author: CLARK, J.

text:
    ALL SAINTS EARLY LEARNING AND COMMUNITY CARE CENTER, INC., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-4784.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2014.
    T.A. “TAD” Delegal, III of Delegal Law Offices, P.A., Jacksonville, for Appellant.
    David G. Tucker, Regional Counsel, Jacksonville, for Appellee.
   CLARK, J.

All Saints Early Learning and Community Care, Inc., (“All Saints”) appeals the amended final order of the Department of Children and Families (“DCF”) finding that on December 21, 2010, All Saints violated a licensing standard under section 402.305(l)(a), Florida Statutes, as implemented by rule 65C-22.001(5)(a), Florida Administrative Code, by failing to provide the required level of supervision of a child in its care. DCF imposed an administrative fine of $500.00. All Saints’ license was not revoked or suspended. See § 402.310(l)(a)l., Fla. Stat. Because the violation of the supervision standard was a “class I violation” pursuant to rule 65C-22.010(l)(d), Florida Administrative Code, All Saints’ Gold Seal Quality Care designation under section 402.381(4), Florida Statutes, was terminated. All Saints contends on appeal that DCF misinterpreted rule 65C-22.001(5)(a) by holding All Saints “strictly liable” for the isolated negligent act of All Saints’ employees and that DCF exceeded its authority by imposing the administrative disciplinary action against All Saints.

The scope and standards for our review are governed by section 120.68, Florida Statutes. Pursuant to section 120.68(8), final agency action must be affirmed unless this Court finds a ground or grounds to set it aside under section 120.68(7)(a)-(7)(e). Sanders v. Dep’t of Children & Families, 118 So.3d 899 (Fla. 1st DCA 2013); Miami-Dade Cnty. v. Dep’t of Cmty. Affairs, 54 So.3d 633 (Fla. 1st DCA 2011). The material facts in this case were stipulated by the parties, and the administrative proceedings were conducted under section 120.57(2), governing procedures for hearings not involving disputed issues of material fact. Appellant does not assert any material error in procedure or failure by DCF to follow prescribed procedure. Thus, the statutory ground most closely aligned with Appellant’s argument on appeal is section 120.68(7)(d): “The agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action.”

The stipulated facts were accepted and adopted by the hearing officer’s recommended order and approved by DCF’s amended final order. The facts were thus established that during the late morning on December 21, 2010, a class of eight children, ranging in age between 18 and 24 months, was using All Saints’ outdoor play area. For this age group, the DCF staff-to-child ratio requirement is one teacher per six children. Initially, two All Saints’ teachers were supervising the group, but just after 11 a.m., one of the teachers left the playground and returned indoors to attend to other duties. All Saints’ security camera video for this point in time shows one of the children working the gate open and three children leaving the playground to retrieve a ball which had gone over the fence. The video also shows two of those children re-entering the playground with the ball. Another of All Saints’ security videos shows the third child leaving the All Saints area, wandering past the parking lot and towards Hendricks Avenue. The parties stipulated that at this point, All Saints’ staff were unaware that any children had opened the gate, exited the playground, and re-entered the playground. It was also not contested that Hendricks Avenue is a heavily trafficked, four-lane divided thoroughfare, part of State Road 13 and designated by the City of Jacksonville as a “Principal Arterial” roadway. The parties also stipulated that the third child was discovered in the median of Hendricks Avenue by a stranger. This location required the child to cross two lanes of traffic. The person returned the child, unharmed, to All Saints after an absence of approximately ten minutes. No one on All Saints’ staff or administration was aware of the child’s absence until his fortunate return.

The stipulated facts also described All Saints’ remedial actions after the incident, including the immediate firing of one teacher and the eventual firing of the other teacher on the playground that day; reprimands of the other staff; reinforcement of the gate system, which was already in compliance with DCF standards, to now exceed DCF’s standards; provision of care-givers with two-way radios; and other remedial measures which exceeded DCF requirements.

DCF filed an administrative complaint against All Saints, alleging the facts of the incident and notifying All Saints, as a licensee under chapter 402, Florida Statutes, that the failure in supervision by staff was a “class I violation” impacting All Saints’ Gold Seal designation under section 402.281, Florida Statutes, and that DCF intended to impose a fine pursuant to section 402.301. All Saints requested a hearing for the purpose of presenting legal argument on the stipulated facts. After the hearing, and after submitting a proposed recommended order to all parties, the hearing officer filed the Recommended Order on May 10, 2013. In addition to the stipulated facts adopted in the Recommended Order, the hearing officer added a finding that “[b]ut for the quick actions of a passerby, the child could have been killed, kidnapped, or seriously injured.”

The hearing officer’s conclusions of law referred to section 402.310(1) for the agency’s authority to impose an administrative fine up to $500 for a violation which “could or does cause death or serious harm” and referred to rule 65C-22.001(5)(a) and CF-FSP Form 5316, deeming a violation of supervision standards a “class I violation.” The hearing officer’s Conclusion of Law in paragraph 28 was that All Saints had committed a class I violation “when it allowed the child, T., to leave the facility unsupervised as described in the findings of fact.” The Recommended Order advised DCF to fine All Saints $500.00 for the failure in direct supervision and enter a final order revoking All Saints’ Gold Seal Quality Care designation under section 402.281.

All Saints filed a written statement challenging the grounds for the administrative penalties and the agency addressed these objections in its amended final order. See § 120.57(2)(a), Fla. Stat. Addressing All Saints’ challenge to DCF’s holding All Saints responsible, as the licensee, for the actions or failures of its employees, the agency head stated:

Respondent, in effect, argues it should not be sanctioned for its employees’ violation of the applicable direct supervision standard. These exceptions are rejected. ... Child care facilities exist for the purpose of, and are charged with, providing safe and appropriate supervision of children too young to care for themselves. The actions of the staff are the actions of the facility. A child care facility cannot insulate itself from a sanction by attributing standards violations to the facility staff. Respondent’s exceptions rely on a line of cases related to enforcement of alcoholic beverage sale restrictions. These cases are neither controlling nor persuasive in the child care context.

Dep’t of Children & Families v. All Saints Early Learning & Cmty. Care Ctr., Case No. 12-099CF, Amended Final Order, p. 2.

On appeal, All Saints maintains its position, consistent from the beginning of the administrative proceedings, that DCF is unauthorized to penalize All Saints for violations by its employees, so long as All Saints has implemented the procedures, policies, and physical facility standards required by chapter 402 and DCF’s administrative rules. All Saints vigorously contends that subjecting it to administrative sanctions under the stipulated facts of this case exceeds the delegated legislative authority of DCF to regulate child care facilities and illegally imposes “strict liability” upon the licensee for the inattention of its employees which unfortunately resulted in a potentially life-threatening danger to a child in the facility’s care. All Saints relies on cases where licensing penalties were reversed when the regulating agencies erroneously attributed the actions of employees to the licensee. See Pic N’ Save Cent. Fla., Inc. v. Dep’t of Bus. Regulation, 601 So.2d 245 (Fla. 1st DCA 1992) (reversing fine and suspension of license for failure to prevent employees from making three under-age liquor sales; license to engage in occupation not to be removed except for misconduct personal to licensee); Surf Attractions, Inc. v. Dep’t of Bus. Regulation, 480 So.2d 1354 (Fla. 1st DCA 1985) (reversing fines imposed upon alcohol licensee convenience store operator; illegal sale of alcohol was approved by corporate officer of licensee but no proof of lack of due diligence by the corporation); Federgo Disc. Ctr. v. Dep’t of Prof'l Regulation, 452 So.2d 1063 (Fla. 3d DCA 1984) (reversing revocation of store owners’ community pharmacy permits based on violations by employee licensed pharmacist; owners incorrectly held responsible for breach of duty imposed on licensed employee).

The cases relied on by All Saints are not controlling here because the regulated activities and statutes governing those industries are not comparable to chapter 402 and the operation of child care facilities. The stated legislative intent in sections 402.26 and 402.301, and the definitions set out in section 402.302, clearly establish that a licensed child care facility is responsible not only for administration of the facilities in compliance with the standards set out by statute and administrative rule, but is ultimately responsible for the care, protection, and supervision of the children entrusted to it. It follows that as licensees they are subject to administrative sanctions for employees’ lapses in supervision at the licensed facility which endanger a child.

To carry out the legislative directive in section 402.301(l)(a) to establish standards addressing the health and safety for the children in daycare, DCF has promulgated rule 650-22.001(5), which provides:

(5) Supervision.
(a) Direct supervision means actively watching and directing children’s activities within the same room or designated outdoor play area, and responding to the needs of each child. Child care personnel at a facility must be assigned to provide direct supervision to a specific group of children, and be present with that group of children at all times. When caring for school-age children, child care personnel shall remain responsible for the supervision of the children in care, shall be capable of responding to emergencies, and are accountable for children at all times, including when children are separated from their groups.

Appellant’s attempt to avoid the administrative fíne and consequences to its Gold Seal designation by blaming the incident on its employees is without merit, considering the statutory definitions of “child care personnel.” Appellant argues the phrase “child care personnel shall remain responsible for the supervision of children in care” insulates All Saints from responsibility for mistakes by staff which compromise supervision of the children entrusted to the facility. However, section 402.302(3), Florida Statutes, defines “child care personnel” as “all owners, operators, employees, and volunteers working' in a child care facility.” Accordingly, licensed owners and operators are not only required to administer their licensed day care facilities in compliance with the standards set out by statute and administrative rule, but as licensees they are also subject to administrative sanctions for employees’ lapses in supervision at the licensed facility which endanger a child.

Common law legal theories and causes of action for civil tort lawsuits, such as strict liability, vicarious liability, and re-spondeat superior, are not directly applicable to these administrative licensing and regulatory proceedings, which are established and governed by statute. DCF’s cause of action is set out in section 402.310, Florida Statutes, and the process due in these administrative proceedings is codified in sections 120.569, 120.57, 120.60, and 120.68, Florida Statutes. All Saints’ attempt to delegate its responsibility for the safety of the children in its care to the employees who are actually present with the children might be a partial defense against a negligence action for monetary damages, where proximate causation, intervening causes, and comparative negligence apply. However, DCF’s administrative regulatory proceedings are not negligence lawsuits. The legislature clearly intended All Saints, as a licensed child care facility, to be ultimately responsible for the safety of the children in its care.

We find that DCF properly held All Saints responsible for the incident and, after considering the factors listed in section 402.310(l)(b), imposed an administrative fine as authorized by section 402.310(l)(a)l. We further find that DCF’s Amended Final Order does not constitute an erroneous interpretation of law under section 120.68(7)(e). All Saints may not delegate its responsibilities under the licensing statutes to its employees or avoid administrative sanctions for an incident which constituted a serious danger to three children under its care. DCF’s amended final order did not exceed its statutory authority or deny All Saints the process it was due under sections 120.569 and 120.57(2), Florida Statutes. The facts of the dangerous incident were stipulated to by the parties and constituted exactly the type of situation the regulatory scheme is designed to prevent. The consequences to All Saints’ Gold Seal designation resulting from the administrative disciplinary action did not violate due process and comported completely with section 402.281.

AFFIRMED.

OSTERHAUS, J., concurs; BENTON, J., concurs in result.

      . Section 402.26 provides in pertinent part:
      402.26. Child care; legislative intent—
      (1) The Legislature recognizes the critical importance to the citizens of the state of both safety and quality in child care.

      (3) To protect the health and welfare of children, it is the intent of the Legislature to develop a regulatory framework that promotes the growth and stability of the child care industry and facilitates the safe physical, intellectual, motor, and social development of the child.
      (4) It is also the intent of the Legislature to promote the development of child care options in the private sector and disseminate information that will assist the public in determining appropriate child care options.

      . Section 402.301 provides in part:
      402.301. Child care facilities; legislative intent and declaration of purpose and policy — It is the legislative intent to protect the health, safety, and well-being of the children of the state and to promote their emotional and intellectual development and care. Toward that end:
      (1) It is the purpose of ss. 402.301-402.319 to establish statewide minimum standards for the care and protection of children in child care facilities, to ensure maintenance of these standards, and to approve county administration and enforcement to regulate conditions in such facilities through a program of licensing.

      . "Strict liability" is disfavored and used sparingly in civil and criminal cases due to the potential for violation of a defendant's due process rights when the requirement to prove intent and even knowledge of wrongdoing is dispensed with. The mens rea concerns discussed in State v. Adkins, 96 So.3d 412 (Fla.2012), pertaining to criminal prosecution for drug possession regardless of intent and the validity of "strict liability offenses,” is not applicable to these administrative regulatory proceedings. Likewise, the "strict tort liability" in products liability actions such as West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976) is not at issue here.

      . Although not applicable in the context of this case, to follow All Saints’ lead in using civil lawsuit terminology, the Legislative intent expressed in the statutes governing these licensed child care facilities suggests that the licensee is vicariously liable (via respondeat superior) for the actions or inaction of its employees in carrying out child care responsibilities. Analogizing to another negligence term — negligence per se — the dangerous situation presented in this case was just the sort of harm sections 402.305 and 402.310 were enacted to prevent and address.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John E. SIMS, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-5400.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2014.
    John E. Sims, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Tammy S. Metcalf, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

John E. Sims seeks certiorari review of an order dismissing his petition for writ of mandamus as untimely and frivolous, and directing that a copy of the order be delivered to the Department of Corrections for consideration of appropriate sanctions pursuant to section 944.279(1), Florida Statutes (2014). As petitioner concedes, the circuit court did not depart from the essential requirements of law by failing to grant mandamus relief. However, we agree with petitioner that the portion of the order referring him for potential administrative sanctions resulted from a departure from the essential requirements of law.

Sims filed his petition for writ of mandamus and the circuit court issued an order to show cause directing the Department of Corrections to respond and allowing Sims thirty days following service of that response to file a reply. Sims then filed a motion to supplement or amend his pleading and approximately one week later, the Department filed its response to the order to show cause. That response included a request that the court refer Sims for consideration of administrative sanctions pursuant to section 944.279(1). One week after the filing of the Department’s response, the circuit court rendered an order granting petitioner’s motion for leave to amend his petition, directing the Department to file a supplemental response within 60 days, and affording Sims the opportunity to file a reply to the supplemental response. However, three days later, the court rendered the order for which review is presently sought.

Based on this sequence of events, we conclude that by referring Sims for consideration of disciplinary proceedings without awaiting his reply to the Department’s initial response in which the referral request was made, the Department’s supplemental response, or Sims’ reply thereto, the circuit court departed from the essential requirements of law. Cf. Bard v. Wolson, 687 So.2d 254 (Fla. 1st DCA 1996). Accordingly, the portion of the circuit court’s order directing that a copy thereof be delivered to DOC for consideration of appropriate sanctions pursuant to section 944.279(1), Florida Statutes, is QUASHED, and the matter is remanded for any further proceedings the lower tribunal deems warranted.

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

      . Although this is a matter for the circuit court to determine if it elects to conduct further proceedings on remand, it appears that had Sims been given the opportunity to respond to the Department's suggestion that sanctions were warranted, he could have articulated a colorable basis for concluding otherwise.


author: OSTERHAUS, J.

text:
    The PROMENADE D’IBERVILLE, LLC, Appellant, v. Rachelle M. SUNDY, As Public Records Request Coordinator for Jea and John Doe 1, As Custodian of Public Records for Jea and John Does 2-10, Being Persons or Entities Acting in Concert With Ms. Sundy or John Doe 1, Appellees.
    No. 1D13-5583.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2014.

      Geddes D. Anderson, Jr. and Jonathan A. Huth of Murphy & Anderson, Jacksonville, for Appellant.
    Michael B. Wedner, Craig D. Feiser, Ashley B. Benson, and David J. A’gata, Jacksonville, for Appellee.
   OSTERHAUS, J.

In this case, we consider whether the appellee employees of the Jacksonville Electric Authority (JEA) violated Florida’s public records law by delaying the disclosure of non-exempt public records sought by the Promenade D’Iberville, LLC (Promenade). After receiving a public records request from Promenade, with whom it was in active litigation in Mississippi, JEA filed a motion for protective order in the Mississippi court to avoid the request. JEA did not finally turn over the requested non-exempt public records until after Promenade had to file an enforcement action and two months had passed. Because JEA unjustifiably delayed making non-exempt public records available in response to Promenade’s request, it violated the Florida’s Public Records Act, chapter 119, Florida Statutes (Act).

I.

The facts in this public records case are mostly undisputed. Promenade and JEA have been involved in contentious litigation in Mississippi for years. And at some point, Promenade began making use of Florida’s public records act to obtain information from JEA. JEA satisfied a number of large public records requests made by Promenade, but in 2013 changed its course of dealing with Promenade’s requests. In March 2013, Promenade sent a request for public records to which JEA responded by threatening legal action. It told Promenade that it could either withdraw its request or JEA would file a motion for protective order in the Mississippi court. Promenade withdrew the request. But then a few months later, on June 25, 2013, Promenade sent two additional requests to JEA for non-exempt public records. Consistent with its prior threat, JEA did not respond by providing the records or agreeing to provide the records. Instead it filed a Motion for Protective Order in the Mississippi litigation, asking the out-of-state court to restrict Promenade’s use of the public records law.

Promenade was not immediately aware of the motion and made a first follow up inquiry to JEA on June 28th as to the status of its request. JEA did not respond. Promenade followed up again on July 5, 2013. But again JEA failed to respond. The testimony of records handlers at JEA was that it had assembled many of the requested documents shortly following Promenade’s request. On the advice of counsel in Mississippi, however, JEA delayed its review and did not make the records available to Promenade pending attempts to block its access to the records in the Mississippi court.

Hearing only crickets in response to its request and follow-up inquiries, Promenade filed a public records enforcement action on July 11, 2013. Promenade’s Complaint alleged that JEA had “ready access to some or all of the documents requested” and that its failure to respond was tantamount to an unlawful denial of the request. Promenade sought injunctive relief on the grounds that JEA had demonstrated an intentional pattern of noncompliance. And it requested its attorneys’ fees and costs associated with the enforcement action.

JEA’s Answer denied violating the Act. It asked the circuit court to abate Promenade’s enforcement action until the Mississippi trial court ruled on its motion for protective order. And the parties agreed to postpone the enforcement hearing until the Mississippi court ruled on the motion.

On Friday, August 23, 2013, the Mississippi trial court denied JEA’s motion for protective order. And JEA provided the public records to Promenade on the next business day. The trial court then held an enforcement hearing and ruled that JEA had not willfully violated the Act. While the court admonished JEA for failing to respond to Promenade’s various follow-up inquiries, it concluded that JEA ultimately satisfied its obligations under the Act by producing the requested records prior to the enforcement hearing. Promenade timely appealed.

II.

A.

The central issue in this appeal is whether JEA violated the Act by withholding non-exempt public records requested by Promenade. We review de novo the conclusion below that JEA did not willfully violate the Act. See Grapski v. City of Alachua, 31 So.3d 193, 196 (Fla. 1st DCA 2010).

Government entities in Florida are broadly responsible to make public records available to those who request to see them. See Art. I, § 24, Fla. Const. Florida’s public records law declares that it is “the policy of this state that all state, county, and municipal records are open for personal inspection and copying by any person.” § 119.01(1), Fla. Stat. “Disclosure of public records is not a discretionary act; it is a mandatory act.” Mills v. Doyle, 407 So.2d 348, 350 (Fla. 4th DCA 1981) (interpreting § 119.01, Fla. Stat.) (followed by Gay v. Santa Rosa Cnty. Sch. Bd,., 680 So.2d 560 (Fla. 1st DCA 1996)). Those with custody of public records must permit records “to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions.” § 119.07(l)(a), Fla. Stat. (emphasis added). Moreover, they must “acknowledge requests to inspect or copy records promptly and respond to such requests in good faith.” § 119.07(l)(c), Fla. Stat.

In this case, JEA did not argue that any statutory exemption excused its obligation to make the requested documents available, nor did it dispute that the documents were non-exempt public records. Rather, JEA delayed making the records available pending a ruling on its Mississippi motion. JEA determined not to make records available to Promenade -without first seeking to block them in a Mississippi court.

B.

Delay in making public records available is permissible under very limited circumstances. A records custodian may delay production to determine whether the records exist, § 119.07(l)(c); if the custodian believes that some or all of the record is exempt under the Act, § 119.07(l)(d)-(e); or if the requesting party fails to remit the appropriate fees, § 119.07(4). Otherwise, “[t]he only delay permitted by the Act is the limited reasonable time allowed the custodian to retrieve the record and delete those portions of the record the custodian asserts are exempt.” Tribune Co. v. Cannella, 458 So.2d 1075, 1079 (Fla.1984). Unjustified delay in making non-exempt public records available violates Florida’s public records law. Id.

In this case, JEA violated the Act by delaying Promenade’s access to non-exempt public records for legally insufficient reasons. JEA imposed what amounted to a requester-specific barrier to records requests made by Promenade, because it was an adversary in out-of-state litigation. It first threatened Promenade with out-of-state legal repercussions for requesting public records. Then it made good on its threat by not producing requested records and instead running to the Mississippi court in attempts to block Promenade’s use of Florida’s public records law. This was not a legally sufficient reason for delaying Promenade’s access to public records.

Florida law doesn’t allow public records custodians to play favorites on the basis of who is requesting records. Rather, it is “the policy of this state that all ... records are open for personal inspection and copying by any person.” § 119.01, Fla. Stat. (emphasis added); see also § 119.07(l)(a), Fla. Stat. (allowing records “to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions”) (emphasis added). Moreover, “[t]he motivation of the person seeking the records does not impact the person’s right to see them under the Public Records Act.” Curry v. State, 811 So.2d 736, 742 (Fla. 4th DCA 2002); see also Staton v. McMillan, 597 So.2d 940, 941 (Fla. 1st DCA 1992) (“[T]he appellant made proper requests for access ... and his reasons for seeking such access are immaterial.”). “[T]he purpose of the Act would be frustrated if, every time a member of the public reaches for a record, he or she is subjected to the possibility that someone will attempt to take it off the table through a court challenge.” Cannella, 458 So.2d at 1079; see also A.J. v. Times Pub. Co., 605 So.2d 160,162 (Fla. 2d DCA 1992) (citing Cannella), approved and remanded, 626 So.2d 1814 (Fla.1993) (“No delay is permitted to allow a court challenge to disclosure^]”). Thus JEA had a duty to produce the non-exempt public records requested by Promenade regardless of its identity. And its decision to seek a ruling from a Mississippi court with respect to Promenade’s request did not justify its decision to delay its disclosure of the requested records.

Finally, JEA’s production of the records on the eve of the enforcement hearing did not cure its unjustified delay. See Grapski 31 So.3d at 198. Rather, the caselaw is clear that unjustifiable delay to the point of forcing a requester to file an enforcement action is by itself tantamount to an unlawful refusal to provide public records in violation of the Act. See Weeks v. Golden, 764 So.2d 633, 635 (Fla. 1st DCA 2000) (“An unjustified failure to respond to a public records request until after an action has been commenced to compel compliance amounts to an unlawful refusal for purposes of section 119.12(1)[.]”); see also Althouse v. Palm Beach County Sheriff’s Office, 92 So.3d 899, 902 (Fla. 4th DCA 2012) (“[T]he Sheriffs delay in complying with Althouse’s request until after the filing of his suit amounted to an ‘unlawful refusal’ under section 119.12, for which fees and costs are to be awarded.”). And for this same reason, it makes no difference that Promenade subsequently agreed to abate the final enforcement hearing. By that point, the harm had been done; JEA’s initial stonewalling had already forced Promenade to file the enforcement action to obtain the records.

III.

For the foregoing reasons, we reverse and remand to the trial court for proceedings consistent with this opinion, including the award of whatever enforcement-related fees and costs are due to Promenade under the Act. We affirm, however, the trial court’s denial of injunctive relief. See Daniels v. Bryson, 548 So.2d 679, 680-81 (Fla. 3d DCA 1989) (disfavoring an injunction where the acts complained of have already been committed and there is not a well-grounded probability of similar future conduct).

AFFIRMED in part; REVERSED and REMANDED in part.

RAY and SWANSON, JJ., Concur.


text:
    Jarred WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4958.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2014.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Appellant’s judgment and sentence without further comment, but remand for the trial court to correct the probation revocation order to specify the condition of probation violated by Appellant. See Leggs v. State, 27 So.3d 155 (Fla. 1st DCA 2010). Appellant need not be present. See Baldwin v. State, 855 So.2d 1180 (Fla. 1st DCA 2003).

AFFIRMED and REMANDED with directions.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Keith RICHARDSON, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D13-6151.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2014.
    Keith Richardson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Tammy S. Metcalf, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We conclude that the petition filed with the circuit court did state a prima facie case for relief. Accordingly, we grant the petition for writ of certiorari, quash the circuit court’s order dismissing the petition for writ of mandamus, and remand for further proceedings.

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


text:
    Mario SPAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-2155.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2014.
    Mario Span, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In 2000, Appellant was convicted of two first-degree felonies punishable by life and was sentenced as a habitual violent felony offender (HVFO) to 26 years in prison with a 10-year mandatory minimum term. In 2014, Appellant filed a rule 3.800(a) motion in which he claimed that his sentence is illegal because, under section 775.084(4)(b)l., Florida Statutes (1999), the trial court did not have the authority to sentence him as an HVFO to a term-of-years sentence. The trial court summarily denied the motion. We affirm.

Appellant’s term-of-years sentence is not illegal. The Florida Supreme Court has unequivocally held that “sentencing under sections 775.084(4)(a)(1) and 775.084(4)(b)(1) is permissive, not mandatory,” Burdick v. State, 594 So.2d 267, 271 (Fla.1992), and it has also expressly rejected the argument made by Appellant in his motion. See Allen v. State, 599 So.2d 996 (Fla.1992) (quashing decision that held that the trial court was required to sentence habitual felony offender to a life sentence under section 775.084(4)(a)1. and remanding for reinstatement of the 40-year sentence imposed by the trial court); State v. Eason, 592 So.2d 676 (Fla.1992) (approving decision affirming defendant’s 25-year sentence as an HVFO and rejecting State’s argument that the trial court was required by section 775.084(4)(b)1. to sentence defendant to life in prison with a 15-year mandatory minimum term).

We recognize that in Shingler v. State, this court stated that “[i]n the case of a felony of the first degree, section 775.084(4)(b)1., mandates a life sentence; it does not authorize the imposition of a term-of-years sentence.” 74 So.3d 171, 172 (Fla. 1st DCA 2011) (emphasis in original). However, we find Appellant’s reliance on Shingler misplaced because that case involved a juvenile defendant who, by virtue of Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), could not be sentenced to life in prison, and moreover, applying Shingler beyond the circumstances of that case would conflict with the Florida Supreme Court decisions cited above. Accord Copeland v. State, 118 So.3d 842, 843 (Fla. 2d DCA 2013) (distinguishing Shingler and affirming defendant’s 30-year sentence as a habitual felony offender).

For these reasons, the trial court’s order denying Appellant’s rule 3.800(a) motion is AFFIRMED.

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


text:
    Cori G. CAMERON, Appellant, v. Christopher N. CAMERON, Appellee.
    No. 5D13-3723.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.
    James M. Campbell, Orlando, for Appellant.
    Barry P. Burnette, of Keedy & Bur-nette, P.A., Tavares, for Appellee.
   PER CURIAM.

Cori Cameron (“Wife”) appeals from a final judgment of dissolution of marriage. She contends that the trial court erred in its child support calculations by including in Wife’s gross income amounts that the employer contributed to her health insurance costs without subtracting a corresponding amount in determining her net income. Christopher Cameron (“Husband”) concedes error.

Wife also argues that the final judgment did not conform to the trial court’s oral pronouncement regarding the responsibility for daycare expenses incurred after the child began voluntary prekindergarten in August 2013. The trial court orally pronounced that these expenses would be shared in the same percentage(s) utilized for the purpose of calculating child support. However, the final judgment imposed the obligation to pay these expenses entirely upon Wife. Husband again concedes error.

On remand, after redetermining Wife’s net income, the trial court is directed to recalculate child support, child support ar-rearages, and each party’s respective share for child care expenses.

REVERSED and REMANDED.

EVANDER, BERGER and LAMBERT, JJ., concur.

      . The final judgment provided for an equal time-sharing arrangement.

      . The two issues presented in this appeal were unsuccessfully raised in Wife's motion for rehearing.


text:
    Dennis GROOMS, Appellant, v. Derma MILLER, Appellee.
    No. 5D14-76.
    District Court of Appeal of Florida, Fifth District.
    Aug. 29, 2014.
    Dennis Grooms, Madison, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Dennis Grooms appeals the denial of his motion to dissolve a domestic violence injunction. That injunction was entered in July of 2009. The trial court afforded Grooms a hearing. Absent a transcript of the hearing, we are compelled to affirm. See Carr v. Sharkey, 909 So.2d 482, 483-84 (Fla. 5th DCA 2005) (citing Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979)).

AFFIRMED.

EVANDER, COHEN, JJ., and HARRIS, C. M., Senior Judge, concur.

      . The hearing was telephonic because of Grooms’ current incarceration at Madison Correctional Institution.


author: VAN NORTWICK, J.

text:
    Randolph Alex LAWHORN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2411.
    District Court of Appeal of Florida, First District.
    Sept. 2, 2014.

      Nancy A. Daniels, Public Defender, and Richard M. Bracey, III, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Randolph Alex Lawhorn challenges the revocation of his community control. Because the record contains no evidence that Lawhorn willingly violated a substantial condition, we reverse.

An affidavit of violation averred that Lawhorn violated a single condition of his community control by being “away from his approved residence ... without prior approval of the [community control] officer. ...” At the subsequent hearing, the community control officer testified that she arrived at Lawhorn’s residence on December 13, 2012, at 2:34 p.m. Lawhorn was not at home. Someone at the residence, the officer did not know her identity, advised that Lawhorn had gone to the store. The officer testified that Lawhorn did have permission to be away from the residence at this time to walk his child home from school; she added that Lawhorn had permission to go the store at a later point in the day. The officer drove away from the residence on the road Lawhorn would have walked from school. She did not see him. She did not go to the store, nor did she go to the school to confirm he was not there. The community control officer was the only witness called, and she closed her testimony by stating that she never said the violation was “willful.”

At the conclusion of the hearing, the trial court announced:

I’m going to find that there was a violation in this case. But I’m not going to find that it was substantial in this case, only because of the information provided by [the community control officer] during her testimony.... Now, I am finding you in violation here but I’m not going to find it to be a substantial one. Therefore, I’m going to simply reinstate you to the same terms and conditions of community control.

While “[t]he trial court is vested with broad discretion to determine whether a probationer has violated a condition of probation,” Williamson v. State, 43 So.3d 843, 845 (Fla. 1st DCA 2010), “[t]o establish a violation of probation, the prosecution must prove by a preponderance of the evidence that a probationer willfully violated a substantial condition of probation.” Van Wagner v. State, 677 So.2d 314, 316 (Fla. 1st DCA 1996) (citing Salzano v. State, 664 So.2d 23 (Fla. 2d DCA 1995); Thorpe v. State, 642 So.2d 629, 629 (Fla. 1st DCA 1994)); see also Lindsay v. State, 54 So.3d 638 (Fla. 1st DCA 2011). Because the only evidence failed to establish that any violation was willful and the trial court did not find the lone violation to be substantial, the revocation must be reversed.

REVERSED.

ROBERTS, and CLARK, JJ., concur.


text:
    Charles R. MESSER, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Division of Licensing, Appellee.
    No. 1D14-0476.
    District Court of Appeal of Florida, First District.
    Sept. 2, 2014.
    Kerry Adkison of Kerry Adkison, P.A., Chipley, for Appellant.
    John A. Raymaker, General Counsel, and Jessica Leigh, Assistant General Counsel; John R. Perry, Senior Attorney, and David Arthmann, Senior Attorney, Department of Agriculture and Consumer Services, Division of Licensing, Tallahassee, for Appellee.
   PER CURIAM.

We treat appellee’s motion to relinquish jurisdiction for the purpose of vacating the final order on appeal as a confession of error. In accordance therewith, the final order being appealed in this cause is REVERSED and the matter is REMANDED to the lower tribunal for further proceedings.

ROBERTS, MARSTILLER, and SWANSON, JJ., concur.


author: HANZMAN, MICHAEL, Associate Judge.

text:
    OKEECHOBEE RESORTS, L.L.C., Appellant, v. E Z CASH PAWN, INC., Appellee.
    No. 4D13-2674.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.

      Tara A. Finnigan of Tara A. Finnigan P.A., West Palm Beach, for appellant.
    Ronald M. Gaché and Scott A. Simon of Shapiro, Fishman & Gaché, LLP, Boca Raton, for appellee.
   HANZMAN, MICHAEL, Associate Judge.

Introduction

This case — like many preceding it — involves claims seeking to enforce an alleged oral modification of a written contract which expressly prohibits any parol alteration of its terms and conditions. The transaction at issue (a pawn contract) also is subject to the “Florida Pawnbroking Act,” which in pertinent part requires that extensions of a default date (the type of modification appellant sought to enforce here) be “evidenced by a written memorandum.” § 539.001(ll)(b), Fla. Stat. (2011). Given this legislative edict and the bargain struck by the parties, the trial court granted appellee’s motion for summary judgment and thereafter entered Final Judgment in its favor. Appellant claims error, asserting: (a) that neither the contract nor the statute in fact requires that all modifications be in writing; and (b) that its “detrimental reliance” upon appellee’s oral promises to extend the default date enables it to side-step any contractual or statutory impediment to enforcement of the alleged modification. We affirm.

Facts

Appellee (the defendant below) E Z Cash Pawn, Inc. is a pawnbroker licensed under the Florida Pawnbroking Act codified in Chapter 539. On April 15, 2011, appellant (the plaintiff below) Okeechobee Resorts, LLC secured a loan from E Z Cash and pledged a Chevrolet truck as collateral. The parties’ written agreement contained a maturity date of May 15, 2011, and a default date of June 14, 2011. In the event of default, E Z Cash was permitted to sell the truck.

The contract contained three other clauses relevant to our disposition. It first provided that any pawn “may be extended upon mutual agreement of the parties.” Though this particular clause did not require that any such extension be in writing, the contract went on to recite that: (a) “[n]o oral representation shall in any way change or modify these written conditions and such oral representation shall in no way be binding upon the issuer of this pawn ticket”; and (b) “verbal agreements for additional days are non binding.” The parties agree that the contract’s terms and conditions were never modified in writing.

Okeechobee failed to repay the loan pri- or to the written default date, and E Z Cash proceeded to sell the truck as authorized by the contract. Seven months later, Okeechobee brought suit based upon the allegation that E Z Cash had orally agreed to extend the default date; a promise Okeechobee allegedly relied upon to its detriment. Specifically, Okeechobee alleged that: (a) prior to the June 14 default date, the parties orally agreed to extend the pawn until June 24; (b) on June 23, the parties again orally agreed to extend the pawn until June 29; and (c) on June 28, the parties orally agreed to a final extension through July 5, 2011. Okeechobee claimed that in reliance on these oral extensions it sold other property in order to raise the funds needed to repay the loan. Okeechobee further alleged that it deposited sufficient funds into its attorney’s trust account before expiration of the claimed July 5 deadline, and that when its lawyer attempted to pay off the loan, she was told the truck already had been sold.

Governing Law

The question of when a party may attempt to enforce an alleged oral modification of a written contract has no doubt been a much litigated subject. And while courts faced with such claims have arguably delivered a somewhat mixed message, a careful examination of precedent reveals that the issue is not particularly complex.

When a written contract is silent on the question of modification, or expressly permits modification — yet fails to specify that a writing is required — an oral modification is enforceable so long as it is not precluded by statute. See Schroeder v. Manceri, 893 So.2d 603, 606 (Fla. 4th DCA 2005) (oral extension of default date was enforceable as it was not required to be in writing by statute or terms of contract); The Race, Inc. v. Lake & River Recreational Props., Inc., 573 So.2d 409, 410-11 (Fla. 1st DCA 1991). In these two scenarios, no legislatively imposed public policy mandates that the modification be in writing, and the parties themselves have not bargained for such a requirement. As a result, the contract may be modified through a “subsequent agreement” or the parties’ “subsequent conduct,” provided that the amendment is “supported by proper consideration.” St. Joe Corp. v. McIver, 875 So.2d 375, 381, 382 (Fla.2004).

The issue becomes slightly more complicated when a statute or the contract itself requires that any agreement (or modification) be in writing. In the former instance, the Legislature has decided, as a matter of public policy, to “intercept the frequency and success of actions based on nothing more than loose verbal statements or mere innuendos[,]” and thereby foreclose potentially fraudulent claims. Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937). In the latter instance, the parties themselves have contractually agreed to do exactly the same thing. They have bargained for predictability and certainty and have foreclosed (or at least attempted to foreclose) any chance of being subjected to litigation premised upon alleged oral modifications of their written document.

Contracts are voluntary undertakings, and contracting parties are free to bargain for — and specify — the terms and conditions of their agreement. That freedom is indeed a constitutionally protected right. Nw. Nat’l Life Ins. Co. v. Riggs, 203 U.S. 243, 252-53, 27 S.Ct. 126, 51 L.Ed. 168 (1906); Hoffman v. Boyd, 698 So.2d 346, 348 (Fla. 4th DCA 1997). Contracting parties are at liberty to address any issue they see fit, including the question of whether their agreement may be modified at all, and, if so, how. See, e.g., Atl. Beach Mgmt., Inc. v. Breakers of Fort Walton Beach Condos., Inc., 589 So.2d 315, 316 (Fla. 1st DCA 1991). When contracting parties elect to adopt a term or condition, including one addressing the question of modification, it is not the province of a court to second guess the wisdom of their bargain, or to relieve either party from the burden of that bargain by rewriting the document. See Pol v. Pol, 705 So.2d 51, 53 (Fla. 3d DCA 1997) (“[A] court cannot rewrite the clear and unambiguous terms of a voluntary contract.”); Int’l Expositions, Inc. v. City of Miami Beach, 274 So.2d 29, 30-31 (Fla. 3d DCA 1973) (“[C]ourts may not rewrite, alter, or add to the terms of a written agreement between the parties and may not substitute their judgment for that of the parties in order to relieve one from an alleged hardship of an improvident bargain.”). Rather, it is a court’s duty to enforce the contract as plainly written. See Rybovich Boat Works, Inc. v. Atkins, 587 So.2d 519, 521-22 (Fla. 4th DCA 1991) (reversing trial court’s refusal to give effect to an unambiguous “anti-waiver” clause contained in the parties’ written contract).

So when a contract plainly provides that any modification must be in writing, all claims — however labeled — founded upon an alleged oral modification should generally be disposed of as a matter of law. The parties have dealt with the issue through a provision designed — and intended — to protect them against the risk of “being enmeshed in, and harassed by” protracted litigation based upon alleged oral modifications, Cohen v. Pullman Co., 243 F.2d 725, 729 (5th Cir.1957); LynkUs Commc’s, Inc. v. WebMD Corp., 965 So.2d 1161 (Fla. 2d DCA 2007), and courts should in most cases do no more than enforce the contract as written.

The law of course is rarely so clear, and in Professional Insurance Corp. v. Cahill, 90 So.2d 916, 918 (Fla.1956), our Supreme Court held that even when an agreement expressly precludes oral modifications:

[a] written contract or agreement may be altered or modified by an oral agreement if the latter has been accepted and acted upon by the parties in such manner as would work a fraud on either party to refuse to enforce it.

The Cahill court did not elaborate on precisely what is required in order to prove that an alleged oral agreement had “been accepted and acted upon by the parties,” or under what circumstances a failure to enforce such a modification would “work a fraud.” Id. But Cahill involved a situation where the plaintiff alleged that an oral modification to his employment agreement required that he perform services not within the scope of the initial contract, that he in fact performed those services, and that the defendant accepted and benefited from that additional work (i.e., consideration not required by the initial contract). Id. at 917.

In the almost sixty years since Cahill was decided, our courts have repeatedly confronted claims grounded upon alleged oral modifications of contracts containing a so-called “no oral modification clause.” The vast majority of resulting appellate decisions have disposed of these cases by accurately reciting — and then proceeding to apply — the standard adopted in Cahill. See, e.g., J. Lynn Constr., Inc. v. Fairways at Boca Golf & Tennis Condo. Ass’n, 962 So.2d 928 (Fla. 4th DCA 2007); WSOS-FM, Inc. v. Hadden, 951 So.2d 61 (Fla. 5th DCA 2007); Blue Paper, Inc. v. Provost, 914 So.2d 1048 (Fla. 4th DCA 2005); Arvilla Motel, Inc. v. Shriver, 889 So.2d 887 (Fla. 2d DCA 2004); W.W. Contracting, Inc. v. Harrison, 779 So.2d 528 (Fla. 2d DCA 2000); Jupiter Square S.G. Assocs., Inc. v. Tomary, Inc., 571 So.2d 538 (Fla. 4th DCA 1990); King Partitions & Drywall, Inc. v. Donner Enters., Inc., 464 So.2d 715 (Fla. 4th DCA 1985); Commerce Nat’l Bank v. Van Denburgh, 252 So.2d 267 (Fla. 4th DCA 1971); Long Key Corp. v. Willis-Burch, Inc., 133 So.2d 655 (Fla. 3d DCA 1961); Larnel Builders, Inc. v. Nicholas, 123 So.2d 284 (Fla. 3d DCA 1960).

Other decisions, however, have muddied the waters a bit. Some have casually remarked that an oral modification of a written contract containing a “no oral modification” clause is enforceable anytime a party alleges “conduct which would render it a fraud upon one party for the other to refuse to perform the alleged oral modification,” Wilson v. Woodward, 602 So.2d 547, 549-50 (Fla. 2d DCA 1992), a metric markedly different from the requirements imposed by Cahill. And in Canada v. Allstate Insurance Co., 411 F.2d 517, 519-20 (5th Cir.1969), the former Fifth circuit suggested that the Cahill rule “goes even further” than articulated by our Supreme Court and allows “an oral modification of a written contract under circumstances of detrimental reliance even though the contract contains a provision prohibiting its alteration except in writing.” In other words, the Canada court opined that a claim of “promissory estoppel” was itself sufficient to circumvent a contractual bar to enforcement of an oral modification. Id. at 520.

Later, in Fidelity & Deposit Co. of Maryland v. Tom Murphy Construction Co., 674 F.2d 880 (11th Cir.1982), the Eleventh Circuit (as successor to the Fifth) revisited this issue and clarified that “Cahill and Canada stand for the proposition that oral modifications are effective despite prohibitive language in the contract only where clear and unequivocal evidence of a mutual agreement is present.” Id. at 885. This test — if literally applied — would enable the “exception” to swallow the “rule,” as the purpose of a “no oral modification” provision is to prevent parties from attempting to prove a subsequent oral “mutual agreement” in the first place, no matter how “unequivocal” the evidence of mutual assent may be. Put another way, the clause is designed to “intercept” such a claim at the outset. See Yates, 181 So. at 344. Thus, we interpret the Eleventh Circuit’s use of the phrase “unequivocal evidence of a mutual agreement” as merely descriptive of the exacting standard imposed by Ca-hill.

Other appellate opinions have loosely said that “the parties to a contract may modify the written agreement by subsequent oral agreement or course of dealing with one another despite the requirement of a writing in order to modify.” Linear Corp. v. Standard Hardware Co., 423 So.2d 966, 968 (Fla. 1st DCA 1982); Gallagher v. Dupont, 918 So.2d 342, 347 (Fla. 5th DCA 2005); White v. Ocean Bay Marina, Inc., 778 So.2d 412, 412 (Fla. 3d DCA 2001); Crosslands Props., Inc. v. Univest Crossland Trace, Ltd., 516 So.2d 320, 322 (Fla. 2d DCA 1987). This standard — if literally applied — would permit a written contract with a “no oral modification” clause to be amended by nothing other than a “subsequent oral agreement” or— alternatively — by a “course of dealing.” Such an “either — or” approach is indeed applicable in cases involving a claimed oral modification of an oral contract, or of a written contract which does not contain a “no oral modification clause.” St. Joe Corp., 875 So.2d at 381, 382. But Cahill’s requirements are not disjunctive, and a party seeking to enforce an oral modification in the face of a “no oral modification” clause must show that the parties accepted and acted upon the alleged modification (i.e., mutual assent and a course of dealing consistent with the alleged amendment) and that a refusal to enforce the modification would “work a fraud” because the party seeking to enforce the modification provided — and the resisting party accepted — additional consideration for the modification. See, e.g., Coral Reef Drive Land Dev., LLC v. Duke Realty Ltd. P’ship, 45 So.3d 897, 902 (Fla. 3d DCA 2010) (oral modifications to contracts are permitted despite provisions that all modifications must be in writing “when one party provides additional consideration for the modification accepted by the other party”); Rhodes v. BLP Assocs., Inc., 944 So.2d 527, 530 (Fla. 4th DCA 2006) (“A written agreement may be modified by the subsequent conduct or course of dealing of the parties,” provided the modification is by “mutual consent[] and supported by consideration.”).

Despite what may appear to be the judicial choirs’ lack of perfect harmony, Cahill undoubtedly remains our Supreme Court’s governing precedent on the question of when a party may enforce an alleged oral modification of a written contract which expressly requires that any modification be in writing. There also is no doubt that Cahill requires that a party pursuing such a claim allege and prove more — indeed much more — than just a “mutual agreement,” or just “detrimental reliance,” or just “subsequent conduct,” or just generalized “inequitable conduct.” Rather, a plaintiff must again allege — and eventually prove — that the oral amendment was “accepted and acted upon by the parties in such a manner as would work a fraud on either party to refuse to enforce it.” Cahill, 90 So.2d at 918. This requires that a plaintiff plead (and again eventually prove): (a) that the parties agreed upon and accepted the oral modification (i.e., mutual assent); and (b) that both parties (or at least the party seeking to enforce the amendment) performed consistent with the terms of the alleged oral modification (not merely consistent with their obligations under the original contract); and (c) that due to plaintiffs performance under the contract as amended the defendant received and accepted a benefit that it otherwise was not entitled to under the original contract (i.e., independent consideration). Absent such a showing, the parties will be held to the bargain as negotiated and memorialized in their written agreement.

Analysis

Applying the Cahill standard here, we conclude that the trial court correctly granted summary judgment disposing of Okeechobee’s claims. The parties’ agreement specified that oral representations were “not binding upon the issuer of the pawn ticket,” and that “verbal agreements for additional days are non binding.” While it is true — as Okeechobee advocates — that the agreement does not contain a garden variety “no oral modification” clause mandating that all modifications of any type be in writing, the contract clearly precludes the enforcement of an alleged oral agreement for “additional days” to pay the debt. To avoid this bargained for proscription, Okeechobee was required to allege facts (and at the summary judgment stage present evidence sufficient to create a genuine issue of material fact) sufficient to invoke Cahill’s limited exception to the well-settled rule requiring that courts enforce contracts as written.

Okeechobee did neither. It instead maintained below — and asserts here — only that the parties orally agreed to the extension, and that, in “detrimental reliance” on E Z Cash’s assent, it sold unrelated property in order to raise the funds needed to pay off its loan. The act of selling this property was not actual “performance” of the contract as allegedly modified, and it conferred no benefit on E Z Cash. For that reason, Okeechobee also could not allege or present facts demonstrating that a refusal to enforce this alleged oral amendment would “work a fraud” by enabling E Z Cash to unfairly reap a benefit it was not entitled to under the initial agreement. E Z Cash in fact received nothing more than it initially bargained for — the right to dispose of the collateral in the event of Okeechobee’s default.

Because Okeechobee failed to plead any facts — or present any summary judgment evidence — that could trigger the Cahill exception, the trial court was obligated to enforce the contract as plainly written. The parties bargained for the right not to be entangled in vexatious and prolonged litigation based upon alleged oral modifications of their agreement, and the trial court’s order correctly held them to that bargain.

Affirmed.

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

      . We question how the sale of this other property — while possibly done in "reliance” upon E Z Cash's alleged promise to extend the default date — was "detrimental,” unless perhaps Okeechobee was forced to sell at a price below fair market value. Nevertheless, for purposes of our analysis, we assume that Okeechobee would be able to demonstrate "detrimental reliance” upon the alleged oral representations, as well as the other elements of a claim based upon the doctrine of promissory estoppel — defined as:
      [t]he principle that a promise made without consideration may nonetheless be enforced to prevent injustice if the promisor should have reasonably expected the promisee to rely on the promise and if the promisee did actually rely on the promise to his or her detriment.

        DK Arena, Inc. v. EB Acquisitions I, LLC, 112 So.3d 85, 93 (Fla.2013) (quoting Black's Law Dictionary 631 (9th ed. 2009)).

      . Aside from the pure contract issue, and as previously mentioned, in this case, governing legislation also required that any extensions of the default date be "evidenced by a written memorandum.” § 539.001(1 l)(b), Fla. Stat. (2011). This provision, like the "statute of frauds” contained in Chapter 725, evinces "a legislative prerogative, grounded in a policy judgment that certain contracts should not be enforceable unless supported by written evidence.” DK Arena, Inc., 112 So.3d at 93. The Legislature has mandated that the default date in a pawn agreement (and any extensions thereof) be specified in writing, and it is not our function to question that policy decision. Furthermore, allegations of detrimental reliance of the type pled here, or other generalized equitable claims, may not be used to breathe life into a contract the legislature has declared unenforceable. Id. In any event, as we find that Okeechobee's claims are barred by the terms of the contract itself, we need not further address this issue.


text:
    Connie PEDERSON a/k/a Connie L. Pederson, Appellant, v. SUNTRUST MORTGAGE, INC., Appellee.
    No. 4D13-4593.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.
    Leo W. Desmond, Vero Beach, for appellant.

      Alexandra de Alejo of Gray Robinson, P.A., Miami, and David S. Hendrix of Gray Robinson, P.A., Tampa, for appellee.
   On Confession of Error

PER CURIAM.

A homeowner appeals a final judgment of foreclosure. The bank has filed a Confession of Error based upon Lurtz v. Bank of New York Mellon, — So.3d—(Fla. 4th DCA 2014). We therefore reverse and remand the case for further proceedings. We do not express “any opinion as to the extent of the error.” Gulf Power Co. v. Illinois-Florida Land Co., 132 So. 109,110 (Fla.1931).

Reversed and remanded for further proceedings.

STEVENSON, TAYLOR and MAY, JJ., concur.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, a Florida corporation, Petitioner, v. HALLANDALE OPEN MRI, LLC, a Florida limited liability company, a/a/o Antonette Williams, Respondent.
    No. 4D14-1036.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2014.
    Raoul G. Cantero and John-Paul Rodriguez of White & Case LLP, Miami, for petitioner.
    Dean A. Mitchell, Ocala, for respondent.
   PER CURIAM.

We deny the petition for second tier certiorari. Although we question the circuit court’s statement that Florida Small Claims Rule 7.135 “permits a trial judge to weigh the evidence submitted by the parties in support of and in opposition to summary disposition,” we do not reach that issue in this case. The circuit court’s affirmance could have been based on the trial court’s outright rejection of the affidavit offered by petitioner. Second tier certiorari is not a second appeal. This case does not fall within the narrow scope of second tier certiorari. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086,1088,1092 (Fla.2010).

GROSS, FORST and KLINGENSMITH, JJ., concur.


author: BENTON, J.

text:
    Charlie WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4240.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2014.

      John B. Kelly, III, Woodville, for Appellant.

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal, Charlie Williams contends his convictions for tampering with a witness, in violation of section 914.22(1), Florida Statutes (2012), should be reversed because the instructions the jury were given constituted fundamental error. He contends the jury instructions permitted— and, indeed, required — a guilty verdict even for lawful conduct. Persuaded, we reverse judgment and sentence alike and remand for a new trial.

On remand, Mr. Williams cannot, of course, be retried on the count on which he was acquitted, a charge of lewd or lascivious molestation of a victim twelve years of age or older, but less than sixteen years of age. The jury heard evidence that Mr. Williams consumed a certain amount of alcohol with his girlfriend at her home before she went to bed on July 2, 2012; that the girlfriend’s fifteen-year-old daughter woke her later that night; and that the daughter accused Mr. Williams of trying to touch her inappropriately while exposing himself. But, because the jury found him not guilty of lewd and lascivious molestation, double jeopardy protections preclude retrial on that charge.

Based on letters written to his girlfriend while he was in jail awaiting trial on the lewd or lascivious molestation charge, Mr. Williams was charged with and found guilty at the same trial on three counts of tampering with a witness, in violation of section 914.22(1), which provides, in part:

A person who knowingly uses intimidation or physical force, or threatens another person, or attempts to do so, or engages in misleading conduct toward another person, or offers pecuniary benefit or gain to another person, with intent to cause or induce any person to:
(a) Withhold testimony, or withhold a record, document, or other object, from an official investigation or official proceeding;
(c) Evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official investigation or an official proceeding;
(d) Be absent from an official proceeding to which such person has been summoned by legal process;
....; or
(f) Testify untruthfully in an official investigation or an official proceeding, commits the crime of tampering with a witness, victim, or informant.

(Emphasis supplied.) At trial, Mr. Williams testified that his letters to his girlfriend were requests that she tell the truth regarding what took place the night of July 2, 2012; and that statements about purchasing houses or other gifts had only to do with plans he and his girlfriend had made, prior to his arrest, for spending proceeds he anticipated from lawsuits filed on his behalf.

In short, Mr. Williams defended the charges of tampering with a witness on grounds that he was attempting to influence his girlfriend and her daughter to testify truthfully. To attempt to persuade a witness to testify truthfully is not a crime. The jury instructions given in the present ease thus omitted an essential and contested element of the offense — that any offer of pecuniary benefit or gain was made with intent to induce his girlfriend or her daughter to testify “untruthfully ” in an official proceeding. The jury had to find this fact beyond a reasonable doubt in order to convict under section 914.22(l)(f). See Blandon v. State, 657 So.2d 1198, 1199 (Fla. 5th DCA 1995) (“Jurors need to know what constitutes a criminal act so that they may differentiate between a criminal and noncriminal act.”).

Subsequent to Mr. Williams’ convictions, the Florida Supreme Court authorized for publication and use the current Florida Standard Jury Instruction (Criminal) 21.10, which provides in part:

To prove the crime of Tampering with a [Witness] [Victim] [Informant], the State must prove the following three elements beyond a reasonable doubt:
Give as applicable.
1. (Defendant) knowingly
d. offered pecuniary benefit or gain to (name of person).
2. (Defendant) did so, with intent to cause or induce [any person] [ (name of person) ] to
f. testify untruthfully in an official investigation or an official proceeding.

See In re Standard Jury Instructions in Criminal Cases — Report No. 2012-04, 131 So.3d 720, 743-44 (Fla.2013). At the time of trial, there was no standard jury instruction for tampering with a witness.

Under the instructions given in the present case, the jury was required to find Mr. Williams guilty if they found he intended to influence his girlfriend or her daughter to testify in any manner, even truthfully. Although the state presented evidence on which the jury could have found Mr. Williams guilty, if instructed correctly, evidence also supports a finding that Mr. Williams did not intend to influence a witness to testify untruthfully. “It is up to the jury to hear the evidence, find the facts, and apply the law to reach a proper and fair verdict. That process was short-circuited in this case by the faulty instruction.” Haygood v. State, 109 So.3d 735, 743 (Fla.2013).

Based on the failure to instruct the jury that the state had the burden to prove that he acted with the purpose of influencing his girlfriend or her daughter to testify “untruthfully,” § 914.22(l)(f), Florida Statutes (2012), Mr. Williams now argues he is entitled to a new trial with complete instructions. The jury was told:

To prove the crime of Tampering with a Witness, the State must prove the following two elements beyond a reasonable doubt:
1. Charlie Williams knew that a criminal trial or proceeding of this state was pending.
2. Charlie Williams used intimidation, or attempted thereto, or engaged in misleading conduct toward [the girlfriend or her daughter], or offered pecuniary benefit or gain to [the girlfriend or her daughter] with the purpose to influence that person’s testimony or to cause or induce that person to withhold testimony from an official proceeding or to cause that person to fail to appear at an official proceeding.

(Emphasis supplied.) Because the issue he raises on appeal was not preserved by a contemporaneous objection below, Mr. Williams must not only demonstrate that error occurred, but also show that the asserted error is fundamental. See Smith v. State, 76 So.3d 379, 383 (Fla. 1st DCA 2011).

In closing argument, defense counsel argued that all Mr. Williams asked his girlfriend to do was to tell the truth, saying: “That’s not tampering with a witness. That’s not enticing somebody to lie. That’s not threatening anybody.” But defense counsel did not explicitly request that the trial court instruct the jury that the prosecution had to prove Mr. Williams sought to influence a witness or witnesses to testify untruthfully, nor did defense counsel object on any other basis to the jury instructions the trial court gave before the verdict was returned.

Whether an error is fundamental is a question of law. “This Court reviews the issue of unpreserved fundamental error under the de novo standard.” Elliot v. State, 49 So.3d 269, 270 (Fla. 1st DCA 2010). “[W]here the trial court fails to correctly instruct on an element of the crime over which there is dispute, and that element is both pertinent and material to what the jury must consider in order to decide if the defendant is guilty of the crime charged or any of its lesser included offenses, fundamental error occurs.” Daniels v. State, 121 So.3d 409, 418 (Fla.2013). See also Bolin v. State, 8 So.3d 428, 431 (Fla. 2d DCA 2009) (“Fundamental error occurs when a jury instruction contains an incorrect definition of a disputed element of a crime.”); Allen v. State, 939 So.2d 273, 276 (Fla. 4th DCA 2006) (“Florida courts have found fundamental error where the trial court incorrectly instructed the jury on an element of a crime or a defense that was in dispute.”).

The erroneous jury instructions in the present case constituted fundamental error because the instructions “prevented the jury from being able to choose the true verdict in this case — a verdict based on the jury’s application of its fair assessment of the facts concerning [Mr. Williams’] intent to the proper elements of the offense as set forth in the ... statute.” Haygood, 109 So.3d at 743. “On the evidence adduced below in the present case, it is entirely possible ‘that a verdict of guilty could not have been obtained without the assistance of the error alleged.’ ” Alexander v. State, 121 So.3d 1185, 1189 (Fla. 1st DCA 2013) (citation omitted).

We reject the state’s argument that defense counsel affirmatively waived the issue based on what transpired at the charge conference. While “fundamental error may be waived where defense counsel requests an erroneous instruction,” Armstrong v. State, 579 So.2d 734, 735 (Fla.1991), defense counsel did not request the defective instruction here. See also Van Loan v. State, 736 So.2d 803, 804 (Fla. 2d DCA 1999) (noting an exception to the fundamental error rule arises when defense counsel affirmatively agrees to the omission or the alteration of a jury instruction, but that before the exception applies “defense counsel must be aware of the omission, alteration, or incomplete instruction and affirmatively agree to it”). “It is well-established that “ ‘where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’ ” ” Moore v. State, 114 So.3d 486, 489 (Fla. 1st DCA 2013) (quoting Ray v. State, 403 So.2d 956, 960 (Fla.1981)). But the defense did not invite the error in the present case.

The record in the present case reflects nothing more than unknowing acquiescence. See Roberts v. State, 694 So.2d 825, 826 (Fla. 2d DCA 1997) (“Since defense counsel did not affirmatively agree to the omission [of the definitions of justifiable and excusable homicide when instructing on attempted manslaughter], but only acquiesced in the instructions as given, the [.Armstrong ] exception does not apply.”). Compare Armstrong, 579 So.2d at 735 (“By affirmatively requesting the instruction he now challenges, Armstrong has waived any claim of error in the instruction.”); Richards v. State, 128 So.3d 959, 964 (Fla. 2d DCA 2013) (“Mr. Richards waived the error because he affirmatively requested the jury instruction he now challenges.”); Smith v. State, 76 So.3d 1056, 1058 (Fla. 4th DCA 2011) (“The specific issue of whether ‘and/or’ was appropriate was extensively discussed between the court and the attorneys, and Smith asked for the instruction that he now claims negated his entire defense .... Where the defendant asks for the instruction that he claims on appeal was erroneous, he cannot raise its error on appeal.”); Caldwell v. State, 920 So.2d 727, 733 (Fla. 5th DCA 2006) (“Caldwell’s counsel specifically requested that the definition of ‘concealed weapon’ ... not be given regarding the instruction for carrying a concealed weapon during the commission of a felony. Because of this request, we believe it incongruous for Caldwell to now complain about an error he caused to occur.”).

In the present case, the record is devoid of any discussion of whether “untruthfully” should have been omitted from the jury instructions. Nothing supports the view that defense counsel affirmatively agreed to the omission, knowing that the instructions were incomplete. See, e.g., Daniels v. State, 72 So.3d 227, 229 (Fla. 2d DCA 2011), quashed on other grounds, 121 So.3d 409 (Fla.2013) (concluding defense counsel’s acquiescence, silence, or argument in favor of the standard instruction on manslaughter did not constitute waiver or invited error); Paul v. State, 63 So.3d 828, 829 (Fla. 5th DCA 2011), quashed on other grounds, 137 So.3d 1021 (Fla.2014) (concluding defense counsel’s statements and failure to object did not waive fundamental error in jury instructions); Beckham v. State, 884 So.2d 969, 973 (Fla. 1st DCA 2004) (rejecting argument that claim of fundamental error based on failure to instruct the jury on justifiable and excusable homicide as part of the definition of manslaughter was waived where defense counsel informed the trial court that the prosecution and the defense had reviewed the proposed (incomplete) instructions and agreed to them, because the “record does not show that defense counsel was aware of the incomplete instruction and affirmatively agreed to it”); Van Loan, 736 So.2d at 804 (concluding defense counsel did not waive fundamental error in jury instructions when there was “no indication that Van Loan’s trial counsel knew that the omission was error and agreed to the omission”); Ortiz v. State, 682 So.2d 217, 218 (Fla. 5th DCA 1996) (rejecting argument that the defense waived the failure to instruct on justifiable homicide by stating to the court: “Judge, we have looked over [the charges], and we don’t have any objection to any of the instructions,” because “there was no express waiver” of the omission).

Fundamental error cannot be harmless error. See Daniels, 121 So.3d at 418; Haygood, 109 So.3d at 740. If a jury instruction defines a disputed element in a materially inaccurate way, 'whether the evidence of guilt is overwhelming or whether the prosecutor has or has not made an inaccurate instruction a feature of the prosecution’s argument are not germane to whether the error is fundamental.’ ” Haygood, 109 So.3d at 741 (quoting Reed v. State, 837 So.2d 366, 369 (Fla.2002)). The cases make clear that appellant’s judgment and sentence must be reversed, and the matter be remanded for a new trial. “Inherent in a fair trial is the right to have the court ‘correctly and intelligently instruct the jury on the essential and material elements of the crime charged and required to be proven by competent evidence.’ ” Smith, 76 So.3d at 385 (quoting Gerds v. State, 64 So.2d 915, 916 (Fla.1953)).

Reversed and remanded.

CLARK and OSTERHAUS, JJ., concur.

      . In the letters to his girlfriend, Mr. Williams wrote:
      ... Please help me get out of here so I can spoil you. My attorney is trying to settle this [an unrelated civil matter] by October 13 and need me at the settlement mediation. Sweetheart we are going to be looking at a lot of cash. You want (sic) have to worry about nothing anymore. I'm going to do everything I told you I was going to do for you because I love you so much.... Baby the only thing you got to do is go to the Unemployment place write a notirized (sic) statement saying that Charlie Williams on the night of July 2, 2012 was outside from around 9:00 p.m. to the cops came and took him to jail trying to find a ride home to Quincy and that you knew that I was on the back porch because you didn’t let me in the residents (sic), also you were up that night and witness everything baby that's the truth you want (sic) be lying.... Baby with cases like this the child protect agent try to get involved or DCF don’t let them scair (sic) you the only thing you got to do is tell them they got the wrong number and avoid them like the State attorney avoid them also. I know you are not going to help them persue (sic) something that didn't happen don’t let them talk to nobody. ... [The state attorney] can’t charge you with nothing because you didn't write a sworn.... I didn't comitt (sic) this crime. I thought we had plans on buying two house[s]: one for you here in Tally and one for me in P.C. I’m going to look out for you Sweetheart. I want us to go on a shopping spree also the money is around the corner. I want to share it with the women I love. If you need help with school clothes I can get a loan from the Lawsuit Loan place like last time. Sweetheart 500,000 is my low estimate remember I have 2 lawsuits my lawyer is trying to settle both of them by next month.... I got to be out for settlement mediation. I’m going to put 30,000 in your bank account. ... Tell [the victim] that I will get her a Apple cell phone, Ipad, as many clothes as she want and a car like Ted Bundy to drive to Rickard if ya’ll get these white folks off me.

      [T]hese crackers ain't going to let me out until you go to the courthouse write a sworn or notirize (sic) letter stating that I was behind the residence trying to find a ride home to Quincy by calling someone on my cell phone. If not I was going to catch the bus when it started running at 6 am. Also let them know that you locked me out of the residence and did not let me in non[e] that night.... I got to get out of here for settlement mediation. I’m going to look out for you I promise.... I'm going to give you 30,000 I promise.

      ... [T]he only thing I’m asking you to do is go to the courthouse and tell them white folks the truth. When the police arrested me on July 3, 2012 I told him the truth he asked me what was I doing behind the residence. I told him the truth that I was trying to call someone to take me home and that if I could not find a ride I was going to catch the bus when it started running at 6 a.m.... [T]he only thing I’m asking you to do is go to the courthouse Monday and let them crackers know that I did nothing wrong.... [P]lease go up there and clear my name you was up that hole (sic) night and witness everything that took place....

      ... I went to the car lot and gave them 2,800 then sent 500 more on a money order. If you think thats something just wait until I get this money in October. You can start picking out our home.... [I]f I was out you would not have to worry about truck note, insurance so you could have all of your money for u.... Write a statement of what took place on the morning of July 3 because you didn't write a sworn statement tell them the truth bai that I was on the back porch trying to call a ride to get home and let the public defender know I didn't do anything to anyone bai also tell them you were up that hole nite (sic) and I didn't do anything

      . Prior to 1991, subsection 914.22(l)(a), Florida Statutes, provided that it was unlawful for a person to offer pecuniary benefit or gain to "[influence the testimony of any person in an official investigation or official proceeding,” and subsection 914.22(3), Florida Statutes, provided that it was "an affirmative defense ... that the conduct consisted solely of lawful conduct and that the defendant’s sole intention was to encourage, induce, or cause the other person to testify truthfully.” In State v. Cohen, 568 So.2d 49, 52 (Fla. 1990), our supreme court determined that these portions of the statute were unconstitutional. The court noted tite "statute criminalize^] any attempt to 'influence' a potential witness and then require[d] the defendant to prove the ‘influence’ was not criminal. This is a catch-22.” Id. The court also concluded subsection 914.22(l)(a) was “unconstitutionally vague because it fail[ed] to distinguish lawful from unlawful conduct in a way adequate to give notice as to the requirements of the law.” Id. The court observed:

        [T]he language contained in subsection (3) at least suggests that the legislature, when it enacted subsection (l)(a), intended only to criminalize acts that encourage witnesses to testify falsely. This is because, on its face, subsection (3) attempts to establish an “affirmative defense” that the conduct in question was meant to induce truthful testimony from the witness. Yet simultaneously, subsection (3) is so inherently illogical and ineffectual as to cast serious doubt on this first-blush assumption. Thus, paragraph (a) of subsection (1) is facially vague. Here, we cannot determine whether the legislature in subsection (1), paragraph (a), intended to criminalize efforts to influence only untruthful, or both truthful and untruthful, testimony.

        Id. In 1991, subsection 914.22(l)(a), and subsection 914.22(3), Florida Statutes, were repealed in response to Cohen. See Ch. 91-223, § 12, at 2167, Laws of Fla. In 1992, section 914.22(l)(f) was enacted in its present form, making it a crime to offer pecuniary benefit or gain to another person with intent to cause or induce any person to ”[t]estify untruthfully in an official investigation or an official proceeding.” See Ch. 92-281, § 1, at 2116, Laws of Fla.

      . The jury verdict was rendered May 21, 2013. On June 25, 2013, defense counsel filed a motion for judgment of acquittal/new trial and argued the jury instructions misstated the law and constituted fundamental error based on the failure to instruct the jury that the state was required to prove that he acted with the purpose to influence a person to testify "untruthfully.” The trial court determined the amended information charged violations of subsections 914.22(l)(a), (c), or (d), but did not charge a violation of subsection 914.22(l)(f), and that it was unnecessary for the instructions to include the word "untruthfully.” On this basis, the motion was denied.

      . The following exchange occurred during the charge conference:
      COURT: Okay. Have a seat. We got a copy for everybody. If y'all would just look at those and make sure I did not miss any corrections. And when y’all have had a chance to review those, if you will just let me know.
      STATE: It looks good, Your Honor.
      COURT: And, Ms. Bates, have you had an opportunity to review the instructions?
      DEFENSE COUNSEL: Yes, Ma'am.
      COURT: Are they okay with you?
      DEFENSE COUNSEL: Yes, ma’am.


text:
    William Nathaniel TAYLOR, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5379.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee; and William Nathaniel Taylor, Jr., pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Pursuant to our recent decision in Taylor v. State, 140 So.3d 1149 (Fla. 1st DCA 2014), the conviction for which the appellant was sentenced to probation was reversed and the matter remanded for a new trial. Accordingly, the judgment and sentence being appealed herein, which was imposed upon revocation of probation, is REVERSED.

ROBERTS, MARSTILLER, and SWANSON, JJ., concur.


text:
    La’ Quanza GEE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4918.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2014.
    Nancy A. Daniels, Public Defender, M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014).

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Jevon Anthony HULEWITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3860.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2014.
    Nancy A. Daniels, Public Defender, Zachary F. Lawton, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Kristen L. Bonjour, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 143 So.3d 423 (Fla. 1st DCA 2014).

PADOVANO, THOMAS, and CLARK, JJ., concur.


author: SWANSON, J. VAN NORTWICK, J.,

text:
    Nicholas A. JAMES, Petitioner, v. Daniel K. LEIGH and Kenny Leigh, P.A., Respondents.
    No. 1D14-799.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2014.

      Steven E. Brust and Jonathon D. Press-ley of Smith, Gambrell & Russell, LLP, Jacksonville, for Petitioner.
    P. Campbell Ford and Alison A. Blake of Ford, Miller & Wainer, P.A., Jacksonville Beach, for Respondents.
   SWANSON, J.

In this certiorari proceeding, petitioner seeks review of a nonfinal order denying his motion to dismiss respondents’ claims for defamation and breach of a non-disparagement agreement as barred under the absolute litigation privilege. Because we conclude the applicability of the privilege was demonstrated on the face of the complaint and the exhibits attached to the complaint, we grant the petition.

Respondents, petitioner’s former law partner and law firm, filed a complaint against petitioner for defamation and breach of a non-disparagement agreement arising from statements published by petitioner in petitioner’s divorce proceeding. The statements in question were made in an “Objection to Entry of Final Judgement [sic] and Motion to Set Aside Marital Settlement Agreement” and “Husband’s Brief,” both of which were attached to the complaint as exhibits, and included accusations of misconduct against petitioner’s former partner. Essentially, petitioner sought to set aside the marital settlement agreement with his former wife because it was entered based on the belief that petitioner’s law partner would be disciplined for misconduct, allowing petitioner to maintain his income by assuming control of the firm or starting a new firm and taking his existing clients with him. Instead, petitioner was fired, disciplinary proceedings against petitioner’s former law partner were dismissed, and petitioner had to start his own firm from scratch, making only a fraction of his prior income.

Petitioner filed a motion to dismiss the claims for defamation and breach of the non-disparagement agreement on the ground the alleged defamatory statements made in petitioner’s divorce proceeding were protected by the absolute litigation privilege. After holding a hearing, the trial court denied petitioner’s motion to dismiss on the ground the applicability of the privilege was not clear from the face of the complaint. This petition for writ of certiorari followed.

“The law in Florida has long been that defamatory statements made in the course of judicial proceedings are absolutely privileged, and no cause of action for damages will lie, regardless of how false or malicious the statements may be, so long as the statements are relevant to the subject of inquiry.” Fridovich v. Fridovich, 598 So.2d 65, 66 (Fla.1992). Our supreme court has explained:

This absolute immunity resulted from the balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts in the conduct of judicial proceedings. In determining that the public interest of disclosure outweighs an individual’s right to an unimpaired reputation, courts have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim. Although the immunity afforded to defamatory statements may indeed bar recovery for bona fide injuries, the chilling effect on free testimony would seriously hamper the adversary system if absolute immunity were not provided.

Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 689 So.2d 606, 608 (Fla.1994) (citations omitted). In recognition of the necessity for the free flow of information, courts have not imposed a strict relevancy test in determining whether a statement made during the course of a judicial proceeding is entitled to immunity so long as the statement “has some relation to the proceeding.” Hope v. Nat’l Alliance of Postal & Fed. Emps., Jacksonville Local No. 320, 649 So.2d 897, 901 (Fla. 1st DCA 1995). Accord DelMonico v. Traynor, 116 So.3d 1205, 1219 (Fla.2013); Levin, 639 So.2d at 608; Fridovich, 598 So.2d at 66-67; R.H. Ciccone Props., Inc. v. JP Morgan Chase Bank, N.A., 141 So.3d 590 (Fla. 4th DCA 2014). Although immunity is generally raised as an affirmative defense in an answer or other responsive pleading, it may be raised in a motion to dismiss if its applicability is demonstrated on the face of the complaint or exhibits. Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. 5th DCA 2004). When the trial court denies a motion to dismiss on immunity grounds, cer-tiorari review of the non-final order is proper because absolute immunity protects a party from having to defend a lawsuit at all and waiting until final appeal would render such immunity meaningless if the lower court denied dismissal in error. Fla. State Univ. Bd. of Trs. v. Monk, 68 So.3d 316, 318 (Fla. 1st DCA 2011).

We conclude that respondents’ complaint and the attached exhibits demonstrate the statements made in petitioner’s “Objection to Entry of Final Judgement [sic] and Motion to Set Aside Marital Settlement Agreement” and his supporting “Husband’s Brief’ had some relation to petitioner’s divorce proceeding because they attempted to explain why petitioner entered into the marital settlement agreement based on the mistaken belief that petitioner’s law partner would be disciplined for misconduct, allowing petitioner to maintain his income by assuming control of the firm or starting a new firm and taking his existing clients with him. See Hope, 649 So.2d at 901 (holding that statements that a postal employee “collaborated in the death of the young black male” and was “an accessory to murder in that he actually destroyed the murder weapon” were entitled to immunity because the statements “related to” the union grievance proceeding regarding racial tensions in the workplace). As a result, the statements made by petitioner during the course of judicial proceedings to inform the court of his reasons for his objection and motion were absolutely privileged. See Dadic v. Schneider, 722 So.2d 921, 923 (Fla. 4th DCA 1998) (holding that statements made by counsel in his motion to withdraw from representation of his clients were absolutely privileged because counsel made the statements during the course of judicial proceedings to inform the court of the reasons for the motion). The falsity or maliciousness of these statements is irrelevant to the application of the privilege. Ross v. Blank, 958 So.2d 437, 441 (Fla. 4th DCA 2007).

We reject respondents’ contention that petitioner waived the absolute litigation privilege by entering into the non-disparagement agreement. Our supreme court has held that “an individual cannot waive a right designed to protect both the individual and the public.” Chames v. DeMayo, 972 So.2d 850, 860 (Fla.2007). Since the absolute litigation privilege is a firmly established right of immunity designed to protect the public by ensuring the free and full disclosure of facts in the conduct of judicial proceedings, we conclude the parties’ non-disparagement agreement could not be construed as a waiver of the privilege. Accordingly, we grant the petition, quash the trial court’s order, and remand for further proceedings consistent with this opinion.

PETITION GRANTED.

CLARK, J., concurs; VAN NORTWICK, J., specially concurs with opinion.

VAN NORTWICK, J.,

specially concurring.

I concur fully with the majority opinion. The litigation privilege clearly applies to the statements in the pleadings filed by petitioner in his divorce proceeding. I write separately to expand the discussion of the standard applicable here.

Below and on appeal, the respondent admits that certain of the alleged defamatory statements made by petitioner were related to his request for a reduction in his support obligations due to his decreased income. Respondents assert, however, that the petitioner’s pleadings must be examined sentenee-by-sentence to determine if each statement is relevant to the divorce proceeding and is, therefor, covered by the privilege. The respondents are seeking to apply a standard that would establish a closer relationship between the alleged defamatory statements and the judicial proceeding in which they are made than the case law establishes. Courts have not imposed a strict relevancy test in determining whether a statement made during the course of a judicial proceeding is entitled to immunity so long as it “has some relation to the proceeding.” Hope v. Nat’l Alliance of Postal & Fed. Emps., Jacksonville Local No. 320, 649 So.2d 897, 901 (Fla. 1st DCA 1995); accord DelMonico v. Traynor, 116 So.3d 1205, 1219 (Fla.2013); Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994); Fridovich v. Fridovich, 598 So.2d 65, 66 (Fla.1992); R.H. Ciccone Props., Inc. v. JP Morgan Chase Bank, N.A., 141 So.3d 590 (Fla. 4th DCA 2014).

The Florida “bears some relation” test adheres to the Restatement’s “some relation” test. Restatement (Second) of Torts § 586 (1977). In determining whether a lawyer’s statement has “some relation” to a judicial proceeding, all that is required “is a minimal possibility of pertinence or simplest rationality.” Mosesson v. Jacob D. Fuchsberg Law Firm, 257 A.D.2d 381, 683 N.Y.S.2d 88, 89 (1999). Here, the petitioner’s pleadings all relate directly to the divorce proceeding, and all of the statements in the pleadings are at least minimally related to the divorce proceeding.

Notwithstanding the leniency of the “some relation” requirement, of course, some communications can be so tenuously linked to a judicial proceeding that they cannot reasonably be said to relate. For example, if the petitioner’s pleadings had falsely accused the respondents of being members of Al-Qaida, such statements would have no relation to the divorce proceeding and would not be protected by the privilege.

Gilbert v. People, 1 Denio 41 (N.Y.Sup.Ct.1845), a vintage New York case, provides an agricultural example of statements bearing no relation to the judicial proceedings. The lawyer in Gilbert represented the plaintiff in a trespass action in which several of the plaintiffs sheep were harmed. Id. at 42. The lawyer submitted a declaration in the proceeding stating that the defendant “was ‘reported to be fond of sheep, bucks, and ewes, and of wool, mutton and lambs,’” was ‘“in the habit of biting sheep,’ ” and, if found liable, should “be hanged or shot.” When sued for libel, the lawyer asserted the litigation privilege as a defense. The court rejected the claim of privilege and found the lawyer’s statements “in no respect relevant or material” to the underlying action. Id. at 42-43; see generally, Douglas R. Richmond, The Lawyer’s Litigation Privilege, 31 Am. J. Trial Advoc. 281, 317-19 (2007).


text:
    Paul HOFFMAN, Petitioner, v. BJ’S WHOLESALE CLUB, INC., A Foreign Profit Corporation, Respondent.
    No. 1D14-3687.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2014.
    Christopher W. Hewett, of Nooney & Roberts, Jacksonville, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of an order granting a protective order. Petitioner has failed to demonstrate that the order results in irreparable harm that cannot be adequately remedied on appeal following final judgment. Accordingly, the petition is denied.

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


author: HUGHES, J.,

text:
    STATE of Louisiana v. Kenneth M. PLAISANCE.
    No. 2014-CC-0129.
    Supreme Court of Louisiana.
    March 21, 2014.
   In re Plaisance, Kenneth M.; — Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. K, No. 2006-00297; to the Court of Appeal, Fourth Circuit, No. 2013-C-1369.

Denied.

HUGHES, J., concurs. Denied on showing made.

HUGHES, J.,

concurring.

U would deny the writ on the showing made. We are not provided with enough information to know if relator was ever actually served with the Louisiana proceedings or when he might have learned of the paternity issue.