author: HAZOURI, J.

text:
    Mary M. MONTGOMERY and Bill T. Smith, Jr., Esq., as Personal Representatives of the Estate of Robert M. Montgomery, Jr., individually and as partner of Montgomery & Larmoyeux, n/k/a Montgomery & Larson, LLP, Montgomery & Larson LLP, a Florida limited liability partnership, and Beasley, Hauser, Kramer, Leonard & Galardi, P.A., f/k/a Beasley & Hauser, P.A., Appellants, v. Christopher M. LARMOYEUX, Jr., individually and as partner of Montgomery & Larmoyeux, n/k/a Montgomery & Larson, LLP, a Florida limited liability partnership, Eric Hewko, individually, Austin Carr, individually, Charles L. Robinson, individually, and Rickey Ray Wyatt, individually, Appellees.
    No. 4D08-314.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.
    Rehearing Denied July 21, 2009.

      Sylvia H. Walbolt of Carlton Fields, P.A., Tampa and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellants Mai*y M. Montgomery and Bill T. Smith, Jr., as Personal Representatives of the Estate of Robert M. Montgomery, Jr., and Montgomery & Larson, LLP, a Florida limited liability partnership.
    John Beranek of Ausley & McMullen, Tallahassee, for appellant Beasley, Hauser, Kramer, Leonard & Galardi, P.A., f/k/a Beasley & Hauser, P.A.
    Barbara J. Compiani and Jane Kreus-ler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, for appel-lee Christopher M. Larmoyeux, Jr.
    Eric Hewko of The Hewko Firm, North Palm Beach, pro se.
   HAZOURI, J.

This appeal ai-ises from the trial court’s order granting attorney’s fees to Christopher M. Larmoyeux and Ex*ic Hewko under section 57.105, Florida Statutes (2003). The trial court awarded fifty percent of the fees against Robert M. Montgomery, Jr., and Montgomery and Larson, LLP (Montgomery) and fifty percent of the fees against Montgomery’s counsel, Beasley, Hauser, Kramer, Leonard & Galardi, P.A. (Beasley). The trial court found, pursuant to section 57.105, that claims made by Montgomery and Beasley as against Lar-moyeux and Hewko had no basis in law and fact, and that there was not even the semblance of a good faith attempt by Montgomery or his counsel, Beasley, to substantiate their claims of fraud and conspiracy against Larmoyeux and Hewko. For reasons stated hereinafter, we reverse the award of fees to Larmoyeux and affirm as to the fees awarded to Hewko.

This case arises out of a very fractious relationship between Larmoyeux and Montgomery. For twelve years, Larmoy-eux was a partner in Montgomery & Lar-moyeux, a law firm in West Palm Beach: In December 2000, Montgomery terminated Larmoyeux. Upon leaving the firm, Larmoyeux took with him eleven cases. Eight of those cases settled and are not at issue. The three remaining cases, which are at issue here, resulted in recovery of monies by settlement in two of the cases and by jury verdict in the third. These cases are Schultz v. Clark, Simmons v. Niedzwiedzki, and Wyatt v. Milner.

Pursuant to a partnership agreement that existed between Montgomery and Larmoyeux, Montgomery claimed entitlement to eighty percent of the gross fees recovered in all of the eleven cases Lar-moyeux took with him. The partnership agreement provided that Larmoyeux would “pay the firm as liquidated damages eighty percent (80%) of all fees collected from such clients and eighty percent (80%) of any costs advanced by the firm with respect to any such client matter as such amounts are received by Larmoyeux.” (Emphasis in original). Montgomery and Larmoyeux submitted the matter of the fees for all eleven cases to arbitration. Pursuant to the partnership agreement, the arbitration award directed that Lar-moyeux, in all eleven cases, remit to the firm “ ‘80% of the fees collected by him [emphasis supplied] and 80% of the firm’s costs’ ” within ten days “of his receipt by him of such fees and costs.”

Montgomery filed charging liens in all three eases at issue here. He also filed this separate action, alleging the following Counts:

I. For Fraud, against LARMOYEUX and attorney HEWKO, claiming that they had fraudulently entered “a sham fee agreement” providing for HEWKO to receive a large percentage of the over-all fees in Wyatt v. Milner, which was filed in this Circuit, “to deprive Montgomery of the fees and costs owed under the Partnership Agreement and the Arbitration Award.”
II. For Fraud, against LARMOYEUX and attorney CARR, claiming that they had fraudulently entered “a sham fee agreement” providing for CARR to receive a large percentage 'of the over-all fees in Simmons v. Niedzwiedzki, which was filed in the 11th Circuit, in and for Miami-Dade County, “to deprive Montgomery of the fees and costs owed under the Partnership Agreement and the Arbitration Award.”
III. For Civil Conspiracy, against LARMOYEUX, attorney HEWKO (LARMOYEUX’s co-counsel in Wyatt v. Milner [) ], attorney .CARR (LARMOY-EUX’S co-counsel in Simmons v. Niedzwiedzki), Defendant CHARLES L. ROBINSON....
IV. Breach of Fiduciary Duty' against LARMOYEUX;
V. Breach of Contract against LAR-MOYEUX;
VI. Breach of Duty of Good Faith and Fair Dealing against LARMOYEUX;
VII. Tortious Interference with Contract against HEWKO;
VIII. Tortious Interference with Contract against CARR;
IX. Declaratory Relief against LAR-MOYEUX and HEWKO, seeking a declaration that the fee agreement between those two attorneys in the Wyatt case is void, and that client Wyatt owes 100% of all the fees generated “are owed exclusively by the client to Larmoyeux, who in turn owes 80% to Montgomery.”

(footnotes omitted).

Without leave of court, Montgomery also prayed for punitive damages.

On May 14, 2003, Montgomery and Beasley filed a second amended complaint, which contained the same allegations stated above. On June 4, 2003, Larmoyeux sent notice to Montgomery and Beasley that he was seeking sanctions under section 57.105. He filed his motion with the trial court on June 6, 2003. On June 6, 2003, Hewko sent the same notice to Montgomery and Beasley, but did not file his motion with the trial court until July 8, 2003.

On April 15, 2004, the trial court granted a motion to stay this case, stating that it could not proceed because the trial courts in which the charging liens were filed had exclusive .jurisdiction to determine the issue of Montgomery and Lar-moyeux’s fees in those cases. Montgomery and Beasley petitioned this Court, seeking a writ of certiorari and asking this Court to declare that the trial court erred in holding that the other courts were the proper forum for Montgomery and Beasley’s claims. This Court denied the petition. The parties proceeded to litigate the charging liens in the Wyatt and Simmons cases.

In Wyatt, the court found that the charging lien of Montgomery was valid, but found that Montgomery was entitled to eighty percent of only the fee collected by Larmoyeux — not eighty percent of the entire fee. The court also determined that the evidence presented was insufficient to support the claims of fraud, tortious interference, or conspiracy on the part of Wyatt, Hewko, or Larmoyeux.

In Simmons, the trial court found that attorney Carr was primarily responsible for the settlement of that tort case for $1,000,000. The court found Larmoyeux’s claim that he spent 120 hours on the case acceptable, awarding him, on the basis of quantum meruit, an hourly rate of $600, which equaled $72,000. The court then awarded eighty percent of the $72,000 ($57,600) to Montgomery and twenty percent ($14,400) to Larmoyeux on the basis of quantum meruit. The court also found no evidence of fraud, collusion, or any effort to deprive Montgomery of a fee. It “affirmatively determine[d] that there was no collusion nor was there any effort made to deprive Montgomery of a fee in this case.”

In Schultz, Larmoyeux entered into a settlement agreement with the defendant Clark, and received a $40,000 fee. On February 8, 2005, Larmoyeux paid Montgomery $36,409.50, representing eighty percent of the fee plus costs and interests.

Following the resolution of the charging liens, Montgomery voluntarily dismissed his claims in the instant case. Thereafter, the claims for section 57.105 fees proceeded to evidentiary hearings on entitlement and amount of fees to be awarded.

In granting Larmoyeux and Hewko’s section 57.105 motions, the trial court found that “[tjhere has been presented to this Court nothing to suggest the existence of even a semblance of a good faith attempt by [Montgomery] or [his] counsel to substantiate the[ ] claims of fraud and conspiracy.” The trial court also held that Montgomery’s claims “were wholly supposition; at the very least, an effort on their [Montgomery and Beasley’s] part to uncover supportive facts was needed to show some scintilla of legitimacy to the[se] claims. Not even a rudimentary effort to do so was ever made.”

In a separate final judgment, the trial court calculated the award of attorney’s fees for Larmoyeux and Hewko. Based on a summary of work and corroborating expert testimony, it found that the amount of reasonable hours spent by Larmoyeux was 349.4 hours and the amount of hours spent by Hewko was 440.4 hours. It also found a reasonable hourly rate of $475 per hour. The trial court awarded $209,190 to Hewko and $165,965 to Larmoyeux, requiring Montgomery and Beasley to each pay fifty percent.

Montgomery and Beasley contend that Larmoyeux failed to comply with time requirements of section 57.105 and, therefore, the award of attorney’s fees should be reversed. We agree. As to Hewko’s claim for attorney’s fees, Montgomery and Beasley contend that there was not competent, substantial evidence to support the trial court’s finding that their claim against Hewko was without foundation in fact or law and was not brought in good faith. We disagree.

As to Larmoyeux’s claims under section 57.105(4), the statute states that: “A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”

Larmoyeux argues that, although he was not in strict compliance with section 57.105(4), it was not until May 17, 2006, over thirty-five months after receiving his 57.105 motion, that Montgomery and Beasley filed a notice of voluntary dismissal and, therefore, they had more than sufficient time to take advantage of the safe-harbor provision of section 57.105(4). In support of his position, Larmoyeux cites this Court’s decision in Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So.2d 709, 711 (Fla. 4th DCA 2004), which stated that the primary purpose of the safe-harbor provision of section 57.105(4) “is not to spring a procedural trap on the unwary so that valid claims are lost. Rather, its function is to give a pleader a last clear chance to withdraw a frivolous claim.... ”

The facts in Maxwell are distinguishable and, thus, the assertion that Maxwell supports Larmoyeux’s argument is not well taken.

Maxwell sued Euro Concepts for breach of contract. Euro Concepts filed a counterclaim raising three claims: civil theft, conversion, and breach of contract. Three months later, Euro Concepts amended its counterclaim, maintaining the original civil theft and conversion counts. Thirty days later, it filed a second amended counterclaim, which contained the identical civil theft and conversion counts.

In complying with section 57.105(4), Maxwell served the motion for attorney’s fees on September 11, 2002. On September 17, 2002, Maxwell moved for a summary judgment as to the civil theft and conversion counts. On October 4, 2002, Maxwell, pursuant to section 57.105, moved for attorney’s fees pertaining to its civil theft and conversion claims.

Thereafter, Euro Concepts filed a third amended counterclaim on December 6, 2002, which contained the same civil theft and conversion counts that had been part of the case since the original counterclaim. The trial court subsequently granted Maxwell’s motion for summary judgment on the civil theft and conversion claims. In so holding, it found that Euro Concepts and its attorney, Michael Banks, knew or should have known at the inception of the case that the claims raised by the third amended counterclaim were meritless, as they were not supported by any material fact or the law as applied to any material fact. The court ordered Euro Concepts and Banks to each pay one-half of Maxwell’s attorney’s fees.

Banks moved for rehearing, arguing that Maxwell failed to comply with the statutory notice requirement of section 57.105 because the October 4, 2002, motion was directed at the second amended counterclaim, not the third amended counterclaim. The trial court granted the motion for rehearing and vacated its order. In vacating its previous order, the trial court ruled that Maxwell was required to file a motion for attorney’s fees directed at the third amended counter-claim.

In reversing the trial court, this Court stated:

In this case, Euro Concepts and Banks had well more than twenty-one days to withdraw the civil theft and conversion claims, so that we do not find a section 57.105(4) violation that precludes recovery. The claims first appeared in the March 29, 2002 counterclaim and were included in the same form in all the amended counterclaims. Maxwell mounted its first section 57.105 attack on the civil theft and conversion counts in a motion filed on October 4, 2002, which had been served in compliance with section 57.105(4) on September 11, 2002. Banks and Euro Concepts did not eliminate the offending counts from the case. Instead, they filed a third amended counterclaim on December 6, 2002, which contained the identical civil theft and conversion counts. Banks and Euro Concepts had the chance afforded by the statute to withdraw the claims before section 57.105 liability was triggered; they did not avail themselves of the opportunity.

Maxwell, 874 So.2d 709, 711-12.

Unlike Larmoyeux’s claim, Maxwell complied with the filing requirements of the twenty-one day safe-harbor provision. Section 57.105(4) does not require a safe-harbor for each amendment to a complaint when, as in Maxwell, the claims for which the 57.105 fees are sought remain in the amendment.

Section 57.105(4) could not be clearer in its requirement that a motion seeking sanctions may not be filed with or presented to the court within twenty-one days of service of the motion. Statutes authorizing awards of attorney’s fees are in derogation of common law and must be strictly construed. Larkin v. Buranosky, 973 So.2d 1286, 1287 (Fla. 4th DCA 2008) (stating that “ ‘[a]ny statute that deviates from the common law approach must be strictly construed’” (quoting Hilyer Sod, Inc. v. Willis Shaw Exp., Inc., 817 So.2d 1050, 1054 (Fla. 1st DCA 2002))); see, e.g., Cano v. Hyundai Motor Am., Inc., 8 So.3d 408 (Fla. 4th DCA 2009) (holding that “[s]ection 768.79 and rule 1.442 are strictly construed because they are ‘in derogation of the common law rule that each party pay their own fees’ ” (quoting Brower-Eger v. Noon, 994 So.2d 1239, 1241 (Fla. 4th DCA 2008))); see also Anchor Towing, Inc. v. Fla. Dep’t of Transp., 10 So.3d 670 (Fla. 3d DCA 2009) (holding that a party failed “to meet the mandatory notice requirement of section 57.105(4)” by sending a letter instead of “the statutorily required motion” to opposing counsel, as statutes “in derogation of the common law” are “strictly construed” (citing Nathan v. Bates, 998 So.2d 1178, 1179 (Fla. 3d DCA 2008))); Burgos v. Burgos, 948 So.2d 918, 919 (Fla. 4th DCA 2007) (holding that, because a party “failed to comply with the requirements of section 57.105(4)” by filing with the trial court a section 57.105 motion three days after the filing of a motion of voluntary dismissal upon which the section 57.105 motion was based, they were ineligible for an award of attorney’s fees under section 57.105).

As such, Larmoyeux’s failure to comply with the mandatory requirements of section 57.105(4) did not constitute a procedural trap sprung on the unwary.

We now turn to Hewko’s claim for attorney’s fees, as awarded pursuant to section 57.105(1)(a)-(b). Unlike Larmoy-eux, Hewko complied with section 57.105(4)’s time requirements, having filed his motion with the trial court thirty-two days after it was served on Montgomery and Beasley. In reviewing an award of attorney’s fees under section 57.105, “ ‘this court must look to see if the trial court abused its discretion in finding no justicia-ble issues of fact or law.’ ” Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 618 (Fla. 4th DCA 2006) (citations omitted). A trial court’s findings must also “ ‘be based upon substantial competent evidence presented to the court at the hearing on attorney’s fees or otherwise before the court and in the trial record.’” Id. (quoting Weatherby Assocs., Inc. v. Ballack, 783 So.2d 1138, 1141 (Fla. 4th DCA 2001)).

The trial court’s determination that Montgomery and Beasley knew or should have known that their claims against Hewko for fraud, conspiracy to commit fraud, and tortious interference with contract were not supported by the material facts or the application of then-existing law to those material facts, as well as the trial court’s finding that the claims were not made in good faith, was supported by competent, substantial evidence. We, accordingly, affirm the award of attorney’s fees to Hewko.

Affirmed in Part; Reversed in Part.

FARMER and TAYLOR, JJ„ concur.

      . Section 57.105(1), Florida Statutes (2008), states:
      (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party's attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.
      However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts. If the court awards attorney's fees to a claimant pursuant to this subsection, the court shall also award prejudgment interest.


source: Caselaw Access Project

author: SALTER, J.

license: Public Domain

text:
    CITIZENS PROPERTY INSURANCE COMPANY, Petitioner, v. Louis BERTOT and Trina Bertot, Respondents.
    Nos. 3D08-2952, 3D08-2467.
    District Court of Appeal of Florida, Third District.
    June 3, 2009.

      Hinshaw & Culbertson and Maureen G. Pearcy, Miami, for petitioner.
    Ginsberg & Schwartz and Arnold R. Ginsberg; Mintz & Truppman and Can-dise L. Shanbron, Miami, for respondents.
    Before SHEPHERD, CORTINAS and SALTER, JJ.
   SALTER, J.

Citizens Property Insurance Company petitions for a writ of certiorari regarding an insurance case brought by homeowners in the circuit court. Concluding that the two questions of law presented by this case are unsettled and are pending before the Supreme Court of Florida, we deny the petitions.

The first question presented is whether an insured may prosecute a common law claim for breach of the covenant of good faith and fair dealing by an insurer based on the alleged failure of the insurer to investigate and assess the insured’s claim within a reasonable time. Such a claim is alleged by the homeowners to be an independent basis for recovery, one distinguishable from a statutory bad faith claim under section 624.155(l)(b), Florida Statutes (2008). Citizens maintains that the “breach of the covenant of good faith and fair dealing” claim is merely a “disguised” statutory bad faith claim and that no such common law claim is recognized in Florida.

The second question is whether any such common law claim for “breach of the covenant of good faith and fair dealing” — if it is determined to be a viable and separate cause of action — is subject to the conditions precedent applied to a statutory bad faith claim. Under Florida law, a statutory bad faith claim is not ripe and may not be prosecuted until coverage and the extent of damages have been determined.

The complaint brought by the respondent homeowners against Citizens included a count for breach of the insurance contract and a count for breach of the covenant of good faith and fair dealing. Citizens moved to dismiss the latter claim, and in each case the trial court denied the motion to dismiss. Citizens’ petition followed.

We have often granted certiorari when a trial court has declined to dismiss or abate a premature statutory bad faith claim. See, e.g., XL Specialty Ins. Co. v. Skystream, Inc., 988 So.2d 96 (Fla. 3d DCA 2008), and the cases cited in that opinion. In this instance, however, we are addressing the denial of a motion to dismiss a claim based on a different legal theory— breach of the covenant of good faith and fair dealing. Federal courts in Florida have already reached different conclusions of law regarding such claims. In Arlen House East Condominium Ass’n v. QBE Insurance (Europe) Ltd., No. 07-23199, 2008 WL 4500690, at *2 (S.D.Fla. Sept. 30, 2008), the court concluded that “a cause of action for breach of the implied warranty of good faith and fair dealing is separate and distinct from bad faith claims,” relying on the similar analyses of Townhouses of Highland Beach Condominium Ass’n v. QBE Ins. Corp., 504 F.Supp.2d 1307 (S.D.Fla.2007), and Chalfonte Condominium Apartment Ass’n v. QBE Ins. Corp., No. 06-81046, 2007 WL 2225972, at *3 (S.D.Fla. Aug. 1, 2007).

In another federal case involving the same question of Florida law, however, the court concluded that the “implied warranty of good faith and fair dealing” claim “is actually a claim for statutory bad faith, controlled by section 624.155 of the Florida Statutes, which cannot proceed until the underlying coverage dispute has been resolved.” Quadomain Condo. Ass’n v. QBE Ins. Corp., No. 07-60003, 2007 WL 1424596, at *6 (S.D.Fla. May 14, 2007).

After the petition and response in this case was before us, Citizens notified us that the United States Court of Appeals for the Eleventh Circuit has certified these questions to the Supreme Court of Florida pursuant to Florida Rule of Appellate Procedure 9.150(a). See Chalfonte Condo. Apartment Ass’n v. QBE Ins. Corp., 561 F.3d 1267, 1274-75 (11th Cir.2009). The Supreme Court has docketed the certified questions as QBE Insurance Corp. v. Chalfonte Condominium Apartment Ass’n, Case No. SC09-441.

In order to obtain a writ of certiorari, Citizens must demonstrate that, among other things, the trial court departed from the essential requirements of the law. See Gov’t Employees Ins. Co. v. Rodriguez, 960 So.2d 794 (Fla. 3d DCA 2007). In this case, the “essential requirements of the law” are in vigorous flux, -with divergent conclusions reached by diligent and experienced federal judges after extensive briefing and analysis of Florida law. Indeed, the U.S. circuit court of appeals for this circuit has engaged in the judicial equivalent of “your guess is as good as mine” in certifying the questions to our Supreme Court. Against that backdrop, we cannot conclude that the trial court’s denial of the motion to dismiss was a departure from a settled legal principle.

We therefore deny Citizens’ petition, but we do so without prejudice to the right of Citizens to pursue these legal theories to the extent appropriate following the Florida Supreme Court’s determination of the certified questions. We will also reconsider the issue in a new and updated petition by Citizens in the unlikely event that the Supreme Court of Florida declines jurisdiction or does not answer the certified questions of Chalfonte, 561 F.3d at 1274-75.

Petition denied.

      . This case, Citizens Property Insurance Co. v. Bertot, Case No. 3D08-2467, was consolidated with a certiorari case presenting the same issues, Citizens Property Insurance Co. v. Rodriguez, Case No. 3D08-2952. Thereafter, the Rodriguez case settled. The Bertot case remained open under the higher case number, 3D08-2952.

      . These claims are referred to by the various litigants and courts in Florida as breaches of the "covenant of good faith and fair dealing” or the "implied warranty of good faith and fair dealing”; we perceive no substantive difference between the labels.


author: STEVENSON, J.

text:
    PALM BEACH COUNTY ENVIRONMENTAL COALITION, Peter “Panagioti” Tsolkas, and Alexandria Larson, Appellants, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION and Florida Power & Light Co., Appellees.
    No. 4D08-2015.
    District Court of Appeal of Florida, Fourth District.
    June 3, 2009.

      Barry M. Silver, Boca Raton, for appellants.
    Meredith C. Fields, Senior Assistant General Counsel, and Ronald W. Hoen-stine III, Assistant General Counsel, Tallahassee, for appellee Florida Department of Environmental Protection.
    Peter C. Cunningham, Gary V. Perko and Brooke E. Lewis of Hopping Green & Sams, P.A., Tallahassee, for appellee Florida Power & Light Co.
   STEVENSON, J.

This appeal follows a chapter 120 proceeding wherein the appellants challenged the Florida Department of Environmental Protection’s (DEP) notice of intent to issue a permit to Florida Power & Light (FP & L) for construction and operational testing of an underground injection well system at FP & L’s West County Energy Center. Both the administrative law judge (ALJ) and DEP found that the petitioners lacked standing to challenge issuance of the permit. Nonetheless, the ALJ and DEP addressed the merits of the petitioners’ challenges, finding that FP & L had provided reasonable assurance that the injected water would be adequately contained and would not impact underground sources of drinking water and that the permit was properly granted. The appellants raise a myriad of arguments challenging DEP’s decision to issue the permit. We affinn the order granting the permit, but find that the ALJ and DEP were incorrect in ruling that the appellants lacked standing to participate in the chapter 120 proceeding and write to address this issue.

Chapter 120 affords a hearing “in all proceedings in which the substantial interests of a party are determined by an agency” and where there is “a disputed issue of material fact.” § 120.569(1), Fla. Stat. (2008). Chapter 120 defines a “party” to include those “whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.” § 120.52(13)(b), Fla. Stat.; see also AmeriSteel Corp. v. Clark, 691 So.2d 473, 477 (Fla.1997). Chapter 120’s “substantial interests” test for standing requires the petitioner demonstrate “1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect.” Agrico Chem. Co. v. Dep’t of Envtl. Regulation, 406 So.2d 478, 482 (Fla. 2d DCA 1981). “The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.” Id. Standing is a question of law subject to de novo review. See, e.g., Mid-Chattahoochee River Users v. Fla. Dep’t of Envtl. Prot., 948 So.2d 794, 796 (Fla. 1st DCA 2006), review denied, 966 So.2d 967 (Fla.2007).

The West County Energy Center (WCEC) site is about 1000 feet from the Arthur R. Marshall Loxahatchee National Wildlife Refuge (“Wildlife Refuge”). In simple terms, the petitioners alleged that they had standing because they utilized the Wildlife Refuge for nature activities, i.e., hiking and wildlife viewing, and FP & L had failed to establish that the water being put into the injection wells would not vertically or laterally migrate and impact the water in the Wildlife Refuge. Petitioner Larson also relied upon the fact that her home was 2.5 miles from the WCEC plant and she obtained her potable water from a well on the property. The ALJ found that, to the extent the petitioners’ standing was predicated upon their use of the Wildlife Refuge, they had failed to demonstrate standing because (1) even if the Middle Floridan Confining Unit failed to contain the injected wastewater, the impact would be to the Upper Floridan Aquifer, which is still hundreds of feet below the surface and (2) even if there were upward migration to the Upper Floridan Aquifer and the surficial aquifer, the quality of the water in the Wildlife Refuge would “likely” remain unaffected given the “extensive period of time involved.” As to petitioner Larson’s standing based upon her nearby residence, the ALJ found that while her pleadings adequately alleged the injury-in-fact prong of chapter 120 standing, she ultimately failed to prove she would suffer any impact and thus failed to prove standing. DEP affirmed these findings regarding standing.

The ALJ’s standing analysis essentially boils down to a finding that the petitioners lacked standing because the petitioners failed to prevail on the merits, i.e., they had failed to establish that the injected wastewater would migrate and impact water quality. This analysis “confuse[s] standing and the merits such that a party would always be required to prevail on the merits to have had standing,” see Reily Enters., LLC v. Fla. Dep’t of Envtl. Prot., 990 So.2d 1248, 1251 (Fla. 4th DCA 2008), and is illustrative of the problems that may arise when the issue of standing is tried with the merits. Standing is “a forward-looking concept” and “cannot ‘disappear’ based on the ultimate outcome of the proceeding.” Peace River/Manasota, Reg’l Water Supply Auth. v. IMG Phosphates Co., 34 Fla. L. Weekly D348, D349, - So.3d -, - (Fla. 2d DCA 2009) (citing Hamilton County Bd. of County Comm’rs v. State, Dep’t of Envtl. Regulation, 587 So.2d 1378 (Fla. 1st DCA 1991)). When standing is challenged during an administrative hearing, the petitioner must offer proof of the elements of standing, and it is sufficient that the petitioner demonstrate by such proof that his substantial interests “could reasonably be affected by ... [the] proposed activities.” Id. at -, at D350. Based on the evidence offered during the hearing, petitioners clearly presented evidence — albeit evidence that was ultimately found not sufficient to carry the day on the merits — that they reasonably could be affected by the proposed activities.

Affirmed.

POLEN and DAMOORGIAN, JJ., concur.


author: ALLEN, J.

text:
    Joel Douglas LOLLIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1774.
    District Court of Appeal of Florida, First District.
    June 3, 2009.

      Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Joshua R. Heller and Thomas D. Winokur, Assistant Attorneys General, Tallahassee, for Appellee.
   ALLEN, J.

The appellant challenges convictions entered after the denial of his motion to suppress evidence. The evidence should have been suppressed as the product of an unlawful search in connection with the wan'antless entry into the appellant’s back yard, and the convictions are therefore reversed.

At hearings on the motion to suppress it was indicated that sheriffs officers received a tip about possible ongoing criminal activity at the appellant’s residence, and they subsequently went to his home to question him about this. The officers approached the front door and knocked there, but received no response. One of the officers then walked around to the back of the residence and knocked on a back door, where he also received no response. While there, that officer observed incriminating evidence behind the residence and a search warrant was then obtained. The appellant sought to suppress the evidence which resulted from the incursion into his back yard, both before and after the warrant was obtained, arguing that the warrantless entry into the backyard area was an unlawful search.

This case is strikingly similar to the factual scenario addressed in Waldo v. State, 975 So.2d 542 (Fla. 1st DCA 2008). In that case this court confirmed that, in accordance with the Florida Supreme Court’s decision in State v. Morsman, 394 So.2d 408 (Fla.1981), the officers were entitled to approach the front door of the residence, but the warrantless entry into the back yard was an unlawful search. See also Maggard v. State, 736 So.2d 763 (Fla. 2d DCA 1999).

The state attempts to distinguish Waldo by relying on testimony here which indicated that visitors to homes in the rural area where the appellant lives are sometimes received at the back door to those residences. The notion that this custom might bear upon the reasonableness of the officers’ actions, and the appellant’s expectations of privacy, is suggested in a concurring opinion in Waldo. But that notion was not adopted by the Waldo majority, and reflects only an individual view which is not within the court’s holding. See Miller v. State, 980 So.2d 1092 (Fla. 2d DCA 2008). The state also relies on the officers’ testimony indicating that upon knocking at the front door they perceived circumstances which led them to believe someone might be inside the residence and either unwilling to come to the front door or unable to hear the knocking. It was further indicated that the officer who walked around the residence to approach the back door wanted to knock there, to see if he could get a response at that location. But again, this does not distinguish this case from Waldo, with that opinion indicating that the officers there were also trying to obtain a response at the back door after their knocks went unanswered at the front door. The constitutional protection and expectation of privacy in the side and backyard area of the home does not depend on whether someone might be home, or if visitors may sometimes be received at a location other than at the front door. Indeed, the Florida Supreme Court’s decision in Morsman, and the caselaw such as Maggard, which accords with that ruling, clearly establishes that residents have a constitutionally-protected privacy interest in the side and backyard area of their home. See also, e.g., State v. Roy, 944 So.2d 403 (Fla. 3d DCA 2006); Glass v. State, 736 So.2d 788 (Fla. 2d DCA 1999); Potts v. Johnson, 654 So.2d 596 (Fla. 3d DCA 1995).

In addition, the state refers to federal cases such as United States v. Anderson, 552 F.2d 1296 (8th Cir.1977), United States v. Daoust, 916 F.2d 757 (1st Cir.1990), and Alvarez v. Montgomery County, 147 F.3d 354 (4th Cir.1998). See also Estate of Smith v. Marasco, 318 F.3d 497 (3d Cir.2003). Several of those cases involve significantly different facts than the situation here. And more importantly, they are not controlling in the present case as they do not comport with the Florida decisions regarding the constitutional protection afforded to the areas away from the front entrance to a residence. The Florida Supreme Court pointedly emphasized that privacy interest in Morsman, and the decisions of the United States Supreme Court have continued to recognize the sanctity of the home as being “at the very core” of the constitutional protection. See Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). That protection extends to the outside area adjacent to the home, and the Supreme rCourt has repeatedly observed that such “overriding respect for the sanctity of the home” has been “embedded in our traditions since the origins of the Republic.” Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); see also, e.g., Wilson v. Layne, 526 U.S. 603, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999). The constitutional protection which Morsman confirms in the side and backyard area of a home is consistent with the pronouncements of the United States Supreme Court, and any contrary decisions of the lower federal courts, in the variety of circumstances involved in those cases, do not diminish that protection in Florida.

The state’s further claim that the officers acted in good faith does not overcome the constitutional violation, as the subsequent warrant was obtained after the officers’ unlawful entry into the back yard and resulted from that misconduct. This constitutional violation tainted the ensuing evidence, which should have been suppressed. See Waldo, supra. The convictions are therefore reversed and, because the suppression ruling was established as a dispositive issue, the appellant is entitled to be discharged.

BARFIELD and LEWIS, JJ., concur.


author: WOLF, J.

text:
    MT. NEBO MISSIONARY BAPTIST CHURCH, Sim Alexander, Larceodious Jones and Joyce Simmons, Appellants, v. Willie GLEE, Appellee.
    No. 1D07-6359.
    District Court of Appeal of Florida, First District.
    June 3, 2009.

      Fred H. Flowers, Tallahassee, for Appellants.
    Conrad C. Bishop, Jr. of The Bishop Law Firm, P.A., Perry, for Appellee.
   WOLF, J.

The trial court erred in finding that it had personal jurisdiction over Mt. Nebo Missionary Baptist Church (Mt. Nebo). The complaint in the instant case sought reinstatement of appellee as a deacon at Mt. Nebo. The complaint was served only on the three named appellants. There is no allegation in the complaint that these appellants have the authority to act on behalf of Mt. Nebo to reinstate appellee as a deacon of the church.

As this court found in Walton-Okaloosa-Santa Rosa Medical Society v. Spires, 153 So.2d 325 (Fla. 1st DCA 1963), an injunction issued against an unincorporated association, whose individual members were not served notice, is not binding on that association. Here, it is uncontested that Mt. Nebo was an unincorporated association and that its individual members were not served notice. Therefore, the trial court did not have personal jurisdiction over Mt. Nebo, and the trial court’s order that appellee be “reinstated as a deacon in the Defendant/Church” is not binding on Mt. Nebo.

We, therefore, reverse the order of enforcement against Mt. Nebo and direct that the trial court grant appellants’ motion to quash the purported service on the church.

HAWKES, C.J., and KAHN, J., concur.


author: PER CURIAM.

text:
    James L. HALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0423.
    District Court of Appeal of Florida, First District.
    June 3, 2009.

      James L. Hall, pro se, for Appellant.
    Bill McCollum, Attorney General, Jennifer J. Mooi-e, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the denial of his motion to coi'rect illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse.

The appellant was convicted of first-degree felony murder (count one) and robbery with a firearm (count two). He was sentenced to life in prison without parole for twenty five years on count one and ten years’ imprisonment with a minimum mandatory sentence of three years for count two. The sentences wei*e ordered to run consecutively.

In his motion to correct illegal sentence, the appellant assei-ts that his consecutive minimum mandatory sentences for counts one and two are illegal because the crimes arose from a single criminal episode. In Boler v. State, 678 So.2d 319 (Fla.1996), a defendant was convicted of first-degree felony murder and robbery (the underlying felony) for killing a convenience store clerk during an armed l'obbery. The defendant was sentenced to life impi'isonment with a twenty five year minimum mandatory for first-degree murder. Id. at 322. He was given a consecutive life sentence for the robbery, which included a three year minimum mandatoi'y for the use of a firearm. Id. The Court held that the three year minimum mandatory sentence for the underlying robbery could not be imposed consecutively to the twenty five year minimum mandatory for felony murder. Id. at 323.

Boler is directly on point with this case. Here, the appellant alleges that he was also convicted of felony murder and the undeiiying l'obbery involving the same victim. Therefore, the trial court could not impose the three year minimum mandatory for possession of a firearm consecutively to appellant’s twenty five year minimum sentence for felony murder. We reverse and remand with directions that the trial court impose the twenty five year and three year minimum mandatory sentences to run concurrently or attach portions of the record indicating that the felony murder and robbery convictions did not arise from a single criminal episode.

REVERSED AND REMANDED.

BARFIELD, PADOVANO, and LEWIS, JJ., concur.

      . He asserts that the robbery was the underlying felony supporting the felony murder conviction.


text:
    Jamie MEADE, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3916.
    District Court of Appeal of Florida, Fifth District.
    June 5, 2009.

      Jamie Meade, Ocala, pro se.
    Bill McCollum, Attorney General, Tallahassee and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Jamie Meade appeals the trial court’s summary denial of her rule 3.800(a) motion in which she asserts entitlement to more days of jail credit than the trial court awarded her at sentencing on her Sumter County offense of organized fraud. We affirm in part, reverse in part, and remand.

Specifically, Meade’s rule 3.800(a) motion alleges that she was arrested on March 12, 2004, for the Sumter County offense and was released on her own recognizance on April 22, 2004, pending sentencing at a later date. While on release, Meade answered to, and was sentenced for, unrelated St. Johns County offenses and was placed in the custody of the Department of Corrections, which housed her at the Lowell Correctional Institution. Sumter County issued a detainer against Meade while she was incarcerated at Lowell. After issuance of the detainer, Meade continued to serve her St. Johns County sentence for another 77 days before being transported to Sumter County for sentencing. According to Meade, four days after her arrival in Sumter County, sentencing on the Sumter County offense took place. That sentence included an award of 42 days of jail credit — a figure Meade contends fails to credit her with all the time due her.

Meade argues that she is entitled to additional jail credit of 77 days for the period of time (May 23, 2004, through August 7, 2004) Sumter County’s detainer was in place against her while she was incarcerated at Lowell on the St. Johns County offenses. Meade further argues she is entitled to additional jail credit of four days for the time she served while awaiting sentencing in Sumter County after she was transported from Lowell. She alleges that this period ran from August 7, 2004, the last day of the detainer, to August 11, 2004, when she was sentenced in Sumter County.

Meade is not entitled to an additional 77 days of credit for the time she served in prison on the unrelated charges from St. Johns County by virtue of the Sumter County detainer. See Gethers v. State, 838 So.2d 504, 508 (Fla.2003) (“When a county issues a detainer or hold to another county, it is merely requesting either to hold the defendant for the second county or to notify the second county when release is imminent so that the second county can act. In that case, no jail credit need be awarded by the second county for time served in the first county for the period during which the detainer or hold is lodged.”).

With respect to the remaining four days she claims, however, we are compelled to reverse and remand because the trial court failed to refute her claim with record attachments to its order. It appears that the trial court denied relief with regard to the four days on the basis that the 42-day credit already included jail credit for the days Meade spent in Sumter County awaiting sentencing. However, if Meade’s version of the pertinent dates is correct, the 42 days credited her included only the time served from her arrest date of March 12, 2004, to her release on her own recognizance on April 22, 2004. It would not include the additional time she served in August while awaiting sentencing on the Sumter County offense after being transported from Lowell to Sumter County.

The trial court summaiily denied Meade’s claim finding that “Defendant has been already awarded jail time credit for the period of time spent in the Sumter County jail awaiting sentencing.” The problem is that the trial court failed to attach portions of the record refuting the claim. Thus, it is necessary to reverse and remand for the purpose of allowing the court to either attach sufficient portions of the record refuting the claim, grant credit for four additional days of jail time or, if the issue cannot be determined based on the face of the record, deny the claim without prejudice to Meade to file a timely motion pursuant to rule 3.850, Florida Rules of Criminal Procedure, if she is able to do so.

AFFIRMED in part; REVERSED in part; REMANDED for record attachments.

SAWAYA, ORFINGER and TORPY, JJ., concur.

      . The dates espoused by Meade are not the dates recited in the trial court’s order denying relief. The discrepancy affects the correct calculation of jail credit and must be resolved on remand.

      . Again, the dates advanced by Meade as representing the time she awaited sentencing in Sumter County differ from those considered by the trial court.


author: WALLACE, Judge.

text:
    NEW PORT RICHEY MEDICAL INVESTORS, LLC, d/b/a Life Care Center of New Port Richey; Forrest L. Preston; Developers Investment Company II, Inc.; Life Care Center of America, Inc., a/k/a Life Care Center of America, Inc. of Tennessee, a/k/a Life Care Center of America; Kimberly Smith, a/k/a Kimberly Ann Smith; and Kerri Deren, n/k/a Kerri D. Harmon (as to Life Care Center of New Port Richey), Appellants, v. Dorothy STERN, by and through Debra PETSCHER, Attorney-in-Fact, Appellee.
    No. 2D09-214.
    District Court of Appeal of Florida, Second District.
    June 5, 2009.

      Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Orlando, for Appellants New Port Richey Medical Investors, LLC; Forrest L. Preston; Developers Investment Company II, Inc.; and Life Care Center of America, Inc.
    No appearance for Appellants Kimberly Smith and Kerri Deren.
    Susan B. Morrison of Law Offices of Susan B. Morrison, P.A., Tampa, and Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellee.
   WALLACE, Judge.

In this appeal we are asked to determine whether an agreement for arbitration between a nursing home resident and a nursing home is enforceable when the organization designated in the agreement to administer the arbitration is unavailable. Because section 682.04, Florida Statutes (2007), provides that the court shall appoint one or more arbitrators if the method for appointment of arbitrators agreed on in the parties’ agreement fails or for any reason cannot be followed, we hold that the arbitration agreement is enforceable under these circumstances. Accordingly, we reverse the circuit court’s order that ruled to the contrary.

I. THE FACTS AND PROCEDURAL HISTORY

In June 2008, the appellee, Dorothy Stern, filed an action for the violation of her rights as a nursing home resident and for other claims against the appellants, New Port Richey Medical Investors, LLC, d/b/a Life Care Center of New Port Rich-ey, and others (collectively, Life Care). Life Care moved to dismiss Ms. Stern’s complaint and to compel arbitration. When Ms. Stern was admitted to Life Care’s facility in April 2006, she and Life Care entered into an arbitration agreement. The agreement provided, in pertinent part, that any disputes would be submitted to arbitration to be administered by the American Arbitration Association (the AAA). The agreement provided further that “[i]n conducting the hearing and all other proceedings relative to the arbitration of the claims(s), the arbitrators shall apply the applicable rules of procedure of the AAA.”

At a hearing on the motion to compel arbitration, Ms. Stern submitted a paper from an internet website purporting to be from the AAA. The paper, which was titled “Healthcare Policy Statement,” provided, in pertinent part: “As a result of a review of its caseload in the health care area, the American Arbitration Association has announced that it will no longer accept the administration of cases involving individual patients without a post-dispute agreement to arbitrate.” According to the statement, this policy became effective on January 1, 2003.

Ms. Stern and Life Care never entered into a postdispute agreement to arbitrate. Based on the absence of such a postdispute agreement and the AAA’s policy statement, Ms. Stern’s attorney argued “that there was no valid agreement to arbitrate.” Ms. Stern’s attorney explained:

Here, we have the AAA changing its rules and no longer accepting these particular types of claims; and it’s very clearly in the agreement, therefore, what the parties agree to — and this is an essential term. Why is this an essential material term? We have the choice of arbitrator being the AAA, and we have the rules of procedure being the AAA rules of procedure.
Those are material terms that the parties agree to. It’s not for the Court to come and change the agreement of the parties with respect to this. And clearly circumstances have changed outside of what the parties knew at the time they created this agreement, such that it’s impossible to perform a material term of the contract.

Despite this argument, neither party presented any evidence concerning the intent of the parties in selecting the AAA as the forum for any arbitration proceedings that might arise.

The circuit court ruled that the arbitration agreement was invalid and unenforceable. Based on this ruling, the circuit court denied Life Care’s motion to compel arbitration. This appeal followed.

II. PRELIMINARY MATTERS

The circuit court’s decision to deny Life Care’s motion to compel arbitration is based in part on findings of fact, presenting us with a mixed question of law and fact. Our “review of the [circuit] court’s factual findings is limited to determining whether they are supported by competent, substantial evidence.” Shotts v. OP Winter Haven, Inc., 988 So.2d 639, 643 (Fla. 2d DCA 2008). However, we use a de novo standard to review the circuit court’s construction of the arbitration agreement and its application of the law to the facts found. Id.

“In determining whether a dispute is subject to arbitration, courts consider at least three issues: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (8) whether the right to arbitration was waived.” Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). Here, the only issue before us is the enforceability of the parties’ arbitration agreement in light of the unavailability of the designated forum for the conduct of the arbitration.

III. DISCUSSION

The circuit court erred in ruling that the unavailability of the AAA to conduct the arbitration rendered the arbitration agreement unenforceable. The Florida Arbitration Code specifically addresses the eventuality of the unavailability of the parties’ chosen arbitrator to conduct the arbitration. Section 682.04 provides:

If an agreement or provision for arbitration subject to this law provides a method for the appointment of arbitrators or an umpire, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or if an arbitrator or umpire who has been appointed fails to act and his or her successor has not been duly appointed, the court, on application of party to such. agreement or provision shall appoint one or more arbitrators or an umpire. An arbitrator or umpire so appointed shall have like powers as if named or provided for in the agreement or provision.

(Emphasis added.) Thus the parties’ arbitration agreement is not rendered invalid or unenforceable simply because the AAA is unavailable to conduct the arbitration. Instead, the circuit court must appoint another arbitrator or arbitrators. See Owens v. Nat’l Health Corp., 263 S.W.3d 876, 885-86 (Tenn.2007). But see Magnolia Healthcare, Inc. v. Barnes ex rel. Grigsby, 994 So.2d 159, 161-62 (Miss.2008) (plurality opinion).

Ms. Stern did not present any evidence in the circuit court that the choice of the AAA as the forum for any arbitration proceedings was an integral part of the agreement to arbitrate. See Brown v. ITT Consumer Fin. Corp., 211 F.3d 1217, 1222 (11th Cir.2000) (construing section 5 of the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (2000)) (citing Zechman v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 742 F.Supp. 1359, 1364 (N.D.Ill.1990)). We also observe that the parties’ arbitration agreement contains a severability clause.

IY. CONCLUSION

For the foregoing reasons, we reverse the circuit court’s order denying Life Care’s motion to compel arbitration and we remand for further proceedings consistent with this opinion.

Reversed and remanded.

DAVIS and SILBERMAN, JJ„ Concur.

      . This court has jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).


author: COHEN, J.

text:
    B.L.S., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2207.
    District Court of Appeal of Florida, Fifth District.
    June 5, 2009.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Appellant, B.L.S., challenges his delinquency adjudication for possession of a firearm with serial number altered or removed in violation of section 790.27(2)(a), Florida Statutes (2008), and the trial court’s failure to resentence him after granting his motion to correct sentencing error by striking the serious habitual offender (“SHO”) designation. We affirm the delinquency adjudication, but reverse and remand for a new disposition hearing.

Appellant argues for the first time on appeal that the trial court erred in denying his motion for judgment of dismissal of possession of a firearm with altered serial number because there was no evidence that he knowingly possessed a gun on which the serial number had been altered or removed. Appellant’s counsel argued that the evidence did not show that the gun was in Appellant’s possession because it was merely found within the perimeter area. However, Appellant’s counsel never raised any question about his client’s knowledge of the gun’s altered serial number.

Generally, for an argument to be cognizable on appeal, it must be the specific contention asserted as the legal ground for the objection, exception, or motion below. Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982). However, when challenging the sufficiency of the evidence, a contemporaneous objection is not required when the evidence is insufficient to show a crime was committed at all. F.B. v. State, 852 So.2d 226, 229 (Fla.2003). Although 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 serial number was altered. Accordingly, we affirm the adjudication for possession of a firearm with an altered serial number.

The trial court conducted a disposition hearing after reviewing a PDR. The State noted that Appellant was eligible for a Level 10 and a SHO program, and the DJJ recommended a high-risk Level 8. The State and DJJ sought SHO designation under section 985.47(l)(b), Florida Statutes (2008), based upon Appellant’s age of over 13, a current felony offense, and at least two previous delinquency commitment programs. Appellant’s counsel agreed that Appellant met the criteria of section 985.47(l)(b). The trial court adjudicated Appellant guilty of the offenses, found he met the qualifications for SHO treatment, and adjudicated him a SHO. The trial court entered a Level 8 placement disposition on the three counts.

Appellant filed a motion pursuant to Florida Rule of Juvenile Procedure 8.135(b)(2), to strike the SHO designation as an improper enhancement for the use of a firearm inherent in the current offenses. Since the original SHO designation was based, however, upon subsection 985.47(l)(b), rather than subsection (l)(a)(14), the trial court mistakenly granted the motion.

Upon resentencing, which is a completely new proceeding with no obligation for the trial court to make the same findings it made in the prior proceeding, the trial court could again impose the SHO designation. See Phillips v. State, 705 So.2d 1320, 1322 (Fla.1997); Orta v. State, 919 So.2d 602, 604 (Fla. 3d DCA 2006).

Accordingly, we affirm Appellant’s delinquency adjudication and remand for a new disposition hearing.

AFFIRMED AND REMANDED.

SAWAYA and MONACO, JJ., concur.

      . Appellant was also adjudicated delinquent for possession of a firearm by a person deemed to have committed a delinquent act, a second-degree felony, and carrying a concealed firearm, a third-degree felony, but neither was appealed.


author: LAWSON, J.

text:
    Charlie HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4132.
    District Court of Appeal of Florida, Fifth District.
    June 5, 2009.

      Charlie Hamilton, Mayo, pro se.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Charlie Hamilton appeals from an order summarily denying his motion for postcon-viction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.

Hamilton was one of three co-defendants indicted on charges of first-degree felony murder, robbery with a firearm and dealing in stolen property. Following a jury trial, he was acquitted on the first two charges and convicted on the dealing in stolen property charge. The trial court sentenced Hamilton to fifteen years in prison, and the conviction and sentence were affirmed on appeal. Hamilton v. State, 947 So.2d 1185 (Fla. 5th DCA 2007). Although Hamilton’s direct appeal was decided without a written opinion, our records show that the only issue on appeal was whether the evidence introduced at trial was sufficient to support Hamilton’s conviction on a principals theory.

As the sole ground for relief alleged in his 3.850 motion, Hamilton alleges that there was insufficient evidence to support giving a principals instruction at trial, and that his trial counsel was therefore ineffective for failing to object to the instruction. We agree with the trial court that although the issue in Hamilton’s 3.850 motion is technically different than the issue decided by Hamilton’s direct appeal, the prior appeal also necessarily resolved Hamilton’s postconviction claim. In other words, if there was sufficient evidence to support a conviction using a principals theory, that same evidence would have been sufficient to justify giving the principals instruction in the first instance. See Johnson v. State, 985 So.2d 1215 (Fla. 1st DCA 2008) (holding that insufficiency of evidence not cognizable in postconviction claim); Jackson v. State, 640 So.2d 1173 (Fla. 2d DCA 1994) (same).

AFFIRMED.

GRIFFIN and MONACO, JJ., concur.


text:
    Glendora LOMACK, Appellant, v. Ronald A. MOWREY and R.H. Mowrey, Appellees.
    No. 1D08-2554.
    District Court of Appeal of Florida, First District.
    June 9, 2009.

      Wendy Loquasto of Fox & Loquasto, P.A., Tallahassee; Deveron L. Brown of Brown & Associates, L.L.C., Tallahassee, for Appellant.
    Angela C. Flowers and Amy L. Miles of Kubicki, Draper, Ocala, for Appellees.
   PER CURIAM.

Glendora Lomack appeals a final summary judgment in a premises liability action. She alleged in her complaint below that while cleaning a law office owned by appellees, she became entangled in some exposed computer cables and fell, resulting in significant injuries. Concluding that the trial court erred in granting summary judgment, we reverse and remand for further proceedings.

Lomack’s claim against appellees rested on the theory that her injuries resulted from appellees’ breach of their duty to maintain their property in a safe condition. In granting summary judgment, the trial court found as follows:

The record which includes the deposition of Plaintiff, Glendora Lomack, reveals that there was no known dangerous condition in existence in the area where Plaintiffs alleged injuries were sustained; that there were no obstacles blocking Plaintiffs view of the open and obvious area where she allegedly fell; that Plaintiff was familiar with the subject area having entered the area on at least 100 occasions prior to the alleged fall; and that .there is no evidence whatsoever of prior similar incidents which would have placed [appellees] on notice of a potential danger in the area where Plaintiff allegedly fell.

As both parties correctly recognize, orders granting summary judgment are reviewed under a de novo standard. See Futch v. Wal-Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008). Under Florida Rule of Civil Procedure 1.510, the court may grant summary judgment if there is no genuine dispute as to any issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 1.510(c) provides that a motion for summary judgment must “state with particularity the grounds upon which it is based and the substantial matters of law to be argued.” The burden to conclusively establish the nonexistence of a disputed issue of material fact and entitlement to judgment as a matter of law rests squarely with the movant. See Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966); Bloch v. Berkshire Ins. Co., 585 So.2d 1137, 1138 (Fla. 3d DCA 1991). Only after these elements are established by the movant does the burden shift to the party opposing the motion to establish existence of a dispute of material fact. See Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786 (Fla. 4th DCA 1995).

In their motion below, appellees correctly acknowledged that, as landowners, they owed to invitees the duties to: (a) use reasonable care to maintain their premises in a safe condition, and (b) give warning of concealed perils which are or should be known to them, but which are unknown to the invitee and could not have been discovered by the invitee even with the exercise of reasonable care. See DiMarco v. Colee Court, Inc., 976 So.2d 650, 651 (Fla. 4th DCA 2008); Freeman v. BellSouth Telecomms., Inc., 954 So.2d 45, 46 (Fla. 1st DCA 2007); Williams v. Madden, 588 So.2d 41, 43 (Fla. 1st DCA 1991). In their motion for summary judgment, appellees argued that they had no duty to warn because the condition of the wires on the floor was “open and obvious” and “non-dangerous.” Apart from characterizing the condition as “non-dangerous,” however1, the motion did not meaningfully address whether appellees had satisfactorily discharged their duty to maintain the premises in a safe condition.' The reconstructed record of the summary judgment hearing likewise suggests that the arguments and evidence discussed at the hearing went exclusively to the “duty to warn” issue. Not surprisingly, then, the trial court’s order granting summary judgment is grounded on a finding that appellees had no duty to warn of the hazard presented by the loose wires because that hazard was not known to appellees and in any event was open and obvious.

In light of the foregoing, we conclude that the trial court erred in granting summary judgment bottomed upon an incomplete analysis of the relevant issues of fact and law. Case law consistently recognizes that the fact that a danger is open and obvious may operate to discharge a landowner’s duty to warn, but it does not discharge the duty to maintain the property in a reasonably safe condition. See, e.g., Fieldhouse v. Tam Inv. Co., 959 So.2d 1214, 1216 (Fla. 4th DCA 2007); Miller v. Slabaugh, 909 So.2d 588, 589 (Fla. 2d DCA 2005); Aaron v. Palatka Mall, L.L.C., 908 So.2d 574, 577-78 (Fla. 5th DCA 2005); Lynch v. Brown, 489 So.2d 65, 66 (Fla. 1st DCA 1986); Pittman v. Volusia County, 380 So.2d 1192, 1193-94 (Fla. 5th DCA 1980). Moreover, despite the trial court’s apparent conclusion to the contrary, an invitee’s knowledge of a danger is normally not a complete bar to recovery, but rather only triggers the application of comparative negligence principles. See Kirk v. TJ Palm Beach Assocs. Ltd. P’ship, 976 So.2d 694, 695 (Fla. 4th DCA 2008); Fenster v. Publix Supermarkets, Inc., 785 So.2d 737, 739 (Fla. 4th DCA 2001); Knight v. Waltman, 774 So.2d 731, 734 (Fla. 2d DCA 2000).

Accordingly, even if the hazard caused by the loose wires were open and obvious and appellees thus had no duty to wai’n appellant of it (a finding the present record would not allow us to embrace at this point), the lower court nonetheless erred by determining appellees’ entitlement to judgment as a matter of law, given the absence of a factually supported finding that appellees also had not breached their duty to maintain their premises in a reasonably safe condition. The order on appeal is therefore REVERSED and the matter REMANDED for further proceedings.

KAHN, THOMAS, and ROBERTS, JJ., concur.

       Appellees argue in their brief to this court that the appropriate standard of care is a more relaxed one applicable to independent contractors. The applicability of that standard was not among "the substantial matters of law” disclosed in their motion, nor is it mentioned in the reconstructed record of the summary judgment hearing. Thus, the "tipsy coachman” rule notwithstanding, any reliance on this different standard at this point would be contrary to elementar)' due process principles and the express requirements of rule 1.510.


author: KAHN, J.

text:
    Vasaliki Michelle OWENS n/k/a Vasaliki Michelle Parker, Appellant, v. David Scott OWENS, Appellee.
    No. 1D08-5169.
    District Court of Appeal of Florida, First District.
    June 9, 2009.
    E. Jane Brehany, Pensacola, for Appellant.
    Henry Lawrence Perry of Perry & Young, P.A., Panama City, for Appellee.
   KAHN, J.

Appellant, the former wife of appellee, seeks review of an order of dismissal entered by the circuit court. Appellant points out, and the record confirms, that appellee’s attorney obtained the order of dismissal by filing a motion to dismiss, a copy of which was never served upon appellant. The motion to dismiss alleges affirmative factual matters, which, if true, might ultimately be of great aid to appel-lee in defending appellant’s claim for past due child support. For reasons not disclosed by the record, the circuit judge seems to have entered, in a more or less ex parte manner, an order dismissing appellant’s claim for child support arrearages. The record reflects that appellant has never been heard on this question.

Procedural due process requires both fair notice and a real opportunity to be heal’d before judgment is rendered. See Dep’t of Law Enforcement v. Real Prop., 588 So.2d 957, 960 (Fla.1991). We are persuaded that appellant not only had no opportunity to be heard, she received no notice at all of the proceeding. Interestingly, in attempting to uphold the order, appellee’s counsel does not respond to the due process argument. Instead, counsel argues that we should review the order of dismissal under the familiar abuse of discretion standard generally applicable in Florida dissolution of marriage matters. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). In support of his argument, counsel has attached a number of “exhibits,” which, if presented to the court below, might support a contention that child support arrearages had been satisfied. The problem is, these exhibits have never been presented to the court below, and appellant has never had an opportunity to explain her contention that she is still owed monies, whether in the form of arrearages, interest, attorney’s fees, or costs associated with those other matters.

We conclude that the procedure utilized below effectively deprived appellant of her basic due process rights. We express no opinion on the underlying merits of this case. The order of dismissal with prejudice is REVERSED, and this case is REMANDED for further proceedings.

THOMAS, and ROBERTS, JJ., concur.


text:
    A. Jay MULLINIX, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3191.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2009.
    Rehearing Denied July 15, 2009.
    A.J. Mullinix, Chipley, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

TORPY, and LAWSON, JJ., and COBB, W., Senior Judge, concur.


author: NORTHCUTT, Chief Judge.

text:
    Devin Carl WYNN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-928.
    District Court of Appeal of Florida, Second District.
    June 10, 2009.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Chief Judge.

Devin Wynn pleaded guilty to charges of possession of cocaine and possession of drug paraphernalia. He reserved the right to appeal the denial of his dispositive motion to suppress the evidence of these crimes. We agree with Wynn’s contention that the contraband was seized during an illegal search. Accordingly, we reverse his convictions and remand with directions to discharge him.

At the hearing on the motion to suppress, Hillsborough County Sheriffs deputies testified that they stopped a car in which Wynn was a passenger because they believed he matched the description of a suspect in a recent robbery. One deputy approached the driver’s side of the car while two other deputies went to the passenger side. According to one of the deputies investigating the passenger, Wynn was making “avertive” movements toward the pockets of his baggy shorts. He asked Wynn to step out of the car and provide identification. The deputy admitted that, at this point, Wynn was no longer a suspect in the robbery. Wynn was told to place his hands on the top of the car and the deputy patted his pockets, which, he testified, dispelled any suspicion that Wynn was carrying a firearm or other dangerous weapon. Still, the deputy asked Wynn “do you mind if I take the items out [of your pocket] and put them on the car.” Wynn did not reply. The contraband was discovered in this search.

Meanwhile, on the driver’s side of the car, another deputy noticed a baggie of cocaine in what he described as “the door handle of the driver’s door.” He immediately detained the driver.

We begin by discussing the initial pat-down search. Although the deputy’s account was not crystal clear, for these purposes we will assume that he had probable cause to conduct a warrantless pat down to determine if Wynn was armed. See Frazier v. State, 789 So.2d 486, 488 (Fla. 2d DCA 2001) (stating that defendant’s acts of briskly removing his hand from his pocket and reaching underneath his shirt provided probable cause for a pat-down search). Even so, the deputy testified that the pat down allayed his concern that Wynn might be armed — he did not feel anything that resembled a weapon during the search. Nor did he state that he felt items he believed were contraband. See Minnesota v. Dickerson, 508 U.S. 366, 375-77, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) (discussing the “plain feel” exception to the warrant requirement). Because the pat down did not reveal anything that might have been a weapon or contraband, the deputy’s authority to search stopped there. Frazier, 789 So.2d at 488-89. But the deputy continued, delving into Wynn’s pockets.

Absent probable cause to believe Wynn’s pockets contained contraband, the deputy had no authority to search them unless Wynn consented to the search. Consent is an exception to the warrant requirement, but the State bears the burden of proving that it was unequivocally given. Any doubt concerning a suspect’s consent must be resolved in his favor. V.H. v. State, 903 So.2d 321, 322 (Fla. 2d DCA 2005). When the deputy asked if Wynn would mind if the contents of his pockets were removed, Wynn did not respond. Thus he did not unequivocally consent, and that exception did not apply.

The State sought to justify the search on the ground that Wynn was in constructive possession of the cocaine found in the driver’s side door. Hence it was required to show that Wynn knew about the cocaine and could exercise dominion and control over it. We have held that when the smell of marijuana and the sight of smoke emanates from a car, an officer has probable cause to believe that both elements of the constructive possession test are met for each of the car’s occupants. Dixon v. State, 343 So.2d 1345, 1348 (Fla. 2d DCA 1977); see also State v. Williams, 967 So.2d 941, 942-43 (Fla. 1st DCA 2007) (discussing situations where law enforcement may have probable cause to search an occupant of a car, rather than just the vehicle itself).

In this case, the deputies related no fact that would suggest they had probable cause to believe Wynn constructively possessed the drugs found in the car. Although constructive possession can be shown when the contraband is in the defendant’s plain view, the deputy who found the drugs recounted only that they were in his own view; he did not testify that the drugs were in Wynn’s view. In fact, his description of where the drugs were located — in the driver’s-side door handle of the car — implied that the drugs were not visible to Wynn. The deputy who was investigating Wynn did not testify that he saw the cocaine from the vantage of the passenger’s side; he simply noted that the deputy on the driver’s side found the baggie.

Because the State presented no evidence that the drugs were in plain view of the car’s passenger, it had to present independent proof that Wynn knew the cocaine was in the car in order to justify the warrantless search of his person on the basis of constructive possession. See S.E.B. v. State, 994 So.2d 1216, 1217 (Fla. 2d DCA 2008) (and cases cited therein). It did not.

The circuit court erred in denying Wynn’s motion to suppress the evidence obtained in this warrantless search. We reverse and remand with directions to discharge Wynn.

Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.


author: POLEN, J.

text:
    JOUVENCE CENTER FOR ADVANCED HEALTH, LLC, a Florida limited liability company, Julia P. Haskins, and Justin J. Haskins, Appellants, v. JOUVENCE REJUVENATION CENTERS, LLC, a Florida limited liability company, Appellee.
    No. 4D08-4753.
    District Court of Appeal of Florida, Fourth District.
    June 10, 2009.
    James S. Telepman of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellants.

      Cesery L. Bullard of Bullard Law, Orlando, for appellee.
   POLEN, J.

Appellants, Jouvence Center for Advanced Health, LLC, Julia Haskins, and Justin Haskins, appeal the trial court’s order preliminarily enjoining them from continuing use of Appellee, Jouvence Rejuvenation Centers, LLC’s, patient files and proprietary information and establishing an injunction bond of $1000. This court has jurisdiction. Fla.R.App.P. 9.130(a)(3)(B). For the reasons stated below, we reverse and remand for further proceedings.

Jouvence Rejuvenation Centers (JRC), brought an action against Jouvence Center for Advanced Health (JCAH), Julia Has-kins, and Justin Haskins, seeking injunc-tive relief and damages for Julia Haskins’ conversion of JRC’s “bank account, patient files, marketing material, software and computers” after she left JRC’s employ and formed JCAH.

JRC’s complaint alleged that it hired Julia Haskins in September 2007. During her employment with JRC, Julia Haskins had access to patient files and information, marketing/research materials, outside vendors, and bank accounts which were confidential and not available to individuals other than those selected by the managing member of JRC. On August 2, 2008, Julia Haskins left the employ of JRC and formed JCAH with her husband, Justin Haskins. JRC alleged that Julia Haskins and Justin Haskins used its patient files and other proprietary information in JCAH, had refused to cease and desist their use of the files, and had also refused to return the files to JRC.

JRC alleged that it would suffer direct and irreparable damage unless Julia Has-kins and Justin Haskins were enjoined from continuing their use of the patient files. JRC also alleged it had no speedy or adequate remedy at law because so long as Julia Haskins and Justin Haskins were permitted to continue use of the files, JRC would continue to sustain monetary loss and diversion of its business. Accordingly, JRC sought an injunction prohibiting the Haskins’ and JCAH’s continued use of the files and ordering the files returned to JRC.

The trial court held a hearing on JRC’s motion for preliminary injunction on October 17, 2008. None of the named defendants appeared at the hearing. Counsel for JRC explained to the court that, to the best of her knowledge, the judge’s JA originally tried to set the hearing for October 10, 2008, but defendants were out of town on that date. Accordingly, the hearing was set for October 17, 2008. The trial court believed that defendants had received notice and proceeded with the hearing.

JRC’s managing member testified and corroborated all of the allegations made in JRC’s complaint. The managing member also explained that JRC is a wellness clinic which offers its patients bio-identical hormone treatments, neutroceutical treatments, and diet and exercise plans to restore their youth. JRC paid a referral fee to the doctors and fitness centers who referred clients to its practice. Without the patient files, the managing member explained that JRC could not “move the business forward” because doctors would refuse to write prescriptions without reviewing the files. JRC offered evidence that defendants had sold products to JRC’s patients under their new business name since Julia Haskins’ departure from its employ. JRC also offered evidence that Julia Haskins took funds from its bank account and introduced a list of physical possessions which she had refused to return to JRC. Finally, on or about September 19th, the managing member reported the property stolen to the Palm Beach Police Department.

After hearing testimony and reviewing JRC’s evidence, the trial court entered an order enjoining the defendants from continuing their use of the patient files and other proprietary information, ordering the files returned to JRC, ordering the return of all personal property (including but not limited to a desktop computer, two laptop computers, computer server, desks, executive chairs, filing cabinet and laser printer), and conditioning the injunction on JRC’s payment of a $1000 bond.

On October 23, 2008, defendants filed an answer and affirmative defenses to JRC’s complaint and a motion to dissolve the injunction. Defendants argued in their answer and motion to dissolve the injunction that JRC had failed to allege facts sufficient to satisfy the procedural and substantive requirements for injunctive relief. Defendants also stated that they had failed to appear at the October 17th hearing because they had not received the order scheduling the hearing until October 21, 2008.

At the hearing on defendants’ motion to dissolve the injunction, counsel for defendants argued that both the request for injunctive relief and the court’s order were deficient as a matter of law because the motion failed to show likelihood of success on the merits and the order failed to make findings of fact as to each of the four elements required for an injunction to be entered. The trial court denied defendants’ motion. Defendants now timely appeal.

“A trial court’s ruling on a temporary injunction comes to the appellate court with a presumption of correctness, reversible only upon a showing of a clear abuse of discretion.” First Miami Sec., Inc. v. Bell, 758 So.2d 1229, 1230 (Fla. 4th DCA 2000). A party seeking a temporary injunction must prove: (1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has no adequate remedy at law; (3) that it has a substantial likelihood of success on the merits; (4) that a temporary injunction will serve the public interest. Net First Nat’l Bank v. First Telebanc Corp., 834 So.2d 944, 949 (Fla. 4th DCA 2003). The party must also establish that it has a clear legal right to the relief sought. Id. Finally, a trial court must make “clear, definite, and unequivocally sufficient factual findings” supporting each of the required elements before entering an injunction. Id.

From the record before us, it is unclear whether the information possessed by JCAH is proprietary in nature, and thus, whether and on what grounds JRC has a clear legal right to a temporary injunction. In any case, the trial court neglected to make specific findings of fact regarding the four elements which must be shown before a preliminary injunction may be entered, and we reverse and remand for the trial court to make the required findings. Whether additional evidence is needed in order to make the necessary findings, we leave to the trial court’s determination.

Reverse and remand for proceedings consistent with this opinion.

GROSS, C.J., and WARNER, J„ concur.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. Keith H. BUCHALTER, D.C., d/b/a South Broward Chiropractic, Center, a/a/o Maria Garcia, Appellee.
    No. 4D09-566.
    District Court of Appeal of Florida, Fourth District.
    June 10, 2009.
    Michael J. Neimand, Miami, for petitioner.
    Laura M. Watson of Watson & Lentner, Fort Lauderdale, for respondent.
   PER CURIAM.

Petitioner United Automobile Insurance Company (UAIC) has brought this second-tier certiorari petition, challenging a Bro-ward Circuit Court order, which dismissed its appeal for lack of jurisdiction. We grant the petition for writ of certiorai'i, quash the order of dismissal and remand for reasons which follow.

Respondent Keith H. Buchalter, D.C., d/b/a South Broward Chiropractic Center (Buchalter) is a medical provider who allegedly rendered medical services to Maria Garcia as a result of an auto accident, which occurred in June 2002. Buchalter sued UAIC in Broward County Court, alleging counts for breach of contract for Personal Injury Protection (PIP) statutory benefits and for declaratory relief regarding coverage. UAIC moved to dismiss the declaratory judgment count in September 2003, and its motion was granted. UAIC filed an answer and affirmative defenses and the case proceeded. Buchalter filed an amended complaint asserting five counts.

Buchalter later filed a motion for sanctions, motion to strike UAIC’s pleadings and a motion for entry of a judgment in the Broward County Court. In that motion, Buchalter argued that he had made seven unsuccessful attempts to depose the insurance adjuster most knowledgeable of the claim and that, twice previously, the County Court had sanctioned UAIC regarding its failure to properly give the requested deposition..

The Broward County Court entered an order striking UAIC’s pleadings and entered a default judgment against it. The county court later entered a final judgment in favor of Buchalter. Finding that UAIC’s violations were willful, the court imposed the maximum fíne allowed by statute.

UAIC appealed the Broward County Court’s final judgment to the Broward Circuit Court. Buchalter filed a motion to dismiss the appeal for lack of jurisdiction,. arguing that UAIC had failed to timely appeal the County Court’s default judgment, styled as a sanctions order, as a non-final appeal under Floi'icla Rule of Appellate Procedure 9.130(a)(3)(C)(iv). In response, UAIC argued that there was no interlocutory appeal authorized from county court to circuit court and that interlocutory orders determining liability are no longer appealable under the current version of rule 9.130(a)(3)(C). Further, UAIC argued that the timely appeal from the final judgment gave the circuit court jurisdiction, allowing challenges to all underlying orders issued prior to that final judgment. The circuit court entered an order granting Buchalter’s' motion to dismiss the appeal.

Second-tier certiorari will lie in this Court from final determinations by the circuit court made in its appellate capacity. The petitioner must demonstrate that the circuit court failed to afford procedural due process or failed to apply the correct law (the equivalent of a departure from the essential requirements of law). See generally Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995).

As UAIC observes, there is no authority for a non-final appeal from an order striking a defendant’s pleadings and entering a default, even under rule 9.130(a)(3)(C), since the rule was amended in 2000 resulting in removal of the provision for appeals of orders determining liability in favor of a party seeking affirmative relief. As a result of the amendment, orders determining the issue of liability in favor of a party seeking affirmative relief are not appealable until final judgment. See Amendments to Fla. Rules of Appellate Procedure, 780 So.2d 834 (Fla.2000); see also Singleton v. Realty Land Invs., Inc., 5 So.3d 794, 795 (Fla. 1st DCA 2009) (dismissing an appeal, holding that circuit court order styled as “judgment by default” as to liability, but reserving the issue of damages, was not an appealable order under rule 9.130). Further, even if the order was appealable as an interlocutory appeal, petitioner still had the right to wait to appeal the order after final judgment in a plenary appeal. See Saul v. Basse, 399 So.2d 130, 133 (Fla. 2d DCA 1981) (holding that appeal of final order includes review of all interlocutory orders leading to that final order, whether separately appealed or not (citing Auto Owners Ins. Co. v. Hillsborough County Aviation Auth. for Use & Benefit of Gen. Elec. Supply Co., 153 So.2d 722, 724 (Fla.1963))); see also Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So.2d 146 (Fla. 3d DCA 2002).

Therefore, we grant the petition for writ of certiorari and quash the circuit court’s dismissal of the appeal. This cause is remanded to the circuit court for further proceedings.

Petition granted, order quashed and cause remanded.

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


text:
    Johnson MICHEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2868.
    District Court of Appeal of Florida, Third District.
    June 10, 2009.

      Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before COPE and SALTER, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Defendant-appellant Johnson Michel appeals his conviction for first-degree murder. Prior to trial, the defendant filed a motion to suppress statements he made to detectives on the ground that due to his intellectual deficiencies, his waiver of his Miranda rights was not knowingly or intelligently made. The motion was denied. At the conclusion of his trial by jury, the jury returned a verdict of guilty as charged of first degree murder. The defendant was sentenced to life in prison.

On appeal, the defendant contends that the motion to suppress his statements should have been granted. We disagree. The trial judge took testimony and heard legal argument from counsel and determined that the defendant knowingly and voluntarily waived his rights. We conclude that the court’s denial of the motion to suppress was supported by competent and substantial evidence. See Maragh v. State, 905 So.2d 207, 208 (Fla. 3d DCA 2005) (denial of motion to suppress is proper where there is competent substantial evidence that Miranda rights are voluntarily waived).

The defendant argues that the trial court abused its discretion when it admitted hearsay statements of correctional officers and when it refused to permit the defendant to cross-examine a witness. We find that the evidentiary rulings were within the trial court’s discretion and we do not disturb those rulings. See Urquiza v. State, 971 So.2d 926, 927 (Fla. 3d DCA 2007) (trial judge’s ruling on evidentiary matters will not be disturbed absent showing of abuse of discretion).

The defendant argues that the trial court committed fundamental error in the self-defense instruction given at his trial. The trial judge gave, without objection, an instruction on the justifiable use of deadly force in self-defense and included the independent forcible-felony exception to self-defense. The instructions given to the jury with regard to self-defense included the forcible-felony instruction, as follows:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find,
1. Johnson Michel was attempting to commit, committing or escaping after the commission of murder and/or manslaughter; or....

It was error for the trial court to read this instruction because for the forcible-felony instruction to apply, there must be an independent forcible felony other than the offense which the defendant claims he committed in self-defense. Martinez v. State, 981 So.2d 449, 457 (Fla.2008). Here, the defendant was charged with murder, and manslaughter as a lesser included offense. There was no independent forcible felony.

Because the defendant did not object to the instruction, the matter was unpreserved. Therefore, we must determine whether the error was fundamental error. In Martinez, the Supreme Court held the erroneous reading of this instruction constitutes fundamental error only when it deprives the defendant of a fair trial. Id. We conclude that the defendant was not deprived of a fair trial and that the giving of the instruction here was not fundamental error. The defendant’s main defense was misidentification and not self-defense. In fact, the defendant did not even mention self-defense in closing argument. Based on these facts, we do not find fundamental error in the instruction given to the jury.

Affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)