author: WALLIS, J.

text:
    Paula HARTONG Individually, and as Personal Representative for the Estate of Amanda Wilkinson, Appellant, v. William BERNHART, M.D., Roy Liptrap, P.A., and Citrus Emergency Services, P.A., Appellees.
    No. 5D12-2815.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Rehearing and Rehearing En Banc Denied Jan. 6, 2014.

      Jeffrey “Jack” Gordon of Maney & Gordon, P.A., and Celene H. Humphries and Sarah C. Pellenbarg of Brannock & Hum-phries, Tampa, for Appellant.
    Thomas E. Dukes, III, and Philip F. Moring of McEwan, Martinez & Dukes, P.A., Orlando, for Appellees.
   WALLIS, J.

Paula Hartong (“Appellant”), proceeding in an individual capacity and as a personal representative of her twenty-one-year-old daughter, Amanda Wilkinson’s (“Wilkinson”) estate, appeals, inter alia, the lower court’s denial of her motion to amend her complaint to include comparative negligence. Because the lower court reversibly erred when it denied her motion to amend, requiring a new trial, we do not address the other issues on appeal except the lower court’s improper admission of two Department of Children and Families (“DCF”) shelter reports into evidence during trial. We reverse and remand for a new trial.

Appellant filed a complaint alleging negligence and wrongful death against William Bernhart, M.D., Roy Liptrap, P.A., and Citrus Emergency Services, P.A., (collectively “Appellees”) after Wilkinson died from MRSA lobular necrotizing pneumonia. Appellant pleaded only that Appel-lees were negligent, not that Wilkinson was comparatively negligent in causing her own death. Appellees asserted comparative negligence as an affirmative defense.

Appellees filed a motion requesting that the lower court take judicial notice of two DCF shelter orders in which a circuit court found probable cause to remove Wilkinson’s children from her care. Both shelter orders included the circuit court’s findings regarding Wilkinson’s abuse of alcohol and drugs, her failure to submit to court-mandated drug testing, and a history of domestic violence with the father of Wilkinson’s children.

In their opening statement, Appellees indicated that the presence of alcohol and hydrocodone in Wilkinson’s system had a negative effect on her respiratory system which, combined with pneumonia, impaired her ability to breathe and resulted in her death. During trial, one of Appellees’ expert witnesses testified that Wilkinson died of pneumonia complicated by aspiration and by drug — hydrocodone—and alcohol intoxication.

After the close of the Appellees’ case, Appellees requested the court take judicial notice of the DCF shelter orders, and Appellant again objected on the basis that the documents contained inadmissible hearsay and character evidence. The lower court took judicial notice and allowed the shelter orders into evidence under sections 90.202(6) and 90.203, Florida Statutes. Appellees rested and subsequently withdrew the affirmative defense of comparative negligence.

Appellant then moved, pursuant to Florida Rules of Civil Procedure 1.190(b) and (e), to amend the complaint to conform to the evidence presented at trial so that she could obtain a jury instruction on comparative negligence. The lower court denied the request because the court was unclear on the form of the intended amendment and because the issue of comparative negligence had been tried by consent of the parties.

In dosing arguments, Appellees argued that the combination of alcohol, hydroco-done, lidocaine, and pneumonia caused Wilkinson’s death:

So you take pneumonia that is like a lightening [sic] strike and you add it to alcohol and hydrocodone, which depressed the respiratory effort, and you add to it lidocaine that was in her system ... you take these things and you superimpose them, and you get the anatomy of a rapid and virulent and deadly lung-destroying pneumonia, which presents quickly, superimposed on these other things. That’s how you take a healthy 21-year-old, get the diagnosis right, and have her dead within 24 hours.

The jury returned a verdict in favor of Appellees by answering “No” to the following questions on the verdict form:

1. Was there negligence on the part of Defendant, Roy Liptrap, P.A., which was a legal cause of death to Amanda Wilkinson?
2. Was there negligence on the part of Defendant, William Bernhart, M.D., which was a legal cause of death to Amanda Wilkinson?

Motion to Amend Pleadings

Appellant argues that the lower court erred by denying her oral motion to amend the complaint to conform the pleadings to the evidence presented at trial and include comparative negligence when Ap-pellees withdrew the affirmative defense after the evidence was presented. Appellant argues that by presenting evidence relevant to Wilkinson’s drug and alcohol use to attack causation, but without permitting the jury to consider Wilkinson’s comparative negligence, Appellees created a “take it or leave it” situation similar to contributory negligence, which is contrary to Florida law and public policy. We agree.

A trial court’s denial of a motion to amend the pleadings to conform with the evidence is reviewed for abuse of discretion. Turna v. Advanced Med-Servs., Inc., 842 So.2d 1075, 1076 (Fla. 2d DCA 2003) (“When evidence is introduced at trial concerning facts or issues not included in the pleadings, the trial court, in its discretion, may allow amendments to conform to the evidence.”); see also Crown v. Chase Home Fin., 41 So.3d 978, 979-80 (Fla. 5th DCA 2010) (noting that “all doubts should be resolved in favor of allowing the amendment and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile”).

“An issue is tried by consent when there is no objection to the introduction of evidence on that issue.” Dep’t of Rev. v. Vanjaria Enters., Inc., 675 So.2d 252, 254 (Fla. 5th DCA 1996). (citation omitted). ‘When issues not raised by the pleadings are tried by either express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Fla. R. Civ. P. 1.190(b). The Florida Supreme Court has noted that “if affirmative defenses are not proffered but are tried by express or implied consent of the parties, they shall be treated as if they had been raised by the pleadings.” Garrett v. Oak Hall Club, 118 So.2d 633, 635 (Fla.1960). Pursuant to this same rule, the amendments may be made upon motion of any party at any time, even after judgment. Id.

Based on Bryant v. Fiadini, 405 So.2d 1341, 1343 (Fla. 3d DCA 1981), and Philip Morris USA, Inc. v. Amitz, 933 So.2d 693, 698 (Fla. 2d DCA 2006), Appellant’s only option to obtain a jury instruction under existing Florida law was to amend the pleadings. If defendants waive comparative negligence at a charge conference, the plaintiff is not entitled to the corresponding jury instruction. Bryant, 405 So.2d at 1343. In Bryant, the defendant in a negligence case withdrew the affirmative defense of comparative negligence at the charge conference, and the lower court ruled that the jury would not be instructed on comparative negligence. Id. The third district agreed with the lower court, finding the refusal to instruct the jury on comparative negligence proper, because a “defendant has a right to waive any defense.” Id. (citations omitted). There is no indication that the plaintiff in Bryant pleaded comparative negligence.

However, plaintiffs can plead their own comparative fault and are entitled to an instruction even if the defendants do not raise it as an affirmative defense. Amitz, 933 So.2d at 698. In Amitz, the second district distinguished its case from Bi-yant because the plaintiff in Amitz pleaded comparative negligence in his amended complaint. The Amitz court, in allowing the amendment, emphasized, “that if a plaintiff chooses to plead his own comparative fault, a defendant should not be able to control the plaintiffs theory of his case and preclude the plaintiff from accepting some responsibility for his injuries.” Id. We find the result reached in Amitz to be informative in the instant case because Appellant attempted to amend her pleadings to add comparative negligence.

Here, both parties developed the issue of comparative fault throughout discovery and the trial. Because Appellees’ medical expert cited alcohol and drug use in his opinion on causation, which Appellees argued in closing, we are not convinced by Appellees that the drug and alcohol use was relevant only to the issue of damages. There would have been no prejudice to Appellees in allowing the amendment, instruction, and verdict form regarding comparative negligence because Appellees focused on the same issue as a defense to the issue of medical causation in opening, during trial, and in closing.

Appellees nonetheless argue that the verdict cured any error because the jury found Appellees acted within a reasonable standard of care (i.e., were not negligent) and, therefore, the need to apportion damages was obviated, making any alleged error harmless. We disagree because the doctrine of comparative negligence permits the jury to apportion fault between multiple parties that are the legal cause of damages and accordingly apportion damages. Hoffman v. Jones, 280 So.2d 431, 439 (Fla.1973) (noting the purposes behind the adoption of comparative fault as: “(1) To allow a jury to apportion fault as it sees fit between negligent parties whose negligence was part of the legal and proximate cause of any loss or injury; and (2) To apportion the total damages resulting from the loss or injury according to the proportionate fault of each party”). Here, the verdict form did not separate the concepts of negligent conduct and legal cause as Appellees assert. Indeed, if the jury found Appellees both negligent and the legal cause while also finding Wilkinson’s negligence to be a legal cause, the question — “Was there negligence on the part of Defendant, Roy Liptrap, P.A., which was a legal cause of death to Amanda Wilkinson?” — only permitted the jury an all-or-nothing approach. The jury would have been unable to apportion fault to both Wilkinson’s and Appellees’ negligence. Thus, the verdict form employed the long-overruled defense of contributory negligence and acted as a complete bar to Appellant’s recovery. Accordingly, the lower court’s failure to permit an amendment to the complaint, which prohibited Appellant from obtaining a jury instruction and verdict form for comparative negligence, was not cured by the jury’s verdict.

Admission of DCF Orders

Although not central to this appeal, we note that the lower court erred by admitting the DCF orders into evidence because they contain inadmissible hearsay. At trial, over objection, the lower court took judicial notice and allowed the shelter orders containing hearsay into evidence under sections 90.202(6) and 90.203, Florida Statutes (2013), and not under any hearsay exception. Although a trial court may take judicial notice of court records under section 90.202(6), the statute does not permit “the wholesale admission of all hearsay statements contained within those court records.” Stoll v. State, 762 So.2d 870, 876 (Fla.2000). “A court judgment is hearsay to the extent that it is offered to prove the truth of the matters asserted in the judgment.” BDO Seidman, LLP v. Banco Espirito Santo Int’l, 38 So.3d 874, 880 (Fla. 3d DCA 2010) (internal quotation marks omitted) (citations omitted). For the matters asserted in the court file— including a court’s judgment — to be admissible, there must be an applicable exception. Id. (citing Stoll, 762 So.2d at 876). Any third party’s statement needs an exception as well, Powell v. State, 908 So.2d 1185, 1187 (Fla. 2d DCA 2005) (“Statements that constitute hearsay within hearsay are inadmissible unless both statements conform to a hearsay exception.” (citing § 90.805, Fla. Stat. (2005); Smith v. State, 880 So.2d 730, 741 (Fla. 2d DCA 2004))). We believe the lower court erred by admitting the DCF shelter reports using only judicial notice and not pursuant to applicable hearsay exceptions.

The lower court erred by denying Appellant’s request to amend her complaint after the close of evidence to include Wilkinson’s comparative fault. The denial of Appellant’s request resulted in the application of the long-overruled doctrine of contributory negligence. We therefore reverse and remand for a new trial and note that judicial notice is not an exception that would permit admission of the hearsay and hearsay within hearsay in the DCF shelter orders. We grant Appellant a new trial.

REVERSED and REMANDED for NEW TRIAL.

PALMER, J., and MIHOK, A.T., Associate Judge, concur.

      . The lower court addressed Appellant's request to amend her complaint as follows:
      THE COURT: The issue of comparative negligence was in the pleadings, and it was tried, and now you want to withdraw your affirmative defense.
      DEFENSE COUNSEL: Yes, ma'am.

        THE COURT: I don’t know what cause of action — I mean, you have to have a cause of action that would be amended. I do not know that there is anything cognizable that you would be pleading, not to mention it was already tried by — I mean, the whole issue has been tried. So your request to conform—
      PLAINTIFF COUNSEL: To amend the complaint to conform to the evidence.
      THE COURT: — is denied, because the issues have been tried. And furthermore, I don't know what the cause of action would be.

      . We also find instructive a' series of Missouri appellate cases that hold if defendants pleaded comparative negligence and withdrew the affirmative defense after the evidence was heard, a plaintiff is entitled to a comparative fault instruction and corresponding verdict form without pleading comparative negligence. Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 748, 808 (Mo.Ct.App.2008); Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76, 122 (Mo.Ct.App.2006); Rudin v. Parkway Sch. Dist., 30 S.W.3d 838, 841 (Mo.Ct.App.2000); Monteith v. Cundall, 830 S.W.2d 466, 469 (Mo.Ct.App. 1992). We exercise judicial restraint and do not go so far as to hold that a plaintiff can obtain an instruction on comparative fault without having pleaded it, a holding that would conflict with Biyant.

      . " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801( 1 )(c), Fla. Stat. (2013).


source: Caselaw Access Project

license: Public Domain

text:
    Justin H. PARRY-HOEPFNER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3144.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2013.
    Bryan D. Savy of Bross, Bross, Thomas & Savy, LLC, West Melbourne, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   WALLIS, J.

Justin H. Parry-Hoepfner (“Petitioner”) seeks a writ of mandamus compelling the trial court to order an adversary preliminary hearing pursuant to Florida Rule of Criminal Procedure 3.133(b)(1). We sua sponte treat the instant petition as a petition for writ of certiorari. Because Petitioner was entitled to an adversary preliminary hearing, we grant his request.

Pursuant to an arrest warrant, Petitioner was taken into custody on March 19, 2013. He filed a motion to set reasonable bond, which the trial court denied at a bond hearing on April 10, 2013. Petitioner remained incarcerated. On April 19, 2013, the State filed its information charging Petitioner with five felonies. On June 18, 2013, Petitioner filed a motion for an adversary preliminary hearing pursuant to Florida Rule of Criminal Procedure 3.133(b)(1), which provides:

(b) Adversary Preliminary Hearing.
(1) When Applicable. A defendant who is not charged in an information or indictment within 21 days from the date of arrest or service of the capias on him or her shall have a right to an adversary preliminary hearing on any felony charge then pending against the defendant. The subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding.

Fla. R.Crim. P. 3.133(b)(1). Petitioner argued that because approximately thirty days elapsed between the date of his arrest and the date the State charged him, he was entitled to an adversary preliminary hearing.

On July 2, 2013, the trial court held a hearing on Petitioner’s motion. The State agreed that Petitioner was entitled to an adversary preliminary hearing based on the clear provisions of rule 3.133(b)(1). On August 14, 2013, the trial court denied Petitioner’s motion for adversary preliminary hearing because Petitioner “did not timely assert his right to the hearing after 21 days of incarceration, but before the information was filed.”

The trial court’s interpretation of rule 3.133(b)(1) is not supported by its language, which provides that “[t]he ... subsequent filing of an information or indictment shall not eliminate a defendant’s entitlement to this proceeding.” Rule 3.133(b)(1) contains no exception that precludes Petitioner from seeking an adversary preliminary hearing after the filing of information. The only timing requirement prevents a defendant from filing for an adversary preliminary hearing prior to being incarcerated for twenty-one days without formal charges.

We find that the trial court failed to comply with the clear directives of rule 3.133(b)(1) by refusing to set Petitioner’s case for an adversary preliminary hearing. Because the trial court departed from the essential requirements of the law, we grant the petition.

PETITION FOR WRIT OF CERTIO-RARI GRANTED with DIRECTIONS FOR TRIAL COURT TO GRANT ADVERSARY PRELIMINARY HEARING.

GRIFFIN and BERGER, JJ., concur.

      . We note that, in response to the instant petition, the State does not offer any argument in support of the trial court’s rationale for denying Petitioner’s request for an adversary preliminary hearing.


author: PER CURIAM.

text:
    TESLA ELECTRIC, ARMATURE AND MACHINE, INC., a Florida corporation, Appellant/Cross-Appellee, v. JLM ADVANCED TECHNICAL SERVICES, INC., a foreign corporation; Mark A. Hurlburt, an individual; and Raymond H. Moseley, an individual, Appellees/Cross-Appellants. JLM Advanced Technical Services, Inc., a foreign corporation, Appellant, v. Tesla Electric, Armature And Machine, Inc., a Florida corporation, Appellee.
    Nos. 1D12-5839, 1D13-954.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2013.

      Robert M. Dees of Milam Howard Ni-candri Dees & Gillam, P.A., Jacksonville for Appellant/Cross-Appellee.
    Rebecca Bowen Creed and Jennifer Shoaf Richardson of Creed & Gowdy, P.A., Jacksonville for Appellees/Cross-Appel-lants.
   PER CURIAM.

Tesla Electric, Armature and Machine, Inc., (“Tesla”) appeals a final summary judgment entered for JLM Advanced Technical Services, Inc., (“JLM”) on a breach-of-contract claim seeking the enforcement of a restrictive covenant, and JLM cross appeals two orders denying its motions for attorney’s fees and costs. We affirm the final summary judgment without discussion. As to the cross appeal, we find no merit in JLM’s claim for attorney’s fees under section 57.105(7), Florida Statutes (2012). However, we reverse and remand for further proceedings on JLM’s claim for attorney’s fees pursuant to section 542.335(l)(k), Florida Statutes (2012), and for costs under section 57.041, Florida Statutes (2012).

JLM prevailed on Tesla’s breach-of-contract claim due to the unenforceability of the restrictive covenant in the parties’ contract. Therefore, section 542.335(l)(k) grants the trial court discretion to award JLM its reasonable attorney’s fees. The trial court denied JLM’s request for attorney’s fees under this provision, finding that the “equities of the case” do not support such an award. Because the basis for this finding is not apparent from the record, we are unable to determine whether the trial court properly exercised its discretion to deny fees under this statute. Accordingly, we reverse and remand for the trial court to revisit its decision and make specific findings to support either an award or denial of attorney’s fees under this provision. See In re Guardianship of Sitter, 779 So.2d 346, 348 (Fla. 2d DCA 2000) (recognizing that an appellate court may require findings even in the absence of a statutory directive for such findings when necessary to allow for intelligent review).

Unlike section 542.335(l)(k), section 57.041 is mandatory. Under this statute, “the prevailing party in an action at law is absolutely entitled to the taxing of costs in his favor.” Reinke v. Wal-Mart Stores, Inc., 773 So.2d 592, 592 (Fla. 1st DCA 2000). Here, the trial court denied all of JLM’s requested costs. While some of the costs JLM requested were clearly inappropriate, a total denial of costs should not have occurred without an evidentiary hearing. See Winter Park Imports, Inc. v. JM Family Enterps., Inc., 77 So.3d 227, 230 (Fla. 5th DCA 2011) (requiring an evidentiary hearing when the opposing party objects to the requested costs). We reverse and remand for the trial court to afford JLM the opportunity to show at an evidentiary hearing that the requested costs were reasonably necessary to JLM’s defense. After providing this opportunity and considering Tesla’s objections, the court must enter an appropriate cost award in JLM’s favor. See Weitzer Oak Park Estate, Ltd. v. Petto, 573 So.2d 990, 991 (Fla. 3d DCA 1991).

AFFIRMED in part; REVERSED in part; and REMANDED with directions.

THOMAS, RAY, and MAKAR, JJ., concur.


author: MAY, J.

text:
    STATE of Florida, Petitioner, v. James Patrick WONDER, Respondent. James Patrick Wonder, Petitioner, v. State of Florida, Respondent.
    Nos. 4D12-4510, 4D12-4559.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for petitioner.
    Michael J. Entin and Frank A. Maister, Fort Lauderdale, for respondent.
   MAY, J.

Having previously consolidated the two petitions filed in this case for purposes of the record and disposition by the same panel, we now sua sponte consolidate them for purposes of this opinion. The underlying criminal case involves a tragic deadly shooting in a post office parking lot.

In Case No. 4D12-4559, the defendant petitioned this court for a writ of prohibition, challenging an order that denied his motion to dismiss the criminal charges against him under sections 776.032 and 776.012, Florida Statutes (2009), the “Stand Your Ground” law. In Case No. 4D12^1510, the State petitioned this court for a writ of certiorari, challenging part of the order determining that the criminal defendant was not involved in “unlawful activity” at the time of the shooting. We deny both petitions.

The manslaughter charge resulted from the tragic shooting death of the victim. The victim and the defendant first encountered one another on public streets where the defendant was slowly driving his car to the post office. The victim was angered by the defendant’s driving.

When the defendant turned right into the post office, the victim pulled up next to him and each made an obscene gesture. The victim then drove past the entrance to the post office, turned right at the next street and right again into the post office parking lot. The victim drove his car at a high rate of speed, nearly hitting the vehicle of another post office patron, and parked it diagonally across two parking spaces. The victim exited his vehicle, and angrily approached the defendant, yelling at him. Fearing for his safety, the defendant shot and killed the victim.

The State charged the defendant with manslaughter. The defendant moved to dismiss the Information based on sections 776.012 and 776.032, Florida Statutes, the “Stand Your Ground” law. The trial court held an evidentiary hearing.

After hearing the testimony of witnesses and a medical expert, the court concluded that the defendant’s use of force was not reasonable. Specifically, the defendant “did not reasonably believe that the use of deadly force was necessary to prevent death or great bodily harm to himself or his family, and that immunity does not attach under Florida Statute section 776.032.” The trial court denied the motion to dismiss.

The State then requested the trial court to determine whether the defendant’s possession of a firearm on post office property constituted “unlawful activity” under section 776.013(3). Defense counsel argued that such a determination was unnecessary because the motion to dismiss was based on section 776.012, and not 776.013. Nevertheless, the court determined that the defendant’s possession of a firearm on post office property did not constitute “unlawful activity.”

These rulings are the basis of the defendant’s petition for a writ of prohibition and the State’s petition for a writ of certiorari.

Prohibition lies to review a circuit court’s denial of a motion to dismiss seeking statutory immunity under the “Stand your Ground” law. Joseph v. State, 103 So.3d 227 (Fla. 4th DCA 2012). We defer to the circuit court’s factual findings when supported by competent, substantial evidence. Id. at 229-30. We have de novo review of the legal issues. Id.

The defendant elicited testimony about the difference in physical size and strength of both him and the victim. The defendant was somewhat fragile and in poor health. The victim was younger, taller, and in better physical shape.

The trial court found the testimony of the victim’s minor daughter, who was a passenger in the victim’s car, credible. The daughter testified about the facts leading up to the confrontation. The daughter’s testimony mirrored the defendant’s version of events. She testified that her father pulled into the post office, and told her he had to talk to a guy. She saw her father exit the car, begin yelling at the defendant, and then heard the shot. A medical expert testified that the victim’s wound was consistent with his having turned his head and ducked as he was shot.

Because competent, substantial evidence supports the trial court’s factual findings and ultimate factual conclusion that the defendant did not reasonably believe that deadly force was necessary, we deny the defendant’s petition for writ of prohibition. See id.

The State asks us to review that portion of the order in which the trial court determined that the defendant’s possession of a firearm on post office property did not constitute “unlawful activity” pursuant to section 776.013(3), Florida Statutes (2009). The defendant has maintained all along that such a determination was unnecessary because the defense motion relied upon section 776.012 and not 776.013. The exception for a defendant’s engagement in “unlawful activity” does not exist under section 776.012. We agree with the defendant. The trial court need not have addressed this issue.

Section 776.012, Fla. Stat. (2009), provides:

Use of force in defense of person.—
A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or
(2) Under those circumstances permitted pursuant to s.776.013.
(emphasis added). There is no similar provision in section 776.012 limiting immunity if the defendant is involved in “unlawful activity.”
Section 776.013, Fla. Stat. (2009), however, provides:
Home protection; use of deadly force; presumption of fear of death or great bodily harm.
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

Subsection (2) of the statute then sets out exceptions to the presumption in subsection (1). These exceptions include when: (a) the person against whom the force is used is a lawful resident or occupant of the residence or vehicle; (b) the person sought to be removed is a child or grandchild or someone otherwise in the lawful custody of the person against whom defensive force is used; (c) “[t]he person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity ... ”; and (d) the person against whom the force is used is a law enforcement officer. § 776.013(2)(a)-(d), Fla. Stat. (2009).

Subsection (3) specifically provides:

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

§ 776.013(3), Fla. Stat. (2009).

At first glance, the title to each section of chapter 776 demarcates the line between justifiable use of force in defense of self and others and the presumption that applies under the castle doctrine. As the Second District explained in Little v. State, 111 So.3d 214, 219 (Fla. 2d DCA 2013), sections 776.012, 776.013, and 776.032 provide alternative forms of immunity.

We do not agree that there is a conflict between the provisions in sections 776.012(1) and 776.013(3). Section 776.013(3) provides for the justifiable use of deadly force by a law-abiding person outside of the “castle,” but it does not preclude persons who are engaged in an unlawful activity from using deadly force in self-defense when otherwise permitted. In fact, the Stand Your Ground law expressly amended section 776.012 to provide that the use of deadly force is justified under the circumstances set forth in both sections 776.012(1) and 776.013.
Section 776.013(3) applies when a person is (1) not engaged in an unlawful activity and (2) attacked in any place outside the “castle” as long as (3) he or she has a right to be there. A person who does not meet these three requirements would look to section 776.012(1) to determine whether the use of deadly force was justified. The presumptions in sections 776.013(1) and (4) apply only when a person is attacked in the “castle.” And the presumption in section 776.013(1) does not apply if the person was engaged in an unlawful activity. See § 776.013(2)(c).

Id. at 221 (emphasis in original). We concur with the Second District’s analysis.

The defendant never sought immunity under section 776.013, and it was unnecessary for the trial court to answer whether the defendant was engaged in unlawful activity under section 776.013(3). For this reason, we deny the State’s petition for writ of certiorari and remand the case to the trial court for further proceedings consistent with this opinion.

DAMOORGIAN, C.J., and TAYLOR, J. concur.

      . The Supreme Court of Florida quashed our earlier decision upholding the denial of the defendant's request for an evidentiary hearing. Wonder v. State, 64 So.3d 1208 (Fla. 2011).

      . We have recently held that possession of a firearm by a convicted felon constitutes "unlawful activity” and precludes immunity under the "Stand Your Ground” law, section 766.013(3). Bragdon v. State, 123 So.3d 654 (Fla. 4th DCA 2013). We certified conflict with Little v. State, 111 So.3d 214 (Fla. 2d DCA 2013) (holding trial court erred in denying immunity to defendant under section 776.012).


text:
    Michelle LAPAIX, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2652.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.
    Mavel Ruiz, Hialeah, for appellant.
    No appearance required for appellee.
   PER CURIAM.

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

TAYLOR, MAY and LEVINE, JJ., concur.


text:
    Steven Keith MASSAGEE, Petitioner, v. MGA INSURANCE COMPANY, Respondent.
    No. 5D12-3824.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2013.
    Thomas Andrew Player, The Nation Law Firm, Longwood, for Petitioner.
    Louis Schulman and Scott W. Dutton, Dutton Law Group, P.A., Tampa, for Respondent.
   PER CURIAM.

Steven Keith Massagee has filed a motion seeking rehearing of our order denying his certiorari petition. We deny the motion for rehearing, but withdraw our previous order and substitute this opinion in its place.

Massagee filed a complaint in county court against MGA Insurance Company seeking a declaratory judgment pursuant to Chapter 86 of the Florida Statutes. Specifically, he sought a declaration regarding the availability of PIP coverage for losses allegedly incurred by him. The county court entered a summary judgment in Massagee’s favor, finding that PIP coverage was available for his claims.

MGA filed a notice of appeal in the circuit court challenging the county court’s ruling, and both parties filed motions for an award of appellate attorney’s fees pursuant to section 627.428 of the Florida Statutes. The circuit court affirmed the county court’s order, but denied both motions for appellate attorney’s fees.

Massagee then filed the instant petition challenging the circuit court’s denial of his motion for appellate attorney’s fees. Because Massagee is asking this court to review only the circuit court’s denial of his appellate attorney’s fees motion, the circuit court’s order is properly reviewed by way of direct appeal, not by collateral petition. See Highwoods DLF EOLA, LLC v. Condo Developer, LLC, 51 So.3d 570, 573 n. 1 (Fla. 5th DCA 2010) (“Highwoods ”)• As in Highwoods, the circuit court’s order denying Massagee’s request for appellate attorney’s fees constituted an “original decision” which had “never before [been] subjected to judicial review.” Id.

Reviewing the instant matter as a direct appeal, we find no reversible error and, therefore, affirm.

AFFIRMED.

PALMER, LAWSON, and WALLIS, JJ., concur.

      . See § 627.36, Fla. Stat. (2006).


text:
    William Louis STRMISKA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-2074.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2013.
    William Louis Strmiska, Crawfordville, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in Case No. 2010-CF-001338-A and 2011-CF-000058, in the Circuit Court in and for Citrus County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

PALMER, LAWSON, GRIFFIN, JJ., concur.


text:
    Hume HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4480.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2013.

      Robert W. Stickney, Fort Lauderdale for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The 82-year-old appellant was convicted of violating section 828.12(2), Florida Statutes (2012), which makes it a third degree felony to “intentionally commitf] an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering.” In Reynolds v. State, 842 So.2d 46, 51 (Fla.2002), the Supreme Court held that this statute “contains a requirement of a general intent to commit an act that is obviously reasonably related to the harm sought to be avoided, rather than a more specific intent.” (emphasis added). The rule of lenity, section 775.021(1), Florida Statutes (2012), provides that where the language of the Florida Criminal Code “is susceptible of differing constructions, it shall be construed most favorably to the accused.”

When Reynolds is read in conjunction with the rule of lenity, for there to be a conviction under section 828.12 there must be an objectively close connection between a defendant’s act and the harm that ultimately befalls an animal; the harm must be “obviously reasonably related” to the defendant’s act. Reynolds, 842 So.2d at 51. Thus, for example, a defendant who places a dog in a dog fighting ring violates the statute if a dog suffers a cruel death, or excessive or repeated unnecessary pain.

Here, with his dog on a leash, the appellant approached too close to a cat. Once the unfortunate melee began, the appellant kept his dog on the leash and tried to separate the animals. Despite his efforts, his dog killed the cat. Had the appellant taken his dog off the leash so that it could attack the feline victim, he would have violated the statute.

Although the appellant’s negligence would support a verdict of civil liability, his conduct did not cross the line into criminal behavior. It is objectively unlikely that a leashed dog walking with his owner would be able to inflict the kind of damage that resulted here.

We therefore reverse the conviction and remand with directions to enter a judgment of acquittal and discharge the appellant from custody. Because of this result, we do not address the issue of whether the appellant’s three-year prison sentence violated section 775.082(10), Florida Statutes (2012), because the appellant scored only four points on his Criminal Punishment Code Scoresheet. Similarly, while we do not reach the propriety of the prosecutor’s conduct at sentencing, where he told the judge that he had a petition with approximately 3,000 signatures from citizens demanding the maximum sentence, we are compelled to note that such conduct is an affront to the very notion of due process of law granted to a criminal defendant in an American courtroom. “The constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal proceeding.... There can be no doubt that they ... exclude influence or domination by either a hostile or friendly mob.” Cox v. Louisiana, 379 U.S. 559, 562, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965) (citations omitted); State v. Humphreys, 89 N.J. 4, 444 A.2d 569, 574 (1982).

Reversed and Remanded.

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


text:
    Henry Oliver McKINNON, III, Appellant, v. STATE OF FLORIDA DUVAL COUNTY, et al., Appellee.
    No. 1D13-4047.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2013.
    Henry Oliver McKinnon, III, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order that clearly indicates “[tjhis is a nonfinal, non-appealable order, which may be reviewed only when a final, appealable order is entered.” Accordingly, this appeal is dismissed without prejudice to appellant filing an appeal after the trial court has entered a final, appealable order.

DISMISSED.

LEWIS, C.J., BENTON and SWANSON, JJ., concur.


text:
    George N. WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5056.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2013.
    Matt Shirk, Public Defender; Senovia Portis and Elizabeth H. Webb, Assistant Public Defenders, Jacksonville; and George N. Wilson, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the January 24, 2013, judgment and sentence, in Duval County Circuit Court case number 16-2011-CF-008628-AXXX-MA. Upon' issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

THOMAS, MARSTILLER, and RAY, JJ., concur.


author: KELLY, Judge.

text:
    Candace Leann DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1840.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2013.
    Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Candace Leann Duncan challenges her conviction and sentence for grand theft from a dwelling. After having carefully reviewed the record in this circumstantial evidence case, we conclude that the State did not meet its burden to offer evidence that was inconsistent with Duncan’s reasonable hypothesis of innocence. See State v. Law, 559 So.2d 187, 188 (Fla.1989); Linn v. State, 921 So.2d 830, 834 (Fla. 2d DCA 2006). Accordingly, we reverse Duncan’s conviction for grand theft and the final judgment of restitution.

Reversed.

WALLACE and BLACK, JJ., Concur.


author: SLEET, Judge.

text:
    Brian Scott RATTEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1884.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2013.
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

Brian Scott Rattee challenges his judgment and sentence for burglary following a jury trial. On appeal, he argues that the trial court lacked jurisdiction to hold a restitution hearing and to enter a restitution order after he filed his notice of appeal. We agree.

On March 27, 2012, Rattee was tried and convicted of committing burglary. The court subsequently sentenced Rattee to fifteen years’ prison and reserved on the issue of restitution. Rattee filed a notice of appeal on April 9, 2012. On May 30, 2012, the trial court issued a restitution order in the amount of $20,000. Rattee’s attorney objected to the order on June 6, 2012, and the court held an evidentiary hearing. After the hearing, the trial court entered another restitution order in the amount of $16,150.

Even though a trial court may reserve jurisdiction on the issue of restitution, it loses jurisdiction to hold a restitution hearing or to enter a restitution order once a defendant files his notice of appeal. See Pearson v. State, 686 So.2d 721, 721 (Fla. 2d DCA 1997). We recognize that “a trial court has jurisdiction to render written orders after a notice of appeal is filed when those orders simply memorialize oral rulings made by the court prior to the notice of appeal being filed.” Henry v. State, 42 So.3d 317, 318 (Fla. 2d DCA 2010). However, the restitution orders entered in this case did not memorialize oral rulings made by the court prior to the notice of appeal being filed. Consequently, we reverse the order setting the amount of restitution. On remand, the trial court may conduct another hearing and again impose restitution.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ„ Concur.


text:
    Porfiro RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-345.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2013.

      Porfiro Rivera, pro se.
   PER CURIAM.

Porfiro Rivera appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he raised three grounds for relief. We reverse and remand for further proceedings on ground one and affirm without comment on grounds two and three.

On September 24, 2008, Mr. Rivera’s counsel informed him of the State’s plea offer of twenty years’ imprisonment. Mr. Rivera rejected the offer because he wanted to continue investigating his case. Mr. Rivera then appeared before the trial judge, who also informed him of the plea offer. The trial judge told Mr. Rivera that he could either accept the State’s offer or reject it and proceed to trial that day. Mr. Rivera rejected the offer and proceeded to trial.

On September 25, 2008, Mr. Rivera was convicted of shooting into an occupied vehicle (count one) and three counts of aggravated assault with a deadly weapon (counts two, three, and four). Mr. Rivera was sentenced to fifteen years’ imprisonment on count one and to twenty years’ imprisonment with a three-year minimum mandatory on each of counts two, three, and four. Count one was ordered to run concurrent to count four, and count two was ordered to run concurrent with count three. Counts one and four were ordered to run consecutive to counts two and three, for a total of forty years’ imprisonment.

In ground one, Mr. Rivera claimed that his trial counsel failed to discuss with him the benefits of accepting the plea offer as well as the potential consequences of rejecting the State’s plea offer of twenty years’ imprisonment. Mr. Rivera claimed that he was prejudiced by counsel’s failure to fully advise him because he is now serving a sentence twice the length of the State’s offer. Mr. Rivera further asserted that he would have accepted the State’s plea offer had counsel fully advised him of the possible sentences he could have received at trial. Mr. Rivera has made a facially sufficient claim. See Rentschler v. State, 838 So.2d 1212, 1212 (Fla. 2d DCA 2003); see also Fla. R. Crim. P. 3.171(c)(2)(B) (“Defense counsel shall advise defendant of ... all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant.”). The postcon-viction court’s order failed to address Mr. Rivera’s claim that counsel did not advise him of the possible sentence he could receive if convicted at trial, and the portions of the trial record attached to the order do not refute Mr. Rivera’s claim. Therefore, we reverse the postconviction court’s order denying Mr. Rivera’s claim in ground one of his rule 3.850 motion and remand for the court to either attach portions of the record that conclusively refute the claim or to hold an evidentiary hearing on the claim.

Affirmed in part; reversed in part; remanded.

VTLLANTI, BLACK, and SLEET, JJ., Concur.


text:
    Charles LAWN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-699.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2013.
    Charles Lawn, pro se.
   PER CURIAM.

Charles Lawn appeals the circuit court order granting in part and denying in part his motion to compel the clerk of the court to respond to his request for trial court documents in his criminal case, CRC02-18403CF. We reverse and remand for further proceedings.

Mr. Lawn made a written request to the clerk of the court for specific trial court documents for the purpose of a clemency hearing and included a statement that he was willing to pay for the records. This request complied with Florida Rule of Judicial Administration 2.420(i) (2012). The clerk of the court, as custodian of the trial record, has a duty to respond to a request for trial court documents, see Fla. R. Jud. Admin. 2.420(i)(2), but failed to do so. Months later, Mr. Lawn filed a motion to hear and rule on the request and a motion to compel the clerk to respond to his request for documents. Mr. Lawn’s motion to compel met the pleading requirements for a petition for writ of mandamus, see Fla. R. Civ. P. 1.630(b), “which is the appropriate vehicle for challenging the denial of access to judicial records.” Hogan v. State, 983 So.2d 656, 657-58 (Fla. 2d DCA 2008).

The circuit court granted Mr. Lawn’s request for production of the charging document and judgment and sentence in his criminal case. But apparently overlooking Mr. Lawn’s statement that he was willing to pay the reasonable costs and fees for his request, the circuit court denied his request for copies of the following: (1)discovery documents in his case; (2) trial transcript volumes 10,11, and 12; and (3) sentencing transcripts. The circuit court’s sole basis for denying the request was that Mr. Lawn was not entitled to free copies of those documents. See Johnson v. State, 836 So.2d 1103,1103 (Fla. 2d DCA 2003) (affirming denial of petitioner’s request for free copies of documents related to his trial and direct appeal).

Accordingly, we reverse and remand for the trial court to reconsider Mr. Lawn’s motion to compel the clerk of the court to respond to his request for production of documents as a petition for writ of mandamus.

Reversed and remanded for further proceedings.

CASANUEVA, VILLANTI, and CRENSHAW, JJ., Concur.


author: CIKLIN, J.

text:
    Scott KIPP, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-120.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Scott Kipp appeals his convictions and sentences for three counts of felony animal cruelty and seventeen counts of misdemeanor animal cruelty. Kipp contends that the trial court should have held a Richardson inquiry when Kipp objected to the presentation of expert testimony of a witness not listed as an expert and to the prosecutor’s use of undisclosed impeachment evidence during the cross-examination of Kipp. We agree and reverse and remand for a new trial.

The evidence presented at Kipp’s jury trial revealed that officers from the Palm Beach County Animal Care and Control Department visited Kipp’s residence and discovered numerous dogs with a variety of ailments. One dog’s muscles were atrophied, her paw pads were raw, and she had urine burns on her legs. She could not stand and had to be carried out of her cage. Another animal had severe entro-pion, a painful condition causing the eyelid to rub the cornea. Her eyeballs were atrophied and her paw pads were also raw. A third dog had severe entropion and appeared to suffer from glaucoma. Seventeen other dogs suffered from various conditions, including entropion, severe ear infections, malnourishment, open fly bites, open sores, and bloody diarrhea.

In its witness disclosure exhibit, the state listed a veterinary assistant, Cathleen Brandow, as a Category A witness but did not designate her as an expert witness. At trial, the state called six witnesses, only one of whom was identified as having a veterinarian-related background. Brandow, a veterinary assistant, began her testimony by providing a lengthy recitation of her experience treating animals and “relaying symptoms and the findings of exams to the veterinarians.” Believing the state sought to treat Brandow as an expert, Kipp objected based on the state’s failure to designate her as an expert on its witness list. The state responded by assuring the trial court that it would not elicit expert opinion testimony from Brandow. Nevertheless, Brandow testified about the dogs’ symptoms and the diagnoses they would support, and then testified specifically about each dog’s symptoms. Much of her testimony was prefaced with an ac-knowledgement that it was based on her experience, background, and clinical work. The trial court permitted Brandow’s testimony despite repeated defense objections. Kipp was found guilty as charged, adjudicated, and sentenced.

On appeal, Kipp asserts the trial court erred in overruling his objection and by failing to conduct a Richardson inquiry as a result of the state’s failure to disclose that Brandow would be called to testify as an expert.

“Under Richardson, when a discovery violation is alleged, the standard of appellate review is whether the trial court abused its discretion in determining if a violation occurred and if so, whether it was inadvertent, and not prejudicial to the preparation of the defense.” Mascolo v. State, 774 So.2d 827, 829 (Fla. 4th DCA 2000).

Florida Rule of Criminal Procedure 3.220(b)(l)(A)(i) requires the state to disclose “expert witnesses who have not provided a written report and a curriculum vitae or who are going to testify.” It is not enough to list such witnesses as Category A witnesses; the state is also required to indicate that the witness will testify as an expert. See Thomas v. State, 63 So.3d 55, 59 (Fla. 4th DCA 2011) (finding the state violated its discovery obligation when it listed an officer as a Category A witness but failed to designate him as an expert, and officer testified as an expert in street level drugs); Luis v. State, 851 So.2d 773, 776 (Fla. 2d DCA 2003) (holding that where the state intended to qualify an officer as an expert in narcotic investigations, state’s failure to indicate in its discovery exhibit that the officer was an expert witness constituted a discovery violation).

The record clearly reveals that Bran-dow’s testimony went beyond factual observations of such matters as the appearance and behavior of the dogs found at Kipp’s home. In fact, she also testified generally about the signs of malnourishment, dehydration and infection in animals, much of which are not obvious to laypersons. She also provided diagnoses and descriptions of two eye conditions, entro-pion and glaucoma. The following exchange occurred during Brandov/s testimony.

Prosecutor: So we were talking about science of malnourishment that you’ve observed in your work with dogs.... How about their teeth? You said that the dentistry is a real area of interest for you.
Brandow: You would get a lot of tartar buildup.
Prosecutor: Okay. What about lethargy, or just not moving around?
Brandow: Same thing. Being lethargic definitely is a sign of dehydration. They’re not getting what they need. The dehydration is off the homeostasis of the body’s chemistry and it’s going to cause the animal to .... So it’s going to cause the animal to act certain ways and tired.
Prosecutor: What have your observations been about the nature of the discharge in a dehydrated dog, would it be thicker?
Brandow: Yes.
Prosecutor: Now, based on your background, clinical work ... the color and the thickness of the nasal and the ocular discharge, does that indicate dehydration?
Brandow: It could definitely be from— she was severely dehydrated.
Prosecutor: The color of it, did it have some significance based on your work in the clinical setting ....
Brandow: Yes. It indicates bacteria.
Prosecutor: And what can you tell us about what you saw about this particular female Shar Pei out at the setting?
Brandow: Okay. This dog appeared to me with chronic eye problems. She had severe entropion.
Prosecutor: What’s that?
Brandow: Entropion is a condition where the eyelid folds inwards and it rubs against the cornea. It’s a very painful condition, as you can imagine, if you had a speck of sand or an eyelid in your eye constantly, all the time.
Prosecutor: And what was it that you saw with your eyes about her eyeball?
Brandow: [I]t appeared that she had glaucoma....
Prosecutor: Would [the pressure from the glaucoma] be painful?
Brandow: Yes. It would be something that you would definitely need to—
Prosecutor: Address?
Brandow: Address, yes.
Prosecutor: What if anything does the tissue of a dog’s ear look like with untreated infection?
Brandow: The normal defense mechanism is for inflammation to occur. That’s the first healing process. And most of the time the most painful of it is on the inner ear canal where it swells, it becomes extremely painful. The animal will try to maybe dig at it itself. And it can cause outer lesions as well to the outside of the ear.
Prosecutor: What does it do to a dog’s balance?
Brandow: It can cause a disbalance. Any kind of inner ear infection can cause a disbalance.
Prosecutor: Okay, Now, [another dog,] Hope ... She had severe ear infections?
Brandow: Yes.
Prosecutor: Would that also supply an explanation for one of the many reasons why she couldn’t get up?
Brandow: It could have supplied one of the reasons, yes.

This testimony required specialized knowledge and experience. Thus, Bran-dow was indeed testifying as an expert. See § 90.701, Fla. Stat. (2010) (providing that under certain circumstances recited in the statute, a lay witness may provide opinion testimony when the “opinions and inferences do not require a special knowledge, skill, experience, or training”); § 90.702, Fla. Stat. (2010) (“If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.”).

If there is a possibility of a discovery violation, “the trial court must inquire as to whether the violation (1) was willful or inadvertent; (2) was substantial or trivial; and (3) had a prejudicial effect on the aggrieved party’s trial preparation.” Thomas, 63 So.3d at 59 (citation and quotation marks omitted). Further,

Where a discovery violation has occurred, the failure to conduct a Richardson hearing is not per se reversible error, but rather is subject to a harmless error analysis. See State v. Schopp, 653 So.2d 1016, 1020-21 (Fla.1995). The relevant inquiry is “whether there is a reasonable possibility that the discovery violation ‘materially hindered the defendant’s trial preparation or strategy.’ ” Scipio v. State, 928 So.2d 1138, 1150 (Fla.2006) .... An analysis of procedural prejudice “considers how the defense might have responded had it known about the undisclosed piece of evidence and contemplates the possibility that the defense could have acted to counter the harmful effects of the discovery violation.” Scipio, 928 So.2d at 1149.

Durrance v. State, 44 So.3d 217, 221 (Fla. 4th DCA 2010).

The state’s burden to show a discovery violation to be harmless is “extraordinarily high.” Hicks v. State, 45 So.3d 518, 524 (Fla. 4th DCA 2010) (quoting Cox v. State, 819 So.2d 705, 712 (Fla.2002)). “ ‘[T]he vast majority of cases’ will not have a record sufficient to support a finding of harmless error.” Scipio, 928 So.2d at 1148 (Fla.2006) (quoting Schopp, 653 So.2d at 1021 (Fla.1995)).

The state contends Kipp was not procedurally prejudiced because, ten months prior to trial, he requested a continuance to depose Brandow. In Kipp’s motion for continuance, Kipp informed the court that others had suggested Brandow was a veterinary technician, and therefore Kipp needed “time to investigate her findings and possibly retain a veterinarian.” This, the state asserts, shows Kipp’s awareness of the nature of the testimony Brandow would give.

The record reflects that Kipp did depose Brandow prior to trial, but a transcript of the deposition is not part of the record before us. As such, we are unable to determine if Kipp, based on Brandow’s deposition testimony, knew she would testify as an expert and go beyond mere factual observations. See Casica v. State, 24 So.3d 1236, 1241 (Fla. 4th DCA 2009) (“Because it is the State’s burden to show that the error was harmless, the State must show in the record that the defendant was not prejudiced by the discovery violation.” (citation omitted)). A proper Richardson inquiry could have fleshed out whether Kipp was aware that Brandow would testify as she did. See Raffone v. State, 483 So.2d 761, 763 (Fla. 4th DCA 1986) (“ ‘A Richardson hearing is designed to ferret out procedural prejudice occasioned by a party’s discovery violation.’ ” (citations omitted)).

Kipp also argues that the trial court erred in permitting the state to impeach him with previously undisclosed documentary evidence of his prior contacts with Palm Beach County Animal Care and Control dating back to 1992. Pursuant to Florida Rule of Criminal Procedure 3.220(b)(l)(K), the state was required to disclose the records of Kipp’s prior contacts with Animal Care and Control. The rule requires the state to do the following:

[T]he prosecutor shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the following information and material within the state’s possession or control ... any tangible papers or objects that the prosecuting attorney intends to use in the hearing or trial and that were not obtained from or that did not belong to the defendant.

Fla. R. Crim. P. 3.220(b)(l)(K). The trial court found no hearing or inquiry was necessary because the evidence was being used for impeachment purposes. There is, however, no impeachment exception to the Richardson hearing requirement. Shibble v. State, 865 So.2d 665, 668-69 (Fla. 4th DCA 2004) (holding that trial court erred in not conducting a Richardson hearing when state failed to disclose defense expert’s report in another case, which state used to impeach expert); Portner v. State, 802 So.2d 442, 446 (Fla. 4th DCA 2001) (finding that state violated discovery rules by not disclosing defendant’s statement in a deposition given in a related civil case, which the state sought to use to impeach the defendant); Guerrie v. State, 649 So.2d 928, 929 (Fla. 4th DCA 1995) (recognizing that where the state failed to disclose a cocaine pipe found in defendant’s purse, it could not impeach the defendant with the inadmissible evidence by eliciting testimony that she was not familiar with cocaine, as “[t]here is no exception to the Richardson rule for impeachment”) (citation omitted).

The state has failed to establish that Kipp was not procedurally prejudiced. If Kipp had known about the impeachment evidence, he may have refrained from making the statements that opened the door to its use or may have decided not to testify at all. See Portner, 802 So.2d at 446 (finding that state did not establish that defendant was not procedurally prejudiced by the surprise use of his civil deposition, and observing that if defendant had been aware that the state was prepared to impeach him with his contradictory testimony, he may not have testified and placed his credibility before the jury).

In light of our holding, we find it unnecessary to discuss the remaining issues raised by the appellant.

Reversed and remanded for a new trial.

GROSS and MAY, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Glenn F. STRAUB, Appellant, v. MUIR-VILLAS HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 4D12-1335.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.

      Larry A. Zink of Zink, Zink & Zink Co., L.P.A., Hillsboro Beach, for appellant.
    Patricia LaBerge Hartley and Victoria J. Morton of Hartley & Morton, Palm Beach Gardens and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for appellee.
   MAY, J.

A property owner appeals a final judgment that determined the number of lots that could be assessed against him by the homeowners association. He argues the trial court erred in permitting the association to assess him for eight lots. The association cross-appeals a portion of the same judgment that determined it was not entitled to reimbursement of assessments paid to the larger development. We affirm the appeal and reverse the judgment on the cross-appeal.

The Entities

The Villas at Muirfield (the “Villas”) is a sub-community within the larger development of Palm Beach Polo and Country Club. The Villas is governed by the Muir-Villas Homeowners Association, Inc. (the “Association”), a sub-association of Palm Beach Polo and Country Club Property Owners’ Association, Inc. (the “POA”). The property owner (the “Owner”) also owns 100% of Palm Beach Polo Holdings, Inc., which owns the development Palm Beach Polo and Country Club and all of the properties within the larger development.

The Governing Documents

The rights and responsibilities of the Association and the Villas’ residents are contained in the “Declaration of Covenants, Conditions and Restrictions for Villas at Muirfield of Palm Beach Polo and Country Club-Wellington P.U.D.” (the “Declaration”). Article VII, Section 1 of the Declaration provides that each lot within the Villas is subject to, and the owner of any lot within the Villas agrees to pay, assessments charged by the Association. The Association’s board of directors has the power to levy the assessments, and “[e]ach lot shall bear an equal share of the total assessments.” In the event of nonpayment of assessments, the Association has the power to place a lien on the property and to foreclose the lien.

The POA charges the Association assessments for maintaining the larger community. The Association then assesses the Villas’ residents for maintaining the Villas. About 75% of each quarterly assessment is for maintenance expenses incurred by the Association. The remaining 25% is to offset the assessment that the POA charges the Association. The Association has to pay the POA assessments regardless of whether the Villas’ residents pay their assessments to the Association.

The Owner’s Land

The Villas consists of several plats of land; each plat is divided into several lots. Plat 5 was added to the Villas in 1988, and the Declaration was amended to subject Plat 5 to the terms and conditions of the Declaration. Plat 5 originally consisted of nine lots. In 1989, the prior owner purchased three and one-half of the original nine lots in Plat 5. The prior owner and the owner of the other five and one-half lots within Plat 5 recorded a re-plat of Plat 5. The re-plat reconfigured the nine existing lots into four larger lots.

In 2006, the Owner and his wife purchased lots one through six (re-platted lots one and two). In February 2007, the Owner’s wife transferred the property to the Owner by quit-claim deed. The same day, the Owner purchased lots seven and eight (re-platted lot three) from a third party. The Owner then owned lots one through eight (re-platted lots one through three). Lot nine is owned by a third party not involved in this case.

The Owner performs the maintenance on his property without assistance from the Association. In exchange for maintaining his own property, the Owner was allowed to pay a reduced assessment, which was about 50% of the assessment paid by other owners. This agreement began with the prior owner and is reflected in two amendments to the Declaration. Despite this agreement, the Owner has never paid an assessment.

The Current Case

After giving the Owner proper notice, the Association filed a Claim of Lien against his lots for non-payment of assessments. When the Owner failed to pay the assessments, the Association filed a complaint to foreclose the lien. The Owner filed an amended answer and asserted six affirmative defenses, including an allegation that the assessments were unlawfully rendered. The Association denied the Owner’s affirmative defenses.

At a bench trial, the Owner argued that he is exempt from paying assessments under the Declaration, and if he is required to pay them, they should be charged based on the re-platted number of lots. The Association argued that it was entitled to recover assessments on all eight lots because it never amended the Declaration to reflect the re-plat of those lots.

The trial court found that the Association was entitled to assess the Owner’s property as eight separate lots at a rate of 50% per lot. The trial court also found that the Association was not entitled to recover the POA assessments that it paid upfront on the Owner’s property because the Owner was the Declarant by assignment, entitled to elect to fund any deficiency in the POA’s assessment account rather than pay the assessment pursuant to the bylaws. The final judgment ordered the Owner to pay to the Association $145,824.67 in past-due assessments, late fees, and interest, and $71,955.04 in attorney’s fees and costs. From this judgment, the Owner now appeals. The Association cross-appeals the portion of the order finding that the Owner is not required to reimburse the Association for the POA assessments paid by the Association.

The Owner argues that the Declaration is ambiguous as to how assessments should be charged, and the Declaration should be construed against the Association as the drafter. Reading the Declaration in his favor and applying the definitions set forth in Section 720.301, Florida Statutes (2007), the Owner argues that the plats should be assessed according to the three lots identified in the re-plat. The Association responds that the ambiguity argument is unpreserved, and that the re-platting is irrelevant because the Association did not approve it, and the Declaration was not amended to reflect the re-plat.

“Matters of contract and statutory interpretation are reviewed de novo.” Heron at Destin W. Beach & Bay Resort Condo. Ass’n v. Osprey at Destin W. Beach, 94 So.3d 623, 628 (Fla. 1st DCA 2012).

An “assessment” is “a sum or sums of money payable to the association, ... by the owners of one or more parcels as authorized in the governing documents, which if not paid by the owner of a parcel, can result in a lien against the parcel.” § 720.301(1), Fla. Stat. (2007). A “parcel” subject to assessments is a platted or un-platted piece of real property within a community, “as described in the declaration,” and “capable of separate conveyance.” § 720.301(11), Fla. Stat. (2007). “Assessments ... must be in the member’s proportional share of expenses.” § 720.308(l)(a), Fla. Stat. (2007).

The statutes discussing assessments refer to the “governing documents” as controlling. The “governing documents” include the recorded declaration, the articles of incorporation, the bylaws, and all duly adopted and recorded amendments. § 720.301(8), Fla. Stat. (2007). Under the Declaration, each owner is required to pay his or her portion of assessments based on the number of lots that he or she owns. “ ‘Lot’ shall mean one of the numbered parcels of land into which The Properties have been subdivided according to the Plat referred to in Article II .... ”

The Plat referred to in Article II of the Declaration is “Muirfield Plat No. 3,” as well as any property added to the Declaration “by filing in the Public Records of Palm Beach County a Supplemental Declaration as to the additional property .... ” In 1988, Plat 5 was added by supplemental declaration. As of 1988, all nine lots in Plat 5 were included in Article II and were subject to assessments like every other lot within the Villas.

The definition of “Lot” in the Declaration is not ambiguous. “Lot,” as defined in the Declaration, “shall mean one of the numbered parcels of land into which The Properties have been subdivided according to the Plat referred to in Article II .... ” The Owner argues that this definition is ambiguous because it says that assessments should be charged “according to the Plat,” and that could refer to the re-plat. However, the Declaration specifically refers to the Plat referred to in Article II, which includes the validly executed amendments to Article II. The validly executed amendment to Article II includes a description that corresponds to Muirfield— Plat No. 5 of Palm Beach Polo and Country Club, Wellington P.U.D., as recorded in Official Plat Book 60, pages 135 and 136, of the public records of Palm Beach County, Florida. The plat on pages 135 and 136 of book 60 includes nine lots. The Declaration was never amended to include the re-plat.

There is nothing ambiguous about the Declaration’s operative language. It unambiguously states that assessments are charged according to the number of lots specified in Article II, which provides that plat 5 has nine lots, eight of which are owned by the Owner.

Cross-Appeal

In its cross-appeal, the Association argues the Owner insufficiently pled the affirmative defense of assignment, and the trial court erred in considering that defense. The Owner responds that his affirmative defense was sufficiently pled, and the Association knew of the defense because it was referenced in the stipulated issues to be determined at trial. We agree with the Association and reverse on this issue.

Palm Beach Polo and Country Club Holdings, Inc. is identified as the “Declar-ant” in the Amended and Restated Bylaws of Palm Beach Polo and Country Club Property Owners’ Association, Inc., the bylaws of the POA. Article XI, Section 11.11 states in pertinent part:

11.11 Declarant’s Assessments.

[A]s long as Declarant (or any of its affiliates) is the Owner of any Residential Unit or Residential Property within the Properties, Declarant shall have the option, in its sole discretion, to (i) pay assessments on the Residential Units and Residential Property owned by it as provided herein, or (ii) not pay any assessments and in lieu thereof fund any resulting deficit in the Association’s operating expenses not produced by assessments receivable from Members other than Declarant.

The Owner made two arguments for exemption from the POA fees. First, he argued that he is the “Declarant” for purposes of POA assessments and, therefore, is not required to pay assessments if he agrees to fund any resulting deficit. Alternatively, he argued that if he is not the Declarant, he can still receive the Declar-ant’s benefits because those rights were assigned to him. The trial court relied on the second argument.

Article I, Paragraph 1.1(g) of the POA Bylaws states in pertinent part:

Declarant may assign all or any portion of its rights hereunder in toto or with respect to any specified portion of the Properties, in any such case by written assignment recorded in the Public Records of Palm Beach County, Florida.

(Emphasis in original). The Owner’s expert witness testified that Palm Beach Polo Holdings, Inc. assigned its rights to the Owner as the sole owner of the company. The Association objected to this testimony because assignment was not raised as an affirmative defense. The trial judge overruled the objection and allowed recross examination on what the court stated was “that one new issue that you have raised with respect to assignment.”

The Owner testified that the Declarant made an assignment of rights to the Owner. Although he did not have a copy of the written assignment, he remembered seeing one. The Owner’s attorney identified documents that reflected the assignment, but the Association’s attorney objected because they were not on the exhibit list. The documents were not admitted into evidence, but were used to refresh the Owner’s memory. The Owner testified that Palm Beach Polo Holdings, Inc. assigned its rights under Section 11.11 to him and his wife.

The Association’s expert witness testified that individual owners could not be successor declarants. The expert also testified that he did not see any recorded assignments evidencing an assignment from the POA to the Owner during his title search.

The trial court found that:

MUIR-VILLAS is not entitled to recover the funds it paid to the POA, which the POA claimed STRAUB owed for POA assessments. STRAUB is the Declarant by virtue of an assignment from Palm Beach Polo and Country Club Holdings, Inc. As the Declarant STRAUB exercised his option to fund any resulting deficit in the POA’s operating expenses in lieu of paying assessments.

We agree with the Association that the Owner neither pleaded assignment as an affirmative defense nor listed it as an issue for trial in the pre-trial stipulation.

The Owner’s third affirmative defense provided in pertinent part:

Specifically, the notice requirements of a board of directors meeting to consider assessments under § 720.303(2)(c)(2), Fla. Stat., was not met by Plaintiff and the subject Declaration upon which Plaintiff has sued and the Declaration of the Palm Beach Polo and Country Club Property Owners Association, Inc. exempts the Defendant Declarant from assessments.

The Joint Pre-Trial Stipulation provided that an issue for trial was: “Whether Defendant, Glenn F. Straub, is exempt from paying the Plaintiff, Muir-Villas, assessments because he is the ‘Declarant’ of Palm Beach Polo?” and “Whether Defendant, Glenn F. Straub, is exempt from paying Plaintiff, Muir-Villas, the portion of the assessments due by Plaintiff to the Master Property Owners Association because he is the “Declarant” of Palm Beach Polo?” Neither the affirmative defense nor the stipulation contained the word “assignment,” and even the trial court noted the “new issue.”

Rule 1.140(b)of the Florida Rules of Civil Procedure provides that:

Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required .... Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time.

“[A] pleading in response to a previous pleading must affirmatively set forth all affirmative defenses on which the pleader plans to rely. The objective of this requirement is to timely present and join the issues on which the parties will rely and to preserve issues for appellate review.” Coral Ridge Props., Inc. v. Playa Del Mar Ass’n, 505 So.2d 414, 417 (Fla.1987).

The Owner did not plead assignment as an affirmative defense, and the stipulation failed to assert assignment as an issue to be decided at trial. The trial court erred in considering assignment as a defense to the Association’s claim. See, e.g., Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla.1988); E.I. Du Pont De Nemours & Co. v. Desamllo Indus. Bioacuatico S.A., 857 So.2d 925 (Fla. 4th DCA 2003).

We therefore affirm the judgment against the owner, reverse on the cross-appeal, and remand to the trial court to correct the judgment.

Affirmed in part, reversed in part and remanded.

DAMOORGIAN, C.J., and FORST, J., concur.

      . In 1992 and 1993, the Declaration was again amended to reflect the agreement between the Association and the prior owner regarding an assessment discount for performing his own maintenance. Thus, as of 1993, all nine lots in Plat 5 were subject to assessments like every other lot within the Villas, but the owner of those lots was given a 50% discount. The 1992 and 1993 amendments refer to Plat 5 as containing nine lots.

      . We find no merit in the owner's next argument that he should be charged according to the re-plat because the Association approved the re-plat.

      . The Owner, although he is the owner of the "Declarant,” did not take title to the property in the name of the corporation. No corporate entities own any of the subject lots in the Villas. The property tax records reflect the Owner as the individual owner of lots one through eight, and he has a homestead exemption on lots one through six.

      . This issue was not tried by consent. United Am. Lien & Recovery Corp. v. Primicerio, 924 So.2d 848, 851 (Fla. 4th DCA 2006).


author: WARNER, J. LEVINE, J.,

text:
    FEI XU, Appellant, v. DEPARTMENT OF REVENUE, on behalf of NING ZHANG, Appellee.
    No. 4D12-2823.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Fei Xu, Brookings, South Dakota, pro se.
    Carrie R. McNair, Tallahassee, for ap-pellee.
   WARNER, J.

Appellant appeals an order denying his motion contesting the interception of his federal tax refund to offset retroactive child support. For the first time on appeal, appellee contends that appellant failed to exhaust his administrative remedies, thus requesting an affirmance based upon a “right for the wrong reason” analysis. We hold that the appellee waived the right to assert failure to exhaust administrative remedies. On the merits addressed by the trial court, we reverse.

In the final judgment of dissolution of marriage, appellant was ordered to pay $1,259.54 a month in child support and an additional $200 per month towards $20,536.20 in retroactive support. Although appellant remained current in his payments, he received a letter from the Office of Child Support Enforcement (“OCSE”) stating that his federal tax refund was subject to interception because of past-due support owed. The letter specifically stated,

You have a right to contest our determination that this amount of past due support is owed, and you may request an administrative review. To request an administrative review, you must contact us at the address or phone number listed above within 30 days of the date of this notice.

(emphasis supplied). Appellant filed motions in the trial court, challenging the letter and the subsequent interception of his federal income tax refund. In his motions, he alleged that he had called OCSE, which informed him that his case would not be submitted to the Department of Treasury, only to find out later that the case was submitted. In contesting the interception on the merits, appellant drew a distinction between retroactive support and past-due arrearages. The trial court denied relief. It did not rule that appellant had failed to exhaust administrative remedies. Instead, it ruled that the ar-rearages were required to be reported to the Department of Treasury.

Appellee asks us to dismiss this case for failure to exhaust administrative remedies. Florida Administrative Code Rule 12E-1.014(4)(e) states, “If the obligor does not ask for an informal review or administrative hearing within 30 days from the date of the notice, the obligor waives the right to contest the certification.” “[I]f adequate administrative remedies are available, it is improper to seek relief in court before those remedies are exhausted.” Fla. Dep’t of Revenue, Child Support Enforcement ex rel. Baker v. Baker, 24 So.3d 1254, 1257 (Fla. 1st DCA 2009) (holding that “appellee was required to pursue his administrative remedies under TRIP [Tax Refund Intercept Program] before challenging any interception of his IRS tax refund in court”). See also Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 792 So.2d 539, 545 (Fla. 4th DCA 2001).

On this record, however, it appears that appellant exhausted his remedies. He claims that he called the OCSE, as allowed by the letter which informed him of his right to review. The Department did not raise the exhaustion requirement at trial. The court ruled on the merits of the motion, not on exhaustion. Where the party asserts facts which would support exhaustion, and the Department does not challenge the exhaustion requirement in the trial court, the Department has waived any challenge on appeal. State, Dep’t of Lottery v. Gtech Corp., 816 So.2d 648, 651 (Fla. 1st DCA 2001) (where agency did not raise exhaustion of remedies in trial court, its failure to object waives the argument for appeal).

On the merits, we reverse, relying on Department of Revenue, Child Support Enforcement ex rel. Harper v. Cessford, 100 So.3d 1199, 1204 (Fla. 2d DCA 2012), which explained that “retroactive child support that is not otherwise overdue does not constitute a delinquency” and thus cannot serve as a basis for intercepting federal tax returns.

Reversed and remanded for further proceedings.

GROSS, J., concurs.

LEVINE, J., dissents with opinion.

LEVINE, J.,

dissenting.

I dissent for a number of reasons. First, in light of the limited record in this case, one cannot conclude what arguments the Department did or did not raise below. The parties filed appendices in lieu of the entire record. Appellant did not submit certain motions, any responses the Department may have filed below, or any transcripts from the hearings. The majority asserts that the Department contends for the first time on appeal that appellant failed to exhaust his administrative remedies. Because we do not have a complete record and have only appendices in lieu of the entire record, I believe we cannot say with certainty that this is the first time the Department argued this point. “In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error.” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980).

Second, appellant does not even argue on appeal that the Department waived its right to assert failure to exhaust administrative remedies. It is well-established that issues “will not be considered by an appellate court unless they are properly raised and discussed in the briefs.” City of Miami v. Steckloff, 111 So.2d 446, 447 (Fla.1959). Where “the appellant[] ha[s] not raised [an issue] in this court, the court itself should not sua sponte reverse the solemn decrees of the court below.” Scott v. Jenkins, 46 Fla. 518, 35 So. 101, 104 (1902). See also Lightsee v. First Nat’l Bank of Melbourne, 132 So.2d 776, 778 (Fla. 2d DCA 1961) (An appellate court is “not authorized to pass upon issues other than those properly presented on appeal.”); Gladstone v. Smith, 729 So.2d 1002, 1004 (Fla. 4th DCA 1999) (“A pro se litigant should not be held to a lesser standard than a reasonably competent attorney.”).

Third, appellant does not establish through evidence that he exhausted his administrative remedies before seeking relief in the trial court. Therefore, appellant waived the right to contest the interception of his federal tax refund. See Fla. Admin. Code R. 12E-1.014(4)(e); Dep’t of Revenue, Child Support Enforcement ex rel. Baker v. Baker, 24 So.3d 1254, 1257 (Fla. 1st DCA 2009). Although appellant alleged in one motion that he had called the Office of Child Support Enforcement, it is well-established that allegations in a motion are not evidence. See Britt v. State, 88 Fla. 482, 102 So. 761, 763 (1924) (“A motion is not evidence of the facts averred in it.”); Hayman v. Weil, 53 Fla. 127, 44 So. 176, 178 (1907) (“[T]his court has held many times that the recital, in a motion of any kind, of facts as a ground for the motion, is not evidence.”). “Facts are established by testimony, affidavits and stipulations.” Rosar-Hemandez v. Hernandez, 979 So.2d 1194, 1196 (Fla. 4th DCA 2008) (citation omitted).

The principal of exhaustion of administrative remedies is significant. As our sister court has explained:

We are well aware that the doctrine requiring the exhaustion of administrative remedies is not jurisdictional. The exhaustion requirement is a court-created prudential doctrine; it is a matter of policy, not of power. Its purpose is to assure that an agency responsible for implementing a statutory scheme has a full opportunity to reach a sensitive, mature, and considered decision upon a complete record appropriate to the issue. In this manner, the exhaustion requirement permits full development of the facts, allows the agency to employ its discretion and expertise, and helps preserve executive and administrative autonomy.
In certain situations, a party may pursue judicial relief without first exhausting administrative remedies. One such exception to the exhaustion doctrine exists where the agency is alleged to have acted without colorable statutory authority and in excess of its delegated powers. This narrow exception is inapplicable, and exhaustion of administrative remedies will be required, where the agency’s assertion of jurisdiction has apparent merit or depends upon some factual determination.

State, Dep’t of Revenue v. Brock, 576 So.2d 848, 850 (Fla. 1st DCA 1991) (citations omitted). In the present case, the Department did not “act[ ] without colorable statutory authority and in excess of its delegated powers,” as the law permits the Department to intercept tax refunds. See Fla. Admin. Code R. 12E-1.014.

Of course, had appellant established through evidence that he exhausted his administrative remedies, I would agree with the majority that this case would be like Department of Revenue, Child Support Enforcement ex rel. Harper v. Cessford, 100 So.3d 1199, 1204 (Fla. 2d DCA 2012). Because appellant failed to establish that he exhausted his administrative remedies, I would affirm the order of the trial court.

      . Additionally, even accepting the facts alleged in appellant’s motion as true, appellant has not established that he timely exhausted his administrative remedies. Appellant was advised in a September 13, 2011 letter that he had thirty days to contact the Office of Child Support Enforcement. In his motion filed to contest the agency's actions, appellant alleged that the trial court entered an order on October 5, 2011 and that "[l]ater the Petitioner called the office of child support enforcement.” (emphasis added). We do not know how many days “later” appellant called and even if the call was placed within the thirty-day timeframe. See Fla. Admin. Code R. 12E-1.014(4)(e).


text:
    Natalie O’LOUGHLIN, individually and as parent, natural guardian and next friend of J.O., a minor, Appellants, v. UNITED STATES TENNIS ASSOCIATION INCORPORATED, a New York corporation; Usta Player Development Incorporated, a New York corporation; and Satoshi Ochi, individually, Appellees.
    No. 4D12-4313.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Steven J. Rothman of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellants.
    Laura E. Bedard and Benjamin L. Be-dard of Roberts, Reynolds, Bedard & Tuz-zio, PLLC, West Palm Beach, for appel-lees.
   PER CURIAM.

Affirmed. See Global Travel Mktg., Inc. v. Shea, 908 So.2d 392 (Fla.2005); Krathen v. Sch. Bd. of Monroe Cnty., 972 So.2d 887 (Fla. 3d DCA 2007).

WARNER, CONNER, JJ., and LEVENSON, JEFFREY R., Associate Judge, concur.


author: CONNER, J.

text:
    Werner HELDENMUTH, Appellant, v. Paul GROLL, Bruce J. Smoler, and Smoler, Lerman & Whitebrook, P.A. f/k/a Smoler, Lerman, Bente & Whitebrook, P.A., Appellees.
    No. 4D12-541.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Louis Arslanian, Plantation, for appellant.
    Bruce J. Smoler of Smoler & Associates, P.A., Hollywood, for appellees.
   CONNER, J.

A claimant harmed by a breach of an escrow agreement can pursue damages against an escrow agent for breach of contract, but damages for civil theft require more than proof of noncompliance with the escrow agreement. In the context of escrow agreements, damages for civil theft require allegations of knowing and intentional wrongful conduct. In this appeal, we address whether the trial court properly dismissed the counts alleging conversion and civil theft with prejudice, pretrial. After examining the four corners of the amended complaint, we affirm, without discussion, the dismissal of the conversion count; we reverse the dismissal of the civil theft count.

Appellant, Werner Heldenmuth (“Hel-denmuth”), filed an amended complaint against Appellees, Paul Groll, Bruce Smo-ler, and Smoler, Lerman & Whitebrook, P.A. (collectively, “the Defendants”), alleging conversion and civil theft of escrow funds he delivered for the purchase of real property by Heldenmuth and Groll as partners. The conversion count alleged that the majority of the escrow funds ($522,305.86) was used to purchase the real property that was the purpose for the escrow. It further alleged a conversion of the escrow funds occurred when title to the real property was put in the name of one partner instead of both partners. The civil theft count alleged that $27,694.14 of the escrow fund was used for purposes that had nothing to do with the escrow agreement. As to both counts, the amended complaint alleged that the Defendants knowingly and intentionally disbursed the escrow funds for purposes other than intended by the escrow agreement.

The Defendants moved to dismiss the amended complaint. As to Smoler, individually, and Smoler, Lerman & White-brook, P.A. (“the Firm”), the trial court granted the motion and entered a final judgment dismissing the amended complaint with prejudice.

“A motion to dismiss tests whether the plaintiff has stated a cause of action.... When determining the merits of a motion to dismiss, the trial court’s consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party.” Bell v. Indian River Mem’l Hosp., 778 So.2d 1030, 1032 (Fla. 4th DCA 2001). Because a ruling on such a motion is a pure issue of law, we review it de novo. Id.

Civil Theft

“To establish a claim for civil theft, a party must prove that a conversion has taken place and that the accused party acted with criminal intent.” Gasparini v. Pordomingo, 972 So.2d 1053, 1056 (Fla. 3d DCA 2008); see also Gersh v. Cofman, 769 So.2d 407, 408 (Fla. 4th DCA 2000). If there was no factual basis to support a claim for conversion, there can be no cause of action for civil theft. Gasparini, 972 So.2d at 1056.

As is the case with conversion, the existence of a contractual relationship does not conclusively establish the absence of a civil theft; however, the civil theft “must go beyond, and be independent from, a failure to comply with the terms of a contract.” Id. at 1055. In Masvidal v. Ochoa, 505 So.2d 555 (Fla. 3d DCA 1987), the court confronted a situation in which “[t]he evidence show[ed] a classic embezzlement by the defendant of an escrow fund set up under the subscription agreement between the parties.” Id. at 555. There, the defendant lawfully obtained possession of the plaintiffs funds to set up the escrow fund and thereafter converted the funds for his own use. The court concluded the actions of the defendant constituted a civil theft and a conversion as well as a breach of contract. Id.

Here, paragraph 24, 25, and 26 of the amended complaint alleged:

24. Within the meaning of Section 812.014 [Florida Statutes], Defendants knowing obtained or used or endeavored to obtain or use the sum of $27,694.14, the property of Plaintiff which sum represents the balance remaining from the $550,000.00 delivered by Plaintiff to P.A. [the Firm] solely to purchase the subject property and which sum of money was not used or needed for the purchase of the subject property, with felonious intent to either temporarily or permanently deprive Plaintiff of his right to or benefit to the said $27,694.14, or to appropriate the said $27,694.14 for their own benefit or persons not entitled to use said funds belonging to Plaintiff. 25. Unbeknownst to Plaintiff, Defendants took the following actions with respect to the said $27,694.14: a) Smoler held the funds until July, 2006 [three months after the closing on property which was the object of the escrow funds]; b) in July, 2006, a portion of the said funds was used by Groll to purchase other real property; and c) Smoler paid P.A. a portion of the funds.
27. None of the Defendants had any lawful right to retain, attempt to retain, endeavor to use or use the said $27,694.14.

We are satisfied that the amended complaint stated a cause of action for civil theft based on the allegation that Groll and Smoler used some of the escrow funds for their own use.

Reversed and Remanded.

DAMOORGIAN, C.J., and WARNER, J., concur.

      . There are no issues on appeal regarding the trial court rulings as to Groll.

      . Case law does not seem to make a clear delineation between conversion and civil theft. It appears conversion is a common law tort and civil theft is a tort that draws support from statutes. Civil theft frequently allows for treble damages, O’Donnell v. Arcoiries, Inc., 561 So.2d 344, 345 (Fla. 4th DCA 1990), § 772.11, Fla. Stat. (2011), whereas conversion does not. We assume Heldenmuth pursued damages for conversion as to the full amount of the escrow funds because the majority of the funds were used to purchase real property, which was partially the intent of the escrow. As to the $27,694.14 of the escrow funds, Heldenmuth pursued damages for civil theft because those funds were used for a purpose that had nothing to do with the intended purpose of the escrow.


text:
    Hector FIGUEROA, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-2126.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2013.
    Hector Figueroa, Perry, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant Hector Figueroa appeals the summary denial of his original pro se motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant ■ was convicted of first degree murder. We affirmed that conviction on direct appeal. Figueroa v. State, 975 So.2d 1150 (Fla. 4th DCA 2008). In 2009, Appellant timely filed his original motion, raising four grounds for relief. Before the trial court ruled on this motion, Appellant filed a written motion for leave to amend the motion, which was granted by the trial court. In that same year, Appellant filed an amended motion for post-conviction relief raising six new claims. Based on the state’s response, which did not address the amended motion, the trial court summarily denied post-conviction relief as to the original motion without addressing Appellant’s amended motion. This was error.

When an amendment to a timely filed motion for post-conviction relief is itself filed within the two-year period, the trial court is obligated to consider the amendment on the merits. Fla. R. Crim. P. 3.850(b). See Hyacinthe v. State, 940 So.2d 1280, 1281 (Fla. 4th DCA 2006); Prince v. State, 75 So.3d 349 (Fla. 1st DCA 2011). The trial court failed to do so. Accordingly, we reverse the trial court’s order on rehearing denying Appellant’s post-conviction relief motion, remand for consideration of Appellant’s amended motion and for further proceedings consistent therein. Prince, 75 So.3d at 349.

Reversed and Remanded with directions.

DAMOORGIAN, C.J., WARNER and LEVINE, JJ., concur.

      . Inasmuch as appellant agrees the original motion for post-conviction relief he filed on April 13, 2009 was properly denied, we affirm that aspect of the trial court's order on rehearing.