author: SALTER, J.

text:
    BLUE STAR PALMS, LLC, and Blue Star Briar, LLC, Petitioners, v. LED TRUST, LLC, and Dishi & Flowman, LLC, Moshe Schwartz, individually, ASDM Briar Palms, LLC, Blue Star Briar Palms, LLC, and Louis Pepper, Respondents.
    No. 3D12-1728.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2012.

      Lapin & Leichtling, and Adam B. Leich-tling and Caitlin F. Saladrigas, for petitioners.
    Aaron Resnick, for respondents.
    Before SHEPHERD, SUAREZ and SALTER, JJ.
   SALTER, J.

The petitioners, Blue Star Palms, LLC, and Blue Star Briar, LLC (together, “Blue Star”), seek a writ of certiorari quashing a circuit court order denying their motion to dissolve a writ of lis pendens. Finding insufficient allegations and evidence of a nexus between (a) the plaintiffs/respondents’ claims against Blue Star and (b) the condominium units owned by Blue Star, we grant the writ and quash the order.

Background

The respondents, LED Trust, LLC, and Dishi & Flowman, LLC, are the plaintiffs in a circuit court action against Blue Star, the corporate parent of Blue Star, and the members/investors in Blue Star’s parent company. The respondents negotiated to become investors in Blue Star. According to the sixty-page “Complaint for Damages,” Moshe Schwartz and Louis Pepper of Blue Star promised Haim Yehezkel of LED Trust and Avi Dishi of Dishi & Flow-man that they could co-invest in Blue Star’s parent company. The Blue Star entities were to be formed to purchase 289 unsold condominium units in Broward and Collier Counties from a foreclosing mortgage lender.

These negotiations were primarily verbal, and according to the allegations in the complaint, it was never contemplated that Yehezkel, LED Trust, Dishi, or Dishi & Flowman would have any ownership interest in, or lien over, the actual condominium units themselves. Further, the negotiations never culminated in a fully-signed Blue Star incorporation document or operating agreement in a form that all parties agree is operative. Nevertheless, Dishi and Yehezkel understood that they had a deal, and they alleged that the defendants breached their agreements. Paragraph 49 of the complaint alleges:

Dishi and Yehezkel had no reason to believe that their long time friend Schwartz would attempt to circumvent there [sic] agreement, which was ultimately done out of greed and spite, by his attempt to contend that the operating agreement was not executed before he reneged on the deal and by his intentional and fraudulent actions in not filing the appropriate membership information with the State of Florida to reflect the membership interests in [Blue Star’s parent company] or the membership interests in [the Blue Star entities].

The fourteen counts in the complaint build upon these and other allegations to assert causes of action for breach of the alleged agreements, violations of duties under the Florida limited liability company statutes, fraud, conspiracy to commit fraud, specific performance, and accounting. None of these theories involve claims against the underlying condominium units. Several other counts assert equitable claims for declaratory and injunctive relief, the imposition of a constructive trust or equitable lien, and specific performance. A careful reading of these allegations does not reveal, however, a discernible claim against or over the condominium units as opposed to membership interests in the limited liability companies in which the plaintiffs/respondents sought to invest.

The petitioners filed a motion and memorandum seeking dissolution of the lis pen-dens, and the trial court denied the motion. The petition for certiorari followed.

Analysis

The pertinent part of the lis pendens statute, section 48.23(3), Florida Statutes (2012), provides:

When the pending pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 or when the action no longer affects the subject property, the court shall control and discharge the recorded notice of lis pendens as the court would grant and dissolve injunctions.

A petition for writ of certiorari is the appropriate procedure to challenge the denial of a motion to discharge a notice of lis pendens. See, e.g., MCZ/Centrum Flamingo I, LLC v. AIMCO/Bethesda Holdings, Inc., 988 So.2d 89, 89 (Fla. 3d DCA 2008). “A court must dissolve a lis pendens that is based on an unrecorded document unless the proponent ‘establishes] a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.’ ” Conseco Servs., LLC. v. Cuneo, 904 So.2d 438, 439 (Fla. 3d DCA 2005) (quoting Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla.1993)). A “fair nexus” requires a “good faith, viable claim.” E.g., India Am. Trading, Co., Inc. v. White, 896 So.2d 859, 860 (Fla. 3d DCA 2005).

“A complaint which will not support a claim against the specific property at issue cannot provide a basis for tying it up by a filing of notice of lis pendens.” Lake Placid Holding Co. v. Paparone, 414 So.2d 564, 566 (Fla. 2d DCA 1982); accord Ness Racquet Club, LLC v. Renzi Holdings, Inc., 959 So.2d 758, 761 (Fla. 3d DCA 2007) (“It is well settled that in the absence of a duly recorded instrument, when there is no ‘direct claim cognizable under the law against or upon the ... property burdened by the lis pendens,’ ‘no lis pen-dens may be asserted under any conditions against the realty (quoting Sunrise Point, Inc. v. Foss, 373 So.2d 438, 439 (Fla. 3d DCA 1979))). When a plaintiff can be afforded complete relief on a claim without reference to the title to the real property, a lis pendens cannot be maintained. Beefy King Int’l Inc. v. Veigle, 464 F.2d 1102, 1104 (5th Cir.1972) (“Under the Florida cases a lis pendens is proper only when the required relief might specifically affect the property in question.”).

Here, pursuant to the parties’ alleged contract, legal title to the condominium units would be held by the Blue Star entities, with any ownership interest in the properties two levels removed (as membership interests in the parent company). As in Powerline Development Corp. v. Assor, 458 So.2d 305, 306 (Fla. 3d DCA 1984), where the plaintiff alleged fraudulent transactions involving interests in a corporation, the respondents here have brought an action seeking to have their alleged membership interests in Blue Star recognized. While the respondents point to their claims for constructive trust and equitable lien to maintain the lis pendens, they have failed to show that the allegations are connected to the title of the condominium units held by Blue Star. The claims seeking a constructive trust and equitable lien request the court to enforce a lien and a constructive trust against the subsidiaries, not the specific condominium units. Accordingly, this lawsuit for damages and membership interests in the parent company does not directly affect the real estate, and a lis pen-dens cannot be maintained. See Ness Racquet Club, LLC, 959 So.2d at 761; De-Guzman v. Balsini, 930 So.2d 752, 755 (Fla. 5th DCA 2006) (“When the primary purpose of a lawsuit is to recover money damages and the action does not directly affect the title to or the right of possession of real property, the filing of a notice of lis pendens is not authorized.”); Power-line Dev. Corp., 458 So.2d at 306; Sunrise Point, Inc., 373 So.2d at 439; see also Beefy King Int’l Inc., 464 F.2d at 1104; Frank v. Ocean 1660, LLC, No. 11-62004-CIV, 2011 WL 5082137 (S.D.Fla. Oct. 26, 2011).

Conclusion

As proponents of the lis pendens, the plaintiffs/respondents failed to “establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.” Chi-usolo v. Kennedy, 614 So.2d 491, 492 (Fla. 1993). That being so, the motion to dissolve the lis pendens should have been granted.

Petition granted; order of May 31, 2012, quashed.

      . While captions are not controlling, they occasionally provide a strong hint — here, for example, a hint that the action seeks money, not the imposition of a lien or injunction relating to specifically-identified condominium units.

      . The complaint is noticeably vague on any allegation that any funds were advanced by the plaintiffs and used by Blue Star to buy the condominium units. The unjust enrichment count, for example, alleges that Schwartz and a corporate member of Blue Star
      received the direct and substantial benefits from Dishi & Floman, LLC and LED Trust, LLC including the fact that the deal was brought to them by Dishi & Floman, LLC and LED Trust, LLC, which they requested from Dishi & Floman LLC and LED Trust, LLC, had knowledge of and voluntarily accepted and retained the benefits they requested and received directly from Plaintiff, and have refused to compensate Dishi & Floman, LLC and LED Trust, LLC despite demand for payment.
      Whatever a nexus with specific Florida real estate may be, this is not it.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Juan P. ARIAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2368.
    District Court of Appeal of Florida, Third District.
    Oct. 24, 2012.
    Rehearing Denied Dec. 10, 2012.

      Juan P. Arias, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS and EMAS, JJ.
   PER CURIAM.

Appellant Juan Arias seeks review of an order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Arias contends that the trial court’s oral pronouncement conflicted with the written judgment and sentence. He asserted in his motion, and here on appeal, that the trial court orally pronounced only a ten-year minimum-mandatory sentence, and thereafter entered a written sentence of twenty years’ imprisonment with a ten-year minimum mandatory.

In support of his claim, Arias attached two pages from the transcript of the plea colloquy. It is true that, in these two pages, the trial court discusses with Arias only the ten-year minimum-mandatory sentence. However, the trial court, in denying the motion, attached the entire twelve-page transcript of the plea colloquy. The complete transcript reveals clearly that the trial court orally pronounced the full sentence of twenty years’ imprisonment with a ten-year minimum mandatory. At the beginning of the plea colloquy, the prosecutor announced the full sentence; later during the plea, Arias’ counsel acknowledged the full sentence; and finally, following a complete discussion with Arias as required under Florida Rule of Criminal Procedure 3.172(c), the trial court accepted the plea and orally pronounced the full sentence of “twenty years in the state penitentiary as an habitual violent offender with a ten year minimum mandatory.”

The trial court properly denied Arias’ motion, and attached to its order a copy of the complete transcript. Given Arias’ actions in: (1) attaching to his motion only those portions of the transcript which purported to support his position, thereby creating a false impression of the record below; (2) failing to attach the complete transcript which revealed the meritless nature of his claim; and (3) prosecuting this appeal even in the face of a complete transcript, attached to the order, conclusively demonstrating his claim was without merit, Appellant Juan Arias is ordered to show good cause, within thirty days, why we should not impose sanctions, including:

1. Prohibiting Arias from filing further pro se pleadings in this Court;

2. Directing the Clerk of this Court to forward a certified copy of this opinion to the Department of Corrections pursuant to section 944.279(1), Florida Statutes (2012), for consideration of disciplinary procedures. See Isom v. State, 43 So.3d 776 (Fla. 5th DCA 2010).

Affirmed.


text:
    Raymond BAKER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2570.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 2012.
    Rehearing Denied Dec. 4, 2012.
    Raymond Baker, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER and EMAS, JJ., SCHWARTZ, Senior Judge.
   PER CURIAM.

Raymond Baker appeals an order summarily denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). After Baker filed his notice of appeal, the trial court entered an order denying a motion for rehearing or reconsideration. We affirm, without comment, the trial court’s denial of Baker’s Rule 3.800 motion. However, we note that Baker’s motion for rehearing and the trial court s denial of that motion are nullities. The order denying the motion for rehearing was entered without jurisdiction as Baker abandoned his motion when he filed the notice of appeal. See, e.g., Southers v. State, 961 So.2d 992 (Fla. 2d DCA 2007); see also In re Forfeiture of $101,591 in U.S. Currency, 589 So.2d 283 (Fla.1991); Loeb v. State, 387 So.2d 433, 435 (Fla. 3d DCA 1980) (recognizing that it is well established that the filing of a notice of appeal vests the appellate court with complete and exclusive jurisdiction).

Affirmed.


text:
    John J. CARROLL, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D12-2431.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2012.
    Rehearing Denied Dec. 7, 2012.
    John J. Carroll, in proper person.
    Pamela Jo Bondi, Attorney General, for Respondent.
    Before CORTINAS, ROTHENBERG and FERNANDEZ, JJ.
   PER CURIAM.

Denied. See Carroll v. State, 20 So.3d 913 (Fla. 3d DCA 2009); Carroll v. State, 69 So.3d 1118 (Fla. 3d DCA 2011).


text:
    Fabio Israel MENA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2584.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2012.
    Fabio Israel Mena, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, CORTINAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: WELLS, Chief Judge.

text:
    Delbis DIAZ a/k/a Jose Vidal, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D12-2720.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2012.
    Delbis Diaz a/k/a/ Jose Vidal, in proper person.
    Pamela Jo Bondi, Attorney General and Richard L. Polin, Assistant Attorney General, for respondent.
    Before WELLS, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

We treat the instant petition for writ of habeas corpus as a petition for belated appeal from an order dated February 10, 2011, which denied Delbis Diaz a/k/a Jose Vidal’s February 7, 2011, motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We also treat the brief filed by Diaz in an earlier petition for belated appeal related to the same order (filed under case number 3D11-2042) as his brief herein and, finding no merit in the arguments made therein, affirm the order entered below denying his motion.


author: SUAREZ, J.

text:
    John Eric HAYDEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2321.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 2012.
    John Eric Hayden, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ, CORTINAS and FERNANDEZ, JJ.
   SUAREZ, J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: EMAS, J. SCHWARTZ, Senior Judge

text:
    Dominick HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1199.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 2012.
    Dominick Harris, in proper person.

      Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Appellant, Dominick Harris, appeals the trial court’s summary denial of his rule 3.850 motion for postconviction relief, which is based upon a claim of newly-discovered evidence. We reverse.

In 1996, Harris was charged with armed kidnapping, sexual battery, armed robbery, and armed carjacking. Following a trial in 1997, Harris was convicted of those charges and sentenced to life in prison. His convictions and sentences were affirmed per curiam on direct appeal. See Harris v. State, 709 So.2d 650 (Fla. 3d DCA 1998). Harris thereafter filed several postconviction motions attacking his convictions and sentences. Those previous motions were denied and affirmed on appeal.

On December 29, 2011, Harris filed the instant motion for postconviction relief, alleging newly-discovered evidence. In his motion, Harris alleged that a previously unknown witness, Wilbert Pace, had come forward and provided an affidavit containing information that, Harris contended, would probably produce an acquittal at a new trial. Harris alleged that neither he nor his counsel knew of this newly-discovered evidence nor could have known of it in the exercise of diligence. Attached to the motion was Pace’s two-page affidavit, signed and sworn to in December 2011, setting forth Pace’s knowledge of, and involvement in, the events which occurred more than fifteen years earlier.

The trial court denied the motion without an evidentiary hearing, adopting the State’s argument that “the handwritten notarized statement [of Pace] may be newly produced, but the information contained therein, even if true, is merely a repeat of the defendant’s trial testimony that was rejected by the jury in 1997.” While it is true that some of Pace’s allegations are corroborative of what Harris himself testified to during his trial, other portions of the affidavit are neither merely corroborative nor cumulative, but raise new and significant issues. In fact, as the State conceded, one portion of Pace’s affidavit identified another individual as the perpetrator of the crime. The State argued that this portion of Pace’s affidavit is not credible. However, there is nothing in the record provided which renders this portion of Pace’s statement inherently incredible, nor did the trial court make such a finding in its order.

The trial court denied the motion on an alternative ground: that this evidence was or should have been known to defendant or his counsel. The trial court bases this conclusion on Pace’s affidavit, in which he claims that, on the evening in question, and at the scene of Harris’ arrest, Pace (together with other witnesses on the scene) spoke with the police, told the police what actually happened, and gave the police his name and address. Pace alleged that “all my info was in the [police] reports and records.” The trial court concluded:

[I]f, as Pace claims in his affidavit, he and other witnesses corroborated Harris’ claim on the evening of his arrest, nothing about this information is new. The police reports, as well as the Witness Lists, disclosed to the defense in pretrial discovery reveal the names of all the witnesses found inside and outside the store when police arrived, including names of the defendant’s friends present when he was identified by the victims and arrested by police. Nowhere is Wilbert Pace’s name found, even though he alleges in his affidavit that he was there providing information and cooperated with police. If, indeed, all this happened as Pace alleges, and if others witnessed it, too, the defendant and his counsel knew or should have known of it or of the existence of any alleged notes detailing their interactions.

However, there is nothing in the record provided to this Court that reflects that Pace’s name, address, observations or statements were in fact provided to defense counsel in discovery, and the State in its response to Harris’s motion appears to concede as much. Moreover, Harris has alleged that neither he nor his attorney knew of Pace’s existence (or the substance of his testimony) prior to trial. The State did not provide, and the trial court did not attach, any record evidence that that this information was disclosed in discovery or included in any police reports. While this exposes a clear discrepancy and may well impact the credibility of Pace’s proffered testimony (and therefore the quality of his alleged exculpatory evidence), such determinations are ordinarily made following an evidentiary hearing.

Absent a record that conclusively refutes the allegations in the affidavit, or a finding that the newly-discovered evidence is inherently incredible, an evidentiary hearing generally will be required to resolve claims of newly-discovered evidence, especially when resolution of those claims necessarily requires the trial court to make credibility determinations. See, e.g., McLin v. State, 827 So.2d 948, 955-57 (Fla.2002); Jones v. State, 591 So.2d 911, 916 (Fla.1991).

We therefore reverse and remand this cause to the trial court for an order which, together with record attachments, shows conclusively that Harris is entitled to no relief, or for a further evidentiary hearing. We express no opinion on the ultimate merits of Harris’ motion, or the veracity of the purported newly-discovered evidence.

Reversed and remanded for proceedings consistent with this opinion.

SALTER, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I would affirm on the authority of John v. State, 98 So.3d 1257 (Fla. 3d DCA 2012).

      . To qualify as newly-discovered evidence, the asserted facts "must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.” Jones v. State, 591 So.2d911, 916 (Fla. 1991). Tobe entitled to relief on such a claim, "the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Id. at 915.

      . After Harris was arrested and placed in the police car, police discovered Harris tried to hide a pair of earrings that were taken from the victim during the armed robbery. At trial, Harris testified he had just bought the earrings on the street from an unidentified man. Although Pace's affidavit includes allegations which would corroborate Harris' testimony (Pace alleges that he observed Harris buying the earrings) there are additional allegations which, on their face, identify someone other than Harris as the perpetrator of the crimes for which Harris was convicted.

      . While the trial court's order did cite several small excerpts from the trial record, those excerpts do not conclusively refute the allegations in the motion and affidavit. See Fla. R. App. P. 9.141(b)(2)(D) (providing "[o]n appeal from the [summary] denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evi-dentiary hearing or other appropriate relief”). In this vein, the instant case is distinguishable from our recent decision in John v. State, 98 So.3d 1257 (Fla. 3d DCA 2012), cited by the dissent. In John, we recognized that motions for postconviction relief must be evaluated on a case-by-case basis and that, although ordinarily an evidentiary hearing is required on a properly pled claim of newly-discovered evidence, an evidentiary hearing is not required in every case. Given the "unique circumstances” described in John, we found no abuse of discretion in the trial court’s summary denial order based upon its "extensive analysis of the record, including specific portions of the trial testimony of the victims and other witnesses, and an evaluation of Gabriel John’s affidavit. The order discusses, refers to and attaches more than 500 pages of record excerpts it evaluated and relied upon in its denial of the motion without an evidentiary hearing.” Slip op. at 3.

      . In light of the requirement that the newly-discovered evidence must have been unknown by defendant or his counsel at the time of trial, and could not have been known by the use of diligence, see Jones; 591 So.2d at 916, and given that this is a central disputed issue, the trial court could conduct a limited eviden-tiary hearing on this preliminary issue before determining whether a full evidentiary hearing on the merits is warranted.


text:
    Christian SENAT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2697.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2012.
    Martin L. Roth, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), review granted by 81 So.3d 414 (Fla.2012) (table).


text:
    Elliott HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1570.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2012.
    Elliott Hudson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and EMAS, JJ.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).


text:
    Mark PROCTOR and Carolyn Proctor, Petitioner, v. TWO OCEAN MOPED RENTAL, INC., etc., et al., Respondents.
    No. 3D12-1695.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2012.
    Clifton C. Curry, Jr., Daniel W. King and Steven Brannock, Brandon for petitioner.
    Erik W. Scharf and Wayne R. Atkins; Jason Weber, for respondents.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We deny the petition on the merits. Given the procedural posture in which this case has arrived at this Court, we take no further action. Upon a review of the record below, however, we do note that this petition originates from an order which granted a default judgment against some (but not all) of the corporate defendants. This default judgment was evidently granted upon the premise that these defaulted corporate defendants were not represented by counsel. That premise, however, appears to be incorrect, as the record provided by the parties evidences that all corporate defendants were in fact represented by counsel at the time the trial court granted the motion for default judgment. The motion to withdraw was filed some ten days after the motion for default judgment was granted. The motion to withdraw was granted in an order entered sixteen days after the motion for default judgment was granted.


text:
    Frank CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2696.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2012.
    Frank Carter, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and EMAS, JJ.
   WELLS, Chief Judge.

Frank Carter appeals from the trial court’s summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Carter argues that in resentencing him under State v. Thompson, 750 So.2d 643 (Fla.1999), the trial court erred in failing to provide him with a de novo sentencing proceeding. See Childers v. State, 861 So.2d 1194 (Fla. 2d DCA 2003) (providing that “[w]hen a defendant is resenteneed under Thompson, the resentencing shall be conducted de novo”).

On appeal from a summary denial, this court must reverse unless the postconvietion record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D). Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Jesus HERRERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2698.
    District Court of Appeal of Florida, Third District.
    Nov. 28, 2012.
    Jesus Herrera, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. RApp. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: EMAS, J.

text:
    Juan CRESPO, Appellant, v. FLORIDA REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D12-509.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2012.

      Feiler & Leach and Martin Leach, Coral Gables, for appellant.
    Louis A. Gutierrez, Senior Attorney, Reemployment Assistance Appeals Commission (Tallahassee), for appellee.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

FACTS

Juan Crespo (“Crespo”) was employed as an armed security guard by Doyon Security Services (“Doyon”) from July 6, 2009 to September 28, 2011. On the day he was discharged, Crespo was an assigned perimeter officer at an Immigration and Customs Enforcement (“ICE”) detention facility. This required him to rove the outside perimeter of the detention facility in his company vehicle. When he arrived at his post on September 28, Crespo discovered he did not have all the necessary paperwork required to fulfill his security duties. He drove in his company vehicle to the detention facility office and parked the vehicle in a space designated for ICE employees only. Because he was not permitted to bring his firearm into the facility, Crespo placed his loaded firearm in the unlocked glove compartment of his vehicle, locked the vehicle, and then entered the facility to obtain the missing paperwork.

Crespo was later called in by his supervisor and terminated for (1) leaving his assigned post; (2) parking in an unauthorized parking space; and (3) leaving his loaded firearm in the glove compartment of his vehicle.

Crespo filed a claim for unemployment benefits, which was initially granted by the claims adjudicator because “the discharge was for reasons other than misconduct connected with the work.” Doyon appealed this decision, asserting Crespo “was discharged for violation of a reasonable and known policy” by negligently storing his service weapon in a glove compartment with no locking mechanism instead of using his assigned gun locker. Doyon asserted this was “deliberate and willful misconduct connected to the work.” Following a hearing by an appeals referee, the initial determination of the claims adjudicator was reversed. Crespo appealed the referee’s decision, and it was affirmed by the Reemployment Assistance Appeals Commission (“the Commission”). Crespo appeals that order. For the reasons that follow, we reverse.

The only issue for our review is whether Crespo was discharged for violation of a reasonable and known policy by storing his service weapon in the unlocked glove compartment of his locked vehicle, rather than storing it in his assigned gun locker. Both Crespo and a Doyon representative attended the hearing held by the appeals referee. At that hearing, the evidence established that:

1. The area where Crespo parked his vehicle is the main facility entrance where detainees and visitors arrive and exit;
2. Crespo was assigned a gun locker for storage of his service weapon, but on the date in question, chose to leave his weapon in the glove compartment of his locked company truck because doing so allowed him to return to work more quickly;
3. Crespo maintained visual contact of his vehicle while in the facility and believed leaving his weapon in the glove compartment was safe;
4. The only written policy provided by Doyon to Crespo regarding weapon storage states that officers must “always store the gun in a safe place” and the term “safe place” is not defined in the policy;
5. Crespo testified he was aware at the time of the hearing it was Doyon’s position that leaving his weapon in the glove compartment of his company vehicle was a violation of the company policies and procedures.

Following the hearing, the appeals referee issued her determination, reversing the determination of the claims adjudicator and disqualifying Crespo from receiving benefits, based on her finding that Crespo was discharged for violating an employer policy, of which he was aware, and which he admitted violating. According to the appeals referee, this “failure to follow the policy was a deliberate disregard of the claimant’s duties and obligations to the employer, amounting to misconduct connected with work within the meaning of the law.” The Commission affirmed the decision of the appeals referee, and this appeal followed.

ANALYSIS

Section 443.101, Florida Statutes (2011), provides, “[a]n individual shall be disqualified for benefits: (l)(a) For the week in which he or she has voluntarily left work without good cause ... or has been discharged by the employing unit for misconduct connected with his or her work, based on a finding by the Department of Economic Opportunity.” The term “misconduct” is defined, in section 443.036(30), as:

(a) Conduct demonstrating conscious disregard of an employer’s interests and found to be a deliberate violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee.
(b) Carelessness or negligence to a degree or recurrence that manifests culpability or wrongful intent, or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.
(c) Chronic absenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence.
(d) A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state.
(e)A violation of an employer’s rule, unless the claimant can demonstrate that:
1. He or she did not know, and could not reasonably know, of the rule’s requirements;
2. The rule is not lawful or not reasonably related to the job environment and performance; or
3. The rule is not fairly or consistently enforced.

Subsection (e) of section 443.036 (underlined above) was added by the legislature and became effective June 27, 2011. Accordingly, although the prior case law interpreting “misconduct” establishes that an isolated incident by an employee not following an employer policy does not rise to the level of misconduct necessary to disqualify the employee from unemployment benefits, see e.g., Hernandez v. Am. Gen. Fin. & Fla. Unemployment Appeals Comm’n, 39 So.3d 476 (Fla. 3d DCA 2010), the addition of this new subsection expresses the legislative intent that a claimant may be disqualified from benefits where it is established he or she committed a “violation of an employer’s rule.” Once such a violation is established, the burden shifts to the claimant to establish he did not know the rule’s requirements, that the rule is illegal or not reasonably related to the job, or that the rule is not fairly or consistently enforced. § 443.036(30)(e), Fla. Stat. (2011).

“The determination of whether a claimant commits misconduct connected with work is a question of law.” Hialeah Hous. Auth. v. Fla. Unemployment Appeals Comm’n, 16 So.3d 216, 217 (Fla. 3d DCA 2009). However, this Court “should not disturb the action of the [Commission] unless there is a lack of competent, substantial evidence to support the action.” Salinas v. E. Aero Marine, 908 So.2d 1169, 1171 (Fla. 3d DCA 2005). “An appeals referee’s findings of fact ‘must be accepted if supported by competent substantial evidence.’ ” Hialeah Hous. Auth., 16 So.3d at 217 (quoting Sauerland v. Fla. Unemployment Appeals Comm’n, 923 So.2d 1240, 1241 (Fla. 1st DCA 2006). See also Cruz v. Unemployment Appeals Comm’n, 901 So.2d 1010, 1012 (Fla. 4th DCA 2005) (stating “[i]n reviewing the UAC’s determination that Cruz was guilty of misconduct, a question of law, this court’s role is limited to ascertaining ‘whether the interpretation is clearly erroneous’ ”).

In the instant case, the employer’s rule required Crespo to “always store the gun in a safe place.” Doyon failed to establish there was a policy requiring Crespo to “always store the gun in his gun locker” or a rule prohibiting Crespo from storing the gun in the glove compartment of a locked vehicle.

CONCLUSION

Accordingly, we reverse and remand for the Commission to reinstate the finding of the Department of Economic Opportunity Unemployment Compensation Program, entered on November 30, 2011, finding unemployment benefits payable to Juan Crespo and charged to the employer’s account.

      . Although Crespo admitted he was assigned a gun locker, Crespo maintained there was no policy against him storing his weapon in the company truck and he believed the weapon was in a safe place when he left it in the vehicle and kept visual contact on the vehicle while he was in the facility.

      . Having reviewed the record below in light of the statutory requirements of section 443.036(30), Florida Statutes (2011), we determine there is no competent substantial evidence to support the Commission’s order on the other issues.

      . The Commission argues the record establishes Crespo knew, at the time of the conduct in question, that his actions violated company policy. This is not correct. The record instead reveals that, at the time of the hearing, Crespo acknowledged he was aware Doyon was taking the position that Crespo's conduct violated company policy. Crespo has contended throughout he was not aware his employer prohibited him from storing his gun in the glove compartment of a locked vehicle, or that his employer established a policy that the glove compartment of a locked vehicle was not a "safe place.”

      . Although not dispositive in this case, the Florida legislature has specifically established, in section 790.251(3), Florida Statutes (2011), that "no citizen can or should be required to waive or abrogate his or her right to possess and securely keep firearms and ammunition locked within his or her motor vehicle by virtue of becoming a customer, employee, or invitee of any employer or business establishment within the state, unless specifically required by state or federal law.” While this statutory provision is, for other reasons, inapplicable to the present situation, it is significant that the legislature deems the storage of a firearm in a locked vehicle to be "securely ke[pt].”

      . Notably, while this appeal was pending, the Commission sought an order from this Court relinquishing jurisdiction to it "for entry of an order remanding the case to the referee to properly develop the record regarding the employer's policies and render a new decision that contains specific findings of fact and a proper analysis of those facts.” It is difficult to reconcile the Commission's pleading with its argument that there was sufficient competent evidence to support the findings of the appeals referee. Although we denied the Commission's motion to relinquish, we have properly considered, in determining the merits of this appeal, the positions set forth in that motion. See e.g., Reynolds v. Singletary, 677 So.2d 988 (Fla. 1st DCA 1996).


author: SCHWARTZ, Senior Judge.

text:
    Alice BENNETT, Appellant/Cross-Appellee, Charles Bennett, Cross-Appellee, v. BJ’S WHOLESALE CLUB, INC., a foreign corporation, Appellee/Cross-Appellant.
    No. 3D11-2863.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2012.
    Rehearing Denied Feb. 13, 2013.

      Keith Chasin, for appellant/cross-appel-lee Alice Bennett, and for cross-appellee Charles Bennett.
    Richard A. Sherman and James W. Sherman; Topkin, Egner, Partlow & Rad-er and Sanford R. Topkin (Deerfield Beach), for appellee/cross-appellant.
    Before LAGOA and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The November 9, 2011, order before us by both appeal and cross-appeal, granted in part and denied in part the Bennetts’ motion to vacate the November 2, 2010, final judgment enforcing a mediated settlement of their personal injury action against the appellee. Because, however, an initial application for reconsideration (styled by the then-pro se Mrs. Bennett as “Disagree with Mediation Agreement and Motion to Enforce Settlement That was Done on November 2, 2010”) had already been denied on March 30, 2011, and it is clear that the trial court thereafter lacked jurisdiction to consider the successive motion for rehearing or indeed any further proceeding related to the merits of the underlying judgment, see Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1 (Fla.1970); Travelers Cas. & Sur. Co. of Am. v. Culbreath Isles Prop. Owners Ass’n, 103 So.3d 900 (Fla. 2d DCA 2012); Wilson v. Ford, 949 So.2d 1151 (Fla. 3d DCA 2007); Capital Bank v. Knuck, 537 So.2d 697 (Fla. 3d DCA 1989), the order is vacated and held for naught. The effect of this ruling is to confirm the validity of the final judgment, which itself has never been appealed.

Order vacated.

      . The motion also requested relief under Florida Rule of Civil Procedure 1.540(b). Because the judgment was not "void," however, that relief was not available. See Everhome Mortg. Co. v. Janssen, 100 So.3d 1239 (Fla. 2d DCA 2012); Krueger v. Ponton, 6 So.3d 1258 (Fla. 5 th DCA 2009); Dep’t of Health & Rehabilitative Seivs. v. Morley, 570 So.2d 402 (Fla. 5th DCA 1990).


text:
    Arisbel MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1599.
    District Court of Appeal of Florida, Third District.
    Dec. 12, 2012.

      Arisbel Martínez, in proper person. Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012); Hernandez v. State, 124 So.3d 757 (Fla.2012).


text:
    Lazaro J. PADRON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2846.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2012.
    Lazaro J. Padrón, in proper person.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   PER CURIAM.

Following the State’s proper confession of error, we reverse the order summarily denying the defendant’s post-conviction relief motion. The record before us fails to show conclusively that the defendant is not entitled to relief.

The defendant was sentenced to probation; he violated probation and was arrested on March 20, 2008. He was sentenced on November 7, 2008, 229 days later, to community control. He was arrested again on July 13, 2010, and sentenced on August 19, 2010, to thirty-six months in prison. At that time, he was credited only thirty-eight days for time served during the 2010 incarceration.

In April 2011, the defendant filed a Florida Rule of Criminal Procedure 8.800 motion asserting that the court erred in not giving him credit for the 229 days he spent in jail in 2008. That motion was summarily denied in June 2011. On February 3, 2012, the defendant filed a second motion for jail credit. The court denied that motion on February 8, 2012, and attached various documents. On appeal from that order, this Court reversed because none of the record documents attached to the order showed conclusively that the defendant was not entitled to relief. Padrón v. State, 96 So.3d 1041 (Fla. 3d DCA 2012).

In September 2012, the defendant filed a motion for a ruling in keeping with Pa-drón. The trial court entered the order on appeal here with the blanket statement that the defendant is not entitled to any more credit. It attached an August 2010 sentencing transcript that simply states:

You will be getting credit for the time served in custody from the time you were picked up since July 13th of this year.

Nowhere in that transcript is there any other discussion of credit to the defendant, or any discussion of a waiver of same.

“A defendant who is sentenced to incarceration because he violated the probationary portion of a split sentence is entitled to receive credit for time served in prison before being placed on probation.” Isaac v. State, 992 So.2d 304, 305 (Fla. 3d DCA 2008). While the defendant can waive this credit, such a waiver must be clearly reflected on the record. Wells v. State, 751 So.2d 703 (Fla. 1st DCA 2000). Nowhere does this record reflect any waiver.

We therefore reverse this case and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the defendant waived the entitlement to this credit. Because the defendant’s current release date is set for the end of January, we direct the trial court to address this matter in an expedited manner.

Reversed and remanded with directions.


text:
    John David REASOR and Danielle Marie Reasor, Appellants, v. GREEN TREE SERVICING LLC, etc., Appellee.
    No. 3D12-2995.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 2012.
    ICE Legal, P.A., and Amanda L. Lun-dergan, Royal Palm Beach, for appellants.
    Veschio Law Group, LLC, and Mark Smith, Tampa, for appellee.

      Before WELLS, C.J., and CORTIÑAS and LOGUE, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Based upon the appellee’s commendable confession of error, the final judgment of foreclosure entered on October 31, 2012, is reversed. This case is remanded for further proceedings consistent with this opinion.


text:
    Robert GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2057.
    District Court of Appeal of Florida, Fourth District.
    Jan. 4, 2013.
    Robert Gray, Opa Locka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

TAYLOR, HAZOURI and GERBER, JJ., concur.


text:
    Timothy KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1245.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

MAY, C.J., TAYLOR and CONNER, JJ., concur.


text:
    Alexander L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4372.
    District Court of Appeal of Florida, Fourth District.
    March 13, 2013.

      Carey Haughwout, Public Defender, and Richard Greene, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, DAMOORGIAN and CONNER, JJ., concur.


text:
    JOHN MORIARTY AND ASSOCIATES OF FLORIDA, Appellant, v. MURTON ROOFING CORP., etc., Appellee.
    Nos. 3D11-1632, 3D10-3176.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Rehearing Denied July 31, 2013.

      Kopelowitz Ostrow and John J. Shahady and Thomas R. Shahady, Fort Lauderdale, for appellant.
    Gray Robinson and Juan C. Martinez, Miami, for appellee.
    Before SUAREZ, CORTIÑAS and EMAS, JJ.
   EMAS, J.

In these consolidated appeals, Eseadote I Corporation (“Eseadote”) seeks review of a trial court order granting judgment, in accordance with a prior motion for directed verdict, in favor of Ocean Three Limited Partnership (“Ocean Three”) and John Moriarty and Associates of Florida, Inc. (“Moriarty”), following a jury verdict of $2,050,000 in Escadote’s favor. Moriarty appeals an order denying its motion for attorney’s fees and costs.

We review de novo the trial court’s order granting motion for judgment in accordance with a prior motion for directed verdict. As the supreme court has observed:

When presented with a motion for judgment notwithstanding the verdict, the trial court must “view all of the evidence in a light most favorable to the non-movant, and, in the face of evidence which is at odds or contradictory, all conflicts must be resolved in favor of the party against whom the motion has been made. Similarly, every reasonable conclusion which may be drawn from the evidence must also be construed favorably to the non-movant. Only where there is no evidence upon which a jury could properly rely, in finding for the plaintiff, should a directed verdict be granted. It goes without saying that a motion for directed verdict should be treated with special caution.... ”

Irven v. Dep’t of Health & Rehab. Servs., 790 So.2d 403, 407 (Fla.2001) (quoting Collins v. Sch. Bd. of Broward Cnty., 471 So.2d 560, 563 (Fla. 4th DCA 1985)) (other citations omitted). We have explained that:

[DJirected verdicts should be cautiously granted and will not be sustained unless the record when viewed in the light most favorable to the party against whom the motion is directed fails to show any reasonable view of the evidence which could sustain the position of that party.

Williams v. Dade Cnty., 237 So.2d 776, 777 (Fla. 3d DCA 1970).

Having reviewed the entire record, we conclude that the evidence presented at trial supported the verdict upon the theory presented by Eseadote, and the trial court erred in granting the motion for judgment in accordance with a prior motion for directed verdict.

We therefore reverse the order and remand with instructions to reinstate the jury verdict in favor of Escadote. See e.g., Edwards v. Orkin Exterm. Co., 718 So.2d 881 (Fla. 3d DCA 1998); N. Dade Golf, Inc. v. Clarke, 439 So.2d 296 (Fla. 3d DCA 1983); The Hertz Corp. v. Gleason, 874 So.2d 1217 (Fla. 4th DCA 2004).

      . We note that the trial court entered Moriarty's proposed ten-page order verbatim. This fact alone does not compel reversal, given that Eseadote had an adequate opportunity to present its own proposed order and to voice objections to Moriarity's version. Cf. Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004) (holding verbatim adoption of proposed final judgment was reversible error where trial court failed to give opposing party opportunity to object or to submit his own proposed final judgment). Nevertheless, Florida courts have been critical of such a practice. As the Fifth District explained in White v. White, 686 So.2d 762, 763 (Fla. 5th DCA 1997):
      It is the [trial] court's unique responsibility to malte the decisions on the various issues of the case based on the pleadings before it and its view of the evidence presented. The court does not fulfill this responsibility by merely choosing the better proposed judgment or the better option or options contained in competing proposed judgments presented by the attorneys. Often the attorneys, without appropriate guiding instructions, will make findings of fact and even rulings of law that the court, without such prompting, would never have considered. The judge, in reviewing the proposed judgment sometimes several weeks or even months after the trial (in this case, the final judgment was entered four weeks after the trial), may conclude that because the judgment sounds right (even though the judge cannot remember everything that took place at trial) the proposed judgment should be signed. But what if something appears in the judgment that was not even considered during the trial?
      Perhaps the most significant inconsistency between the ten-page order and the court’s rulings at trial involved one of the theories of recovery. In its order, the trial court found that appellant had not pled a claim for diminution of value. At trial, however, when ap-pellees objected to evidence being presented on this theory, and argued for its exclusion on the basis that this was a "new claim" which had not been pled, the trial court overruled the objection:
      COURT: Well, they always pled diminished value. I made that ruling the first day. They pled it, so you're on notice that they're trying to get it. You know what the law is. You're the one that brought it all up to me about how you get diminished value only if it's permanently damaged, but if it’s not permanently damaged, commercial waste, you only get the cost to repair. So you’ve known all along they were going to diminished value, and they are going to have to prove it was not repairable....

      . Accordingly, we also affirm the trial court’s denial of Moriarty’s motion for attorney’s fees.


text:
    Dmitri CHEVALDINE, Appellant, v. R.K./FL MANAGEMENT, INC., Appellees.
    No. 3D12-3221.
    District Court of Appeal of Florida, Third District.
    May 1, 2013.
    Coffey Burlington, P.L., and Jeffrey B. Crockett and David J. Zack, Miami, for appellant.
    Paul Morris; Kluger & Levine, P.L., and Alan J. Kluger and Todd Levine, Miami, for appellees.
    Before CORTINAS, FERNANDEZ and LOGUE, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Dmitri Chevaldine appeals the trial court’s entry of a preliminary injunction. Based on the appellees R.K./FL MANAGEMENT, INC., etc., et al.’s confession of error, we reverse and remand with directions to vacate the preliminary injunction entered against Chevaldine only.

Reversed and remanded.


text:
    J.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2273.
    District Court of Appeal of Florida, Third District.
    June 26, 2013.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, and James Moody, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Natalia Costea, Miami, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   WELLS, Chief Judge.

J.P., a juvenile, appeals from an order adjudicating him delinquent for aggravated assault with a deadly weapon. Because the evidence introduced below does not establish that the weapons in this case were used in a manner likely to cause great bodily harm, we reverse.

J.P. was charged below with two counts of aggravated battery for allegedly pointing a BB gun at and throwing rocks at another individual. No evidence was adduced at trial as to the count relating to the BB gun and the count was dismissed. As to the rock throwing charge, the testimony was that J.P. was “tossing [rocks] softly with one hand,” not “throwing [them] hard” but merely “flick[ing]” quarter-sized rocks at the victim. This testimony was legally insufficient to sustain an adjudication for aggravated assault.

To prove aggravated assault, the State had to show that J.P. committed an assault “[w]ith a deadly weapon without intent to kill.” § 784.02100(a), Fla. Stat. (2012). A “deadly weapon” is an item which, “when used in the ordinary manner contemplated by its design, will or is likely to cause death or great bodily harm; or any instrument likely to cause great bodily harm because of the way it is used during a crime.” D.B.B. v. State, 997 So.2d 484, 485 (Fla. 2d DCA 2008). The items at issue here, quarter-sized rocks, are not ordinarily likely to cause death or great bodily harm. And based on the evidence adduced below, the rocks were not used in a way likely to cause great bodily harm and in fact caused no harm. See e.g., id. (finding that a bicycle which was thrown at a victim but did not strike her was not a deadly weapon, stating “the manner in which the bicycle was used did not make it likely to cause death or great bodily harm”); E.J. v. State, 554 So.2d 578, 579 (Fla. 3d DCA 1989) (concluding that a skateboard thrown at a vehicle and denting it was not a deadly weapon); Forchion v. State, 214 So.2d 751, 752 (Fla. 3d DCA 1968) (finding that a two foot long piece of a broom handle thrown from twelve to fifteen feet away and inflicting only minor harm was not a deadly weapon); Rogan v. State, 203 So.2d 24, 25 (Fla. 3d DCA 1967) (determining that a one-foot diameter flower pot filled with dirt which was thrown at a window, breaking the glass but not penetrating the screen, was not a deadly weapon); but see A.H. v. State, 577 So.2d 699 (Fla. 3d DCA 1991) (finding that a baseball-sized rock thrown with such force that when it landed five to ten feet from the victim that it produced a loud boom was a deadly weapon). The evidence adduced below was, therefore, insufficient to establish aggravated assault with a deadly weapon.

The evidence was, however, sufficient to establish that J.P. was guilty of assault. See § 784.011(1), Fla. Stat. (2011) (“An ‘assault’ is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.”); D.B.B., 997 So.2d at 486 (concluding that while throwing a bicycle in a manner not likely to cause great bodily injury or death was insufficient to establish assault with a deadly weapon, it was sufficient to establish simple assault); Rogan, 203 So.2d at 25 (similarly confirming that while throwing a flower pot through a window was insufficient to establish aggravated assault, it was sufficient to support a conviction for assault). We therefore reverse J.P.’s adjudication of delinquency for aggravated assault and remand for the trial court to adjudicate him for assault and to impose a sentence appropriate to that offense.

Reversed and remanded with directions.


author: SHEFFIELD, FRANK E., Associate Judge. OSTERHAUS, J.;

text:
    Shari K. JUDKINS, Appellant, v. WALTON COUNTY, a political Subdivision of the State of Florida, Appellee.
    No. 1D12-4064.
    District Court of Appeal of Florida, First District.
    July 15, 2013.
    Rehearing Denied Sept. 23, 2013.

      Brad E. Kelsky, Plantation, for Appellant.
    Harry F. Chiles, Carly J. Schrader, and Heath R. Stokley, Nabors Giblin & Nick-erson, Tallahassee, for Appellee.
   SHEFFIELD, FRANK E., Associate Judge.

Appellant Shari Judkins seeks review of an order granting summary judgment to Appellee, Walton County, on Judkins’ inverse condemnation claim based on Jud-kins’ failure to comply with the four year statute of limitations contained in section 95.11(3)(p), Florida Statutes. Judkins argues that the stabilization doctrine set forth in United States v. Dickinson held the statute of limitations on her claim in abeyance until Walton County abandoned its efforts to remediate the flooding of Judkins’ property; she also argues that the trial court abused its discretion in failing to grant her leave to amend her complaint. We affirm the denial of leave to amend without comment, but write to explain why we affirm the trial court’s ruling that the stabilization doctrine does not apply to this case.

Judkins acquired unimproved residential property in Destín in 2001, and became the sole owner of the parcel in 2006. -In 2002 and 2003, Walton County performed road improvement activity on Holiday Road, which fronts the property. That activity involved alteration to the existing drainage pattern. After the work was complete in 2002, Appellee noticed that the property flooded nearly every time it rained, such that it was impossible to improve the property. While there is some evidence that later projects may have contributed some flood water to the property, Judkins has consistently asserted that the property has been unusable since the original road project was completed in 2002.

After Judkins complained to the county, she asserts she received numerous assurances that the flooding problem would be repaired. According to Judkins, the county represented that contemplated road work in nearby neighborhoods would alleviate flooding on her property. Walton County undertook several projects, but the problem was never successfully resolved; there is no evidence that these projects were undertaken for the purpose of remedying flooding on the Judkins property. In fact, a 2004 letter from the county engineer to Judkins advised that the flooding was not caused by the 2002 road improvements and that Walton County assumed no responsibility for repairing it. One such project concluded in 2007 but did not ameliorate the flooding.

In 2009, Judkins filed a Complaint for Inverse Condemnation based on the flooding of the parcel, alleging that the drainage system associated with the road improvement project caused water to continuously and permanently stand on the property, rendering it unusable. Walton County raised several affirmative defenses, including that the claim was barred by the statute of limitations, which the county asserted began to run in 2002 when the water first continuously invaded the property. On this basis, the trial court granted summary judgment to Walton County.

Judkins contends that the logic of United States v. Dickinson compels reversal in this case. 331 U.S. 745, 67 S.Ct. 1382, 91 L.Ed. 1789 (1947). The general rule of law is that a property owner must bring an inverse condemnation claim within four years of the physical invasion of the property caused by governmental action. Sarasota Welfare Home, Inc. v. City of Sarasota, 666 So.2d 171, 172-73 (Fla. 2d DCA 1995). In Dickinson, the United States Supreme Court provided for a limited exception under federal law to this rule in cases where a property owner would not be able to ascertain the full extent of the invasion or injury to their property at the time of the initial intrusion. The court held that a cause of action for a governmental taking of private property, by gradually increasing the depth of a river such that it permanently flooded the property, accrues not when the first act of taking occurs but when the extent of the taking “becomes stabilized.” Id. at 749, 67 S.Ct. 1382. The Supreme Court determined that a landowner need not bring suit “until the consequence of inundation have so manifested themselves that a final account may be struck.” Id. In the instant case, and unlike in Dickinson, there is a distinct event where the extent of flooding became known when the project was completed.

This Court applied Dickinson’s rationale to inverse condemnation claims in Millender v. State Department of Transportation, 774 So.2d 767, 770 (Fla. 1st DCA 2000). In Millender, like in Dickinson, the governmental taking of the property was accomplished by a gradual process; further, in Millender, the final act completing the taking was a state agency’s mandate that the landowner remove a seawall which had been mitigating the flooding. Id. at 771. This specific governmental act, related to the initial invasion, accomplished the flooding within four years of the date the plaintiff filed suit. While there is some evidence that an independent project in this case may have added to the level of flooding, there is no indication that this new governmental action accomplished a taking itself — according to Judkins’ allegations, the property was already unusable due to flooding before the additional flooding occurred. In fact, the deposition testimony of Judkins and her expert indicated the cause of action accrued in 2002, when the first project was completed. Thus, Millender is inapplicable.

Only one other Florida court has applied the Dickinson stabilization doctrine. In Hillsborough County Aviation Authority v. Benitez, 200 So.2d 194 (Fla. 2d DCA 1967), the Second District held that the statute of limitations on an inverse condemnation claim based on increased air traffic noise in proximity to an airport did not accrue until the noise level, which had been gradually increasing for eight years, became stabilized with the nearly constant arrival of jet aircraft. It was only at this time, when the extent of the invasion was known, that the cause of action accrued.

Judkins relies on Applegate v. United States, 25 F.3d 1579 (Fed.Cir.1994), in which the court determined that continued governmental promises to remediate erosion damage caused by the construction of a channel through a barrier island, abated the statute of limitations such that it did not begin to run while the promises rendered the landowners uncertain as to the permanency of the erosion. Id. at 1582. The Federal Circuit, in applying Dickinson, relied on “both the very gradual nature of this particular continuous physical process and the [government’s] promises to restore the littoral flow of sand” to decide the taking had not stabilized prior to the limitations period. Id. at 1583 (emphasis added). This is another decision in which the extent of the injury was not known at the time of the initial invasion, and thus the action had not accrued. The instant case is a different situation.

No court has applied the stabilization doctrine in a situation where the extent of the injury is known and the cause of action has accrued. Judkins suggests that we apply the doctrine based solely on a subsequent promise to build a distinct project which may have some remedial effect on the initial intrusion, for which a cause of action has accrued. We decline to do so.

Turning to the instant case, application of this rule is simple. When the flooding allegedly caused by Walton County’s improvements to Holiday Road invaded Jud-kins’ property in 2002, the property was no longer improvable and thus had been taken, regardless of whether the county promised to repair the problem. The statute of limitations began to run at that time, and had elapsed well before suit was filed in 2009.

This is not to say that Walton County’s actions in promising to remedy the flooding and then, after the limitations period expired, abandoning the remediation effort insulated it from liability. Indeed, Judkins may very well have been able to avoid the statute of limitations by pleading and proving equitable estoppel. Avoidance of affirmative defenses, however, must be specifically pled in a Reply. Fla. R. Civ. P. 1.110(d). At no point in this proceeding did Judkins raise collateral estoppel, and therefore the issue was waived.

Because the Dickinson stabilization doctrine does not apply in this case, the summary judgment entered below is AFFIRMED.

WOLF, J., concurs. OSTERHAUS, J., concurs with opinion.

OSTERHAUS, J.;

Concurring.

I too conclude that the circuit court’s decision should be affirmed because Jud-kins’ claim did not comply with the statute of limitations.

■ But, with all respect for my colleagues’ views, I think that the Dickinson stabilization doctrine does apply to forestall the statute of limitations when, as here, the government promises that its ongoing projects will restore a landowner’s devastated property. Various cases have cited this doctrine to prevent government from deploying promises to game the statute of limitations in inverse condemnation cases. See, e.g., Applegate v. United States, 25 F.3d 1579, 1582 (Fed.Cir.1994); Banks v. United States, 314 F.3d 1304, 1308-10 (Fed.Cir.2003); Mildenberger v. United States, 643 F.3d 938, 946-47 (Fed.Cir. 2011).

Applegate is most often cited. It involved a government promise to construct a sand transfer plant that would remedy government-caused erosion on coastal property. After decades of promises, the plant never got built. When landowners sued, and the government asserted a statute of limitations defense, the Federal Circuit applied Dickinson and permitted the suit to go forward. It said:

With plans for a sand transfer plant pending, the landowners had no way to determine the extent, if any, of the permanent physical occupation.... [Uncertainty has stayed accrual of the claim. The Government’s promise to restore the littoral flow destroyed any predictability of the extent of damage to the land.

Applegate, 25 F.3d at 1582-83 (emphasis added).

Likewise, here, I think that Walton County’s promises to Judkins allowed her lawsuit to be postponed, for a while anyway. It does not matter for purposes of the Dickinson stabilization doctrine that Judkins knew in 2002 that the County had flooded her property. Though the flooding was evident, the County promised to fix it and its ongoing work adjacent to her property kept the situation from immediately stabilizing or reaching permanency. See Dickinson, 331 U.S. at 749, 67 S.Ct. 1382 (finding the statute of limitations to begin when “the situation becomes stabilized [and] a final account may be struck”); Hillsborough Cnty. Aviation Auth. v. Ben-itez, 200 So.2d 194, 200 (Fla. 2d DCA 1967) (applying Dickinson because property owners “were uncertain just how serious the impairment would be or how long it would continue”).

Nevertheless, I still think that Judkins filed her case too late. Even applying Dickinson, her situation became permanent in 2004. What stabilized things at that point is that Judkins wrote the County a letter asking point-blank about “what [it] intended to do about resolving the problem [of water running onto her] formerly dry, accessible, and useable property?” The County responded in May 2004, by asserting that it did not cause Judkins’ flooded property situation; by disputing Judkins’ contention that her property had been dry, accessible, and useable; and by extending no promise to fix her flooded property. The letter declared instead that Judkins’ property had “always” been wetlands. And it was framed as the County’s “last correspondence on the matter.”

While the County’s various assertions in the letter about the cause and nature of the flooding remained hotly disputed, no genuine issue of material fact remained after the County’s letter as to Dickinson’s applicability. The letter ended Dickinson’s applicability because Judkins’ flooding situation effectively became permanent — her property remained flooded and the County expressed no intention of fixing it. Judkins produced no evidence in response to Walton County’s summary judgment motion to show that she reasonably could continue relying on whatever old promises the County had made prior to May 2004. So the situation stabilized and the four-year statute of limitations commenced. Because Judkins did not file her inverse condemnation action until 2009, I agree that her claim is time-barred.


author: ROTHENBERG, J. SHEPHERD, C.J.,

text:
    Harold E. WOLFE, Jr., et al., Appellants, v. Jeffrey T. FOREMAN, et al., Appellees.
    No. 3D10-3055.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.

      Michael E. Allen, Tallahassee, for appellants.
    Hunton & Williams LLP, and Marty Steinberg and Jeffrey W. Gutchess; Ross & Girten, and Lauri Waldman Ross, Miami, for appellees.
    Before SHEPHERD, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   ROTHENBERG, J.

The issue in this appeal is whether the litigation privilege, which protects actions taken in the course of and related to a judicial proceeding from civil liability, applies to causes of action for: (1) abuse of process; and (2) malicious prosecution. Because the law is clear that the litigation privilege applies to abuse of process, we affirm the trial court’s order granting judgment on the pleadings in favor of the defendants below as to that cause of action. Although the law is not as clear whether the litigation privilege also applies to a cause of action for malicious prosecution, we: (1) conclude that it does; and (2) affirm the trial court’s order finding that the litigation privilege also applies to a cause of action for malicious prosecution.

The operative facts are as follows. Richard Ferrrell and Harold Wolfe, who are partners in a limited liability company (“The Boatslip”), were involved in litigation in Monroe County over control of The Boatslip. The Monroe County litigation ultimately was settled.

Ferrell, who was dissatisfied with the outcome, sued his partners in the United States District Court for the Southern District of Florida (“the Federal case”). Ferrell’s New York counsel retained the ap-pellees, two Miami attorneys and their law firm (the “Miami Lawyers”), to serve as local counsel. The Miami Lawyers filed a complaint on January 6, 2007. On March 6, 2007, when the Miami Lawyers received documents from Wolfe demonstrating that the issues raised in the Federal case were raised and settled in the Monroe County suit, the Miami Lawyers immediately notified Ferrell that they could not ethically pursue his claims and must withdraw. The Miami Lawyers withdrew from the Federal case on March 13, 2007, after seeking and receiving permission from the Federal court to do so, as required under applicable rules. On September 13, 2007, six months after the Miami Lawyers withdrew, Ferrell’s complaint was dismissed and final judgment was entered. The United States Circuit Court affirmed the dismissal.

Wolfe, Harold E. Wolfe, Jr., P.A., and Harold E. Wolfe, Jr., Revocable Trust (collectively, “Wolfe”) the appellants here, sued the Miami Lawyers for abuse of process and malicious prosecution. The trial court granted the Miami Lawyers’ motion for judgment on the pleadings, finding that the pleadings demonstrated that the alleged wrongful actions were taken in the course of and related to litigation and were thus absolutely privileged under Florida law.

LEGAL ANALYSIS

Our standard of review of the trial court’s judgment on the pleadings is de novo. Martinez v. Fla. Power & Light Co., 863 So.2d 1204, 1205 (Fla.2003); Walker v. Figarola, 59 So.3d 188, 189 (Fla. 3d DCA 2011). The litigation privilege was first recognized in Florida in 1907 to provide legal immunity for actions that occur in judicial proceedings. Myers v. Hodges, 53 Fla. 197, 44 So. 357 (1907). In Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606, 608 (Fla.1994), the Florida Supreme Court extended the litigation privilege, already applicable to defamatory statements (slander and libel) and perjury, to all other torts so long as the act complained of occurs during and has some relation to the proceedings, stating:

[W]e find that absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.... [Participants [must] be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.

The Levin plaintiff alleged that the defendant law firm tortiously interfered with the plaintiffs relationship with its attorneys by listing the attorneys as witnesses in a separate case in order to prevent them from serving as attorneys in that case. Id. at 607. The Levin court held the attorneys’ conduct was shielded against the plaintiffs suit by Florida’s litigation privilege. Id.

Thirteen years after Levin, the Florida Supreme Court clarified that “[t]he litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin,” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 384 (Fla. 2007), and reaffirmed that “[a]bsolute immunity must be afforded to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding.” Echevarria, 950 So.2d at 384 (quoting Levin, 639 So.2d at 608), see also DelMonico v. Traynor, 116 So.3d 1205 (Fla.2013) (clarifying that, although not all statements made outside of the formal judicial process are protected by the litigation privilege, an absolute privilege applies to conduct occurring during the course of the proceedings).

Because the litigation privilege protects the judge, parties, counsel, and witnesses, Ange v. State, 98 Fla. 538, 123 So. 916 (1929), the issue we must resolve in this appeal is whether the acts alleged “oc-curredfed] during the course of a judicial proceeding.” Levin, 639 So.2d at 608.

ABUSE OF PROCESS

The elements of a cause of action for abuse of process under Florida law are: (1) an illegal, improper, or perverted use of process by the defendant; (2) an ulterior motive or purpose in exercising the illegal, improper, or perverted process; and (3) damages to the plaintiff as a result. Valdes v. GAB Robins N. Am. Inc., 924 So.2d 862 (Fla. 3d DCA 2006).

Because it is undisputed that the acts relating to abuse of process complained of here occurred after the complaint was filed and were related to the judicial proceedings, the litigation privilege applies to Wolfe’s cause of action for abuse of process. See LatAm Invs., LLC v. Holland & Knight, LLP., 88 So.3d 240 (Fla. 3d DCA 2011) (holding that the litigation privilege applies to abuse of process claims where the conduct occurred during and was related to the judicial proceedings); Am. Nat’l Title & Escrow of Fla. v. Guarantee Title & Trust Co., 748 So.2d 1054, 1055 (Fla. 4th DCA 2000) (affirming the trial court’s order granting summary judgment in favor of the law firm in an action for abuse of process on the basis of absolute immunity and on the authority of Lev-in); see also LatAm, 88 So.3d at 243 (concluding that the application of the litigation privilege to a cause of action for abuse of process does not eliminate that cause of action because the privilege only applies to acts taken during and related to the judicial proceedings). The trial court, therefore, correctly granted judgment on the pleadings in favor of the Miami Lawyers, and we affirm the trial court’s order as to Wolfe’s abuse of process claim.

MALICIOUS PROSECUTION

The elements for a malicious prosecution cause of action are that a judicial proceeding: (1) was commenced against the plaintiff; (2) was instigated by the defendant; (3) ended in favor of the plaintiff; (4) was instigated with malice; (5) was commenced without probable cause; and (6) resulted in damage to the plaintiff. Valdes, 924 So.2d at 866 n. 1 (quoting Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352,1355 (Fla.1994)).

In answering the question as to whether the litigation privilege applies to a cause of action for malicious prosecution, we are guided and restrained by the broad language and application of the privilege articulated by the Florida Supreme Court in Levin and Echevama. In Levin, the Florida Supreme Court held that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding ... so long as the act has some relation to the proceeding.” Levin, 639 So.2d at 608. In Echevama, the Court reiterated its broad application of privilege “applies in all causes of action, statutory as well as common law.” Echevama, 950 So.2d at 380-81.

It is difficult to imagine any act that would fit more firmly within the parameters of Levin and Echevama than the actual filing of a complaint. The filing of a complaint, which initiates the judicial proceedings, obviously “occurs during the course of a judicial proceeding” and “relates to the proceeding.”

The Florida Supreme Court also used very broad language in articulating the policy reasons or rationale for adopting the litigation privilege and applying the litigation privilege to all actions taken during and related to the judicial proceedings. The Florida Supreme Court explained that, “Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.” Echevarria, 950 So.2d at 384 (quoting Levin, 639 So.2d at 608) (emphasis added). “It is the perceived necessity for candid and unrestrained communication in those proceedings, free of the threat of legal actions predicated upon those communications, that is the heart of the rule. The nature of the underlying dispute simply does not matter.” Eche-vama, 950 So.2d at 384.

Because the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be “free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct,” we are obligated to conclude that the act complained of here — the filing of the complaint — is protected by the litigation privilege. Thus, the trial court properly granted a judgment on the pleadings for Wolfe’s cause of action against the Miami Lawyers for malicious prosecution.

We are also unpersuaded by the argument that, unlike other torts, the application of the litigation privilege to the tort of malicious prosecution would effectively eliminate malicious prosecution as a cause of action all together. In the instant case, the acts complained of were the actual filing of the complaint and the brief prosecution of the case by the Miami Lawyers. These acts indisputably occurred during and were related to the judicial proceedings, and are therefore protected by the litigation privilege. Acts committed prior to the filing of the complaint may not, in some cases, enjoy the broad protection of the privilege. For example, in Olson v. Johnson, 961 So.2d 356, 360 (Fla. 2d DCA 2007), the court found that the litigation privilege did not protect the three women who allegedly filed a police report falsely accusing Olson of stalking. Based on their accusations, Olson was arrested. At trial, Olson presented physical evidence that established that he was six miles away purchasing items at a department store during the time the three women claimed he was stalking Johnson. Olson was acquitted and sued the three women for malicious prosecution and abuse of judicial process. The Second District concluded that the litigation privilege did not apply “to a complaining witness such as Johnson who is named as a defendant in a malicious prosecution action.” Id. at 360-61; see also Am. Nat’l Title & Escrow of Fla., 810 So.2d at 998 (rejecting a claim of absolute privilege and finding that the defendants would enjoy at most a qualified privilege for allegedly providing law enforcement with false information with the intent to injure the plaintiffs).

Additionally, the Florida Supreme Court in Levin noted that while tortious conduct may be protected under the litigation privilege,

[t]his does not mean, however, that a remedy for a participant’s misconduct is unavailable in Florida. On the contrary, just as “[rjemedies for perjury, slander, and the like committed during judicial proceedings are left to the discipline of the courts, the bar association, and the state,” Wright, 446 So.2d at 1164, other tortious conduct occurring during litigation is equally susceptible to that same discipline.

Levin, 639 So.2d at 608-09.

Accordingly, we affirm the trial court’s order granting the Miami Lawyers’ motion for judgment on the pleadings on Wolfe’s causes of action against the Miami Lawyers for abuse of process and malicious prosecution

Affirmed.

CORTIÑAS, J., concurs.

SHEPHERD, C.J.,

specially concurring.

The only remarkable thing about this case is its existence. As the managing attorney of the Miami office of The Florida Bar explained to Mr. Wolfe (himself a licensed Florida attorney), when he refused to accept staff counsel’s initial rejection of his Bar complaint against the Kenny Nachwalter lawyers who brought the federal action, “the Florida rules governing attorney conduct ... preclude an attorney from bringing a frivolous action. Once the attorneys learned of the true history of the litigation, they withdrew.” Rather than approbation for doing the right thing, the law firm and two of its attorneys sadly have been rewarded with a summons and complaint.

There is no material dispute about the facts of this case. The Kenny Nachwalter firm withdrew as local counsel upon learning its client and lead counsel misrepresented or intentionally omitted to advise the firm’s lawyers of dispositive information relating to the viability of a complaint the law firm filed in the United States District Court at their behest. The correctness of the law firm’s decision was confirmed a few months later when the United States District Court dismissed the case on the ground the omitted fact operated to bar the prosecution of the action; precisely the consequence Kenny Nachwalter predicted.

The plaintiff alleges the Kenny Na-chwalter law firm had a duty to independently verify what it was told by its client and lead counsel. That is not so. Enda-cott v. Int’l Hospitality, Inc., 910 So.2d 915, 922 (Fla. 3d DCA 2005) (stating lawyers are entitled to rely on their client’s representations of fact); United States v. Del Carpio-Cotrina, 733 F.Supp. 95, 99 (S.D.Fla.1990) (stating ethical rules do not require lawyers to investigate client); see also Baron v. Fieldstone, 581 So.2d 649, 650 (1991) (concluding attorney fees were improperly assessed against the plaintiffs counsel where counsel acted in good faith based on his client’s representations).

On appeal, Plaintiff-Appellant seeks to direct our attention to the issue of whether the litigation privilege bars all actions for malicious prosecution. The tort of malicious prosecution is not applicable to the facts of this case because at least two essential elements of the cause of action are missing-malice and absence of probable cause. If there were a cause of action in this case, it might be for “negligently” conducting a civil proceeding. However, as this court has made clear, no such cause of action exists in this state. Chapman v. State, Dep’t of Health & Rehabilitative Sens., 517 So.2d 104, 106 (Fla. 3d DCA 1987) (citing Pokomy v. First Fed. Savs. & Loan Ass’n, 382 So.2d 678, 683 (Fla.1980)); Hudson v. Dykes, 402 So.2d 491, 493 (Fla. 1st DCA 1981). Nor, in any case, were the Kenny Nachwalter lawyers negligent or abusive in any action they took in the case. They acted honorably.

For the reasons expressed, I join in the affirmance of the judgment of the trial court in this case and the decision of this court to award appellate attorneys’ fees to counsel for Kenny Nachwalter and the individual defendants.

      . Lead counsel is a member of the New York bar. He is not admitted to the Florida Bar or the United States District Court for the Southern District of Florida, and therefore could not file the complaint on his own. See U.S.D.C. Local Rule 4 (Appearances).

      . In contrast, counsel who remained in the case, replacement local counsel, and the plaintiffs in the United States District Court, participated in a substantial payment of attorney fees and costs to Mr. Wolfe and his co-defendants in settlement of a Federal Rule of Civil Procedure 11 in the United States Court of Appeals for the Eleventh Circuit after that court affirmed the dismissal of the federal suit. See Ferrell v. Durbin, 311 Fed.Appx. 253 (11th Cir.2009). Wolfe did not include the Kenny Nachwalter law firm and its attorneys in the Rule 11 motion and could not do so because they withdrew. It would seem peculiar, at best, to afford Mr. Wolfe a pathway in the courts of this state to accomplish what he rather clearly could not accomplish in the forum where the offending conduct is alleged to have occurred.


text:
    Sabrina FRANCIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-1537.
    District Court of Appeal of Florida, Third District.
    July 17, 2013.
    Rehearing Denied Aug. 13, 2013.

      Sabrina Francis, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Novaton v. State, 634 So.2d 607 (Fla.1994); Salazar v. State, 675 So.2d 654 (Fla. 3d DCA 1996).


author: CORTINAS, J.

text:
    Tomas ARIAS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D08-483, 3D08-598.
    District Court of Appeal of Florida, Third District.
    July 24, 2013.
    Carlos J. Martinez, Public Defender, and Billie J. Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and CORTINAS and ROTHENBERG, JJ.
   CORTINAS, J.

This case is before us on remand from the Supreme Court of Florida, which quashed this Court’s opinion and remanded for reconsideration in light of Jardines v. State, 73 So.3d 34 (Fla.2011), ajfd, — U.S.-, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). See Arias v. State, 90 So.3d 269 (Fla.2012). We affirm.

Detective Donnelly received an anonymous “crime stoppers” tip regarding a suspected marijuana grow house. Detective Donnelly went to the home with Sergeant Ramirez, Detective Valdez, and Detective Valdez’s drug detecting dog, “Babe,” in order to conduct surveillance and obtain consent to search through employing the “knock and talk” procedure. Detective Donnelly noticed that there were three cars parked in the driveway, all of the blinds were closed, and the air conditioning was running continuously without recycling. As the three officers approached, Detective Donnelly smelled the odor of live marijuana. Detective Valdez did not. Babe alerted to the odor of marijuana when they approached the front door, and Detective Valdez gave a “thumbs up” to notify Detective Donnelly that Babe had alerted. Either before or after the alert, Detective Donnelly knocked on the door, but there was no answer. Detective Don-nelly submitted an affidavit for a search warrant, which a magistrate judge later issued.

The subsequent search of Arias’ home revealed that it was operating as marijuana grow house, and Arias was arrested and charged with trafficking in cannabis. After a hearing, the trial court entered a detailed order denying Arias’ motion to suppress. Arias pled guilty and reserved his right to appeal the denial of his motion to suppress.

Based on the Florida Supreme Court’s holding in Jardines, the dog sniff in the instant case was an illegal search. However, the trial court, in denying Arias’ motion to suppress, did not rely on the dog sniff. The trial court found that there was independent evidence in the affidavit to support probable cause:

[E]ven if the dog alert to the drugs is eliminated from the probable cause affidavit, there is sufficient probable cause for the issuance of the warrant. In addition to smelling the live marijuana plants, the affidavit sets forth that Detective Donnelly observed that there were three vehicles in the driveway, the blinds were closed on the windows, and the air conditioning unit on the east side of the residence was continuously running without recycling.

Arias argues that Detective Donnelly’s detection of marijuana odor was influenced by Babe’s alert and thus not independent. See Jardines, 73 So.3d at 55 (noting the trial court’s finding that although there was evidence that the officer also detected the smell of marijuana plants coming from the home, it was only after the drug detection dog had alerted and was, therefore, “only confirming what the detection dog had already revealed”); State v. Rabb, 920 So.2d 1175, 1196 n. 8 (Fla. 4th DCA 2006) (Gross, J., dissenting) (noting the majority’s concern that the dog alert preceded the officers’ detection of the odor of live marijuana). While it is true that the affidavit does not detail whether Detective Donnelly smelled live marijuana before or after Babe alerted, Detective Donnelly testified at the suppression hearing that he smelled live marijuana plants as he was walking up to Arias’ house, prior to Babe making the positive alert. Detective Valdez, who did not smell the odor of live marijuana plants at the time of the knock and talk, testified that Detective Donnelly did not tell him that he smelled marijuana until after he told Detective Donnelly that Babe had made a positive alert. However, Detective Donnelly testified that he kept it to himself so that his fellow officers had the opportunity to do their job independently from one another and because he was focused on conducting the knock and talk procedure.

The trial court found Detective Donnelly’s testimony credible and the two officers’ testimony consistent. The officers’ testimony was consistent because there is no way of knowing when Detective Donnelly smelled the live marijuana other than his testimony as to that fact, which the trial court believed. If believed, Detective Donnelly’s testimony supports the trial court’s ruling. We must defer to the trial court’s express finding of credibility because there is no indication from the record that the trial court should not have found Detective Donnelly to be credible. Ruiz v. State, 50 So.3d 1229,1233 (Fla. 4th DCA 2011).

While an appellate court defers to a trial court’s factual findings, it reviews de novo the application of the law to the facts. Id. at 1231. Detective Donnelly’s detection of the odor of live marijuana, along with noticing three cars in the driveway, the blinds of the home drawn closed, and the air conditioning unit continuously running without recycling, corroborated the anonymous crime stoppers tip that Arias’ home was being used as a grow house. Therefore, the trial court correctly applied the law to the facts of the case when it found that, absent the dog sniff, Detective Don-nelly had sufficient probable cause to procure a warrant. See State v. Roman, 103 So.3d 922, 925-26 (Fla. 2d DCA 2012) (finding that the smell of marijuana through an open door was sufficient probable cause for a warrant); Nieminski v. State, 60 So.3d 521, 523 (Fla. 2d DGA 2011) (finding that the smell of marijuana through a partially opened window coupled with an anonymous tip provided sufficient probable cause for a search warrant); State v. Pereira, 967 So.2d 312 (Fla. 3d DCA 2007) (finding independent evidence in the affidavit to support probable cause because the anonymous ■ tip was corroborated when the detective smelled marijuana while standing in front of the premises, prior to returning the next day with the drug dog). Cf Mesa v. State, 77 So.3d 218, 223 (Fla. 4th DCA 2011) (noting the lack of odor emanating from the home when ruling that the affidavit for search warrant lacked probable cause because only ambiguous factors were presented in the search warrant, such as a humming noise coming from the inside of the home, the air conditioning unit being covered, and FPL records showing abnormal patterns of electrical usage); Rabb, 920 So.2d at 1187 (noting that without the dog sniff, probable cause was lacking because there was no corroboration of the anonymous tip, such as covered windows, high pedestrian traffic, or higher than normal use of electricity).

Because the trial court expressly found that Detective Donnelly smelled live marijuana as he was approaching Arias’ door, prior to Babe making a positive alert, probable cause independent from the illegal search existed, and we must affirm the denial of Arias’ motion to suppress.

Affirmed.

      . The affidavit states that the "K-9 did alert to the odor.... "Your Affiant” also detected the smell of live marijuana....”

      . There was some discrepancy in the officers' testimony about when exactly Detective Don-nelly knocked on Arias’ front door. Detective Donnelly testified that he knocked on Arias' front door before learning of Babe’s positive alert, while Detective Valdez testified that he gave Detective Donnelly a thumbs up and the knock occurred immediately thereafter. The timing of the knock is not relevant to the issue of whether Detective Donnelly had probable cause to seek a search warrant absent Babe's sniff and alert. Detective Donnelly was permitted to approach Arias' house and conduct a knock and talk absent Babe’s alert or even his own detection of the odor of marijuana. State v. Triana, 979 So.2d 1039, 1043 (Fla. 3d DCA 2008) (holding that the knock and talk procedure is a legitimate investigative procedure that may be initiated without any level of suspicion).

      . A finding that independent and lawful probable cause existed is different from a finding that the evidence would have been inevitably discovered, i.e., absent the dog sniff, the officer would have inevitably smelled the marijuana and developed probable cause. See State v. Jardines, 9 So.3d 1, 8-9 (Fla. 3d DCA 2008), rev’d, 73 So.3d 34 (Fla.2011). There is no way to know that the officer’s later detection of marijuana is not in some way tainted by the dog's alert. However, in the instant case, the trial court found that Detective Don-nelly smelled the marijuana before the dog alerted, making the development of probable cause truly independent from Babe’s alert.


text:
    David A. MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-654.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.
    David A. Murphy, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

GROSS, GERBER and Levine, JJ., concur.


text:
    Sotero CANASTUJ-TZUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-260.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.
    Mavel Ruiz, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Chaidez v. United States, — U.S. —, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); Hernandez v. State, 124 So.3d 757 (Fla.2012).

TAYLOR, CIKLIN and GERBER, JJ., concur.


text:
    Andrew BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3663.
    District Court of Appeal of Florida, Fourth District.
    July 31, 2013.

      Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898 (Fla.1979).

MAY, GERBER and FORST, JJ., concur.