author: Per Curiam. Klingensmith, J.,

text:
    Joel Ivory JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2779
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant. , ,,
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rachael Kaiman, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed.

Conner and Forst, JJ., concur.'

Klingensmith, J., concurs specially .with opinion. .

Klingensmith, J.,

concurring specially.

In this case, defense counsel objected to the State exercising a peremptory challenge against a white male juror who may have identified with ’ the Hispanic class. Defense counsel requested both a race and gender neutral basis for the strike:

[Defense counsel]: Judge, we would object to the State exercising a peremptory challenge against [the juror] who is identified with the Hispanic class and would request a race neutral—
THE COURT: Okay.
[Prosecutor]: Judge, he’s a white male.
[Defense counsel]: Well, we request the gender neutral- reason. We would request both.
THE COURT: So your position is that he’s Hispanic, okay, and that it’s gender?
[Defense counsel]: And he’s a male.

The trial judge ultimately concluded there was a neutral basis for the strike. I agree with my colleagues in affirming the trial court’s decision because nothing indicates that the strike of the prospective juror in this case was improperly motivated, nor could any such conclusion be reached on this record.

However, I write to specially concur in this opinion to express my dismay at what I view as the gradual and continual erosion of the peremptory challenge. Years of court decisions now require trial judges to be the arbiters of the motivations behind these challenges, placing a burden on judges to be mind-readers in assessing the genuineness of such challenges.

“The peremptory challenge is ‘a practice of ancient origin’ and is ‘part of our common law heritage.’ ” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 147, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (O’Connor, J., concurring) (quoting Edmonson v. Leesville Concrete Co., 500 U.S. 614, 639, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (O’Connor, J., dissenting)). While there is no freestanding constitutional right to exercise peremptory challenges at either the state or federal level, Florida courts havé long recognized that “such challenges are nonetheless ‘one óf the most important of the rights secured to the accused.’ ” Smith v. State, 59 So.3d 1107, 1111 (Fla. 2011) (quoting Busby v. State, 894 So.2d 88, 98 (Fla. 2004)). The central function of peremptory challenges is to-“enabl[e] each side to exclude those jurors it believes will be most partial toward the other side.” Holland v. Illinois, 493 U.S. 474, 484, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990). Recognizing the interplay between voir dire and peremptory challenges in American trials, the United States Supreme Court noted that jury selection “operat[es] as a predicate for the exercise of peremptories,” the persistence and extensive use of which “demonstrate the long and widely held belief .that peremptory challenge is a necessary part of trial by jury.” Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled, on other grounds, Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In J.E.B., Justice O’Connor stated that “[i]n further constitutionalizing jury selection procedures, the Court increases the number of cases in which jury selection— once a sideshow—will become part of the main event.” 511 U.S. at 147, 114 S.Ct. 1419 (O’Connor, J., concurring). She continued, stating that “[bjeeause I believe the peremptory remains an important litigator’s tool and a fundamental part of the process of selecting impartial juries, our increasing limitation of it gives me pause.” Id. at 148, 114 S.Ct. 1419. Justice O’Con-nor emphasized that “[limiting the accused’s use of the peremptory is ‘a serious misordering of our priorities,’ for it means “we have exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death.’” Id. at 150, 114 S.Ct. 1419 (quoting Georgia v. McCollum, 505 U.S. 42, 61-62, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (Thomas, J., concurring)). See also id. at 162, 114 S.Ct. 1419 (Scalia, J., dissenting) (arguing that the extension of Batson to gender and beyond will lead to “extensive collateral litigation” and the “lengthening of the voir dire process that already burdens trial courts”).

“In the trial of a case the jury selection and voir dire examination are just as critical to the outcome as the presentation of evidence.... The change of a single juror in the composition of the jury could change the result.” Ter Keurst v. Miami Elevator Co., 486 So.2d 547, 550-51 (Fla. 1986) (Adkins, J., dissenting). As part of that selection process, the right to exercise peremptory challenges serves several valid practical purposes: it allows litigants to secure a fair and impartial jury; it gives the parties some control over the jury selection process; it allows attorneys to search for biases during the selection process without fear of accepting a potential juror who may not display it overtly, or who may have been somehow offended during questioning; it allows attorneys to strike potential jurors who appear to not want to be there but have been unsuccessful in their attempts to be excused from service; and it serves as an insurance policy when a challenge for cause is denied by the judge and the challenging, party still believes the juror will be unable to render a fair and impartial verdict.

In Reed v. State, 560 So.2d 203, 206 (Fla. 1990), the Florida Supreme Court affirmed the peremptory challenge of an African-American juror, recognizing that “[o]nly one who is present at the trial can discern the nuances of the spoken word and the demeanor of those involved.” Notably, the court reasoned that in future cases ■ it would “rely on the inherent fairness and color blindness of our trial judges who are on the scene and who themselves get a ‘feel’ for what is going on in the jury selection process.” Id.

A year later, in Green v. State, 583 So.2d 647, 651 (Fla. 1991), the court reminded trial judges that 'racially neutral reasons for peremptory challenges “need not rise to the level justifying challenges for cause,” and again told them it was their responsibility to evaluate both the credibility of the reason asserted and the credibility of the person offering the reason in determining whether a peremptory challenge was racially motivated. This is because trial judges are in the best possible position, although an imperfect one, to determine the credibility of the attorney seeking to support the challenge. Id. at 052. In fact, credibility is the key issue as to whether a trial court accepts or rejects a race neutral reason offered by the challenger. See Snyder v. Louisiana, 552 U.S, 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 (2008).

The rules prohibiting the- discriminatory use of peremptory challenges are intended to- apply consistently to litigants in civil cases as well as criminal cases. Compare McCollum, 505 U.S. at 55, 112 S.Ct. 2348 (finding that a criminal defendant’s discriminatory use of peremptory challenges violated equal protection clause), with Edmondson, 500 U.S. at 629-31, 111 S.Ct. 2077 (holding that civil litigants are prohibited from exercising racially discriminatory peremptory challenges), and Batson, 476 U.S. at 96, 106 S.Ct. 1712 (outlining the standards by which the prosecution’s use of race-based peremptory challenges may be deemed unconstitutional).

It has been-said that “a lawyer’s time and advice are his stock in trade,” but so too are his or her experience and judgment. Successful trial attorneys understand . that uncovering a juror’s bias depends not only on skillful voir dire questioning, but also the ability to interpret body language, voice inflections, facial responses, and to draw upon knowledge gleaned from past experiences with an array of jurors.

Sometimes, prospective, jurors, will give an experienced attorney nothing more than a “bad vibe” that cannot be reduced to the record. Experienced, trial lawyers develop gut feelings about -jurors .that are often difficult to articulate to a judge and may not rise to a level supporting a “for cause” strike. This. does not mean that such an attorney -is not being “genuine” regarding his or her reasons for exercising a “neutral” strike in the ordinary sense of the word; it simply .means that our case law requires trial judges to accept or reject the proffered reason as a permissible use of the peremptory, often based on little more than their experience, judgment and intuition.

Although the goal of rooting out discriminatory conduct is laudable, court decisions over the years have had the adverse effect of depriving lawyers of the ability to use their own experience, judgment, and intuition in exercising challenges to select jury panels. What used to be purely discretionary challenges have now transformed,into de facto challenges “for cause.” For as it now stands, attorneys exercising a strike against any juror of any possible demographic are now compelled to provide a “neutral” reason for using a peremptory challenge. See Abshire v. State, 642 So.2d 542, 543-44 (Fla. 1994) (women); Guevara v. State, 164 So.3d 1254, 1256 (Fla. 2d DCA 2015) (men); Whitby v. State, 933 So.2d 557, 563-64 (Fla 3d DCA 2006) (white males); Olibrices v. State, 929 So.2d 1176, 1180 (Fla 4th DCA 2006) (Pakistani ethnicity and Muslim religious beliefs); Joseph v. State, 636 So.2d 777, 780-81 (Fla. 3d DCA 1994) (Jews); Fernandez v. State, 639 So.2d 658, 660 (Fla. 3d DCA 1994) (black males); Alen v. State, 596 So.2d 1083, 1085 (Fla. 3d DCA 1992) (Hispanics). Putting aside the obvious. problems inherent in protecting- certain classes of persons and granting them a more favorable status for sitting on a jury over others; when everyone becomes a member of a protected class, then no one is.

As the Florida Supreme Court has recognized, “[i]t is the right to an impartial jury, not the right to peremptory challenge that is constitutionally protected,” Jefferson v. State, 595 So.2d 38, 41 (Fla. 1992) (footnote omitted). While peremptory strikes have undoubtedly been used by some in the past for discriminatory purposes, experience has shown that requests for "neutral” reasons are often made solely for the purposes of gamesmanship, and consequently, provide vehicles for obtaining new trials following unsatisfactory outcomes.

Those court decisions have eviscerated any presumption that a peremptory challenge may be exercised in a nondiscriminatory manner. When an objection is made, an on-the-record analysis must be applied to every challenge, without exception. Trial and appellate courts are then tasked with finding record support for the “genuineness” of any neutral reason proffered. Experienced trial attorneys know this may not always be possible to do in a manner that can be applied with consistency and reliability. An attorney might not be able to elicit adequate information from a prospective juror to sufficiently articulate a “neutral” reason for a strike that is acceptable to a trial judge, or an appellate court. And .in attempting to establish an adequate record, the lawyer then risks posing intrusive questions to the subject jurors, potentially alienating that juror or others, as well as the risk that any attempt to strike an unfavorable prospective juror may be disallowed.

Ultimately, the failure to .make a sufficient inquiry will probably lead to a reversal by the appellate' court for failure to make a proper record. This has led to situations where attorneys are now using Melbourne challenges in an attempt to keep certain jurors, lodging objections even though the proponent of the challenge does not truly believe the opposing side is being discriminátory. A judge may deny a challenge for that reason, but must nonetheless go to great lengths to articulate a rationale for rejecting such a challenge, or risk reversal when an appellate court deems his or her on-the-record inquiry or explanation inadequate.

This places both the..trial lawyer and judge in a catch-22, making them more likely to err on the side of scrupulously interrogating prospective jurors about intimate, personal matters in an effort to elicit any justifiable reasons for striking them. Lawyers and judges must now take copious notes during voir dire, spend more time sifting through jurors’ answers and deduce attorney motives to enunciate legally-recognized. “neutral” reasons. As rightly predicted by Justice Scalia in the result has been longer jury selections, causing longer trials in a justice system already burdened by expense and delay. 511 U.S. at 162, 114 S.Ct. 1419 (Scalia, J., dissenting).

The ensuing progression of the current case law has resulted in the death of the peremptory challenge by a thousand .cuts. I recognize that going back to a less-restrictive use of the peremptory challenge would probably require overturning years of legal precedent.' However, trial courts should not be obligated to subjectively evaluate the hidden motives of attorneys exercising peremptory strikes or intuitively assess the seemingly endless permutations of alleged facial, gender, or religious-motivated strikes constantly proposed by litigants.

Therefore, because of the undue burden the current use of peremptory challenges places on courts, perhaps now is the time to change- course. This can be accomplished by returning to a less-restrictive use of peremptory challenges as originally intended, or by formally codifying what has been effectively accomplished in practice—the elimination of the peremptory challenge altogether.

      . Melbourne v. State, 679 So.2d 759, 764 (Fla. 1996).

      . In 1986, Justice Marshall proposed the complete elimination of peremptory challenges to remove discrimination from the jury selection process. Batson, 476 U.S. at 107, 106 S.Ct. 1712 (Marshall, J., concurring). In doing so, he accurately predicted that future trial courts would be "ill equipped to second-guess” the reasons offered for such strikes by lawyers. Id. at 106, 106 S.Ct. 1712. See also Vivien Toomey Montz & Craig Lee Montz, The Peremptory Challenge: Should It Still Exist? An Examination of Federal and Florida Law, 54 U. MIAMI L. REV. 451, 495 (2000).


source: Caselaw Access Project

author: Klingensmith, J.

license: Public Domain

text:
    Anemey K. HUERTAS DEL PINO, Appellant, v. Carlos E. HUERTAS DEL PINO, Appellee.
    No. 4D16-3736
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Jaclyn Ann Behar of BeharBehar, Sunrise, for appellant.
    No appearance for appellee.
   Klingensmith, J.

Anemey K. .Huertas Del Pino (“Wife”) appeals a final judgment of dissolution that ended her long-term marriage to Carlos E. Huertas Del Pino (“Husband”). Wife argues the trial court erred in holding that, for the purposes of awarding alimony, income should be imputed to her based on her eligibility for Social Security retirement benefits she had not yet applied to receive. We agree. Because of error in the trial court’s determination regarding the imputation of Social Security income to Wife, and the effect of that imputation on the award of alimony to her, we reverse.

For alimony purposes, trial courts may impute income to a voluntarily unemployed or underemployed spouse in determining the parties’ earning capacities, sources of income, and financial circumstances. See § 61.08(2)(e), (i), (j), Fla. Stat. (2016); Rabbath v. Farid, 4 So.3d 778, 781-82 (Fla. 1st DCA 2009); Freilich v. Freilich, 897 So.2d 537, 540 (Fla. 5th DCA 2005). The burden of proof is on the party seeking to impute income to the other spouse. Burkley v. Burkley, 911 So.2d 262, 269 (Fla. 5th DCA 2005). Where a court imputes income to a spouse, the reviewing court must determine whether competent, substantial evidence supports imputation. Leonard v. Leonard, 971 So.2d 263, 266 (Fla. 1st DCA 2008).

The final judgment detailed Wife’s employment and education history throughout the marriage, which was minimal because she was a stay-at-home mother during most of that time. When the Petition for Dissolution was filed, Wife was sixty-two years old and had earned a GED. In her last employment, she worked for a,. California cosmetics company, and earned $12 per hour. Two months prior to the filing of the Petition for Dissolution, she voluntarily left her job and came to Florida to expedite the divorce and avoid the high cost of' California living. Wife’s testimony established that she desired to work full-time and intended to do so, but had not- received a single response to ' any job applications. Even though her last job paid $12 per hour, Wife testified that she did not believe she could make $12 an hour in Florida due to her age, and because the minimum wage in Florida was between $8 and $9 per hour. The trial court found that Wife was voluntarily unemployed or underemployed-because according to the final judgment “[t]he Wife admitted she is able to work, and should be able to earn- $10/hour, working 40 hours a week.”

Additional testimony revealed that, although she was eligible to receive, $640 per month in Social Security income, Wife chose to defer receipt of those benefits so that she might receive $900 per month in Social Security income after her sixty-fifth, birthday. From this evidence, the. trial court added an additional $640 per month to Wife’s monthly imputed income for the purposes of calculating alimony. The trial court’s final judgment stated, “[T]he Wife’s gross income is $1,907.33. However, if the Wife takes her Social Security income in the amount of $640.00, per month, her gross income will be $2,647.33, per month.” After imputing this income to her, the trial court also concluded that “[t]he Wife has the ability to support herself to earn income in the total amount of $2,647.33 per month', which provides enough of a surplus for the Wife to find suitable housing.” Thus, the record is' clear that the trial court improperly considered Wife’s potential monthly Social Security benefits in its alimony computation.

' Wife argues that her Social Security benefits may not be included as income unless she receives payments from the Social Security Administration (“SSA”). Under section 61,08(2):

In determining whether to award alimony or maintenance, the court shall first make a specific factual determination ns to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay'alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but riot limited to:
(e) The earning capacities, educational levels,'vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties;

The monthly income a person receives once he or she applies for Social Security benefits depends on several factors, including the person’s age when applying for benefits, the person’s full retirement age, how long the person worked, and how much the person earned. See 42 U.S.C. §§ 402-415. However,. an individual who elects to receive benefits before full retirement age will suffer a permanent reduction in benefits. See 42 U.S.C. § 402(q)(l) (2015).

It is well-established that Social Security benefits a party receives can be properly considered as income in awarding alimony. See Lamont v. Lamont, 851 So.2d 898, 899 (Fla. 4th DCA 2003). However, the question here is different: whether Social Security benefits should be ’imputed as income where a person is eligible to receive benefits, but has not yet applied for or received them.

Here, Wife was not receiving Social Security benefits from the SSA when the trial court decided alimony. The evidence instead shows that Wife chose not to receive her Social Security benefits because she determined that the economic value of receiving the benefits early was outweighed by the benefit of electing to receive them later. Because Wife was not receiving payments from the SSA, these deferred benefits were not currently available income to Wife. Only those benefits that are paid from the SSA and delivered to the recipient may be considered part of a party’s income for purposes of calculating alimony under section 61.08.

Although there are no Florida cases directly on- point, the rationale of Moore v. Moore, 242 Mich.App. 652, 619 N.W.2d 723 (2000), supports our conclusion. In Moore, the wife requested that the trial court increase her alimony award, but the husband objected because the wife had not exercised her ability to collect payments from her pension. Id. at 724. The husband argued that the potential pension benefits should be imputed as part of the wife’s income. Id. The trial court refused to impute the potential pension income, and stated that it would not consider the pension benefits as income to either, party until that party began receiving the pension benefits. Id. The Michigan. Court of Appeals held:

In this case, in determining whether imputing income to plaintiff was appropriate, the court should have considered whether plaintiff could elect to draw her share of the pension now without any reduction in benefits. If this is the case, we believe that plaintiff would be voluntarily reducing her income ... On the other hánd, if by taking her share of the pension now she would' receive a reduced amount, it is inappropriate to impute the pension benefits as income. For 'plaintiff to defer eléction of pension benefits to a later date when the benefits would be larger should not be viewed as a voluntary reduction in income, ' but rather as a possibly prudent investment strategy.

Id. at 725 (emphasis added).'

We agree with the Moore court’s conclusion. If the evidence shows that a party would receive the same Social Security benefits regardless of when he or she elected to receive the distributions, and absent some other compelling reason, then the decision to defer the benefits may properly be characterized as a voluntary reduction in income. But if the evidence shows that a party would receive larger benefits if he or she decided to defer- the benefits until a later time, and absent any evidence suggesting a contrary motivation, then, such a decision could properly be characterized as a prudent investment strategy and thus not subject to imputation.

We recognize that a putative recipient’s motivation is not dispositive for the purposes of the trial court’s decision, and in some situations, it is not relevant at all. But as we have previously held, a party’s' motivation in voluntarily reducing his or her income can be an appropriate factor for the trial court to consider in determining a party’s ability to pay. See Zarycki-Weig v. Weig, 25 So.3d 573, 575 (Fla. 4th DCA 2009). Here, there was no evidence of any bad faith on Wife’s part, and she articulated a rational reason for delaying her application for Social Security benefits— namely, that she would receive greater benefits by postponing her receipt of benefits until the age of sixty-five.

By this opinion, we do not intend to create a rule that income should never be imputed based on eligibility for government benefits; furthermore, a bright-line rule is not only unnecessary in fight of existing case law, but also inadvisable. See Rimer v. Rimer, 361 S.C. 521, 605 S.E.2d 572, 575 (2004) (holding that formulaic principles and bright-line rules will only hinder a trial court’s discretion in such a fact-intensive area of law). Therefore, under appropriate circumstances, a trial court might properly consider eligibility for government benefits and impute them as income, or make other determinations based on a party’s eligibility to receive Social Security benefits. See Faber v. Faber, No. 46464-1-II, 2016 WL 236468 (Wash. Ct. App. Jan. 19, 2016) (“[T]he possibility that one or both' parties may receive Social Security benefits is a factor the court may consider in making its distribution of property.”); Clarke v. Clarke, 297 Mich.App. 172, 823 N.W.2d 318, 324 (2012) (holding that if a party would receive the same Social Security benefits regardless of when the benefits are received, then absent compelling reasons, the decision to defer the benefits may be deemed a voluntary reduction of income). Cf. Searcey v. Searcey, 923 So.2d 528, 530 (Fla. 2d DCA 2006) (“[The trial court] may not consider any possible future social security payments to the [spouse when deciding alimony].”).

The trial court'effectively equated Wife’s decision to postpone applying for Social Security benefits with voluntary underemployment such that Wife’s eligibility to receive those benefits was imputed to her as income. Under the circumstances of this case, this was error. We hold that when the evidence establishes that a party has declined to receive early Social Security retirement benefits to receive higher benefits later, this alone does not demonstrate an unexercised ability to earn. Therefore, we reverse and remand for the trial court to reconsider the factors enumerated in section 61.08(2), without incorporating Wife’s unpaid Social Security benefits into the calculation of her imputed monthly income for the purposes of establishing an alimony award'. We affirm without comment on all other issues raised on appeal.

Affirmed in part, reversed in part and remanded..

Gross and Ciklin, JJ., concur.

      , As of 2016, Florida's minimum wage was $8.05, See-Florida Minimum Wage History 2000 to 2017, Florida Department op Economic Opportunity, http://www.florid^obs,org/docs/ default-source/2017-minimum-wage/ floridaminimum-wage-history-2000-2017.pdf? sfvrsn=2 (last visited October 13, 2017).


author: Kuntz, J.

text:
    Joseph MANZARO, Appellant, v. Linda D’ALESSANDRO, Appellee.
    No. 4D16-3951
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Guillermo J. Farinas, Palm Beach, for appellant.
    Megan K. Wells of Wells Law Firm, LLC, Miami Lakes, for appellee.
   ON ORDER TO SHOW CAUSE-AND APPELLEE’S MOTION FOR ATTORNEY’S FEES

Kuntz, J.

On August 3, 2017, we affirmed the circuit court’s order dismissing the Appellant’s complaint. We now grant the Appellee’s motion for attorney’s fees. Additionally, after reviewing the responses to our order to show cause, we sanction the Appellant and his counsel.

In January 2012, the Appellee filed a verified petition for temporary custody by extended family in the Seventeenth Judicial Circuit (the “Broward Circuit Court”). Later that month, the Appellee filed an agreed final order, where the Appellant and the mother, a non-party to this appeal, agreed that their minor child would live with the Appellee in Coral Springs. The Appellant has since filed multiple motions and petitions in the Broward Circuit Court, seeking relief from the purportedly agreed-to custody order. The record indicates at least one petition or motion remains pending in the Broward Circuit Court.

Though the 2012-custody order was rendered by the Broward Circuit Court-, the proceeding giving rise to this -appeal was filed by the Appellant in the Fifteenth Judicial Circuit (the “Palm Beach Circuit Court”). There, in September 2016, the Appellant, through counsel, filed a “complaint for equitable relief from agreed final order modifying temporary custody by extended family member on the basis of extrinsic fraud and the lack of personal jurisdiction.” In the complaint, the Appellant asserted he was never served with notice of the proceedings in the Broward Circuit Court and, additionally, that the Broward Circuit Court lacked personal jurisdiction over him. The Palm' Beach Circuit Court correctly dismissed the complaint, and we affirmed.

At the time of our affirmance, while the Appellee’s motion for attorney’s fees remained. pending, we issued an order to show cause directing the appellant in the above-styled case and appellant’s counsel, Guillermo J. Farinas, Jr., “to. show cause in writing, if any there be, within ten (10) days from the date of this order, why this Court should not impose any and all sanctions available pursuant to this Court’s inherent authority, Fla. R. App. P. 9.410(a), and the Rules Regulating the Florida Bar for the prosecution of a frivolous appeal.” .

We have considered the entirety of the record and court filings, including the ap-pellee’s motion for appellate attorney’s fees, the “appellant’s response to order to show cause” filed on August 13, 2017, the “appellee’s reply to appellant’s response to order to show'cause” and the appendix thereto filed on August 30, 2017, and the “appellant’s amended response to order to show cause” filed on September 1, 2017.

Rather than responding to our order— why he and his counsel should not be sanctioned—the Appellant begins - his amended response by seeking attorney’s fees against the Appellee. .He states that the Appellant “shows cause herein why this Honorable Court should not impose any sanctions against him but should impose serious sanctions against the Appellee [ ] for the prosecution of this VERY SERIOUS appeal.”-Further, the Appellant-was apparently “forced to file this VERY SERIOUS and MORALLY NECESSARY appeal.”

In the amended response, the Appellant asks “what facts or evidence have been presented to demonstrate that this entire matter is not VERY SERIOUS? On the contrary, all of the evidence clearly shows that a de facto Kidnapping of the Appellant’s minor child has taken place for over five (5) years.” Finally, the Appellant concludes by stating he “requests that this Honorable Court dismiss the Appellee[’s] t ] frivolous and completely meritless Motion for Appellate Attorney’s Fees and. seriously consider the imposition of sanctions against the Appellee [ ] in the amount that this Honorable Court would deem appropriate.”

We find the appeal to be completely without merit. Asserting fraud on the court, the Appellant sought relief from an order entered more than four years before he filed his complaint. Florida Rule of Civil Procedure 1.540(b) allows for motions for relief from judgment to be filed “within a reasonable time” but, for fraud on the court, the relief must be sought “not more than 1 year after the judgment, decree, order, or proceeding was entered or taken.” Id. Clearly, he did not seek relief from the order within the time required by Rule 1.540(b).

Beyond the one-year impediment, a party cannot rely on Rule 1.540 to seek relief from an order issued by a different court. As one federal court noted, “in no case has a Florida court allowed a cause of action for fraud on the court under Rule 1.540 in a court that is different from the one in which the fraud was committed.” Fla. Evergreen Foliage v. E.L Dupont De Nemours & Co., 336 F.Supp.2d 1239, 1272 (S.D. Fla. 2004) (citing Cobourn v. Cobourn, 436 So.2d 284, 285 (Fla. 5th DCA 1983)).

Apparently aware of the impediments.presented by Rule 1.540, the Appellant and his counsel argue the attempt to obtain relief from the order should be treated as an independent action. And, we agree that Rule 1.540(b) states that it “does, not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or .proceeding or to set aside a judgment or decree for fraud upon the court.” However, the Appellant and his counsel have not presented any persuasive argument that this independent action for fraud on the Broward Circuit Court can be brought in Palm Beach Circuit Court. That is an argument explicitly rejected in Florida Evergreen, where the court concluded a claim for fraud ón the court, whether an independent action or pursuant to Rule 1.540(b), must be brought in the court where the fraud was purportedly committed. Fla. Evergreen Foliage, 336 F.Supp.2d at 1271 (citing Chewning v. Ford Motor Co., 35 F.Supp.2d 487 (D.S.C. 1998)).

Regardless, whether or not a court has theoretical jurisdiction over an independent action' for relief from a judgment entered by a different court is not disposi-tive on the "issue of the frivolity" of the Appellant’s complaint in this case. Even if the Palm Beach Circuit Court had jurisdiction to entertain the independent action, it would have been precluded by both the principles of comity, due to the Appellant’s pending request for similar relief in Broward County, see JP Morgan Chase Bank, N.A. v. Estate of Neu, 133 So.3d 1068, 1070 (Fla. 4th DCA 2014), and res judicata, due to the multiple earlier final orders denying the same relief requested in this proceeding, see Pearce v. Sandler, 219 So.3d 961, 966 (Fla. 3d DCA 2017).

The Appellant has had multiple opportunities to raise the issues presented in his complaint to the Broward Circuit Court and, in fact, has done so. His attempt at filing a new lawsuit in a different circuit, after those prior attempts were rejected and while other new attempts still remain pending in the Broward Circuit Court, is completely devoid of merit. Therefore, we grant the Appellee’s motion for appellate attorney’s, fees, and sanction the Appellant and his counsel.

Pursuant to section 57.105(1), Florida Statutes (2016), Florida Rule of Appellate Procedure 9.410(a), and this Court’s inherent authority, the Court awards the appel-lee its appellate attorney’s fees and costs as a sanction against the Appellant and his counsel, Guillermo J. Farinas, Jr., for the filing of a frivolous appeal. Waddington v. Baptist Med. Ctr. of Beaches, Inc., 78 So.3d 114, 115 (Fla. 1st DCA 2012); Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 492 (Fla. 3d DCA 2000).

On remand, the circuit court shall set the amount of the attorney’s fees to be awarded for this appellate case. If a motion for rehearing is filed in this court, then services rendered in connection with the filing of the motion, including, but not limited "to, preparation of a responsive pleading, shall be taken into account in computing’the amount of the fee. The circuit court shall require the appellate fees and costs to'be paid in equal amounts by the Appellant and the Appellant’s counsel, Guillermo J. Farinas, Jr. See, e.g., § 57.105(1), Fla. Stat.; Sullivan v. Sullivan, 54 So.3d 520, 523 (Fla. 4th DCA 2010).

In conclusion, we grant the Appellee’s motion for attorney’s fees, sanction the Appellant and the Appellant’s counsel, Guillermo J.-Farinas, Jr., and remand the case to the circuit court for a determination of the amount of the fee award, which shall be paid equally by the Appellant and his counsel.

Motion for attorney’s fees granted; sanctions imposed; and remanded for farther proceedings not inconsistent with opinion.

Taylor and Damoorgian, JJ., concur.

      . The record indicates the Appellant also filed proceedings seeking the same relief in the Eleventh Judicial Circuit and the Third District Court of Appeal,

      . Because the claims, were not properly before the circuit court, neither the, circuit court’s dismissal nor this Court’s affirmance reach the merits of the Appellant's claims.

      . The appellant’s amended response to order to show cause, filed after the Appellee replied to the original response, was filed without seeking leave of court. ..

      . The original response concluded with a “request that this' Honorable Court dismiss the Appellee[’s] [] frivolous and completely merit-less Motion for Appellate Attorney’s Fees and impose sanctions against the Appellee [] in the amount of Ten Thousand Dollars ($10,-000.00), and require the payment of same within ten days.”

      . Rule 1.540(b) is modeled after the* Federal Rules and, therefore, we look to federal case law to aid in.our interpretation of the rule. Molinos Del S.A. v. E.I. DuPont de Nemours & Co., 947 So.2d 521, 524 (Fla. 4th DCA 2006) (looking to federal case law interpreting Rule 1.540(b) and noting “the federal rule is substantially the same as Rule 1.540(b).”); Casteel v. Maddalena, 109 So.3d 1252, 1256 (Fla. 2d DCA 2013) ("because rule 1.540 was modeled after Federal Rule of Civil Procedure 60, we may resort to federal case law to aid us in our interpretation of rule 1.540.”).


author: Per Curiam.

text:
    Yen BYER, Appellant, v. Lorna PRATT and Harinda Yasas Hettiarachchi, Appellees.
    No. 4D16-4154
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Frank B. Kessler, West Palm Beach, for appellant.
    No appearance for appellees.
   Per Curiam.

Affirmed. See Held v. U.S. Bank Nat’l Ass’n for C-Bass 2007-CB7 Tr., Mortg. Loan Asset-Backed Certificates, Series 2006-CB7, 217 So.3d 1039 (Fla. 4th DCA 2017); Turner v. FIA Card Servs., N.A., 51 So.3d 1242 (Fla. 3d DCA 2011); Fla. R. Civ. P. 1.420(e).

Warner, Gross and Taylor, JJ., concur.


text:
    R.J. REYNOLDS TOBACCO COMPANY; R.J. Reynolds Tobacco Company, As Successor By Merger To Lorillard Tobacco Company; and Philip Morris USA Inc., Appellants, v. John MCCOY, As Personal Representative of The Estate of Glodine McCoy, Appellee.
    No. 4D16-259
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]
    Val Leppert and William L. Durham II of King & Spalding LLP, Atlanta, Georgia; and Jeffrey S. Bucholtz of King & Spald-ing LLP, Washington, DC, for appellants R.J. Reynolds Tobacco Company and Lor-illard Tobacco Company.
    Geoffrey J. Michael of Arnold & Porter LLP, Washington, D.C., for appellant Philip Morris USA Inc,
    Celene H. Humphries, Thomas J. Seider, Philip J. Padovano and Maegen P. Luka of Brannock & Humphries,' Tampa; and Scott Schlesinger, Steven Hammer, Jonathan R. Gdanski and Brittany Chambers of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellee.
   Per Curiam.

The defendant tobacco companies, R.J. Reynolds Tobacco Company and Philip Morris USA Inc. (“the defendants”), appeal a final judgment in favor of John McCoy (“the plaintiff’) in a wrongful death action and raise three issues. The plaintiff cross appeals the same judgment, raising two issues. We reverse.

The defendants allege in their first issue that the Surgeon General’s Reports (“the Reports”) were erroneously admitted into evidence and improperly used to bolster expert opinions. As we recently concluded in Philip Morris USA, Inc. v. Pollari, No. 4D16-334, 228 So.3d 115, 2017 WL 3730347 (Fla. 4th DCA Aug. 30, 2017), the Reports are hearsay that are inadmissible as public records or adoptive admissions and may not be used to bolster the opinions of testifying experts. The admission and use of the Reports in the instant case was likewise erroneous. The extensive reliance on the Reports throughout trial renders it impossible for the plaintiff to meet his burden of showing that the error was harmless. See Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1256 (Fla. 2014) (holding that to prove harmless error, “the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict”). Because this issue is dispositive, we decline to analyze the remaining issues raised.

We therefore reverse and remand for a new trial. On remand, the plaintiff is free to seek leave from the trial court to add claims for punitive damages on his negligence and strict liability counts..

Reversed and remanded.

Gross, Ciklin and Klingensmith, JJ., concur.


text:
    Brian EHLERS, Appellant, v. CARRIAGE HILLS CONDOMINIUM, INC. and The City of Hollywood, Appellees.
    No. 4D16-1891
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]
    Jonathan Mann and Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Sharon 'C. Degnan of Kubicki Draper, Orlando, for appellee Carriage Hills Condominium, Inc.
    Laura K. Wendell and Elizabeth K. Cop-polecchia of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for appellee The City of Hollywood.
   Per Curiam.

Affirmed. See Arp v. Waterway E. Ass’n, 217 So.3d 117 (Fla. 4th DCA 2017).

Warner, Levine, JJ., and Buchanan, Laurie E., Associate Judge, concur.


text:
    Lajwhan D. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1047
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]
    Carey Haughwout, Public Defender, and Travis Dunnihgton, Assistant Public Defender, West Balm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

After being sentenced on various drug charges, appellant moved to withdraw his plea. The trial court denied his motion without an evidentiary hearing. We reverse and remand for an evidentiary hearing on the motion to withdraw a plea.

“Where a defendant files a facially sufficient motion to withdraw his plea, he is entitled to an evidentiary hearing on the issues unless the record conclusively refutes his allegations.” Woodly v. State, 937 So.2d 193, 196 (Fla. 4th DCA 2006).

One of the grounds of the amended motion to withdraw was appellant’s expectation that he would serve his sentence in a federal prison. At the end of the plea hearing, the defense attorney referred to an order “remanding [appellant] to federal custody so that he can begin his sentence.” The judge signed an order remanding appellant “to Federal Custody ... to serve his Federal sentence.” The judge sentenced appellant “concurrent with the federal sentence that’s already been imposed.” At the time appellant made his motion, he was still in state custody.

The state argues that service of the state sentence in a federal prison was not part of the plea agreement, but that fact is not apparent from the record. There was a sidebar discussion where the judge indicated that he could not guarantee that appellant would be. housed in a federal prison. Appellant was not present at the sidebar. Nothing in the record showed that the defendant was aware of the potential of serving his sentence in state prison and that he agreed to accept that risk in entering his plea.

Reversed and remanded.

Warner, Gross and Taylor, JJ., concur


author: " Per Curiam.'

text:
    COLLINS ASSET GROUP, LLC, Appellant, v. AURORA LOAN SERVICES, LLC, and Chris Albert, Appellees.
    No. 4D17-764
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]
    Alvaro Orozco of Pollack & Rosen, P.A., Coral Gables, for appellant. •
    Howard T.. Sutter of Sutter Maritime, LLC, Jacksonville, for appellees,'
   " Per Curiam.'

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1160 (Fla. 1979).

Levine, Forst and Kuntz, JJ., concur.


text:
    Jesse Cleveland HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1840
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]

      Jesse Cleveland Harrell, Cross.City, pro se.
    No brief filed for appellee.
   Per Curiam.

Jesse Cleveland Harrell timely appeals the summary denial of a rule 3.850 motion. Below the state responded that Harrell’s August 5, 2016, motion was untimely filed under rule 3.850 and his claims of score-sheet error did not demonstrate entitlement to relief under rule 3.800(a). The trial court denied the motion based upon the state’s response.

On appeal, the state acknowledges that the August 2016 motion was timely filed within two years after the Florida Supreme Court declined jurisdiction to review Harrell’s direct appeal in Harrell v. State, 173 So.3d 962 (Fla. 2015). See, e.g., Leighty v. State, 87 So.3d 1262 (Fla. 4th DCA 2012). Accordingly, we reverse the trial court’s order and remand for the court to reconsider whether appellant is entitled to relief under rule 3.850.

Gross, Taylor and May, JJ., concur.


text:
    Torrence SPELLS, Appellant, v. STATE of Florida, DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT O/B/O K’nykeria JOHNSON, T.E.S., a child, and T.M.S., Jr., a child, Appellees.
    No. 4D17-2332
    District Court of Appeal of Florida, Fourth District.
    [November 8, 2017]
    Torrence Spells, Boynton Beach, pro se.
    Pamela Jo Bondi, Attorney General, and Carrie R. McNair, Assistant Attorney General, for appellee K’nykeria Johnson.
   Per Curiam.

Affirmed. See Fla. R. App. P. 9.315(a).

Gerber, C.J., Gross and Levine, JJ., concur.


author: PER CURIAM. SUAREZ, C.J. SALTER, J.

text:
    W.B.A.V., a minor child, et al., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D16-1448
    District Court of Appeal of Florida, Third District.
    Opinion filed December 28, 2016.
    Catholic Charities Legal Services and Felix A. Montanez, for appellants.
    Karla Perkins, for appellee.

      Before SUAREZ, C.J., and LAGOA, and SALTER, JJ.
   PER CURIAM.

Affirmed.

SUAREZ, C.J., and LAGOA, J,, concur.

SUAREZ, C.J.

(concurring)

In light of prior case law from this Court and the absence of any ruling from the Florida Supreme Court, I am compelled to join in the affirmance of this case. See In the Interest of F.J.G.M., 196 So.3d 534 (Fla. 3d DCA 2016); D.A.O.L. v. Dep’t of Children & Families, 170 So.3d 927 (Fla. 3d DCA 2015); In re J.A.T.E., 170 So.3d 931 (Fla. 3d DCA 2015); M.J.M.L. v. Dep’t of Children & Family Servs., 170 So.3d 931, 932 (Fla. 3d DCA 2015); In re B.Y.G.M., 176 So.3d 290 (Fla. 3d DCA 2015); In re K.B.L.V., 176 So.3d 297 (Fla. 3d DCA 2015).

Nevertheless, I share the concerns of Judge Salter in his dissent and would hope this matter will be looked at by the Florida Supreme Court. I wholeheartedly agree with the policy and reasoning expressed by Judge Salter.

SALTER, J.

(dissenting).

I respectfully dissent. In this case, four undocumented orphans from El Salvador, W.B.A.V. (age 17 when the petition was filed), twins M.V.A.V. and F.A.A.V. (each age 15 at that time), and J.E.A.V. (age seven at- that time), petitioned for an adjudication of dependency under section 39.01(1-5)(e), Florida Statutes (2016). The petition was summarily denied “based on case law” following a brief non-evidentiary hearing.1 would reverse and remand this case to the trial court for an evidentiary hearing and individualized adjudication.

The Petition

With the assistance of a non-profit legal services provider, the four orphans filed a petition for an adjudication of dependency in May 2016. They alleged that their mother was murdered in their home in El Salvador on January 27, 2012, and that their father died from complications of diabetes on June 6, 2014. They attached official death certificates and certified translations to substantiate these facts.

The four children further alleged that, after moving among various relatives’ homes following their mother’s death, they were the subject of a petition for guardianship by their maternal aunt, Saira, which was granted by a family court in El Salvador. Thereafter, Saira and the four children were threatened with death by members of a violent gang, MS-13 or “Mara Salvatrucha,”,unless they paid $2,000.00 apiece for protection; this incident was reported to the police (and the report is attached to the petition), but to no avail. All five then fled to the United States border, where the children were separated from Saira and detained at an Office of Refugee Resettlement (ORR) shelter for unaccompanied children.

The petition alleges that the four children were released a month later to the physical care of their maternal uncle, Rafael, in Miami, and that Saira was released by an Immigration and Customs Enforcement detention center. The children petitioned for an adjudication of dependency based on section 39.01(15)(e), Florida Statutes (2016), applicable to' children who “have no parent or legal custodians capable of providing supervision and care.”

. At the hearing on the petition in May 2016, the Department of Children and Families (DCF) advised the trial court that the State was not- objecting to a determination of dependency. On appeal, however, DCF argues that the petition for dependency was correctly denied because of the guardianship order in El Salvador (though that order has not been recognized by a court in Florida or any other state).

After counsel for the children advised the trial court that all four children were living.with Saira and Rafael (the maternal aunt and uncle of all four children) in Miami following their .release by ORR, this collpquy ensued:

Court: Are the children in school?
Counsel: Yes, Your Honor.
Court: Doing well?
Counsel: I believe so, you can ask them.
Court': In need of any services or need anything at this time?
Counsel: Not at this time. What they are' in need of is for somebody, an ' adult, to have that legal custody document available. As it is, Saira was unable to pick up the children from school because they wouldn’t recognize the document from El Salvador.
Court": Okay, and again, we’ve had a lot of these bases recently and there’s been a lot of case law on' it as well, and it’s not that I don’t feel for what’s ' happened in these countries but case law has been very specific that this is not for immigration and/or other, purposes.

The trial court ultimately concluded that “you can go to probate court' and get a legal custodian issued for the aunt or uncle,” and that an adjudication of dependency would be denied “based on case law.” The court also denied an oral motion by counsel for the children for a home study “to make sure that the home is an appropriate place.” Following a motion for rehearing by the four children and the denial of that motion, a written order was entered denying the petition. This appeal followed.

Analysis

In In re T.J., 59 So.3d 1187 (Fla. 3d DCA 2011), this Court reversed an order summarily denying a similar petition brought by an immigrant child whose mother had died. T.J. was in the care of his aunt in Miami, but the record established that his aunt was not a “parent or legal custodian capable of providing supervision and care” under section 39.01(15)(e). Id. at 1190. The record in the present case does not disclose whether the family court in El Salvador conferred such rights on Sarai in Florida,‘and in fact the children’s petition in the Florida trial court alleged that “[t]he children do not have a judicial order recognizing the validity or legality of the foreign custody order in the United States, which is necessary for medical, educational, and legal purposes.”

“We review the summary denial of the amended petition under a de novo standard.” Id. at 1188. Applying that standard of review and our holding in In re T.J. to the children’s petition in the present case, we should reverse and remand the children’s prima facie case to the trial court for an evidentiary and adjudicatory hearing.

It also bears noting that many other cases involving unaccompanied immigrant children—frequently referred to as “special immigrant juvenile” or “SIJ” cases because of the designation used in federal immigration law' and recognized in a Florida statute—have been filed throughout Florida and the United States over the past few years. Appellate opinions regarding these cases have illuminated the policy differences regarding immigration and whether state dependency courts should “subordinate ourselves to the whim of the United' States Congress” when asked to consider such eases. The Florida Supreme Court has declined to decide one such ease on grounds of mootness (the immigrant juvenile became too old to be- declared dependent during the pendency of the appellate proceedings), but other unaccompanied immigrant cases are pending before that Court.

For the sake of brevity, I will rely upon my dissent in In re B.R.C.M., 182 So.3d 749 (Fla. 3d DCA 2015), as additional analysis applicable to the present ease and to this dissent. The order summarily denying the dependency petition filed by these four immigrant children should be reversed and remanded for an evidentiary hearing and the entry an adjudicative order containing specific findings.

For these reasons, I respectfully dissent.

      . The transcript of the hearing indicates that the colloquy and ruling lasted 13 minutes.

      . The U.S. Department of State "El Salvador Travel Warning” describes MS-13 and warns that "the current murder rate in El Salvador is among the highest in the world, an annual rate of 103.1 murders per 100,000 citizens for 2015. In comparison, the U.S. rate is 4.5 per 100,000.” https://travel.state.gov/conten1/ passports/en/alertswarnings/el-salvador-travelwarning.html (advisory last updated Jan. 15, 2016; site last visited Nov. 1, 2016).

      . See 8 U.S.C. § 1101(a) (27)(J).

      . Section 39.5075, Florida Statutes (2016).

      . In re K.B.L.V., 176 So.3d 297, 300 (Fla. 3d DCA 2015) (Shepherd, J., specially concurring).

      . O.I.C.L. v. Fla. Dep't of Children &Famiiies, 41 Fla. L. Weekly S405a, 2016 Fla. Lexis 2072 (Fla. Sept. 22, 2016). In an opinion dissenting from dismissal on grounds of mootness, Chief Justice Labarga observed that approximately 2,908 unaccompanied immigrant minors were released to sponsors in Florida in fiscal year 2015, and approximately 4,264 unaccompanied immigrant minors were released to sponsors in Florida as of July 2016. Slip op. at 8-9.

      .In re B.R.C.M. v. Fla. Dep't of Children and Families, Case No. SC16-179; In re E.P.N. v. Fla. Dep't of Children and Families, Case No. SC16-184; and In re S.A.R.D, v. Fla. Dep't of Children and Families, Case No. SC16-285.


author: SALTER, J.

text:
    Damon PHELAN, et al., Appellants, v. Michael Kevin LAWHON, et al., Appellees.
    Nos. 3D16-1858; 3D16-1838; 3D16-1675
    District Court of Appeal of Florida, Third District.
    Opinion filed March 29, 2017

      Mound Cotton Wollan & Greengrass and Lionel F. Rivera and Brooke D. Oransky (Fort Lauderdale) and Barry Temkin (New York, NY); Akerman LLP and Kathy M. Klock and Jonathan B. Butler (West Palm Beach); Greensfelder, Hemker & Gale and Donald D.' McBride and David W. Ybarra and Garrett C. Reuter, Jr. (St. Louis, MO), for appellants.
    Kozyak Tropin & Throckmorton and Charles W. Throckmorton and Vincent Alexander; Shapiro, Blasi, Wasserman and Aram C. Bloom (Boca Raton), for appel-lees.
    Before WELLS, ROTHENBERG and SALTER, JJ.
   SALTER, J.

These three consolidated appeals were commenced by fourteen of twenty defendants from a non-final circuit court order denying their motions to dismiss for lack of personal jurisdiction. We affirm the order of denial as to twelve of those defendants, reversing the order only as to two of the defendants, Marc R. Chenot and Kevin J. Haberberger.

I. The Third Amended Complaint

The Third Amended Complaint, referred to in this opinion as the “Complaint,” was brought by three plaintiffs (appellees here) against the fourteen defendant/appellees and six other Florida-resident or Florida-connected defendants. The underlying dispute involves individuals and companies alleged to have: severed affiliations . with plaintiff/appellee The Northwestern- Mutual Life Insurance Company (“NML”); wrongfully used confidential information regarding NML insureds and policies; “twisted” or “churned” NML’s insureds and policies; tortiously interfered with the appellees’ advantageous business relationships; and conspired as a group to engage in those activities in order to derive commissions from their new relationships with The Massachusetts Mutual Life Insurance Company (“Mass Mutual”). The other two plaintiffs are Michael Kevin Lawhon (“La-whon”), an NML general agent individually and through South Florida Group, LLC, a Florida LLC owned and operated by Lawhon.

The Complaint includes 230 numbered paragraphs in 92 pages of detailed allegations, sixteen separate causes of action, and 36 numbered exhibits comprising another 450 pages. The appellants filed motions to dismiss for lack of personal jurisdiction, together with affidavits in support of those motions. In addition, jurisdictional discovery was taken, and each side relies on answers to interrogatories, documents, and deposition testimony to support its position here.

II. Denial of the Motions; Three Separate Appeals

In July 2016, the trial court entered a ten-page omnibus order denying the various motions to dismiss the Complaint for. lack of personal jurisdiction..Three groups, a total of fourteen defendants, filed separate appeals and are represented by separate counsel in these -consolidated appeals,

A. Case No. 3D16-1675

' The ten "appellees in this appeal (the “Missouri-Illinois Defendants”), were agents and field managers for NML working primarily in St, Louis, Missouri, and nearby areas of Missouri and Illinois. Each of them left NML in 2014 and became agents of Mass Mutual working .under the direction of former NML general agent, and later Mass Mutual, general agent for the St. Louis area, appellee Damon Phelan (“Phelan”). Phelan (who has appealed individually in Case No. 3D16-1858, as detailed below) left NML and became the Mass Mutual general agent for that area in August 2013. The Complaint alleges that Phelan was responsible as general agent for reviewing the suitability" and marketing of the "Mass Mutual policies and products recommended by the Missouri-Illinois Defendants.

Each of the Missouri-Illinois Defendants, except Chenot and Haberberger, became, members of defendant Visionary Wealth Advisors, LLC (“VWA”),.a Delaware limited liability company authorized to conduct business in Florida. VWA’s officers and managing members include defendants and appellees (in consolidated Case No. 3D16-1838, also detailed, below) Brett G. Gilliland (“Gilliland”) and Timothy G. Hammett (“Hammett”). The Complaint alleges that VWA regularly conducts substantial business operations out of offices in Miami, St. Louis, and Edwardsville, Illinois. Two Florida-resident defendants, who did not seek dismissal for lack of. personal jurisdiction and thus are not ap-pellees here, Ricardo J, Ludert (“Ludert”) and Charles R. Downs, Jr. (“Downs”), also conduct VWA business from their office in Miami. - -

The Complaint alleges that Downs, also an NML agent for many, years, became a co-general agent for Mass. Mutual in. Miar mi shortly after Phelan and other defendants left NML. The Complaint also alleges that Downs breached NML regulations applicable to him under his contract by copying, electronically and physically, trade secrets of NML regarding hundreds' of NML policyholders, before his July 2014 termination. The Complaint further alleges that Missouri-Illinois Defendants Clinard, Fox, Jones, and Scott Vieregge also copied and stole electronic and physical copies of such trade secrets before their respective termination dates with NML.

B. Case No., 3D16-1838

Three defendants are-the appellees in this consolidated appeal—Gilliland, Hammett, and Gilliland Hammett Capital Management, LLC (“GHCM”). Gilliland/a resident of Illinois, is the chief executive officer and a managing member of VWA, which does business in- Florida, as already noted. Hammett, a resident of Missouri, is the president and á managing member of VWA. GHCM is a Missouri LLC and is also a managing member of VWA.

Gilliland, Hammett, and GHCM are alleged to have done business in Florida and engaged in a conspiracy with Florida-based defendants including VWA. Gilliland and Hammett were NML agents who terminated their contracts and left NML within months after Phelan and the Miami-based defendants did the same, with each becoming agents for Mass Mutual and Phelan. The Complaint alleges that Hammett also improperly acquired from NML, and disseminated, trade secret and other confidential data in order to further his wrongful activities as a Mass Mutual agent.

C. Case No. 3D16-1858

Phelan is the only appellee in this third of the three consolidated appeals. The Complaint alleges that he was an NML agent and general agent for 23 years, until mid-2013; that he left NML and became a general agent for Mass Mutual in August 2013; that he recruited NML agents in 2014 to join Mass Mutual for his own benefit; that Florida resident defendant. Downs was one such agent, with Downs’ improper sales of Mass Mutual products for replacement of NML insurance products approved by Phelan; and that Phelan also established a satellite Mass Mutual agency in Tallahassee, Florida.

III. Analysis

A. Standard of Review and Issues for Review

Our review of the order denying the non-Florida residents’ motions to dismiss for lack of jurisdiction is de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla. 2002). We consider two inquiries in each of the consolidated cases. The first is governed .by Florida’s long-arm statute, section 48.193, Florida Statutes (2015), and the process detailed in Venetian Salami v. Parthenais, 554 So.2d 499 (Fla. 1989). “Because this case arises from a motion to dismiss for lack of personal jurisdiction, we derive the facts from the affidavits in support of the motion to dismiss, and the transcripts and records submitted in opposition to the motion to dismiss.” Wendt, 822 So.2d at 1254. The second inquiry is also .described in Venetian Salami and Wendt, but addresses the requirement that the defendants’ activities satisfy the “minimum contacts” test under the United States Constitution.

Importantly, the Supreme Court of Florida has held that “telephonic, electronic, or written communications into -Florida may form the basis for personal jurisdiction under section 48.193(1)(b) if the alleged cause of action arises from the communications,” Wendt, 822 So.2d at 1260, and that “[t]here is no question that physical ¡presence is not necessarily required to satisfy the constitutionally mandated requirement of minimum contacts,” Id. at 1257-58.

In addressing allegations that a non-resident defendant committed a tort in Florida through acts and communications directed into the state from outside Florida, “[t]he appropriate inquiry is whether the tort as alleged occurred in Florida, and not whether the alleged tort actually, occurred.” Machtinger v. Inertial Airline Servs., Inc., 937 So.2d 730, 734 (Fla. 3d DCA 2006).

B. Conspiracy

The allegations and Counts of the Complaint relating to a conspiracy among the Florida defendants and the non-resident defendants are dispositive in the present ease. The trial court’s closely-reasoned order aptly summarized the matter:

The heart of this matter is the alleged civil conspiracy to commit tortious acts which has targeted and damaged the Plaintiffs and injured clients within the State of Florida. Pursuant to the allegations, the conspiracy’s' main focus ■ was the recruitment of insurance sales agents and the improper replacement of insurance policies.

A series of Florida cases has found personal jurisdiction over non-resident defendants engaged in conspiracies that include tortious or statutorily-prohibited actions as against Florida residents. In Execu-Tech Business Systems, Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582 (Fla. 2000), non-Florida residents having no actual physical presence in Florida were haled into a Florida court based on allegations that they conspired to fix wholesale and retail prices of thermal fax paper throughout the United States, including Florida, in violation of thes' Florida Deceptive and Unfair Trade Practices Act. In Machtinger, a non-resident defendant was alleged to have directed fraudulent misrepresentations to the plaintiffs officers in Florida, and to have conspired with other non-resident defendants in doing so. This Court found personal jurisdiction over the defendant under the long-arm statute and minimum contacts based on Wendt. Machtinger, 937 So.2d at 736 (“Directing a conspiracy toward Florida establishes sufficient minimum contacts to satisfy due process. Wendt, 822 So.2d at 1259.”).

Similarly, in NHB Advisors, Inc, v. Czyzyk, 95 So.3d 444 (Fla. 4th DCA 2012), it was alleged (as here) that a non-resident defendant participated in a conspiracy with corporate officers based in Florida, in breach of the officers’ fiduciary duties, to (a) obtain and use confidential information, and (b) hire away key corporate employees, in order to compete with the corporation. The Fourth District reversed an order dismissing the complaint for lack of personal jurisdiction:

Moreover, if a plaintiff has successfully alleged a cause of action for conspira-'ey among the defendants to commit tor-tious acts toward the plaintiff, and if the plaintiff has successfully alleged that any member of that conspiracy committed tortious acts in Florida in further-anee of that conspiracy, then all of the conspirators are subject to the jurisdiction of Florida through .its long-arm statute.

Id. at 448 (emphasis provided).

The allegations in the Complaint regarding conspiracy meet the requirements of Florida law as to all but two of the Missouri-Illinois Defendants, Chenot and Haberberger. “A civil conspiracy requires: (a) an agreement between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts done under the conspiracy.” Raimi v. Furlong, 702 So.2d 1273, 1284 (Fla. 3d DCA 1997). The alleged conspiracy must demonstrate “an actionable underlying tort or wrong,” and that independent tort or wrong must “constitute a cause of action if the wrong were done by one person.” Id. (quoting Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So.2d 949, 951 (Fla. 3d DCA 1984)).

In the present case, the allegations in the Complaint include evidence that the Florida-based defendants joined Phelan’s migration from NML to Mass’ Mutual, along with Gilliland, Hammett, and GHCM; and that all appellees except Phe-lan, Chenot, and Haberberger were officers, managing members, or members of VWA. The plaintiffs alleged that VWA was used as an ostensibly independent advisor to recommend Mass Mutual insurance and investment products to replace NML products in violation of applicable regulatory prohibitions against twisting and churning.

The Complaint also alleges that Phelan signed another NML agent based in Florida, non-party Tyler Huston, as a Mass Mutual agent under Phelan’s supervision. Following the recruitments of NML agents on behalf of Mass Mutual, reliance on VWA, use of improperly removed trade secrets regarding NML insureds and then-policies, and wrongful interference with NML. insureds and business, the Complaint alleges extraordinary financial success by the collaborators and co-conspirators. The Complaint includes affidavits and statistical compilations showing volumes of replacement activity (NML products replaced with Mass Mutual policies, with the defendants in their new Mass Mutual roles) that far exceed historical Mass Mutual percentages. Indeed, Mass Mutual’s own compliance monitoring through replacement exception reports (disproportionate replacement volume versus new-policy sales) picked up the anomalies.

C. Appellants Chenot and Haberberger

The issue is only close with respect to two of the Missouri-Illinois Defendants in Case No. 3D16-1675, Chenot and Ha-berberger. Neither is affiliated with Florida-based VWA, according to the record before us, and neither is specifically alleged to have been in active concert with other defendants in the wider conspiracy that included actors, trade secrets, or policyholders in Florida. For example, the allegations and exhibits relating to Chenot and Haberberger list replacement policies in Illinois, Missouri, Arkansas, Georgia, and Alabama, but none in Florida.

Arguably, though without expressing any opinion as to the law of those jurisdictions, there might be local claims of tor-tious interference or regulatory violations as to Chenot or Haberberger outside Florida. The allegations in the Complaint, however, do not specifically link those two defendants to the multi-state conspiracy (and to the resident and non-resident co-conspirators) relied upon by the trial court to uphold personal jurisdiction in the present Florida lawsuit. Accordingly, in Case No. 3D16-1675, we reverse the non-final order under review insofar as it denies dismissal for lack of personal jurisdiction as to.appellants Chenot and Haberberger.

D. Corporate Shield

The final issue warranting consideration is the argument by Gilliland, Hammett, and GHCM (Case No. 3D16-1838) that “Florida’s corporate shield’ doctrine prevents a finding that personal jurisdiction exists in Florida” as to each of them, citing Doe v. Thompson, 620 So.2d 1004, 1006 (Fla. 1993). The argument fails, however, based, on the exception identified in Doe itself, as reiterated in a more recent opinion by the Supreme Court of Florida:

An exception to the corporate shield doctrine limits the scope of the doctrine’s protection. Specifically, a corporate officer who commits fraud or other intentional misconduct outside of Florida may be subject to personal jurisdiction. See Doe, 620 So.2d at 1006; Oesterle v. Farish, 887 So.2d 412 (Fla. 4th DCA 2004).

Kitroser v. Hurt, 85 So.3d 1084, 1088 n.3 (Fla. 2012).

Gilliland, Hammett, and GHCM may not claim the benefit of the corporate shield doctrine, in light of the unrebutted allegations of intentional misconduct against each of them.

IV. Conclusion

Regarding Case No. 3D16-1675, we affirm the trial court’s Omnibus Order Denying Defendants’ Various Motions to Dismiss. the Third Amended Complaint for Lack of Jurisdiction (“Order”) as to all of the appellants except Marc R. Chenot and Kevin J, Haberberger. As to those two appellants, we direct the trial court to dismiss Chenot and Haberberger for lack of personal jurisdiction.

Regarding Case No. 3D16-1638, we affirm the Order in all respects and as to all three appellants: Brett G. Gilliland, Timothy G. Hammett, and Gilliland Hammett Capital Management, LLC. Regarding Case No. 3D16-1858, we affirm the Order in all respects as to appellant Damon Phe-lan.

Affirmed in part; reversed in part.

      ."Twisting” refers generally to "the making of misrepresentations or misstatements of facts or incomplete comparisons of policies for the purpose of inducing the surrender of insurance in one company and the taking of insurance in another.” Steven Plitt et al., Couch on Ins. § 55:21 (3d ed. Dec. 2016). "Churning” describes acts of ”[e]ngaging an account in excessive trading for the purpose of producing commissions rather than acting on behalf of one’s client.” Hayden, Stone, Inc. v. Brown, 218 So.2d 230, 235 (Fla. 4th DCA 1969). The terms are defined more particularly, and such conduct is proscribed, in sections 626.9541(1X0 (twisting) and 626.9541(1)(aa) (churning), Florida Statutes (2016).

      . Mass Mutual itself is not a defendant’.

      . The defendants filed motions to dismiss the Complaint for failure to state a cause of action, all of which were denied in a separate order. The order denying those motions is not presently appealable.

      . Marc R. Chenot; Daniel W. Clinard; Richard M. Collop; Jeffrey C. Fox; Kevin J. Haberberger; Ronald G. Jones, Jr.; Tyler Niermann; Joseph Reiniger; Mia Vieregge; and Scott Vieregge. Haberberger's contract with Mass Mutual was- terminated in March 2016, six months after the plaintiffs filed their circuit court lawsuit in Miami.

      . One of Phelan’s two affidavits in support of dismissal of the Complaint disputed that hé (individually) has a place of business in Florida, but he conceded that "one of the MassMu-tual [sic] agents currently under my supervision is located in Tallahassee and I maintain a Florida securities license so that I can supervise that agent

      . Section 48.193(1)(b) has since been -renumbered section 48.193(1)(a)2, Florida Statutes (2015).

      . Because pretrial discovery has been limited to jurisdictional issues, the plaintiffr'appellees have not yet had an opportunity to delve into many particulars regarding the replacement activity. The disproportionate volume of replacement activity, however, is circumstantial evidence that corroborates the possession of confidential information and concerted activity by the defendants. "The existence of a conspiracy and an individual’s participation in it may be inferred from circumstantial evidence.” Donofrio v. Matassini, 503 So.2d 1278, 1281 (Fla. 2d DCA 1987).


author: LUCK, J.

text:
    Laguan WARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-2176
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017
    Laguan Ward, m proper person.
    Pamela Jo Bondi, Attorney General,' for appellee.
    Before SALTER, FERNANDEZ and LUCK, JJ.
   LUCK, J.

■Laguan Ward appeals the trial court’s order prohibiting him from filing further pro se motions without a member of the Florida Bar certifying that they are in good faith. The trial court’s order was rendered on August 4, 2016. Ward’s notice of appeal was placed in the Calhoun Correctional Institution’s mailbox on September 16, 2016. The rules of appellate procedure, however, “requir[e] the filing of a notice of appeal within 30 days froni the rendition of the order to be reviewed.” Harris v. State, 88 So.3d 167 (Fla. 3d DCA 2012) (citing Fla. R. App. P. 9.140(b)(3)). This requirement' is jurisdictional, and the failure to file a timely notice compels us to dismiss the appeal. See Dominguez v. State, 197 So.3d 1199-200 (Fla. 3d DCA 2016) (“We dismiss- the appeal for lack of jurisdiction because the notice of appeal was not timely filed. The order on appeal was rendered on September 16, 2015, and Appellant’s notice of- appeal was filed .on October 19, 2015, more than thirty days past the date of rendition. Accordingly, because this Court lacks-jurisdiction, we dismiss this appeal as untimely.” (footnote omitted)). That is what we must do here.

Appeal dismissed.

      . Ward did not file a motion that would have pushed back the rendition date of the August 4 order, See Fla. R. App. P. 9.020(i) (listing motions that affect rendition).


author: PER CURIAM,

text:
    Ernest COLEMAN, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-2015
    District Court of Appeal of Florida, First District.
    Opinion filed September 20, 2017
    Rehearing Denied November 21, 2017
    Ernest Coleman, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM,

DISMISSED. See Fla. R. App. P. 9.110(b) (notice of appeal must be filed within 30 days of rendition of order to be appealed).

RAY, BILBREY, and WINSOR, JJ„ CONCUR. -


author: PER CURIAM.

text:
    Gerardo CASTIELLO, Petitioner, v. FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS; Florida Office of the Judges of Compensation Claims; and Florida Statewide Nominating Commission for Judges of Compensation Claims, Respondents.
    CASE NO. 1D17-2722
    District Court of Appeal of Florida, First District.
    Opinion filed October 11, 2017.
    Rehearing Denied November 8, 2017
    David M. Calderilla of de la Parte & Gilbert, P.A., Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Jonathan A. Glogau, Chief, Complex Litigation, Tallahassee, for Respondents.
   PER CURIAM.

Gerardo Castiello petitioned this court for writ of mandamus (1) to compel the Division of Administrative Hearings (DOAH) to assign an administrative law judge in his two pending administrative cases—a section 120.57(1), Florida Statutes, case and an unadopted rule challenge case—and (2) to compel the Ofñcé of Judges of Compensation Claims (OJCC) to take action on the petition to initiate rule-making he filed under section 120.54(7), Florida Statutes. Subsequent to the filing of the mandamus petition, DOAH’s chief judge designated a hearing officer to preside over Castiello’s cases pursuant to section 120.65(5), Florida Statutes, and OJCC published a notice of rule development on the subject of Castiello’s petition to initiate rulemaking. Based on these actions, we dismiss the mandamus petition as moot. See Ward v. State, 770 So.2d 206 (Fla. 1st DCA 2000) (dismissing mandamus petition as moot where trial court ruled on the pleading that was the subject of the petition); Lund v. Dep’t of Health, 708 So.2d 645, 646-47 (Fla. 1st DCA 1998) (rejecting argument that court should decide moot appeal on the merits simply because appellant might be entitled to an award of attorney’s fees if the appeal was successful); Montgomery v. Dep’t of Health & Rehab. Servs., 468 So.2d 1014, 1016 (Fla. 1st DCA 1985) (“A case becomes moot, for purposes of appeal, where by a change of circumstances prior to the appellate decision, an intervening event makes it impossible for the court to grant a party any effectual relief.”).

DISMISSED.

WETHERELL, MAKAR, and WINOKUR, JJ., CONCUR.


text:
    GOLISTING.COM, INC., d/b/a Palm Beach Premier Real Estate, a Florida Corporation, Appellant, v. John PAPERA, Individually, and Christine Papera, Individually, Appellees.
    No. 4D16-378
    District Court of Appeal of Florida, Fourth District.
    October 11, 2017

      Stephen J. Padula and Joshua Widlan-sky of Padula Bernardo Levine, LLP, Boca Raton, for appellant. ' • ■
    Aaron M. Cohen of Aaron M. Cohen, P.A., Delray Beach, for appellees.
   Klingensmith, J.

In this dispute involving a real estate sales commission in which appellant GoL-isting.com, Inc. d/b/a Palm Beach Premier Real Estate (“PBPRE”) prevailed at trial, PBPRE appeals the trial court’s refusal to enforce its pretrial settlement proposal. Concurrently, appellees, John Papera and Christine Papera, ask this Court to reverse the trial court’s denial of their motion for stímmary judgment. We affirm the trial court’s denial of summary judgment without comment, but reverse the court’s order denying attorney’s fees because PBPRE’s proposal was not' ambiguous,

PBPRE filed a lawsuit against the Pap-eras, alleging that the Paperas failed “to tender the required real estate commission from the sale of the Paperas’ property.” The jury ultimately returned a verdict in favor of PBPRE for $51,000.

PBPRE moved for attorney’s fees and costs, arguing that it was entitled to attorney’s fees because the Paperas rejected PBPRE’s settlement proposals. The proposal sent to Mr. Papera contained the following provisions:

1, This Proposal for Settlement (the “Proposal”) is being made by the Plaintiff, PBPRE, to the Defendant, John Papera.
2. This Proposal, if accepted, is intended to terminate the litigation in its entirety, as it pertains to PBPRE’s claims against Defendants. Specifically, this Proposal is intended to resolve all claims in this •action asserted by PBPRE against Defendants.
8. The total amount qf the Proposal is Forty Thousand Dollars ($40,000.00) tq be paid by Defendant John Papera to PBPRE.
4. The relevant conditions and particular terms of this Proposal are as follows: John Papera shall pay the amount stated above in paragraph 3 to PBPRE. Upon PBPRE’s receipt of said payment, PBPRE--shall file a stipulation for voluntary dismissal with prejudice of all counts asserted by PBPRE against Defendants within ten (10) ‘days.

After the first sentence in paragraph two, PBPRE provided the following footnote:

An .identical Proposal for Settlement has been proposed to Defendant Christine Papera. Therefore, if either Defendant accepts their Proposal, PBPRE will ter-, mínate the litigation in- its entirety, as it pertains.to both Defendants. Put another way, if Defendant John' Papera ' accepts this Proposal, PBPRE will dismiss its claims against both John and Christine Papera. Therefore, it should be clear to both Defendants that PBPRE is not seeking $40,000.00 from each Defen-' dant, but is .instead seeking a total of $40,000.00 from both Defendants. .In the unlikely event that both Defendants timely accept and tender the $40,000.00 to Plaintiff, then Plaintiff shall return $20,000.00 to each Defendant.

As indicated, a separate proposal was sent to Mrs. Papera that was identical to the proposal sent to her husband, except that it was directed specifically to Mrs. Papera.

The Paperas argued below that the court should deny PBPRE’s motion for attorney’s fees because PBPRE “failed to apportion the settlement amount to each Defendant as required by Florida Rule of Civil Procedure 1.442(c)(3).” They argued that even though' PBPRE sent multiple proposals, the proposals were an improper joint proposal because they were identical and failed to apportion the amount so that the Paperas could independently evaluate the offers.

The trial court agreed and denied the motion for fees, ruling that PBPRE failed to apportion the $40,000 settlement offer between John. Papera and Christine Pap-era. This appeal followed.

“The standard of review in determining whether a proposal for settlement is ambiguous is de novo.” Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So.3d 348, 353 (Fla. 4th DCA 2011).

Florida’s offer of judgment statute, section 768.79, Florida Statutes (2013), and the rule implementing it, Florida Rule of Civil Procedure 1.442, are intended to reduce litigation costs by encouraging settlement. Kuhajda v. Borden Dairy Co. of Alabama, 202 So.3d 391, 395 (Fla. 2016). They act as a sanction against a party who rejects a reasonable settlement offer. Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 372 (Fla. 2013). They are also “in derogation of the common law rule that parties are responsible for their own attorney’s fees, and thus the statute and rule must be strictly construed.” Campbell v. Goldman, 959 So.2d 223, 226 (Fla. 2007).

Settlement proposals must “be as specific as possible, leaving no ambiguities so that the recipient can fully evaluate its terms and conditions.” Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002). Although settlement proposals should be unambiguous, “[rule 1.442] does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006). “Therefore, parties should not ‘nit-pick’ the validity of a proposal for,settlement based on allegations of ambiguity unless the asserted ambiguity could ‘reasonably affect the offeree’s decision’ on whether to accept the proposal for- settlement.” Carey-All Transp., Inc. v. Newby, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008) (quoting Nichols, 932 So.2d at 1079)).

Rule 1.442(c)(3) provides that “[a] proposal may be made by or to any party or parties and by or to any. combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.” “The purpose of the apportionment requirement in the rule is to allow, each offeree to evaluate the terms and the amount of the offer as it pertains to him or her.” Pratt v. Weiss, 161 So.3d 1268, 1272 (Fla. 2015).

Here, there was sufficient apportionment .set - forth under the terms of PBPRE’s settlement proposal.. The wording made it clear that the offer to settle was $40,000. Both defendants were adequately apprised of the amount needed to accept their respective offers. The conditions became effective only after acceptance. If one defendant accepted the proposal but the other did not, PBPRE would consider the case'settled and dismiss the action against both defendants. The-footnote also explained, that PBPRE would provide a refund if the codefendant accepted the same offer. However, neither condition made the offer to either party ambiguous. The provision, for a potential refund does, not negate that there was an apportionment of the joint settlement proposal between the parties. In sum, the Paperas decided, either jointly or separately, to reject PBPRE’s settlement proposal for $40,000. Therefore, they are liable for attorney’s fees under section 768.79 and rule 1.442.

Affirmed in part and reversed in part.

Conner and Forst, JJ., concur.


text:
    Sandra Trujillo NORTH and Philip Douglas North, Appellant, v. WELLS FARGO BANK, N.A., Appellee.
    No. 4D16-1960
    District Court of Appeal of Florida, Fourth District.
    October 11, 2017
    Kenzie N. Sadlak of Kenzie N. Sadlak, PA, Miami, for appellant.
    . Michele L. Stocker of .Greenberg Trau-rig, P.A., Fort Lauderdale, and Kimberly S. Mello, Laura J. Bassini, and. Joseph Pieone of Greenberg Traurig, P.A., Tampa, for appellee. ■
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).

Damoorgian, Conner and Forst, JJ., concur.


text:
    James Eddie YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1850
    District Court of Appeal of Florida, Fourth District.
    October 11, 2017
    James Young, Miami, pro se.
    No brief filed for appellee.
   Per Curiam.

In this appeal from the denial of his Florida Rule of Criminal Procedure 3.800(a) motion, James Young challenges his life sentence for a second degree murder committed while he was a juvenile in 1975. He argues that the sentence is illegal because the maximum sentence for second degree murder, a first degree felony punishable by life, was equivalent to the" maximum sentence for a life felony. See § 775.082(3)(b), Fla. Stat. (1975) (providing that certain aggravated first degree felonies are punishable by “a term of years not exceeding life imprisonment”); § 775.082(3)(a), Fla. Stat. (1975) (providing that a life felony is punishable by “a term of imprisonment for life or for a term of years not less than 30.”).

We have held that where the maximum penalty for a lesser offense is greater than the maximum penalty for a more severe offense, the Eighth Amendment principle of proportionality is violated. See Peters v. State, 128 So.3d 832, 851-55 (Fla. 4th DCA 2013) (holding that a “statutory anomaly” that-existed between October 1, 1983 and July 1, 1995, arising from the application of the decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), violated the Eighth Amendment because a juvenile who committed a non-homicide life felony could not be sentenced to more than forty years in prison, while a juvenile who committed a first degree felony punishable by life could be given a sentence well above forty years).

However, it does not follow that the maximum penalty for two classes of offenses cannot be equivalent. We rejected this notion in Peters by holding that juvenile defendants convicted of aggravated first degree felonies committed during the relevant time period should be subject to the same maximum penalty as juveniles convicted of non-homicide life felonies committed during the same period, i.e., not more than forty years in prison. 128 So.3d at 855. We explained that Peters’ ninety-nine-year sentence was unconstitutional because he “would have been better situated had he committed a life felony, a more serious crime under the legislative framework, than the [aggravated first degree felonies] he committed.” Id.

Accordingly, Young’s argument that his life sentence for a first degree felony punishable by life is illegal because he would have been subject to the same penalty if he had committed a life felony is meritless.

Affirmed.

Damoorgian, Forst and Kuntz, JJ., concur.


author: PALMER, J.

text:
    ORANGE COUNTY, FLORIDA, Appellant, v. FLORIDA ASSOCIATION FOR CONSTITUTIONAL OFFICERS, INC., Bill Cowles, Orange County Supervisor of Elections and Nicholas Shannin, Appellee.
    Case No. 5D17-252
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 13, 2017
    Rehearing Denied November 15, 2017

      Jeffrey J. Newton, County Attorney, and‘'William C. Turner, Assistant County Attorney, Orlando, for Appellant.
    Gigi Rollini and Robert J. Telfer, III, April Caminez-Bentley and Mark Herron, of Messer Caparello, PA, Tallahassee, for Appellee, Florida Association for Constitutional Officers, Inc.
    Nicholas A. Shannin, of Shannin Law Firm, P.A., Orlando, for Appellees, Bill Cowles, Orange County Supervisor of Elections.
    No appearance for Appellee, Nicholas Shannin.
   PALMER, J.

, -Orange County (the County) appeals the trial court’s order staying implementation and enforcement of certain amendments to the County’s Charter (the Charter) as requested in an -emergency motion of the Florida Association for Constitutional Officers Inc., (the Association)., Because the trial court’s order constitutes, a temporary injunction without. notice and the, trial court failed to meet the requirements for the entry of such an order, we reverse.

In the 2016 general election, the County’s voters approved certain amendments to the Charter which abolished the constitutional offices of sheriff, tax collector, property appraiser, supervisor of elections, and clerk of the circuit court, and transferred their duties to nonpartisan, term-limited, charter offices. Additionally, the amendments conferred upon the charter officers the right to sue or be sued, and exempted them from the uniform budget process.

The Association filed a four-count complaint seeking a declaration that the amendments were unlawful and a permanent injunction barring their implementation and enforcement. The Association also filed an emergency motion requesting an immediate, temporary stay of the amendments “to protect the status quo” and to ensure that the court ultimately would have the opportunity to order meaningful relief in its disposition of the case.

The trial court, without notice or a hearing, entered an order granting the Association’s emergency motion. In its entirety, the order provides:

THIS MATTER came on before the Court, on the [Association’s] Motion for Immediate, Temporary Stay and the Court being fully advised in the premises, it is
ORDERED AND ADJUDGED as follows:
The motion is hereby Granted. Implementation and enforcement of Charter Amendments described therein are STAYED until further hearing and order of this Court:'

This appeal timely followed,

At the outset, we reject the Association’s argument that we lack jurisdiction to review the challenged order. Rule 9.130(a)(3)(B) of the Florida Rules of Appellate Procedure authorizes .the district courts-of appeal to review non-final orders that “grant, continue, modify, or dissolve injunctions.” Pursuant to this rule, district courts have the authority to review orders that, although not labeled an. injunction, grant injunctive relief. See City of Sunny Isles Beach v. Temple B’Nai Zion, Inc., 43 So.3d 904, 906 (Fla. 3d DCA 2010); Cone v. Anderson, 944 So.2d 1073, 1074 (Fla. 1st DCA 2006). Here, the trial court’s order barred the County from implementing and enforcing the Charter amendments until further order of the court and, thus, constitutes a non-final order granting injunction relief. See Cone, 944 So.2d at 1074. Accordingly, we have jurisdiction.

On the merits, the County argues that the trial court’s order fails to comply with the provisions of rule 1,610 of the Florida Rules of Civil Procedure. We agree, “If the language of an order is injunctive in nature, the order must comply with the requirements ... [of this rule].” Id. In part, rule 1.610 provides:

Rule 1.610. Injunctions

(a) Temporary Injunctions.

(2) .; Every temporary: .injunction granted without notice shall be endorsed with the date and hour of entry and shall be filed forthwith in the clerk’s office and shall define the injury, state findings by, the court why the injury may be irreparable, and give the reasons why the order was granted without notice .... ■ .
(b) Bond, No. temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper .....

Here, the trial court’s order does not include the findings required by rule 1.610(a)(2). See Beatty v. Aher, 995 So.2d 595, 596 (Fla. 5th DCA 2008) (reversing temporary injunction without notice because it failed to comply with rule 1.610(a)(2)). Nor does the order require the Association to post, a bond. See Forrest v. Citi Residential Lending, Inc., 73 So.3d 269, 279 (Fla. 2d DCA 2011) (“An injunction is defective if it does not require the movant to post a bond.”). Accordingly, we reverse and remand for further proceedings. We. do.not reach the other arguments raised by the County. .

REVERSED and REMANDED.

EVANDER and LAMBERT, JJ., concur.

      . See Art. VIII, § 1(d), Fla. Const.

      . See State v. Beeler, 530 So.2d 932, 934 (Fla. 1988) (“After a trial court issues a temporary injunction [without notice], a. defendant, has two options. He may question the lack of prior notice by immediately appealing the injunctive order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B), or he may file a motion. to dissolve- with the ’ trial court.”).

      , Contrary to the Association's assertions, "the lower court’s compliance with the requirements of law'when issuing an injunction is a matter within the purview of a reviewing court.” United Farm Workers of Am., AFL-CIO v, Quincy Corp., 681 So.2d 773, 776 (Fla. 1st DCA 1996).


text:
    Arnulfo RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2104
    District Court of Appeal of Florida, Fourth District.
    October 18, 2017
    Arnulfo Ramirez, Florida City, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed, without prejudice to appellant’s right to seek any relief available with the Department of Corrections regarding enforcement of the 2008 sentencing order, and after exhaustion of administrative remedies, to seek mandamus relief in the circuit court if appropriate. Cooper v. State, 186 So.3d 1115 (Fla. 4th DCA 2016).

Ciklin, Conner and Forst, JJ., concur.


text:
    Mario BABROW, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-2904
    District Court of Appeal of Florida, Fourth District.
    October 18, 2017
    Mario Babrow, South Bay, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. Galindez v. State, 955 So.2d 517, 521-22 (Fla. 2007) (recognizing that a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), can be harmless).

Gerber, C.J., Taylor and Conner, JJ., concur.