text:
    ALLIED UNIVERSAL CORPORATION, Appellant, v. Jeffrey B. GIVEN, Appellee.
    No. 3D16-1128
    District Court of Appeal of Florida, Third District.
    Opinion filed March 15, 2017,

      Daniel K. Bandklayder, P.A. and Daniel K. Bandklayder and- Amy M. Bowers; Bowman & Brooke LLP and Douglas H. Stein, for appellant.
    ' Ford & Harrison LLP and Elizabeth M. Rodriguez; Ford & Harrison LLP and Edward B. Carlstedt (Tampa), for appel-lee. •
    Before SUAREZ, C.J., arid LAGOA and SCALES, JJ.
   SUAREZ, C.J.

Alied Universal Corporation [Alied] appeals a non-final order denying its motion for a preliminary injunction by which it sought to enforce the terms of a non-compete agreement it had with former employee Jeffrey B. Given [Given]. A review of the record shows that Given failed- to rebut the presumption of irreparable injury raised by Alied. We accordingly reverse.

Allied is a Florida corporation engaged in the manufacture and distribution of water treatment chemicals, and sells its products throughout the southeastern U.S. Allied is headquartered in Miami-Dade County and has offices throughout Florida, and the southeastern U.S. Given is a resident of Georgia and was hired by Allied in 2010. He worked as regional sales manager for Allied in the Georgia facility, with responsibility for all sales territory north of Florida. During Given’s employment with Allied, he received training regarding Allied’s business practices, confidential and proprietary manufacturing processes, packaging and handling techniques, as well as proprietary business information such as raw material providers, production costs, customer lists, prospective customers, marketing and pricing.

In 2015, as a condition of continued employment, Given signed a nondisclosure and non-compete agreement that provided he not directly compete with Allied for 18 months after termination of employment and within a 150-mile radius of any Allied operational facility. In March 2016, Given resigned from Allied and took,a job with Univar, in Georgia, as a strategic account manager. Univar is a company that directly competes with Allied, and is engaged in the manufacture, sale, packaging and distribution of many of the same chemicals Allied produces and distributes. In his position at Univar, Given targeted a larger market than Allied, i.e., customers that buy in high volumes for barges and rail-cars, rather than by the truckload. Univar sells in the same geographic area as Allied, and within 150 miles of Allied facilities, but also purchases products from Allied as a customer; Allied sought temporary injunc-tive relief based on Given’s violation of the non-compete agreement. Following an evi-dentiary hearing on Allied’s motion, the trial court denied the motion, finding only that Allied failed to show irreparable harm or absence of an adequate remedy at law.

The trial court is afforded broad discretion when granting, modifying or denying an injunction. The trial court’s decision can only be overturned on appeal upon a finding of a clear abuse of discretion. Wise v. Schmidek, 649 So.2d-336, 337 (Fla. 3d DCA 1995), We find there was such an abuse as. the record shows that Allied presented unrebutted evidence of a statutorily listed legitimate business interest to be protected and also presented unrebutted evidence of irreparable harm.

“A temporary injunction is an extraordinary and drastic remedy which should be sparingly granted.” Cordis Corp. v. Prooslin, 482 So.2d 486, 489 (Fla. 3d DCA 1986). To grant a temporary injunction, the .moving party must plead and establish: (1) a likelihood of irreparable harm and the unavailability of an adequate remedy at law; (2) a substantial likelihood of success on the merits; (3) that the threatened injury' to the petitioner -outweighs any possible harm to the respondent[;] and (4) that the granting of a temporary injunction will not disserve the public interest. Reliance Wholesale, Inc. v. Godfrey, 51 So.3d 561, 564 (Fla. 3d DCA 2010).

The issue in this appeal is controlled by Section 542.335 Florida Statutes (2016) (Valid restraints of trade or commerce). With that in mind, a court “shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the , person seeking enforcement.” § 542.335(l)(g)(4),' Fla. Stat. (2016). Section 542.335(l)(b), Florida Statutes (2016) provides a non-exhaustive list of statutorily protected legitimate business interests. This list includes “[substantial relationships with specific prospective or existing customers” and goodwill associated with an “ongoing business or professional practice” or “specific geographic location.”

At the evidentiary hearing on the motion for temporary injunction, Allied presented unrebutted evidence of the existence of statutorily legitimate business interests to be protected and evidence that Given had substantial relationships with specific prospective or existing Allied customers. Allied’s .president, Mr. Palmer, testified that his company had trained Given, over the course of Given’s six-year employment, in its manufacturing and production techniques, marketing strategies, and confidential pricing strategies. In addition, Given had knowledge of existing and prospective customers, and had been sent to several trade meetings to cultivate these contacts. “As with many sales positions, regardless of the industry, forming relationships with prospective and existing customers is invaluable and often vital for success.” Reliance Wholesale, 51 So.3d at 565. Allied, therefore, presented evidence of the existence of legitimate business interests to be protected as defined and set forth in Florida Statutes section 542.335(l)(b)2, and evidence that Given had. substantial relationships with specific prospective or existing Allied customers. See § 542.335(l)(b)3, Fla. Stat. (2016). As such, Allied’s evidence was sufficient to create a rebuttable presumption of irreparable injury for purposes of obtaining a temporary injunction under section 542.335(j).

Once Allied presented evidence of irreparable injury, the burden shifted to Given, the party opposing enforcement, to establish the absence of such injury. § 542.886(l)(j), Fla. Stat. (2016). Given failed to present any such evidence. Given argues that as he had not yet begun actively managing Univar territory because of the pending injunction proceedings, he has not breached the non-compete and no monetary damages were incurred by Allied ás a result of his employment with Univar. He admitted that, if he were not enjoined, he would begin managing a sales territory for Uniyar, However, the only focus at the preliminary injunction stage is to maintain longstanding relationships and preserve the company’s goodwill. See U.S. Floral Corp. v. Salazar, 475 So.2d 1305 (Fla. 3d DGA 1985) (noting that entry of a temporary injunction is the favored remedy for violation of a non-compete agreement); Variable Annuity Life Ins. Co. v. Hausinger, 927 So.2d 243, 245 (Fla. 2d DCA 2006) (“[T]he harm presumed under the statute includes the potential damages- to [the plaintiffs] longstanding relationships with its customers and the protection of confidential client information”). The breach of a non-compete agreement that threatens a former employer’s goodwill and relationships with its customers, indicates that nothing short of an injunction would prevent this loss. See TransUnion Risk & Alternative Data Sols., Inc., v. Reilly, 181 So.3d 548, 551 (Fla. 4th DCA 2015).

Allied presented unrebutted evidence that should the temporary injunction .not be granted, Allied would suffer irreparable harm. Allied’s president testified that Allied’s business would be severely hurt if Given were to use Allied’s customer information, relationships, and marketing strategy in his new employment with Univar. There is no adequate remedy at law for disclosure of this information. The employer seeking an injunction need not directly prove that the former employee’s actions will cause irreparable harm if not enjoined; the presumption of harm here is unrebut-ted. See Hausinger, 927 So.2d 243, 245 (Fla. 2d DCA 2006) (holding that the inability to demonstrate actual monetary damages does not preclude a finding of irreparable harm to support injunctive relief)); Am. II Elecs., Inc. v. Smith, 830 So.2d 906, 908 (Fla. 2d DCA 2002) (recognizing that “a party seeking to énforcé'a restrictive covenant by injunction'heed not directly prove that the defendant’s specific activities will cause irreparable injury if not enjoined”). “To require that a plaintiff prove irreparable injury as a prerequisite to injunctive relief, as petitioner urges, would, in most instances, defeat the purpose of the plaintiffs action. Immediate injunctive relief is the essence of such suits and oftentimes the only effectual relief. It truly can be said in this type of litigation that relief delayed is relief denied.” Capraro v. Lanier Bus. Prod., Inc., 466 So.2d 212, 213 (Fla. 1985).

• Accordingly, we reverse the order denying the motion for temporary injunction and remand with directions to grant the motion and enter the requested temporary injunction reinstating the status quo. Our decision shall take effect immediately notwithstanding the filing of any motion for rehearing.

Reversed and remanded.

      . Section 542.335 Florida Statutes (2016) provides:
      (1) Notwithstanding s. 542.18 and subsection (2), enforcement of contracts that restrict or prohibit competition during or after the term of restrictive covenants, so long as such contracts are reasonable in time, area, and line of -business, is not prohibited. In any action concerning enforcement of a restrictive covenant:

        (b) The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant. The term "legitimate business interest” includes, but is not limited to:
      1. Trade secrets, as defined in s. 688.002(4).
      2. Valuable confidential business or professional information that otherwise does not qualify as trade secrets.
      3. Substantial relationships with specific prospective or existing customers, patients, or clients.
      4. Customer, patient, or client goodwill associated with:
      a. An ongoing business or professional practice, by way of trade name, trademark, service mark, or "trade dress”;
      b. A specific geographic location; or
      c. A specific marketing or trade area.
      5. Extraordinary or specialized training.
      Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.
      Section 542.335 (l)(g)(4) provides:
      (g) In determining the enforceability of a restrictive covenant, a court: ...
      4. Shall consider the effect of enforcement upon the public health, safety, and welfare, (h) A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.
      Section 542.335 (1) (j).provides:
      (j) A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions. The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.

      . Neither party has disputed that Given voluntarily signed a valid non-compete agreement or that Given became employed by Allied’s competitor Univar within a month of resigning from Allied.


source: Caselaw Access Project

author: BADALAMENTI, Judge.

license: Public Domain

text:
    Richard STARKS, Jr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-1762
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2017

      Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   BADALAMENTI, Judge.

Richard Starks, Jr., appeals his jury conviction for second-degree murder. Starks’s charge stems from his fatal beating of a guest at a house party. He contends that the trial court erred by denying his motion for judgment of acquittal because it erroneously determined that punching a victim to death is imminently dangerous under Florida’s second-degree-murder statute. We hold that the State presented sufficient evidence to establish that Starks’s barehanded punching of an unconscious and seated victim was “imminently dangerous” conduct within the meaning of section 782.04(2), Florida Statutes (2011). We affirm Starks’s conviction in all respects.

I. FACTS AND PROCEDURAL BACKGROUND

Viewed in the light most favorable to the jury’s verdict, the trial evidence demonstrated as follows: On a late Saturday evening, Starks was a guest at a house party in Pasco County along with the victim, Sam Smith. The victim was one of the first guests to arrive at the party, arriving at approximately 6:00 p.m., with both his fiancée and his younger. sister. Starks arrived to the party later in the evening.

Immediately upon his arrival, Starks was hostile to the victim. Starks initially mistook the victim for someone named Brian, whom Starks disliked. Starks’s demeanor toward the victim—who he thought was Brian—became loud and aggressive. The victim did not respond to Starks’s hostility but instead tried to back out of the situation. Eventually the victim’s identity was cleared up, but this incident was only the first in a series of Starks’s provocations toward the victim,

Later in the evening, the victim commented that Starks was a “ginger”—a person with red hair. Starks took great offense to the label, even though he did not seem to understand what it meant, and he angrily confronted the victim a second time that evening. Starks indicated that he wanted the verbal confrontation to become physical, but the victim again declared that he did not want to fight Starks.

The third confrontation between Starks and the victim would prove to be fatal. Toward the end of the night, the victim was sitting in a plastic chair outside of the house, underneath a carport. The trial testimony reflects that, at this point in the festivities, Smith “had started drinking quite a bit” and had become “very incoherent, laying in the chair.” Starks was also outside in the area where the victim was seated. The victim overheard the party’s host speaking with the victim’s fiancée. The victim interpreted this interaction as flirtation and made a comment to the host while still seated in the plastic chair. At that point, Starks inserted himself into the fray and told the victim not to “insult [his] friend like that.”

The victim ignored Starks’s third attempt at provocation that evening, but Starks nevertheless advanced toward the still-seated victim. The victim never attempted to put his hands up in defense, to get out of the chair, or to try and defend himself in any manner. One of the guests attempted to intercept Starks before he reached the victim, but Starks broke free and punched the seated victim on the left side of his face. Starks’s first punch knocked the victim unconscious and the victim’s body went limp in the plastic chair.

A guest then pulled Starks back from the victim’s limp body, but Starks broke free a second time, landing a second series of punches to the head of the still-seated, still-unconscious, and still-limp victim. Yet again, a guest attempted to restrain Starks, but Starks broke loose for a third time, delivering a third series of punches to the defenseless victim’s head. In total, Starks broke free from three attempts by partygoers to restrain him. The partygoers who witnessed the entire attack testified that Starks landed between six and twelve punches to the victim’s head, despite the victim appearing incoherently drunk prior to being hit and despite Starks’s first punch having rendered the victim unconscious.

A party guest testified that, after Starks was pulled away from the victim a final time, she heard Starks repeatedly bragging about how he had “whooped” the victim.

The party’s host then told Starks to leave and the host’s girlfriend called 9-1-1. At the conclusion of Starks’s series of attacks, the unconscious victim was slumped over in his chair, his face looked pale and bruised, his neck was awkwardly turned, his nose and mouth were bleeding, there was a pained expression on his face, and he did not appear to be breathing normally. The party’s host attempted to perform CPR on the victim for approximately twenty minutes, until law enforcement officers and paramedics arrived at the scene at approximately 1:00 a.m.

A paramedic who responded to the incident testified that the victim was not breathing and had no neural activity but did have a faint heartbeat. The paramedic stated that the victim had blood around his mouth and nose, that the victim’s jaw appeared broken, and that the orbits of the victim’s eyes were bruised and swollen. The paramedic remarked that, due to the injuries to the victim’s jaw, he did not require a laryngoscope to open the victim’s mouth, which was “highly unusual.” Instead, the paramedic merely used his hand and forefinger to pull the victim’s injured jaw down and gain sight of the victim’s vocal chords in order to place an artificial airway device.

The victim was transported to a hospital, arriving at approximately 3:00 a.m., and was pronounced dead soon after. When the party’s host contacted Starks and informed him of the victim’s death, Starks profanely indicated that he did not care. In fact, Starks tried to get one of the guests from the party to help set up an alibi for where Starks had been that night, but the guest refused to help Starks in that manner.

A medical examiner testified that the victim’s cause of death was blunt trauma to the head and neck and that the manner of death was homicide. The examiner explained that he found multiple injuries to the victim’s body, including a broken bone in the victim’s neck, a cranial hemorrhage, and multiple soft-tissue injuries to the victim’s face. The examiner opined that the cranial hemorrhage was likely the fatal injury to the victim, insomuch as it likely affected the victim’s ability to breathe. The examiner also opined that there was, no way for the victim to suffer the variety of injuries that he suffered from just one punch. Instead, the examiner opined that the victim’s injuries were indicative of being punched at least three times or perhaps as many as one hundred times.

On redirect examination, the State asked the' examiner if striking someone who is already unconscious is “imminently dangerous,” The examiner sought clarification for this question by asking the State if it meant to inquire, “Would that be bad to strike an unconscious person?” The State agreed with the examiner’s rephrasing of its question, and the examiner then answered, “In general terms, yes.”

On recross examination, Starks’s counsel dwelled on this .point by immediately asking the examiner if he meant that striking an unconscious person was “just bad” but not “imminently dangerous.” The examiner clarified, “I don’t really know what ‘imminently dangerous’ is but if you have somebody that’s been beaten to unconsciousness and you continue that would, you know ... not be good for their health.”

At the close of the State’s case-in-chief, defense counsel moved for judgment of acquittal. The basis for the motion was narrow. Defense counsel argued only that the State had failed to prove Starks’s actions on the night of the homicide were imminently dangerous. The thrust of defense counsel’s motion was derived from the testimony of the medical examiner. Specifically, defense counsel took the medical examiner’s testimony to mean that punching an unconscious person was not imminently dangerous and therefore could not support a conviction of second-degree murder. Instead, defense counsel suggested that a conviction on the lesser included offense of voluntary manslaughter might be more appropriate. The trial court denied Starks’s motion and, because Starks did not present a case-in-chief, the court then charged the jury as to the elements of second-degree murder and six lesser included offenses. The jury found Starks guilty as charged of second-degree murder, The court sentenced Starks to thirty years’ imprisonment.

II. DISCUSSION

Starks argues that the trial court erred by denying his motion for judgment of acquittal on the second-degree-murder charge because the State presented insufficient trial evidence, that his punching the ■victim was imminently dangerous and evincing a depraved mind under section 782.04(2). Starks concedes that his trial counsel did not present argument for judgment of acquittal on all elements of second-degree murder.- Instead, his trial counsel limited the motion for judgment of acquittal to whether the State presented sufficient evidence that Starks’s continuous punching of the victim after the victim was unconscious was an “imminently dangerous” act.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla. 2002) (citing Tibbs v. State, 397 So.2d 1120 (Fla. 1981)). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id (citing Banks v. State, 732 So.2d 1065, 1067 (Fla. 1999)). “The courts, should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of. it favorable to the opposite party can be sustained under the law.” Lynch v. State, 293 So.2d 44, 45 (Fla. 1974).

A. Determining Whether an Act is “Imminently Dangerous”

Section 782.04(2) defines second-degree murder as “[t]he unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual- ..., ” Our supreme court has explained that, in order to establish an act as “imminently dangerous to another and evincing a depraved mind,” the State must show that the act (or acts) was such that “(1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another, and (2) is done from ill will, hatred, spite or an evil intent, and (3) is of such a nature that the act itself indicates an indifference to human life.” State v. Montgomery, 39 So.3d 252, 255-56 (Fla. 2010) (quoting Bellamy v. State, 977 So.2d 682, 683 (Fla. 2d DCA 2008)); see also Fla. Std. Jury Instr. (Crim.) 7.4 (defining the word “act” to include “a series of related actions arising from and performed pursuant to a single design or purpose”).

Starks argues that his repeated punches to the victim’s head were not imminently dangerous acts because punching a victim is not “reasonably certain to kill or do serious bodily injury.” Montgomery, 39 So.3d at 255. In fact, Starks goes.a step further by inviting us to take a categorical approach. That is, he asserts that a conviction for second-degree murder cannot be sustained where the death is caused by the act of punching. We reject both arguments.

Our analysis begins, as it should, with the statutory text. Section 782.04(2) states that second-degree murder occurs when the death is “perpetrated by any act imminently dangerous.” (Emphasis added.) By its plain and ordinary meaning, the phrase “any act” is broad and not limited to a specific kind of act. See § 782.04(2); Fla. Std. Jury Instr. (Crim.) 7.4; see also United States v. Gonzales, 520 U.S. 1, 5, 117 act. 1032, 137 L.Ed.2d, 132 (1997) (“Read naturally, the word ‘any* has an expansive meaning, that is, ‘one or some indiscriminately of whatever kind.’ ” (quoting Webster’s Third New International Dictionary 97(1976))).

In accordance with this broad statutory language, Florida case law upholding convictions for second-degree murder logically encompasses a broad range of acts found to be imminently dangerous. See, e.g., Young v. State, 250 So.2d 922, 923 (Fla. 2d DCA 1971) (act of stabbing the victim with a knife); Henry v. State, 145 So.3d 924, 928 (Fla. 4th DCA 2014) (act of hitting the victim fifteen to twenty times with a baseball bat); Millan v. State, 932 So.2d 557, 560 (Fla. 3d DCA 2006) (act of beating the victim with a bat and a tire iron before slitting his throat).

It may be especially obvious that certain acts, like stabbing someone, are more reasonably certain to kill or do serious bodily injury than the act of punching someone. But the text of the second-degree-murder statute does- not call upon trial courts to evaluate imminent danger based on how one defendant’s chosen act of inflicting injury upon a victim stacks up against another’s. Accordingly, Starks’s categorical focus on the general dangerousness of the act of punching belies what the statute’s text actually says. The legal analysis does not exclusively turn on the particular act one chooses in order to inflict harm on another. Whether Starks killed the victim by stabbing him with knife, clobbering him with a baseball bat, or punching the victim with his fists is only part of the imminent danger analysis under section 782.04(2).

Whether an act is imminently dangerous turns on the facts of a particular case focusing on whether “a person of ordinary judgment would know” that the act was “reasonably certain to kill or do serious bodily injury” to the victim. Montgomery, 39 So.3d at 255 (quoting Bellamy, 977 So.2d at 683); Fla. Std. Jury Instr. (Crim.) 7.4. Thus, our analysis of whether the State presented sufficient evidence that Starks’s act of repeatedly punching the victim was “imminently dangerous” will focus on whether Starks’s actions were such that a person of ordinary judgment would know that those acts are reasonably certain to kill or do serious bodily injury to the victim.

Apart from the statutory language, Florida courts have repeatedly upheld convictions of second-degree murder for deaths caused by punching. See Storey v. State, 153 Fla. 185, 13 So.2d 912, 913 (1943) (upholding a second-degree-murder conviction where a twenty-four-year-old defendant began punching “an inoffensive and unoffending old man in his declining years” while the old man was seated and then continued his barrage as he dragged the old man out of his truck); Dillen v. State, 202 So.2d 904, 906 (Fla. 2d DCA 1967) (finding that “there was adequate evidence” to support a conviction of second-degree murder where the State charged defendant with “unlawfully and feloniously mak[ing] an assault” on a minor child “with a deadly weapon, to-wit: his hands and fists”); Larsen v. State, 485 So.2d 1372, 1373 (Fla. 1st DCA 1986) (finding sufficient evidence to uphold a second-degree-murder jury conviction where defendant struck “hard across the face” his ninety-five-pound wife who was partially physically disabled); see also 2 Wayne R. LaFave, Substantive Criminal Law § 14.2 (2d ed.), Westlaw (database updated October 2016).

A common factor in all of these eases is that they each involved a defendant punching a victim who was especially and visibly susceptible to harm. See LaFave, supra, § 14.2 (“[I]n appropriate cases, generally involving big men attacking small, frail men or women or children, and generally involving the repeated use of hands and feet, an inference of an intent to kill may properly be drawn.”). Naturally, these cases do not imply that punching someone will always be imminently dangerous, nor do they imply that a trier of fact is restricted by any specific type of vulnerability that the victim may have been suffering from—older, younger, smaller, or sicker. Again, the analysis of whether a defendant’s act is imminently dangerous in the milieu of second-degree murder turns on a case-by-case determination as to whether the defendant’s actions were reasonably certain to kill or do serious bodily injury to the victim. See Larsen, 485 So.2d at 1373 (“The grade or degree of a homicide, and the intent with which a homicidal act was committed are questions of fact dependent upon the circumstances of the case, and are typically for resolution by a jury.”).

For example, in Storey, the twenty-four-year-old defendant beat a seventy-year-old victim to death after a minor vehicle accident. 13 So.2d at 912-13. The angered defendant got out of his car, ran toward the victim’s truck, reached in the truck’s window, and began repeatedly punching the victim in the head and face. The defendant then pulled the victim out of his truck, causing the victim’s head to hit the truck’s running board and the pavement below. Id. at 913. A jury convicted the defendant of second-degree murder. Id. at 912. On appeal, the supreme court held that the facts of the case supported the conviction. Id. at 913. The supreme court explained that the Storey defendant “must be presumed to have intended the natural ordinary consequences of his wilful [sic] and deliberate acts” because one must “have known that by beating ah aged man about the head and face as he did, and dragging him from the truck feet first, serious and fatal injuries might result as a consequence.” Id. (emphasis added). The Storey court focused on whether the natural ordinary consequences of the defendant’s conduct of punching an “aged man” in the head and face and dragging him would ordinarily cause serious bodily harm. Id. As the supreme court instructed, it was immaterial that the victim’s death may have been caused by the defendant’s punch or something else. Id. (“Whether death came as a result of the blows inflicted by the appellant, or from the fall on the pavement, or from a combination of both, is immaterial.”). Instead, the supreme court focused on the defendant’s acts and the factual circumstances surrounding those acts to determine whether they were imminently dangerous.

Cases like Storey, Pillen, and Larsen underscore that the relevant inquiry to determine whether a defendant’s act is imminently dangerous ' under section 782.04(2) is whether “a person of ordinary judgment would know” that the defendant’s conduct “is reasonably certain to kill or do serious bodily injury.” Montgomery, 39 So.3d at 255 (quoting Bellamy, 977 So.2d at 683); see also Larsen, 485 So.2d at 1373 (noting that “the relative harm-causing potential” between the defendant and victim in that case distinguished it from other cases where a second-degree-murder conviction was reversed). The defendant can act by using his fist, a knife, a baseball bat, or any other instrumentality, but the instrumentality is not necessarily dispositive in determining whether the act is imminently dangerous. Cf. Young, 250 So.2d at 923; Henry, 145 So.3d at 928; Millan, 932 So.2d at 560. The inquiry should focus on the whole picture surrounding the victim’s death rather than focusing its lens on any one factor as being dispositive.

B. The Imminent Danger of Starks’s Actions .

Having explained the framework for determining whether an act is imminently dangerous, we now turn to whether the State presented sufficient evidence to determine that Starks’s punching of the victim was imminently dangerous conduct for purposes of the second-degree-murder statute.

Starks tried to goad, the victim into a fight soon after Starks arrived at the house party. Throughout the • evening, Starks repeatedly confronted the victim for varied reasons and tried to provoke a fight despite the victim’s attempts to avoid confrontation. Starks finally got his chance when the victim was drunkenly sitting in a plastic chair outside of the house. After the victim made an offhand comment about the party’s host, Starks seized the opportunity to engage in a physical altercation, charging at the still-seated victim and punching him.

The victim lost consciousness, went limp after Starks’s first blow, and never attempted to defend himself. Despite the fact that the victim was slumped unconscious in his chair and not defending himself, Starks continued to beat the victim’s limp, unconscious body in a series of attacks. Even though some of the guests at the party repeatedly tried to restrain Starks—not once, not twice, but three times—he broke free and relentlessly went back to pummel the victim’s face and head. The victim was unconscious, never put his hands up, and was visibly slumped in a chair after drinking heavily, but Starks continued to punch him again arid again. For purposes of the imminent danger inquiry in section 782.04(2), repeatedly punching a victim in this state—seated, unconscious, defenseless, and appearing very incoherent—is not meaningfully different from punching the victims in cases like Storey, Pillen, and Larsen.

At bottom, this was a savage, one-sided beating upon an unconscious victim by an attacker whose rage had been building from several encounters .with the victim throughout the course of an evening. Mr. Starks’s actions on that fatal night reveal that he was a combustible element ready to explode upon the unfortunate victim. The State presented sufficient evidence that a reasonable person in Starks’s position would know that repeatedly punching the defenseless, limp victim in the face and head was reasonably certain to kill or do serious bodily' injury to the victim. See § 782.04(2). Viewing the trial record in the light most favorable to the jury’s guilty verdict, the trial court did not err in denying Starks’s rnotion for judgment of acquittal. See Pagan, 830 So.2d at 803 (citing Banks, 732 So.2d at 1067). The State presented the jury with competent, substantial evidence to conclude beyond a reasonable doubt that Starks’s actions on that fatal evening were “imminently dangerous.” See § 782.04(2); Pagan, 830 So.2d at 803 (citing Banks, 732 So.2d at 1067).

C. Fundamental Error and Inbffective Assistance on the Face of the Record

Finally, we recognize that Starks attempts to argue that the State also failed to prove the “depraved mind” element of second-degree murder, although Starks laudably admits that he did not preserve this issue in his motion for judgment of acquittal. See Fla. R. Crim. P. 3.380(b) (providing that a motion for judgment of acquittal “must fully set forth the grounds on which it is based”).

“A fundamental error -‘must reach down into the validity of thg trial itself to the extent that a verdict of^guilty could not have been obtained without the assistance of the alleged error.’ ” Monroe v. State, 191 So.3d 395, 401 (Fla. 2016) (quoting F.B. v. State, 852 So.2d 226, 229 (Fla. 2003)). To demonstrate that Starks’s actions evinced a depraved mind, the State needed to have shown that those actions were “done from ill will, hatred, spite or an evil intent.” Montgomery, 39 So.3d at 256 (quoting Bellamy, 977 So.2d at 683). As previously explained in detail, Starks repeatedly tried to instigate a fight, with the victim over the course of a party lasting several hours and then, when he finally got his chance, Starks mercilessly beat the vietinfs unconscious body until the victim died. Starks believes that the time frame of his actions that night is not long enough to support a second-degree-murder conviction because “[h]atred, spite, evil intent, or ill will usually require more than an instant to develop.” Light v. State, 841 So.2d 623, 626 (Fla. 2d DCA 2003) (citing Hooker v. State, 497 So.2d 982 (Fla. 2d DCA 1986)). But in this case, Starks had more than an instant to develop a depraved mind—indeed, he had several hours. Cf. Morgan v. State, 127 So.3d 708, 718 (Fla. 5th DCA 2013) (reversing on the basis of an improper self-defense instruction, but upholding the evidentiary basis of defendant’s second-degree-murder conviction, where defendant met victim at a bar and murdered him later that night). There is no fundamental error—or any error—with respect to the State establishing that Starks acted with a depraved mind. See Montgomery, 39 So.3d at 255-56 (quoting Bellamy, 977 So.2d at 683).

Having found no error with respect to the depravity element in the first instance, defense counsel could not have been ineffective for failing to move for judgment of acquittal on that ground. See Dennis v. State, 109 So.3d 680, 690 (Fla. 2012) (“[C]ounsel cannot be deemed ineffective for failing to make a meritless argument.” (citing Schoenwetter v. State, 46 So.3d 535, 546 (Fla. 2010))).

. We affirm Starks’s remaining issue without comment and affirm Starksis conviction in all respects.

Affirmed.

VILLANTI, C.J., and CASANUEVA, J., Concur.

      . We have identified decisions from other jurisdictions, with similar second-degree-mur-d§r statutes, upholding convictions for defendants who punched seated, incoherent, or unconscious victims to death. See People v. Cravens, 53 Cal.4th 500, 136 Cal.Rptr.3d 40, 267 P.3d 1113, 1119 (2012) (upholding a second-degree-murder conviction where defendant sucker-punched a "fatigued arid intoxicated” victim who had just been jumped by the defendant’s friends); People v. Watts, 183 A.D.2d 409, 583 N.Y.S.2d 373, 373-74 (1992) (upholding second-degree-murder conviction where defendant knocked the victim down ánd kept punching the victim after he "láy motionless on the ground”); Wilkerson v. State, 336 P.3d 1188, 1201 (Wyo. 2014) (upholding second-degree-murder conviction where the defendant punched a victim who was seated on a barstool, knocked the victim off the stool, and continued beating the victim).


author: LaROSE, Judge.

text:
    Alex RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-284
    District Court of Appeal of Florida, Second District.
    Opinion filed March 31, 2017
    Rehearing Denied April 25, 2017

      Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   LaROSE, Judge.

Appellant’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We have jurisdiction. See Fla. R. App. P. 9.140(b)(1)(A), (F). We affirm Alex Rodriguez’s judgments and sentences. Because our independent review of the record reveals several scrivener’s errors in the amended judgment and sentences, we remand for correction.

The State charged Mr. Rodriguez with two counts of aggravated assault with a firearm involving actual possession and discharge (counts 1 and 2), one count of discharging a firearm in public (count 3), and one count of shooting into an unoccupied vehicle (count 4). The State entered a nolle prosequi on count 4, and the jury found Mr. Rodriguez guilty as charged on the remaining counts. At sentencing, the trial court rejected defense counsel’s request to sentence Mr. Rodriguez as a youthful offender. Instead, the trial court imposed concurrent mandatory minimum terms of twenty years’ imprisonment on counts 1- and 2, and 170 days in jail on count 3.

Despite the trial court’s refusal to impose a youthful offender sentence, the written judgment and sentence erroneously states that Mr. Rodriguez received such a sentence. “[T]he oral pronouncement controls and constitutes the legal sentence imposed.” Williams v. State, 957 So.2d 600, 603 (Fla. 2007). Accordingly, we remand for the trial court to correct this error. See Ashley v. State, 850 So.2d 1265, 1268 (Fla. 2003); Justice v. State, 674 So.2d 123, 126 (Fla. 1996).

Further, the judgment incorrectly reflects that Mr. Rodriguez was convicted on count 3 for discharging a firearm from a vehicle under section 790.15(2), Florida Statutes (2013). Because the judgment lists a conviction for the incorrect offense, remand is appropriate for - correction of this error. See Grant v. State, 983 So.2d 730, 730 (Fla. 2d DCA 2008) (“[W] remand “for the trial court to correct the scrivener’s error so that the judgment and sentence accurately reflect the jury’s verdict.”). Correspondingly, the trial court should amend the judgment for count 3 to reflect the correct statute number under which Mr. Rodriguez was sentenced. See Mosely v. State, 688 So.2d 999, 1000 (Fla. 2d DCA 1997) (“[W]e treat the citation to the incorrect statute as a scrivener’s error and remand this case for correction of the judgment to indicate a conviction under section 810.02(2)(a).”).

Mr. Rodriguez need not be present when these scrivener’s errors are corrected. See Palmer v. State, 141 So.3d 696, 697 (Fla. 2d DCA 2014).

Affirmed; remanded to correct scrivener’s errors.

NORTHCUTT and CRENSHAW, JJ., Concur.


author: BILBREY, J.

text:
    Daniel R. FERNANDEZ and Dax J. Lonetto, Sr., PLLC, Appellants, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee, and Bactes Imaging Solutions, Inc., and HealthPort Technologies, LLC, Intervenors.
    CASE NO. 1D16-0050
    District Court of Appeal of Florida, First District.
    Opinion filed April 11, 2017

      David M. Caldevilla and Nicolas Q. Porter of de la Parte & Gilbert, P.A., Tampa; and Scott R. Jeeves, St. Petersburg, for Appellants. ;
    Pamela Jo Bondi, Attorney General, Marlene K. Stern and Edward Tellechea, Assistant Attorneys General, Tallahassee, for Appellees.
    Michael Fox Orr and Amanda E. Fér-relle, Jacksonvile, for Intervenor Bactes Imaging Solutions, Inc.
    Dan R. Stengle, Tallahassee, for Inter-venor HealthPort Technologies, LLC.
   BILBREY, J.

Appellants, petitioners below, appeal the Administrative Law Judge’s final order which held that the adopted but not yet ratified amendment to rule 64B8-10.003, Florida Administrative Code, was not an invalid exercise of the legislative authority delegated to the Department of Health, Board of Medicine. Appellants fail to establish that the adopted amendment, and therefore this appeal, are moot. Appellants also fail to establish any ground under section 120.68(7), Florida Statutes, upon which the ALJ’s final order must be set aside and remanded .for further agency action. Because the ALJ correctly determined that the amendment was within the Board’s rulemaking authority, we affirm the order.

The rule 64B8-10.003 which is currently in effect, titled “Costs of Reproducing Medical Records,” provides that licensed physicians may charge patients and governmental entitles “the reasonable costs of reproducing copies of written or typed documents or reports” not to exceed $1.00 per page for the first 25 pages, and not to exceed 25 cents per page in excess of 25 pages. Other entities requesting copies of such documents may be charged up to $1.00 per page regardless of the number of pages. The adopted but not yet ratified amendment to rule 64B8-10.003 eliminates the reduction in costs for pages in excess of 25 pages requested by patients and government entitles, setting the price ceiling of $1.00 per page for all pages for all requestors, The Board’s legislative authority to enact and amend the rule is granted by sections 456.057(17) and 458.309, Florida Statutes.

Starting with the first notice published in the Florida Administrative Register on October 30, 2012, the Board conducted rulemaking proceedings pursuant to section 120.54, Florida Statutes. Following the requisite notices, the Board conducted ten public hearings and received written and oral comments from multiple interested parties. On March 4, 2015, at the tenth public hearing, the Board determined that the amendment would increase regulatory-costs to such an extent that a revised statement of estimated regulatory costs (SERC) was necessary and that in order for the amendment to take effect legislative ratification was required. See § 120.541(2)—(3), Fla. Stat.

The revised SERC and changes to the proposed rule amendment based on comments and testimony received at the public hearings were noticed and published on March 12, 2015. Appellants each filed their petitions for administrative hearing on March 31, 2015. After the final administrative hearing, the ALJ’s final order was entered December 8,2015. .

Thereafter, the Board submitted the proposed amendment to the President of the Senate and Speaker of the House of Representatives with a request for legislative ratification during the 2016 legislative session. See § 120,541(3), Fla. Stat. The Board also filed the rule amendment with the Department of State for adoption, pursuant to section 120.54(3)(e), Florida Statutes. Pursuant to section 120.541(3), however, even though adopted, the amendment to rule 64B8-10.003 could not “take effect until it is ratified by the Legislature.”

The rule amendment was not ratified during the 2016 legislative session, but the Board has not taken any action to withdraw the amendment to date. Accordingly, the amendment is currently adopted, but not effective. See §§ 120.54(3)(d)3., Fla. Stat. (governing modification and withdrawal of rules at various procedural stages); 120.54(3)(e)5.-6., Fla. Stat. (requiring withdrawal if rule not adopted within time limits; setting separate times at which a rule is “adopted” and when “effective”).

We first address the status of the adopted amendment to the rule and whether the amendment and therefore this appeal of the ALJ’s order is moot due to the lack of legislative ratification of the amendment as required by section 120.541(3), Florida Statutes (2016). The issue is whether, as argued by Appellants, the failure of the Legislature to ratify the proposed amendment during the 2016 legislative session, and thus the failure of the amendment to become “effective,” renders the amendment “dead” and the appeal of the ALJ’s order moot due to the expiration of statutory time limits for adoption and effectiveness of the rule. We hold that the failure of ratification in the 2016 legislative session does not put an end to the rule-making proceedings for the amendment here and does not render this appeal moot.

The failure of the Legislature to take up the Board’s request for ratification of the amended rule upon its submission to the President of the Senate and Speaker of the House does not preclude ratification in future legislative sessions. Although section 120.541(3) is a fairly recent statute— adopted in 2010—renewals of other rule ratification requests which carried over to successive years’ legislative sessions have already occurred. See Eric H. Miller and Donald J. Rubottom, Legislative Rule Ratification: Lessons from the First Four Years, 89 Fla. Bar J. 36, 40 (February 2015). For instance, a Department of Financial Services rule adopting a workers’ compensation provider reimbursement manual was first submitted for legislative ratification under section 120.541(3) in the 2012 session, but was not considered by the Legislature during that session. A House Bill to ratify the workers’ compensation rule was filed for the 2013 session, but was again not considered. Miller & Rubottom, supra, at 38. The Department renewed its request for ratification of the rule and re-submitted it to the Speaker of the House for the 2014 session, but the Legislature again did not consider legislation ratifying the rule. Id. at 38. Finally, the rule was withdrawn in 2015. Fla. Admin. Code R. 69L-7.020. Clearly, the fact that the rule was not ratified on the first attempt in 2012 did not “kill” the proposed rule amendment and end the Department’s ability to renew the request for ratification in subsequent sessions.

The Board is also not required to withdraw the proposed rule due to the lack of ratification to date. Section 120.54(3)(d), Florida Statutes, addresses modification and withdrawal of proposed rules. For a rule that is adopted but not ratified, the Board has the option of withdrawing the rule but is not required to do so. § 120.54(3)(d)3.c., Fla. Stat. Appellants would improperly read into the statute a deadline for ratification and a requirement for withdrawal if a rule was not ratified during the legislative session during which it was submitted. There are statutory deadlines for submission of a rule to the President of the Senate and Speaker of the House for ratification, but no deadline for the Legislature to act upon a rule submitted for ratification. See § 120.541(3), Fla. Stat. Likewise there is no statutory requirement for the Board to withdraw a rule which has been adopted but not ratified. A subsequent Legislature could decide to ratify the rule. Thus, the procedural posture of the rule amendments here does not render this appeal moot.

Considering the merits of the challenge to the ALJ’s order, Appellants fail to establish any erroneous interpretation or application of law in the ALJ’s ruling that the rule amendment was not an “invalid exercise” of the Board’s delegated legislative authority, as defined in section 120.52(8), Florida Statutes. Nothing in the record of these extensive rulemaking proceedings shows that the Board failed to follow applicable rulemaking procedures or exceeded its rulemaking authority under sections 456.004(1) and 456.057(17), Florida Statutes. There has been no showing that the rule is vague or that it vests unbridled discretion in the Board. The ALJ’s conclusion that the evidence “fails to establish that the proposed rule is an invalid exercise of delegated legislative authority, or is arbitrary or capricious as those terms are defined by section 120.52(8),” is clearly supported by the voluminous record of the multiple public hearings and Board meetings over the years of these rulemaking proceedings.

Finally, we find no basis to set aside the ALJ’s final order on the other two issues raised by the Appellants and affirm without further comment.

Accordingly, the adopted rule 64B8-10.003—although not effective—is still subject to ratification by the Legislature unless the rule is withdrawn. This appeal of the ALJ’s final order is not moot, and the ALJ’s final order is affirmed.

AFFIRMED.

WETHERELL and JAY, JJ„ CONCUR.

      . Appellants raised the issue of mootness by a motion and in their briefs. However, Appellants never dismissed their appeal as allowed by rule 9.350(b), Florida Rules of Appellate Procedure,

      . A subsequent rule was ratified in 2016. See Ch, 2016-203, Laws of Florida.

      . Our holding is also consistent with the principle that the current Legislature cannot "bind the hands” of future Legislatures. See Neu v. Miami Herald Pub. Co., 462 So.2d 821, 824 (Fla. 1985); Scott v. Williams, 107 So.3d 379, 389 (Fla. 2013); Florida Carry, Inc. v. University of Florida, 180 So.3d 137, 146 (Fla. 1st DCA 2015).


author: KHOUZAM, Judge.

text:
    Andrew Bradley LAVERS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-4209
    District Court of Appeal of Florida, Second District.
    Opinion filed April 19, 2017
    Rehearing Denied June 26, 2017
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   KHOUZAM, Judge.

In this Anders appeal, Andrew Bradley Lavers seeks review of the order revoking his probation, the resulting sentence, and the order denying his motion for reconsideration of that sentence filed under. Florida Rule of Criminal Procedure 3.800(c). We affirm the revocation of Lavers’ probation and sentence without comment.

However, “[o]rders denying relief under rule 3.800(c) are not renewable by appeal.” Seward v. State, 912 So.2d 389, 390 (Fla. 2d DCA 2005). Such an order is reviewable by way of certiorari if the trial court erroneously determines that the motion was untimely. See id. Here, the trial court denied Lavers’ motion on the merits. Accordingly, we dismiss the appeal insofar as Lavers seeks review of the order denying his rule 3.800(c) motion. See Adams v. State, 800 So.2d 741, 741 (Fla. 5th DCA 2001).

Affirmed in part, dismissed in part.

CRENSHAW and BADALAMENTI, JJ., Concur.

      . Anders v, California, 386 U.S. 738, 741, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Andrea S. EVANS, Appellant, v. HSBC BANK, USA, NATIONAL ASSOCIATION; Association of Poinciana Villages Incorporated; Poinciana Village Seven Association, Incorporated; Ainsley Jones; unknown Tenant(s) in Possession of the Subject Property, Appellees.
    Case No. 2D15-433
    District Court of Appeal of Florida, Second District.
    Opinion filed May 5, 2017
    Rehearing denied June 26, 2017

      Dineen Pashoukos Wasylik of DPW Legal, Tampa, for Appellant.
    Wm. David Newman, Jr. of Choice Legal Group, P.A., Fort Lauderdale, for Ap-pellee HSBC Bank, USA, N.A.
    No appearance for remaining Appellees.
   LaROSE, Judge.

Andrea S. Evans appeals the final judgment of foreclosure entered in favor of HSBC Bank, USA, National Association (HSBC Bank), and the dismissal of her counterclaim. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Ms. Evans raises five issues on appeal. The parties agree that we should reverse and remand as to two issues: (1) the trial evidence was legally insufficient to establish the amount owed by Ms. Evans on her home loan; and, (2) the trial court erred in dismissing with prejudice Ms. Evans’ counterclaim for trespass. We reverse and remand for further proceedings on these two issues. We affirm the final judgment in all other respects without further comment.

As- to the first issue noted, above, the parties disagree as to the, proper relief that the trial court should afford on remand. Ms. Evans contends that because HSBC Bank failed to prove damages, we should direct the trial court to dismiss the case. HSBC Bank, on the other hand, argues that the trial court should conduct further proceedings to determine the amount of the debt owed. As explained below, we agree with HSBC Bank on this point.

Background

In 2006, Ms. Evans'financed the purchase of a home by executing a promissory note and mortgage in favor of HSBC Mortgage Corporation. HSBC Mortgage endorsed the note in blank. Following Ms. Evans’ 2009 payment default, HSBC Bank, as the noteholder and mortgage servicer, sued to foreclose. Ms. Evans answered the complaint, raising several affirmative defenses, and a trespass counterclaim. The trial court dismissed the counterclaim, finding that the allegations lacked particularity.

At a 2014 bench trial, HSBC Bank offered the testimony of Angela Stubblefield, from PHH Mortgage Corporation, a loan subservicer for HSBC Bank. Her knowledge of the loan came from reviewing HSBC Bank’s records. Through Ms. Stub-blefield’s testimonyj HSBC Bank sought to admit a payment history into evidence. The payment history was based on records from three different servicers,

Ms. Stubblefield confirmed that PHH created little of the twenty-five-page payment history. In fact, an entity named “The Mortgage Service Center” created a significant portion. Ms. Stubblefield insisted that the entire payment history was a business record “because they were transferred over to ,.. PHH.” Yet, she could only surmise that the payment history entries were “made by an individual with the responsibility to enter data accurately and contemporaneously with the events recorded.” Ms. Stubblefield was unable to testify as to the procedures used to “board” the entries into PHH’s records. Over Ms. Evans’ objections, the trial court admitted the payment history into evidence. Ms. Stub-blefield then testified that the damages reflected in the proposed judgment were accurate. HSBC Bank neither offered nor admitted the proposed judgment into evidence. The trial court entered a final judgment in favor of HSBC Bank.

Analysis

I. The Payment History as Evidence of Damages

We review a trial court’s decision on the admissibility of evidence for an abuse of discretion; that discretion, however, is limited by the rules of evidence. See Sottilaro v. Figueroa, 86 So.3d 505, 507 (Fla. 2d DCA 2012). Thus, we apply a de novo standard of review to the extent that the trial court’s ruling is an interpretation of the evidence code or case law construing the code. See id.

“‘Hearsay’'is a statement, other than one made by the declarant while testifying at the trial ..., offered in evidence to prove the truth of the matter asserted.” § 90,801(l)(c), Fla. Stat. (2014). Hearsay is inadmissible,- unless specifically exempted under the evidence code. § 90.802. Business records are such an exception. See § 90.803(6)(a).

To admit the payment history into evidence as a business record, HSBC Bank had to prove the following:

(1) the record was made at or near the time of the event; (2) was made by or from information transmitted by a person with knowledge; (3) was kept in the ordinary course of a regularly conducted business activity; and (4) [it] was a regular practice of that business to make such a record. -

Yisrael v. State, 993 So.2d 952, 956 (Fla. 2008). Although HSBC Bank did not have to present the testimony of the individual who actually prepared the payment history, “the witness through whom a document is being offered must be able to show each of the requirements for establishing a proper foundation.” Mazine v. M & I Bank, 67 So.3d 1129, 1132 (Fla. 1st DCA 2011) (citing Forester v. Norman Roger Jewell & Brooks, 610 So.2d 1369, 1373 (Fla. 1st DCA 1992)).

“Typically a foreclosure plaintiff proves the amount of indebtedness through the testimony of a competent witness who can authenticate the mortgagee’s business records and confirm that they accurately reflect the amount owed .... ” Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So.3d 280, 281 (Fla. 2d DCA 2014). Ms. Stubblefield was not a competent witness. 'She was unable to testify to any of the procedures of the prior servi-cers or to PHH’s own procedures to incorporate the prior servicer’s records into its own. Although Ms. Stubblefield testified that the payment histories maintained by HSBC Mortgage and HSBC Bank were transferred to PHH, and that PHH used the same servicing system as HSBC Bank, she offered no testimony concerning the accuracy of the prior servicer’s records before they were boarded into PHH’s system. Quite simply, Ms. Stubblefield lacked any knowledge as to the preparation or maintenance of the payment history or the accuracy of its contents.

Despite these shortcomings, Ms. Stub-blefield testified that the payment history was a business record, contemporaneously and routinely created and kept in the regular course of business. Nevertheless, the payment history did not meet the safeguards of section 90,803(6)(a). See Landmark Am. Ins. Co. v. Pin-Pon Corp., 155 So.3d 432, 441 (Fla. 4th DCA 2015) (“[T]he fact that a witness employed all the ‘magic words’ of the exception does not necessarily mean that the document is admissible as a business record.” (citing Yang v. Sebastian Lakes Condo. Ass’n, 123 So.3d 617, 621-22 (Fla. 4th DCA 2013))). Accordingly, the admission of the payment history into evidence was erroneous. Consequently, HSBC Bank failed to present sufficient evidence as to its damages. See Wagner v. Bank of Am., N.A., 143 So.3d 447, 448 (Fla. 2d DCA 2014) (“A damages award must be supported by competent, substantial evidence.” (citing Shakespeare v. Prince, 129 So.3d 412, 413-14 (Fla. 2d DCA 2013))). We must reverse this portion of the final judgment.

We now address the appropriate remedy on remand. “It is axiomatic that the party seeking foreclosure must present sufficient evidence to prove the amount owed on the note.” Wolkoff, 153 So.3d at 281. Generally, “[w]hen a party seeking monetary damages fails to establish an evidentiary basis for the damages ultimately awarded at trial, reversal for entry of- an order of dismissal is warranted.” Id. at 283 (citing Morton’s of Chi., Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010)).

Ms. Evans argues that we should direct the trial court to dismiss the foreclosure case. “[A]ppellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof.” Correa v. U.S. Bank Nat’l Ass’n, 118 So.3d 952, 955 (Fla. 2d DCA 2013) (alteration in original) (quoting Morton’s, 48 So.3d at 80)); see also Carlough v. Nationwide Mut. Fire Ins. Co., 609 So.2d 770, 771-72 (Fla. 2d DCA 1992) (“[U]pon remand, Nationwide should not be given a second bite at the apple to present evidence which it failed to produce at the scheduled eviden-tiary hearing.” (citing In re Forfeiture of 1987 Chevrolet Corvette, 571 So.2d 594 (Fla. 2d DCA 1990))). Significantly,' however, courts have drawn a distinction between cases in which the plaintiff submitted some evidence of damages and cases where there has been a complete failure of proof on the issue. See Beauchamp v. Bank of N.Y., 150 So.3d 827 (Fla. 4th DCA 2014); Lasala v. Nationstar Mortg., LLC, 197 So.3d 1228 (Fla. 4th DCA 2016). For instance, in Sas v. Federal National Mortgage Ass’n, 112 So.3d 778, 779 (Fla. 2d DCA 2013), the bank offered witness testimony as to the amount of indebtedness, but offered no business records to support the testimony. Similar to Ms. Evans’ case, the witness “had no personal knowledge of the amount of the debt ... and testified about the amount based only on his review of [the servicerjs business records related to the loan.” Id. The Sas court affirmed the final judgment, but reversed and remanded for the trial court to determine the amount of damages with nonhearsay evidence. Id. at 780; see also Peuguero v. Bank of Am., N.A., 169 So.3d 1198, 1204 (Fla. 4th DCA 2015) (affirming final judgment of foreclosure but reversing and remanding for determination of the amounts owed where “the Bank established the amount of indebtedness through witness testimony, even though that testimony concededly was inadmissible hearsay” (quoting Beauchamp, 150 So.3d at 829 n.2)).

In contrast, the plaintiff in Wolkoff sought to prove damages by eliciting testimony from a witness based solely upon the proposed final judgment. We rejected the attempt to introduce the contents of the proposed final judgment as substantive evidence. Wolkoff, 153 So.3d at 281-82 (“A document that was identified but never admitted into evidence as an exhibit is not competent evidence to support a judgment.”). The Wolkoff court reasoned that “[u]nlike the lender[ ] in [Sas] ... [plaintiff] failed-to submit into evidence either the amount of indebtedness or the business records on which the amount was based.” Id. at 282.

■ In the case before us, HSBC Bank sought to establish the amount owed through Ms. Stubblefield’s testimony concerning the payment history. That record, although admitted into evidence, was hearsay. Yet, unlike the. Wolkoff plaintiff, Ms. Stubblefield’s testimony showed that HSBC Bank did not fail “to offer any evidence at all—whether admissible or not.” Beauchamp, 150 So.3d at 829 n.2; see also Ottawa Props. 2 LLC v. Cent. Mortg. Co., 202 So.3d 102, 103 (Fla. 4th DCA 2016) (“Because there whs some, but insufficient, evidence of the total amount of indebtedness, we reverse on the issue of damages and remand for further proceedings.”). Our case aligns with Sas. Thus, the “proper remedy ... is to remand for further proceedings to properly establish the damages owed.” Peuguero, 169 So.3d at 1204.

II. Dismissal of Trespass Counterclaim

Finally, because the trial court erred in dismissing Ms. Evans’ counterclaim for trespass without leave to amend, we reverse the order dismissing the counterclaim and remand with directions that Ms. Evans be permitted to file an amended counterclaim. See Strader v. Carpenters Crest Owners Ass’n, Inc., 968 So.2d 621, 622 (Fla. 2d DCA 2007); Rohlwing v. Myakka River Real Props., Inc., 884 So.2d 402, 405-407 (Fla. 2d DCA 2004).

Conclusion

Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.

CRENSHAW and MORRIS, JJ., Concur.

      . Ms. Evans originally raised six issues, but withdrew an issue after briefing.

      . The order operated as a dismissal with prejudice. See Fla. R, Civ. P. 1.420(b) (‘‘Unless the court in its order for dismissal otherwise specifies ... any dismissal ... other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party .., operates as an adjudication on the merits.”); 1.420(c) (applying the provisions of rule 1.420 to counterclaims).


author: SCALES, J.

text:
    Cedric BROWNLEE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D17-176
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017.
    Cedric Brownlee, in proper person.
    Pamela Jo Bondi, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for respondent.
    Before SUAREZ, C.J., and LAGOA and SCALES, JJ.'
   SCALES, J.

In May of 2015, Petitioner Cedric Brownlee entered a guilty plea To the following charges: (1) second degree murder, (2) robbery with a, firearm, and (3) carrying a concealed weapon by a convicted felon. The trial court sentenced Brownlee to thirtyrfive years in prison,, followed by five years of probation.

Brownlee filed a petition with this Court, pursuant to rule 9.141(c) of the Florida Rules of Appellate Procedure, seeking a belated appeal. In his petition, Brownlee asserts that he requested his defense counsel to appeal the trial court’s denial of his motion to suppress evidence, which had preceded his guilty plea. Brownlee asserts that hq made this request of defense counsel both before and after the guilty plea, and that his guilty plea was premised upon Brownlee preserving his right to appeal the suppression issue. Such appeal did not occur.

We ordered the State to respond to the instant petition. In its Response, the State argues that Brownlee is not entitled to a belated appeal because the trial court’s denial of the motion to suppress did not trigger a dispositive, appealable issue. Further, the State informed this Court that it contacted Brownlee’s defense counsel who recalled that he advised Brownlee about his, appellate rights in light of his plea bargain; Accordingly, the State has raised a good faith basis to dispute Brown-lee’s assertion that his defense counsel failed to file an appeal on his behalf. Brownlee’s entitlement to a belated appeal depends upon a determination of this disputed fact.

Therefore, we appoint a commissioner, Judge Ellen Venzer (the trial judge below), to hold an evidentiary hearing and determine the limited, disputed issue of fact upon which Brownlee’s , petition turns: whether Brownlee instructed his defense counsel to file a notice of appeal. See State v. Trowell, 739 So.2d 77 (Fla. 1999).

In order to allow Judge Venzer the opportunity to conduct an evidentiary hearing, and transmit a report of such determination to this Court, the proceedings on the instant petition shall be held in abeyance for a period of sixty days from the date of this order.

Commissioner appointed; petition held in abeyance.


text:
    R. Donahue PEEBLES, Appellant, v. Dora PUIG, etc., et al., Appellees.
    No. 3D15-2237
    District Court of Appeal of Florida, Third District.
    Opinion filed May 10, 2017
    Rehearing Denied August 3, 2017

      Berger Singerman LLP, and Michael J. Higer and Colleen A. Maranges, for appellant.
    Schlesinger & Associates, P.A., and Michael J. Schlesinger, Joshua B. Bodmer and Gal Rosenzweig; Billbrough & Marks, P.A., and Geoffrey B. Marks, for appellees.
    Before EMAS, LOGUE and SCALES, JJ.
   SCALES, J.

Appellant, defendant below, R. Donahue Peebles, appeals a final judgment awarding Appellee, plaintiff below, Dora Puig, the amount of $423,100 in damages after a jury found Peebles liable for fraudulent misrepresentation. We reverse the judgment because Peebles’s conduct giving rise to Puig’s fraud claim was not independent, separate and distinct from the conduct forming the basis of Puig’s breach of contract claim.

I. Facts

The facts are not in dispute. In 2000, Puig, a licensed Florida real estate sales person, entered into an employment agreement with a real estate developer, Collins Avenue Associates, LLC (“Collins Avenue”). Collins Avenue was the developer of a high-end condominium complex located in Miami Beach, The Residences at the Bath Club (“Bath Club”). Pursuant to that contract, Puig was to serve as the Bath Club’s sales and marketing director. Puig was- required to develop and implement the marketing plan for the sales of Bath Club units and, in exchange, she received a salary of $12,500 per month, plus a one percent “override” commission on each unit sold by Collins Avenue.

After entering into this agreement, Collins Avenue restructured itself. As part of the restructuring, PADC Marketing, LLC, a licensed real estate brokerage firm, was formed to act as the exclusive broker to market the sale of Bath Club units. Collins Avenue and PADC entered into a marketing/brokerage agreement that required Collins Avenue to pay commissions to PADC; and, in turn, PADC was required to pay the Bath Club’s sales staff, including Puig. After extensive negotiations involving Collins Avenue, PADC and Puig, Puig consented to the assignment of her employment agreement from Collins Avenue to PADC. Puig was expressly designated as an intended third-party beneficiary to those provisions of the agreement between Collins Avenue and PADC related to Collins Avenue’s commission obligations.

During construction of the Bath Club, several purchasers sought to re-sell their units to other buyers. Peebles, as principal of Collins Avenue and the sole owner of PADC, assured Puig that Puig and other Bath Club sales agents would be paid commissions on these resale units pursuant to their employment contracts. Puig and her sales team re-sold twenty-three condominium units. After PADC initially paid Puig commissions on seven of the twenty-three resale units, Peebles, on behalf of PADC, advised Puig that these payments were made in error. According to Peebles, while PADC was entitled to—and collected— commissions on resale units, Puig’s employment agreement provided for payment of commissions only on units Collins Avenue initially sold to buyers, and not on units re-sold by buyers. PADC did not pay Puig a commission for the remaining sixteen resale units. By deducting commissions due to Puig on Bath Club units sold by Collins Avenue, PADC recouped the commissions it claimed were erroneously paid to Puig. It is undisputed that Puig’s employer/broker was PADC at the time of the resales.

Initially, Puig sued PADC and Collins Avenue, alleging breach of contract, unjust enrichment and quantum meruit. Subsequently, Puig amended her complaint to add Peebles as a defendant and, significantly, to add a count of fraudulent misrepresentation as to Peebles individually. Essentially, Puig’s fraud claim against Peebles alleged that Peebles knowingly made false statements to Puig that PADC would pay Puig a commission based on the resale of Bath Club units. Puig alleged that Peebles had no intention of paying such commissions, and that Puig relied on Peebles’s statements to. expend efforts to accomplish the twenty-three resales.

Prior to trial, both Collins Avenue and Peebles stipulated that Puig’s employment agreement obligated PADC to pay Puig a commission on resale units, and that the commissions due to Puig totaled $423,100. The trial court granted Puig summary judgment against Collins Avenue based on Puig being a third-party beneficiary to the brokerage agreement between Collins Avenue and PADC. In May of 2015, the case proceeded to trial against Peebles on the fraud claim. The trial court denied Pee-bles’s motion for directed verdict, and the jury returned a verdict against Peebles in the amount of $423,100, the exact same amount that Puig had obtained in her summary judgment on her third-party beneficiary claim against Collins Avenue. The trial court denied Peebles’. post-trial motions and entered judgment for Puig against Peebles in the amount of $423,100, plus interest. This appeal timely ensued'.

II. Standard of Review

Peebles seeks review of the trial court’s denial of his motion (i) to dismiss Puig’s fraud claim, (ii) for summary judgment, and (iii) for directed verdict. Because our review involves questions of law, we employ the de novo standard of review. Health Options, Inc. v. Palmetto Pathology Servs., P.A., 983 So.2d 608, 613 (Fla. 3d DCA 2008); Sierra v. Shevin, 767 So.2d 524, 525 (Fla. 3d DCA 2000).

III. Analysis

It is well settled in Florida that, where alleged misrepresentations relate to matters already covered in a written contract, such representations are not actionable in fraud. La Pesca Grande Charters, Inc. v. Moran, 704 So.2d 710, 712-13 (Fla. 5th DCA 1998) (explaining the difference between fraud in the inducement and fraud in the performance, the latter not constituting a separate cause of action from that of a concurrent breach of contract action). It is similarly well settled that, for an alleged misrepresentation regarding a contract to be actionable, the damages stemming from that misrepresentation must be independent, separate and distinct from the damages sustained from the contract’s breach. Rolls v. Bliss & Nyitray, Inc., 408 So.2d 229, 237 (Fla. 3d DCA 1981). Both of these legal principles are rooted in the notion that, when a contract is breached, the parameters of a plaintiffs claim are defined by contract law, rather than by tort law.

In this case, Puig alleged, and the jury obviously found, that .Peebles made fraudulent misrepresentations that, to a certain extent, led Puig to continue to perform her contractual employment duties by re-selling Bath Club units. Peebles’s company, PADC, declined to pay Puig commissions for those resales; instead, Peebles retained these funds. There is no dispute that Puig’s employment contract predated the alleged misrepresentations by Peebles (and, therefore, fraud in the inducement to contract is not at issue' in this case). There is also no dispute that the damages sought by Puig and awarded to Puig by the jury are the identical damages Puig sustained as a result of PADC’s failure to pay her commissions for resales.

While we have scoured the record in this case to find evidence supporting the jury’s verdict, we can find no evidence of a tort or tort damages, independent and distinct from PADC’s breach of contract. Puig’s breach of contract claim is premised entirely on Puig’s contractual entitlement to commissions on resold Bath Club units. Peebles’s alleged misrepresentations, luring Puig into performing under her contract certainly explain—and plainly prove—PADC’s breach of contract with Puig. In our view, however, Peebles’s inducement to Puig to perform her existing contract is not separate and distinct from the contract breach itself as to give rise to an independent fraud claim against Pee-bles. When, as here,.a contract has been breached, a tort action lies only for acts independent of those acts establishing the contract’s breach. Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 494 (Fla. 3d DCA 1994) (“It is well established that breach of contractual terms may not form the basis for a claim in tort. Where damages sought in tort are the same as those for breach of contract a plaintiff may not circumvent the contractual relationship by bringing an action in tort.”) As reprehensible as the jury may have found Peebles’s actions to be, those actions neither converted Puig’s claim for contract damages into a claim for tort damages, nor imposed on Peebles personal liability for PADC’s contractual obligations.

There is nothing in the record indicating that Puig suffered any distinct damages separate and apart from the damages she suffered as a result of PADC’s failure to honor its contract with Puig. Therefore, any dispute regarding the applicability of the contract’s commission provision to resales existed irrespective of anything Pee-bles might have said to Puig. The parties’ contractual obligations—and whether Puig was entitled to commissions for resale units—were based on the language of the employment contract between Puig and PADC, to which Peebles was not a party.

At the end of the day, Puig was damaged not because of Peebles’s misrepresentations, but because PADC failed to honor its contractual obligations. Under such circumstances, Florida does not allow a party damaged by a breach of contract to recover the exact same contract damages via a fraud claim. Ghodrati v. Miami Paneling Corp., 770 So.2d 181, 183 (Fla. 3d DCA 2000) (“A plaintiff ,,. may not recover damages for fraud that duplicate damages awarded for breach of contract.”).

III. Conclusion

Puig’s damages resulted from, and were occasioned by, PADC’s breach of contract, and not by any independent, separate or distinct conduct of Peebles. Therefore, the trial court should have entered a directed verdict for Peebles on Puig’s fraud claim.

Reversed and remanded for proceedings consistent with this opinion.

      . Puig's amended complaint incorporated counts of breach of contract, breach of third-party beneficiary contract, breach of implied contract, quantum meruit, unjust enrichment, and fraudulent misrepresentation.

      . After PADC filed for bankruptcy in April of 2009, the trial court stayed all proceedings against all of the defendants. This Court quashed the stay order in Puig v. PADC Marketing, LLC, 26 So.3d 45 (Fla. 3d DCA 2009) ("Puig I”), concluding that the automatic stay applicable to the bankruptcy debtor (i.e., PADC) was inapplicable to the other defendants because “Peebles, PADC, and Collins Avenue are separate and distinct entities.” Id. at 46.

      .After obtaining her summary judgment against Collins Avenue, but prior to proceeding to trial against Peebles, Puig dismissed her implied contract and quantum meruit claims, while the trial court dismissed Puig’s unjust enrichment claim. The trial court also entered judgment in favor of Collins Avenue on the breach of contract claim. Thus, the sole, remaining count for trial was Puig's fraud claim against Peebles.

      . We do not evaluate this case under the economic loss rule, See Tiara Condo. Ass'n v. Marsh & McLennan Cos., 110 So.3d 399 (Fla. 2013).

      . We note that the trial court instructed the jury that "there can be no fraud where the alleged misrepresentations relate to matters already covered in the written employment agreement,”

      . We need not, and do not, reach the issue of whether Puig's fraud claim is precluded by the application of section 475.42(l)(d) of the Florida Statutes.


author: PER CURIAM.

text:
    Edward A. KOVACH, Appellant, v. HOLIDAY SPRINGS RV, LLC, Appellee.
    Case No. 5D15-2335
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 12, 2017
    Rehearing and Rehearing En Banc Denied August 3, 2017

      Edward B. Cole, of Cole Law Firm, P.A., Palm Harbor, for Appellant.
    Paetra T. Brownlee and Charles M. Greene, of Charles M. Greene, P.A., Orlando, for Appellee.
   PER CURIAM.

Appellant challenges a summary judgment. construing an easement contained within a deed. Concluding that the trial court misconstrued the easement, we reverse and remand for further proceedings.

The easement in question conveys “to the said grantee, and grantee’s heirs and assigns forever the following described land, situate, lying and being in Hernando County, Florida, to-wit: An ingress/egress, utility, and drainage easement over the following described property.” Appellant is named as “grantee." The trial court concluded that this easement may only be used by Appellant as named grantee and no other person, including Appellant’s invitees. In reaching this conclusion, the trial court misconstrued our decision in City of Orlando v. MSD-Mattie, L.L.C., 895 So.2d 1127 (Fla. 5th DCA 2005). In that decision, we addressed an easement in gross where the grant was expressly confined to a limited use. Nothing in that decision supports the proposition that an easement that runs with the land may be used solely by the grantee. As a general proposition, the holder of an easement is entitled to use the easement “in a manner that is reasonably necessary for the convenient enjoyment of the servitude ... [including] normal development of the dominant estate.” Restatement (Third) of Prop.: Servitudes § 4.10 (2000).

Walters v. McCall, 450 So.2d 1139 (Fla. 1st DCA 1984), upon which Appellee relies, is distinguishable. There, the easement stated that it was to be used “solely for the benefit of the owner or owners.” After making the threshold determination that it was ambiguous, our sister court then considered extrinsic evidence of what was originally intended and concluded that access by campground patrons exceeded the contemplated use as originally intended. Id. at 1143. Terrill v. Coe, 1 So.3d 223 (Fla. 5th DCA 2008), also relied upon by Appel-lee, reversed the trial court’s summary judgment because issues of fact precluded summary judgment.

REVERSED AND REMANDED.

ORFINGER, TORPY, and EVANDER, JJ., concur.


text:
    STATE of Florida, Appellant/Cross-Appellee, v. Wanda Livingston IMBER, Appellee/Cross-Appellant.
    Case No. 2D16-2113
    District Court of Appeal of Florida, Second District.
    Opinion filed May 17, 2017
    Rehearing Denied July 7, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellee/Cross-Appel-lant.
   BADALAMENTI, Judge.

A jury convicted Wanda Livingston Im-ber of grand theft and money laundering for stealing and laundering approximately $1.6 million from her elderly, dementia-afflicted stepfather’s various investment accounts between 2007 and 2014. Mrs. Imber’s lowest permissible guidelines sentence was calculated at 25.8 years’ imprisonment. The trial court departed downward and sentenced Mrs. Imber to terms of community control and probation on the basis that the victim was a “willing participant” in the theft of his own money pursuant to section 921.0026(2)(f), Florida Statutes (2007). The State appeals Mrs. Imber’s sentence. We reverse the downward departure sentence and remand for imposition of a guidelines sentence. We affirm Mrs. Imber’s convictions in all other respects.

In assessing whether to impose a downward departure sentence, a trial court must first determine if it can depart based on a valid legal ground supported by an adequate factual basis. State v. Torres, 60 So.3d 560, 561-62 (Fla. 2d DCA 2011) (citing Banks v. State, 732 So.2d 1065, 1067 (Fla. 1999)). We will affirm the trial court’s conclusion if it applied the correct rule of law and if competent, substantial evidence supports its ruling. Id. at 562. In evaluating the adequacy of the evidence, we assess only the legal sufficiency of the evidence and not its weight. Id. Next, the trial court must weigh the totality of the circumstances to determine if departure is the best option for the defendant. Banks, 732 So.2d at 1068. We review this second step for an abuse of discretion. Id

The legislature has directed that a “downward departure from the lowest permissible sentence, as calculated according to the total sentence points pursuant to s. 921.0024, is prohibited unless there are circumstances or factors that reasonably justify the downward departure.” §. 921.0026(1). The legislature has enumerated a nonexhaustive list of mitigating circumstances or factors, which “reasonably justify” downward departure. § 921.0026(2)(a)-(n). One enumerated circumstance for a reasonably justified downward departure is if the “victim was an initiator, willing participant, aggressor, or provoker of the incident.” § 921.0026(2)®.

At trial, the victim’s physician testified that, in 2007, Mrs. Imber and the victim’s then-wife expressed concern during a medical visit that the victim might have dementia. The victim’s physician tested the victim and détermined he had “the kind of dementia that waxes and wanes” and worsens over time. Likewise, two of the victim’s sons testified that they noticed symptoms of dementia in the victim. In particular, one of the victim’s sons testified that the victim would ask a question, “and thirty minutes later he’ll ask the same question again.”

In 2014, the victim’s family suggested to the victim that he have his finances audited after Mrs. Imber was caught transferring money out of one of the family’s investment trusts. Although the victim initially agreed to the audit, the victim later faxed a letter to his attorney stating that he refused to show his personal records to anyone and could dispose of.his money in any manner he desired. Shortly after sending this letter, the,victim was placed under the emergency guardianship of one of his sons, and the victim’s family hired an accountant to audit the victim’s finances.

The audit revealed that, from 20.07 to 2014, hundreds of checks were written from the victim’s' personal checking account to Mrs. Imber. Suspecting that Mrs. Imber had stolen money from their father, the victim’s sons provided the information from the audit to the State Attorney’s Office. As a result, Mrs. Imber was charged with grand theft and multiple counts, of money laundering. The jury convicted Mrs. Imber as charged, rejecting her defense that the $1.6 million in checks she received from the victim was given to her with the victim’s consent.

Mrs. Imber’s lowest permissible sentence was 25.8 years’ imprisonment. The sentencing ■ court departed downward based on its determination that the victim was a “willing participant” in the, grand theft and money laundering incidents pursuant to section 921.0026(2)®, The sentencing court relied on the letter the yictim faxed to his attorney shortly before he was placed under emergency guardianship.

In no uncertain terms, the legislature- has prohibited trial courts from departing, downward- from the lowest permissible sentence unless there are circumstances or factors - demonstrating that the departure is reasonably justified. § 921.0026(1).- Against the backdrop of this, legislative mandate,, we can find no Florida precedent to support the proposition that - a victim of a grand theft can be a “willing participant” in the stealing of his own property.

As our court has observed, a “trial court can mitigate a. sentence based on conduct that is not sufficient to excuse the crime.” Torres, 60 So.3d at 562 (citing Hines v. State, 817 So.2d 964, 965 (Fla. 2d DCA 2002)). For example, it is reasonable to consider the actual consent of an underage victim in a statutory rape case, even though the victim’s consent may be of no legal significance to the offense itself. State v. Rife, 789 So.2d 288, 296 (Fla. 2001). In a similar vein, Florida law also allows for downward departure in murder or battery cases where the victim may have provoked the defendant, but not to such an extent that the defendant’s battering or killing of the victim could be legally excused as self-defense. See Hines, 817 So.2d at 965; State v. Tai Van Le, 553 So.2d 258, 259 (Fla. 2d DCA 1989).

But those cases are a far cry from what we have here. There is no amount of willing participation which is legally insignificant for purposes of a theft offense, yet sufficient enough for downward departure. One either consents to have his property taken or he does not. Indeed, it is inconsistent with the basic concept of theft for a theft victim to willingly participate in the stealing of his own • property. See § 812.012(5), Fla. Stat. (2007) (defining the phrase “Property of another” in the Florida Anti-Fencing Act to mean “property in which a person has an interest upon which another person is not privileged to infringe without consent” (emphasis added)); see also Jenkins v. State, 898 So.2d 1134, 1135 (Fla. 1st DCA 2005) (“One with an ownership interest in property cannot commit theft in taking it.”); Brennan v. State, 651 So.2d 244, 246 (Fla. 3d DCA 1995) (“It is axiomatic that appellant cannot be charged and/or convicted of the theft of his own property.”). If the victim was a “willing participant” in this context, the victim would have necessarily consented to having his money taken, and there would have been no theft at all.

Here, we have purported consent by a victim who suffered from dementia and was placed under emergency guardianship shortly after he wrote a letter refusing to participate in an audit of his finances. The trial court’s attempt to fit the victim’s actions into the legislature’s “willing participant” mitigator is irreconcilable with the substantive nature of theft and cannot “reasonably justify” a departure. Accordingly, we hold that the victim’s “willing participation” is not a valid ground for departure here. Banks, 732 So.2d at 1067. Under the circumstances, it was reversible error for the court to depart downward on the basis that the victim willingly participated in the theft of his own money. § 812.012(5); Jenkins, 898 So.2d at 1135; Brennan, 651 So.2d at 246; cf. Torres, 60 So.3d at 562 (declining to allow for a downward departure in a DUI manslaughter case, where a drunk driver crashed and killed his also-drunk passengers).

We thus hold that the trial court erred by departing downward on the basis that the victim was a willing participant in Mrs. Imber’s theft of his own money pursuant to section 921.0026(2)(f). We reverse the trial court’s downward departure and remand with instructions to impose a guidelines sentence. See Shull v. Dugger, 515 So.2d 748, 750 (Fla. 1987). We affirm the trial court’s rulings as to all issues raised by Mrs. Imber in her cross-appeal and affirm her convictions in all respects.

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

KHOUZAM and CRENSHAW, JJ., Concur.

      . It is interesting to note that conflicting evidence was presented on the issue of consent in this case, but the jury necessarily found that the victim did not consent because lack of consent inheres in the crime of theft.