material if, as he claims, some woman at ITM told him not to show up for evaluation if he could not pay the fee.


author: TORPY, C.J.

text:
    Nicholas TRABULSY, Appellant, v. PUBLIX SUPER MARKET, INC., etc., et al., Appellee.
    No. 5D12-4667.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2014.
    Rehearing Denied May 22, 2014.

      R. Barry Morgan of Morgan Law Office, P.A., Orlando, for Appellant.
    Eric J. Eisnaugle of Rumberger, Kirk & Caldwell, Orlando, for Appellee.
   TORPY, C.J.

We review the propriety of a summary judgment in favor of Appellee, Publix Super Market, Inc., in this action for injuries arising from an alleged battery committed by its employee, Appellee, Almonzo Blan-ton. Appellant alleged that he was battered by Blanton during an altercation that occurred while he was shopping in a Publix grocery store. The trial court granted summary judgment for Publix, concluding that Blanton acted outside the scope of his employment when he allegedly battered Appellant. We reverse, because fact questions precluded summary judgment on this issue.

While Appellant was shopping in Publix, he momentarily left his grocery cart unattended. Blanton noticed the unattended cart and assumed it had been abandoned. He retrieved the cart and began to re-shelve the items. When Appellant discovered that his cart had been moved, he confronted Blanton and the two got into an altercation that culminated in Blanton shoving Appellant, causing Appellant to fall to the floor. The two gave conflicting accounts of the dispute, both claiming that the other was the aggressor. Blanton claimed he pushed Appellant in self-defense. Appellant denied threatening Blan-ton and claimed Blanton overreacted to his complaint.

An employer’s liability for an employee’s intentional acts may arise when the acts are “within the real or apparent scope” of employment. Weiss v. Jacobson, 62 So.2d 904, 906 (Fla.1953) (emphasis added). Therefore, to obtain summary judgment, Publix had the burden to conclusively negate Appellant’s allegation that Blanton had acted within the course and scope of his employment when he battered Appellant. Lawrence v. Pep Boys-Manny Moe & Jack, Inc., 842 So.2d 303, 304-05 (Fla. 5th DCA 2003). “Conduct is within the scope of employment if it occurs substantially within authorized time and space limits, and it is activated at least in part by a purpose to serve the master. The purpose of the employee’s act, rather than the method of performance thereof, is said to be the important consideration.” Hennagan v. Dep’t of Highway Safety & Motor Vehicles, 467 So.2d 748, 751 (Fla. 1st DCA 1985) (emphasis added), cited with approval in McGhee v. Volusia Cnty., 679 So.2d 729, 732 (Fla.1996). Stated another way, only when the employee “steps aside from his employment to ... accomplish some purpose of his own,” is the act not within the scope of employment. City of Miami v. Simpson, 172 So.2d 435, 437 (Fla.1965). This is generally a question of fact for the jury. Id.

It is undisputed here that the altercation occurred on Publix’s premises while Blanton was engaged in Publix’s business. The sole disputed issue is whether Publix conclusively negated the contention that Blanton’s purpose (not his method) was, at least in part, to serve Publix. Blanton acknowledged in his deposition that the “entire encounter” was motivated by a purpose to serve his employer. Publix asserted nevertheless, that Blanton’s motive for the push itself was personal — the defense of his person from an attack by a customer. Even assuming that this is the only inference that may be drawn from the evidence, it does not support the trial court’s conclusion. An employer has an interest in protecting its employees from attack, at least to the same extent as it has in protecting its merchandise and property. The courts have consistently held that battery by an employee in protecting the employer’s property is within the scope of employment. See, e.g., Stinson v. Prevatt, 84 Fla. 416, 94 So. 656, 659 (1922) (where employee shot plaintiff, jury should decide whether employee’s purpose was to protect employer’s employees from solicitation by employer’s competitor or “maliciously in pursuit of his own purpose”); Valeo v. E. Coast Furniture Co., 95 So.3d 921, 925 (Fla. 4th DCA 2012) (employee’s motivation was jury question where employee testified he attacked plaintiff with padlock because he thought he was about to be robbed); Parsons v. Weinstein Enters., Inc., 387 So.2d 1044, 1045-46 (Fla. 3d DCA 1980) (whether employees’ actions in chasing and beating with clubs bar patron they believed damaged bar property were within scope of employment was question of fact for jury); Lay v. Roux Labs., Inc., 379 So.2d 451, 453 (Fla. 1st DCA 1980) (jury should resolve whether parking space dispute arose from employee’s motivation to secure space for himself or protect designated parking space from outsiders for employer’s benefit). In this case, it was the business of the employer that placed the employee in harm’s way.

The record here also supports the conclusion that Blanton did not act in self-defense but instead overreacted to Appellant’s complaint. If the jury accepts this version of the facts, it can still conclude that Blanton’s loss of control was motivated by his purpose to serve Publix. In other words, although his method might have been inappropriate, his purpose was, nevertheless, to serve his employer. In business related disputes such as this one, particularly when they occur on the employer’s premises, the courts have repeatedly concluded that the employee’s purpose in committing a battery is a jury question. See, e.g., Rivas v. Nationwide Pers. Sec. Corp., 559 So.2d 668, 670 (Fla. 3d DCA 1990) (where supermarket security guard in physical altercation with store manager struck intervening store employee, question of fact whether guard was acting within scope of employment because “assault and battery sued upon arose out of a job dispute and was therefore within the scope of [the guard’s] employment ... ”); Gonpere Corp. v. Rebull, 440 So.2d 1307, 1307 (Fla. 3d DCA 1983) (whether building manager’s act of shooting two tenants was -within scope of employment was question of fact for jury where shooting resulted from dispute over eviction notice); Gordils v. DeVilliers, 402 So.2d 1313 (Fla. 4th DCA 1981) (where nightclub entertainer battered patron during dispute on premises, scope of employment was for jury); Dye v. Reichard, 183 So.2d 863 (Fla. 4th DCA 1966) (whether trailer park manager was acting within scope of employment when he hit invitee during dispute was for jury); Columbia by the Sea, Inc. v. Petty, 157 So.2d 190 (Fla. 2d DCA 1963) (whether maitre d acted within scope of employment when he hit patron in head with ashtray following dispute over bill was for jury). This is not a case where the employer’s business was merely incidental to the encounter, such as where a domestic dispute happens to take place in the business premises. Here, the dispute was directly related to the business of the employer.

As a final point, Publix is simply misplaced in its argument that its policy against fisticuffs conclusively negates Appellant’s claim against it. Publix bases this argument on Blanton’s deposition testimony. When asked by Publix’s counsel if he thought putting his hands on Appellant was “something that [Publix] wanted [him] to do or asked for [him] to do,” the employee replied in the negative. This question only focuses on whether Blanton was actually acting within the scope of employment, not whether he apparently was acting within the scope. Under the latter theory, whether the employer authorized the act, or even forbade it, is immaterial. See Stinson, 94 So. at 657 (an act may be within “apparent” scope of employment even though “not authorized by, or was forbidden by, the employer....”).

REVERSED AND REMANDED.

GRIFFIN and BERGER, JJ„ concur.

      . Of course, if the jury accepts Blanton’s testimony that he was reasonably acting in self-defense and did not use excessive force, then Publix will prevail, not because Blanton acted outside the scope of his employment, but because self-defense is a defense to battery. On the other hand, if the jury determines that Blanton's subjective purpose was self-defense but that he acted unreasonably or excessively, Publix would be vicariously liable.

      . The test for ‘‘scope of employment” is the same regardless of whether the employer is a public or private entity. City of Miami v. Simpson, 172 So.2d 435, 437 (Fla.1965).


author: ORFINGER, J.

text:
    Michael Jude CRINER, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-1611.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2014.

      James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Michael Jude Criner challenges his conviction for three counts of lewd or lascivious molestation of a child under twelve years of age. We affirm, but write to address Criner’s argument that the trial court should have granted his motion to dismiss based on his contention that the State was collaterally estopped from relit-igating the allegations of lewd or lascivious molestation, which had been previously litigated in an earlier termination of parental rights (“TPR”) proceeding. In the TPR proceeding, the Department of Children and Families (“DCF”) sought to terminate Criner’s parental rights to his daughter, the victim in this case. The TPR court denied the petition, determining that DCF failed to prove sexual abuse by clear and convincing evidence.

The doctrine of collateral estop-pel, also known as issue preclusion and estoppel by judgment, “bars relitigation of the same issues between the same parties in connection with a different cause of action.” Topps v. State, 865 So.2d 1253, 1255 (Fla.2004). The doctrine comes into play in a case when the “same parties” attempt to litigate the “same issues” that were already addressed. Id. The doctrine bars “ ‘the parties from litigating in the second suit issues — that is to say points and questions — common to both causes of action and which were actually adjudicated in the prior litigation.’ ” Stogniew v. McQueen, 656 So.2d 917, 919 (Fla.1995) (quoting Gordon v. Gordon, 59 So.2d 40, 44 (Fla.1952)). The determination must be essential to the prior adjudication in order to be given preclusive effect. State v. Strong, 593 So.2d 1065, 1067 (Fla. 4th DCA 1992).

For the doctrine of collateral es-toppel to apply to bar relitigation of an issue, five elements must be present: “(1) an identical issue must have been presented in the prior proceedings; (2) the issue must have been a critical and necessary part of the prior determination; (3) there must have been a full and fair opportunity to litigate that issue; (4) the parties in the two proceedings must be' identical; and (5) the issues must have been actually litigated.” Cook v. State, 921 So.2d 631, 634 (Fla. 2d DCA 2005). Whether collateral estoppel precludes litigation of an issue is reviewed de novo. See, e.g., United Auto. Ins. Co. v. Law Offices of Michael I. Libman, 46 So.3d 1101, 1103 (Fla. 3d DCA 2010); W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So.3d 79, 82 (Fla. 4th DCA 2010); Felder v. State, Dep’t of Mgmt. Servs., Div. of Ret., 993 So.2d 1031, 1034 (Fla. 1st DCA 2008); Campbell v. State, 906 So.2d 293, 295 (Fla. 2d DCA 2004).

While no Florida case is directly on point, several cases guide us to agree with the trial court that Criner’s criminal prosecution was not barred. In State v. Freund, 626 So.2d 1043 (Fla. 4th DCA 1993), the court addressed whether the denial of a petition for dependency precluded a subsequent criminal charge of child neglect against the same person based on the same misconduct. The Fourth District held that the state was not estopped to proceed criminally, reasoning:

Although the precise issue confronting us has not previously been decided in Florida, courts in other states have concluded that a denial of a petition for dependency does not bar a criminal prosecution even where there is a specific finding in the dependency case that the misconduct did not occur. In State v. Cleveland, 58 Wash.App. 634, 794 P.2d 546, 551 (1990), rev. denied, 115 Wash.2d 1029, 803 P.2d 324 (1990), and cert. denied, 499 U.S. 948, 111 S.Ct. 1415, 113 L.Ed.2d 468 (1991), the petition for dependency alleged that a stepfather had sexually abused his 8 year-old stepdaughter and that the child’s mother was not taking appropriate action to prevent it. The trial court found that the state had not shown by a preponderance of the evidence that the alleged sexual abuse had occurred and dismissed the petition. Criminal charges were then brought, the stepfather was convicted, and he argued on appeal that his prosecution was barred by collateral estoppel. In concluding that the criminal prosecution was not barred, the court stated:
Dependency proceedings are often attended with a sense of urgency, are held as promptly as reasonably possible, and the entire focus of the proceeding is the welfare of the child. The focus being more narrow than in a typical felony trial, the State normally does not need, nor does it perform, the extensive preparation typically required for felony trials.
Furthermore, the prosecutor uses many more resources in developing a felony prosecution than those available and used in the typical dependency hearing. Dependency is decided by a judge, while felony trials are usually tried to a jury. In addition, if the State was faced with application of the doctrine of collateral estoppel to findings in dependency proceedings, there could well be a reluctance to conduct dependency proceedings in cases where one or more of the same issues would arise in subsequent criminal prosecutions.
In People v. Gates, 434 Mich. 146, 452 N.W.2d 627, 633 (1990), cert. denied, 497 U.S. 1004, 110 S.Ct. 3238, 111 L.Ed.2d 749 (1990), the defendant alleged that collateral estoppel barred a criminal prosecution for sexual misconduct involving his child, where a dependency proceeding based on the same conduct resulted in a finding of no dependency. In concluding that collateral estoppel would not be a bar, the Michigan Supreme Court noted that if the possibility of a finding of no dependency would preelude criminal prosecution,
[t]he prosecutor would face an unfortunate choice that is not in the public interest: whether to proceed on the petition in probate court because of concern for the child, or to delay the probate proceeding because of concern that a verdict of nonjurisdiction would preclude criminal prosecution of the accused.
We are persuaded by public policy considerations that such an election between criminal and child-protective proceedings should not be judicially imposed through the application of collateral estoppel. See Joiner v. State, 500 So.2d 81 (Ala.Crim.App.1986).
Consistent with the above authorities and relevant to the issue are two exceptions to the application of collateral es-toppel found in Restatement (Second) of Judgments § 28 (1980), p. 273:
Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances:
⅝ ⅜ ⅜ ⅜ ⅝ ⅝
(3) A new determination of the issue is warranted by differences in the quality or extensiveness of the procedures followed in the two courts or by factors relating to the allocation of jurisdiction between them ....
(5) There is a clear and convincing need for a new determination of the issue (a) because of the potential adverse impact of the determination on the public interest or the interests of persons not themselves parties in the initial action.

Id. at 1045-46. Other jurisdictions have held similarly. See, e.g., People v. Moreno, 319 Ill.App.3d 445, 253 Ill.Dec. 173, 744 N.E.2d 906, 912 (2001) (“When two proceedings serve different public interests and' purposes, those differing concerns may bear upon the State’s actions in each proceeding.”); State v. Matson, No. A09-555, 2010 WL 606775 (Minn.Ct.App. Feb. 23, 2010) (holding state not collaterally es-topped from prosecuting defendant for criminal sexual conduct against his child, despite TPR ruling that sexual abuse not sufficiently proven); see also State v. Fetter, No. H-99-001, 1999 WL 727096 (Ohio Ct.App. Sept. 17, 1999) (reversing dismissal of criminal charges as collateral estoppel was not applicable in criminal action to bar prosecution for criminal offense arising out of same conduct at issue in juvenile case; juvenile court action was not type of civil action in which double jeopardy attaches).

The Florida Supreme Court has addressed the preclusive effect that determinations made in probation revocation proceedings — proceedings that are “administrative in nature,” Croteau v. State, 334 So.2d 577, 580 (Fla.1976) — have in subsequent criminal proceedings. In Green v. State, 463 So.2d 1139 (Fla.1985), the court considered whether the state was collaterally estopped from trying a defendant for a criminal offense, when it was determined in an earlier probation revocation proceeding that the evidence was insufficient to prove the criminal offense. In deciding that preclusive effect should not be given to the determination made in the probation revocation proceeding, the court reasoned that “no jeopardy attached for the new criminal offenses during the revocation proceeding.” Id. at 1140. The court also noted that “in an analogous situation, a prosecution may be instituted even though there is a finding of no probable cause at a preliminary hearing.” Id. (citing State v. Hernandez, 217 So.2d 109 (Fla.1968)).

In the instant case, there was no identity of issues in the TPR proceedings and the criminal prosecution barring application of collateral estoppel. The issue litigated on its merits in the TPR matter was whether the child continued to be at risk of harm from Criner, irrespective of the provision of services. In the criminal proceeding, the issue litigated was whether Criner was criminally culpable for the alleged sexual misconduct. In the TPR proceeding, DCF’s purpose is protection of the child; in the criminal proceeding, the State’s purpose is determining if Criner molested the child, and then punishing him, if found guilty. The differences of purpose and goal in the civil and criminal procedures are “very real.” People v. Moore, 138 Ill.2d 162, 149 Ill.Dec. 278, 561 N.E.2d 648, 651 (1990).

For these reasons, we conclude the State was not estopped to prosecute Cri-ner criminally and that the trial court correctly denied the motion to dismiss.

AFFIRMED.

BERGER and WALLIS, JJ., concur.


author: McINTOSH, DONNA L., Associate Judge.

text:
    Alvin B. OLESH, Appellant, v. Patricia GREENBERG, Appellee.
    No. 5D10-3487.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2014.
    John R. Hamilton, of Foley & Lardner, LLP, Orlando, for Appellant.
    A.C. Cameron and Gregg W. Hooth, of Cameron, Hodges, Coleman, LaPointe & Wright, P.A., Orlando, for Appellee.
   McINTOSH, DONNA L., Associate Judge.

Alvin B. Olesh appeals the summary final judgment entered by the trial court in favor of Patricia Greenberg on Olesh’s claims for replevin of personal property and injunctive relief. Determining that res judicata, collateral estoppel, and merger do not preclude Olesh from pursuing his claims, we reverse.

Olesh and Greenberg were first brought to this court’s attention in a complaint filed in 2005 by Olesh against Greenberg seeking partition of residential real property, creation of a constructive trust, and damages for unjust enrichment with respect to real property and a brokerage account. See Olesh v. Greenberg, 9 So.3d 44 (Fla. 5th DCA 2009); Olesh v. Greenberg, 978 So.2d 238 (Fla. 5th DCA 2008). During the 2005 litigation, Olesh and Greenberg entered into a Stipulation as to Personalty regarding Olesh’s personal property which was in Greenberg’s possession. The Stipulation provided for the procedures to be used by Olesh to identify and to remove the personal property held by Greenberg. The trial court entered an Agreed Final Order on Personalty incorporating the parties’ stipulation.

Pursuant to the terms of the stipulation, Olesh was granted access to the storage facility where Greenberg purportedly had been storing his property. Upon entry, Olesh discovered that a significant portion of his personal property was missing and that the remaining personal property was damaged. Olesh thereafter filed a complaint in the instant case seeking monetary damages for conversion, trespass to chattels, negligence, breach of contract, replev-in, and injunctive relief as an alternative to replevin. Greenberg filed an answer and affirmative defenses asserting, among other defenses, that Olesh was estopped, both collaterally and by the doctrine of res judi-cata, from bringing those claims because they should have been brought in the 2005 action.

Greenberg filed a motion for summary judgment, asserting that the issues raised in the instant action are the same issues as those previously raised and adjudicated in the 2005 action; therefore, the issues raised in the instant case were precluded by the doctrines of res judicata, collateral estoppel, and merger. Olesh responded by filing an affidavit in which he stated that he did not become aware that Green-berg had damaged, destroyed, or stolen his personal property until December 2006, when he attempted to retrieve his personal property from the storage facility.

The trial court entered summary judgment in favor of Greenberg, ruling as follows:

[Wje’re dealing with an action, this action, that is merged, that is barred by res judicata, as well as the doctrine of collateral estoppel.

We disagree.

The claims raised in the instant complaint had not yet accrued when the 2005 action was filed. Therefore, the doctrines of collateral estoppel, res judicata, and merger do not preclude Olesh from pursuing his claims as to the in rent possessory component of the replevin claim in count IV and the equitable claim for injunctive relief in count V of his complaint. See Gilbert v. Florida Power & Light Co., 981 So.2d 609, 614 (Fla. 4th DCA 2008) (holding that under the rule against splitting a cause of action, a new claim for damages is not barred if the underlying cause of action had not accrued at the time of filing the previous lawsuit). Accordingly, the trial court’s summary judgment order is reversed.

REVERSED and REMANDED.

EVANDER and COHEN, JJ., concur.

      . The remaining claims raised by Olesh in the instant complaint were discharged in bankruptcy during the pendency of this appeal,


author: COHEN, J.

text:
    DEPARTMENT OF REVENUE o/b/o Marielena SCIBELLI, Appellant, v. Adam R. GARMON, Appellee.
    No. 5D13-3607.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2014.

      Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    No Appearance for Appellee.
   COHEN, J.

The Florida Department of Revenue (“the Department”), on behalf of Marielena Scibelli, appeals a final order modifying Adam Garmon’s monthly child support obligation. The Department argues that the trial court abused its discretion in decreasing Garmon’s child support obligation because Garmon did not prove that a substantial change in circumstances occurred. We agree and reverse.

Generally, “a fundamental prerequisite to bringing an action to modify child support payments is a showing of substantial change in circumstances.” Overbey v. Overbey, 698 So.2d 811, 813 (Fla. 1997). The burden of proving a substantial change in circumstances is on the party seeking modification. Id. The movant must establish that: (1) a substantial change in circumstances occurred; (2) the change was not contemplated at the time of the original judgment; and (3) the change is sufficient, material, involuntary, and permanent. Poe v. Poe, 63 So.3d 842, 843 (Fla. 5th DCA 2011) (citing Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992)).

Here, Garmon was unable to prove that a substantial change in circumstances occurred. Rather, according to the child support guideline worksheets filed in this case, Garmon was earning roughly the same amount of money when the original child support order was entered as when he filed his petition to modify the child support order. In the absence of any showing of a substantial change in circumstances, we are compelled to reverse.

REVERSED.

EVANDER and WALLIS, JJ„ concur.