author: Kuntz, J.

text:
    Elaine KAPLAN, Appellant, v. Abby EPSTEIN, Appellee.
    No. 4D16-1834
    District Court of Appeal of Florida, Fourth District.
    May 3, 2017
    Lida Rodriguez-Taseff and Gutman Skrande of Duane Morris LLP, Miami, for appellant.
    Michael S. Singer of Comiter Singer Baseman & Braun, LLC, Palm Beach Gardens, and Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for ap-pellee.
   Kuntz, J.

Elaine Kaplan appeals the court’s judgment affirming an arbitrator’s decision following voluntary binding arbitration conducted pursuant to section 44.104, Florida Statutes (2015). Because that statute provides for an appeal of the arbitrator’s decision to the circuit court and specifically bars “further review ... unless a constitutional issue is raised,” we dismiss this appeal for lack of jurisdiction.

The parties in this appeal chose to submit the entirety of their dispute to voluntary binding arbitration. The statute authorizing this procedure was enacted in 1987. Ch. 87-173, § 4, Laws of Fla. (codified at § 44.304(10), Fla. Stat. (1987)). The act provided that an appeal from a binding arbitration decision “shall be taken to the circuit court” and that “[n]o further review shall be permitted unless a constitutional issue is raised.” Id.

There has been one substantive change since the original enactment of the statute. In 1999, the Legislature amended the statute to add provisions relating to “voluntary trial resolution.” Ch. 99-225, Laws of Fla. Upon adding the provisions relating to voluntary trial resolutions, the Legislature moved the provision barring “further review” to its own subsection. The provisions relating to voluntary binding arbitration remain otherwise unchanged.

Thus, since its original enactment the statute has provided that when parties agree to submit to voluntary binding arbitration, the arbitrator’s decision is appeal-able to the circuit court, which is “limited to review on the record and not de novo, of’ (a) allegations the arbitrator failed to comply with the rules of procedure or evidence; (b) alleged partiality of the arbitrator; or (c) allegations that the arbitrator’s decision reaches a result contrary to the federal or state constitutions. § 44.104(10), Fla. Stat. (2015). Beyond the permitted review in the circuit court, the statute clearly provides that “[n]o further review shall be permitted unless a constitutional issue is raised.” See id. § 44.104(12).

Kaplan argues that the legislative staff notes prepared at the time of the 1999 amendments provide evidence of the Legislature’s intent to apply the jurisdictional bar to voluntary trial resolutions but not voluntary binding arbitration. However, “we do not consider legislative, history when the text is clear. ‘[I]n interpreting a statute ... courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’ ” Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 969 (11th Cir. 2016) (en banc) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)).

The plain text of the statute is clear and when legislation is clear “our task is to apply the text, not to improve upon it.” Pavelic & LeFlore v. Marvel Entm’t Group, 493 U.S. 120, 126, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989). Pursuant to section 44.104, when parties agree to submit to voluntary binding arbitration, their appeal is to the circuit court, and no further review is permitted unless a constitutional issue is raised.

In this appeal, Kaplan does not raise a constitutional issue. Therefore, no further review is permitted, and her appeal must be dismissed for lack of subject matter jurisdiction.

Appeal dismissed.

May and Klingensmith, JJ., concur.

      . Florida Rule of Civil Procedure 1.830, titled “Voluntary Binding Arbitration,” generally mirrors the statute. We note, however, that subsection (c)(3) references section 44.104(11), Florida Statutes. Due to the amendments to the statute in 1999, and the creation of new subdivisions at that time, Rule 1.830(c)(3) should refer to section 44.104(13). Therefore, we request that the Clerk of Court serve a copy of this opinion on Roger J. Haughey, II, Chair of the Civil Procedure Rules Committee, so that the committee can consider amending the rule to conform to the statute as currently amended.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Kristopher Darwin ROBINSON, former husband, Appellant/Cross-Appellee, v. Sabrina Kay ROBINSON, former wife, Appellee/Cross-Appellant.
    CASE NO. 1D16-1490
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017
    Rehearing Denied June 15, 2017
    F. Susannah Collins of Robinson Collins, P.L., Jacksonville, for Appellant/Cross-Ap-pellee.
    J. Stephen Alexander, St. Augustine, for Appellee/Cross-Appellant.
   PER CURIAM.

Kristopher and Sabrina Robinson ended their marriage in 2014. The consent final judgment of dissolution established a parenting plan, provided for certain cost sharing, and required Kristopher Robinson to pay alimony and child support. Sometime later, Kristopher Robinson changed jobs and suffered a resulting decrease- in income. He then moved for a modification, seeking to eliminate the alimony and reduce his child-support obligations.

The trial court denied the request to eliminate alimony, but it did order reduced child support. Kristopher Robinson appeals, contending (among other things) that the trial court should have eliminated alimony and should have reduced the child support even more. Sabrina Robinson cross appeals, contending (among other things) that the trial court should not have reduced the child support at all.

After a careful review of the record, we conclude the trial court abused its discretion in altering the agreed child-support obligation. See Bish v. Bish, 404 So.2d 840, 840-41 (Fla. 1st DCA 1981) (explaining that “[a] fundamental prerequisite to modification based upon change of circumstances is a showing that the change is sufficient, material, involuntary and permanent in nature” and noting that “heavier burden rested upon” the movant seeking a reduction when parties agreed upon original arrangement); see also Overbey v. Overbey, 698 So.2d 811, 813-14 (Fla. 1997). This conclusion moots Kristopher Robinson’s argument that the ¿mount of reduction was insufficient. We also conclude that the trial court erred by requiring child-support payments to be made- through the State Disbursement Unit—relief that neither party requested and that was contrary to the consent final judgment.

We have considered and rejected the parties’ remaining assertions of error.

AFFIRMED in part and REVERSED in part. '

MAKAR, KELSEY, and WINSOR, JJ;, CONCUR.


text:
    Gregory MILLER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0302
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017.
    Rehearing Denied June 26, 2017
    Gregory Miller, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Bond v. State, 206 So.3d 860 (Fla. 1st DCA 2016) (dismissing premature appeal and noting trial court’s discretion to allow limited discovery in post-conviction proceedings is reviewable on appeal from order disposing of post-conviction motion).

KELSEY, WINOKUR, and WINSOR, JJ., CONCUR.


text:
    Christina Lee HIME, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-3866
    District Court of Appeal of Florida, First District.
    Opinion filed May 5, 2017
    Rehearing Denied June 29, 2017
    Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s conviction and sentence. However, because Appellant filed her notice of appeal before the trial court entered its restitution order, that order was entered without jurisdiction, and we must reverse. See Williams v. State, 15 So.3d 933 (Fla. 1st DCA 2009) (holding that a trial court is divested of jurisdiction to enter a restitution order once a noticé of appeal has been filed). On remand, the trial court may conduct a new restitution hearing and enter a new order should it choose to do so.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED. .

ROBERTS, C.J., ROWE, and WINOKUR, JJ., CONCUR.


text:
    Tyler WEISMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-27
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 12, 2017
    William R. Ponall, of Ponall Law, Mait-land, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm the trial court’s decision revoking Tyler Weisman’s probation except as to the alleged violation of special condition E. As- to that special condition, we conclude the evidence was insufficient to support the finding of a willful violation. As a.result, on remand, the trial court shall strike the finding of a violation of special condition E. from the order of revocation. Because it is clear the trial court would have revoked Mr. Weisman’s probation without considering the alleged violation of special condition E, we affirm. See Lee v. State, 67 So.3d 1199, 1201-02 (Fla. 2d DCA 2011).

•AFFIRMED and REMANDED FOR ENTRY OF CORRECTED ORDER.

SAWAYA, ORFINGER and LAMBERT, JJ., concur.


author: ROWE, J.

text:
    Chad MERCER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5147
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017
    Rehearing Denied June 15, 2017
    Andy Thomas, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

Appellant, Chad Mercer, raises several challenges to his convictions and sentences for manslaughter, aggravated battery, and felony battery. We affirm, but write to address Mercer’s claim that his convictions for aggravated battery and manslaughter of the same victim violate the prohibition against double jeopardy.

I. Facts

On the night of October 17, 2014, a group of young people, including Mercer, gathered in a wooded area around a bonfire. A group of older men—Jackie McClendon, Scott Parker, and Danny Mayo—came across the group of young people while mud bogging in the woods. Some óf the young men wanted to confront and fight the older men. As the young men, including Jay Green, approached the older group, Mercer joined them. Green struck McClendon and McClendon fell to the ground. Mercer struck Parker and Parker also fell. Green bragged that he had knocked McClendon out with one punch. Mercer then ran up to McClendon and kicked him in the head. Witnesses described the kick as forceful, like kicking a football. McClendon was pronounced dead at the scene. Mercer was charged with felony battery of Parker, aggravated battery of Mayo, and both manslaughter and aggravated battery of McClendon. On the charges relating to McClendon, the jury was instructed that Mercer could be convicted either directly or -as a principal.

At trial, the medical experts could not state with certainty whether the kick, the punch, or a combination of the two caused McClendon’s death, but they opined that there was a greater likelihood that the kick contributed to the death if McClendon showed signs of life after the punch. There was conflicting testimony as to whether McClendon showed signs of life, but Mayo, who was McClendon’s son, testified that he saw his father looking at him and attempting to move in the moments between the punch and the kick. Further, Mercer stated during a police interview that McClen-don was still breathing and had his eyes open before Mercer kicked him. The jury acquitted Mercer of the aggravated battery of Mayo, but convicted him of the remaining counts.

At sentencing, the defense argued Mercer should not be adjudicated guilty of the aggravated battery of McClendon because it was a lesser included offense of manslaughter and involved the same victim. The court agreed that the two offenses violated double jeopardy, but concluded, based orí Terranova v. State, 937 So.2d 286 (Fla. 4th DCA 2006), that it would' be proper to adjudicate Mercer guilty of both offenses and merely withhold sentencing on the aggravated battery conviction. On appeal, Mercer raises several arguments, including a claim that the court improperly adjudicated him guilty of both aggravated battery and manslaughter as to McClen-don. We conclude that because there was sufficient evidence at trial from which the jury could have convicted Mercer of both offenses based on distinct acts—Green’s punch and Mercer’s' kick—the dual convictions for aggravated battery and manslaughter do not violate double jeopardy.

II. Analysis

Mercer bears the burden on appeal to demonstrate that his dual convictions violate double jeopardy. See Sprouse v. State, 208 So.3d 786, 787 (Fla. 1st DCA. 2016); Edwards v. State, 139 So.3d 981, 983 (Fla. 1st DCA 2014). The double jeopardy analysis proceeds in three steps. State v. Paul, 934 So.2d 1167, 1172-73 (Fla. 2006). We examine (1) whether the convictions were based on an act or acts occurring during the same criminal transaction and/or episode; (2) whether the convictions were predicated on the same or distinct acts; and (3) if the convictions did not occur during-separate-episodes and were not based on distinct acts, whether the two convictions “survive a same elements test as (Mined by section 775.021, Florida Statutes, [ (2014) ], commonly referred to as the Blockburger analysis.” Partch v. State, 43 So.3d 758, 760 “ (Fla. 1st DCA 2010) (citing Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)).

Here, because the punch and kick were upon the same victim, occurred at the same location, and both occurred during the course of approximately one minute, we find that the two acts were part of a single criminal episode. See Paul, 934 So.2d at 1173. However, viewing the evidence in the light most favorable to the jury’s verdict, we conclude there was sufficient evidence of two distinct acts from which' the jury could have convicted Mercer of both offenses. Evidence adduced at trial showed that Mercer joined in with the younger group of people and agreed to participate in the attack on the older men. There was sufficient evidence from which the jury could find he was a principal to aggravated battery, through Green’s punch of the victim. Further, while there was conflicting- evidence as to whether McClendon showed signs of life after the punch, there was sufficient evidence from which the jury could find that McClendon was alive when he was kicked and that the kick contributed to his death. Thus, the evidence supports Mercer’s conviction for manslaughter based on the kick. Where, as here, the evidence supports convictions for two offenses based on distinct acts, it is not necessary to examine whether they would survive a same elements test under Blockburger. See Partch, 43 So.3d at 762 (explaining that where dual convictions are based on distinct acts, it is unnecessary to apply the same elements test). In sum, because there was evidence from which the jury could find Mercer guilty of aggravated battery based on the punch and of manslaughter based on the kick, the dual convictions do not violate double jeopardy.

And because Mercer’s dual convictions do not violate double jeopardy, the trial .court erred in failing to impose sentence on the aggravated battery conviction-. However, the State did not. cross-appeal the court’s imposition of sentence and this issue is not preserved for. our review. Accordingly, we AFFIRM Mercer’s judgment and sentence. ,

LEWIS and KELSEY, JJ., CONCUR.

       Had the trial court been correct in determining that the two offenses violated double jeopardy, its decision to withhold sentence on aggravated battery but adjudicate Mercer guilty of both offenses would have been error. See, e.g., State v. Tuttle, 177 So.3d 1246, 1250 (Fla. 2015) (expláining that dual convictions for overlapping crimes “would violate double jeopardy even if no greater sentence was imposed as a result of conviction for both crimes because a conviction itself results in potential adverse collateral consequences”)


author: MAKAR, J.

text:
    Lillie CAMPBELL, Petitioner, v. Roger E. CAMPBELL; James E. Campbell; Anthony W. Campbell; Richard L. Campbell; Raymond L. Campbell; Nelda K. White; and Richard D. Cserep, Esquire, Respondents.
    CASE NO. 1D17-0074
    District Court of Appeal of Florida, First District.
    Opinion filed May 16, 2017

      Gregory D. Smith of Gregory D. Smith, P.A., Pensacola, for Petitioner.
    No appearance for Respondents.
   MAKAR, J.

The trial court appointed Richard Cser-ep, Esq., to represent Lillie Campbell in an incapacity proceeding filed by her son, but for months Mr. Cserep never contacted her or made her aware of the matter, ■ prompting Ms. Campbell and her daughter to meet with attorney Gregory Smith who thereafter filed a notice of appearance on Ms. Campbell’s behalf shortly before a scheduled hearing. That same day, the trial court entered an order deeming the notice ineffective (saying a motion for substitution of counsel should have been filed) and barring Mr. Smith from accessing the e-portal to the case. The trial court also held that it “will not entertain a substitution of counsel motion until the incapacity petition has been heard in order to determine . whether the alleged incapacitated person had the ability to contract with a new attorney.” The hearing was continued.

• In the interim, Mr. Smith hand delivered a written motion for substitution of counsel to the trial court and clerk, but it was stamped “REFUSED—Return to sender Santa Rosa is now ‘PAPERLESS’ Everything must be e-filed.” On behalf of Ms. Campbell, -he now petitions for a writ of mandamus to compel- the trial court to accept and rule upon his motion for substitution'of counsel,-

Florida law requires that an attorney be appointed for persons alleged to be inc'a: pacitated, but it also provides that an attorney of choice may be substituted: ■

(b) The court shall appoint an attorney for-each person alleged to be incapacitated in all cases involving a petition for adjudication of incapacity. The alleged incapacitated person may substitute her or his own attorney for the attorney appointed by the court.

§ 744381(2)(b), Fla. Stat: (2016) (emphasis added). As the emphasized language makes clear, Ms. Campbell has a clear legal right to have counsel of her own choosing. She also has the right to have her motion for substitution be heard as soon as possible; it would deny her due process, for example, to wait until the final adjudication of her status overall. As to the determination of a person’s capacity to contract for legal counsel, the Second District has held that “a person is presumed competent to contract unless incompetency is - established by due process of, law.” Holmes v. Burchett, 766 So.2d 387, 388 (Fla. 2d DCA 2000) (citing Harmon v. Williams, 696 So.2d 1139, 1142 (Fla. 2d DCA 1992), approved, 615 So.2d 681 (Fla. 1993)). Holmes lays out the specifics of an adjudicatory hearing on a motion for substitution and the factual findings necessary to show that an individual is “incapacitated with respect to the exercise of her right to contract and engage counsel,” which may be a more limited inquiry than the full scope of the underlying petition. 766 So.2d at 388.

Because Ms. Campbell, through her counsel on appeal, has shown entitlement to the relief requested, the clerk of the circuit court is directed to accept the motion for substitution of counsel for filing and the trial court is directed to hold proceedings on the motion consistent with section 744.331, Florida Statutes.

WOLF and M.K. THOMAS, JJ„ CONCUR.

      . On the record presented, the initial appointment of Mr. Cserep was timely but thereafter resulted in no client contact whatsoever thereby justifying Ms. Campbell seeking competent counsel to represent her interests in the imminent proceedings. Mr. Cserep’s lack of diligence is little different in its impact on the client than a trial court’s failure to appoint counsel until commencement of a final hearing, which is "error of'fundamental proportions." In re Fey, 624 So.2d 770, 772 (Fla. 4th DCA 1993). Mr. Cserép has had a-number of appeals dismissed in this Court in the ,past 18 months due to a similar lack of diligence. See, e.g., J.O. v. DCF, 16-529; T.D. v. DCF, 15-5935.

      . No party has filed a response in this proceeding or objected to Mr. Smith's representation of Ms. Campbell.


author: Per Curiam.

text:
    James UTTERBACK, Petitioner, v. SCHOOL BOARD OF PALM BEACH COUNTY, Respondent.
    No. 4D17-163
    District Court of Appeal of Florida, Fourth District.
    May 24, 2017
    Isidro M. Garcia of Garcia Law Firm, P.A., West Palm Beach, for petitioner.
    Jean Marie Middleton, West Palm Beach, for respondent.
   Per Curiam.

The petition is denied. See Luster v. W. Palm Beach Hous. Auth., 801 So.2d 122, 123 (Fla. 4th DCA 2001) (holding that section 112.3187(9)(f), Florida Statutes, requires temporary reinstatement pending trial of a Whistle Blower’s suit only when an employee has been “discharged,” allegedly in retaliation for a protected disclosure, but also holding that where an employee has been simply transferred or demoted, there is no statutory right to temporary reinstatement); see also Metro. Dade Cty. v. Milton, 707 So.2d 913, 914-15 (Fla. 3d DCA 1998).

Petition denied.

May, Gerber and Forst, JJ., concur.


text:
    WELLS FARGO BANK, N.A., Appellant, v. Julio ROJAS a/k/a Julio A. Rojas, Dulcy Rojas a/k/a Dulcy M. Rojas, Appellees.
    No. 4D16-4301
    District Court of Appeal of Florida, Fourth District.
    May 24, 2017

      Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for appellant.
    Damon E. Gasser and Michael W. Simon of Simon & Sígalos, LLP, Boca Raton, for appellee Julio Rojas.
   Per Curiam.

We reverse the trial court’s order denying the bank’s Florida Rule of Civil Procedure 1.540(b) motion to vacate a notice of voluntary dismissal. The notice was filed due to clerical mistake, and the trial court abused its discretion. See Miller v. Fortune Ins. Co., 484 So.2d 1221, 1224 (Fla. 1986) (holding that rule 1.540(b)(1) confers on trial courts the power “to correct clerical substantive errors in a voluntary notice of dismissal”).

The record and affidavit filed by the bank showed that the unsigned and undated notice of voluntary dismissal was inadvertently filed along with a premature final disposition form. See Fla. R. Civ. P. 1.100(c)(3) (requiring the prevailing party to file a final disposition form (form 1.998) when an order or judgment is entered disposing of an action). The final disposition form was filed while the case remained scheduled for trial and indicated the case was resolved “by non-jury trial.” The bank filed witness and exhibit lists for the upcoming trial as- well as affidavits in support of attorney’s fees and costs. The record established that the prematurely-filed disposition form and unexecuted notice of voluntary dismissal were filed due to a clerical mistake. The trial court abused its discretion in denying the motion to vacate. See Davidson v. Lenglen Condo. Ass’n, 602 So.2d 687, 688 (Fla. 4th DCA 1992). We remand for the trial court to enter an order vacating the voluntary dismissal.

Reversed and remanded.

Taylor, Levine and Forst, JJ., concur.

      . Effective January 1, 2017 this rule, in identical form, was moved to new rule 1.545.


text:
    STATE of Florida, Petitioner, v. Danterious LAWRENCE, Respondent.
    No. 4D16-3693
    District Court of Appeal of Florida, Fourth District.
    May 24, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R, Napodano, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant' Public Defender, West Palm Beach, for respondent.
   Kuntz, J.

The State filed a petition for writ of certiorari seeking to- quash the court’s order finding section 903.0351(l)(b), Florida Statutes (2016), unconstitutional. We grant the petition and quash the order.

Background

The Defendant pled no contest to felony driving with a revoked license and was placed on probation. During the probationary period, he was charged by affidavit with violating his probation by committing several new substantive offenses including robbery, burglary, grand theft, battery, possession of a weapon by' a convicted felon, possession of cannabis, and witness tampering. He fled the scene of the crime; however, he was later taken into custody and released on bond. Subsequently, the State moved to revoke bond pursuant to section 903.0351(l)(b), Florida Statutes (2016), because he had been arrested for the qualifying offenses of robbery and burglary.

The Defendant responded to the State’s motion and argued , that section 903.0351(l)(b) was unconstitutional. Specifically, he argued that this section violates due process by precluding bond based on defendant’s “arrest” without (i) requiring that the arrest be supported by probable cause or (ii) providing for an evidentiary hearing on the issue.

The court denied the State’s motion to revoke bond. The court found that, because section 903.0351(l)(b) does not implicitly require that the predicate arrest be lawful, a defendant has no opportunity to challenge the revocation of his bond even if the arrest “is of a questionable nature.” Therefore, the court held that section 903.0351(l)(b) is unconstitutional on its face and as applied, because it violates due process.

The State filed a petition for writ of certiorari, seeking to quash the order.

Analysis

Section 903.0351(l)(b), Florida Statutes (2016), is not unconstitutional for failing to provide a mechanism to seek bail pending a violation of probation hearing. A probationer arrested for a new crime during the period of his probation does not have the same constitutional rights as a person not on probation at the time of arrest. Peraza v. Bradshaw, 966 So.2d 604, 505 (Fla. 4th DCA 2007). A person not on probation at the time of arrest is presumed innocent until proven guilty beyond a reasonable doubt, but a person on probation at the time of arrest is not entitled to that same presumption. Id. Further, a person on probation at the time of his arrest does not have- a constitutional right to be released prior to his violation of probation hearing. Id. (citing Genung v. Nuckolls, 292 So.2d 587 (Fla. 1974); McCarthy v. Jenne, 861 So.2d 99 (Fla. 4th DCA 2003)).

Therefore, there is a fundamental flaw in the argument that the statute is- unconstitutional because it lacks a procedure for a probationer arrested of a new crime to seek bail. That probationer is not constitutionally entitled to bail pending the violation of probation hearing, and there can be no constitutional violation in failing to provide a procedure for something which the probationer is not constitutionally entitled to receive.

The court also concluded that the statute is unconstitutional because “the statute contains no language indicating that the Court must find probable cause for the arrest prior to entering an order of no bond for the violation.” The Florida Supreme Court has determined that implicit in the word “arrest” is that the “arrest” must be lawful and supported by probable cause. Bernhardt v. State, 288 So.2d 490, 496 (Fla. 1974). The court also stated that’nowhere in Florida law is an arrest authorized without probable cause. Id. Therefore, the statute was not unconstitutional for failing to explicitly state what our supreme court has found to be implicitly required with any arrest.

Conclusion

The court erred as a matter of law when it found section 908.0351(l)(b) unconstitutional and unenforceable. Because there is no constitutional right to bail pending a violation of probation hearing, there can be no constitutional infirmity in not providing a procedure for seeking bail. Similarly, the failure to explicitly state that arrests pursuant to the statute be lawful and with probable cause does not render the statute unconstitutional as every statutory authorization of arrest implicitly requires the arrest be lawful and with probable cause.

The petition for writ of certiorari is granted and the court’s order declaring section 903.0351(l)(b) unconstitutional and unenforceable is quashed.

Petition granted; order quashed.

May and Levine, JJ., concur.

      . We have jurisdiction. State v. Pettis, 520 So.2d 250, 253 (Fla. 1988) ("The ability of the district courts of appeal to entertain state petitions for certiorari to'review pretrial orders in criminal cases is important to the fair administration of criminal justice in this state.”); State v. Ajim, 565 So.2d 712, 712 (Fla. 4th DCA 1990) (granting petition for writ of certiorari and quashing order setting bond).


text:
    Jay Russell SINGER, Appellant, v. Noreen SINGER, Appellee.
    No. 4D16-2408
    District Court of Appeal of Florida, Fourth District.
    May 24, 2017
    Jay Russell Singer, Lantana, pro se.
    Noreen Singer, Boca Raton, pro se.
   Per Curiam.

We affirm on all issues, as the February 12, 2015 final order did not contain a specific reservation of the court’s jurisdiction to permit a supplemental complaint post judgment to add a third party. See Ross v. Wells Fargo Bank, 114 So.3d 256, 257 (Fla. 3d DCA 2013). Affirmance is without prejudice for appellant to seek relief against any third parties in a separate civil action.

Affirmed,

Damoorgian, Gerber and Klingensmith, JJ., concur.


author: FERNANDEZ, J.

text:
    Maria Dolores RODRIGUEZ, Appellant, v. In re: the ADOPTION OF Mariana Andrea RODRIGUEZ, Appellee.
    No. 3D16-2191
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017.

      Maria Dolores Rodriguez, in proper person.
    No appearance for appellee.
    Before SALTER, FERNANDEZ and LOGUE, JJ.
   FERNANDEZ, J.

Appellant, Maria Dolores Rodriguez, appeals the denial of her petition to adopt her adult niece. The final order denying the petition reads, in pertinent part, as follows:

Denied as the only valid reason given for this adoption is to facilitate the adoptee’s immigration desires. The Adoptee has not lived with the Petitioner “always” as alleged. The Adoptee just came here this year but it was alleged that she lived with Petitioner “always”—but Petitioner lived here 11 years without the adoptee. Adoptee did not tell me her cousin lived w/ petitioner & her. Claimed Adoption would provide “protection” which is not true either given proposed adoptee is an adult.

The Petition for Adoption of Adult by Aunt, did indeed include the allegation that the prospective adoptee “has always lived under my roof and I want to provide her with legal and familial protection.” Based on the trial court’s finding, that allegation in the petition is false.

Chapter 68, Florida Statutes (2016), provides the statutory scheme that governs adoptions. Sections 63.102 and 63.112 establish the required content of the petition. Section 63.042 establishes who may adopt and who may be adopted. None of the relevant provisions of chapter 63 establish the consideration of public policy as a factor to be considered by the trial court in deciding whether to grant or- deny the petition. The Fifth District Court of Appeal had an opportunity to consider the denial of an adult adoption petition in the matter of In re Adoption of Holland, 965 So.2d 1213 (Fla. 5th DCA 2007). In Holland, the grandfather wanted to adopt his adult grandson in order to take advantage of a program for disabled veterans that provided financial aid to the children of the veteran, but not to the grandchildren. Id. at 1214. The trial court concluded:

The final issue is whether this court should participate in the petitioner’s plan to adopt his grandchildren so that they can obtain federal aid not otherwise available to them. If Congress had intended for grandchildren to have these benefits it would have made them available to them. Surely, Congress did not intend the result which the petitioner and his other family members are trying to accomplish in this case. The court finds that the petitioner and his family are working together to obtain from the United States government benefits that Congress did not intend for the Adoptee and consequently, the petition should be denied because it violates public policy and is repugnant to the laws of Florida.

Id. The Fifth District held:

Even assuming that a trial court may deny a legally sufficient petition to adopt an adult on public policy grounds, no such grounds are present here. The public policy of Florida expressly permits the adoption of adults. § 63.042(1), Fla. Stat. (2007). If, as a result, the adoptee becomes entitled to a benefit authorized by law, it cannot be said that the adoption is in violation of public policy.

Id.

Chapter 63 does require the filing of a verified, truthful application for adoption. The trial court correctly found that the petition was not ■ accurate and therefore was insufficient. The remedy, however, was dismissal of the petition with leave to amend rather than denial. See Yancey v. Dep’t of Health and Rehab. Servs., 413 So.2d 438 (Fla. 3d DCA 1982) (where the facts or circumstances of abandonment or any other necessary allegations were not fully and adequately set forth in the petition, the. appropriate ruling would have been a dismissal with leave to amend). We therefore reverse and remand with directions to dismiss the petition with leave to amend.'

Reversed and remanded with instructions.


author: SUAREZ, C.J.

text:
    E.J., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D16-2000
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017
    Gallardo Law Offices, P.A. and Jesus Novo, for appellant.
    Pamela Jo Bondi, Attorney General, and Carrol Y. Cherry Eaton, Senior Assistant Attorney General (Ft. Lauderdale), for ap-pellee.
    Before SUAREZ, C.J., and FERNANDEZ and LOGUE, JJ.
   SUAREZ, C.J.

E.J. appeals from a final order of the Department of Children and Families [“DCF”] denying,her request for an exemption from disqualification for employment as a child care worker. We affirm.

In 2006, E.J. was convicted of an aggravated assault. She successfully completed the terms of her probation, which ended in 2011. She has no other offenses on her .record. Since then, she has obtained her A.A. degree in early childhood education and sought to apply for childcare positions. She was disqualified because of her criminal record, and in 2016 applied to DCF for an exemption from, disqualification. The DCF denied her application, and E.J. timely requested a formal administrative hearing. The matter was referred to the Division of Administrative Hearings [“DOAH”] and an administrative law judge [“ALJ”] held a hearing on March 31, 2016. In April 2016 the ALJ issued a Recommended Order concluding that E.J. had met her burden of proving rehabilitation by clear and convincing evidence, pursuant to. section 435.07(4), Florida Statutes, The DCF filed exceptions to the Recommended Order.

While E.J.’s appeal was pending before DOAH, section 436.07(4) was amended by section 1 of Chapter' 2016-98, Laws of Florida. That amendment prohibited DCF from granting exemptions for current or prospective child care workers who were charged with or convicted of enumerated offenses, of which aggravated battery is one. The amendments became effective July 1, .2016. On July 28, 2016, DOAH issued its Final Order accepting DCF’s exceptions and denying E.J.’s application for exemption from disqualification.

Under current statutory circumstances, we must affirm the Order below because the law changed during the pen-dency of EJ.’s application for exemption. Florida follows the general rule that “a change in a licensure statute that occurs during the pendency of an application for licensure is operative as to the application, so that the law as changed, rather than as it existed at the time the application was filed, determines whether the license should be granted.” Lavernia v. Dep’t of Prof'l Regulation, Bd. of Med., 616 So.2d 53, 53-54 (Fla. 1st DCA 1993); see also Agency for Health Care Admin. v. Mount Sinai Med. Ctr. of Greater Miami, 690 So.2d 689, 691 (Fla. 1st DCA 1997) (holding Lavernia extended to administrative rules, as “[t]he agency must apply the law in effect at the time it makes its final decision.”). Because E.J.’s . application.and appeal were pending when the statutory changes went into effect on July 1, 2016, and the Final Order was rendered July 28, 2016 after the statutory amendments’ effective date, we conclude DCF was statutorily barred from granting E.J. an exemption.

In addition, Florida courts have also upheld disqualification from employment based upon convictions occurring before the effective date of chapter 435, Fla. Stat. See Sledge v. Dep’t of Children & Families, 861 So.2d 1189 (Fla. 5th DCA 2003). See also Heburn v. Dep’t of Children & Families, 772 So.2d 561, 563 (Fla. 1st DCA 2000) (holding that an exemption from a statute enacted to protect the public welfare is strictly construed against the person claiming the' exemption, and the Department is not required to grant a petitioner any benefits under the exemption); Phillips v. Dep’t of Juvenile Justice, 736 So.2d 118, 119 (Fla. 4th DCA 1999) (“[Ejven if Phillips’ presentation constituted clear, convincing, and unrefuted evidence that he qualified for an exemption, the agency was not under any obligation to give him one.”).

Finally, no abuse of discretion is shown in the record. See Thomas v. Dep’t of Juvenile Justice, 730 So.2d 809 (Fla. 3d DCA 1999) (“This court may not substitute its judgment for that of the agency on an issue of discretion.”). The Final Order on appeal is affirmed.

      . Effective July 1, 2016:
      § 435.07(4)(c) Disqualification from employment under this chapter may not be removed from, and an exemption may not be granted to, any current or prospective child care personnel, as defined in s. 402.302(3), and such a person is disqualified from employment as child care personnel, regardless of any previous exemptions- from disqualification, if the person has been registered as a sex offender as described in 42 U.S.C. s. 9858f(c)(l)(C) or has been arrested for and is awaiting final disposition of, has been convicted or found guilty of, or entered a plea of guilty or nolo contendere to, regardless of adjudication, or has been adjudicated delinquent and the record has not been sealed or expunged for, any offense prohibited under any of the following provisions of state law or a similar law of another jurisdiction:
      1. A felony offense prohibited under any of the following statutes:
      d. Section 784.021, relating to aggravated assault.


text:
    Jorge SALINAS, Appellant, v. Martin MOBARAK, etc., et. al., Appellees.
    No. 3D16-1543
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017.
    Beasley, Demos & Brown, LLC, and Joseph W. Beasley and Jennifer Perez Al-onso, for appellant.
    Shapiro, Blasi, Wasserman & Hermann, P.A., and Jeffrey A. Sarrow (Boca Raton), for appellee Martin Mobarak,
    Before LAGOA, SCALES and LUCK, JJ.
   PER CURIAM.

Appellant, plaintiff below, Jorge Salmas appeals the trial court’s involuntary dismissal of Salinas’s claims. We affirm because the evidence adduced at trial by Salinas failed to establish any of the causes of action Salinas asserted against Appellee, defendant below, Martin Mobarak. Kopel v. Kopel, 117 So.3d 1147, 1152 (Fla. 3d DCA 2013), rev’d on other grounds, No. SC13-992, — So.3d -, 2017 WL 372074 (Fla. Jan. 26, 2017) (explaining that, to establish unjust enrichment claim, evidence of plaintiff conferring direct benefit upon defendant required); Beers v. Beers, 724 So.2d 109, 116-17 (Fla. 5th DCA 1998) (stating that imposition of constructive trust requires evidence of fiduciary relationship or evidence that defendant took unconscionable advantage of plaintiff); Edd Helms Elec. Contracting, Inc. v. Barnett Bank of S. Fla., N.A., 531 So.2d 238, 238 (Fla. 3d DCA. 1988) (holding that equitable lien unavailable when contract remedies are adequate).

Affirmed.


author: LUCK, J.

text:
    DEAUVILLE HOTEL MANAGEMENT, LLC d/b/a Deauville Beach Resort, Appellant, v. Kemesia Boota WARD and Patrick James Ward, Appellees.
    No. 3D15-2114
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017

      Billbrough & Marks, P.A. and Geoffrey B. Marks, for appellant.
    Faudlin Pierre, for appellees.
    Before. LOGUE, SCALES, and LUCK, JJ..
   LUCK, J.

“Chapel of Love,” the tune made famous by the Dixie Cups, celebrates how a couple’s wedding day should feel like “Spring is here, the sky is blue/Birds all sing as if they knew ... Bells will ring, the sun will shine, I’ll be his and he’ll be mine.” The Dixie Cups, Chapel of Love (Red Bird Records 1964). The birds, however, did not sing and the bells did not ring on Kemesia Boota Ward’s wedding day. The hotel ballroom where she planned to have her wedding reception was closed by the city of Miami Beach, and the hotel moved the reception to its lobby. Ward’s wedding day was “ruined,” a “public spectacle,” “cramped,” and “very uncomfortable,” and caused her to be “embarrassed,” “cry[ ] uncontrollably,” and have “nightmares.” As a result, Ward and •her husband, Patrick James Ward, sued the hotel that hosted and catered the wedding, Deauville Hotel Management, LLC, for breach of contract and intentional infliction of emotional distress. The jury, after a five day trial, found for the couple on both claims and awarded Ward- $23,000 and her husband $2,500 on their breach of contract claims, and the couple $5,000 for intentional infliction of emotional distress. The hotel contends on appeal that it did not breach the contract because it did not promise a specific location for the wedding within the hotel, the jüry awarded more breach of contract damages than the facts supported, and its conduct was not outrageous enough for an intentional infliction of emotioiial distress claim. After reviewing the briefs, and with the benefit of oral argument, we affirm in part and reverse in part.

Factual Background and Procedural History

On February 17, 2010, Ward signed the contract with Deauville to hold her wedding reception in the hotel’s Richelieu ballroom on July 9, 2010. The contract did not specify in which room or area of the hotel the wedding would be held and, instead, referred to the “function space.” The contract further stated that:

Function space is assigned, and reassigned if needed, to accommodate both the GROUP and all other parties who are using the HOTEL facilities during the GROUP’S event dates. THE GROUP agrees to promptly notify the HOTEL of any changes in function space requirements and/or attendance.

The contract also contained the following provision regarding the hotel’s cancellation policy:

HOTEL’S CANCELLATION: If Hotel cancels this Agreement or is unable to provide the requested space, the Hotel will work with Group to arrange alternative space at the prices set forth herein. Hotel will arrange for comparable space in the same vicinity of the Hotel and shall provide, without charge, necessary transportation between the alternative site and the Hotel. Hotel’s liability is limited to these remedies, and Hotel shall not be liable for any consequential, punitive or special damages,

.Nine days before the Wards’ wedding, on June 30, 2010, the city of Miami .Beach red-tagged (i.e., shut down) the hotel’s three ballrooms, including the Richelieu, as unsafe and in violation of certain building codes. Deauville did not inform the Wards of the shut down and, instead, staff was instructed to continue the preparations for the reception as planned. Meanwhile, Deauville attempted to have the red-tag removed. The next day after the city closed the ballrooms, the hotel sent a facsimile to the city’s building department requesting a ninety-day extension of time for compliance. The extension was denied. On July 8, the day before the wedding, the hotel filed an emergency motion for temporary injunction against the city to allow access to the ballrooms. The hotel was again unsuccessful in its attempts to have the ballrooms reopened. Finally, an emergency inspection was conducted on the day of the wedding, but because no repairs had been made, the ballroom remained closed.

The Wards learned of the shutdown hours before their wedding on July 9. While the Wards were married in a ceremony off-site, the Deauville moved the reception to the “Napoleon Pre-function area,” which is what the hotel called its lobby. The lobby, unlike the Richelieu ballroom, was too small for the 190 guests; the tables were “crammed” in the space; there was no privacy for the event; the disc jockey playing music was told numerous times to lower the volume; and hotel guests were walking through the wedding reception (some in their bathing suits) and .participating in the reception (clapping during the introduction of the wedding party).

For ruining their wedding, the Wards sued the hotel for breach of contract (as to Ward), breach of a third-party beneficiary contract (as to her husband), and intentional infliction of emotional distress. The jury found in favor of Ward on her breach of contract claim, and awarded her $23,000 in compensatory damages. The jury also found that Ward’s husband was a third-party beneficiary to the contract and suffered damages in the amount of $2,500.. With respect to the intentional infliction of emotional distress claim, the jury found that the hotel engaged in extreme and outrageous conduct and awarded damages in the amount of $5,000. The trial court denied Deauville’s post-trial motion for judgment in accordance with its directed verdict motion. This appeal followed.

Standard of Review

We review a denial of a motion for directed verdict de novo, viewing “all of the evidence presented and all available inferences from that evidence in the light most favorable” to the non-moving party. R.J. Reynolds Tobacco Co. v. Ballard, 163 So.3d 541, 545 (Fla. 3d DCA 2015) (quotation omitted), “[A]n appellate court,” in other words, “must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party.” Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009).

Analysis

Deauville appeals the trial court’s denial of its post-trial motion for direct verdict on three grounds. The directed verdict motion should have been granted as to the breach of contract claims, Deauville contends, because: there was no breach as the contract between the hotel and Ward did not specify that the wedding would be held in the Richelieu ballroom; and the jury’s damage award exceeded what the law allowed and the evidence supported. The hotel argues, as to the intentional infliction of emotional distress claim, that directed verdict should have been granted because its conduct was not, as matter of law, extreme and outrageous.

1. Breach of contract.

To prevail in a breach of contract action, a plaintiff must prove: (1) a valid contract existed; (2) a material breach of the contract; and (3) damages. See Murciano v. Garcia, 958 So.2d 423 (Fla. 3d DCA 2007). Deauville contends that because the contract allowed it to reassign a space as needed and because “function space” was not defined as the Richelieu ballroom, the hotel did not breach the contract when it unilaterally moved the Wards’ reception to the lobby of the hotel. Deauville’s reading of the contract is an incomplete one.

The contract was unambiguous that it provided for an assigned, committed, and reserved function space. The contract provided that a “[f]unction space is assigned, and reassigned if needed, to accommodate both the GROUP [the Wards] and the other parties who are using the HOTEL facilities during the GROUP’S event dates.” It further provided that “[i]f the HOTEL resells the Function Space committed to the GROUP, revenue received by the HOTEL from the resale will reduce the amount owed by the GROUP.” The contract continued that “[i]f Hotel ... is unable to provide the requested space, the Hotel will work with Group to arrange alternative space.” The contract, in other words, provided for a function space that was “assigned,” “committed,” and “reserved” for the Wards. The only questions for the jury were whether the Richelieu ballroom was the assigned, committed* and requested function space, and whether the lobby was a “comparable” alternative space when the hotel was unable to provide the Richelieu ballroom.

The jury answered in favor of the Wards, and the evidence at trial supported the jury’s verdict. The hotel’s computer system had the Richelieu ballroom as the reserved function space for the reception. A banquet event order form generated by the hotel identified the Richelieu ballroom as the space rented for the wedding. And the electronic mail and text messages sent between Ward and Deauville’s catering managér confirmed the assigned function space was the Richelieu ballroom,

The alternative space that the hotel provided, moreover, was not “comparable.” The jury saw a schematic drawing and pictures of the hotel comparing the Richelieu ballroom and the lobby. Witnesses testified that the tables were “crammed” into the lobby; there was no ocean view; there was no room for a head table with bridesmaids and groomsmen; the music was drowned out; and there was no separation between wedding and hotel guests. This evidence, viewed in the light most favorable to the Wards, supported the jury’s verdict that the hotel did not provide the reserved and committed space, and when it was unable to do so, the hotel did not provide a “comparable” alternative as required by the contract.

2Compensatory Damages.

Deauville, next, contends that the jury awarded more compensatory damages than was supported by the evidence. The Wards, the hotel argues, paid $12,985.65 for food and beverages, which money also included use of'the room. The jury’s award of $25,500 ($23,000 to Ward and $2,500 to her husband as a third-party beneficiary), Deauville continues, was far too high. The $25,500 was justified, the Wards respond, for two reasons: the incidental expenses for flowers, linens, photography, videogra-phy, entertainment, transportation, ■ and cake cost the couple $9,500; and the rental value of the Richelieu ballroom was $15,000.

As to the incidental expenses claimed by the Wards, the evidence at trial was that they had flowers, linens, photography, videography, entertainment, transportation, and cake at the wedding. While these things were not in the Richelieu ballroom, they were at the wedding and used by the Wards and their guests. “Compensatory damages are designed to make the injured party whole to the extent that it is possible to measure such injury in monetary terms.” MCI WorldCom Network Servs., Inc. v. Mastec, Inc., 995 So.2d 221, 223 (Fla. 2008). A plaintiff “is not entitled to recover compensatory damages in excess of the amount which represents the loss actually inflicted by the action of the defendant.” Id. The purpose of compensatory damages is not to punish defendants or to “bestow a:windfall on plaintiffs.” Id at 224 (quotation omitted). The Wards were already whole with regard to these incidental expenses. They cannot get the benefit of these expenses twice. See Kingswharf, Ltd. v. Kranz, 545 So.2d 276, 278 (Fla. 3d DCA 1989) (“Both counts were based on the same elements of damages, and there is clearly a duplication in the damages awarded. Double recovery on the same element of damages is prohibit ed”).

As to the Wards’ position that the damage award compensated them for the value of the ballroom, the evidence at trial showed that the cost of the Richelieu ballroom was free when a party, like them, entered into a food and beverage contract with the hotel. Only where a party rented the room by itself—without a food and beverage contract—would they pay $15,000 for the . rental. Here, , the Wards entered into a, food and beverage contract and, therefore, did not pay for renting the ballroom. Awarding them the value of renting the Richelieu ballroom when the couple was not charged and did not pay for renting it by virtue of the food and beverage contract would constitute a “windfall,” paying the Wards twice for the same thing. MCI, 995 So.2d at 224.

There was evidence at trial supporting the jury’s compensatory damages verdict for the $12,985.65 paid for the food and beverage contract to secure the requested function space. Beyond that, the directed verdict motion should have been granted.

3.' Intentional Infliction of Emotional Distress

Deauville, finally, contends that its conduct was legally insufficient to support a claim for outrageous conduct required for an, intentional infliction of emotional distress claim. To prove intentional infliction of emotional distress, the plaintiff must show:

(1) The wrongdoer’s conduct was intentional or reckless, that is, he intended his behavior when he knew or should have.. known that emotional distress would likely result;
(2) the conduct was outrageous, that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable in a civilized community;
(3)- the conduct - caused emotional distress; and
(4) the emotional distress was severe.

LeGrande v. Emmanuel, 889 So.2d 991, 994 (Fla. 3d DCA 2004). What constitutes outrageous conduct is a question that must be decided as a matter of law. De La Campa v. Grifols Am., Inc., 819 So.2d 940, 943 (Fla. 3d DCA 2002) (“What constitutes outrageous conduct is a question for the trial court to determine as a matter of law.”) The plaintiffs “subjective response” to the conduct “does not control the question of whether the tort of intentional infliction of emotional distress occurred.” Liberty Mut. Ins. Co. v. Steadman, 968 So.2d 592, 595 (Fla. 2d DCA 2007).

As to the second element, for one’s actions to rise to the level of intentional infliction of emotional distress, it must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Clemente v. Horne, 707 So.2d 865, 867 (Fla. 3d DCA 1998) (quotation omitted). It is not “enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Gallogly v. Rodriguez, 970 So.2d 470, 471-72 (Fla. 2d DCA 2007) (quotation omitted). In other words, even purposeful. conduct that one knows is going to hurt another is not outrageous enough to support a claim.

For example, calling a minister a thief in front of his parishioners is not legally outrageous. See LeGrande, 889 So.2d at 994; see also Food Lion, Inc. v. Clifford, 629 So.2d 201, 202-03 (Fla. 5th DCA 1993) (stating that a false accusation of theft was insufficient to support a cause of action for intentional infliction of emotional distress). Neither is a. supervisor calling an African-American employee the n-word and monkey, and threatening to.fire the employee without cause. See Williams v. Worldwide Flight SVCS., Inc., 877 So.2d 869, 870 (Fla. 3d DCA 2004).

Deauville, here, pulled a bait-and-switch. The Wards, expected and paid for birds and bells at their wedding reception, and instead got bikini-dad hotel guests arid background noise. We do not minimize or condone what Deauville did; It was wrong, and tortious (as reflected by the jury’s negligent misrepresentation verdict), and caused the Wards physical and emotional distress. It was not worse, however, than purposefully and falsely ruining a pastor’s reputation in his church and community, or ruining one’s career by hurling racial slurs and making him think he’s going to be fired for no reason. The Wards’ day was ruined; the LeGrande and Williams plaintiffs had ruined reputations and careers. Because the courts did not find what the LeGrande and Williams defendants did'to be sufficieritly outrageous, we cannot find the Deauville’s conduct to be legally outrageous either.

The two cases cited by the Wards in support of their intentional infliction claim, Steadman and Thomas v. Hosp. Bd. of Dirs. of Lee Cnty., 41 So.3d 246 (Fla. 2d DCA 2010), are telling, In Steadman, the insurance company intentionally denied and delayed payment for the plaintiffs treatment in an effort to speed up her demise, to induce stress that it knew would be detrimental to her health, and to inflict emotional distress. Steadman, 968 So.2d at 595. In Thomas, “[a] hospital and its employees negligently rendered medical care, resulting in the death of the decedent” and, “[subsequent to the death, the hospital and its employees then engaged in a purported cover-up and notified the' family that the decedent died from natural causes despite knowing that such information was false.” Thomas, 41 So.3d at 254. The Steadman and Thomas cases, in essence, dealt with matters of life-and-death. The defendants in those cases caused the death of another, and intentionally inflicted harm.

A wedding day is an important one in the lives of a young couple. Wedding memories—good or bad—do not easily fade. Causing these bad memories (as the hotel did here), however, is many degrees removed from causing or covering up the negligent death of another on the outra-geousness scale. Purposefully causing death by withhold insurance benefits or covering up the negligent death of a family member is atrocious, utterly intolerable, and outside the bounds of decency in a way that causing nightmares, disappointment, and embarrassment because of a ruined wedding is not.

Conclusion

For these reasons, we affirm the trial court’s decision denying Deauville’s post-trial directed verdict motion as to jury’s finding the hotel breached the food and beverage contract. We reverse the trial court’s decision denying the directed verdict motion as to: (1) the jury’s award of breach of contract damages for any amount greater than $12,985.65; and (2) the jury’s finding that the hotel engaged in extreme and outrageous conduct. We remand for the trial court to enter judgment on Kemesia Ward’s breach of contract claim for $12,985.65; on Patrick Ward’s third-party beneficiary claim for $1.00 as nominal damages; and for Deauville on the intentional infliction of emotional distress claim.

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

      . Ward also sued for negligent and fraudulent-misrepresentation but those claims are not at issue in this appeal.

      . The red-tag the city put on the door of the Richelieu ballroom stated:
      UNSAFE BUILDING. This building or structure is, in the opinion of the building official, unsafe, as defined in 8-5, unsafe structures of the Miami-Dade County Municipal Code. This building shall be vacated, not be occupied.

      . Destiny Const. Co. v. Martin K. Eby Const., 662 So.2d 388, 390 (Fla. 5th DCA 1995) ("[E]ven if Destiny is not able to prove that it sustained actual damages as a result of the breach, Destiny would be entitled to recover nominal damages upon a showing of breach of contract.”); Young v. Johnston, 475 So.2d 1309, 1313 (Fla. 1st DCA 1985) (“An aggrieved party who has suffered no damages is entitled to a judgment for nominal damages only,” (citation omitted)); AMC/Jeep of Vero Beach, Inc. v. Funston, 403 So.2d 602, 605 (Fla. 4th DCA 1981) ("While there is a legal remedy for every legal wrong and, thus, a cause of action exists for every breach of contract, an aggrieved party who has suffered no damage is only entitled to a judgment for nominal damages.”), quoted in In re Standard Jury Instructions—Contract & Bus-Cases, 116 So.3d 284, 341 (Fla. 2013).


author: EMAS, J.

text:
    Miguel Alexander Alvarez FUENTES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1695
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017

      Daniel J. Tibbitt, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   ON MOTION FOR REHEARING

EMAS, J.

We grant appellant’s motion for rehearing, withdraw our previous opinion, and substitute the following opinion in its stead.

Appellant, Miguel Alexander Alvarez Fuentes, appeals from the trial court’s order adjudging him in violation of his probation, revoking his probation, and sentencing him to a total of twenty years in prison. We affirm in part, reverse in part, and remand for entry of a written order of violation of probation.

In 2011, appellant entered a negotiated plea in five separate cases \ and was sentenced to five years’ state prison followed by five years’ probation. Appellant was released from prison in May of 2013, and commenced the probation portion of his sentence. As a standard condition of his probation, appellant was required to report monthly to his probation officer. On April 2, 2014, appellant’s probation was modified to include a requirement that appellant “keep job application log with minimum of 5 jobs per week.” Four weeks after appellant’s probation was modified, the State filed an affidavit alleging that appellant violated his probation by committing the crime of uttering a forged instrument on April 28, 2014. See section 831.02, Florida Statutes (2014). The affidavit also alleged that appellant violated his probation by failing to timely submit weekly job application logs to his probation officer.

We affirm the trial court’s determination that appellant violated his probation by committing the new crime of uttering a forged instrument, and reject appellant’s contention that there was not competent substantial evidence to support the trial court’s determination in this regard.

However, we reverse the trial court’s determination that appellant violated, his probation by failing to submit to the probation officer, on a weekly basis, his job application logs. On appeal the State commendably conceded this was error; while the order of probation required appellant to keep job application logs on a weekly basis, it did not require appellant to submit the job application logs on a weekly basis.

We also note that the trial court failed to enter a -written order of violation of probation. See Francique v. State, 172 So.Sd 581 (Fla. 3d DCA 2015). On remand, the trial court shall enter a written order of violation of probation consistent with that portion of its oral, pronouncement that appellant violated' his probation by committing the crime of .uttering a forged instrument.

We find the remaining issues to be without merit.

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

      . In those cases, appellant was convicted of nine separate felonies: four counts of grand theft, four counts of burglary, and one count of racketeering,

      . The April 2, 2014 modified probation order required appellant to "keep job application log with minimum of 5 jobs-per week.” When appellant made his monthly visit to his probation officer on April 9, 2014, he submitted his job application log for the week of April 2-9. He did not submit any more weekly logs after that, because he was arrested on April 28 for the new offense of uttering a forged instrument. Given the language of this condition of probation, however, * appellant would be in compliance if he kept weekly logs and submitted those weekly logs to his probation' officer at each monthly reporting session.

      . Appellant contends that we must remand for the trial court to determine whether it would have revoked appellant’s probation and imposed the same sentence based solely on the single valid violation. We reject this con-tendon. The invalid basis for revocation' involved a technical violation,, whereas the remaining valid basis for revocation was the commission of a new substantive offense. Our review of the entire record’of the proceedings below evidences clearly that the 'trial court would have revoked appellant’s probation and imposed the same sentence based solely upon the determination that appellant- committed the felony of uttering, a forged instrument while on probation. See Cohen v. State, 171 So.3d 179 (Fla. 3d DCA 2015); McKenzie v. State, 201 So.3d 29 (Fla. 3d DCA 2013).


text:
    Kevin M. TRACY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5829
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017

      Kevin M. Tracy, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney. General, Tallahassee, for Appellee.
   PER CURIAM.

Kevin Tracy appeals the dismissal of his petition for writ of mandamus pertaining to his records request. Because the proper procedures were not followed and because factual disputes remain, we reverse.

In his petition, Mr. Tracy requests documents related to the chain of custody of any deadly weapon used as evidence in his case. The Escambia County Sheriffs Office responded by providing the appropriate evidence card. Mr. Tracy asserts additional documentation is available. The trial court denied Mr, Tracy’s petition without issuing an alternative writ of mandamus to the respondent requiring him to show cause why the petition should not be granted. The trial court held, “The records attached to the Petition show that the knife or knives were destroyed. Thus, there is nothing that the Court can order anyone to produce.”

Although Mr. Tracy may be mistaken that additional information is available related to his request, his petition states a facially sufficient claim. If a petition is facially sufficient, the court must issue an alternative writ of mandamus requiring the respondent to show cause why the petition should, not be granted. Rad-ford v. Brock, 914 So.2d 1066, 1068 (Fla. 2d DCA 2005). If the petition and answer to the alternative raise disputed issues, the trial court must resolve those issues upon evidence submitted by the parties. Id. A trial court errs in denying a petition unless there is sworn evidence refuting the petitioner’s allegations. Parish v. State, 59 So.3d 1229, 1230, (Fla. 4th DCA 2011).

Here, Mr. Tracy filed a facially sufficient petition for writ of mandamus. However, the trial court failed to issue an alternative writ of mandamus. In addition, the record contains no sworn statements indicating Mr. Tracy has been provided all documents in the State’s possession. Thus, factual disputes remain. Therefore, the trial court erred in denying Mr. Tracy’s petition. If on remand, the State fails to provide sworn evidence that all available information has been provided, the trial court must conduct an evidentiary hearing on the issue prior to denying the claim. See Ferrier v. Pub. Defender’s Office, 2d Jud. Cir. of Fla., 171 So.3d 744 (Fla. 1st DCA 2015); Clay Cnty. Educ. Ass’n v. Clay Cnty. Sch. Bd., 144 So.3d 708 (Fla. 1st DCA 2014); Parish, 59 So.3d 1229; Johanson v. State, 872 So.2d 387 (Fla. 4th DCA 2004).

Accordingly, we reverse the order dismissing the petition and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.

      . The State was identified as the Respondent, Defendant or Appellee by the trial court in its final order, The Appellanl/Petitioner requested documents front the Escambia County Sheriff's Office records custodian. Any subsequent orders should be directed to the Sheriff’s Office. However, for consistency purposes the State is referred to as the Appellee.


text:
    Jaymond K. FOSTER, Petitioner, v. STATE of Florida, Respondent.
    CASE NO. 1D17-0842
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017
    Jaymond K. Foster, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the August 11, 2015, judgment and sentence in Escambia County Circuit Court case number 2014-CF-001414-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R. App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

WOLF, RAY, and BILBREY, JJ., CONCUR.


text:
    Jack Thomas CURRIE, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-5578
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017
    Rehearing Denied June 29, 2017
    Jack Thomas Currie, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant has filed a rule 3.800(a) motion in which he argues that because he was a juvenile when he committed the offense of sexual battery with a firearm and received a life sentence with the possibility of parole, he is entitled to be resen-tenced pursuant to Atwell v. State, 197 So.3d 1040 (Fla. 2016), and Henry v. State, 175 So.3d 675 (Fla. 2015). We disagree. Appellant was afforded a meaningful opportunity to obtain release and, in fact, was released on parole when he was 25 years old. He then violated parole and was reincarcerated. The Florida Commission on Offender Review has assigned him a presumptive parole release date, and he continues to be considered for release on parole. We therefore conclude he is not entitled to be resentenced because he has not received the functional equivalent of a life sentence. He has already been released once, and he has the potential to be released again. Thomas v. State, 78 So.3d 644, 646 (Fla. 1st DCA 2012) (discussing that while some sentences “may become the functional equivalent of a life sentence, we do not believe that situation has occurred in the instant case”).

AFFIRMED.

WOLF, RAY, and BILBREY, JJ., CONCUR.


text:
    Edgar B. PEARCE, III, Appellant, v. Patricia SANDLER, etc., Appellee.
    No. 3D15-1562
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017

      ■ Isaacson Isaacson Sheridan Fountain & Leftwich, LLP and' Jennifer N. Fountain (Greensboro, NC); Kulá- & Associates, P.A. and Elliot B. Kula and William D. Mueller, for appellant.
    Podhurst Orseck, P.A. and Joel D. Eaton, for appellee.
    Before SUAREZ, C.J., and ROTHENBERG and FERNANDEZ, JJ:
   SUAREZ, C.J.

Edgar “Trey” B. Pearce, III [“Pearce”], seeks to reverse the Final Judgment and remand with directions to enter summary judgment in his favor. Summary judgment in favor of the Appellant, Pearce, should have been entered and.this matter concluded at that point. Additionally, the present action is also barred by the doctrines of collateral estoppel and res judicata. Therefore, we reverse.

Appellant Pearce, with his father Edgar Pearce, owned Pearce Financial, a financial investment company. The Sandlers (Martin and Patricia) and the Conrads (Joseph and Patricia) invested . money in Pearce Financial, which investments were exchanged for promissory notes. As the notes matured, the Conrads and Sandlers continued to invest their money with Pearce Financial, which included money generated through, one of the Conrad’s trusts, the Lyons Family CRT. Pearce Financial started to decline in 2008 and by 2009 it was unable to pay its creditors. Pearce Financial was forced to sell its assets to its senior- secured lender; the second secured lender—Pearce—foreclos-ed on the remaining assets. The Sandlers and Conrads,- as unsecured lenders, got nothing.

In 2010 the Sandlers and Conrads, with other unsecured lenders, sued the Pearce corporate entities and Pearce and his farther Edgar individually for fraudulent misrepresentation, breach of fiduciary' duty, and negligence [the “2010 Action”]. The Sandlers and Conrads alleged that at a dinner between the parties, Pearce materially and intentionally misrepresented the financial condition of Pearce Financial as well as the repayment priority of the promissory notes in order, to entice the Sandlers and Conrads to continue to invest their moneywith the company.

Joseph Conrad' died during the ‘ pen-dency of the 2010 litigation. His wife, Patricia Conrad died shortly after him, also during the pendency of the' 2010 litigation. After Joseph Conrad died, but before Patricia Conrad’s death, the promissory notes that were held individually, by Joseph and Patricia Conrad and .that were the basis of their claims in the 2010 action, were assigned to thé Conrad Family Trust. When Patricia Conrad died,'her daughter,'Patricia Sandler, Appellee here, became the trustee and she ■ continued to pursue the same claims on those same notes as trustee of both the Conrad Family Trust and the-Lyons Family CRT [collectively, the “Conrad Trusts”], Patricia Sandler asserted that the notes held by the Lyons Family CRT were always included in the claims asserted by the Conrads in the 2010 Action.

After discovery had been conducted in the 2010 Action, Pearce filed motions for summary judgment against each of the plaintiffs. On October 26, 2012, the trial court dismissed the Conrads’ claims with prejudice for failure to timely comply with Florida Rule of Civil Procedure 1.260 requiring the substitution of parties upon death. The ruling was not challenged on rehearing or appeal. The trial court then granted summary judgment in favor of Pearce on all remaining claims against him. The trial court found no genuine issues of material fact in dispute and specifically found that the pleadings and record evidence demonstrated no misrepresentation, no breach of fiduciary duty, and no negligence by Pearce. That ruling was never challenged on rehearing or appeal.

In 2013, Patricia Sandler, now in her capacity as Trustee for the Conrad Trusts [“Sandler as Trustee”], brought the current suit against Pearce for alleged negligent misrepresentation, relying on the same facts as in the 2010 Action and on the same notes that supported the claims in the 2010 Action. Pearce moved for summary judgment based on the doctrines of res judicata and collateral estoppel. Patricia Sandler argued that as Trustee of the Conrad Trusts, she had no identity of interest with any party to the prior lawsuit because in the 2010 Action the Conrad Trusts were not named plaintiffs, and genuine issues of material fact remained. The trial court denied Pearce’s motion for summary judgment based on its conclusion that Patricia Sandler as individual in 2010 and Sandler as Trustee in 2013 were not identical parties and thus collateral estop-pel did not apply as a bar to the 2013 Action. The cause went to jury trial. The jury found that Pearce made negligent misrepresentations that were a legal cause of loss to Sandler as Trustee for the Conrad Trusts. The jury found that the Conrad Trusts had contributed to their own harm, assigning 40% negligence to the Trusts and 60% negligence to Pearce, and awarded the amount of $210,300.00 on the verdict form to Sandler as Trustee for compensatory damages. This appeal followed.

ANALYSIS

After a thorough reading of the record, we agree with Pearce that when the trial court dismissed the Conrad’s claims with prejudice in the 2010 Action for failure to comply with Florida Rule of Civil Procedure 1.260, and granted summary judgment in Pearce’s favor specifically dismissing all claims against him, the matter was concluded for all purposes. At that point, whatever claims that may have had existed on the promissory notes in question ceased to exist. Therefore, no claim could exist on those promissory notes that could be brought in the current suit by Sandler as Trustee. In the 2013 Action, the trial court should have entered summary judgment in favor of Pearce upon his motion on this issue alone, thereby ending the matter before trial.

Furthermore, the 2013 Action is also barred by the doctrines of collateral estoppel and res judicata as the 2010 and 2013 Actions are, in fact, identical in things sued for, operative facts, parties and capacity of the parties. “[C]ollateral estoppel, also known as issue preclusion, applies where: (1) the identical issues were presented in a prior proceeding; (2) there was a full and fair opportunity to litigate the issues in the prior proceeding; (3) the issues in the prior litigation were a critical and necessary part of the prior determination; (4) the parties in the two proceedings were identical; and (5) the issues were actually litigated in the prior proceeding.” Topps v. State, 865 So.2d 1253, 1255 (Fla. 2004). Where these elements are satisfied, “Collateral estoppel may be applied to bar subsequent causes of action even where the second claim requires proof of different essential facts than those required to be proved in the initial suit.” Larimore v. State, 76 So.3d 1121, 1123 (Fla. 1st DCA 2012). “Collateral estoppel precludes re-litigating an issue where the same issue has been fully litigated by the parties or their privies, and a final decision has been rendered by a court.” Mtge. Elec. Registration Sys., Inc. v. Badra, 991 So.2d 1037, 1039 (Fla. 4th DCA 2008) [e.s.]; accord Cook v. State, 921 So.2d 631, 635 (Fla. 2d DCA 2005) (“A person who was not a named party to an action will nonetheless be subject to collateral estoppel arising from that action if that person was in privity with a party or virtually represented a party.”).

To be in privity -with one who is a party to a lawsuit, or for one to have been virtually represented by one who is a party to a lawsuit, one must have an interest in the action such that she will be bound by the final judgment as if she were a party. Southeastern Fidelity Ins. Co. v. Rice, 515 So.2d 240 (Fla. 4th DCA 1987) (“One not a party to a suit is in privity with one who is where his interest in the action was such thát he will be bound by the final judgment as if he were a party.”); Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (5th Cir.), cert. denied, 423 U.S. 908, 96 S.Ct. 210, 46 L.Ed.2d 137 (1975) (“A person may be bound by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative.”). See also Stogniew v. McQueen, 656 So.2d 917, 920 (Fla. 1995).

Sandler as Trustee argues that the 2013 claims are not barred by collateral estoppel because she has no identity of interest and no privity with the parties to the 2010 Action as the trusts she controls as trustee were not named as plaintiffs in that action. That argument is unpersuasive. The record shows that Patricia San-dler was an individual plaintiff in the 2010 Action, and a beneficiary of the trusts at issue. During the pendency of that litigation, her parents died; they were also individual plaintiffs whose claims were based on promissory notes owned by them individually. The notes were transferred to the Conrad Trusts after their deaths but during the litigation. The 2010 Action then continued based on the same claims and the same notes. The fact that the notes were assigned (by virtue of the Conrads’ deaths) to the Conrad Trusts during the pendency of the 2010 Action is of no significance. Sandler as Trustee acquired her status as trustee of the Conrad Trusts during the pendency of the 2010 Action; she is still a beneficiary of those trusts in 2013. Although not explicitly named as a “trustee” in the 2010 lawsuit, Sandler as Trustee is nonetheless subject to collateral estoppel where, as between the 2010 and 2013 Actions; she was certainly a person in privity with a party or virtually represented by a party, and certainly was one who had an interest in the action “such that she will be bound by the final judgment as if she were a party.” Southeastern Fidelity Ins. Co., 515 So.2d at 242. “In its broadest sense, privity, is defined as ‘mutual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right.’ ” .Id. at 242. We find this principle wholly,applicable to Patricia Sandler’s status in the 2010 and 2013 Actions.

In the 2010 Action, the trial court dismissed the Conrads’ claims for failure to comply with Florida Rule of Civil Procedure 1.260 requirements for substitution of parties after death. The trial court then granted summary judgment in favor of Pearce and dismissed all of the 2010 claims against him with prejudice. At that point, there was nothing left for the Conrad Family Trust or the Lyons Family CRT to pursue. The Order in the 2010 Action explicitly found that the pleadings and record evidence demonstrated that no misrepresentations were made by Pearce to either the Sandlers or the Conrads at the dinner which formed the basis for the 2010 Action. The trial court’s order granting summary judgment and dismissing with prejudice those claims made on behalf of beneficiaries of the Conrad Trusts operated as a final adjudication on the merits. The trial court’s order was not appealed. With all identities required by the doctrine having been met, collateral1 estoppel bars the 2013 Action.

The doctrine of res judicata similarly bars Sandler as Trustee’s 2013 lawsuit against Pearce. To successfully invoke a res judicata defense, a party must satisfy two prerequisites. First, a judgment on the merits must have been rendered in a former suit. See Ludovici v. McKiness, 545 So.2d 335, 337 (Fla. 3d DCA 1989); e.g., Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) (en banc). Second, four identities must exist between the, former suit and the suit in which res judicata is to be applied: “ ‘(1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the actions; and (4) identity of the quality or capacity of the persons for or against whom the claim is made.’” Id (citations omitted); Young-blood v. Taylor, 89 So.2d 503, 505 (Fla. 1956). In the 2013 Action, all four identities are present. The policy “underlying res. judicata is that if a matter has already been decided, the petitioner has already had his or her day in court, and for purposes of judicial economy, that matter generally will not be reexamined again in any court (except, of course, for appeals by right).” Zikofsky v. Mktg. 10, Inc., 904 So.2d 520, 523 (Fla. 4th DCA 2005). Based on principles of res judicata, a judgment on the merits will thus bar a subsequent action between the same parties on the same cause of action, Importantly, the doctrine of res judicata not only bars issues that were raised, but it also precludes consideration of issues that could have been raised but were not raised in the first case. See Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984); Tyson v. Viacom, 890 So.2d 1205, 1210 (Fla. 4th DCA 2005) (“The doctrine of splitting a cause of action is related to res judicata in that it requires that all damages'sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one action or not at all.”); Youngblood, 89 So.2d at 505. Applying that principle here, Pearce’s alleged intentional or fraudulent misrepresentation was fully litigated in the 2010 Action and he was found not liable. Sandler as Trustee’s 2013 claim against Pearce for negligent misrepresentation based on the identical subject matter and factual circumstances is thus precluded from consideration as an issue that could have been raised in 2010, but was not.

Whether we view Patricia Sandler’s interest as an individual in 2010 or as trustee of the Conrad Trusts in 2013, the real party in interest on each side remains the same. The samé issues are being litigated on the same notes, based on identical facts. See e.g., Olympian West Condominium Association, Inc. v. Kramer, 427 So.2d 1039 (Fla. 3d DCA), rev. denied, 438 So.2d 833 (Fla. 1983) (holding that the prior dismissal with prejudice of these named individuals bars the present action against them under familiar principles of res judicata, notwithstanding that in this action they are designated as- partners in a partnership). We conclude that the 2013 Action is properly barred by collateral estoppel and res judicata.

For each and every reason stated above, we reverse the Final Judgment and remand, and direct the trial court to enter summary final judgment in favor of Pearce.

      . Patricia Sandler, , Appellee here, is Joseph and Patricia Conrad’s daughter. .

      .The trial court’s Order Granting Pearce's Motions for Summary Judgment Against Martin and Patricia Sandler reads, in pertinent part,
      3. As to Count III of the Amended Complaint (Fraudulent Misrepresentation), there are no genuine issues of material fact in dispute. The pleadings and record evidence in this case demonstrate that no misrepresentations were made by Trey Pearce to Plaintiffs Martin and Patricia Sandler. Accordingly, Defendant Trey Pearce is entitled to summary judgment on Count III of the Amended Complaint (Fraudulent Misrepresentation) as a matter of law. ...
      4. As to Count II of the Amended Complaint (Breach of Fiduciary Duty), there are no genuine issues of material fact in dispute. The pleadings and record evidence in this case demonstrate that the Sandlers were holders of a promissory note payable by Defendant Pearce Capital Corp., and that this promissory note was the product of an arms [sic] length transaction by and between the Sandlers and Pearce Capital Corp. ... no fiduciary relationship existed between Plaintiffs Martin and Patricia San-dler and Defendant Trey Pearce. ...
      5). As to Count V of the Amended Complaint (Negligence), there are no genuine issues of material fact in dispute, The pleadings and record evidence in this case demonstrate that there was no duty owed by Trey Pearce, individually, to Plaintiffs Martin and Patricia Sandler. ...

      . The Plaintiffs in the 2010 Action sued Pearce for intentional misrepresentation.

      . Sandler as Trustee moved for entry of a final judgment. In her proposed Order, San-dler as Trustee recited that the jury had found that the gross amount of damages was $350,500.00, and that Pearce was responsible 60% percent of that amount, or $210,300. Pearce countered that the proposed Order was inconsistent with the verdict and requested a hearing. The trial court agreed with Sandler as Trustee, and recast the jury’s verdict, over Pearce’s objection. Pearce moved for Rehearing to Alter or Amend a Judgment. The trial court, following a hearing, granted in part and denied in part Pearce’s motion, finding that any reference to the jury finding damages in the amount of $350,000.00 be removed from the judgment; however, judgment was entered against Pearce in the amount of $210,300.00. Pearce appeals from the trial court’s post-judgment order, but for reasons set forth in the body of the opinion above, we need not reach this aspect of Pearce’s appeal.


author: Forst, J.

text:
    Jennifer BURKE, Unlimited Closing, Inc., and Couture Title and Escrow, LLC, Appellants, v. SUNCO TITLE & ESCROW CO., Appellee.
    No. 4D16-3613
    District Court of Appeal of Florida, Fourth District.
    May 31, 2017

      Ledford A. Parnell, Parkland, for appellants.
    Joshua M. Entin of Entin & Della Fera, P.A., Ft. Lauderdale and Michael L. El-kins and Elizabeth W. Neiberger of Bryant Miller Olive, P.A., Miami, for ap-pellee.
   Forst, J.

Jennifer Burke and two business entities under her control appeal a trial court order granting a motion for temporary injunction. Appellants challenge the amount of the injunction bond and the duration of the injunction, but they do not challenge the merits of the injunction itself. For reasons discussed below, we find no reversible error and affirm the trial court’s order.

Background

Burke worked for appellee, Sunco Title & Escrow Co. (“Sunco”), pursuant to an independent contractor agreement. The agreement contained non-competition and confidentiality clauses. Following termination of the agreement, Sunco filed suit against Burke and the two related business entities, seeking injunctive relief and damages. Sunco alleged that, among other things, Burke and the related entities breached the non-competition agreement by performing services for several of Sun-co’s clients.

Shortly after filing the complaint, Sunco filed an emergency motion for temporary injunction, and the trial court held an evi-dentiary hearing. At the conclusion of the hearing, the court reserved ruling and asked the parties to submit proposed orders.

Although the parties had not addressed the issue of an injunction bond at the hearing, Sunco submitted a proposed order that granted the injunction and set the amount of its bond at $1000. Burke and the two other defendants submitted a proposed order that denied the injunction without explanation; they did not file objections to Sunco’s proposed order.

The trial court adopted Sunco’s proposed order in full, enjoining appellants “[ujntil further Order of the Court.” Without bringing any deficiency in the order to. the trial court’s attention, the three defendants gave timely notice of appeal.

Analysis

In their first point on appeal, appellants argue that the trial court erred in setting a nominal bond without affording them an opportunity to present evidence on the proper bond amount.

The trial court has discretion in setting the amount of an injunction bond. Montville v. Mobile Med. Indus., Inc., 855 So.2d 212, 215 (Fla. 4th DCA 2003). An injunction bond is “conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.” Fla. R. Civ. P. 1.610(b) (emphasis added). “The amount of the bond constitutes the court’s determination of the foreseeable damages.” Andrist v. Spleen, 142 So.3d 950, 952 (Fla. 4th DCA 2014)). “Should this amount prove insufficient or excessive, an affected party is free to move for modification.” Parker Tampa Two, Inc. v. Somerset Dev. Corp., 544 So.2d 1018, 1021 (Fla. 1989); see also Montville, 855 So.2d at 216 (citing Parker).

This Court has remanded for an eviden-tiary hearing on the bond amount in cases where there was no bond hearing in the trial court. Offshore Marine Towing, Inc. v. Sea Tow Servs. Int’l, Inc., 778 So.2d 510, 511 (Fla. 4th DCA 2001) (“[B]oth parties must be provided with the opportunity to present evidence regarding the appropriate amount of the injunction bond.”),

However, at no time during the proceedings in the trial court did appellants in this case request an opportunity to present evidence on the bond amount. They neither raised the bond issue during the injunction hearing nor in their proposed order. They also failed to either submit objections to Sunco’s proposed order or file a post-order motion. Cf. Offshore Marine, 778 So.2d at 511 (“[Ajppellants did alert the trial court in a supplemental memorandum in opposition to the temporary injunction, submitted while the court was considering the appellees’ proposed order, that an evi-dentiary hearing on the amount of the bond would be required.”); Advantage Dig. Sys., Inc. v. Dig. Imaging Servs., Inc., 870 So.2d 111, 116 (Fla. 2d DCA 2003) (noting that “enjoined parties filed a motion to dissolve, [or modify] the injunction” after entry of the trial court’s order and argued the trial court erred “in setting the bond amount without a hearing”); Lotenfoe v. Pahk, 747 So.2d 422, 426 (Fla. 2d DCA 1999) (“At the end of the injunction hearing ..., [appellant] advised the court of the necessity of an evidentiary hearing on the bond.”).

We do not read our cases as holding a party may challenge an injunction bond as insufficient' on appeal notwithstanding failure to raise the issue in the trial court. Cf. Offshore Marine, 778 So.2d at 511; see also Palm Beach Polo Holdings, Inc. v. G & G Marine, Inc., 889 So.2d 173, 174 (Fla. 4th DCA 2004) (reversing portion of order setting $1000 injunction bond where the trial court “abruptly terminated the hearing without affording appellants an opportunity to. object to the .amount of the bond”).

This Court previously has addressed the argument that-a party waived the ability to challenge the bond amount where it failed to address the issue at the injunction hearing. See Net First Nat’l Bank v. First Telebanc Corp., 834 So.2d 944, 950 (Fla. 4th DCA 2003). Although we found “waiver was not an issue” in Net First, id., that case is distinguishable from the instant case. The defendants in Net First sought both dissolution of the wrongful injunction and damages in excess of the improperly-set bond. See id. at 950-51, Thus, there' . was a “need” for the panel in Net First to address whether damages on remand would be limited to the bond amount. Id. at 950.

Here, appellants do not challenge the merits of the injunction itself. As a result, appellants cannot claim entitlement to the bond for any damages resulting from being “wrongfully enjoined.” Fla. R. Civ. P. 1.610(b); see Montville, 855 So.2d at 215 (“Without question, the purpose of the bond required as a condition to issuance of a temporary injunction is to provide a sufficient fund to cover the adverse party’s costs and damages if the injunction is wrongfully issued”). Thus, there is no need to address the bond amount on the facts of this case.

On appellants’ second argument concerning the duration of the injunction, we also find no error. The trial court’s order complies with rule 1.610(a)(2), which provides that “[t]he temporary injunction shall remain in effect until the further order of the court.” Moreover, appellants may move to dissolve the temporary injunction if it remains in effect beyond the agreement’s non-competition period. See Fla. R. Civ. P; 1.610(d).

Finally, we reject appellants’ contention that the trial court erred by adopting Sun-co’s proposed order verbatim “without an opportunity for comments or objections by the other party.” Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla 2004). In contrast to Bishop v. Bishop, 47 So.3d 326 (Fla. 2d DCA 2010), a case upon which appellants rely, appellants did not “enumerate[] approximately twenty errors, omissions, and irregularities” in the trial court’s order. Id. at 328. Instead, appellants pointed 'to one non-substantive error, which fails to “create the appearance that the trial court did not engage in independent decision-making.” Id.

Conclusion

As set forth above, we find no reversible error and affirm the trial court’s order granting the temporary injunction.

Affirmed.

Warner and Gerber, JJ., Concur.


text:
    Angela PANOSYAN and Sergey Panosyn, Appellants, v. CITIMORTGAGE, INC., Appellee.
    No. 4D15-2508
    District Court of Appeal of Florida, Fourth District.
    May 31, 2017
    Bruce Burk and Kendrick Almauger of The Ticktin Law Group, P.L.L.C., Deer-field Beach, for appellants.
    Shaib Y. Rios of Brock & Scott, PLLC, Fort Lauderdale, for appellee.
   Per Curiam.

We affirm the judgment of foreclosure, but reverse and remand for a determination of the correct amounts owed in interest and escrow advances because those awards were not proven by competent substantial evidence.

The total amount of damages sought by Bank was $258,213.36, which included amounts for the principal balance, interest, and the escrow advance balance. To prove ’ these damages, Bank introduced two' loan payment histories and had one- of its witnesses read from the proposed final judgment not admitted into evidence.

We conclude the principal ' balance awarded in the final judgment was supported by competent substantial evidence, namely one of the loan payment histories. However, neither the interest nor the escrow advance awards were supported by competent substantial evidence. “The appropriate remedy is to reverse and remand the judgment for further proceedings to properly establish the correct amount due and owing.” Hovannesian v. PennyMac Corp., 190 So.3d 681, 682 (Fla. 4th. DCA 2016); see also Penguero v. Bank of Am., N.A., 169 So.3d 1198 (Fla. 4th DCA 2015).

Affirmed in part, reversed in part, and remanded.

Ciklin, C.J., Gross and Conner, JJ., concur.


text:
    James HORN, Appellant, v. Frank WOLFE, Appellee. James Horn, Appellant, v. Sierra Wolfe, Appellee.
    CASE NO. 1D15-5065, CASE NO. 1D15-5066
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017
    John W. Roberts, Roberts Law Group, PLLC, Miramar Beach,J for Appellant.
    Frank Wolfe, pro se, Appellee, in Case No. 1D15-5065; no appearance for Appel-lee in Case No. 1D15-45066.
   PER CURIAM.

We consolidate these cases for purposes of this opinion. Appellant chalíénges two orders imposing ' temporary ' injunctions against stalking. We are constrained to reverse because the trial court did not record the evidentiary hearing as required by section 784.0485(6)(f), Florida Statutes. Without a transcript, we cannot adequately review appellant’s claims. We do not remand for a new hearing because the temporary injunctions have expired. See Rodman v. Rodman, 48 So.3d 1022 (Fla. 1st DCA 2010). However, the parties are free to file new petitions for injunctive relief if such relief is warranted. On all other issues, we affirm.

WOLF, LEWIS, and WETHERELL, JJ., CONCUR.

       The form order used by the trial court to set the hearing in this case included this statement: "NOTICE: Because this is a civil case, .there is no requirement that these proceedings be transcribed at public expense.” Fla. Fam. L. Form 12.980(b)(1). The appropriate rules committee should consider revising the form to delete this statement because it is inaccurate with respect to hearings on petitions for injunctions for protection against domestic violence and stalking, , See § 741.30(6)(h), Fla. Slat. ("All proceedings' ■ under this subsection shall be recorded. Recording may be by electronic' means as provided by the Rules of Judicial Administration.”); § 784.0485(6)(f), Fla. Stat. (same); Fla. R. Jud. Admin. 2.535(h)(1) ("All proceedings required by law ... to be reported shall be reported at public expense.”), Although the statement is accurate with respect to hearings on the other types of injunctions referenced in the form order (repeat violence, dating violence, and sexual violence), it is unnecessary because the form order includes a specific paragraph that the trial court can check when setting hearings on those types of injunctions:
      YOU ARE ADVISED THAT IN THIS COURT:

      c. _ in repeat, dating, and sexual violence cases, no electronic recording or court reporting services are provided by the court. A party may arrange in advance for the services of and provide for a court reporter to prepare a written transcript of the proceedings at that party’s expense.