author: LOGUE, J. SUAREZ, J. ROTHENBERG, J.

text:
    Anna Hammerschmid STOCKINGER, Elsa Haider, and Gertrude Kuhtreiber, Petitioners, v. Ulrike A. ZEILBERGER, Personal Representative, Ulrike A. Zeilberger, Individually, Dr. Rudolf Zeilberger, and Buro Fur Genealogie, Assignee, Respondents.
    No. 3D14-550.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Rehearing Denied Dec. 22, 2014.

      Law Offices of Robin Bresky, and Michele K. Feinzig, Boca Raton, for petitioners.
    David Howard Goldberg, P.L., and David Howard Goldberg, for respondent Ulrike A. Zeilberger; Golden & Cowan, P.A., and Paul M. Cowan, Miami, for respondent Dr. Rudolf Zeilberger; Lawrence W. Livoti, P.A., and Lawrence W. Livoti, Fort Lauderdale, for respondent Buró Fur Genealogie.
    Before SUAREZ, ROTHENBERG, and LOGUE, JJ.
   LOGUE, J.

Anna Hammerschmid Stockinger, Elsa Haider, and Gertrude Kuhtreiber are elderly residents of Austria who have filed a petition to be recognized as partial heirs in the estate of the Rosina Hanko, which was probated in Miami-Dade County, Florida. They assert that they are half-sisters of the deceased. The personal representative of the estate has tried to depose them but to no avail. His attempts have been frustrated allegedly because of the health and age of the claimants, nuances in Austrian law, and other matters. After ruling on various motions filed by the parties concerning the depositions, the trial court filed an interim order stating (1) the claims of Stockinger and Haider cannot proceed because they are unavailable to be deposed, (2) “at the appropriate time upon the filing of appropriate motions undersigned [judge] will consider dismissal of those claims,” and (3) Kuhtreiber will appear for deposition in Miami, Florida within 45 days. Stockinger, Haider, and Kuh-treiber filed a petition for certiorari to quash this order. We dismiss the petition for lack of jurisdiction to issue the writ.

There is a serious legal impediment to granting the writ in this case: Stockinger, Haider, and Kuhtreiber have not and cannot show irreparable harm at this stage of the proceeding. The power of district courts of appeal to review a non-final order like this by certiorari is strictly circumscribed. Fla. R. App. P. 9.030(b)(2)(A). As the Florida Supreme Court recently explained in Citizens Property Insurance Corp. v. San Perdido Association, Inc., 104 So.3d 344, 351-52 (Fla.2012), “[v]ery few categories of non-final orders qualify for the use of a writ of certiorari.” Certiorari review of non-final orders is a narrow remedy to be used in extraordinary circumstances. Certiorari is not a general license for appellate courts to closely supervise the day-to-day decision making of trial courts.

To invoke this court’s power to issue a writ of certiorari, a petitioner for the writ must show that the challenged non-final order (1) departs from the essential requirements of law, (2) results in material injury for the remainder of the case, and (3) such injury is incapable of correction on postjudgment appeal. Id. at 351. These last two elements are sometimes referred to as irreparable harm. Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla.2012).

The establishment of irreparable harm is a condition precedent to invoking certiorari jurisdiction. Miami-Dade Cnty. v. Dade Cnty. Police Benevolent Association, 103 So.3d 236, 238 (Fla. 3d DCA 2012). As explained by this court:

If the party seeking review does not demonstrate that it will suffer material injury of an irreparable nature, then an appellate court may not grant certiorari relief from a non-appealable non-final order. Similarly, if the alleged harm can be remedied on appeal, the harm is not considered irreparable, and thus cer-tiorari relief is not merited.

Id. (citation omitted). Thus, at the outset, Stoekinger, Haider, and Kuhtreiber must establish that the order at issue inflicts a material injury that cannot be corrected on appeal.

The order we are asked to review admittedly sends a strong signal to Stoekinger, Haider, and Kuhtreiber: it puts them on notice that their cases might be dismissed. But the operative word is “might.” The order actually resolves with finality absolutely nothing. It forecloses nothing, terminates nothing, dismisses nothing, and sanctions no one. In fact, the second part merely states, “at the appropriate time upon the filing of appropriate motions undersigned [judge] will consider dismissal of those claims.” If the claims are ever dismissed, then, at the appropriate time upon an appropriate appeal from a final order, this court could review the matter. But at this point in time, nothing concrete has occurred.

When read in the normal context of ongoing litigation, the order merely reflects the trial judge’s threat or admonishment to the parties — which is a method available to him to try to break the discovery gridlock. We should wait and see what results. Seasoned and respected trial judges, like the trial judge in this case, can be trusted to manage this type of common discovery dispute. The trial judge has done it before, and will undoubtedly do it faster, cheaper, and fairer without our interference. It is premature for an appellate court to intervene.

In fact, Stoekinger, Haider, and Kuh-treiber do not claim irreparable harm is imminent. Instead, they posit that irreparable harm may occur if (1) Stoekinger, Haider, and Kuhtreiber are not deposed, (2) the trial court follows through on its threat to dismiss their cases, (3) after their claims are dismissed, a Connecticut Court considering a related probate immediately distributes certain assets that it controls without waiting for any appeals of the Miami-Dade dismissals to be resolved, (4) in the meantime, Stoekinger, Haider, and Kuhtreiber file an appeal of the dismissal, prevail on the appeal, and ultimately win in the underlying probate matter, and (5) the assets distributed by the Connecticut court cannot be recovered. Note that each of the steps is contingent on the preceding step. If even one event does not occur, the proffered harm does not happen. Of course, these steps might occur. But the critical point is that these steps might not occur. We simply do not know.

At this point in time, Petitioners’ contention that they might be irreparably harmed is based on conjecture. Such speculation and surmise are too attenuated to establish irreparable harm and, as a result, this court is without jurisdiction to issue the writ.

Dismissed.

SUAREZ, J.

(specially concurring).

I write only to explain my reason for concurring in this case. To state that the facts underlying the case and, in particular, the order on appeal, are unusual, is an understatement. We are faced right now with an order from the trial court in which the trial court has stated that it MAY dismiss the case brought by Petitioners should they not appear for deposition. Do we think that the trial court will go through with the “sanction” it has stated in the order should the relatives not appear, in a word, yes. But, as all lawyers and judges know, the trial coprt may find another way to get a case moving along other than to follow through on what it has stated might occur. Additionally, in order not to be dismissed from this case and face appeal, the Petitioners may arrive at an amicable way to resolve the deposition issue.

In other words, although the trial court MAY dismiss the Petitioners, it has not done so nor did it state that it WOULD do so, only that it MAY do so. As such, no irreparable harm has occurred at this point. Petitions for Certiorari are sparingly granted on discovery issues. There must be irreparable harm and, as none has been suffered at this point, we would be second guessing the trial court and improperly entering into the discovery fray were we to grant this petition. It is not within our authority to attempt to prophesize the outcome. Ours is to wait, and rule only if there is irreparable harm or if a final appeal is eventually brought.

SUAREZ, J., concurs.

ROTHENBERG, J.

(dissenting).

Anna Hammerschmid Stockinger (“Stockinger”), Elsa Haider (“Haider”), and Gertrude Kuhtreiber (“Kuhtreiber”) (collectively, “the Petitioners”) seek certio-rari review of the trial court’s order (“Order”) finding that Stockinger’s and Haider’s claims cannot proceed because they are medically incapable of traveling from Austria to Miami for depositions and that Kuhtreiber, who the trial court found was medically able to travel, must appear in Miami for depositions within forty-five days if she wishes to proceed on her claim. Because the Order departs from the essential requirements of law and because I disagree with the majority that irreparable harm has not yet occurred, I respectfully dissent from the majority opinion dismissing the petition.

The underlying probate action followed the death of Rosina Hanko (“the Decedent”), who died in Miami, Florida, leaving approximately $925,000 in three bank accounts — $850,000 in a USB Investment account located in Connecticut, $19,000 in a Bank of America account, and $56,000 in an Apple Bank account. In addition to the underlying Miami-Dade probate action, two other probate actions followed in Austria and Connecticut.

The action in Miami-Dade County was initiated by the Decedent’s niece, Ulrike A. Zeilberger (“Ulrike” or “Personal Representative”), in July 2011. In the Amended Petition for Administration, Ulrike alleged that the Decedent died intestate while domiciled in Miami and that the known “beneficiaries” are herself and the Decedent’s nephew, Rudolf Zeilberger (“Rudolf’). In December 2011, the probate court issued letters of administration appointing Ulrike as personal representative and directing that all funds be placed into the court depository. In March 2012, the Petitioners, who all reside in Austria, filed a Petition for Determination of Heirs, asserting that they are the Decedent’s half-sisters, and therefore, pursuant to section 732.103, Florida Statutes (2011), they are each entitled to 25% of the Decedent’s intestate estate, while Ulrike and Rudolf are each entitled to only 12.5% of the Decedent’s estate.

Although Ulrike and Rudolf filed a probate action claiming the Decedent died intestate, they produced a holographic will in a later-filed action in Austria, and the Austrian court declared that the Decedent’s holographic will naming Ulrike and Rudolf as sole equal beneficiaries was valid under Austrian law. The Austrian court, however, rejected jurisdiction over “movable assets located abroad,” including the three bank accounts at issue in this case.

Rudolf then filed an ancillary probate action in Stamford, Connecticut, where the UBS Investment account is located. Rudolf did not serve the Petitioners with notice of this action, and he did not notify the Connecticut court that the Petitioners have claimed an interest in the Decedent’s estate as heirs in the Miami-Dade action. The Connecticut court entered a decree granting ancillary probate of the holographic will, finding that the Austrian court admitted the holographic will to probate. However, the Connecticut decree provides: “No withdrawals of principal or interest shall be made from any restricted account without written approval from the Stamford Probate Court.”

Thereafter, in August 2012, Rudolf filed a motion to dismiss the Miami-Dade probate action for improper venue or, in the alternative, to convert it to an ancillary administration, which informed the Miami-Dade probate court of the Austrian court’s decree and stated that the Connecticut court’s decree had become final on July 31, 2012. The motion asserted that venue is improper in Miami-Dade County because the Decedent was not domiciled in Miami-Dade County and the majority of her assets are not located in Miami-Dade County, and that venue is proper in Connecticut because the majority of her assets, including the USB account, are located in Connecticut. This motion is currently pending before the Miami-Dade probate court.

The parties began conducting discovery in preparation for the Miami-Dade probate action, and the Personal Representative noticed the Petitioners for depositions in Miami. In response, the Petitioners filed a verified motion for protective order (“First MPO”) based on the burdensome expense of traveling from Austria to Miami and on the Petitioners’ ages — Kuhtreiber was 62 years old, Stockinger was 75 years old, and Haider was 80 years old. The motion also asserted that, although the Petitioners have never met the Decedent and have never had any contact with the Decedent, in 1957, Haider read a letter that her. father had received from the Decedent informing him that she had married and was residing in the United States. The Petitioners further asserted that they have no other relevant information to provide except for their “document-driven” proof of their familial relationship to the Decedent, and therefore, there are less burdensome available alternatives to taking their depositions in Miami (e.g., interrogatories, demands for production, depositions by video link).

At the hearing on the First MPO, when determining whether a protective order was warranted, when the trial court noted that there were no allegations that any of the Petitioners were ill, Ulrike’s counsel responded that if the Petition&s’ physicians opined that they were unable to travel to Miami for their depositions, he would “go to plan B.” The trial court denied the First MPO and ordered the Petitioners to appear in Miami-Dade County within 90 days for depositions.

Thereafter, the Petitioners served a second verified motion for protective order (“Second MPO”) stating that they cannot safely travel to Miami due to “bona-fide medical reasons.” In support, the Petitioners submitted letters from their physicians stating, under penalty of perjury, that the Petitioners cannot travel by air for various medical reasons — Haider has primary cardiac disease; Kuhtreiber suffers from post-traumatic stress syndrome and claustrophobia; and Stockinger has undergone several ear surgeries and suffers from hearing loss. The Second MPO also restated the Petitioners’ arguments regarding the expense of travel, the superfluous nature of the depositions given the “document-driven” nature of the dispute, and the availability of less burdensome means of obtaining the necessary information. In response, Ulrike served a motion to compel the Petitioners’ attendance for deposition and for sanctions.

Following a hearing, the trial court entered an order granting, in part, the Second MPO. The trial court specifically found that Stockinger and Haider are medically prohibited from traveling by air, but that Kuhtreiber failed to support her claim that she cannot travel by air. The trial court also found that telephonic/video depositions are not practical because using a translator would be overly burdensome, questioning the Petitioners about documents is logistically impossible, and Stockinger’s severe hearing loss would preclude electronic communications between herself and the attorney deposing her. Based on these findings, the trial court granted the Second MPO as to Stockinger and Haider, ruling that they would be responsible for paying the Personal Representative’s counsel’s travel expenses to Austria, which include coach airfare, accommodations at a three-star hotel, meals, and incidentals. The trial court denied the Second MPO as to Kuhtreiber, but gave her the option of either sharing in the Personal Representative’s travel expenses and being deposed in Austria or traveling to Miami for her deposition. The trial court ordered that the depositions be completed within 60 days.

On November 6, 2013, counsel for the Personal Representative, Mr. Goldberg, requested that the Petitioners “Please hold Thursday, December 5th and Friday, December 6th for depositions.” The Petitioners offered to assist in locating a court reporter and a translator, agreed to meet Mr. Goldberg in Vienna to reduce his travel time, and confirmed their availability and desire to proceed. However, instead of booking his flight, and despite the clarity of the trial court’s order, Mr. Goldberg demanded travel expenses for three individuals — himself, a court reporter, and a notary — and he also demanded that the estimated costs for their travel, $5,266.06, be paid in advance.

Understandably upset by Mr. Goldberg’s deviations from the trial court’s order, the Petitioners refused, absent a court order, to pay the travel expenses for the court reporter and to submit advance payment for these additional expenses. The Petitioners, however, notified Mr. Goldberg that the funds for his travel expenses had already been placed in their Florida counsel’s trust account in accordance with the trial court’s order.

In response, on December 2, 2013, Mr. Goldberg served an Emergency Motion for an Order to Show Cause and for Extension of Time within which to take the depositions of the Petitioners and seeking prepayment of the travel expenses for himself, a court reporter and a notary. Buro Fur Genealogie filed a response to this motion, asserting that the trial court’s order indicated that the travel expenses would only be for the Personal Representative’s counsel and that the order did not require prepayment of these expenses.

Rather than simply ruling on Mr. Goldberg’s motion and resolving the issue of how many individual’s expenses were to be borne by the Petitioners and how payment was to be made, the trial court extended the time to take the depositions, reopened the litigation on whether the depositions should be taken in Austria, and ordered the parties to submit memoranda regarding the requirements for taking depositions in Austria. Thus, what should have been a simple issue to resolve morphed into a complicated analysis of Austrian law.

Ulrike contended that the Austrian Ministry of Foreign Affairs must first grant permission to take discovery, and if permission is granted, the depositions would be conducted by a local judge who may allow the American attorney’s presence; but if the American attorney is allowed to attend, he may not pose any questions. In contrast, the Petitioners claimed that the Austrian Ministry of Justice usually approves such requests and that many American attorneys have conducted depositions in Austria pursuant to United States procedural law. Neither party, however, addressed whether the above requirements even apply when all parties consent to the taking of depositions.

After conducting a hearing, and apparently abandoning the scope of the expenses it had previously ordered, the trial court entered its Order finding that, based on the parties’ memoranda, “it is abundantly clear that the process to be followed is complex, time consuming and expensive with their being no guarantee that required governmental approval from Austria would be forthcoming,” and even if the Austrian government granted permission, the “deposition would be taken in all likelihood by an Austrian Judge, not attorney Goldberg, and in all probability outside the presence of Attorney Goldberg.” Thus, the trial court found that this procedure was “unacceptable” and ordered that Stockinger’s and Haider’s claims “may not proceed due to their unavailability to appear for the taking of their depositions,” and that “upon the filing of appropriate Motions,” the trial court “will consider dismissal of those claims.” As to Kuhtreiber, the trial court ruled that she is capable of traveling to Miami, and “should she wish to proceed herein she shall appear for the taking of same within 45 days.” This petition for writ of certiorari followed.

In seeking certiorari relief, the Petitioners must demonstrate that the trial court’s Order “depart[s] from the essential requirements of law, resulting in irreparable harm that cannot be adequately remedied on final appeal.” Millennium Diagnostic Imaging Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 129 So.3d 1086, 1089 (Fla. 3d DCA 2013); see also Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (“It is well settled that to obtain a writ of certiorari, there must exist ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002))); Miccosukee Tribe of Indians v. Lehtinen, 114 So.3d 329, 331 (Fla. 3d DCA 2013) (“A common law writ of certiorari is proper and will be granted when a trial court’s determination constitutes a clear departure from the essential requirements of the law resulting in material injury for the remainder of the case that cannot be properly remedied on post-judgment appeal.”). “Material injury and irreparable harm are ‘jurisdictional prerequisites to certiorari relief.’ ” Millennium Diagnostic Imaging Ctr., 129 So.3d at 1089 (quoting Nucci v. Nucci, 987 So.2d 135, 139 (Fla. 2d DCA 2008)); see also Poston v. Wiggins, 112 So.3d 783, 785 (Fla. 1st DCA 2013) (holding that in ruling on a petition for writ of certiorari, the reviewing court “must first conduct a jurisdictional analysis to determine whether the petitioner had made a prima facie showing of irreparable harm”); Jackson v. Computer Sci. Raytheon, 36 So.3d 754, 756 (Fla. 1st DCA 2010) (“Certiorari jurisdiction does not arise unless the court first establishes irreparable harm.”).

The trial court’s Order constitutes a departure from the essential requirements of law. The trial court’s Order precludes Haider and Stoekinger from proceeding on their claims unless they appear for depositions in Miami despite a finding by the trial court that they are medically incapable of traveling to Miami. As to Kuhtreiber, the trial court determined that Kuh-treiber is capable of traveling from Austria to Miami despite Kuhtreiber’s physician’s unrebutted orders that “air travel, particularly on long-haul flights, is strongly discouraged!” due to Kuhtreiber’s post-traumatic stress syndrome and claustrophobia. Nonetheless, the trial court ruled that “should [Kuhtreiber] wish to proceed herein she shall appear for the taking of same within 45 days.” Therefore, if this Court does not quash the Order, Kuhtreiber will be faced with a very difficult decision: risk traveling to Miami against the advice of her physician or have her claim dismissed; and Haider and Stoekinger will effectively be shut out of the litigation regardless of whether the trial court actually dismisses their claims.

Although a trial court has discretion to impose sanctions for discovery violations, see Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004) (“It is well settled that determining sanctions for discovery violations is committed to the discretion of the trial court, and will not be disturbed upon appeal absent an abuse of the sound exercise of that discretion.”), the Petitioners have yet to commit any discovery violations. They merely sought a protective order. Further, the purpose of imposing a sanction for discovery violations is “to ensure compliance with the trial court’s order rather than to punish.” Deutsche Bank Nat’l Trust Co. v. LGC, 107 So.3d 486, 488 (Fla. 2d DCA 2013). The trial court is undoubtedly aware that threatening Stock-inger and Haider with dismissal of their claims cannot encourage them to travel to Miami for the depositions because they are medically prohibited from doing so. Further, giving Kuhtreiber the ultimatum of either traveling to Miami or facing dismissal of her claim will not reasonably “ensure compliance” with any of the trial court’s orders, but rather, will merely “punish” her by forcing her to choose between risking her health to travel to Miami for the deposition and having her claim dismissed. Such punitive sanctions are unduly harsh and improper.

Dismissing a party’s claim “is the most severe sanction a court may impose,” and it “should be reserved for the most egregious conduct and used only in the most extreme circumstances,” Littlefield v. Torrence, 778 So.2d 368, 369 (Fla. 2d DCA 2001), such as when the violation is “ “willful, flagrant, contumacious, or contemptuous.’” Id. (quoting Momenah v. Ammache, 616 So.2d 121, 123 (Fla. 2d DCA 1993)); see also Toll v. Korge, 127 So.3d 883, 887 (Fla. 3d DCA 2013) (providing that as dismissal of a claim for violation of a discovery order is “the most severe of all sanctions,” it “should be employed only in extreme circumstances” (quoting Ham, 891 So.2d at 495)).

Although the majority finds that irreparable harm has not yet occurred because the parties’ claims have not been dismissed, precluding a party from participating in the proceedings as a sanction for failing to appear for a deposition in Miami when the party is medically incapable of doing so is no less a sanction than an outright dismissal of the party’s claim. The Petitioners’ conduct in this case does not warrant the imposition of such a dire sanction, as they have not engaged in any egregious conduct. This is especially true where, as here, the Petitioners are more than willing to be deposed in Austria, they have agreed to pay the Respondents’ counsel’s costs to travel to Austria to depose them, there are several available alternative options to depose the Petitioners without requiring them to travel to Miami, and the Petitioners have very little information to provide other than the documents they have already provided to the Respondents.

To the contrary, Ulrike’s actions are responsible for causing further delay and substantial legal fees in this action. Simply put, if Ulrike’s counsel had traveled to Austria as initially ordered by the trial court, the depositions would most likely have taken place without incident as it appears that the Petitioners were more than willing to cooperate.

Additionally, the trial court apparently changed its earlier ruling ordering that the depositions must be taken in Austria after it concluded that the deposition process in Austria would likely be “complex, time consuming and expensive.” Thus, rather than attempting to maneuver through this “complex, time consuming and expensive” process, the trial court chose a route that effectively dismissed potentially valid claims despite the Petitioners’ compliance with all discovery orders and their willingness to be deposed in Austria. And, although it may have been burdensome to conduct telephonic/video depositions due to Stockinger’s hearing impairment and the parties’ need to use the services of an interpreter, the necessary accommodations could have been made, especially where the trial court has already concluded that Stockinger and Haider are medically prohibited from traveling to Miami to be deposed and where such travel is “strongly discouraged” for Kuhtreiber.

Lastly, and importantly, it is unrefuted that the Petitioners’ claims are “document driven.” The Petitioners have already admitted that they have never met the Decedent and did not maintain a relationship with the Decedent. Because the Petitioners are seeking an interest in the Decedent’s intestate estate as the Decedent’s heirs, their relationship (or lack of relationship) with the Decedent is irrelevant, and their claims can be established based solely on authenticated, written documents. In fact, the Petitioners attached to their petition for determination of heirs numerous birth records and a family chart indicating that the Petitioners and the Decedent are half-sisters. Thus, in reality, the Petitioners’ depositions likely will not result in much relevant information, if any, as their claims are purely document driven, and they have already admitted that they have never met the Decedent and did not maintain a relationship with the Decedent. Based on these reasons, the trial court’s Order departs from the essential requirements of law and will cause irreparable harm.

More importantly, since the majority opinion appears to concede that the trial court departed from the essential requirement of law, the petition should not be dismissed as premature as the majority concludes. Although the trial court has not yet carried out its threat to dismiss the Petitioners’ claims, the trial court has precluded the Petitioners from proceeding with their claims, which will lead to the same result — the Respondents will proceed with no objection or input by the Petitioners. And without the impediment of the Petitioners, the Respondents will most likely become the sole beneficiaries of their deceased aunt’s estate. In other words, certiorari relief is not premature because the trial court’s Order ends Haider’s and Stockinger’s participation in the lawsuit regardless of whether or not the trial court ultimately dismisses their claims at some later date.

Although certiorari is not a general license for appellate courts to closely supervise the day-to-day decision making of the trial courts, closing the courtroom doors to parties in a lawsuit who, even by the trial court’s own admission, have not willingly disobeyed any court order is not only a clear departure from the law, it is a violation of the most basic constitutional principles of due process and access to our courts.

The trial court’s Order will cause irreparable harm that cannot be adequately remedied on plenary appeal because the trial court’s Order precludes the Petitioners’ from proceeding with their claims. The Order will prevent the Petitioners from participating in the pending discovery or in the action itself. Therefore, the Petitioners will be barred from attempting to establish that they are the Decedent’s heirs and are thus entitled to a significant portion of the Decedent’s estate under section 732.103 of the Florida Statutes. Additionally, because the Petitioners have been effectively barred from proceeding in the Miami-Dade probate action, and because the Connecticut probate court has accepted administration of the holographic will, the Decedent’s estate may be distributed to Ulrike and Rudolf while the Petitioners are barred from asserting their rights to the estate here in Miami-Dade County under section 732.103. This would leave the Petitioners with no recourse. Thus, the Order will cause irreparable harm that cannot be remedied on plenary appeal.

As the Petitioners have established that the trial court’s Order departs from the essential requirements of law and that the Order will result in material injury that cannot be remedied on plenary appeal, I would grant the petition for writ of certio-rari and quash the order under review.

      . The Petitioners assert that they share the same father, but have different mothers.

      . Section 732.103 provides, in relevant part, as follows:
      Share of other heirs.- — The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
      (1) To the descendants of the decedent.
      (2) If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.
      (3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.
      It appears that the Decedent was not married and never had children.

      .As translated, the holographic will provides that the Decedent bequeathed her entire estate to her "sister,” Anni Zeilberger, and after Anni’s death, to Anni's children, Ulrike and Rudolf. Based on the record before this Court, it appears that Anni is the Decedent's half-sister, as they share the same mother, but not the same father.

      . Buro Fur Genealogie is an heir-finding company. The Petitioners have apparently assigned a portion of their claimed interest in the Decedent's estate to Buro Fur Genealogie.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Noe BOO, a.k.a. Noel Diaz, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1344.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Noe Boo a.k.a. Noel Diaz, in proper person.
    Pamela Jo Bondi, Attorney General, and Jacob Addicott, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and LAGOA, and SCALES, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Noe Boo, a.k.a. Noel Diaz (“Boo”), appeals the trial court’s order summarily denying his Motion for Correction of Jail Sentence/Credit pursuant to Florida Rule of Criminal Procedure 3.801. The trial court subsequently denied Appellant’s motion for rehearing as well as his request for an evidentiary hearing. On June 5, 2014, Appellant filed a notice of appeal challenging both the trial court’s final order and its denial of his motion for rehearing. Based on the State’s confession of error, we reverse and remand for further proceedings.

In his 3.801 motion, Appellant alleged that he should have been credited with 566 days served, not 367 days, as calculated by the Department of Corrections (“DOC”), and later adopted through the trial court’s order. As the State concedes, the trial court failed to attach any documents to its order that conclusively refuted Appellant’s allegations. In fact, the attached DOC calculations tend to support Appellant’s allegations in that they contain patently erroneous mathematical conclusions.

Pursuant to Florida Rule of Criminal Procedure 3.801(e), which incorporates Florida Rule of Criminal Procedure 3.850(f), the trial court was required to attach records that conclusively refuted Appellant’s motion seeking additional jail credit. See Fla. R. Crim. P. 3.850(f)(5) (“If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.”). See also Fla. R. App. P. 9.141(b)(2)(D).

As such, we reverse and remand for the trial court to: (i) attach documents refuting Appellant’s claim; (ii) award Appellant proper credit for time served; or (iii) set the matter for an evidentiary hearing.

Reversed and remanded for further proceedings.


text:
    Jorge F. PEGUERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2440.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Jorge F. Peguero, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

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 postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. 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 further proceedings. 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:
    Daniel J. SCHMIDT, Appellant, v. Charles VAN, Sr., and Rilla Van, Husband and Wife, Appellees.
    No. 1D13-5912.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2014.
    Rehearing Denied Dec. 22, 2014.
    Richard A. Sherman, Sr. and James W. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Sonya Wesner of Law Offices of Patricia E. Garagozlo, Jacksonville, for Appellant.
    Edwin B. Browning, Jr. and George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison, and T. Bradley McRae of McRae & McRae, Lake City, for Appellees.
   PER CURIAM.

The instant case is before this court on the second appeal of an order granting a new trial following a defense verdict in a personal injury action. As we did in the first appeal, we reverse the amended order under review because the trial court’s determination that the jury verdict is against the manifest weight of the evidence is premised, at least in part, on the same error of law committed in its original order granting a new trial — specifically, that the jury could not reject uncontroverted expert testimony relative to causation in favor of lay testimony and evidence. Schmidt v. Van, 65 So.3d 1105, 1108 (Fla. 1st DCA 2011), quashed on other grounds, Van v. Schmidt, 122 So.3d 243 (Fla.2013). Because we are unable to determine whether the trial court would have granted a new trial but for the error of law, we once again remand the case to the trial court for reconsideration in light of the correct legal principles. Van v. Schmidt, 122 So.3d 243, 261 (Fla.2013). We do so despite Appellant’s urging that we direct the trial court to simply reinstate the jury verdict, because we are “not at liberty to reweigh the evidence presented in the case to decide whether the jury reached a result supported by the evidence.” Id. at 259.

Accordingly, we REVERSE and REMAND for further proceedings.

WETHERELL, RAY, and SWANSON, JJ., concur.


author: SWANSON, J.

text:
    CLAY COUNTY LAND TRUST # 08-04-25-0078-014-27, ORANGE PARK TRUST SERVICES, LLC as Trustee Only, Appellant, v. JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Appellee.
    No. 1D14-1125.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2014.

      Alisa D. Wilkes, Jacksonville, for Appellant.
    Allyson L. Sartoian of Phelan Hallinan, ■PLC, Ft. Lauderdale, for Appellee.
   SWANSON, J.

In this mortgage foreclosure action, appellant claims the trial court erred in entering summary final judgment for appel-lee because (1) there was no evidence that appellee gave the borrower (Patrick Buckley) a written notice of default and an opportunity to cure the default before instituting the foreclosure action as required by the terms of the mortgage; (2) appellee failed to establish that it held the note and' mortgage prior to the filing of the foreclosure complaint; and (3) appellee’s supporting affidavit as to the amount owed on the note contained inadmissible hearsay. For the reasons that follow, we affirm the judgment of foreclosure except as to the amount due under the note and remand for further proceedings to determine that amount.

As to its first claim, appellant concedes it was not a party to the mortgage and was not entitled to a written notice of default or an opportunity to cure the default under the terms of the mortgage. Because appellant was not a party to the mortgage, appellee correctly asserts that appellant does not have standing to challenge any violation of these mortgage terms. The borrower, Buckley, was the only party who could plead nonperformance of these conditions precedent as required by Florida Rule of Civil Procedure 1.120(c). His failure to do so, and his subsequent default, resulted in the waiver of the conditions. See Rivera v. Hammer Head Constr. & Dev. Corp., 14 So.3d 1190 (Fla. 5th DCA 2009) (holding that the failure to plead nonperformance of a condition precedent specifically and with particularity under rule 1.120 results in the waiver of the condition).

As to appellant’s second claim, ap-pellee’s possession of the note secured by the mortgage is sufficient by itself to establish standing to foreclose, even without a formal assignment of the mortgage. Wells Fargo Bank, N.A. v. Morcom, 125 So.3d 320, 321-22 (Fla. 5th DCA 2013); Everhome Mortg. Co. v. Janssen, 100 So.3d 1239, 1240 (Fla. 2d DCA 2012); Chem. Residential Mortg. v. Rector, 742 So.2d 300 (Fla. 1st DCA 1998). However, appellee must prove that it was a holder of the note in due course at the time of the filing of the foreclosure complaint. Kiefert v. Nationstar Mortg., LLC, 2014 WL 5099374, 39 Fla. L. Weekly D2151 (Fla. 1st DCA Oct. 13, 2014); Boyd v. Wells Fargo Bank, N.A., 143 So.3d 1128 (Fla. 4th DCA 2014); Hunter v. Aurora Loan Servs., LLC, 137 So.3d 570, 573 (Fla. 1st DCA 2014); Focht v. Wells Fargo Bank, N.A., 124 So.3d 308, 310 (Fla. 2d DCA 2013). When appellee filed the foreclosure complaint, it attached a copy of the note and an undated allonge to the note containing an endorsement in blank. This was sufficient to establish as a matter of law that appellee had standing to bring the foreclosure action. See Morcom, 125 So.3d at 322; U.S. Bank Nat’l Ass’n v. Knight, 90 So.3d 824 (Fla. 4th DCA 2012); Deutsche Bank Nat’l Trust Co. v. Lippi, 78 So.3d 81, 85 (Fla. 5th DCA 2012).

As to its final claim, appellant asserts the trial court erred in entering summary judgment based on the affidavit of Theresa Klingelhofer, appellee’s vice-president who relied in part on business records from the prior owner of the note, EMC Mortgage Corporation, to determine the amount owed on the note. We agree with appellee that this affidavit contained inadmissible hearsay in the absence of any showing that Klingelhofer was familiar with the business practices of EMC Mortgage Corporation or the accuracy of its records. See Burdeshaw v. Bank of N.Y. Mellon, 148 So.3d 819 (Fla. 1st DCA 2014) (holding that computer printouts showing the fees, expenses, and balance due on the note and mortgage were not admissible under the business records exception to the hearsay rule where the printout was not authenticated by a records custodian or a person with specific knowledge of the debt or the transaction of the information between the original lender and subsequent servicers); Hunter, 137 So.3d at 573 (holding that a loan services employee, through whom computer-generated documents of the original mortgage holder were offered, lacked personal knowledge of the record-keeping procedures required for admission of the documents in the foreclosure action under the business records exception to the hearsay rule).

Although appellant unsuccessfully objected to the affidavit on hearsay grounds at the summary judgment hearing, appellee asserts this claim is not preserved for appeal because appellant never moved to strike the affidavit prior to the hearing. However, we have uncovered no authority requiring appellant to move to strike the affidavit in order to preserve its hearsay objection for appeal. We also reject appellee’s assertion that appellant lacked standing to raise this claim. As the current owner of the property, appellant had standing to challenge Klingelhofer’s affidavit as to the amount of the debt owed because it related to appellant’s right of redemption, i.e., how much appellant would have to pay under the judgment in order to exercise its right to stop the foreclosure sale. Beauchamp v. Bank of N.Y., Trust Co., N.A., 150 So.3d 827 (Fla. 4th DCA 2014). Accordingly, we affirm the judgment of foreclosure except as to the amount due under the note and remand for further proceedings to determine that amount. Id.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

PADOVANO and WETHERELL, JJ„ concur.


author: LAMBERT, J.

text:
    MARKEL AMERICAN INSURANCE COMPANY, Petitioner, v. Tina BAKER, Mark Flugga, and Robert Flugga, Respondents.
    No. 5D14-295.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.

      Dara L. Schottenfeld and John R. Cati-zone, of Litchfield Cavo, LLC, Fort Laud-erdale, for Petitioner.
    Brandon G. Cathey, Brent G. Steinberg, Michael M. Giel, of Swope, Rodante P.A., and Jason Mulholland, of Jason Mulhol-land P.A., Tampa for Respondent.
   LAMBERT, J.

Petitioner, Markel American Insurance Company (“Markel”), seeks certiorari review of an amended discovery order denying its motion for protective order to prevent the depositions of its lead counsel and company representative. The trial court concluded that Markel, by filing suit to reform a contract between the parties, waived protected attorney-client communications and work-product privileges, and that Markel’s counsel also waived these privileges by voluntarily disclosing privileged information at a hearing addressing the interpretation of the contract. Concluding that the trial court departed from the essential requirements of law in finding a waiver of the attorney-client and work-product doctrine privileges, we grant the writ in part.

Respondent, Tina Baker, was injured in a motorcycle accident due to the alleged negligence of Mark Flugga. Markel insured Mark and Robert Flugga .(“the Fluggas”), the owners of the motorcycle. Prior to suit being filed, Markel tendered its $10,000 policy limit to Baker to settle her claim, but her attorney rejected the tender, claiming Markel acted in bad faith by not timely resolving the claim. Baker thereafter filed suit in Lake County against the Fluggas. In the months leading up to trial, a dispute arose as to whether Markel had breached any duties of good faith owed to its insureds (the Fluggas) in its handling of Baker’s bodily injury liability claim. As a result, Markel filed a declaratory judgment action in federal court seeking a declaration that it (1) had not committed bad faith and (2) did not breach its duty of good faith owed to the Fluggas. Before the state court trial went forward, Markel and the parties to this litigation entered into a Cunningham agreement by which the parties agreed to try the “bad faith” case first in federal court and stay the state court case. See generally Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179 (Fla.1994).

Based on the Cunningham agreement, Markel agreed that if there was a judicial determination that it breached one or more of its duties of good faith owed to its insureds in the handling of Baker’s claim, then it would pay Baker $400,000 and. pay Baker’s and the Fluggas’ attorneys’ fees and costs. Conversely, if the determination was that Markel did not breach one or more of its duties of good faith, then the $10,000 tendered to Baker would be accepted as full and final payment, and Baker would dismiss her negligence action with prejudice and sign a release of all her claims in favor of the Fluggas and Markel. The state court stayed its case based on this agreement.

During the pendency of the federal court case, a dispute arose as to the scope of the agreement. Baker and the Fluggas asserted that the parties did not agree to litigate a “full blown” bad-faith case, but rather, that they only agreed to litigate whether Markel breached a single duty of good faith. They asserted that if they could show a breach of a single duty, then they would be the “prevailing” parties in the federal court action. In contrast, Markel argued that the agreement was not that narrow and that the parties agreed to litigate a traditional bad-faith case with bad faith being determined under the totality of the circumstances standard set forth under Florida law.

The federal court did not resolve the meaning of the Cunningham agreement. Instead, the federal court directed Markel, Baker, and the Fluggas to seek a determination in state court regarding their respective rights and obligations, or the scope and meaning of their Cunningham agreement, or to otherwise amicably resolve the case.

• Markel then filed a two-count “Complaint” in state court for declaratory judgment and for reformation of the Cunningham agreement. In count one, Markel sought a judicial declaration that the scope and interpretation of the Cunningham agreement was whether Markel acted in bad faith under a totality of the circumstances analysis. Alternatively, in count two, Markel sought to reform the defective written agreement to accurately reflect the intent of the parties. Following a hearing, on October 16, 2013, the state court issued its ruling on count one, rejecting Markel’s argument and finding that the plain language of the Cunningham agreement was that the parties intended to seek a determination of whether Markel breached one or more duties of good faith to its insureds in the handling of Baker’s claim against the Fluggas.

As a result, Markel pursued its claim for reformation of the agreement. Thereafter, Baker propounded discovery on Mark-el. Baker sought, in part, “All COMMUNICATIONS between YOU and YOUR attorneys relating to the STIPULATION [Cunningham agreement] or any proposed or draft agreements that preceded the STIPULATION,” as well as a notice of deposition of the Markel representative with the most knowledge, seeking, “[I]den-tification and explanation of all communications between or among YOU and LITCHFIELD CAVO related to the STIPULATION.” Baker also served a notice of deposition of John R. Catizone (Markel’s lead counsel in the case), commanding that he produce at deposition “All COMMUNICATIONS between YOU and MAIC [Markel] relating to the STIPULATION or any proposed or draft agreements that preceded the STIPULATION.”

Prior to the scheduled deposition of Markel’s corporate representative, Markel filed a motion for protective order, asserting that all of the testimony being sought from Markel’s corporate representative was privileged, attorney-client communications. Markel also filed a motion for protective order concerning the deposition of its lead counsel for the same reason. On December 10, 2013, the court held a hearing on Markel’s motions and ruled that Markel had waived its attorney-client privilege as to all documents and testimony by virtue of the reformation action, and by its lead counsel disclosing matters at the October 16, 2013 hearing concerning his intent and interpretation of the agreement. At a later hearing, the trial court ruled that the work-product privilege had also been waived, and entered an amended order on Markel’s motions for protective order, which provides in pertinent part:

First, MAIC [Markel] placed privileged information at issue in this lawsuit which will necessarily require proof by way of ordinarily privileged information. Second, even if MAIC had not placed privileged information at issue, MAIC voluntarily disclosed privileged information, including during the hearing before this Court on October 16, 2013, as demonstrated in the transcript at pages 4 through 28.

Markel asserts in the instant petition that the communications of which Baker seeks discovery are confidential communications between the client and its counsel that are protected by the attorney-client privilege. Markel claims that it did not waive the attorney-client privilege either directly or indirectly and that the portions of the hearing transcript that the court relied upon to find a waiver make absolutely no mention of communications between Markel and its counsel. Lastly, Markel states that the discovery of the attorney-client communications are not necessary to the litigation of the reformation action.

“[0]nce privileged information is disclosed, there is no remedy for the destruction of the privilege available on direct appeal.” Estate of Stephens ex rel. Clark v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)). Therefore, the compelled discovery of privileged information causes material injury of an irreparable nature and is reviewable by certiorari. See Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995) (citing Martin-Johnson, 509 So.2d at 1100).

The attorney-client privilege is inviolate as to matters within its scope, and waiver of the attorney-client privilege is not favored in Florida. TIG Ins. Corp. of Am. v. Johnson, 799 So.2d 339, 341 (Fla. 4th DCA 2001) (citing Liberty Mut. Ins. Co. v. Lease Am., Inc., 735 So.2d 560, 562 (Fla. 4th DCA 1999)). However, it may be waived by the party holding the privilege. Section 90.507, Florida Statutes, addresses waiver of a privileged communication as follows:

A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person’s predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication. This section is not applicable when the disclosure is itself a privileged communication.

§ 90.507, Fla. Stat. (2013).

The main issue in this proceeding is whether the reformation action by its very nature constitutes a waiver of the attorney-client privilege. A court of equity may reform a written instrument to the extent that the parties’ intentions are not accurately expressed within the instrument due to either a mutual mistake or a unilateral mistake coupled with inequitable conduct by the other party. See Providence Square Ass’n, Inc. v. Biancardi, 507 So.2d 1366, 1369 (Fla.1987); Smith v. Royal Auto. Group, Inc., 675 So.2d 144, 150 (Fla. 5th DCA 1996). “[I]n reforming a written instrument, an equity court in no way alters the agreement of the parties. Instead, the reformation only corrects the defective written instrument so that it accurately reflects the true terms of the agreement actually reached.” Providence, 507 So.2d at 1370.

Since Markel’s intent is relevant to the issue of whether there was a mutual or unilateral mistake, it will be incumbent for Markel to present evidence of Markel’s intent with regard to the Cunningham agreement. Id. at 1371 (stating that in a reformation action, “parol evidence is admissible for the purpose of demonstrating that the true intent of the parties was something other than that expressed in the written instrument”); Smith, 675 So.2d at 154 (stating that the plaintiff has the “burden of proving the intent of parties and, by clear and comincing evidence, demonstrating some ground for reformation such as mutual mistake or unilateral mistake coupled with inequitable conduct”). Markel’s counsel, at the December 10, 2013 hearing (on the motions for protective order), admitted' that the attorneys involved in the Cunningham agreement needed to provide testimony with respect to intent. Additionally, Markel acknowledged that its witnesses may testify as to their intent with regard to the Cunningham agreement, but contended that it is not necessary in litigating the reformation action to present evidence of privileged communications to establish its intent or for Baker to mount a defense.

In the context of this case, we find that the filing of a reformation action, which again involves a question of intent, does not automatically result in a waiver of attorney-client privilege. Cf. Jenney v. Airdata Wiman, Inc., 846 So.2d 664, 668 (Fla. 2d DCA 2003) (holding that raising the issue of the parties’ intent is not sufficient to waive attorney-client privilege); Long v. Murphy, 663 So.2d 1370, 1372 (Fla. 5th DCA 1995) (holding that a party “must do something more than sue on the alleged misrepresentations made to him ... before it can properly be held that [he] waived his privilege for communications with his attorneys during the negotiations” for an agreement). Moreover, the possibility that a party’s statements concerning his intent in forming a contract could be impeached by confidential communications between that party and his attorney does not give the opposing party a right to have those confidential communications disclosed. See Cuillo v. Cuillo, 621 So.2d 460, 462 (Fla. 4th DCA 1993) (citing Fla. Mining & Materials Corp. v. Cont’l Cas. Co., 556 So.2d 518 (Fla. 2d DCA 1990)).

Here, Baker is able to mount a defense without using the privileged communications because Markel has to prove either a mutual mistake among the parties to the agreement, or a unilateral mistake coupled with inequitable conduct by the other parties to the agreement, before the contract may be reformed. Though Baker is not privy to Markel’s attorney-client communications, she can defend by presenting her own witnesses showing the absence of a mutual mistake. If Markel claims it committed a unilateral mistake and there was inequitable conduct by Baker, she can likewise defend that claim without Markel’s attorney-client communications. In other words, Baker has not shown that she will be disadvantaged without the confidential information.

The second issue we address is whether Markel’s counsel waived the attorney-client or work-product privilege. At the declaratory judgment hearing before the state court on October 16, 2013, which was referenced in the amended order finding waiver, counsel for Markel stated the following:

The parties agreed to litigate whether or not Markel breached one or more duties of good faith in the handling of Baker’s claim. Now, of course, you know, our position is we’ve always understood that term whether Markel breached one or more duties of good faith to mean exactly the same thing as whether Markel committed bad faith....
Your Honor, responding to both, I’m going to respond to Mr. Mulholland first, saying the Perrien case was in the forefront. I asked an associate to research to what extent the terms and provisions of a Cunningham agreement were negotiable. And that associate was like a third year found a case called Perrien. She told me she found this case called Perrien that was dealing— because I wanted to get a discovery limitation. And the associate said, I found this case, Perrien, that says parties can agree to negotiate a discovery limitation. And the court refused to, in the Perrien discovery we’re talking about, the court refuses to grant the insurer a limitation of discovery because the court said, you could have agreed to a limitation of discovery in the agreement. That’s all I ever knew about the Perrien case at that time. So, to suggest I knew anything different is ridiculous. The other thing is, going to Mr. Cathey’s argument, our office filed a declaratory judgment action in anticipation of the tort action going forward and there being an excess verdict because it was a 10/20 policy. So we filed a declaratory judgment action asking the federal court to determine whether or not we committed, had committed bad faith. We wanted to get to federal court as quickly as we could. Mr. Cathey sent me an e-mail saying, the federal court doesn’t have jurisdiction to hear that case unless there’s either, A, an excess judgment, or B, a Cunningham agreement. We concluded he was correct. And so we negotiated the Cunningham agreement that was sent by Mr. Mulhol-land. It was Mr. Cathey’s — with Mr. Cathey’s language, and we amended our declaratory judgment action. And when we amended our declaratory judgment action, yes, we said, we’re here to litigate whether Markel breached one or more duties of' good faith because that was the language of the agreement. But to suggest that we had somehow changed our mind about what we were doing — all we’re doing is citing the language in the agreement, because before we didn’t have an agreement, second, you know, then we did have an agreement. So, you know, they’re pointing to things — also Mr. Cathey again misspoke about the hearing where the magistrate ruled and said we prevailed on that. We only asked for a limitation to the handling of Baker’s claim. Again, we did— did we say one or more duties breached? Of course, because to us that’s the same as whether we committed bad faith. But the magistrate, the ultimate ruling by the magistrate was that they were entitled to depose a corporate representative with the most knowledge regarding the handling of motorcycle claims in Florida. That was the court’s ruling. So the court gave us not all the limitation we wanted, gave us part of it. Had nothing to do with the interpretation of the agreement in that respect.

The trial court found that the above statements were voluntary disclosures of privileged information constituting a waiver of attorney-client privilege. We disagree. The statements did not refer to any communications between Markel’s counsel and its corporate representatives. The attorney was discussing his interpretation and understanding of the Cunningham, agreement and the legal research performed by an associate to ascertain whether discovery limitations could be incorporated into Cunningham agreements. In Florida, waiver of the attorney-client privilege is not favored, and we find that the record does not show a clear, intentional waiver of the privilege by Markel’s counsel.

We also find that there has not been a waiver of the work-product privilege regarding the opinion work product of Markel’s attorneys. The work-product privilege generally protects documents and papers of an attorney or a party that are prepared in anticipation of litigation. See Fla. R. Civ. P. 1.280(b)(8); S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1383-84 (Fla.1994). “Opinion work product consists primarily of the attorney’s mental impressions, conclusions, opinions, and theories” concerning the client’s case and is basically absolutely privileged. Id. (citing State v. Rabin, 495 So.2d 257 (Fla. 3d DCA 1986)). At the October 16, 2013 hearing, Markel’s counsel did not divulge any mental impressions, conclusions, or legal theories that were contained in trial preparation documents concerning the issue of intent. Markel’s counsel was referring to legal research conducted during the negotiation process prior to the Cunningham agreement, which involved the issue of whether a discovery limitation could be stipulated to as part of the agreement. This is a collateral matter that is neither directly related to the interpretation and scope of the bad-faith action, nor to the issue of mistake, both of which are the subjects of the reformation action.

In summary, the depositions of Market's corporate representative and its counsel are permissible because the parties’ intent as well as the discussions between the attorneys for the respective parties that led to the agreement are relevant in determining whether the contract needs to be reformed. We find, however, that there has been no waiver of either the attorney-client or work-product privilege. Thus, Baker is precluded from inquiring into these privileged communications.

WRIT GRANTED in part; ORDER QUASHED.

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

      . In Cunningham, the Florida Supreme Court recognized that "[u]nder ordinary circumstances, a third party must obtain a judgment against the insured in excess of the policy limits before prosecuting a bad-faith claim against the insured’s liability carrier.” 630 So.2d at 181. However, the court concluded that when parties stipulate that a bad-faith claim can be tried prior to the underlying tort claim, the trial court has jurisdiction to decide the insurer’s liability in the bad-faith claim before a final determination has been made in the underlying tort action. Id. at 182. The court determined that the stipulation was the functional equivalent of an excess judgment and saw no reason why it should not "be enforced if entered into with good faith and not obtained by fraud, misrepresentation, or mistake, and not against public policy.” Id.

      . Litchfield Cavo LLP is the law firm representing Markel.

      . See generally § 90.502, Fla. Stat. (2013) (governing "[Ijawyer-client privilege”).


author: COHEN, J.

text:
    Mark W. SHORES, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4335.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Mark Shores appeals the denial of his motion to set aside his plea. Finding that the trial court did not abuse its discretion, we affirm.

Shores was charged with several drug-related offenses, including trafficking in twenty-eight grams or more of Oxycodone. After a series of last minute negotiations, Shores pleaded guilty to a lesser-included offense, and he agreed to meet with law enforcement officials to potentially offer substantial assistance.

At sentencing, Shores orally requested to withdraw his plea. In essence, Shores wanted to withdraw his plea because he had not read the discovery in his case at the time of the plea. The trial court denied the motion, finding that Shores had the discovery at the time he entered the plea, chose not to read it, and entered the plea freely and voluntarily. The trial court also noted that the motion was not in writing. On appeal, Shores argues that the trial court erred in denying the motion on the ground that it was not in writing.

Florida Rule of Criminal Procedure 3.170 provides that a trial court may, in its discretion, allow a defendant to withdraw a plea:

The court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn and, if judgment of conviction has been entered thereon, set aside the judgment and allow a plea of not guilty, or, with the consent of the prosecuting attorney, allow a plea of guilty or no contest of a lesser included offense, or of a lesser degree of the offense charged, to be substituted for the plea of guilty or no contest. The fact that a defendant may have entered a plea of guilty or no contest and later withdrawn the plea may not be used against the defendant in a trial of that cause.

Fla. R. Crim. P. 3.170(f). Shores is correct that the rule does not require that the motion to withdraw be in writing. See McInturff v. State, 111 So.3d 296 (Fla. 5th DCA 2013). Although the trial judge noted that the motion was not in writing, that finding does not appear to have been the reason for denial. Had it been, the trial court would have summarily denied the motion rather, than conduct a hearing. Instead, the denial was based on a finding that a defendant’s failure to read discovery until after the entry of a plea does not constitute good cause under Rule 3.170(f). We agree.

AFFIRMED.

WALLIS and LAMBERT, JJ., concur.

      . Additionally, considering that Shores rendered a full confession, he did not demonstrate how any information gleaned from the discovery would have aided him in his defense.


text:
    Daryl Alan RAE, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4593.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    James S. Purdy, Public Defender, and Steven N. Gosney, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison L. Morris, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Daryl Alan Rae appeals his judgment and sentences on two counts of lewd or lascivious molestation on a person under age twelve. We affirm the judgment and sentences except for the $500 public defender lien which was imposed by the trial court without providing notice to Rae of his right to contest the lien, as required by Florida Rule of Criminal Procedure 3.720(d)(1). See Strong v. State, 140 So.3d 680 (Fla. 5th DCA 2014) (holding that a public defender lien must be orally pronounced at sentencing and the trial court must advise the defendant of his right to contest same). Accordingly, we reverse the public defender lien without prejudice to the trial court re-imposing the lien after complying with the rule.

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER, COHEN and LAMBERT, JJ., concur.


text:
    Tyree Jabari SPRATT, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1245.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Tyree Jabari Spratt appeals his judgment and sentences, asserting that his convictions for aggravated assault with a firearm and aggravated battery with a firearm violate his rights against double jeopardy, in light of his conviction for attempted burglary of a dwelling with an assault or battery and with a firearm, which arose out of the same criminal episode. The State properly concedes error. Accordingly, we reverse and remand for the trial court to vacate Spratt’s convictions for aggravated battery and aggravated assault.

REVERSED and REMANDED.

PALMER, LAWSON and EVANDER, JJ. concur.


text:
    Michael MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1628.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the denial of Appellant’s motion for postconviction relief, except as it relates to the severance claim raised in paragraph eight of the motion, which was not addressed by the trial court. We remand for the trial court to either attach portions of the record that refute those allegations, or set an evidentiary hearing.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

SAWAYA, COHEN and WALLIS, JJ., concur.


text:
    Avery PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-3476.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    Avery Patterson, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Avery Patterson appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse.

The trial court granted an earlier rule 3.800(a) motion that Patterson filed and ordered a resentencing hearing for July 1, 2014. The court then cancelled the resen-tencing hearing. Based on the limited record before us, it does not appear that the resentencing had occurred when Patterson filed the rule 3.800(a) motion that is the subject of this appeal. Thus, the instant rule 3.800(a) motion was premature, and it was error for the trial court to deny the motion on its merits.

Therefore, we reverse the trial court’s order denying the amended motion filed July 29, 2014, and remand with instructions to dismiss the motion without prejudice. Once Patterson is resentenced, he can file an appropriate and timely rule 3.800(a) motion to correct illegal sentence, if such a motion is warranted.

REVERSED AND REMANDED.

PALMER, ORFINGER and COHEN, JJ., concur.


text:
    Gerard L. BROOKINS, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 1D14-4172.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2014.
    Gerard L. Brookins, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2004).

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Christopher SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5008.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2014.
    Christopher Scott, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Darryl L. KIRKSEY, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5098.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2014.
    Darryl L. Kirksey, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Jerry Neal PRATER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-5209.
    District Court of Appeal of Florida, First District.
    Nov. 25, 2014.

      Jerry Neal Prater, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, ROWE, and' MAKAR, JJ., concur.


text:
    Reginald SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-3360.
    District Court of Appeal of Florida, Fifth District.
    Nov. 25, 2014.
    Reginald Scott, Bristol, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See § 812.13(2)(a), Fla. Stat. (2007) (providing that robbery with firearm is first-degree felony “punishable by imprisonment for a term of years not exceeding life imprisonment”).

PALMER, ORFINGER and BERGER, JJ., concur.


author: LaROSE, Judge.

text:
    Eduardo PEREZ-RIVA, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-412.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2014.

      Pavlina Petrova, Fort Myers, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Eduardo Perez-Riva appeals an order summarily denying his rule 3.850 motion for postconviction relief. Mr. Perez-Riva is serving a 76.4-month prison sentence after a jury convicted him of various drug-related offenses. We affirmed his judgments and sentences on direct appeal. Perez-Riva v. State, 98 So.3d 577 (Fla. 2d DCA 2012) (table decision).

The postconviction court erred in denying Mr. Perez-Riva’s ineffective assistance of counsel claims as to counsel’s failure to challenge the validity of a search warrant and to move to suppress evidence. We also find error in the postconviction court’s denial of Mr. Perez-Riva’s claim that trial counsel was ineffective for not objecting, on double jeopardy grounds,- to the convictions for manufacturing and trafficking in cannabis. We reverse and remand to the postconviction court for further proceedings as to those three claims. We affirm as to all remaining claims.

Background

Confidential informant # 10-053, whose reliability is not disclosed in our record, informed police that he saw marijuana plants growing in Mr. Perez-Riva’s garage. The informant also told police that he approached six or seven people at Mr. Perez-Riva’s house and saw marijuana bits on their clothing. Based on this information, Detective Van Houten, Detective Ar-mate, and Deputy Monamy went to Mr. Perez-Riva’s house and approached the front door with a drug-sniffing dog. When no one answered their knocks, they walked around the outside of the house with the dog. The dog purportedly alerted to drugs at the garage door, at the garbage can area, and at the rear of a van parked in the driveway. The officers also noticed nails through the garage door from the outside in, an allegedly common method of reinforcing doors to cultivate marijuana.

Mr. Perez-Riva and another male then arrived at the house in a Camry. The detectives ordered them out of the car and removed the keys from the ignition. The deputy asked for permission to search the house; Mr. Perez-Riva refused. The deputy brought the drug-sniffing dog to the Camry, where the dog alerted. Police searched the Camry, finding a book about growing marijuana, electrical switches, and a marijuana bud. They did not search the van.

A detective tried Mr. Perez-Riva’s keys in the front door and unlocked it. Without going inside, the detective relocked the door. He later prepared a search warrant affidavit, and a magistrate issued a warrant. The officers found marijuana plants inside the house, which Mr. Perez-Riva admitted was his residence.

Invalid Warrant and Motion to Suppress

Mr. Perez-Riva argues that his trial counsel was ineffective for failing to move to suppress evidence. He also argues that his counsel was ineffective for failing to challenge the validity of the search warrant. These two issues are intertwined because an invalid warrant would support suppression of the evidence found during the search of the house.

Mr. Perez-Riva contends that the trial court would have granted a motion to suppress because the officers lacked probable cause to search around his residence with a drug-sniffing dog. He also argues that the officers illegally detained him after the dog alerted at his Camry.

In Jardines v. State, the Supreme Court of Florida held that a “sniff test” at the front porch of a home constituted a search requiring probable cause to proceed. 73 So.3d 34, 49, 54 (Fla.2011) (quashing decision in State v. Jardines, 9 So.3d 1 (Fla. 3d DCA 2008), and approving the result in State v. Rabb, 920 So.2d 1175 (Fla. 4th DCA 2006)), affirmed, — U.S. -, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013). The court held that the trial court properly excluded the results of the “sniff test” to support a finding of probable cause for a search warrant. Id. at 55. According to the supreme court, the trial court then correctly considered, “absent the dog sniff information, whether any independent and lawfully obtained evidence establish[ed] a substantial basis for concluding that probable cause existed” to issue the warrant. Id. at 54. The supreme court held that the trial court properly granted the motion to suppress after finding that the remaining evidence — an unverified tip, closed window blinds, and a “constantly running air conditioner” — was insufficient to support probable cause. Id. at 55.

The U.S. Supreme Court affirmed, explaining that the curtilage of the home— the area “immediately surrounding and associated with the home” — is “part of the home itself for Fourth Amendment purposes.” 133 S.Ct. at 1414. A police officer without a warrant may, as a private citizen might, “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.... But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else.” Id. at 1415-16. “That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.” Id. at 1417.

To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to— well, call the police.

Id. at 1416.

In Rabb, the Fourth District held that a dog sniff at the outside of a residence based only on an anonymous tip violated the Fourth Amendment; evidence resulting from the illegal search could not be used to establish probable cause for a warrant. 920 So.2d at 1187-88. The Fourth District then analyzed whether the probable-cause affidavit, without the dog-sniff evidence, contained sufficient “independent and lawfully obtained evidence that established probable cause.” Id. at 1188. That other evidence was an anonymous tip, cannabis, cultivation books, and a cultivation video found during a valid traffic stop. See id. Not enough.

The tip was unverified because it came from an unknown individual rather than a qualified confidential informant. Nor was it corroborated in the probable cause affidavit by any evidence resulting from surveillance of the house. There was no indicium of the cultivation of marijuana within, such as covered windows, high pedestrian traffic, or higher than normal use of electricity.

Id. at 1187.

Here, the tip was not anonymous; it came from Cl # 10-053. However, the affidavit tells us nothing about the Cl’s reliability. See Fellows v. State, 612 So.2d 686, 687 (Fla. 2d DCA 1998) (“[A]n affidavit must set forth facts from which the magistrate could find the. affiant had personal knowledge of the confidential informant’s reliability or facts which corroborate the reliability of the confidential information from an independent source.”); Smith v. State, 637 So.2d 351, 352 (Fla. 1st DCA 1994) (same). The relevant part of the affidavit states only, “I was informed by Confidential Informant (Cl) # 10-053 of the following facts.” The Cl’s tip alone was insufficient to provide probable cause for the warrant. The reinforced garage door was not independent evidence because the deputy noticed the nails only during the illegal use of the drug-sniffing dog.

Deficient Performance

Trial counsel’s failure to challenge the warrant and move to suppress appear to constitute deficient performance. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Fourth District’s Rabb opinion issued in 2006. The Third District’s opinion in Jardines, certifying conflict with Rabb, issued in 2008. The supreme court granted review in 2009. Jardines v. State, 3 So.3d 1246 (Fla.2009) (table decision). Its decision in Jardines issued April 14, 2011, just seven days after Mr. Perez-Riva’s April 7, 2011, judgment and sentence. Jardines, 73 So.3d at 34. Mr. Perez-Riva’s counsel should have been aware of the dog-sniff issue at the time of the February 2011 trial. Our record discloses no obvious reason for counsel’s inaction.

Prejudice

Strickland’s prejudice prong appears satisfied because there is a reasonable probability of a different result had Mr. Perez-Riva’s counsel proceeded differently. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”). A supreme court decision “announcing a new rule of law ... must be given retrospective application by the courts of this state in every case pending on direct review or not yet final.” Smith v. State, 598 So.2d 1063, 1066 (Fla.1992). Mr. Perez-Riva’s case was not final until our appellate mandate issued on October 23, 2012. Thus, his case was not yet final when our supreme court announced the new rule of law on April 14, 2011.

“To benefit from the change in law, the defendant must have timely objected at trial if an objection was required to preserve the issue for appellate review.” Id. Had trial counsel raised these issues with the trial court and brought to its attention Rabb, Jardines, and the supreme court’s acceptance of conflict jurisdiction, the trial court might have suppressed the evidence, following Rabb’s rationale. Alternatively, the trial court could have followed Jardines and denied the motion to suppress. In that case, trial counsel could have filed a motion for a new trial based on Jardines because it issued within the ten-day period for a new trial motion. See Fla. R. Crim. P. 3.590(a), 3.600(a)(2) (“The verdict is contrary to law....”); 3.600(b)(6) (“The court erred in the decision of any matter of law arising during the course of the trial.”). In either case, the probability of a different result is sufficient to undermine confidence in the outcome.

Accordingly, the postconviction court erred in summarily denying the motion on these two claims. On remand, the post-conviction court should attach portions of the record refuting the claims or hold an evidentiary hearing.

Double Jeopardy

Mr. Perez-Riva also argues that the postconviction court erred in denying his sixth claim, alleging that his trial counsel was ineffective for failing to object on double jeopardy grounds to his convictions and sentences for both cultivating (manufacturing) cannabis and trafficking of the same cannabis. See §§ 893.13(l)(a)(2), .135(l)(a), Fla. Stat. (2010). The postcon-viction court concluded that cultivation and trafficking each required an element that the other did not: cultivation required manufacturing, which trafficking did not require, and trafficking required possession of twenty-five pounds or more of cannabis, which cultivation did not require.

On appeal, the State concedes error. We agree. See, e.g., Odom v. State, 104 So.3d 1238 (Fla. 5th DCA 2012) (holding dual convictions of attempted manufacture of methamphetamine and trafficking violated double jeopardy); Fonseca v. State, 114 So.3d 1010 (Fla. 5th DCA 2012) (holding convictions for both manufacturing and trafficking same drugs violated double jeopardy); Stacey v. State, 83 So.3d 749 (Fla. 5th DCA 2011) (holding convictions for manufacture of methamphetamine and possession of methamphetamine violated double jeopardy) (manufacture includes possession, possession has no separate element)).

Section 893.13, the basis for Mr. Perez-Riva’s cultivation/manufacture charge, provides, in pertinent part, as follows:

(l)(a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to ... (2)[A] controlled substance named or described in s. 893.03(l)(c) [cannabis] ... commits a felony of the third degree....

Section 893.135, the basis for the trafficking charge, provides, in pertinent part, as follows:

(1) Except as authorized in this chapter or in chapter 499 and notwithstanding the provisions of s. 893.13:
(a) Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of 25 pounds of cannabis, ... commits a felony of the first degree, which felony shall be known as “trafficking in cannabis”....

(Emphasis added.)

Because the trafficking statute is an alternative conduct statute, a double jeopardy analysis “breaks the conduct ele-merits into the specific alternative conduct which is in the other statute being compared.” Gibbs v. State, 698 So.2d 1206, 1209 (Fla.1997). “[T]he court must focus on the particular component of the statute that is in issue” and the court need not consider in double jeopardy analysis any “alternative conduct” that also could prove trafficking. Johnson v. State, 712 So.2d 380, 381 (Fla.1998). The conduct element of the trafficking statute is not compared by considering the entire range of conduct that could constitute trafficking to the entire range of conduct that could constitute manufacture, but rather by comparing only trafficking manufacture with simple manufacture. Cf. Gibbs, 698 So.2d at 1209 (holding double jeopardy analysis of trafficking and possession both based on possession should have compared only trafficking possession and simple possession). Mr. Perez-Riva could not be convicted on both counts when the underlying conduct element, i.e., manufacture, was the same for both offenses. The quantity requirement of trafficking is not a separate element that allows dual prosecution. Gibbs, 698 So.2d at 1209. Therefore, we reverse the postconviction court’s ruling on this issue and remand for further proceedings as to Mr. Perez-Riva’s ineffective assistance of counsel claim.

Conclusion

We reverse and remand to the trial court for further proceedings as to claims one, two, and six. We affirm without further comment the denial of Mr. Perez-Riva’s remaining claims.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and VILLANO!; JJ., Concur.

      . The trial court could have followed either Rabb or Jardines because this court had not decided the issue. See Miller v. State, 980 So.2d 1092, 1094 (Fla. 2d DCA 2008) (holding that a single district court’s opinion is binding on all state trial courts and that ”[i]f there is unresolved conflict between the district courts, the trial court is bound by the precedent in its own appellate district”) (citing Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992)).

      . The State does not argue that the cultivation count is based on a separate quantity of cannabis from the cannabis in the trafficking count; even if it did, courts have rejected such an argument. See McGlorthon v. State, 908 So.2d 554, 556 (Fla. 2d DCA 2005) (holding that conviction of two counts of possession could not be based on separate quantities found in the same search); Fleurimond v. State, 10 So.3d 1140, 1149 (Fla. 3d DCA 2009) (‘‘[D]ual convictions for possession of the same type of drugs, found at the same time, even though found in different locations, ... constitutes a double jeopardy violation.”); Sims v. State, 793 So.2d 1153, 1154 (Fla. 4th DCA 2001) (holding that convictions for possession with intent to sell and simple possession could not be based on cannabis being found in different parts of the house in the same search); accord Gonzalez v. State, 123 So.3d 691, 692 (Fla. 4th DCA 2013).


text:
    Luis MILLAN-COLON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1823.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2014.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed. See Gregory v. State, 937 So.2d 180, 183 (Fla. 4th DCA 2006) (“[T]he defendant waived this issue, because he did not request the instruction and assented to the court’s decision to list trespass and battery separately on the verdict form. We have held that this is not fundamental error.”); see also Daniel v. State, 137 So.3d 1181, 1185 (Fla. 3d DCA 2014) (holding that failure to instruct on trespass as a lesser-included offense three steps removed from armed burglary of a dwelling was harmless because the jury did not exercise its pardon power by finding defendant guilty of any of the lesser-included offenses one and two steps removed).

DAVIS, C.J., and LaROSE and MORRIS, JJ., Concur.


author: KHOUZAM, Judge.

text:
    MEDCO DATA, LLC, Appellant, v. Diana BAILEY, Joanne Kenyon, and Laura Peach, Appellees.
    No. 2D14-2825.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2014.
    William J. Cook of Barker & Cook, P.A., Tampa; for Appellant.

      John D. Mullen of Phelps Dunbar LLP, Tampa; and Miguel Bouzas of Bouzas Owens, P.A., Holiday, for Appellees.
   KHOUZAM, Judge.

Medco Data, LLC, appeals an order denying its motion for temporary injunction against three of its former employees. Because the trial court failed to apply the statutory presumption of irreparable injury under section 542.335(l)(j), Florida Statutes (2013), we reverse and remand for reconsideration in light of the presumption.

Medco Data sued three of its former employees and sought to enforce a covenant not to compete. As part of the suit, Medco Data filed a motion for temporary injunction pursuant to Florida Rule of Civil Procedure 1.610. At the close of the evidentiary hearing on the motion, the trial court pronounced its findings without allowing the parties to make arguments.

Among the findings were that the employment agreements between Medco Data and the former employees were both “well written” and “valid.” Further, the trial court found that the defendants “did something to breach the relationship and it cost [Medco Data] money.” But ultimately, the trial court denied the motion based on its conclusion that “Medco Data has to prove a likelihood of irreparable harm. I don’t find that the company can show that in this case.”

After the trial court pronounced its find ings, Medco Data requested the opportunity to submit a legal memorandum specifically for the purpose of addressing the court’s conclusion as to irreparable injury and perfecting the appellate record. The court denied the request and thereafter entered a written order denying the motion for temporary injunction. Medco Data timely appealed, arguing that the trial court reversibly erred by failing to apply a presumption of irreparable injury. We agree.

Section 542.335 governs the enforcement of restrictive covenants. Generally, to receive a temporary injunction based on the statute, “a party must plead and establish four elements: ‘(1) the likelihood of irreparable [injury], (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that a temporary injunction will serve the public interest.’ ” DePuy Orthopaedics, Inc. v. Waxman, 95 So.3d 928, 938 (Fla. 1st DCA 2012) (alteration in original) (quoting Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1261 (Fla. 5th DCA 2009)).

Subsection (l)(j) specifically addresses temporary injunctions and provides in relevant part that “[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” The burden is rebut-table but must be applied to enforceable restrictive covenants that have been violated. See Variable Annuity Life Ins. Co. v. Hausinger, 927 So.2d 243, 245 (Fla. 2d DCA 2006) (“In this ease, the trial court recognized that the statute operates to create a presumption of irreparable injury to the employer and that the burden shifted to [the defendant] to establish the absence of such injury.”); Am. II Elecs., Inc. v. Smith, 830 So.2d 906, 908 (Fla. 2d DCA 2002) (concluding that the movant’s “evidence was sufficient to create a rebuttable presumption of irreparable injury for purposes of obtaining an injunction” under the statute).

“The standard of review regarding the grant or denial of a motion for temporary injunction is abuse of discretion.” H & M Hearing Assocs., LLC v. Nobile, 950 So.2d 501, 503 (Fla. 2d DCA 2007). However, no court of this state has the discretion “ ‘to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.’ ” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (emphasis omitted) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)). Consequently, “[t]he determination of the correct legal standard to apply is a question of law that we review de novo.” Paul v. Wells Fargo Bank, N.A., 68 So.3d 979, 986 (Fla. 2d DCA 2011) (quoting Henderson v. Henderson, 905 So.2d 901, 903 (Fla. 2d DCA 2005)).

Here, although the trial court found the facts that would trigger the presumption of irreparable harm under section 542.335(l)(j), nothing in the record suggests that the court applied it. Despite finding that the restrictive covenants were enforceable and had been violated, the trial court denied the motion because it erroneously concluded that Medco Data could not prove the element of irreparable harm. But because Medco Data was entitled to a presumption of irreparable injury based on the findings the court had already made, the court was required to apply the presumption pursuant to subsection (l)(j), shifting the burden to the defendants to establish its absence. See Smith, 830 So.2d at 908.

Because the trial court made findings that would trigger the presumption of irreparable injury under section 542.335(l)(j) but failed to apply the presumption, we reverse the order on appeal and remand for reconsideration in light of the presumption. If on remand the trial court determines that the presumption has been rebutted, then it shall indicate its reasons on the record.

Reversed and remanded.

ALTENBERND and VILLANTI, JJ„ Concur.

      . Although the presumption is rebuttable, nothing in the record suggests that the court was aware that it exists. Indeed, the court's findings suggest otherwise: the presumption is not mentioned in the transcript or the written order, and the court's findings directly conflict with it. Ordinarily, a party’s failure to raise a specific argument below will result in an affirmance on preservation grounds. See Sunset Harbour Condo. Ass'n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (" ‘In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.’" (quoting Tillman v. State, 471 So.2d 32, 35 (Fla.1985))). But where, as here, the party was denied the opportunity to raise the issue despite its explicit request to do so, an affirmance on preservation grounds would raise serious due process concerns.