author: Conner, J.

text:
    DEUTSCHE BANK NATIONAL TRUST COMPANY, Solely as Trustee for Harborview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-6, Appellant, v. Adrian M. APPLEWHITE and Anika O. Johnson, Appellees.
    No. 4D15-4512
    District Court of Appeal of Florida, Fourth District.
    [March 22, 2017]

      Kimberly S. Mello and Jonathan S. Tan-nen of Greenberg Traurig, P.A., Tampa, and Patrick G. Broderick of Greenberg Traurig, West Palm Beach, for appellant.
    Mark H. Klein and David Jay Bernstein of Law Office of David Jay Bernstein, PA, Deerfield Beach, for appellees.
   Conner, J.

Appellant, Deutsche Bank National Trust Company, Solely as Trustee for Har-borview Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-6 (“the Bank”), appeals the order granting an involuntary dismissal at trial and the order denying its motion for rehearing and new trial. The Bank argues that the trial court erred in determining that it did not have standing to file suit and in sustaining objections to various business records it attempted to introduce at trial. Appellees, Adrian M. Applewhite and Anika O. Johnson (“the Homeowners”), concede error on the trial court’s refusal to admit business records, but argue that the involuntary dismissal for lack of standing was correct. However, because the trial court did not have the benefit of our decision in Ortiz v. PNC Bank, National Ass’n, 188 So.3d 923 (Fla. 4th DCA 2016), the trial court unfortunately erred in granting an involuntary dismissal. Thus, we reverse and remand for further proceedings.

Factual Background and Trial Court Proceedings

The Bank filed its foreclosure complaint against the Homeowners, alleging that it held the note and mortgage and that it had acquired the loan prior to the filing of the complaint. The complaint was verified by an authorized officer of GMAC Mortgage LLC, as servicer and attorney-in-fact for the Bank. Attached to the complaint was a copy of the note, which reflected that the original lender was Novastar Mortgage, Inc., and which also contained a blank indorsement from Novastar.

The Homeowners filed their amended answer raising standing as an affirmative .defense.

The matter proceeded to a nonjury trial. The Bank’s trial witness was a senior loan analyst employed by the current servicer of the loan, Ocwen Loan Servicing. The witness testified that Ocwen acquired the prior servicer, GMAC, after the complaint was filed in this case and that GMAC’s servicing platform was fully integrated into Ocwen’s system. She also testified to the boarding process that took place on the subject loan. The witness testified that, having boarded the subject loan and found the loan documents to be accurate, Ocwen was now using those documents in its day-to-day operations.

With respect to the original note, the witness testified that it contained a blank indorsement from the original lender and confirmed that it was identical to the copy of the note attached to the complaint. The original note was admitted into evidence without objection.

Throughout the trial, the trial court seemed confused as to GMAC’s role in the subject case. Despite the fact that it was the Bank that filed suit on its own behalf, the trial court seemed concerned that there was no document reflecting GMAC’s authority to file the suit. However, GMAC did not file the suit as the plaintiff, but instead, merely verified the complaint as the servicer and attorney-in-fact.

After the Bank rested, defense counsel moved for an involuntary dismissal, arguing that standing had not been proven. The Bank’s counsel argued that standing had indeed been proven where a copy of the note with the blank indorsement from the original lender had been attached to the complaint, and the original note, which was identical to that copy, had been filed with the court. Counsel added that there had been no evidence to the contrary.

Nevertheless, the trial court granted the Homeowners’ motion for involuntary dismissal and entered a final judgment in their favor. The trial court noted that it did not think there was evidence with regard to the authority of GMAC to act as the attorney-in-fact. The trial court denied the Bank’s motion for rehearing and new trial, noting again that it had failed to present evidence of GMAC’s authority to act as attorney-in-fact at the time of the filing of the complaint. Subsequently, the Bank gave notice of appeal.

Appellate Analysis

Our review of an involuntary dismissal after the presentation of the plaintiffs case during trial is de novo, Deutsche Bank Nat’l Tr. Co. v. Huber, 137 So.3d 562, 563 (Fla. 4th DCA 2014).

When an appellate court reviews the grant of a motion for involuntary dismissal, it must view the evidence and all inferences of fact in a light most favorable to the nonmoving party, and can affirm an involuntary dismissal only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.

Id. at 563-64 (quoting Deutsche Bank Nat’l Tr. Co. v. Clarke, 87 So.3d 58, 60 (Fla. 4th DCA 2012)). A trial court’s determination of whether a party has standing is reviewed de novo. GMAC Mortg., LLC v. Choengkroy, 98 So.3d 781, 781 (Fla. 4th DCA 2012).

The Bank argues that the trial court erred in granting the Homeowners’ motion for involuntary dismissal on the basis that the Bank had not established standing where it had failed to present evidence of GMAC’s authority to act as attorney-in-fact to file the suit.

It is well established that standing of the plaintiff to foreclose on a mortgage must be established at the time the plaintiff files suit. See McLean v. JP Morgan Chase Bank Nat’l Ass’n, 79 So.3d 170, 173 (Fla. 4th DCA 2012); Rigby v. Wells Fargo Bank, N.A., 84 So.3d 1195, 1196 (Fla. 4th DCA 2012). Under the Florida statutory law, the person or entity entitled to enforce the note must be either: (1) the holder of the note; (2) a nonholder in possession of the note who has the rights of a holder; or (3) a person or entity who is not in possession of the note because the note has been lost or was mistakenly surrendered or canceled as paid, but who otherwise would have the status of a holder. § 673.3011, Fla. Stat. (2015).

In this case, the Bank filed its complaint alleging its status as the holder of the note, having acquired the loan prior to filing the complaint. Attached to the complaint was a copy of the note with a blank indorsement, making it payable to the bearer. A “holder” is defined as: “[t]he person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” § 671.201(21), Fla. Stat. (2015) (emphasis added). There is no dispute that the original note, which was admitted into evidence at trial, was identical to the copy attached to the complaint.

The Bank correctly argued at trial there was sufficient evidence to show it had standing to bring the foreclosure suit where no evidence was presented to the contrary. As we recently explained in Ortiz, when a copy of the blank indorsed note is attached to the complaint,

if the Bank later files with the court the original note in the same condition as the copy attached to the complaint, then we agree that the combination of such evidence is sufficient to establish that the Bank had actual possession of the note at the time the complaint was filed and, therefore, had standing to bring the foreclosure action, absent any testimony or evidence to the contrary.

Ortiz, 188 So.3d at 925; see also Harvey v. Deutsche Bank Nat’l Tr. Co., 69 So.3d 300, 304 (Fla. 4th DCA 2011) (holding that the plaintiff, alleged assignee, of mortgage note had standing to bring foreclosure action as holder of the note, regardless of any recorded assignments, where the note at issue was indorsed in blank, and plaintiff possessed the original note and filed it with the circuit court); Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010) (finding the blank indorsement made the note “payable to bearer” and allowed the note to be “negotiated by transfer of possession alone”). In this case, as the Bank argued at trial, there was no evidence presented below reflecting that the Bank lacked possession of the note at the time it filed the suit.

Additionally, to the extent the trial court based the involuntary dismissal on a lack of evidence as to GMAC’s standing, such was improper. GMAC was the servi-cer at the time the complaint was filed. However, despite being advised of GMAC’s status as the prior servicer, throughout the trial, the trial court seemed confused as to GMAC’s role in this case. Although it was the Bank that filed the complaint on its own behalf, the trial court seemed concerned that there was no document reflecting GMAC’s authority to file the suit. However, GMAC merely verified the complaint as the servicer and attorney-in-fact. Therefore, the Bank was not required to demonstrate GMAC’s authority to file the suit.

A loan servicing agent is a proper representative to possess a mortgage note on behalf of the plaintiff, such that the plaintiff remains in constructive possession of the note as the holder sufficient to establish standing. U.S. Bank, Nat’l Ass’n v. Angeloni, 199 So.3d 492, 493 (Fla. 4th DCA2016) (citing Caraccia v. U.S. Bank, Nat’l Ass’n, 185 So.3d 1277, 1279 (Fla. 4th DCA 2016)) (“Possession of a note by a third party agent such as a servicer or law firm, gives the ‘owner’ of the note constructive possession sufficient to establish standing as the note’s holder.”). Therefore, if the trial court dismissed the case because it was concerned that GMAC may have physically possessed the note at the time suit was filed, rather than the Bank, the concern did not justify an involuntary dismissal. Ortiz, 188 So.3d at 925; Meilleur v. HSBC Bank USA, N.A., 194 So.3d 512, 513 (Fla. 4th DCA 2016) (holding that the Ortiz inference of possession is not contradicted by evidence that the servicer possessed the note at the time suit was filed); Bank of N.Y. Mellon v. Milford, 206 So.3d 137, 137-38 (Fla. 4th DCA 2016) (finding the introduction of original blank note into evidence through the testimony of the loan servicer, a copy of which was attached to the complaint, was sufficient evidence to establish the Ortiz inference of possession).

Finally, although the Homeowners attempt to justify the trial court’s dismissal on the argument that the pooling and servicing agreement was not entered into evidence, the argument is without merit. Contrary to the Homeowners’ assertion, there was no requirement in this case, based on Ortiz, that the pooling and servicing agreement be admitted into evidence to prove standing.

We reverse the involuntary dismissal at trial and remand for further proceedings.

Reversed and remanded.

Taylor and Forst, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Otto Hans VAN MAERSSEN, Appellant, v. Diana GERDTS, Appellee.
    No. 4D15-3910
    District Court of Appeal of Florida, Fourth District.
    [March 22, 2017]
    Otto Hans Van Maerssen, Fort Benning, Georgia, pro se.
    Andrew S. Berman and Brian M. Karpf of Young, Berman, Karpf & Gonzalez, P.A., Miami, for appellee.
   Per Curiam.

Otto Van Maerssen (“the husband”) appeals, and Diana Gerdts (“the -wife”) cross-appeals, the trial court’s order on the wife’s motion for temporary support and suit money. The court awarded the wife $6,500 per month in temporary undifferentiated spousal and child support, $10,000 toward her past and future attorney’s fees, and $10,000 toward her past and future accounting fees. We find no error in the award of temporary attorney’s fees and accounting fees, but we reverse and remand the award of temporary undifferentiated spousal and child support.

The parties were married for almost eighteen years and have one child. The husband is employed by the federal government. The wife was primarily a stay-at-home mother during the marriage and has some medical problems that restrict her ability to work. Shortly after the husband filed a petition for dissolution of marriage in December 2014, the wife filed an urgent motion for temporary support and suit money.

At the hearing on the wife’s motion, both parties’ financial affidavits and the husband’s two most recent pay stubs were introduced. The wife also presented the testimony of a forensic accountant. The accountant calculated the wife’s personal need to be approximately $4,500 per month, in addition to the husband continuing to pay certain expenses including the mortgage, automobile expenses, and certain child-related expenses. The accountant also testified that the guideline child support was $698 per month.

The trial court found that the wife had the need for temporary support and the husband had the ability to pay. The court awarded the wife $6,500 per month in “temporary undifferentiated spousal and child support” and also ordered the husband to pay certain child-related expenses directly.

• This timely appeal and cross-appeal follow.

We review the trial court’s order for an abuse of discretion. “Temporary relief awards ‘are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling of circumstances.’ ” Mullins v. Mullins, 799 So.2d 450, 451 (Fla. 4th DCA 2001) (quoting Pedraja v. Garcia, 667 So.2d 461, 462 (Fla. 4th DCA 1996)). But temporary relief awards must be supported by competent, substantial evidence. See Bengisu v. Bengisu, 12 So.3d 283, 286 (Fla. 4th DCA 2009). The court does not need to make explicit findings, but there must be sufficient evidence in the record to support the amount awarded. See Moore v. Kelso-Moore, 152 So.3d 681, 682-83 (Fla. 4th DCA 2014); Piluso v. Piluso, 622 So.2d 117, 118 (Fla. 4th DCA 1993).

We cannot determine whether the court’s award in this case of $6,500 per month in temporary support is supported by the evidence. Although the court’s order requires the husband to continue to pay certain child-related expenses in addition to the monthly support obligation, it is silent on whether he also must continue to pay the mortgage and automobile expenses. If the husband is required to pay those expenses, then the total award exceeds both the husband’s ability to pay and the wife’s need, as established by competent, substantial evidence.

We further find that the trial court abused its discretion in awarding the wife “undifferentiated” spousal and child support instead of calculating them separately. See Greenhouse v. Greenhouse, 913 So.2d 1201 (Fla. 4th DCA 2005); Blum v. Blum, 769 So.2d 1142, 1143 (Fla. 4th DCA 2000). The trial court’s failure to specify which share of the award was for spousal support and which share was for child support has compounded our difficulty in evaluating whether the award is supported by the evidence. See Blum, 769 So.2d at 1143.

We therefore reverse the award of $6,500 per month in temporary undifferentiated spousal and child support and remand for the trial court to recalculate the husband’s monthly support obligations.

Reversed and remanded in part.

Warner, Levine and Forst, JJ., concur.


text:
    James OBER, Appellant, v. TOWN OF LAUDERDALE-BY-THE-SEA, a Florida Municipality, Appellee.
    No. 4D14-4597
    District Court of Appeal of Florida, Fourth District.
    [March 22, 2017]
    Manual Faraeh of McGlinchey Stafford, Fort Lauderdale, for appellant.
    Susan L. Trevarthen, Laura K. Wendell, and Eric P. Hockman and Adam A. Schwartzbaum of Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, for appellee.
   On Motion fob Certification of a Question of Great Public Importance

Per Curiam.

We grant Appellee’s February 7, 2017 Motion for Certification of a Question of Great Public Importance and certify the following question to the Florida Supreme Court:

WHETHER, PURSUANT TO SECTION 48.23(1)(D), FLORIDA STATUTES, THE FILING OF A NOTICE OF LIS PENDENS AT THE COMMENCEMENT OF A BANK’S FORECLOSURE ACTION PREVENTS A LOCAL GOVERNMENT FROM EXERCISING AUTHORITY GRANTED TO IT BY CHAPTER 162, FLORIDA STATUTES, TO ENFORCE CODE VIOLATIONS EXISTING ON THE FORECLOSED PROPERTY AFTER FINAL FORECLOSURE JUDGMENT AND BEFORE JUDICIAL SALE, WHERE THE LOCAL GOVERNMENT’S INTEREST OR LIEN ON THE PROPERTY ARISES AFTER FINAL JUDGMENT AND DID NOT EXIST WITHIN THIRTY (30) DAYS AFTER THE RECORDING OF THE NOTICE OF LIS PENDENS.

Forst and Klingensmith, JJ., concur.

Gross, J., dissents without opinion.


author: PER CURIAM.

text:
    Nigel Jarod BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-3267.
    District Court of Appeal of Florida, First District.
    Aug. 12, 2015.

      Nancy A. Daniels, Public Defender, and Colleen Dierdre Mullen, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Virginia Chester Harris, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Thomas v. State, 948 So.2d 968 (Fla. 1st DCA 2007).

RAY, SWANSON, and MAKAR, JJ., concur.


text:
    James VANCAMP, Appellant, v. DECISION HR 30, INC., FWCIGA/Florida Workers’ Compensation Guaranty Association, and USIS, Appellees.
    No. 1D14-5853.
    District Court of Appeal of Florida, First District.
    Aug. 19, 2015.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Micheál A. Edwards of Peterson Bernard, West Palm Beach, for Appellees.
   PER CURIAM.

Based on this Court’s decision in Westphal v. City of St. Peterburg/City of St. Petersburg Risk Management, 122 So.3d 440 (Fla. 1st DCA 2013) (en banc), the Judge of Compensation Claims correctly limited the award of temporary benefits to 104 weeks. On appeal in this Court, Appellant failed to establish that paragraph 440.15(4)(e), Florida Statutes (2007), is unconstitutional on its face or as applied to him.

AFFIRMED.

THOMAS, WETHERELL, and RAY, JJ., concur.


text:
    Israel MARTINEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-1540.
    District Court of Appeal of Florida, Third District.
    Aug. 26, 2015.
    Israel Martinez,, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

We affirm based on the thorough and well-reasoned opinion of the trial court.

Affirmed.


author: OSTERHAUS, J.

text:
    Marcus Darnell EBRON, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3612.
    District Court of Appeal of Florida, First District.
    Sept. 30, 2015.
    Nancy A. Daniels, Public Defender, Paula S. Saunders, Assistant Public Defender, Tallahassee, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Meredith Clark Hinshelwood, Assistant Attorney General, Tallahassee, FL, for Ap-pellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

OSTERHAUS, J.

This case returns to us by order from the Florida Supreme Court, quashing and remanding our decision in Ebron v. State, 134 So.3d 481, 482 (Fla. 1st DCA 2013), reh’g denied (Mar. 31, 2014), and directing us to reconsider Marcus Darnell Ebron’s appeal in light of its recent decision in Griffin v. State, 160 So.3d 63 (Fla.2015). Mr. Ebron’s arguments are premised on the jury having been erroneously instructed on the “intent to kill” element disapproved in State v. Montgomery, 39 So.3d 252 (Fla.2010), and extended in Williams v. State, 123 So.3d 23 (Fla.2013), to attempted voluntary manslaughter by act. After considering Griffin’s application to the circumstances in this case, we affirm Mr. Ebron’s conviction and sentence. Unlike Griffin, the jury convicted Mr. Ebron of the lesser offense in spite of the faulty jury instruction. The instruction neither foreclosed the jury from finding Mr. Ebron guilty of the lesser offense, nor vitiated his trial.

I.

Mr. Ebron challenges his conviction for attempted voluntary manslaughter by act arising from an incident that occurred in July 2010, for which he was charged with attempted second degree murder. According to the State’s evidence, Mr. Ebron entered someone else’s apartment through an unlocked kitchen door wearing a mask and gloves, and carrying a firearm. Mr. Ebron brandished a gun in the living room and demanded money from about eight people in the apartment. One man was shot through the leg when he moved toward Mr. Ebron. A struggle then ensued as others came to the victim’s aid, during which Mr. Ebron fired another shot. Mr. Ebron was eventually tackled to the ground, disarmed, and tied up. The police arrived a few minutes later and found three men sitting on top of Mr. Ebron in the back bedroom. .

Mr. Ebron testified in his own behalf to a different story. He claimed to have been invited to the apartment that night and to be the true victim. Mr. Ebron did not dispute that two shots were fired, that the victim was shot through the leg, or that he struggled with some men in the room. But Mr. Ebron claimed that he was the one who was robbed at gun point and that the others in the apartment set him up.

After the jury heard the evidence, the State’s closing argument acknowledged a lack of evidence that Mr. Ebron intended to kill the victim; rather, he shot without regard for whether he killed anyone or not. Mr. Ebron’s counsel requested jury instructions on the lesser-included offenses to attempted second-degree murder—attempted voluntary manslaughter by act, aggravated battery, and battery. And the defense did not object when the following attempted voluntary manslaughter by act instruction was read to the jury:

To prove the crime of attempted voluntary manslaughter the state must prove the following elements beyond a reasonable doubt: ... one, Marcus Darnell Ebron committed an act which was intended to cause the death of [the victim] and would have resulted in the death of [victim] except that someone prevented Marcus Darnell Ebron from killing [the victim] or he failed to do so.
In order to convict of attempted voluntary manslaughter it is not necessary for the state to prove that the defendant had a premeditated intent to cause death.

(Emphasis added).

The jury later returned a verdict finding Mr. Ebron guilty of the lesser-included offense of attempted voluntary manslaughter by act. Thereafter, Mr. Ebron filed a motion for a new trial, which included a challenge to the attempted voluntary manslaughter instruction. But Mr. Ebron’s motion for new trial was denied.

II.

Mr. Ebron’s appeal identifies a clear Montgomery-type problem with the jury instruction given on attempted voluntary manslaughter by act. Whereas Montgomery states that a defendant is entitled to an accurate instruction on the charged offenses and all lesser included offenses, 39 So.3d at 258, Williams, 123 So.3d at 29; see also Haygood v. State, 109 So.3d 735, 742 (Fla.2013), the jury instructions here improperly included an “intent to kill” element as part of the attempted voluntary manslaughter instruction to the jury. But because Mr. Ebron did not object to the instruction error, he is only entitled to a new trial if the error constituted a “fundamental error.”

Instructions ... are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. Castor v. State, 365 So.2d 701 (Fla.1978); Brown v. State, 124 So.2d 481 (Fla.1960). [That is] “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”

State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (citations omitted). See also Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008).

In determining whether a Montgomery error constitutes fundamental error, the Florida Supreme Court recently reiterated in Griffin that a defendant is entitled to accurate instructions. Griffin, 160 So.3d at 69. The failure to provide a complete instruction on manslaughter “ ‘may ” constitute fundamental error. Id. (quoting Montgomery, 39 So.3d at 258); see also Dawkins v. State, 170 So.3d 81 (Fla. 3d DCA 2015) (giving a flawed Montgomery manslaughter by act instruction is not per se fundamental error). But see Dominique v. State, 171 So.3d 204 (Fla. 4th DCA 2015) (certifying conflict with Daw-kins). In Griffin, “the manslaughter instruction given to the jury erroneously ... foreclosed [the jury] from finding [the defendant] guilty of [the] lesser offense when they found he had no intent to kill.” Id. at 70. The jury convicted the defendant of second-degree murder—a higher crime— and the Florida Supreme Court reversed because the faulty jury instruction essentially prevented the jury from finding Mr. Griffin guilty of the lesser crime. Id.

This case is different from Griffin, and other cases finding fundamental error under Montgomery, because Mr. Ebron was acquitted of the higher offense and convicted of the lesser one. Whereas in Griffin, the Florida Supreme Court considered the jury to be foreclosed from finding guilt on the lesser offense, the faulty instruction in this case had no discernable effect on the jury’s findings. Rather, the jury found Mr. Ebron guilty of the lesser offense, attempted voluntary manslaughter by act, in spite of the faulty instruction. Had Mr. Ebron actually been convicted of attempted second degree murder, then reversal would have been required under Griffin due to the lesser crime’s faulty instruction. But no fundamental error occurred under the circumstances here.

Finally, we reject Mr. Ebron’s other argument, that the erroneous “intent to kill” instruction transformed his conviction for attempted voluntary manslaughter by act into an illegal conviction for a nonexistent crime. In Williams v. State, 123 So.3d 23 (Fla.2013), the Florida Supreme Court held that attempted voluntary manslaughter by act is still a viable offense in Florida notwithstanding an erroneous instruction, and -that Montgomery did not abrogate it. See also Ware v. State, 112 So.3d 532, 534 (Fla. 3d DCA 2013).

III.

For these reasons, we conclude the erroneous attempted voluntary manslaughter by act instruction did not constitute fundar mental error in this case. Mr. Ebron’s conviction and sentence for the lesser in-eluded offense of attempted voluntary manslaughter by act is AFFIRMED.

LEWIS and MARSTILLER, JJ., concur.


author: RAY, J.

text:
    FLORIDA DEPARTMENT OF REVENUE, o/b/o Tamara TORRES, Petitioner, v. Christopher Lee SPRAGGS, Respondent.
    No. 1D15-2075.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2015.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Petitioner.
    No appearance for Respondent.
   RAY, J.

The Florida Department of Revenue petitions for a writ of certiorari to review an order directing the parties and the minor child to submit to paternity testing in a proceeding to modify the father’s child support obligation. Because paternity was not in controversy in the proceedings below, the order departs from the essential requirements of law and threatens irreparable harm that cannot be remedied on plenary appeal. We grant the petition and quash the challenged order.

I.

The Department filed a petition on behalf of the mother, Tamara Torres, to modify the existing child support obligations of the father, Christopher Lee Spraggs, for their minor child. In response, the father requested a paternity test “to know” if the child is his, contending that “at the time that [the child’s] mother and I were together she had affairs with other men.”

During the administrative hearing on the Department’s petition, the child support hearing officer asked the father if he was contesting paternity. The father replied affirmatively and stated that, while he signed the birth certificate for the child, he wanted “to be sure” about paternity in light of the mother’s affairs during their relationship. The mother denied having an affair that resulted in the child’s conception and asserted that the child is “definitely his,” but she did not object to a paternity test. The Department argued against paternity testing because paternity had been previously established by Mr. Spragg’s signature on the child’s birth certificate and he would have to “disestablish” paternity through a separate proceeding.

The hearing officer entered a report and recommendation for an order compelling genetic tissue typing of the parties and the minor child to assist in resolving the issue of paternity. The circuit court ratified and approved the hearing officer’s recommended order, and the Department timely sought this Court’s review.

II.

To be entitled to certiorari relief, the Department must establish that the circuit court’s order departs from the essential requirements of law and that the order will cause irreparable harm that cannot be cured on plenary appeal. See State, Dep’t of Revenue ex rel Carnley v. Lynch, 53 So.3d 1154, 1156 (Fla. 1st DCA 2011). Addressing the irreparable harm prong first, which constitutes the jurisdictional test, we observe that any error in requiring potentially intrusive paternity testing is one that cannot be remedied by subsequent direct appeal. See Fla. Dep’t of Revenue ex rel. Corbitt v. Alletag, 156 So.3d 1110, 1112 (Fla. 1st DCA 2015); Lynch, 53 So.3d at 1155 n. 1 (and cases cited therein). Accordingly, we have jurisdiction to determine whether the circuit court departed from the essential requirements of law when it ordered the parties and the minor child to submit to paternity testing.

Florida law provides a statutory framework for contesting the establishment of paternity for a child born out of wedlock and for disestablishing paternity or terminating child support obligations when the male is not the biological father of the child. The establishment of paternity for a child born out of wedlock “may be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.” § 742.10(4), Fla. Stat. (2015). Alternatively, a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child, upon meeting specific pleading and proof requirements in circuit court, which include attesting that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation. § 742.18, Fla. Stat. (2015).

In the case before us, it is clear that the father did not plead any basis to contest or disestablish paternity under subsection 742.10(4) or under section 742.18. Simply put, there was no paternity action pending before the court upon which a paternity test could be ordered. The only issue before the court was the Department’s petition to modify the father’s child support obligation.

III.

Under these circumstances, the court’s order compelling paternity testing is properly viewed as a discovery order. See State, Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157, 161-62 (Fla. 1st DCA 2007). But, discovery has its limits, and as this Court has held time and again, “no party to any family law proceeding is entitled to an order requiring another party to submit to genetic testing unless (1) the proceedings place paternity ‘in controversy’ and (2) ‘good cause’ exists for the testing.” Alletag, 156 So.3d at 1112-13; State, Dep’t of Revenue ex rel. Sharif v. Brown, 980 So.2d at 591-92; Travis, 971 So.2d at 162 (citing Fla. Fam. L.R.P. 12.360 and Fla. R. Civ. P. 1.360).

Regarding the “in controversy” requirement, Judge Wetherell recently authored an opinion of this Court in a case with similar facts, Fla. Dep’t of Revenue ex rel. Corbitt v. Alletag, and concluded as follows:

The issue of paternity was not placed in controversy by the father because he did not assert in his answer or his testimony at the hearing that he was not the child’s biological father; indeed, he admitted at the hearing that he signed the child’s birth certificate as the child’s father. See Lynch, 53 So.3d at 1157 (explaining that paternity can be placed in controversy if the purported father “files documentation alleging that he is not the biological father or by asserting that he has not acknowledged his fatherhood in an affidavit”). The ground asserted by the father to support his request for paternity testing—to be 100% sure that he is the child’s biological father—was insufficient as a matter of law to place paternity in controversy. See Brown, 980 So.2d at 591-92 (finding that the father’s “preference” for a DNA test “[t]o be really sure” that he was the father did not place paternity in controversy).

156 So.3d at 1113. Here, the father acknowledged that he signed the child’s birth certificate, but that he wanted paternity testing “to be sure” that he is the biological father. As in Alletag, the father’s precautionary desire for genetic testing is insufficient as a matter of law to place paternity in controversy. Accordingly, discovery by way of an order compelling the parties and minor child to submit to a paternity test is a departure from the essential requirements of law.

IV.

For the reasons stated above, we grant the Department’s petition for writ of cer-tiorari, quash the circuit court’s order, and remand for further proceedings consistent with this opinion.

PETITION GRANTED; ORDER QUASHED.

ROBERTS, CJ., and THOMAS, J., concur.


text:
    Steven J. GIBOUT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-2956.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2015.
    James R. Barnes of the Law Office of James R. Barnes, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Kristen Bonjour, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the Order Denying Defendant’s Pro Se Motion for Postconviction Relief in Escambia County Circuit Court ease number 2010-CF-000403. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. See Fla. R. App. P. 9.141(c)(5)(D).

WETHERELL, ROWE, and RAY, JJ., concur.


text:
    Crystal Renee JOLESCH, n/k/a Crystal Renee McBride, Appellant, v. Andrew Lawrence BUSCHBACH, State of Florida Department of Revenue Child Support Enforcement, Appellees.
    No. 1D14-5842.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2015.
    David A. Carroll, Pensacola, for Appellant.
    Sherry Anita Toothman, Assistant General Counsel, Department of Revenue, Tallahassee; Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellee’s concession of error, the final administrative support order on appeal in this case is VACATED, and this cause is hereby REMANDED for further proceedings in accordance with the concession of error.

BENTON, OSTERHAUS, and WINOKUR, JJ., concur.


text:
    Roy MIDDLETON, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-3122.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2015.
    Roy Middleton, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a timely rule 3.801 motion asserting that he is entitled to jail credit for the time he was held in the Escambia County Jail awaiting his second trial until the date of sentencing, June 29, 2012. See § 921.161(1)-(2), Fla. Stat.; Kitchen v. State, 20 So.3d 975 (Fla. 4th DCA 2009). The state concedes that appellant is entitled to this jail credit. We therefore reverse and remand for the trial court to determine and award the amount of jail credit to be awarded for this time period. See Kitchen at 977 (citing Hidalgo v. State, 729 So.2d 984, 986-87 (Fla. 3d DCA 1999)).

REVERSED AND REMANDED.

ROBERTS, C.J., MARSTILLER and MAKAR, JJ., concur.


text:
    D.S., Father of E.R.S., a Minor Child, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D15-3897.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2015.
    James W. Crawford, Pensacola, for Appellant.
    Kelley Schaeffer, Guardian ad Litem Program, Sanford; Dwight O. Slater, Children’s Legal Services, Department of Children and Families, Tallahassee, for Appel-lee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 28, 2015, the Court has determined that the appellant has failed to demonstrate that the appeal was timely filed. See St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971); Churchville v. Ocean Grove R.V. Sales, Inc., 876 So.2d 649, 651 (Fla. 1st DCA 2004) (“An amendment or modification of an order or judgment in an immaterial, insubstantial way does not restart the clock to file an appeal”). Accordingly, the appeal is hereby dismissed. Any remedy the appellant may have lies with the lower tribunal. See In the Interest of E.H., 609 So.2d 1289 (Fla.1992).

BENTON, ROWE, and OSTERHAUS, JJ., concur.


text:
    Antonio GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-3614.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2015.
    Antonio Grant, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Hall v. State, 117 So.3d 478 (Fla. 1st DCA 2013).

WETHERELL, MARSTILLER, and BILBREY, JJ., concur.


text:
    Phillip BUTLER, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D15-4998.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2015.
    Phillip Butler, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Kenneth S. Steely, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Fla. R. App. P. 9.420(a)(2); see Rivera v. Dep’t of Health, 177 So.3d 1, 2015 WL 1650285 (Fla. 1st DCA April 15, 2015).

WETHERELL, MARSTILLER, and BILBREY, JJ., concur.


text:
    Charles C. REEDER, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-4702.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2015.

      Nancy A. Daniels, Public Defender, and Joanna A. Mauer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Lauren L. Gonzalez, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse Appellant’s conviction for second-degree murder and remand for a new trial based on Floyd v. State, 151 So.3d 452 (Fla. 1st DCA), rev. granted, 168 So.3d 229 (Fla.2014), which held that the standard jury instruction for justifiable use of deadly force was internally inconsistent and amounted to fundamental error where, as here, the instruction effectively negated the defendant’s sole defense. But see Cruz v. State, 2015 WL 2393281, at *8 (Fla. 4th DCA May 20, 2015) (certifying conflict with Floyd because it was “incorrectly decided”); Wyche v. State, 170 So.3d 898, 905 (Fla. 3d DCA 2015) (stating that the standard jury instruction for justifiable use of deadly force “is an accurate statement of the law on the use of deadly force, and there is no conflict between any of the sections contained in Chapter 776 [Florida Statutes] or any conflict within [the instruction]”); Woodsmall v. State, 164 So.3d 696, 697 n. 2 (Fla. 5th DCA 2015) (rejecting defendant’s argument that reversal of murder conviction was required based on Floyd and holding that “no error resulted from the [justifiable use of deadly force] instruction [s]inee there was a dispute over who the initial aggressor was at the time the victim ... was stabbed [and the defendant’s] duty to retreat was dependent upon the jury’s resolution of that dispute”) (citing Sims v. State, 140 So.3d 1000, 1003 n. 3 (Fla. 1st DCA 2014)). We find no merit in the other issues raised by Appellant.

REVERSED and REMANDED for a new trial.

WOLF, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Daniel W. UHLFELDER, Appellant, v. WELLS FARGO BANK, N.A., Successor-By-Merger to Wachovia Bank, N.A., A National Banking Association, Forest Lakes Community Owners’ Association, Inc., A Florida Non-Profit Corporation; and Unknown Spouse/Owner(s)/Tenant(s) in Possession, Appellee.
    No. 1D15-4381.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2015.
    Daniel W. Uhlfelder, pro se, Appellant.
    Joseph H. Lang, Jr. and Donald R. Kirk, of Carlton Fields Jorden Burt, P.A., Tampa, for Appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the Court’s order of October 26, 2015, the Court has determined that the appeal is premature. Accordingly, the appeal is dismissed for lack of jurisdiction.

ROBERTS, C. J., SWANSON and MAKAR, JJ., concur.


author: THOMAS, J.

text:
    Leonard C. GEORGE, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-4171.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2015.
    Leonard C. George, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Matthew Pavese, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

In 1994, Appellant was convicted of kidnapping and multiple counts of sexual battery of a victim involving multiple perpetrators. According to the trial court’s order denying relief on Appellant’s double jeopardy claims, and the portions of trial transcripts attached thereto, Appellant and another person abducted the victim while she was walking home late one evening. Appellant and his co-perpetrator forced the victim into their car, with Appellant repeatedly battering and threatening to kill her, grabbing her by her throat and otherwise terrorizing her. Appellant committed multiple sexual batteries against the victim in the car and forced her to perform oral sex on the co-perpetrator. The victim testified that Appellant also took her money and valuables after forcing her to remove her clothing.

Appellant then forced the victim to his home, where he repeatedly committed sexual batteries against her, telling her to “stop fighting it.” He repeatedly told the victim he would kill her if she made any noise or attempted to escape. After several sexual batteries, he wrapped the victim in a sheet and forced her to sleep next to him, so he could tell if she attempted to escape; she did, and Appellant struck her in the head and again threatened her. He then committed another sexual battery against her the following morning.

In 1995, Appellant was convicted of the following seven counts: Count 1, Kidnapping; Count 3, Aiding and Abetting Sexual Battery by Multiple Perpetrators: Threat of Force Likely To Cause Serious Personal Injury; Count 4, Sexual Battery by Multiple Perpetrators: Threat of Force Likely to Cause Serious Personal Injury: 5) Aiding and Abetting Sexual By Multiple Perpetrators: Threat of Force Likely to Cause Serious Personal Injury; Count 6, Sexual Battery: Threat of Force Likely to Cause Serious Personal Injury; Count 7, Sexual Battery: Threat of Force Likely to Cause Serious Personal Injury; and Count 8, Sexual Battery: Threat of Force Likely to Cause Serious Personal Injury. The jury acquitted Appellant of Count 2, Robbery.

The trial court sentenced Appellant to life in prison for Counts 1, 3, 4, 5 and 6, all to be served concurrently, and 30 years’ imprisonment for Counts 6, 7 and 8, with each sentence to be served consecutively to the sentences of life imprisonment. This court affirmed Appellant’s convictions and sentences. George v. State, 668 So.2d 606 (Fla. 1st DCA 1996).

Appellant filed a challenge to his convictions and sentences, claiming he was unconstitutionally sentenced “six times for a single offense.” Specifically, Appellant claims his multiple punishments violate the Double Jeopardy Clause of the United States Constitution, asserting that his “conviction(s) and sentence(s) for eount(s) III through VIII ... violate the double jeopardy clause because they- constitute multiple punishment (sic) for the same offense(s).”

In a very thorough order, the trial court properly denied relief. Double jeopardy challenges to a defendant’s convictions are not cognizable in a rule 3.800(a) motion. See State v. Williams, 854 So.2d 215 (Fla. 1st DCA 2003). Here, Appellant is attempting to challenge his convictions, not his sentences, because “although couched as an attack on his sentences, [the appellant’s claims are] inherently attacking his convictions because correcting the alleged double jeopardy violation would require vacating an underlying conviction.” Coughlin v. State, 932 So.2d 1224, 1226 (Fla. 2d DCA 2006). Thus, Appellant’s claims are not cognizable in a rule 3.800(a) motion, as they are procedurally barred. Cf. Seward v. State, 937 So.2d 767 (Fla. 5th DCA 2006) (holding that double jeopardy challenge to sentences imposed for sale and possession of cocaine was not cognizable in 3.800(a) motion as it was a challenge to convictions, and required an evidentiary hearing to determine factual matters).

Even if Appellant’s claims were not barred, which they are, the Florida Supreme Court and this Court have held that multiple punishments for separate and distinct acts of sexual battery during a single criminal episode are not barred by double jeopardy principles. Roberts v. State, 39 So.3d 372 (Fla. 1st DCA 2010), sub nom. State v. Drawdy, 136 So.3d 1209 (Fla. 2014); State v. Meshell, 2 So.3d 132, 135 (Fla.2009). The case before us illustrates the rationale of this principle: over a period of hours and at two separate locations, Appellant repeatedly committed acts of sexual violence against the victim, all while threatening to kill or inflict serious personal injury on her should she resist. In addition, Appellant aided and abetted another person in committing sexual battery against the victim. Appellant was properly convicted and sentenced for his multiple and brutal crimes committed against the victim during this horrendous criminal episode.

AFFIRMED.

LEWIS and ROWE, JJ., concur.


author: BILBREY, J.

text:
    Tammy Lynn RHOADS, Wife, Appellant, v. John M. RHOADS, Husband, Appellee.
    No. 1D14-4477.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2015.
    William S. Graessle and Jonathan W. Graessle, Jacksonville, for Appellant.
    Brian P. North of Kenny Leigh & Associates, Mary Esther, for Appellee.
   BILBREY, J.

Tammy Lynn Rhodes appeals the final judgment of dissolution of marriage on several grounds. We find no error in the trial court’s granting the former wife’s counsel’s motion to withdraw due to the former wife’s failure to communicate with counsel for months prior to the motion. Likewise, the denial of the former wife’s motion for continuance on the day of the final hearing due to the withdrawal of counsel some three weeks prior to the hearing was within the trial court’s discretion. See Cargile-Schrage v. Schrage, 908 So.2d 528 (Fla. 4th DCA 2005). In addition, we find no error in the trial court’s equitable distribution of the marital assets in the final judgment. However, we agree with the former wife that the trial court’s determination of the amount of permanent alimony was not supported by competent, substantial evidence and was therefore an abuse of discretion requiring reversal of that portion of the final judgment.

The parties were married on June 8, 1991. During the marriage, the parties had four children, two of whom were still minors at the time of the final judgment. The former wife was not employed outside the home for most of the marriage, and she had not completed her high school education. It was undisputed that the former wife suffered from a serious medical condition. Nonetheless she testified that she wanted to obtain her high school diploma and work ■ towards self-sufficiency. The former husband testified at the final hearing that he was paying the former wife approximately $1,600 per month in temporary spousal support, which included directly paying some of her bills. He did not testify that he had any inability to continuing paying this amount of spousal support. The former husband had gross income of $6,561.69 per month including bonuses while the former wife’s income was imputed at $1,374.53 per month based on her ability to earn at least minimum wage.

.At the time of the final hearing, the former husband and remaining minor children lived in the marital home and the former wife did not reside there, pursuant to court order. The marital home was owned by the parties, free of any note and mortgage.

We review the adequacy of an award of alimony for abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980); Atkins v. Atkins, 611 So.2d 570 (Fla. 1st DCA 1992) rev. denied 623 So.2d 493 (Fla.1993). Based on the evidence presented at the final hearing, and as requited for an alimony award by section 61.08(2), Florida Statutes, the trial court found that the former wife had a need for alimony and the former husband had the ability to pay alimony. The trial court appeared to recognize that this was a long-term marriage per section 61.08(4), Florida Statutes. In the final judgment, the trial court specifically found, “The oníy evidence presented regarding Wife’s need for alimony was that, she needs auto insurance and health insurance.” The court found that the cost for such insurance was $600.00 per month and awarded this amount as permanent alimony. The final judgment also found that the former wife was in good health. The trial court’s finding that the former wife only needed alimony to purchase insurance as well as the finding that she was in good health are not supported by the evidence and reversal of the award of alimony is therefore necessary as inadequate.

Because the former wife appeared pro se at the final hearing, her presentation of evidence to support her case was inartful and disjointed. However, the transcript of the final hearing does contain undisputed evidence of basic needs for the former wife’s maintenance including housing and prescription drug expenses, in addition to her need for insurance. In her testimony, the former wife described her credit card bills of $400 to $500 per month, and that she had been using her credit cards to pay living expenses. The former wife also testified that she had previously shared rent and utility payments with a friend, and that her share of the rent amounted to $550 per month plus more for utilities, but that she had been evicted because she was unable to pay the rent. On cross examination, the former wife testified that she did not currently pay rent or utilities, and her testimony was vague about where she was living. The former wife stated that she was homeless and that she was staying “everywhere,” relying on the generosity of friends, or sleeping in her vehicle or hotels. When asked how she was spending the $700 to $800 per month she previously paid for rent and utilities, she responded that she had stayed “at some hotels.” In addition to her basic needs for shelter, the former wife testified that she had medical and prescription drug bills due to her medical condition.

The final judgment addressed the parenting plan for the parties’ remaining minor children and ordered that the former husband and children would remain in the marital home until the youngest child reached the age of 18. At that point, the court ordered that the marital home would be sold and the proceeds divided between the parties. However, the final judgment did not make any provision for the former wife’s current basic needs for shelter and other living expenses, and did not make any provision for the fact that the former husband would not be paying a mortgage or rent, unlike the former wife, thereby increasing the former husband’s ability to pay alimony.

Despite the former wife’s vague testimony about her housing situation, the fact remains that the trial court’s award of $600 per month permanent alimony did not adequately address the former wife’s needs, while the former husband had the apparent ability to pay for more if not all of the former wife’s needs. § 61.08(2), Fla. Stat. As part of its equitable distribution of marital assets, the trial court did award the former wife one-half of the former husband’s retirement account, which the trial court “equate[d] to Wife receiving $222,313.65” plus the appreciation on those funds. However, as the former wife correctly points out, she must not be required to deplete her capital assets in order to maintain her standard of living as it was during the marriage. Addie v. Coale, 120 So.3d 44, 47 (Fla. 4th DCA 2013).

The portion of the final judgment awarding only $600 per month as permanent alimony, found by the court to be the amount of the former wife’s insurance needs, fails to comply with section 61.08(2), Florida Statutes, and is not supported by competent, substantial evidence. The award does not “provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.” Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000) citing Canakaris, 382 So.2d at 1201. Based on the record in this case and the transcript of the final hearing, the amount of alimony awarded was clearly not adequate and was thus an abuse of the trial court’s discretion. See Bucknam v. Shelton, 849 So.2d 1204 (Fla. 5th DCA 2003); Thrift v. Thrift, 632 So.2d 202 (Fla. 1st DCA 1994); Atkins.

Accordingly, the award of $600 per month in permanent alimony is reversed and this case remanded for reconsideration of the proper amount of alimony based on the factors listed in section 61.08(2), Florida Statutes. In all other respects, the final judgment is affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SWANSON and MAKAR, JJ., concur.

      . The former husband argues that since the then pro se former wife did not move for rehearing on the issue of alimony, that the inadequacy of the award is not preserved for appellate review. This argument overstates our prior holdings which only state that "a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing.” Simmons v. Simmons, 979 So.2d 1063, 1065 (Fla. 1st DCA 2008) citing Owens v. Owens, 973 So.2d 1169 (Fla. 1st DCA 2007). Here the issue was not that the trial court’s findings were inadequate to allow for meaningful appellate review like in Owens, but whether the trial court abused its discretion in making findings not supported by competent, substantial evidence. See Wabeke v. Wabeke, 31 So.3d 793 (Fla. 2d DCA 2009); Vitro v. Vitro, 122 So.3d 382 (Fla. 4th DCA 2012).


text:
    LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellant, v. CENTEX HOMES and Centex Real Estate Corp., Builders First Source-Florida, LLC, Appellees.
    No. 1D15-1069.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2016.
    Anthony J. Russo, Fay E. Ryan, Eze-quiel Lugo, and Matthew J. Lavisky of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellant.
    Mark A Boyle and Amanda K. Anderson of Boyle, Gentile & Leonard, P.A., Ft. Myers, for Appellees Centex Homes and Centex Real Estate Corp.
    No appearance for Builders First Source-Florida, LLC.
   PER CURIAM.

Upon consideration of appellee’s motion to dismiss, appellant’s response, and appel-lee’s reply, the Court has determined that the order on appeal is not final as related claims remain pending below. Accordingly, the motion to dismiss is granted and the appeal is dismissed. The dismissal is without prejudice to appellant’s right to seek appellate review upon entry of a final order.

THOMAS, SWANSON, and MAKAR, JJ., concur.


text:
    Ruben Danyon McCLOUD, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-5664.
    District Court of Appeal of Florida, First District.
    March 2, 2016.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant, and Ruben Da-nyon McCloud, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee. ■
   PER CURIAM.

This is a belated appeal challenging the trial court’s order revoking Appellant’s probation and sentence of fifteen years in prison. Because the convictions on which the trial court based its order have been overturned, we reverse and remand for further proceedings.

On January 15, 2009, pursuant to a plea of no contest, Appellant was found guilty of the offense of organized scheme to defraud. The trial judge sentenced Appellant to a term of incarceration to be followed by probation.

On April 7, 2010, the state filed an affidavit alleging Appellant committed new offenses of attempted murder, shooting or throwing deadly missiles, and possession of a firearm by a convicted felon, in violation of the condition of his probation that required him to “live and remain at liberty without violating any law.” At the ensuing revocation of probation hearing, the state’s sole evidence consisted of a certified judgment and sentence showing Appellant had been tried and convicted of the offenses alleged in the affidavit. The trial court revoked Appellant’s probation and sentenced him to a term of fifteen years’ imprisonment.

On October 9, 2014, approximately one year after the revocation hearing, this court reversed the judgment and sentence that served as the basis of Appellant’s revocation of probation and remanded the case for a new trial. McCloud v. State, 150 So.3d 822 (Fla. 1st DCA 2014). Appellant was subsequently granted this belated appeal. Appellant now argues that the trial court’s order of revocation of probation and subsequent sentence should also be reversed.

A criminal conviction is clearly a sufficient basis to revoke probation. Maselli v. State, 446 So.2d 1079, 1080 (Fla. 1984). However, a conviction can serve as the basis of a revocation of probation only to the extent that the conviction is valid. If the sole basis of a revocation order is a conviction that is later overturned, that order of revocation cannot stand. State ex rel Roberts v. Cochran, 140 So.2d 597, 600 (Fla.1962); Mattox v. State, 59 So.3d 253, 253-54 (Fla. 1st DCA 2011); Wendell v. State, 404 So.2d 1167, 1169 (Fla. 1st DCA 1981); Plummer v. State, 365 So.2d 1102, 1104 (Fla. 1st DCA 1979).

Here, the trial court’s order revoking Appellant’s probation was based entirely on the convictions later overturned in McCloud. Accordingly, the order revoking Appellant’s probation must be reversed and remanded for the trial court to make an independent , determination of whether Appellant violated probation. See Cochran, 140 So.2d at 600 (reversing and remanding with instructions for trial judge to make “independent determination” of whether law was violated where revocation of probation order was based on convictions later overturned); Wendell, 404 So.2d at 1169 (same).

The judgment and sentence is reversed and remanded for further proceedings consistent with this opinion.

WOLF, BILBREY, and WINOKUR, JJ., concur.


text:
    Amanda Lynn MANATA, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-1925.
    District Court of Appeal of Florida, First District.
    March 2, 2016.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant; Amanda Lynn Manata, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals her convictions for one count of organized scheme to defraud and one count of grand theft, entered after an open plea to the charges. For the reasons discussed below, we affirm the appellant’s conviction for organized scheme to defraud, but reverse and remand for the trial court to vacate the appellant’s conviction for grand theft and to resentence the appellant on the organized scheme to defraud conviction.

Convictions for both grand theft and scheme to defraud violate double jeopardy when both “are based on common allegations.” Saddler v. State, 921 So.2d 777 (Fla. 1st DCA 2006). Here, both crimes were based on the same allegations that the appellant stole money from her employer by writing checks to herself between March 20, 2014, and September 4, 2014. Thus, we reverse and remand for the trial court to vacate the appellant’s conviction and sentence for grand theft, see Pizzo v. State, 945 So.2d 1203, 1207 (Fla.2006) (holding that grand theft was a lesser offense of organized fraud, for double jeopardy purposes, requiring reversal of grand theft convictions), and to resen-tence the appellant on the remaining organized scheme to defraud count. See Anucinski v. State, 148 So.3d 106 (Fla.2014) (holding that appropriate remedy for defendant improperly convicted of both theft and dealing in stolen property is to remand for court to vacate one of the sentences and to resentence the defendant on the remaining count); Gonzalez v. State, 123 So.3d 691 (Fla. 4th DCA 2013) (reversing conviction and sentence on double jeopardy grounds and remanding for circuit court to resentence the defendant on the remaining count).

AFFIRMED in part, REVERSED AND REMANDED in part, for proceedings consistent with this opinion.

ROBERTS, C.J., MAKAR and OSTERHAUS, JJ., concur.


text:
    Timothy D. SCOTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-5295.
    District Court of Appeal of Florida, First District.
    March 2, 2016.
    Timothy D. Scott, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Bureau Chief, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). We encourage the circuit court to continue its efforts to expeditiously dispose of the motion pending below.

WETHERELL, RAY, and OSTERHAUS, JJ., concur.


text:
    Chantin RICHE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-5639.
    District Court of Appeal of Florida, First District.
    March 2, 2016.
    Chantin Riche, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. This disposition is without prejudice to petitioner refiling a date-stamped copy of his motion for postconviction relief in the lower tribunal, along with a motion to accept it as timely. Cf. Clark v. State, 954 So.2d 685 (Fla. 1st DCA2007).

WETHERELL, RAY, and OSTERHAUS, JJ., concur.


text:
    FLORIDA DEPARTMENT OF REVENUE, Petitioner, v. John Garrison SEELEY and Sarah Ann Gilbride, Respondents.
    No. 1D15-5135.
    District Court of Appeal of Florida, First District.
    March 11, 2016.

      Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

This is a petition to review a non-final order rendered by an Administrative Law Judge (ALJ) requiring the Department of Revenue (DOR) to begin downward modification proceedings with respect to respondent John Garrison Seeley’s child support payments. We have jurisdiction pursuant to § 120.68(1), Florida Statutes, Florida Rules of Appellate Procedure 9.030(b)(1)(C) and 9.100(c)(3). Because the ALJ improperly reserved jurisdiction below, we grant the petition.

I.

Mr. Seeley requested that DOR conduct a review of his child support payments in accordance with § 409.2564(1l)(a), Florida Statutes. DOR conducted the review and denied Mr. Seeley’s request. Mr. Seeley then requested an administrative hearing.

The ALJ held a hearing and found that Mr. Seeley was entitled to a downward modification of his child support payments. The ALJ ordered DOR to begin modification proceedings, but reserved jurisdiction over the ease. DOR then petitioned this Court to review the ALJ’s order.

II.

DOR contends that it cannot comply with the ALJ’s order to begin downward modification proceedings because the ALJ has reserved jurisdiction over the case. We agree.

Section 120.569(2)(a), Florida Statutes, states in pertinent part, “The referring agency shall take no further action with respect to a proceeding under s. 120.57(1), except as a party litigant, as long as the division has jurisdiction over the proceeding under s. 120.57(1).” As such, DOR cannot begin downward modification proceedings while the ALJ retains jurisdiction because doing so would be improper pursuant to § 120.659(2)(a).

We have previously held:

When DOR determines no modification proceedings are justified, the only issue for the ALJ to decide is whether that determination is correct. Thus, an ALJ must conduct an evidentiary hearing and make findings as to whether it is appropriate to affirm DOR’s determination, or whether the obligor-parent is entitled to modification. If the latter, the ALJ should instruct DOR to commence modification proceedings based on the ALJ’s factual and legal findings.

Dep’t of Revenue v. Johnson, 177 So.3d 697, 699 (Fla. 1st DCA 2016).

In the instant case, the ALJ’s reservation of jurisdiction places the parties in “judicial limbo” because DOR cannot move forward with the downward modification proceedings. Id.

III.

In part it appears that the ALJ’s decision to reserve jurisdiction was to ensure that any proposed downward modification order from DOR will be retroactive to the time Mr. Seeley initially requested relief. Although we have held that an ALJ may retroactively modify an existing administrative child support order, we have not provided an exception allowing an ALJ to reserve jurisdiction in an administrative child support modification case while allowing DOR to institute downward modification proceedings. See Dep’t of Revenue v. Wolf, 164 So.3d 101 (Fla. 1st DCA 2016).

IV.

Therefore, we GRANT the petition and REVERSE and REMAND to the ALJ for further proceedings consistent with this opinion.

WETHERELL, RAY, and WINOKUR, JJ., concur.


text:
    Anthony MINCEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D15-5442.
    District Court of Appeal of Florida, First District.
    March 11, 2016.
    Matt Shirk, Public Defender, and Elizabeth H. Webb, Assistant Public Defender, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. This dismissal is without prejudice to appellant’s right to seek a belated appeal pursuant to Florida Rule of Appellate Procedure 9.141(c).

THOMAS, BILBREY, and KELSEY, JJ., concur.


text:
    Kenneth THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-5443.
    District Court of Appeal of Florida, First District.
    March 11, 2016.

      W. Charles Fletcher, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Jillian H. Reding, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on October 29, 2015, in Duval County Circuit Court ease number 2012-CF-11144, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

THOMAS, BILBREY, and KELSEY, JJ., concur.


text:
    Debbie Sue JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-5711.
    District Court of Appeal of Florida, First District.
    March 11, 2016.
    Bruce A. Miller, Public Defender, and Gary Bostick, Assistant Public Defender, Milton, for Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Jillian H. Reding, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the judgment and sentence rendered on September 15, 2015, in Santa Rosa County Circuit Court case number 2014-CF-001607, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The court notes that the lower tribunal has appointed the Office of the Public Defender to represent petitioner on appeal to this court.

THOMAS, BILBREY, and KELSEY, JJ., concur.


text:
    Michael J. LINDSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-5737.
    District Court of Appeal of Florida, First District.
    March 11, 2016.
    Michael J. Lindsey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and Jillian H. Reding, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeals of the judgments and sentences rendered on April 7, 2015, in Leon County Circuit Court case numbers 2012-CF-1520 and 2012-CF-1636, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in each of the foregoing eases. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeals authorized by this opinion.

THOMAS, BILBREY, and KELSEY, JJ., concur.


text:
    George Bernard BYRDEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D15-5898.
    District Court of Appeal of Florida, First District.
    April 25, 2016.

      George Bernard Byrden, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We treat the “petition to be heard on redress: manifest constitutional error” as a petition for writ of habeas corpus. The petition is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WETHERELL, ROWE, and OSTERHAUS, JJ., concur.


author: MAKAR, J.

text:
    Kenneth B. WILLS and Bobbie Akins, Appellants, v. Rashida Wills JONES, Appellee.
    No. 1D15-2911.
    District Court of Appeal of Florida, First District.
    April 27, 2016.
    Michael J. Bauer of The Law Office of Michael J. Bauer, P.A., Tallahassee, for Appellant.
    Mary L. Wakeman of Heuler-Wakeman Law Group, P.L., Tallahassee, for Appel-lee.
   MAKAR, J.

In this case, we are called upon to determine whether the trial court erred by entering a one-year injunction against domestic violence in favor of a mentally ill woman against her parents, who had been attending to their daughter’s mental health needs for much of her adult life. We conclude that the domestic violence statutes were not intended to be used in such a manner on the facts presented.

I.

Rashida Wills Jones is a thirty-eight year old woman who suffers from schizoaf-fective and bipolar disorders; Kenneth B. Wills and Bobbie Akins are her parents. In June 2016, Ms. Jones sought an injunction against her parents to prevent domestic violence, section 741.30, Florida Statutes, alleging they previously harassed her as well as threatened to bring litigation against individuals closely associated with her. The affidavit attached to her petition explained:

My father, Kenneth Wills, and my mother, Bobbie Akins, will not leave me alone after my repeated requests that they not call or contact me. I am an adult and I need to be left alone by my parents so I can live my life. I do not want them to harass me or professionals that are helping me. Mr. Wills and Ms. Akins went to my doctor’s office and threatened the office staff and threatened to sue my doctor’s office for testifying at my last Baker Act hearing.
My parents threatened my case manager, - Val Frentz,' in court with eternal damnation and they continue to threaten me and harass me with their repeated phone calls. They continue to attempt to seek information about my life through others. Their repeated attempts to be involved in my life causes me great stress and results in my father having me Baker-acted. I want to stay out of mental health facilities and am currently under the FACT program in Leon County, as supervised by my case manager. My medical and psychological providers have said I need to avoid contact with my parents at this time given that my interactions with them lead to negative results for me and my ability to take care of my own needs. I agree.

The trial court found these allegations were insufficient to establish an immediate and present danger of domestic violence, but it set a date for an evidentiary hearing to consider the matter in more depth. Ms. Jones’ parents responded by arguing that their daughter filed the petition “as a result of a recent Baker Act proceeding” they initiated against her. See § 394.467(1), (l)(a)2.a, Fla. Stat. (2015) (providing for “involuntary inpatient placement for treatment upon a finding of the court by clear and convincing evidence” that a person has a mental illness that, among other possibilities, “poses a real and present threat of substantial harm to his or her well-being.”) (verbified as “Baker Acted”). They further alleged that after Ms. Jones was awarded a large sum of money in damages from a probate proceeding, her attorney “has attempted to separate the petitioner from [them].”

At the hearing, Ms. Jones testified that she sought an injunction against her parents because she felt intimidated and harassed by them, particularly when she doesn’t do what they say because she’s made to feel she’s doing something wrong and against the family. She is married (though apparently in the process of divorce) and recently went to her daughter’s high school graduation in Texas, which spawned some friction because her parents wanted to attend without her husband’s presence. She was recently Baker Acted, but was released and is part of a community based treatment program for adults with mental illnesses. The psychological team and her case manager recommended she not have contact with her parents because it has a detrimental impact on her mental health. She says her parents show up where she goes and tell others not to be involved with her because she’s sick.

Case manager Val Frentz testified that she evaluated Ms. Jones two years ago to determine her mental capacity and whether her parents needed to be guardians. In Api-il 2015, her parents wanted to initiate a Baker Act proceeding, which was the correct decision to get her back on track. But Frentz testified that the parents were problematic, should avoid contact with her, and were not needed as guardians. The parents were confrontational and caused a scene at the hospital, which disrupts the stability their daughter needs. Frentz’s professional view was that the problems with the daughter’s mental health stemmed from her parent’s behaviors.

Ms. Akins, the mom, testified that her daughter has had ongoing mental health issues since late 1998: schizoaffective and bipolar disorders. She had been Baker Acted by her sister in New Jersey, by the police, and by her parents. After January 2015, when Ms. Jones got out of jail, Ms. Akins noticed her daughter didn’t look well and was not making sense. She wanted to initiate a Baker Act proceeding against her in April 2015 when she noticed her daughter was talking nonsense, her hygiene needed care, her house was filthy, and she was hyperactive. Her daughter has never told her she wanted no contact with her. After the Baker Act proceedings were initiated, Ms. Akins checked on the house, which was such a mess that she had to clean it under threat of eviction from the landlord. As long as her daughter is taking her medicine, Ms. Akins doesn’t interfere with her daughter, whom she loves. She is happy her daughter is getting treatment, but the case manager, Ms. Frentz, was untruthful in her conclusions about her daughter.

Finally, Kenneth Wills, the dad, testified that he did not harass his daughter and, instead, sought guardianship because of his daughter’s mental health. During early 2015, she was in trouble and called him after she was arrested, seeking his help to get out of jail because no one else would assist her. She was kept in jail to monitor her mental condition and later he posted bond for her release. She was re-arrested in February for failure to appear. In late April, when she appeared upset and said she’d been fighting with the devil all night, he and his wife decided to get her help and initiated a Baker Act proceeding. After a case plan was put in place, and Ms. Jones was taking her medication, she appeared to be doing better; there was no problem with her contact with her parents, and no one, including Ms. Jones, ever told them not to have contact with her. He and his wife love their daughter, didn’t commit any acts of domestic violence against her, and didn’t stalk, harass, or intimidate her.

In its ruling, the trial court opined that Ms. Jones, with her mental health situation, was in a unique situation relative to what the injunction statutes were intended to be focused on; the trial court nonetheless ruled that Ms. Jones had met her burden thereby entitling her to an injunction. The court expressed concern about the quarrelsome conduct between Ms. Akins and Ms. Frentz as they left the courtroom following a prior guardianship proceeding years earlier, and about the parents going to the hospital to confront health care providers and challenge their viewpoints, which “was an overt act.” Because such actions were inconsistent with “peace and tranquility of the community,” the injunction ordered no contact with Ms. Jones’ health care providers as well. This appeal follows.

II.

The legal sufficiency of the domestic violence injunction at issue is the centerpiece of this appeal, the parents saying it was unlawful, a question we review de novo. Achurra v. Achurra, 80 So.3d 1080, 1082 (Fla. 1st DCA 2012) (“Our review of the trial court’s conclusion of law that the petitioner is entitled to a final judgment of injunction against domestic violence is de novo.”). They argue that an injunction against domestic violence is impermissible absent proof of malicious harassment that includes a threat of imminent violence and cannot be based on “mere uncivil behavior that causes distress or annoyance.” Them point is well-taken. See Young v. Young, 96 So.3d 478, 479 (Fla. 1st DCA 2012) (“An injunction against domestic violence requires malicious harassment that consists at the very least of some threat of imminent violence, which excludes mere uncivil behavior that causes distress or annoyance”).

A significant part of Ms. Jones’ argument is that her parents’ efforts to have her Baker Acted constituted harassment. Yet our Court has said that even “[u]n-founded reports to authorities or requests for judicial relief, even if repeated or for malicious purposes, do not support the entry of an injunction against domestic or other violence.” Olin v. Roberts, 42 So.3d 841, 842 (Fla. 1st DCA 2010) (holding that filing of reports and complaints to law enforcement agencies does not constitute harassment). Not all reports are valid; but many are for valid reasons. Thus, it bears noting that the statutory definition of harassment is “engaging] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose:’ § 784.048(l)(a), Fla. Stat. (2015) (emphasis added). Here, no one questions that Ms. Jones is in need of mental health services and that her parents have attempted to assist her in obtaining such services for much of her adult life, sometimes against her desires; indeed, Ms. Jones’ own expert acknowledged that her parents’ behavior served a legitimate purpose by initiating the April 2015 Baker Act proceedings against her. As such, an injunction against sometimes overbearing parents who, as the trial judge held here, have “done an amazing job being on guard over this young lady who is now 37 years old, for all those years wanting and doing what they could to protect Ms. Jones from situations,” cannot be explained on the basis that their actions were without any legitimate purpose.

Second, the medical testimony supports that the parents have responsibility for some of their daughter’s mental health issues; but the evidence that purports to establish the statutory basis for an injunction against domestic violence falls short of what courts have required under the statute. Here, the acts of the parents upon which the injunction is based are: going to Ms. Jones’s doctor’s office to threaten litigation arising from the Baker Act hearing; creating a “scene” and saying the case manager was subject to “eternal damnation;” repeated unwanted phone calls to their daughter; and seeking information about her life from others. These acts fail to satisfy the statutory requirement that they support an objectively reasonable fear of the type of malicious behavior the statute was designed to shield. McMath v. Biernacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001) (“For determining whether an incident creates substantial emotional distress, courts must use a reasonable person standard, not a subjective standard.”). Instead, they amount to the type of uncivil conduct that while causing distress and annoyance is legally insufficient to justify intervention by the court system (along with the collateral consequences of injunctions against domestic violence). See Randolph v. Rich, 58 So.3d 290, 292 (Fla. 1st DCA 2011) (“the law requires more than general relationship problems and uncivil behavior to support the issuance of an injunction”); see also Jones v. Jackson, 67 So.3d 1203, 1203-04 (Fla. 2d DCA 2011) (receipt of allegedly intimidating phone calls and text messages “would not have caused a reasonable person substantial emotional distress.”); Polanco v. Cordeiro, 67 So.3d 235, 238 (Fla. 2d DCA 2010) (Villanti, J., concurring) (injunctions “are to be used only to rectify the egregious conduct outlined in the statutes themselves .... These statutory provisions are not a panacea to be used to cure all social ills. In fact, nowhere in the statutory catalog of improper behavior is there a provision for court-ordered relief against uncivil behavior ....”) (citations omitted); Giallanza v. Giallanza, 787 So.2d 162, 165 (Fla. 2d DCA 2001) (“General harassment does not constitute ‘domestic violence’ under the statute.”).

That the quantum of evidence presented does not establish a legal basis for an injunction against domestic violence does not mean that injunctive relief is precluded for all time; one act of violence or the imminent potential for such an act can dramatically change the need for judicial intervention. We recognize that Ms. Jones’ medical professionals agree that the parents need to keep their distance so Ms. Jones has breathing space to progress in her programs. But there are other remedies short of an injunction against domestic violence to deal with obstreperous in-termeddlers such as trespass warnings; the medical prescription pád should include such remedies with the domestic injunction statute remaining available for the egregious cases.

REVERSED and REMANDED.

WETHERELL and WINOKUR, JJ., concur.

      . The definition of "domestic violence" includes "stalking,” section 741.28, Florida Statutes, which is defined elsewhere as "willfully, maliciously, and repeatedly ... harassing] .., another person.” See § 784.048(3), Fla. Stat. Harassment is "engaging] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” Id. § 784.048(l)(a). A "course of conduct” is defined as a "series of acts over a period of time, however short, which evidences a continuity of purpose.” Id. § 784.048(l)(b).


author: WETHERELL, J.

text:
    SMART PHARMACY, INC., A Florida Corporation, Appellant, v. Damian VICCARI, an Individual, and Pensacola Apothecary, Inc., A Florida Corporation, Appellee.
    No. 1D15-4380.
    District Court of Appeal of Florida, First District.
    May 31, 2016.

      Samuel J. Horovitz, Cristine M. Russell, and Rene M. Fix of Rogers Towers, P.A., Jacksonville, for Appellant.
    Todd M. Ladouceur and Michael V. An-dry of Galloway, Johnson, Tompkins, Burr & Smith, PLC, Pensacola, for Appellee.
   WETHERELL, J.

Smart Pharmacy, Inc., appeals the order denying its motion for a temporary injunction against Appellees Damian Viceari and Pensacola Apothecary, Inc. We reverse the order and remand for entry of a temporary injunction because the trial court erroneously concluded that Smart Pharmacy had an adequate remedy at law and that it does not have a substantial likelihood of success on the merits of its claims against Appellees.

Factual and Procedural Background

Smart Pharmacy is a compounding pharmacy that makes and fills prescriptions for specialized medications requiring mixtures of ingredients or doses that are not available in standard, mass-produced, commercially available medications. Smart Pharmacy’s business is dependent upon physicians prescribing its compounded medications to their patients, and as a result, Smart Pharmacy considers its physician referral sources and their prescribing patterns to be trade secrets.

Viccari worked as a sales representative for Smart Pharmacy, and his job was to market Smart Pharmacy’s products and services to physicians in the Jacksonville-area market (i.e., Baker, Clay, Duval, Nassau, and St. Johns Counties). During his employment with Smart Pharmacy, Viccari executed a noncompete agreement that, among other things, prohibited him from competing against Smart Pharmacy in the Jacksonville-area market for a period of two years after his employment ended.

Three months after Viccari resigned from Smart Pharmacy, he started working as a sales representative for another compounding pharmacy, Pensacola Apothecary. The work that Viccari performed at Pensacola Apothecary was the same work that he performed at Smart Pharmacy, i.e., marketing his employer’s compounded medications to physicians. Additionally, while working for Pensacola Apothecary, Viccari solicited business from some of the same physicians in the Jacksonville-area market who he solicited while working for Smart Pharmacy.

Shortly after Viccari started working for Pensacola Apothecary, Smart Pharmacy filed suit against Appellees seeking damages and injunctive relief for Viccari’s alleged breach of his noncompete agreement and his and Pensacola Apothecary’s alleged misuse of Smart Pharmacy’s trade secrets. Smart Pharmacy also sought a temporary injunction to enforce the non-compete agreement and enjoin Appellees from engaging in the conduct alleged in the complaint.

The trial court denied the motion for a temporary injunction after an evidentiary hearing. The court reasoned that although the noncompete agreement validly protected Smart Pharmacy’s legitimate business interests in its relationships with referring physicians, Smart Pharmacy had an adequate remedy at law because some of its alleged damages were “quantifiable.” However, the court also found that Smart Pharmacy did not have a substantial likelihood of success on the merits of its claims against Appellees because some of its alleged damages were speculative.

Smart Pharmacy timely appealed the order denying its motion for a temporary injunction to this court. We have jurisdiction to review this nonfinal order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

Analysis

In order to obtain a temporary injunction, Smart Pharmacy was required to establish (1) the likelihood of irreparable harm, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) that the injunction will serve the public interest. SunTrust Banks, Inc. v. Cauthon & McGuigan, PLC, 78 So.3d 709, 711 (Fla. 1st DCA 2012). Smart Pharmacy contends that it established each of these elements and, thus, it was error for the trial court not to enter a temporary injunction. We agree.

“The right to prohibit the direct solicitation of existing customers is a legitimate business interest, and a covenant not to compete which includes a non-solicitation clause is breached when a former employee directly solicits customers of his former employer.” Atomic Tattoos, LLC v. Morgan, 45 So.3d 63, 65 (Fla. 2d DCA 2010) (internal quotations and alterations omitted). Here, the record reflects—and Appellees do not dispute—that Viccari violated his noncompete agreement by directly soliciting some of the same physicians in the Jacksonville-area market on behalf of Pensacola Apothecary who he solicited while working as a sales representative for Smart Pharmacy. Additionally, the record reflects that Pensacola Apothecary was complicit in Viccari’s violation of the agreement and benefitted from Viccari’s use of Smart Pharmacy’s trade secrets. Accordingly, contrary to the trial court’s conclusion, Smart Pharmacy established a substantial likelihood of success on the merits of its claims against Appellees. See Walsh v. PAW Trucking, Inc., 942 So.2d 446, 448 (Fla. 4th DCA 2006) (“Evidence that an enforceable covenant not to compete was breached will support a trial court’s finding of the likelihood of success on the merits.”).

“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” § 542.335(l)(j), Fla. Stat. To rebut the presumption, the defendant must establish “the absence of an injury.” DePuy Orthopaedics, Inc. v. Waxman, 95 So.3d 928, 939 (Fla. 1st DCA 2012). Here, Smart Pharmacy was entitled to a presumption of irreparable harm based on Viccari’s violation of his noncompete agreement, and the presumption was not rebutted because it was undisputed that Smart Pharmacy lost at least some business to Pensacola Apothecary as a direct result of Viccari’s breach and Pensacola Apothecary’s complicity therein.

Smart Pharmacy does not have an adequate remedy at law for the irreparable harm it has suffered, and may continue to suffer, as a result of Appellees’ actions because “monetary damages are difficult to prove with any certainty and ... even if provable, would not adequately compensate for all aspects of the violation of a covenant not to compete.” King v. Jessup, 698 So.2d 339, 340 (Fla. 5th DCA 1997); see also Miller Mech., Inc. v. Ruth, 300 So.2d 11, 12 (Fla.1974) (explaining that in cases involving a violation of a covenant not to compete, “the normal remedy is to grant an injunction ... because of the inherently difficult, although not impossible, task of determining just what damage actually is caused by the employee’s breach of the agreement”). Indeed, this point is reinforced in this case by the trial court’s findings that some of Smart Pharmacy’s alleged damages were “quantifiable” while other alleged damages were “speculative.” See Variable Annuity Life Ins. Co. v. Hausinger, 927 So.2d 243, 245 (Fla. 2d DCA 2006) (reversing denial of a temporary injunction even though “money damages were ascertainable to some clients that [the former employee] admittedly solicited” because “the harm presumed under the statute includes the potential damages to [the plaintiffs] longstanding relationships with its customers and the protection of confidential client information”).

Finally, the record reflects that a preliminary injunction would serve the public interest because the trial court found that Smart Pharmacy has a legitimate business interest in protecting its relationships with its referral sources. See Atomic Tattoos, 45 So.3d at 66 (“A finding that a covenant ‘protects a legitimate business interest is also important to public interest considerations.’” (quoting PAW Trucking, 942 So.2d at 448)). Appellees did not argue below that there is a public interest that would override enforcement of the noncompete agreement in this case, and the trial court did not identify any such overriding public interest as a basis for denying the motion for a temporary injunction. See § 542.335(l)(i), Fla. Stat. (stating that a court may not refuse to enforce a covenant not to compete on public policy grounds “unless such public policy is articulated specifically by the court and the court finds that the specified public policy requirements substantially outweigh the need to protect the legitimate business interest or interests established by the person seeking enforcement of the restraint”).

In sum, because Smart Pharmacy established each of the elements required for a temporary injunction, the trial court should have entered a temporary injunction against Appellees after determining an appropriate bond. See § 542.335(1)0), Fla. Stat. (“No temporary injunction shall be entered unless the person seeking enforcement of a restrictive covenant gives a proper bond...,”); Fla. R. Civ. P. 1.610(b) (“No temporary injunction shall be entered unless a bond is given by the movant in an amount the court deems proper, conditioned for the payment of costs and damages sustained by the adverse party if the adverse party is wrongfully enjoined.”).

Conclusion

For the reasons stated above, we reverse the order denying Smart Pharmacy’s motion for a temporary injunction and remand for entry of a temporary injunction against Appellees after a hearing to establish an appropriate bond.

REVERSED and REMANDED with directions.

WOLF, J., and DEMPSEY, ANGELA, Associate Judge, concur.

      . The trial court concluded that Smart Pharmacy did not have a substantial likelihood of success on the merits of its claims against Appellees because some of its alleged damages were "speculative.” ■ This conclusion was erroneous because Smart Pharmacy was not required to prove the full extent of its damages at the preliminary injunction stage; it was only required to "present[] 'proof to a reasonable certainty of the cause of action stated in the complaint’ ” See Atomic Tattoos, 45 So.3d at 65 (quoting Murtagh v. Hurley, 40 So.3d 62, 67 (Fla. 2d DCA 2010)).

      . On this point, we have not overlooked Ap-pellees’ argument that a temporary injunction is unnecessary at this point because Viccari no longer works for Pensacola Apothecary or in the compounding pharmacy ‘ industry. However, this argument is based on facts that were presented in affidavits filed with this court during the pendency of this appeal, not evidence presented to the trial court at the hearing on Smart Pharmacy’s motion for a temporary injunction. Accordingly, this argument does not provide a basis for us to affirm the trial court’s order. See Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002) (emphasizing that the appellate court may only affirm on an alternative ground not argued to the trial court if that ground is supported by the record before the trial court). Moreover, the facts asserted by Appellees do not necessarily render this case moot or establish that a temporary injunction is unnecessary because, as Smart Pharmacy points out in its reply brief, the "post-ruling affidavits do not allege that Pensacola Apothecary has turned away any business that it wrongfully obtained [or] allege that Appellees have returned the confidential information and trade secrets they misappropriated from Smart Pharmacy.” These are issues that may be addressed by the trial court if Appellees seek to dissolve the temporary injunction. See generally Brock v. Brock, 667 So.2d 310, 312 (Fla. 1st DCA 1995).(“A temporary injunction should be dissolved only where the facts and circumstances have changed to the point that equity dictates the injunction is no longer needed.’’).

      . We recognize that Appellees argued below that the noncompete agreement should not be enforced against Viccari because he allegedly resigned from Smart Pharmacy because he was concerned about the legality of certain business practices at Smart Pharmacy. However, the trial court made no findings on this issue, and it was not until oral argument that Appellees tied this claim to the public interest element of the preliminary injunction test. Accordingly, we decline to consider this argument. See Powell v. State, 120 So.3d 577, 592-93 (Fla. 1st DCA 2013) (explaining that the court will generally not consider issues raised for the first time at oral argument).

      . Although Viccari’s noncompete agreement provided that it could be enforced "without [Smart Pharmacy] having to post bond or other security,” this provision is unenforceable. See § 542.335(l)(j), Fla. Stat. ("[T]he court shall not enforce any contractual provision waiving the requirement of an injunction bond or limiting the amount of such bond.”). This provision does not, however, render the entire noncompete agreement unenforceable as Appellees contend. First, the statute does not preclude the court from enforcing the agreement in its entirety, but rather only prohibits enforcement of the “contractual provision waiving the requirement of an injunction bond” (emphasis added). Second, the non-compete agreement contained a severability clause providing that the invalidity of a provision of the agreement would not affect the validity and enforceability of the remainder of the agreement. Third, Smart Pharmacy did not seek to enforce this contractual provision, and its representative testified at the eviden-tiary hearing that the company was prepared to post a bond if necessary to obtain a temporary injunction.