author: GERBER, J.

text:
    Thomas BLUTH, Appellant, v. Robert K. BLAKE, Jr., an individual, Blake Development Corporation, a Florida corporation, James F. Ellis, an individual, and Ellis Diversified, Inc., a foreign corporation, Appellees.
    No. 4D12-466.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.
    Rehearing Denied Jan. 9, 2014

      Paul C. Huck, Jr. of Hunton & Williams LLP, Miami, for appellant.
    David M. Gersten, Michael N. Kreitzer, and Jose M. Ferrer of Bilzin Sumberg Baena Price & Axelrod LLP, Miami, for appellees Robert Blake Jr., and Blake Development Corporation.
    Jane Kreusler-Walsh and Rebecca Merrier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Jeffrey T. Foreman and Ryan C. Zagare of Kenny Nachwalter, P.A., Miami, for appel-lees James F. Ellis and Ellis Diversified.
   GERBER, J.

The appellant, an attorney who was sued in the trial court for legal malpractice, appeals the trial court’s order granting a motion for additur and subsequent motion for new trial on damages in favor of appel-lees Robert K. Blake, Jr. and Blake Development Corporation (“the developers”). The attorney argues that the trial court erred as a matter of law in granting the additur and, therefore, erred as a matter of law in granting the new trial. We agree with the attorney and reverse.

According to the developers’ suit, the attorney jointly represented the developers and investors James F. Ellis and Ellis Diversified, Inc. (“the investors”) on a real estate project. The investors were to provide capital for the project, and the developers were to build the project. However, the investors and the developers never agreed to a written contract.

Eventually, the developers and the investors ended up in a dispute over money. In the dispute, the attorney represented the investors.

The developers sued the investors for breach of contract and unjust enrichment, and sued the attorney for legal malpractice. The suit against the attorney alleged that the attorney negligently failed to disclose to the developers that he had a conflict of interest, and negligently failed to obtain the developers’ consent to waive the conflict.

The suit went to a jury trial. On the breach of contract and unjust enrichment claims against the investors, the jury found for the developers and determined the amount of the developers’ damages on each count.

On the legal malpractice claim against the attorney, the jury was asked: “Was there an attorney-client relationship between [the developers], on the one hand, and [the attorney], on the other hand, and, if so, was [the attorney] negligent in his representation of [the developers] resulting in damage to either or both of them?” The jury answered: “Yes.” The jury then was asked: “[P]lease state the amount of damage which you find [the developers] suffered as a result of [the attorney’s] legal malpractice.” The jury answered: “[Zero].”

After the trial, the developers moved for an additur to the jury’s zero damages verdict against the attorney. According to the developers, the jury’s verdict was inadequate and failed to comport with the manifest weight of the evidence in light of the jury’s finding that the attorney’s negligence resulted in damage to the developers. The developers requested that the court add at least nominal damages against the attorney.

The trial court entered an order granting the developers’ motion for additur in the sum of ten dollars. In the order, the trial court reasoned:

The jury by its verdict determined that, while [the developers] proved that [the attorney] was negligent[,] causing damage to them, [the developers] failed to prove their actual damages. [The developers] failed to offer damage evidence specifically resulting from [the attorney’s] alleged negligence, and [the developers] did not make any damage argument during their closing related to their claims against [the attorney].
[The developers’] motion for additur argues that a nominal damage award is appropriate ....
An award of nominal damages is appropriate when a legal wrong has been proven, but the aggrieved party has suffered no damages or where the recoverable damages are not proven. Stevens v. Cricket[] Club Condominium, Inc., 784 So.2d 517 (Fla. 3d DCA 2001); Mu-roff v. Dill, 386 So.2d 1281 (Fla. 4th DCA 1980).

After entry of the order granting the motion for additur, the developers filed a motion for new trial on the issue of damages against the attorney. The developers argued that they objected to the amount of the additur and, therefore, they were entitled to a new trial on damages against the attorney pursuant to section 768.74(4), Florida Statutes (2011). Section 768.74(4) states:

If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.

§ 768.74(4), Fla. Stat. (2011). See also Waste Mgmt., Inc. v. Mora, 940 So.2d 1105, 1109 (Fla.2006) (plaintiffs who received a jury award for inadequate damages and who objected to additur imposed by trial judge were “party adversely affected” and, thus, were entitled to a new trial on damages).

The trial court granted the motion for new trial. The attorney then filed this appeal. The attorney argues that no legal basis existed for the additur and, therefore, no legal basis existed for the new trial.

We agree with the attorney’s argument. We initially examine our standard of review before turning to our reasoning.

Ordinarily, we review an order granting a motion for additur or an order granting a motion for new trial for an abuse of discretion. See, e.g., Street v. H.R. Mortg. & Realty Co., 949 So.2d 1158, 1161 (Fla. 4th DCA 2007) (“A trial court’s determination regarding additur may be reversed on appeal only where there is a clear abuse of discretion.”) (citation and quotations omitted); Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999) (“When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion.”).

However, to the extent the trial court’s orders were based on conclusions of law, we apply de novo review. Cf. Van v. Schmidt, 122 So.3d 243, 246 (Fla.2013) (“[A]n appellate court properly applies a de novo standard of review to a trial court’s conclusions of law in an order granting a new trial based on the manifest weight of the evidence, giving no deference to the trial court’s legal conclusions.”).

Applying the foregoing standards of review to the trial court’s findings of fact and conclusions of law, we conclude that the trial court erred in granting the developers’ motion for additur. The court correctly found that the developers failed to offer evidence of damages specifically resulting from the attorney’s alleged negligence, and that the developers did not make any argument as to damages during their closing argument related to their claims against the attorney. However, despite those findings of fact, the court nevertheless concluded as a matter of law that an award of nominal damages was appropriate as an additur. This conclusion of law was error in four respects.

First, neither the developers’ motion for additur, nor the court’s order granting the additur, nor the record, indicates the existence of any of the criteria set forth in section 768.74(5), Florida Statutes (2011), which would have justified granting any additur. Section 768.74(5) states:

In determining whether an award is excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the evidence in reaching a verdict or misconceived the merits of the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation and conjecture;
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered; and
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

§ 768.74(5), Fla. Stat. (2011) (emphasis added). See also Adams v. Wright, 403 So.2d 391, 395 (Fla.1981) (“[T]he order for a new trial is deficient because it does not contain reference to the record in support of its conclusion that additur of the jury award is necessary to cure the inadequacy of the verdict .... We, therefore, have made an independent review of the record in search of support of that conclusion, and we find none.”); Adams v. Saavedra, 65 So.3d 1185, 1189 (Fla. 4th DCA 2011) (reversing remittitur order where the order merely mimicked the statutory factors and did not provide record support for the remittitur).

Second, the jury could have reached its verdict in a manner consistent with the evidence without justifying any additur. As the trial court observed in its order, the developers failed to offer evidence of damages specifically resulting from the attorney’s alleged negligence, and the developers did not make any argument as to damages during their closing argument related to their claims against the attorney. Thus, the developers failed to prove that they were entitled to any damages. See Smith v. Fla. Healthy Kids Corp., 27 So.3d 692, 694 (Fla. 4th DCA 2010) (“It is not necessary to grant a new trial in all cases where the jury returns a zero verdict. In fact, where conflicting evidence exists concerning damages and reasonable [persons] could believe that the plaintiff sustained no damages, a zero verdict will be upheld.”) (citation and quotations omitted); Ortlieb v. Butts, 849 So.2d 1165, 1167 (Fla. 4th DCA 2003) (“[W]here the evidence is conflicting and the jury could have reached its verdict in a manner consistent with the evidence, it is error for the trial court to veto the jury verdict by granting a motion for additur.”) (citation omitted).

Third, we question whether nominal damages are recoverable on a legal malpractice claim given that the claim does not accrue until redressable harm occurs. See Coble v. Aronson, 647 So.2d 968, 970 (Fla. 4th DCA 1994) (“The test for determining when a cause of action for attorney malpractice has accrued is whether the existence of redressable harm has been established.”) (emphasis added; citation omitted). The cases upon which the trial court relied for the proposition that nominal damages are appropriate when a legal wrong has been proven are inapplicable because they involved claims which allow for nominal damages. See Stevens, 784 So.2d at 519 (allowing nominal damages to be awarded for a breach of fiduciary duty claim); Muroff, 386 So.2d at 1284 (“Nominal damages may be awarded when the breach of an agreement or invasion of a right is established, since the law infers some damage to the injured party ....”) (citation and quotations omitted).

Fourth, even if nominal damages were available for a legal malpractice claim, the developers waived entitlement to nominal damages because they did not request a jury instruction regarding nominal damages or request nominal damages during their closing argument. See H & U Foods, Inc. v. Ellison, 439 So.2d 923, 924 (Fla. 4th DCA 1983) (“The primary reason for granting a new trial, as set out in the court’s order, was the jury’s failure to award at least some damages even if nominal. We reject this reason.... In closing argument, plaintiffs counsel sought only actual damages .... Further, the jury was not instructed on nominal damages ....”) (emphasis omitted).

In their answer brief, the developers argue that the attorney should be held liable for the amount of the jury’s verdict on the breach of contract claims against the investors, because the attorney’s negligence allegedly was responsible for the court’s later entry of a directed verdict in favor of the investors on those claims. However, the developers did not present this measure of damages against the attorney during the trial. Thus, the developers are not entitled to a “second bite at the apple” via a motion for additur or new trial. Cf. Morgan Stanley & Co. v. Coleman (Parent) Holdings, Inc., 955 So.2d 1124,1131 (Fla. 4th DCA 2007) (“[A] plaintiff is not entitled to a second ‘bite at the apple’ when there has been no proof at trial concerning the correct measure of damages.”) (citation omitted).

Because the court erred in finding that nominal damages were appropriate as an additur, no legal basis existed for the developers to seek a new trial pursuant to section 768.74(4) as the “party adversely affected” by the additur.

Based on the foregoing, we reverse the trial court’s orders granting the developers’ motion for additur and the developers’ motion for new trial. We remand with directions to the trial court to reinstate the jury verdict on the developers’ claim against the attorney and to enter final judgment accordingly.

Reversed and remanded with directions.

DAMOORGIAN, C.J., and MAY, J., concur.

      . The trial court later entered an order granting the investors' motion for directed verdict on the breach of contract claims, thus reducing the amount of the developers’ judgment against the investors to the amount of the jury's verdict on the unjust enrichment claim. That order is the subject of a separate appeal in case no. 4D12-472.


source: Caselaw Access Project

author: SLEET, Judge.

license: Public Domain

text:
    Dwight K. JOSEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2806.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2013.

      Ronald J. Filipkowski, Sarasota, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

Dwight K. Josey appeals his sentences imposed during a resentencing hearing following a successful motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Josey raises several issues on appeal. We write only to address his argument that the court wrongfully revoked his youthful offender designation upon resentencing; we affirm his remaining issues without comment.

On- August 30, 1999, Josey pleaded guilty to charges of grand theft auto (count I), attempted robbery (count II), robbery with a firearm (count III), carjacking with a firearm (count IV), and fleeing to elude (count V). The trial court sentenced him as a youthful offender to three years’ prison followed by two years’ probation on counts I, II, and V and to three years’ prison followed by three years’ probation on counts III and IV, with all sentences to run concurrently. After Josey stipulated to violating his probation, he was resen-tenced to twenty years’ prison on all counts.

In 2011, Josey filed a rule 3.800(a) motion challenging his twenty-year sentences as violative of the six-year limitation applicable to youthful offender sentences under section 958.04, Florida Statutes (1997).

The postconviction court found that the twenty-year prison terms imposed on counts I and V, third-degree felonies, were illegal and granted a resentencing hearing. The court resentenced Josey to five-year prison terms on counts I and V, a fifteen-year term on count II, and twenty-year terms on counts III and IV, with all sentences to run concurrently. The sentences did not designate Josey as a youthful offender.

Although the sentencing court was not limited by the six-year cap of section 958.04 because Josey committed a substantive violation of probation, the court was required to continue Josey’s youthful offender status on resentencing. Mistretta v. State, 99 So.3d 561, 562 (Fla. 2d DCA 2012); Yegge v. State, 88 So.3d 1058, 1059-60 (Fla. 2d DCA 2012). Accordingly, we reverse the trial court’s order and remand only for amendment of Josey’s sentences to reflect his youthful offender classification.

Affirmed in part; reversed in part; and remanded with instructions.

KELLY and CRENSHAW, JJ., Concur.


author: PER CURIAM.

text:
    Vance Jerome FARMER, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-2294.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.

      Vance Jerome Farmer, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits. Petitioner argues that appellate counsel should have argued that the trial court erred in allowing a projector screen to be placed between the defendant and the four-year-old child abuse victim during the child’s testimony at trial. See Coy v. Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); McLaughlin v. State, 79 So.3d 226, 228-29 (Fla. 4th DCA 2012); Oliver v. State, 125 So.3d 244 (Fla. 4th DCA 2013), rev. granted, 122 So.3d 869 (Fla.2013); Overholt v. State, 110 So.3d 530, 531 (Fla. 4th DCA 2013), rev. granted, 122 So.3d 869 (Fla.2013).

Petitioner acknowledges that no objection to the use of the screen was lodged at trial and trial counsel had agreed to the use of the screen. The issue was not preserved for appeal and was waived by trial counsel. Accordingly, appellate counsel was not ineffective in failing to raise this unpreserved issue. See Downs v. Moore, 801 So.2d 906, 910 (Fla.2001).

We acknowledge that footnote two of Oliver contains dicta suggesting that the use of a screen in this manner is fundamental error. In Oliver, trial counsel objected to the use of the screen but did not raise the specific argument that the screen was “inherently prejudicial.” Notwithstanding the reference to fundamental error, the objection in Oliver was sufficient to preserve the issue. 125 So.3d at 246 n. 2 (citing Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994), where the confrontation clause objection was also found sufficient to preserve a similar issue).

Here, defense counsel agreed to the use of the screen. Petitioner cites no controlling authority holding that shielding the child victim in this manner constitutes fundamental error that cannot be waived. In all the reported cases, an objection was lodged to the use of the screen. The failure to object in this case waived the issue.

Involving a “denial of face-to-face confrontation,” Coy recognized that a confrontational clause violation is subject to harmless error analysis. 487 U.S. at 1021, 108 S.Ct. 2798. A fundamental error cannot be harmless. Reed v. State, 837 So.2d 366, 369-70 (Fla.2002). Coy ⅛ recognition that use of a witness screen is subject to harmless error analysis establishes that the practice is not so prejudicial that it categorically amounts to fundamental error depriving a defendant of a fair trial. Stated another way, the negative inferences that the jury might draw from the use of a screen is not necessarily so prejudicial that it “ ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Rogers v. State, 783 So.2d 980, 1002 (Fla.2001) (quoting Urbin v. State, 714 So.2d 411, 418 n. 8 (Fla.1998)). The holding of McLaughlin is that the practice is “inherently prejudicial” and can be reversible where a defendant objects and elects for the statutory closed circuit video procedure. Where a defendant acquiesces to the use of a screen, the issue is waived. Appellate counsel was not ineffective in failing to raise this unpreserved issue.

Petition for ineffective assistance of counsel is denied.

STEVENSON, GROSS and GERBER, JJ., concur.

      . The boy was three years old at the time of the offense and suffered a broken collarbone, broken arm, and serious bruising.

      . Counsel may have had tactical reasons for agreeing to the use of the screen as opposed to having the child testify via closed circuit television as permitted by section 92.54, Florida Statutes (2008). Testimony from other witnesses showed that the victim was terrified of the defendant. A display of this fear in the courtroom would have been extremely prejudicial. Nonetheless, having the child in the courtroom may have impressed upon him the sanctity and seriousness of the proceeding. Here, the victim faced the jury. Adverse inferences, like those suggested in McLaughlin, could similarly be drawn from allowing the victim to testify from a remote location via closed circuit television. Indeed, the inference that the child needed to be protected from the defendant might be greater if the jury was given the impression that the child could not even be in the same courtroom as the defendant.


text:
    SHEAR ENTERPRISES, LLC, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 2D12-5421.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2013.
    Courtney L. Fish of Englander Fischer, for Appellant.
    Amanda L. Neff, Esq, for Appellee.
   SLEET, Judge.

Shear Enterprises, LLC (Shear), appeals the Reemployment Assistance Appeals Commission’s (RAAC) order affirming the appeals referee’s decision finding David Casey was qualified for receipt of unemployment benefits. Because the RAAC’s order does not specifically address Shear’s alleged newly discovered evidence, we reverse and remand.

After the appeal’s referee entered its decision in this matter, Shear appealed to the RAAC. In its request for an appeal, Shear indicated that it recently discovered text messages between Casey and an employee at Shear that demonstrated that Casey had in fact voluntarily quit and was not fired as he claimed. Although the RAAC heard the appeal, its order affirming the appeals referee’s decision does not indicate that it considered the alleged newly discovered evidence. Although the decision to accept newly discovered evidence is within the RAAC’s discretion, Shear is entitled to a decision on its request as well as the right to challenge the decision if it believes the decision was erroneous. See Silvia v. Cumberland Farms, Inc., 588 So.2d 1069, 1071 (Fla. 4th DCA 1991); see also City of Boynton Beach v. State, Unemployment Appeals Comm’n, 922 So.2d 1099, 1101 (Fla. 4th DCA 2006) (reversing and remanding for the commission to consider the employer’s newly discovered evidence and to provide it a ruling).

Accordingly, we reverse the RAAC’s order affirming the appeals referee’s decision and remand for the RAAC to consider Shear’s alleged newly discovered evidence and to provide it a ruling on the evidence.

Reversed and remanded.

KELLY and MORRIS, JJ., Concur.


text:
    Sylvera MATHURIN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D13-411, 4D13-413, 4D13-414.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals the revocation of probation and consequent sentence. The State concedes “the trial court mistakenly-failed to resentence Appellant as a youthful offender, even though Appellant had initially been sentenced as a youthful offender on all three of his cases.” As noted by the State, it is well settled in this court that “[o]nee a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control.” Blacker v. State, 49 So.3d 785, 788 (Fla. 4th DCA 2010); see also St. Cyr v. State, 106 So.3d 487, 489 (Fla. 4th DCA 2013); Knite v. State, 102 So.3d 691, 695 (Fla. 4th DCA 2012); Rogers v. State, 972 So.2d 1017, 1019 (Fla. 4th DCA 2008).

Accordingly, we remand for the trial court to correct the sentencing error by imposing a youthful offender sentence.

TAYLOR, MAY and FORST, JJ., concur.


author: SUAREZ, J.

text:
    Reynaldo GOYOS, etc., Fraternal Order of Police, Walter Headley, Jr., Miami Lodge 20, Inc., a Florida corporation, Appellants, v. CITY OF MIAMI, a Florida municipality, Appellee.
    No. 3D13-1223.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 2013.
    Buschel Gibbons and Robert C. Buschel and Eugene G. Gibbons (Fort Lauderdale), for appellants.
    Julio O. Bru, City Attorney, Henry J. Hunnefeld and John A. Greco, Assistant City Attorneys, for appellee.
    Before WELLS, SUAREZ and LAGOA, JJ.
   SUAREZ, J.

Affirmed. See Molina v. City of Miami, 837 So.2d 462 (Fla. 3d DCA 2002).


text:
    Anthony Lamar SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5559.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2013.
    Anthony Lamar Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Clarence GLENN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5565.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2013.
    Clarence Glenn, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(d)(5).

WOLF, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Mark McDONALD, Appellant, v. PREMIER COMMUNITY BANK OF THE EMERALD COAST, Appellee.
    No. 1D13-437.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2013.
    Todd M. Ladouceur and Jonathan B. Minchin of Galloway, Johnson, Tompkins, Burr & Smith, P.L.C., Pensacola, for Appellant.
    Richard P. Petermann and Jeffrey L. Burns of Anchors Smith Grimsley, P.L., Fort Walton Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Langley v. Fed. Deposit Ins. Co., 484 U.S. 86, 108 S.Ct. 396, 98 L.Ed.2d 340 (1987); Sunchase Apartments v. Sunbelt Serv. Corp., 596 So.2d 119 (Fla. 1st DCA 1992).

WOLF, ROBERTS, and MAKAR, JJ., concur.


text:
    Dale DANIELS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3799.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2013.
    Dale Daniels, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

WOLF, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Eric Eugene BALCOM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-3945.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2013.
    Eric Eugene Balcom, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

WOLF, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Talris T. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5289.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2013.
    Talris T. Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

WOLF, VAN NORTWICK, and CLARK, JJ., concur.


author: NORTHCUTT, Judge.

text:
    K.D.T., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1565.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2013.

      Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

The State petitioned to have K.D.T. declared delinquent for being a minor in possession of a firearm, § 790.22(3), (5)(a) Fla. Stat. (2011); and for possession of a firearm with the serial number removed, § 790.27(2)(a). The circuit court found that K.D.T. committed both crimes, withheld adjudication of delinquency, and placed K.D.T. on twelve months’ probation. We affirm the determination that K.D.T. was delinquent based on the minor in possession of a firearm charge. But we reverse as to the removed serial number charge because the State did not present evidence sufficient to prove that crime.

Two Hillsborough County Sheriffs deputies smelled the odor of burning marijuana wafting from a parked car. They removed the four occupants from the vehicle and searched it. K.D.T. had been sitting in the front passenger-side seat, in close proximity to an unlocked glove compartment in which the deputies found a handgun. K.D.T. made spontaneous statements incriminating himself as the possessor of the gun. See G.G. v. State, 84 So.3d 1162 (Fla. 2d DCA 2012) (noting that proximity plus a defendant’s admission that the contraband was his could be sufficient to prove constructive possession). Thus we affirm the court’s finding that K.D.T. was a minor in possession of a firearm.

But the State’s evidence concerning the gun’s missing serial number was not sufficient to prove the elements of that crime. Section 790.27(2)(a) makes it unlawful for “any person to knowingly sell, deliver, or possess any firearm on which the manufacturer’s or importer’s serial number has been unlawfully altered or removed.” On the type of gun at issue here, the serial number is not engraved directly on the weapon. Rather, it is etched on a separate plate that is attached to the weapon. According to the evidence below, the plate was missing from the particular gun that Z.D.T. possessed.

At the adjudicatory hearing, K.D.T. moved to dismiss this charge, pointing out that the State presented no evidence that he was familiar with guns, or that he knew the serial number for the gun was on a plate and that the plate had been removed. He noted that the standard jury instruction for the crime required a finding that the defendant “knew the serial number had been altered or removed.” See Fla. Std. Jury Instr. (Crim.) 10.18. But the court decided that the jury instruction did not require “actual knowledge.” It analogized this possession charge to one of marijuana possession and determined that the State needed only to prove that K.D.T. knew he possessed the gun, not that he knew the serial number had been altered or removed.

We disagree. We have found only one case specifically interpreting section 790.27(2). In that case, the Fifth District, when reviewing whether the evidence was sufficient to show that a crime had been committed, stated that “[ajlthough there was no direct evidence that Appellant knew the serial number was altered, viewing the evidence in the light most favorable to the State, a fair inference arises that Appellant knew the revolver’s señal number was altered.” B.L.S. v. State, 14 So.3d 1087, 1089 (Fla. 5th DCA 2009) (emphasis supplied).

Moreover, drug possession offenses are not analogous to this crime. Our legislature amended the drug possession statutes to provide that knowledge of the illicit nature of the controlled substance is not an element of the possession crime, but is an affirmative defense to that crime. See § 893.101, Fla. Stat. (2011); Fla. Std. Jury Instr. (Crim.) 25.7. In contrast, section 790.27(2) requires knowing possession and the standard jury instruction recites that the defendant must know the serial number has been altered or removed. See § 790.27(2); Fla. Std. Jury Instr. (Crim.) 10.18. The more apt analogy is to the crime of possessing a vehicle “with knowledge” that the motor vehicle identification number “has been destroyed, removed, covered, altered, or defaced,” § 319.33(l)(d), Fla. Stat. (2011). The Fourth District has held that possession of a vehicle, without more, did not prove the guilty knowledge necessary to support a conviction. Jackson v. State, 736 So.2d 77, 85 (Fla. 4th DCA 1999). Jackson suggested that an additional fact, such as the defendant’s fingerprints appearing in the area of the altered VIN, might have been sufficient to show the requisite knowledge that the number had been tampered with.

Finally, the standard jury instruction and the B.L.S. and Jackson cases are consistent with the statutory directive that when the language of any provision in the criminal code is susceptible of differing constructions, “it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (2012). The circuit court’s interpretation of section 790.27(2)(a) in this case was inconsistent with that statutory rule of construction.

Here, the State did not present any evidence other than that the serial number plate was missing. Without additional evidence such as an admission, or that it was obvious to an observer that the plate had been removed, KD.T.’s mere possession of the weapon was insufficient to prove the knowledge element of the section 790.27(2) crime. We reverse the court’s finding that K.D.T. committed this crime and remand for the court to enter a judgment of dismissal on that charge.

Affirmed in part, reversed in part, and remanded with directions.

SILBERMAN and LaROSE, JJ., Concur.


author: MORRIS, Judge.

text:
    Scott ROHLEDER, Petitioner, v. James P. WIBERG and Charles Posternack, Respondents.
    No. 2D13-2923.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 2013.
    Scott J. Rohleder, pro se.
    Roberta Kohn of The Law Offices of Roberta Kohn, P.A., Wesley Chapel, for Respondents.
   MORRIS, Judge.

Scott Rohleder seeks certiorari review of an order abating his Hillsborough County action for defamation against Charles Posternack and James P. Wiberg. The order abates the Hillsborough County action until Rohleder pays Posternack $3037.48 in costs incurred by Posternack in a prior action filed and dismissed by Rohleder in Palm Beach County. We grant Rohleder’s petition for writ of certio-rari for the reasons expressed below.

Rohleder first filed an action against Posternack and Wiberg in Palm Beach County in July 2010, but Rohleder voluntarily dismissed that action in November 2010. Rohleder then filed a similar action against Posternack and Wiberg in Hills-borough County in July 2012. In the second action in Hillsborough County, Poster-nack filed a motion for the amount of costs he incurred in the first action prior to Rohleder’s voluntary dismissal and to abate the second action until Rohleder paid such costs to Posternack. The circuit court granted the motion to abate until such time as Rohleder pays Posternack $3037.48 in costs or an alternative amount of costs to be determined by the Palm Beach County court.

In his petition for writ of certiorari, Rohleder claims that the circuit court departed from the essential requirements of the law in abating the second action and in ordering him to pay costs incurred in the first action because only the Palm Beach County court had the authority to make such an award of costs pursuant to Florida Rule of Civil Procedure 1.420(d). He claims that he will suffer irreparable harm because he cannot proceed in the action below and that there will be no final judgment to appeal.

Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs. When one or more other claims remain pending following dismissal of any claim under this rule, taxable costs attributable solely to the dismissed claim may be assessed and judgment for costs in that claim entered in the action, but only when all claims are resolved at the trial court level as to the party seeking taxation of costs. If a party who has once dismissed a claim in any court of this state commences an action based upon or including the same claim against the same adverse party, the court shall make such order for the payment of costs of the claim previously dismissed as it may deem proper and shall stay the proceedings in the action until the party seeking affirmative relief has complied with the order.

This court must consider whether the order “departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). Several cases hold that where the plaintiffs first action was dismissed and refiled again, rule 1.420(d) provides that only the first court has the authority to assess costs incurred by the defendant in the first case. See, e.g., Field v. Nelson, 380 So.2d 547, 547-48 (Fla. 2d DCA 1980); Winford Lindsay & Assocs. v. Cook, 637 So.2d 72, 73 (Fla. 5th DCA 1994); Round-tree v. Hartford Accident & Indem., 327 So.2d 882, 882-83 (Fla. 3d DCA 1976). In Winford Lindsay, 637 So.2d 72, and Roundtree, 327 So.2d 882, the district courts granted certiorari relief because the second courts improperly taxed costs incurred by the defendants in the first actions and stayed the second actions until those costs were paid by the plaintiffs.

We conclude that the Hillsborough County circuit court departed from the essential requirements of law when it ordered Rohleder to pay costs incurred by Posternack in the first action where Pos-ternack did not seek or obtain a judgment for costs in the first action. In addition, Posternack is now barred from seeking a judgment for costs incurred in the first action because he did not file a timely motion for costs at the conclusion of the first action. See Fla. R. Civ. P. 1.525 (“Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.”); Fla. R. Civ. P. 1.420(d); Ramos v. Orthodontic Ctrs. of Fla., 893 So.2d 663 (Fla. 4th DCA 2005) (holding that rule 1.525 applies to rule 1.420(d)).

The order on review stays the case until Rohleder pays $3037.48 to Poster-nack. The order “effectively prevent[s]” Rohleder from his “day in court without any adequate remedy by appeal.” Paley v. Cocoa Masonry, Inc., 354 So.2d 945, 947 (Fla. 2d DCA 1978) (granting certiorari relief where second court stayed second action until costs were paid from first action; a portion of costs ordered in the first action did not relate to the claim pending in the second action, and it was therefore a departure from the essential requirements of the law to stay the second action until those costs were paid). Accordingly, we grant Rohleder’s petition for writ of certio-rari and quash the order granting stay. See Winford Lindsay, 637 So.2d 72; Roundtree, 327 So.2d 882.

Petition granted; order quashed.

ALTENBERND and CASANUEVA, JJ., Concur.

      . Rule 1.420(d) provides:


text:
    Daniel Lee MURRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-3862.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2013.
    Daniel Lee Murray, Lowell, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the December 12, 2012, order denying postconviction relief in Case No. 2009-548-CF, in the Circuit Court in and for Hernando County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER, WALLIS, JJ., concur.


text:
    Robert Michael ARDIS, Appellant, v. PENSACOLA STATE COLLEGE, Appellee.
    No. 1D12-2638.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2013.
    Robert Michael Ardis, pro se, Appellant.
    William D. Wells, Michael Mattimore, and Robert E. Larkin, III, of Allen, Norton & Blue, P.A., Tallahassee, for Appel-lee.
   ON MOTION TO RECALL MANDATE

PER CURIAM.

On November 22, 2013, Robert Michael Ardis, filed a “Motion to Re-open Case, in the Interests of Justice Based Upon Demonstrable, Extrinsic Fraud Upon the Court, and Violations of Florida Statutes § 119.” We treat this filing as a motion to recall the mandate issued in this case on April 4, 2013, and deny the motion. Also, based upon Mr. Ardis’ repeated violation of this court’s prior warnings against additional post-opinion filings in this case, we prohibit Mr. Ardis from proceeding pro se in this court in any case pertaining to Escambia County Case Number 2011-CA-2412 his firing from Pensacola State College (PSC).

By way of background, Mr. Ardis was employed by PSC as a professor and coordinator of the college’s criminal justice program. Mr. Ardis went on sabbatical in the Spring and early Summer of 2010 to obtain a second Master’s degree. Upon his return from sabbatical, Mr. Ardis presented PSC with a degree from an online “diploma mill.” Mr. Ardis was suspended without pay and ultimately fired for submitting this degree, which PSC characterized as “a fraud upon the College and ... misconduct in office.”

Mr. Ardis challenged his firing in an arbitration proceeding at which he was represented by counsel. The arbitrator held a three-day evidentiary hearing and, on November 21, 2011, issued a 35-page decision containing detailed findings of fact and legal conclusions. The arbitrator ruled in favor of Mr. Ardis on the issue of his suspension, finding that it should have been with pay rather than without pay, but the arbitrator ruled against Mr. Ardis on the issue of his firing, finding that PSC established that Mr. Ardis committed misconduct in office based on his “academic dishonesty.”

Mr. Ardis filed a pro se action in circuit court to set aside the arbitration decision and, in response, PSC filed a motion to confirm the decision. The case was assigned Escambia County Case Number 2011-CA-2412. After a hearing, the trial court denied Mr. Ardis’ request to set aside the arbitration decision and granted PSC’s motion to confirm the decision.

In May 2012, Mr. Ardis appealed the order confirming the arbitration decision to this court. In his pro se briefs, Mr. Ardis raised 15 “issues” all of which centered around the alleged undue means by which PSC obtained the arbitration decision in its favor and the alleged bias of the arbitrator. None of the issues raised by Mr. Ardis had merit and, on February 14, 2013, this court per curiam affirmed the circuit court’s order. That should have been the end of the matter, but it was only the beginning.

From February 14 to March 12, 2013, Mr. Ardis filed eleven motions and amended motions seeking a variety of relief, including “reinstatement” of his appeal, rehearing, rehearing en banc, and certification to the Florida Supreme Court. On March 14, 2013, we issued an order directing Mr. Ardis “not [to] file any additional motions, pleadings or papers in this case unless directed by the Court” in order to give us an opportunity to rule on the pending motions. On April 4, 2013, we issued an order denying Mr. Ardis’ post-opinion motions, directing the Clerk to issue the mandate, and advising Mr. Ardis that “[n]o further motions for rehearing or other filings will be considered in this case.” The mandate issued the same day.

Notwithstanding the issuance of the mandate and the directives in the March 14 and April 4, 2013, orders, Mr. Ardis continued to file motions in this case. He filed a motion to stay on April 5; a motion for certification on April 8; a motion to recall the mandate on April 9; and a motion seeking a recall of the mandate, rehearing, rehearing en banc, and certification of conflict on April 15. These filings repeated the frivolous arguments raised by Mr. Ardis in his briefs and his previous post-opinion filings. Accordingly, Mr. Ar-dis was directed to show cause why these filings should not be stricken and why additional sanctions should not be imposed. The response filed by Mr. Ardis included several pages arguing that the order to show cause was not properly issued, but the bulk of the response repeated the arguments made in his previous post-opinion filings. The response failed to show cause why sanctions should not be imposed, and on April 18, 2013, we issued the following order:

Upon due consideration of Appellant’s response to the order to show cause dated April 16, 2013, Appellant’s filings on April 5, 8, 9, and 15, 2013, are stricken as a sanction for his excessive, frivolous motion practice in this case and his violation of the orders directing him not to file anything else in this case unless directed by the Court (3/14/13 Order) and informing him upon denial of his motion for rehearing that no further motions for rehearing or other filings will be considered in this case (4/4/13 Order). Additionally, because an order to show cause [on sanctions] is pending against Appellant in case number 1D12-5472, the consideration of whether Appellant should be barred from proceeding pro se in this Court is deferred to the panel in that case. Appellant is cautioned, however, that the filing of any additional motions in this case will result in an order barring him from proceeding pro se in this Court.

(emphasis in original).

Mr. Ardis sought review of this court’s decision affirming the trial court’s order confirming the arbitration decision in both the Florida Supreme Court and the United States Supreme Court. Review was summarily denied by each of those courts. See Ardis v. Pensacola State College, — U.S. -, 133 S.Ct. 2836, 186 L.Ed.2d 893 (2013); Ardis v. Pensacola State College, 123 So.3d 557 (Fla.2013). That certainly should have been the end of this matter, but it was not; Mr. Ardis’ filings and the lower court’s dockets reflect that he is continuing to litigate matters pertaining to the arbitration hearing and his firing in state and federal court. See, e.g., Escam-bia County Case Nos. 2011-CA-2412, 2013-CA-832, 2013-CA-2512; N.D. Fla. Case No. 3:13cv352/MCR/CJK; U.S. 11th Cir. Case No. 13-13114-BB.

With this background in mind, we now turn to Mr. Ardis’s most recent filing, which as noted above, we are treating as a motion to recall this court’s mandate. The motion requests that this court reopen this case because, in 2011, PSC allegedly withheld certain public records “that were crucial to [Mr. Ardis’s] case-in-chief.” Attached to the motion is an “emergency petition” filed with the circuit court on or about October 24, 2013, seeking to reopen the proceedings below and to have the arbitration decision set aside. The motion filed in this court states that the “lower tribunal has refused to take any actions concerning the illegal and unethical actions of [PSC] or its attorneys.” However, it appears from the lower court’s docket that the court has already ruled upon the petition.

Even if we were persuaded that the claims asserted in Mr. Ardis’s current motion might have merit, we do not have jurisdiction to reopen this case to consider those claims. This case became final upon issuance of the mandate and it is well-settled that an appellate court may only recall a mandate during the term of court in which the mandate was issued. See State Famn Mut. Auto. Ins. Co. v. Judges of Dist. Court of Appeal, Fifth Dist., 405 So.2d 980, 982 (Fla.1981). Here, the mandate was issued on April 4, 2013, during the January 2013 term of court. That term ended on July 8, 2013, and the current term of court — the July 2013 term— began the following day. See § 35.10, Fla. Stat. (2012) (“The district court of appeal shall hold two regular terms each year at its headquarters, commencing respectively on the second Tuesday in January and July.”).

Mr. Ardis’ motion makes no reference to this well-settled jurisdictional principle even though it would have been easily ascertainable by even the most basic legal research. Instead, the motion relies on section 59.29, Florida Statutes, which authorizes appellate proceedings to be amended at any time in the furtherance of justice. That statute has no relevance to Mr. Ardis’s request to reopen this case and it certainly does not confer jurisdiction on this court to recall its mandate beyond the term of court in which the mandate was issued. Accordingly, Mr. Ardis’ motion is frivolous.

Mr. Ardis’s frivolous pro se filings in this case (and others) have consumed an inordinate amount of this court’s finite time and resources. The time that this court has been required to spend on Mr. Ardis’ cases is time that cannot be spent on other cases involving potentially meritorious claims. We cannot allow this to continue.

It is clear from Mr. Ardis’ excessive post-opinion filings and his current effort to reopen this case that he is simply unwilling or unable to accept that his legal arguments in this case lacked merit. It is also clear that he has no intention to accept the finality of his firing despite this court’s definitive ruling in this case. However, if there was any question about these facts, it was dispelled by the “Motion of Disgust and Similar Sentiments of Loathing” filed in Case No. 1D13-5509, in which Mr. Ardis stated:

I assert my disgust and loathing for this Court based upon your blatant refusal over and over again, to Reverse cases which should have been Reversed .... this Court can simply ignore violations of all three, and stamp an Order per curiam affirmed?
I plan on getting my positions back as professor of criminal justice and director of criminal justice at [PSC]. Wherein this cowardly Court would not Reverse the asinine decision in Case No. 1D12-2638, the Federal Courts are doing your job in Case No. 3:13cv352/MCR/CJK Once I get my job back I will be sure to make certain that all the students of [PSC] know what an unethical crock the First DCA truly is.

(emphasis in original); see also Appellant’s Answer to Show Cause Order, Case No. 1D13-4489 (Oct. 31, 2013) (asserting that matters pertaining to his firing are pending in the lower court and “will most certainly be back before this Court”); Appellant’s Verified Motion for Disqualification and/or Recusal of All Judges of the First District Court of Appeal, Case No. 1D13-4489 (Sep. 23, 2013) (arguing that this court demonstrated “blatant pro se bias” against him by not reversing the “terribly flawed and illegal Order of the lower tribunal” in Case No. 1D12-2638, and further asserting that he has “no doubt that this Court would have reversed the lower tribunal’s asinine Order” if he was an attorney).

There comes a point in every case that the losing party must accept the fact that the case is over and he or she did not prevail. That point has passed for Mr. Ardis with respect to this case and his firing, and despite his obvious dissatisfaction with our ruling in this case, we see no reason to waste any more of this court’s finite time and resources on Mr. Ardis’ frivolous claims pertaining to his firing.

The appellate courts do not exist simply to allow litigants to vent against rulings with which they disagree, and the constitutional right of “access to the courts” does not give litigants free rein to litigate and appeal frivolous claims ad infinitum.

This court has the inherent authority to prohibit further pro se filings from a litigant whose frivolous or excessive filings interfere with the timely administration of justice. See generally State v. Spencer, 751 So.2d 47 (Fla.1999). We exercise this authority sparingly, but we find it absolutely necessary to exercise the. authority here.

Mr. Ardis is the poster-child for vexatious litigants; he consistently responds to this court’s adverse rulings with derogatory rhetoric and additional frivolous filings. His pro se status might explain his unorthodox and ineffective litigation strategy in this court, but it does not excuse his excessive or frivolous filings or his violations of this court’s orders. He has been warned in this case (and others) that his conduct is unacceptable appellate practice and that he may be barred from proceeding pro se in this court if he persisted in his frivolous and excessive filings. Mr. Ardis failed to heed those warnings. Moreover, his current motion is patently frivolous and was filed in direct contravention of an order directing him not to file any further motions in this case and informing him of the consequences of a violation of the order.

We have tolerated Mr. Ardis’ excessive and frivolous filings pertaining to his firing long enough. The time has come to back up our warnings with action.

We recognize that this court recently held that a Spencer order is required before a trial court may prohibit pro se filings in a civil case. See Bolton v. SE Property Holdings, LLC, 127 So.3d 746 (Fla. 1st DCA 2013). However, we find that case distinguishable because the sanctioned parties in that case did not receive any notice or opportunity to respond before they were barred from further pro se filings. Here, by contrast, an order to show cause was previously issued in this case giving Mr. Ardis an opportunity to justify his post-opinion filings and he was also specifically put on notice of future conduct that was prohibited (“the filing of any additional motions in this case”) and the consequences of engaging in that conduct (“will result in an order barring him from proceeding pro se in this Court”).

Under the particular circumstances of this case, we do not read Bolton (or Spencer ) to require additional notice and opportunity to be heard before we impose a previously-threatened sanction. Moreover, in this case, there is nothing that Mr. Ardis could have said in response to an order to show cause that would have justified his blatant violation of this court’s prior order through his filing of another frivolous post-opinion motion, nor is there anything that he could have said that would have mitigated in favor of a lesser sanction in light of (1) his failure to heed prior warnings, (2) the ineffectiveness of a lesser sanction (ie., the striking of his filings) imposed in an effort to quell his post-opinion filings in this case, (3) the fact that this case has been final for well over seven months, and (4) his demonstrated unwillingness to accept the finality of his firing despite this court’s per curiam affir-mance.

Accordingly, for the reasons stated above, we hereby prohibit Mr. Ardis from proceeding pro se in this court in any case pertaining to Escambia County Case Number 2011-CA-2412 his firing from PSC. The Clerk is directed not to accept any filings from Mr. Ardis related to these matters unless they are signed by a member in good standing of The Florida Bar. Mr. Ardis shall have thirty days from date of this order to secure the services of counsel in any pro se case pending in this court pertaining to his firing from PSC, and if he fails to do so, the Clerk is directed to dismiss the case. Finally, Mr. Ardis is cautioned that any violations of this order may result in the imposition of additional sanctions.

MOTION DENIED; SANCTIONS IMPOSED.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.

      . We are aware that the Legislature recently repealed section 35.10 and enacted section 43.43 to authorize the Florida Supreme Court to establish or dispense with terms of court for the district courts of appeal, but those laws do not take effect until January 1, 2014. See ch. 2013-25, Laws of Fla. And, even if the new laws were somehow in effect now, we would still not have jurisdiction to recall the mandate and reopen this case because the motion was filed more than 120 days after the mandate was issued. See § 43.44, Fla. Stat. (2013) ("A mandate may not be recalled more than 120 days after it has been issued."); In re Amendments to Fla. Rules of Judicial Admin. and Fla. Rules of App. Pro., 125 So.3d 743 (Fla.2013) (amending Florida Rule of Appellate Procedure 9.340 to conform to section 43.44, Florida Statutes).

      . We recognize that Mr. Ardis is not an attorney, but he has repeatedly made a point in his filings to advise the court of his superior knowledge of the law based upon his experience as a criminal justice professor. See, e.g., Motion of Disgust and Similar Sentiments of Loathing, Case No. 1D13-5509 (Nov. 21, 2013) (asserting that he “has a Master’s degree in Criminal Justice and has been a professor of Criminal Justice since 1991[, ljonger than any of the Judges have been on this Court,” that he "knows the law; knows the Rules of Evidence; the Rules of Civil and Appellate Procedure; decisional and constitutional law," and that he "knows that he has demonstrated Reversible Error in the cases he has argued before this Court”)(emphasis in original).

       What is the point of having rules of procedure, statutory law, and decision law, if

      . Mr. Ardis has not obtained any relief in the 17 pro se cases he initiated in this court: 1D10-0014, 1D10-0030, 1D12-2638, 1D12-3242, 1D12-4545, 1D13-2177, 1D12-4547, 1D12-4884, 1D12-4885, 1D12-5472, 1D12-5473, 1D13-1167, 1D13-1168, 1D13-1169, 1D13-4293, 1D13-4489, and 1D13-5509. Some of these cases pertain to Mr. Ardis' dissolution of marriage proceeding and a related domestic violence injunction, but Mr. Ardis has made clear in his filings that he considers all of these cases related by virtue of an alleged conspiracy between his former wife, her parents, and others in Escambia County, to have him fired, deny him access to his child, and generally make his life miserable. See, e.g., Appellant's Answer to Show Cause Order, Case No. 1D13-4489 (Oct. 31, 2013) (asserting that he "has been a victim of circumstances allowed to fester in Escambia County").

      . In addition to the warnings in this case, Mr. Ardis was twice warned about his excessive frivolous filings in Case No. ID 12-5472, and show cause orders on sanctions are currently pending against him in Case Nos. ID 13-4489 and 1D13-5509. The sanctions imposed by this opinion are without prejudice to any sanctions that may be imposed by the panels in those cases.


text:
    Omar D. LOPEZ, Appellant, v. ALL STAR INVESTIGATIONS, INC. and Travelers Insurance Company, Appellees.
    No. 1D13-1108.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2013.

      Bill McCabe, Longwood, and Ricardo Morales, Doral, for Appellant.
    Steven H. Preston, Dinah Stein, and Michael S. Hirschkowitz of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appel-lees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant, an armed security guard, argues the Judge of Compensation Claims (JCC) erred in concluding the fall he sustained on April 19, 2012, while he was patrolling the premises of an apartment complex, was not a compensable accident. Claimant also argues that the JCC also erred in denying his claims for medical and indemnity benefits, penalties, interest, costs, and attorney’s fees. Because we agree the JCC failed to apply the correct legal standard, based on the evidence and arguments submitted by the parties, we reverse and remand.

It was undisputed that on April 16, 2012, Claimant fell while at a shopping mall (not a work-related event) and, as a result, received medical treatment for a left knee injury, including a CT scan. On April 19, three days later, Claimant fell while engaged in work activities and allegedly sustained injuries to his right elbow, right shoulder, and right knee. The E/C denied any responsibility for the injuries, taking the position that Claimant’s April 19 fall was caused by an “idiopathic” condition, namely, the left knee injury.

At the merits hearing, Claimant argued it was undisputed he was at work on April 19 when he suffered a fall. Claimant asserted that the E/C’s defense that he had a pre-existing or idiopathic condition required proof, and the evidence did not support the presence of such a condition. Further, Claimant argued that even if there was evidence of a pre-existing condition, there was no evidence that this preexisting condition caused the April 19 fall.

The E/C did not dispute that Claimant was engaged in work activities on April 19, nor did the E/C dispute the existence of serious conditions involving both knees. The E/C, acknowledging that it had the burden to prove that Claimant had a preexisting condition involving the left knee, argued that it did so. Further, the E/C argued that it also proved that the preexisting condition caused the April 19 fall; thus, the fall was not compensable.

In the appealed order, the JCC acknowledged that “[t]he E/C contends the claimant has a pre-existing idiopathic condition causing his fall and the fall is unrelated to his work.” Nevertheless, the JCC also stated that “the fundamental issue is whether the claimant is credible when he claims he fell as a result of slipping on grease or gravel.” The JCC’s determination that Claimant was not credible in that claim did not, based on the facts recited above, resolve the issues before the JCC. Because the E/C agreed Claimant was engaged in work activities at the time of the April 19 fall, the JCC’s conclusion that Claimant failed to prove a specific occupational cause for his injury did not absolve the JCC of the need to determine whether Claimant’s April 19th fall was caused by a pre-existing condition.

This Court has made it clear that, if there is no pre-existing condition that contributed to the accident or injury, and the accident occurred while the claimant was engaged in work activities, then the claimant has established occupational causation. See Ross v. Charlotte Cnty. Pub. Sch., 100 So.3d 781, 782 (Fla. 1st DCA 2012) (“[Wjhere an unexplained fall happens while Claimant is ‘actively engaged’ in the duties of employment, and where there is no other established basis for the fall, the causal relationship between the employment and the accident is met.”). Because the JCC failed to complete the necessary legal analysis to resolve the issues before him, we reverse and remand this matter for further findings.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


text:
    Valerie GRIFFITT and John Griffitt v. Dr. A. Jay BINDER.
    No. 2013-C-1473.
    Supreme Court of Louisiana.
    Oct. 4, 2013.
   In re Griffitt, John; Griffitt, Valerie et al.; — Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. K, No. 597-814; to the Court of Appeal, Fifth Circuit, No. 12-CA-744.

Granted. Finding there is a genuine issue of material fact, we reverse the trial court’s judgment which granted the Louisiana Patient’s Compensation Fund’s motion for partial summary judgment. This case is remanded for further proceedings.

GUIDRY and CLARK, JJ., would deny.


text:
    In re James E. MOORMAN, III.
    No. 2013-B-2430.
    Supreme Court of Louisiana.
    Oct. 21, 2013.
   In re Disciplinary Counsel; Moorman III, James E.; — Other(s); Applying For Joint Petition for Interim Suspension.

ORDER

Considering the Joint Petition for Interim Suspension filed by respondent, James E. Moorman, III, and the Office of Disciplinary Counsel,

IT IS ORDERED that James E. Moor-man, III, Louisiana Bar Roll number 20528, be and he hereby is suspended from the practice of law on an interim basis pursuant to Supreme Court Rule XIX, § 19.3, pending further orders of this court. Pursuant to Supreme Court Rule XIX, § 26(E), this order is effective immediately.

IT IS FURTHER ORDERED that pursuant to Supreme Court Rule XIX, § 27, the presiding chief judge in the Twenty-Second Judicial District Court for the Parish of St. Tammany is ordered to appoint a lawyer or lawyers to conduct an inventory of respondent’s files and to take action as appropriate to protect the interests of respondent’s clients.

FOR THE COURT:

/s/ Jefferson D. Hughes III Justice, Supreme Court of Louisiana


text:
    In re Joseph P. RASPANTI
    No. 2013-B-2203.
    Supreme Court of Louisiana.
    Oct. 25, 2013.
   In re Disciplinary Counsel; Raspanti, Joseph P.; — Other(s); Applying for Joint Petition for Consent Discipline.

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Following the filing of formal charges against respondent by the Office of Disciplinary Counsel, the parties submitted a joint petition for consent discipline in which respondent acknowledges that he failed to communicate with three clients, settled a case without obtaining his client’s informed consent, improperly notarized the settlement release, and failed to promptly deliver the settlement funds to the client. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Joseph P. Raspanti, Louisiana Bar Roll number 17897, be suspended from the practice of law for a period of six months. It is further ordered that this suspension shall be deferred in its entirety, subject to the conditions set forth in the petition for consent discipline. Any failure of respondent to comply with said conditions may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re LaShonda G. DeROUEN.
    No. 2013-B-2236.
    Supreme Court of Louisiana.
    Nov. 1, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| jThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent failed to properly supervise a non-lawyer assistant and mishandled her client trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.15(a)(f), 5.3(a)(b), and 8.4(a) of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that LaShonda G. DeRouen, Louisiana Bar Roll number 30841, be suspended from the practice of law for a period of one year and one day, fully deferred, subject to a two-year period of supervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent, the ODC, and the probation monitor execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, |gwith legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Frank J. LARRÉ.
    No. 2013-B-2316.
    Supreme Court of Louisiana.
    Nov. 8, 2013.
   In re Disciplinary Counsel; Larre, Frank J.; — Other(s); Applying for Joint Petition for Consent Discipline.

ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

Respondent and the Office of Disciplinary Counsel (“ODC”) submitted a joint petition for consent discipline in which respondent acknowledges that he practiced law while ineligible to do so. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Frank J. Larré, Louisiana Bar Roll number 8049, be suspended from the practice of law for a period of one year and one day, with all but ninety days deferred, followed by a two-year period of unsupervised probation governed by the terms and conditions set forth in the Petition for Consent Discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred portion of the suspension execu-tory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.