author: PER CURIAM. WELLS, J., SHEPHERD, J.,

text:
    818 ASSET MANAGEMENT, INC., Appellant, v. Judy NEIMAN, Appellee.
    No. 3D08-97.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 2009.
    Rehearing Denied Dec. 8, 2009.
    Arthur J. Morburger, Miami, for appellant.
    Michael Seth Cohen, Coral Gables, for appellee.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

WELLS, J, and SCHWARTZ, Senior Judge, concur.

WELLS, J.,

(specially concurring).

I concur in the affirmance of the trial court’s order denying 818 Asset Management, LLC’s Rule 1.540 motion to set aside a default judgment. I find no merit to the company’s claim that it had not been properly served with process, and thus conclude that no abuse of discretion has been demonstrated. See H & F Tires, L.P. v. D. Gladis Co., Inc. 981 So.2d 647, 649 (Fla. 4th DCA 2008) (“[T]he standard of review for an order denying a motion to vacate a default judgment is abuse of discretion.” (quoting Top Dollar Pawn Too, Inc. v. King, 861 So.2d 1264, 1265 (Fla. 4th DCA 2003))).

818 is a limited liability company which pursuant to section 608.463, Florida Statutes (2007), may be served with process “[i]n accordance with chapter 48 or 49, as if [it] were a partnership.” Section 48.061(2), Florida Statutes (2007), governing service of process on partnerships provides that where “service cannot be made on [a partnership] agent because of failure to maintain such an agent or because the agent cannot be found or served with the exercise of reasonable diligence, service of process may be effected by service upon the Secretary of State as agent of the limited partnership as provided for in s. 48.181.”

The undisputed facts pertinent to this appeal are as follows. In 2004, Judith Neiman sold her condominium to 818, taking back a promissory note in the amount of $115,000 secured by a mortgage on the condominium. 818 defaulted on the note in 2006 by failing to make monthly payments, by failing to pay condominium association assessments, and by failing to pay real property taxes, a failure which resulted in issuance of tax certificates for 2004 and 2005.

In February 2007, Neiman sent notices of default to 818 by certified return receipt mail to both the condominium unit purchased by 818 and the address 818 listed with the Secretary of State as the address of its registered agent. Both notices were returned as undeliverable. The following month, Neiman brought suit to collect on the note and to foreclose the securing mortgage.

In April, Neiman attempted to personally serve Esther Counné, 818’s registered agent and sole manager, with a summons and complaint at the address 818 had listed with the Secretary of State as that of its registered agent. Service could not be affected because 818’s registered agent was no longer at the listed address and because no other address had been provided to the Secretary of State. Neiman also attempted to serve Counné at the condominium unit, the condominium at which Counné claimed in her 1.540 motion she resided at all material times.

Unable to locate 818’s agent at either its registered address or the residence of its sole manager and agent, Neiman served the Secretary of State under the provisions of section 48.181, which accepted service on 818’s behalf. Neiman once again attempted to provide notice to 818 by certified return receipt mail at both 818’s registered agent office and the condominium where Counné lived. Again, both mailings were returned as undeliverable.

On this record it is clear that Neiman satisfied all section 608.468 and 49.061 requirements. Counné claims, however, that because (1) Neiman knew that Counné lived in the condominium that is the subject of this suit; (2) Counné had made and Neiman had accepted two mortgage payments after this suit was brought; and (8) before and after the instant action was brought, Neiman and Counné were in “regular” telephone contact, that service on her via the Secretary of State was defective:

4. The parties, Ms. Neiman and Ms. Counné, were in regular, if not frequent, telephone contact with each other both before and after the initiation of this action.
5. From the date of the giving of the mortgage through the present date, Ms. Neiman always knew that Ms. Counné occupied the subject premises as her full time residence.
8. Specifically, this action was commenced on March 30, 2007; thereafter, Ms. Counné paid, and Ms. Neiman accepted, payments [on April 6 and June 6, 2007],
16. Florida Statute 48.181 only permits service of process upon the Secretary of State as agent for “any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals ... her whereabouts ....”. [sic]

Counné concedes that section 48.181, Florida Statutes (2007), provides that any person doing business in this state as a partner agrees to service of process on the Secretary of State if that person is concealing his or her whereabouts:

... [A]ny person ... who is a resident of the state and who ... conceals his or her whereabouts ... [and who accepts] the privilege ... to operate, conduct, engage in, or carry on a business ... constitutes an appointment ... of the Secretary of State ... as their agent on whom all process in any action ... arising out of any transaction or operation connected with or incidental to the business or business venture may be served....

Counné argues however that a factual dispute remains as to whether she concealed her whereabouts. I disagree. Of course Neiman knew that Counné lived at the condominium at issue, Neiman attempted to serve her there multiple times — all without success — over a period of many months. The fact that Counné made some payments to Neiman during this period and spoke to Neiman one time while Counné was in Canada, as Counné asserted, also does nothing to establish that Counné was not concealing herself. Payments do not establish whereabouts, and while Counné may have spoken to Neiman at some point while she was in Canada from May through September of 2007, Counné does not claim that Neiman initiated the call or had any knowledge as to where and how to contact her. Counné also does not state that she ever told Nei-man where in Canada, with its territory of approximately 3.8 million miles, she could be located.

Moreover, the record is that from February through September of 2007, a period spanning eight months, Counné, the sole registered agent and manager of this partnership, did not claim her mail while at home and made no arrangements whatsoever to either have it forwarded or to otherwise obtain it. In short, Counné’s motion fails to raise a fact issue regarding concealment.

I certainly see no similarities between the facts of this case and those in All Mobile Video, Inc. v. Whitener, 773 So.2d 587 (Fla. 1st DCA 2000). In that case, the plaintiff had successfully initiated contact with the defendant and had received a written response from the defendant advising that the defendant was represented by counsel. These contacts confirm that the plaintiff knew how and where to locate the defendant to either obtain information about services of process or to effectuate it. The plaintiff also had spoken to a number of defendant’s employees and had been in contact with the defendant’s insurance company. Yet despite all of these frequent contacts, and knowledge as to where the defendant could be found, the plaintiff secured a default after she was unable to locate the defendant’s registered agent, apparently a defunct law firm. On these facts, the default secured by the plaintiff was reversed.

Nothing similar was alleged under oath to have happened here. Rather, Counné’s insupportable conclusion that she could always be located at the condominium where she lived whenever she was here combined with her vague claim that she had talked once with Neiman while in Canada and had made a couple of mortgage payments does not give rise to a dispute that would entitle her to relief from the instant judgment.

Accordingly, and because I find no merit in 818’s remaining argument, I join in the decision to affirm the order denying 818’s 1.540 motion.

SHEPHERD, J.,

dissenting.

I respectfully dissent.

This is an appeal from an order denying Appellant’s, 818 Asset Management, LLC, Sworn Motion to Set Aside Default and Final Judgment of Foreclosure. Appellee, Judy Neiman, was the purchase money mortgagee on the sale of the foreclosed property, a condominium unit located in Miami Beach, to 818 in March 2004. Nei-man alleged in her foreclosure complaint that 818 had defaulted under the terms of the mortgage, by failing to make the required monthly mortgage payments.

Unable to serve 818 either at the location of its purported resident agent or the condominium unit, Neiman sought to serve the company by substituted service of process, pursuant to section 48.181(1) of the Florida Statutes (2007), alleging that “[818] ha[d] concealed its whereabouts while engaging in or carrying on a business venture within the State of Florida.” 818⅛ sole principal and managing member, Esther Counné, countered in 818⅛ sworn motion that Neiman at all times knew of her whereabouts, including the critical period during which the substituted service was made and the required statutory notice was mailed to her. See § 48.161(1), Fla. Stat. (2007). Because this sworn testimony is unrebutted by Nieman, I believe we legally are compelled to reverse the order appealed and remand with directions to vacate the final judgment of foreclosure.

818 is a limited liability company, created pursuant to the Florida Limited Liability Company Act. See §§ 608.401-.705, Fla. Stat. (2007). Florida limited liability companies are required by law to “have and continuously maintain in this state: (a) ‘A registered office’ and ‘(b) A registered agent.’ ” § 608.415(l)(a)-(b) Fla. Stat. (2007). Florida limited liability companies also must report and keep current the address of the registered office and name of the registered agent in the records of the Florida Secretary of State. § 608.416, Fla. Stat. (2007). A breach of this obligation by a Florida limited liability company constitutes the appointment of the Secretary of State as the company’s substituted agent for service of process. See § 48.181(1); All Mobile Video, Inc. v. Whitener, 773 So.2d 587, 589 (Fla. 1st DCA 2000). In this case, Neiman’s attempt to serve process on 818 at the address recorded with Florida’s Secretary of State was returned unexecuted because, according to the return of service, “[neither the] corporation [n]or registered agent are [ ] located at [this] address.” As a matter of law, then, 818 designated the Florida Secretary of State as its resident agent for the service of process. See § 48.181(1).

In such a case, a plaintiff can elect to effectuate service on the Florida Secretary of State by (1) serving the public officer designated by law; (2) sending notice of service and a copy of the process by registered or certified mail to the defendant; and (3) filing the defendant’s return receipt and an affidavit of compliance. See § 48.161(1), Fla. Stat. (2007); All Mobile Video, 773 So.2d at 589. Neiman satisfied the first pre-requisite for proper service by serving the Florida Secretary of State. She attempted to satisfy the second prerequisite by mailing a copy of the notice of service and the process by certified mail to Counné at the registered office address where attempted service of process already had been unsuccessful, and also the condominium unit in foreclosure. However, taking as true — as we must — the aver-ments in Counné’s Sworn Motion to Set Aside Default and Final Judgment of Foreclosure, that she had “regular, if not frequent, telephone contact [with Neiman] both before and after the initiation of this action,” and that “she continued making mortgage payments after the initiation of the foreclosure action and Ms. Neiman accepted such payments,” allegedly including two payments during the period her counsel was effectuating service on 818, Neiman’s failure to follow an obvious lead to Counné’s whereabouts — asking Counné herself — renders the attempted service invalid.

The facts of this case closely mirror All Mobile Video. In All Mobile Video, as in the case before us, the plaintiff sought to effectuate substituted service of process on All Mobile Video pursuant to sections 48.181(1) and 48.161(1) of the Florida Statutes (1999). Id. at 588. As in our case, the corporate defendant was without a locatable registered agent in Florida. Id. However, the plaintiff, her counsel, and her insurance carrier were all in contact with representatives of the defendant’s New York office. Id. However, when it came time to satisfy prong two of section 48.161(1), the plaintiff chose to send the required notice of service and the process to the address of a long since defunct, former law firm designated as All Mobile Video’s resident agent in the State of New York, rather than to the company’s current office. Id. at 588-89. All Mobile Video learned of the default taken against them after the plaintiff so advised All Mobile Video’s insurance company. Id. at 589. The First District Court of Appeal reversed the order of default, stating defendant’s failure to accurately register the business’s listing with the New York Department of State did not excuse the plaintiff from his burden “to use knowledge at [his] command and exercise due diligence in attempting to notify [the defendant] of the suit.” Id. at 590. The court explained that “to comply with section 48.161, plaintiffs who seek to employ substituted service but fail to obtain a return receipt must allege that the defendant is ‘concealing his whereabouts, or that they had exercised due diligence in attempting to locate him.’ ” Id. (quoting Chapman v. Sheffield, 750 So.2d 140, 143 (Fla. 1st DCA 2000)). Plaintiffs also must “reasonably employ knowledge at [their] command so that, if possible, the defendant will have notice of the suit.” All Mobile Video, 773 So.2d at 589 (citing McAlice v. Kirsch, 368 So.2d 401, 403 (Fla. 3d DCA 1979) (“When a complainant resorts to constructive service, he should make an honest and conscientious effort, reasonably appropriate to the circumstances, to acquire the information necessary to fully comply with the controlling statutes.”)).

In the case before us, Counné attested in her sworn motion that she was in “regular, if not frequent, telephone contact” with Neiman during the time Neiman was effectuating substituted service process on Counné via section 48.161(1) of the Florida Statutes. That testimony is unrebutted. It also is clear from the record that Nei-man knew or should have known that Counné was the managing member of 818. At no time during this period did Neiman seek to obtain from Counné her current address (or, if it be the case, why it was not possible to do so). Counné’s failure to accurately register 818’s resident office and agent with the Florida Secretary of State did not excuse Neiman from her obligation to use the knowledge at her command to see that 818 received actual notice of the action. For this reason, I would reverse the order denying 818’s Sworn Motion to Set Aside Default and Final Judgment of Foreclosure.

      . Bruce Pardy, Climate Change Charades: False Environmental Pretences of Statist Energy Governance, 26 Windsor Rev. Legal & Soc. Issues 179, 204 n. 37 (2009).

      .The concurrence contends Neiman "attempted to serve Counné [at the condominium] multiple times ... over a period of many months.” See supra p. 661. That is not so. Neiman made but a single attempt to effectuate service on Counné at that location — on April 26, 2007. The return states: "Unit 3D Unable to make contact with anyone at address.” The only other attempt at personal service on Counné was the unsuccessful attempt to serve the resident agent, also on the same date, immediately before proceeding to Counné's home. On this meager effort, Nei-man abandoned personal service and, instead, proceeded to substitute service.

      . Neiman was the purchaser at the judicial sale. Thus, there is no concern over a purchase by an innocent third-party purchaser of the property in this case. Cf. De Vico v. Chase Manhattan Bank, 823 So.2d 175, 175-76 (Fla. 3d DCA 2002).

      . It appears this certified mailing, which occurred on May 29, 2007, and one other— Neiman's certified mailing of a demand letter on February 9, 2007, forms the entire basis for the concurrence's sweeping conclusion at page five that for "a period spanning eight months, Counné [from February through September, 2007] ... did not claim her mail while at home and made no arrangements whatsoever to either have it forwarded or to otherwise obtain it.”

      . Other cases from this district express the same sentiment or apply the same principle. See, e.g., Hanna v. Millbyer, 570 So.2d 1087, 1087 (Fla. 3d DCA 1990) (reversing order denying a motion to quash substituted service of process on the basis the plaintiffs presented insufficient evidence to establish due diligence of existence of concealment); Torelli v. Travelers Indent. Co., 495 So.2d 837, 838 (Fla. 3d DCA 1986) (reversing an order denying a motion to set aside a default final judgment where the injured plaintiff failed to make inquiry of the defendant’s known attorney); Leviten v. Gaunt, 360 So.2d 112, 113 (Fla. 3d DCA 1978) (reversing order denying motion to quash service of process where the plaintiff who alleged the defendant “concealed her whereabouts” failed to pursue two individuals whose names and addresses were provided to the plaintiff by the defendant's parents); Bird v. Int’l Graphics, Inc., 362 So.2d 316, 317 (Fla. 3d DCA 1978) (reversing denial of motion to vacate default judgment on the basis the failure of the sheriff and a process service to locate the defendant at three different addresses furnished by the plaintiff was not enough to establish concealment); Fleischman v. Morris, 260 So.2d 278, 279 (Fla. 3d DCA 1972) (reversing order denying motion to vacate default and final judgment where affidavit and record reflected sufficient search and inquiry was not made to ascertain whether appellants were concealing their whereabouts).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DRIVETIME CAR SALES, INC. d/b/a Drivetime, Appellant/Cross-Appellee, v. ORLANDO’S AUTO SPECIALISTS, INC., Appellee/Cross-Appellant.
    No. 5D08-315.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2009.
    Rehearing Denied Dec. 3, 2009.
    Robert E. Sickles, P.A., and Charles G. Geitner, P.A., of Broad and Cassel, Tampa, for Appellant/Cross-Appellee.
    Nicholas A. Shannin, of Page, Eichen-blatt, Bernbaum & Bennett, P.A., Orlando, for Appellee/Cross-Appellant.
   PER CURIAM.

We find no error in the trial court’s decision to submit the civil theft claim to the jury. We also conclude that Appellee offered sufficient proof of the damages suffered as the result of the theft. The cross-appeal is accordingly moot. The final judgment is affirmed.

AFFIRMED.

MONACO, C.J., GRIFFIN and TORPY, JJ., concur.


author: SAWAYA, J. GRIFFIN, J„

text:
    Harold D. KEENE, Appellant, v. ZONING BOARD OF ADJUSTMENT, etc., et al., Appellees.
    No. 5D07-3058.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2009.
    Rehearing Denied Dec. 7, 2009.
    Michael W. Woodward, of Keyser & Woodward, P.A., Interlachen, for Appellant.
    Ronald D. Wilson, Florahome, Interve-nor, pro se.
    No Appearance for other Appellees.
   ON MOTION FOR REHEARING

SAWAYA, J.

A majority of the judges constituting the original panel has decided to grant rehearing in this case. Accordingly, the original opinion rendered in this case is withdrawn and the following opinion is substituted in its place. The Motion for Rehearing En Banc is denied as moot.

We review a final judgment in favor of the Zoning Board of Adjustment of Putnam County (the Zoning Board) and Ronald and Ossie Wilson (the Wilsons) rendered in the declaratory judgment suit filed by Harold Keene challenging the decision of the Zoning Board to grant the Wilsons a special use permit (SUP). The SUP allowed the Wilsons to conduct a horseback riding school on their land and to board and stable horses on their property to compete in a competitive horseback endurance trail ride on nearby property. We must determine whether the trial court erred in upholding the issuance of the SUP.

Factual and Procedural Background

Keene owns property adjoining the Wil-sons’ 11.25-acre tract of land. He is, to put it mildly, a disgruntled and annoyed neighbor of the Wilsons. The facts of the case will explain his state of agitation. Of the horseback riding school for children and the competitive endurance trail runs operated by the Wilsons for financial gain, it is the endurance trail runs that appear to have been the proverbial straw that broke the camel’s back for Keene and other neighbors. Although the endurance runs occur only twice a year, they involve as many as 45 riders and at least that many horses (at times in the past, as many as 60 riders participated), up to 30 additional staff workers, and the arrival and parking of large motor homes pulling horse trailers. A mobile home is used for the judges to sleep in, and each participant is permitted to erect a temporary 12 x 12 foot enclosure to stable and board each horse for the weekend. Bullhorn announcements, loud music, and the need for temporary port-o-lets to accommodate the weekend visitors, who sleep in whatever accommodation they have brought, further aggravated Keene and increased his annoyance at the activities. While the dissent infers that Keene filed suit because of a dog fight between his dogs and dogs owned by the Wilsons, that is speculation at best. Moreover, Keene is not the only disgruntled and annoyed neighbor.

While workers and perhaps some judges arrive during the week, the event participants generally arrive on Friday to prepare for the Saturday departure from the Wilsons’ land to nearby Etoniah Creek State Forest where the trail ride occurs. Entertainment, including hayrides and karaoke, is provided during the evenings. While Mrs. Wilson pleads ignorance to alcohol use, other than beer, by the participants, there was testimony of drunken hayrides. On Sunday, the event concludes and the participants leave. The Wilsons and Keene live on a narrow paved road with no shoulder; a curve, referred to by one witness as “Dead Man’s Curve,” is located between the Wilsons’ driveway and Keene’s driveway and has a 15-mile-per-hour speed limit. Off-duty deputies were hired to handle the traffic issues at the most recent endurance event.

The Putnam County Comprehensive Plan (hereinafter the Plan) designates the Wilsons’ land as Rural Residential Future Land Use. After it was brought to the attention of zoning enforcement authorities that the Wilsons were conducting a riding school and boarding and stabling horses to compete in the endurance trail rides on nearby property, the Wilsons applied for a SUP. The staff report prepared for the Zoning Board classified the riding school and the horse boarding and stabling activities as both “commercial: agriculture-related uses” and as “rural recreational uses” and recommended approval of the SUP. Specifically, the report recommended that the SUP be issued with a cap of 45 riders in the endurance events with a twice per year limit on those events. Approval of the horseback riding school was recommended with a cap of six children at any time. The Zoning Board issued the SUP as recommended.

Keene filed suit for declaratory relief against the Zoning Board, requesting a judgment declaring that the SUP was erroneously granted. As the litigation progressed, the Zoning Board and the Wilsons came to realize that the uses approved in the staff report — “rural recreational” and “commercial: agriculture-related” uses — could not be used on property like the Wilsons’ that is designated Rural Residential. Section A.1.9.3.A.4 of the Plan establishes the classes of uses allowed on property, like the Wilsons’, that is designated “Rural Residential,” and they are: limited agricultural uses; residential; neighborhood commercial; community facilities and services types 1 and 2; and activity-based and resource-based recreational uses. Putnam County, Fla., Comp. Plan § A.I.9.3.A.4. “Commercial: agriculture-related” uses are not listed and thus not allowed, and the Zoning Board candidly admitted that in the trial proceedings. Specifically, the Zoning Board admitted in its answer that the Plan did not allow “rural recreational” or “agriculture-related commercial use” in an area designated as Rural Residential. Despite the analysis in the report, the Zoning Board asserted that the Wilsons’ proposed uses were “Limited Agricultural Uses,” which are permitted in the Rural Residential Future Land Use category. Alternatively, the Zoning Board proposed that the uses could be considered “resource-based recreational” uses that are permitted by the Plan on land designated as Rural Residential. The Wilsons also contended that the uses were actually either limited agricultural, activity-based recreational, or resource-based recreational uses that may be permitted in the Rural Residential category.

Keene argued that even if the uses were labeled as “activity-based recreational” or “resource-based recreational” uses (even though those categories were not identified in the staff report as the basis for its recommendation that the SUP be approved by the Zoning Board), the uses were still wrongly allowed by the Zoning Board. Keene further argued that the uses fell within the category “commercial: agriculture-related,” which is not allowed on land designated as Rural Residential, even by issuance of a SUP.

The case eventually made its way to trial. The trial court concluded that the Wilsons’ uses were “resource-based or activity-based recreational uses” and thus could properly be allowed, by issuance of a SUP, on the Wilsons’ land. The final judgment gives no explanation for this conclusion and makes no findings of fact to support it. Moreover, the trial court made no findings that the proposed uses did not fall within the category of “commercial: agriculture-related” uses and did not make any findings that if it did, which category of use most closely fits the Wilsons’ proposed uses. Therefore, the issue we must resolve is whether the horseback riding school and the boarding and stabling of horses on the Wilsons’ property more closely fall in the category of activity-based or resource-based recreational uses, which are permissible, or whether they more closely fall in the category of “commercial: agriculture-related” uses, which are impermissible even after issuance of a SUP.

Analysis

In order to resolve this issue, we must apply the provisions of the Plan and the Putnam County Development Code (hereinafter the Development Code), which implements the Plan. Chapter 163, Florida Statutes, specifically requires that the “comprehensive plan set general guidelines and principles concerning its purposes and contents ....”§ 163.3194(4)(b), Fla. Stat. (2007) (emphasis added). Therefore, chapter 163 further requires that comprehensive plans be implemented by the “adoption and enforcement” of local regulations or land development codes. § 163.3201, Fla. Stat. (2007) (“It is the intent of this act that the adoption and enforcement by a governing body of regulations for the development of land or the adoption and enforcement by a governing body of a land development code for an area shall be based on, be related to, and be a means of implementation for an adopted comprehensive plan as required by this act.”) (emphasis added); § 163.3202(1), Fla. Stat. (2007) (“[Ejach county ... shall adopt or amend and enforce land development regulations that are consistent with and implement their adopted comprehensive plan.”) (emphasis added); see also Board of County Com’rs of Brevard County v. Snyder, 627 So.2d 469, 473 (Fla.1993) (“The local plan must be implemented through the adoption of land development regulations that are consistent with the plan.”) (citing § 163.3202, Fla. Stat. (1991)). Section 163.3202, Florida Statutes, further provides:

Local land development regulations shall contain specific and detailed provisions necessary or desirable to implement the adopted comprehensive plan and shall as a minimum ... [r]egulate the use of land and water for those land use categories included in the land use element....

§ 163.3202(2)(b), Fla. Stat. (2007) (emphasis added).

Hence, the Development Code was enacted to provide specific legislative standards that must be applied to the general provisions of the Plan and enforced to regulate the various land use categories in the Plan. Specifically, the Development Code provides: “This Land Development Code is enacted pursuant to the requirements and authority of Section 163.3202, Florida Statutes....” Dev. Code § 1.02. The Development Code further provides:

It is the intent of this Code ... to implement the Putnam County Comprehensive Plan. Chapter 163, Florida Statutes, requires each local government to enact a single land development code which implements and is consistent with the local comprehensive plan, and which contains all land development regulations for the County. This Code is consistent with the Putnam County Comprehensive Plan and implements the Plan.

Dev. Code § 1.03.

Included in the Development Code is the standard contained in section 1.06(c), entitled “General Rules of Interpretation,” that requires the “[m]ore specific provisions of this Code shall be followed in lieu of more general provisions that may be more lenient than or in conflict with the more specific provision.” Section 2.02.01(b) of the Development Code further requires that “[w]here a proposed use could be said to fall within more than one category, the Director shall determine in which category the use most closely fits based on the description of the use category and the examples of uses in the category. A proposed use shall be placed in the most specific category in which it fits.” Hence, when a use or activity falls into a category of permissive uses, but more closely falls into a category that is prohibited by the Plan, the latter trumps the former and the activity must be prohibited. This rule is specifically recognized and applied by the courts. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Stroemel v. Columbia County, 930 So.2d 742 (Fla. 1st DCA 2006); Saadeh v. Stanton Rowing Found., Inc., 912 So.2d 28 (Fla. 1st DCA 2005); Barry v. Garcia, 573 So.2d 932 (Fla. 3d DCA), review denied, 583 So.2d 1034 (Fla.1991).

Keene argues that the proposed uses of the Wilsons’ property more closely fall into the category of “commercial: agriculture-related” uses, which are prohibited. We agree. The Development Code category labeled “Commercial: Agriculture-Related” specifically and explicitly includes the stabling and boarding of horses and riding academies as examples of uses coming within that category:

a. This category includes commercial uses directly related to agricultural production.
b. Examples:
Stabling or Boarding of Farm Animals
Roadside Stand
Livestock Auction
Feed Store
Saw Mill (where wood is from trees grown on the site of the saw mill)
Slaughterhouse (where animals to be slaughtered are pastured on the site of the slaughterhouse)
Veterinary Facilities: Large Animal
Riding Academy
Airstrip for Crop Dusting

Dev. Code § 2.02.20 (emphasis added).

The record reveals that the only use of the Wilsons’ property in conjunction with the trail rides is to board and stable the horses that participate in that event, which takes place in the nearby Etoniah Creek State Forest. Other than coming and going on the trail rides, the horses are being boarded and stabled on the Wilsons’ land. We also note the testimony of Mrs. Wilson who, when asked whether she had discussed with Putnam County the need for a SUP, testified that when she went in to obtain her occupational license, she informed them “about my possibly boarding horses, and the lessons I gave.... ”

As for the horseback riding school, it clearly falls under the label of “Riding Academy.” The materials filed by the Wilsons in conjunction with their application for the SUP include a Pre-Application for Development Review, which is a draft of their proposed development plan. In it, the Wilsons stated that the type of development was “non-residential” and described the uses as: “Riding Lessons, Competitive Trail Rides, Summer Horsemanship Program.” They further described the non-residential uses as including “horseback riding & horsemanship lessons, summer horsemanship program to teach riding & horsemanship to children, two times yearly competitive trail rides.... ” The Wilsons also filed with the application a flier that provided the summer horsemanship sessions would be held for six weeks and limited to six riders per week. The flier described activities for each weekly session as including “all areas of horsemanship, stable management and health, [and] riding English, Western and bareback.”

These uses are clearly commercial uses. The flier concerning the riding academy provided that the cost would be $135 per week per rider. Therefore, for one week, the Wilsons will collect $810 per week, and for the six-week period, they will collect $4,860. Concerning the boarding and stabling of the horses in connection with the trail rides, the Wilsons submitted a form to be filled out by each individual participant requiring that various fees would be paid, including a $65 entry fee. For 45 riders, the total amount collected would be $2,925 per event. If two events are held each year, the Wilsons will collect a total of $5,850 each year. In total, the Wilsons will generate $10,710 in annual revenue. This is hardly incidental as the Wilsons contend. Moreover, the participants in the trail ride are also required to execute a release and hold harmless agreement to protect the Wilsons’ commercial enterprise from liability. We note that the Wilsons admitted in the proceedings below that the SUP “allow[ed] for the operation of various commercial (paid) equestrian activities. ...”

The dissent argues that use of the Wil-sons’ property as a riding academy or to board and stable horses does not mean that the property is being used for agricultural production. We reject this argument in light of the Development Code provisions defining “commercial: agriculture-related” uses to specifically include riding academies and boarding and stabling horses as examples of activities that directly relate to agricultural production. Dev. Code § 2.02.20. Moreover, section 2.02.01(a) of the Development Code expressly provides that “[a] Use Category defines the types of uses that fit within a given category and then lists examples of the uses that fit the definition.” (Emphasis added). The Development Code further provides that when a use fits more than one category, it shall be determined “in which category the use most closely fits based on the description of the use category and the examples of uses in the category.” Dev. Code § 2.02.01(b) (emphasis added). Hence, it is clear that property used as a riding academy and for the boarding and stabling of horses is property used for agricultural production under the pertinent Development Code provisions. In addition, the staff report issued by the Zoning Board specifically provided “APPLICATION: SUP-06-001 Wilson-Agriculture Based Business.”

We note that in the trial proceedings, the Wilsons admitted and specifically argued that the activities for which they sought the SUP are properly classified as “commercial: agriculture-related” uses. Specifically, their trial memorandum states, “The Wilsons contend that the proposed equestrian activities are closer in nature to commercial agricultural uses, than to the rural recreational uses Keene cites.” The Wilsons then referred to “[t]he examples [which] specifically include ‘Stabling or Boarding of Farm Animals’ and ‘Riding Academy.’ ” They obviously changed their tune when it became apparent that “commercial: agriculture-related” uses are not allowed on property, such as theirs, that is classified as Rural Residential, even with the issuance of a SUP.

Turning now to the use categories the Wilsons contend are appropriate, the Plan defines “Activity-Based Recreational Uses” as “recreational activities providing the participant user with a built court, field or structure for a specific activity or activities. Examples of activity-based uses include, but are not limited to, playgrounds, softball and baseball fields, basketball courts and recreation centers.” Comp. Plan Definitions. Similarly, the Development Code defines “Recreation: Activity-Based” uses:

a. This category includes public recreational uses that primarily rely on facilities sports and other active recreational activities as the attraction.
b. Examples:
Ballparks and fields
Playgrounds
Boat Ramps
Public Docks/Boat Moorings

Putnam County, Fla., Dev. Code § 2.02.22.

Clearly this category of use requires a facility, such as a court, field, or structure affixed on the property, designed to be used for sports and recreation. There is absolutely no evidence in this record to show that there is anything resembling such a facility on the Wilsons’ property. It is an 11.25-acre tract of land that is not designed for or intended to be used for anything remotely similar to a playground, softball or baseball field, basketball court, recreation center, boat ramp, or public mooring. Michelle Kennedy, who served on the staff of Putnam County Planning and Development Services and who prepared the staff report for the Zoning Board, testified that she inspected the Wil-sons’ property and had seen “fields, trees, the Applicant’s home, and the barn.”

Although the Comprehensive Plan does not define resource-based recreational activities, the Development Code’s category of “Recreation: Resource-Based” defines this use:

a. This category includes public recreational uses that primarily rely on natural resources as the attraction.
b. Examples:
Public and Private Parks
Public and Semi-Private Beaches

Dev. Code § 2.02.21. There is no natural resource that is the basis of the' attraction to the Wilsons’ property remotely resembling a beach or park. It is nothing more than an 11-plus acre tract of property with a house and barn. Like the prior use category, it is difficult to see how the Wilsons’ use of their property falls into this use category.

The dissent actually contends that the natural resource the Wilsons are relying on is “horseback riding in a rural setting.” That is certainly not a natural resource recognized in the Plan and the Development Code. If that were the case, then all a person would need to qualify for a SUP under the resource-based and recreational-based category is a rural piece of property, a horse and saddle, and a horseback ride. This argument defies logic and common sense, and we totally reject it.

The dissent then argues that that the Wilsons’ proposed uses are in the nature of a fish camp, a marina, or some sort of campground, which are allowed under section A.1.9.3.A.4(f) of the Plan. We disagree. The only part of section (f) that applies to this case is the provision that “[ajctivity-based and resource-based recreational uses are permitted subject to compliance with standards provided in the land development code.” Putnam County, Fla., Comp. Plan § A.1.9.3.A.4(f). The remainder of section (f) applies to “further” regulation of marinas, fish camps, and campgrounds to allow limitations of their scale “in the development review process”; requires that marinas and fish camps be adjacent to specifically named lakes and rivers; and requires that the density of any marina, fish camp, or campground not exceed “12 units or spaces per acre.” Putnam County, Fla., Comp Plan § A.1.9.3.A,.4(f). There is absolutely no evidence that the Wilsons’ property can be used as a campground because it is not divided into units or spaces for that purpose and it cannot be used as a marina or fish camp because the property is not adjacent to any lake or river. Furthermore, to qualify for use as a campground, the property must encompass 20 acres or more; contain clearly defined campsites that abut on a street with each campsite containing a minimum of 1,500 square feet and a width of 30 feet; provide electrical outlets for the RV vehicles that park on the Wilsons’ property; supply water to each campsite by piping and a cold water tap; contain the required sanitation facilities such as showers and restroom facilities; and provide a central sanitary sewer system. Dev. Code § 3.02.36. The Wilsons’ property meets none of these requirements: it is nothing more than 11.25 acres with trees, fields, a house, and a barn.

Moreover, the dissent fails to mention that the Zoning Board only alternatively proposed that the uses may be categorized as resource-based recreational uses. More importantly, the Wilsons did not apply for a SUP based on intended uses of their property that are remotely similar to a fish camp, campground, or marina; the application for the SUP was never analyzed by the Zoning Board for approval based on use of the property as a fish camp, campground, or marina; a staff report was never issued for use of the property as a fish camp, campground, or marina; and a SUP was never issued authorizing the property to be used for those purposes. The testimony of Mrs. Kennedy explains why the Wilsons applied for a SUP and how they intended to use their property:

Q. So if I understand correctly, the Wilsons needed a Special Use Permit because the things they wanted to do were one or more of the things on that list you just read; correct?
A. Yes.
Q. And which things were those?
A. The riding academy and the endurance rides.
Q. Would the endurance rides fit under stabling or boarding of farm animals, was that the relationship there?
A. It would be — the endurance rides are — it’s a temporary storing of those animals while they are not riding.
Q. The part of the — the part of the endurance rides that actually takes place on the Wilson property is, in fact, a temporary stabling or boarding of those horses; is it not?
A. Yes.
Q. Okay. So again, that is why the Wilsons had to apply for the Special Use Permit?
A. Yes.
Q. So just to be clear, in your opinion, then, and what you put in your Staff Report both the competitive trail endurance rides, and the Summer horse camp riding academy were and are Commercial Agricultural-related uses; right?
A. Yes.

It is clear that the Wilsons applied for a SUP to allow the riders in the trail event to board and stable their horses in preparation for the trail ride on nearby property and to allow the riding students to participate in the week-long riding academy. The trail riders and students do not go there to fish, launch boats, or to recreate in a campground.

We conclude that the activities conducted on the Wilsons’ property fit much more closely and specifically into the prohibited “commercial: agriculture-related” use category than into the activity-based or resource-based recreational use categories. This is not even a close call.

Finally, we agree with the dissent that this case will not rivet the attention of many. It is a unique case that is dependent upon application of obscure statutes contained in Putnam County’s Comprehensive Plan and Development Code, and it will be of little interest or significance to anyone other than the parties who have participated in it. But that does not mean that we should be any less thorough in our review of this case or curtail legitimate criticism of the many erroneous assertions we see in the dissent.

Conclusion

To summarize what happened here, after the Wilsons applied for a SUP to conduct the riding academy and horse boarding and stabling activity on their property, the Zoning Board analyzed the staff report that properly placed those activities into the “commercial: agriculture-related” category and erroneously issued the SUP in violation of the provisions of the Plan and the Development Code that clearly prohibit such uses on property designated as Rural Residential. The Zoning Board realized the error after the suit was filed by Keene and proposed the alternative use categories of activity-based or resource-based recreational uses. Unfortunately, the trial court misapplied the law and incorrectly interpreted the pertinent portions of the Plan and the Development Code by failing to apply the rule that the proposed uses must be placed in the use category into which they most closely fit. We believe it is time to correct these errors. We do so by holding that issuance of the SUP ran afoul of the Plan and the Development Code, and the trial court erred as a matter of law in upholding it. Accordingly, the final judgment is reversed and the cause remanded with instructions to enter a declaratory judgment finding the SUP was improperly issued.

REVERSED and REMANDED with instructions.

PLEUS, JR., R., Senior Judge, concurs.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, J„

dissenting.

The author of a dissenting opinion always worries whether anyone will bother to read the dissent or care what it says. In a case such as this, where the majority opinion is as long as this one and contains so much extraneous material, the worry is whether the reader will even find the dissent, much less have the energy to read it. It does not help that the issue in this case is whether Keene is entitled to a judgment under section 163.3215, Florida Statutes, that Putnam County’s issuance of a special use permit to the Wilsons is inconsistent with the County’s Comprehensive Plan — a topic not likely to rivet the attention of most readers. Nevertheless, I suggest to the half-dozen or so of you who are still reading that this case has elements of a pretty good human drama and is an excellent example of what can happen when (the majority of) an appellate court disagrees with a result in the trial court.

I am writing this dissent because I believe Mr. and Mrs. Wilson’s rights to use their land according to the law has wrongly been taken, because Putnam County’s interpretation of its own Comprehensive Plan and Land Development Code has wrongly been rejected, and because Judge LaRue’s factual findings and legal conclusions have been wrongly ignored and his judgment in favor of the Wilsons wrongly reversed.

Mr. and Mrs. Wilson own 11.25 acres of land in Putnam County, occupied by their residence and horse ranch. Twice annually, they host a properly permitted competitive trail and endurance ride into the adjacent Etoniah State Forest, using their property as the staging area. This is an activity sanctioned and judged by the South Eastern Distance Riders Association [“SEDRA”]. There is a $65 fee for participation. Participants arrive at the Wil-sons’ ranch on Friday in their campers or other recreational vehicles, bringing their horse and portable pen that hooks to their horse trailer. On Saturday, after camping overnight, the participants set off on horseback into the State Forest. They participate in a full day’s ride through the Forest, again stay overnight in their campers or RV’s and leave by Sunday. According to the Wilsons, this activity proceeded with Keene’s cooperation until December 2005, when there was a fight between the Wilsons’ dog and Keene’s dog. Only then did it become an issue of state-wide land-use policy concern.

After it was determined that the County would require the Wilsons to get a Special Use Permit to continue the trail rides and for Mrs. Wilson to continue to give riding lessons to local children at their home, Putnam County conducted a contested hearing and site visits by staff and several County commissioners were made. The Special Use Permit was approved with conditions that limited the number of annual rides to two and the number of riding students to six.

Mr. Keene promptly filed suit pursuant to section 163.3215, Florida Statutes, challenging the Wilsons’ Special Use Permit as a “Development Order” that is inconsis tent with the County’s Comprehensive Plan. After a multi-day non-jury trial involving some seventeen witnesses, including an “expert” land planner hired by Mr. Keene, Judge LaRue rejected Mr. Keene’s claim that the Special Use Permit was not consistent with the Comprehensive Plan.

Section 163.3125 only applies to inconsistency with a county’s Comprehensive Plan. Therefore, the issue in this case simply is whether the trial court erred by deciding that the Wilsons’ proposed uses of their property (the trail rides and riding lessons) are consistent with Putnam County’s Comprehensive Plan. In his cogent order, Judge LaRue not only found no inconsistency, he found that “the activities ... are specifically authorized ... as Activity-based and Resource-based within the meaning of the Comprehensive Plan....” Here are Judge LaRue’s conclusions:

1. The activities permitted under the SUP are consistent with, and meet all the requirements of, the goals, objectives and policies of the Future Land Use Element of the Putnam County Comprehensive Plan and of Section 12.12.03 of the County’s Land Development Code.
2. The activities permitted under the SUP are specifically authorized as a special use in the Rural Residential future land use zoning classification of the Wil-sons’ parcel as Activity-based and Resource-based within the meaning of the Comprehensive Plan and the Land Development Code.
3. The location, scale and intensity of the activities are compatible with the overall character of the existing future development of the area and are consistent with the surrounding land in the area.
4. The activities do not materially adversely impact nor unduly restrict the enjoyment of permitted uses in the surrounding area or by neighbors.
5. The Staff report citing Rural Recreational use as being one of the uses allowed for the Wilsons’ parcel under the Comprehensive Plan was in error, but the term was not specifically relied upon by the ZBOA.
6. The ZBOA heard evidence during its April 19, 2006 hearing on the Wilsons’ application for the SUP and made its decision to issue the SUP based on many factors, including the uses sought under the SUP which were Activity-based and Resource-based within the meaning of the Comprehensive Plan.
7. The SUP could have been issued by the ZBOA without the incorrect reference in paragraph a. of the Staff Report as to the Wilsons’ parcel allowing Rural Recreational uses under the Comprehensive Plan.

(Emphasis added). In order to verify the correctness of this judgment, we need only go to the Comprehensive Plan itself.

Under the Comprehensive Plan, the future land use classification for the Wilsons’ property is designated “Rural Residential.” The Rural Residential category, which is number 4 in the Comprehensive Plan, is described in seven paragraphs that specify what it does and does not include, summarized as follows:

(a) Limited Agricultural Uses are permitted
(b) Residential Development is allowed with a maximum density of one dwelling per 5 acres or per one acre depending on various factors
(c) Neighborhood Commercial Uses allowed in a PUD zoning district
(d) No industrial use allowed
(e) Community facilities may be allowable
(f) Activity and Resource-based recreational uses are allowed
(g) Maximum Floor Area Ratios for residences are specified

(Emphasis added).

The section (f) category of “Activity-based” and “Resource-based” recreational uses expressly includes “marinas, fish camps, campgrounds and other camps,” which the Plan says “may be limited ... to mitigate impacts on the natural resources they utilize and to mitigate impacts on adjacent residential development.” This provision in the Comprehensive Plan leaves no doubt that the Activity-Resource-Based category in Section 4(f) of the Comprehensive Plan is intended to allow uses in the nature of a campground or a fish camp or marina for the enjoyment of adjacent natural resources such as a lake, a river, a marsh, a forest, or trail. If the Wilsons’ activities fit within this category of the Comprehensive Plan, then the trial judge was right and the majority is wrong. Clearly, the camping and staging of the trail ride into the adjacent State Forest fits the Resource-Based Comprehensive Plan category.

The majority’s refusal to accept that the Wilsons’ Special Use Permit is not inconsistent with the Comprehensive Plan is predicated on the contention that there is a category of land use in the County’s Land Development Code that fits the Wil-sons’ use more specifically than Recreation-Resource Based and since that category is not a Rural Residential category, the use is inconsistent with the Comprehensive Plan. The County’s Land Development Code does quite logically say that a proposed use should be placed into the category into which it most directly fits, for purposes of applying the Land Development Code, but that does not take the majority very far. First, the category they prefer is not more specifically applicable. More important, if a proposed land use is allowed under the Comprehensive Plan, it is not inconsistent with it.

The land use category in the County Land Development Code that the majority has settled on as being more specifically applicable to the Wilsons’ proposed uses is called “Commercial — Agriculture-Related.” Their position is this is the one and only slot into which the Wilsons’ activities can fall.

But it does not fit that category. The definition of this land use category in the code says it applies to “commercial uses directly related to agricultural production.” (Emphasis added). The charging of a $65 fee for participation in a SEDRA trad ride does not make it a “commercial” use. It would seem instead to reinforce that it is a recreational use like any other “walk,” or “run,” or “ride” in which enthusiasts pay a fee for participation. Moreover, there is no record evidence I can find that either the trail rides or the riding lessons have anything to do with “agricultural production.”

The majority simply ignores the “agricultural production” component of the section it seeks to apply. Instead, the majority relies on the examples given in the code of activities that might fall into this “Commercial — Agriculture-Related” category. The listed examples include the two that the majority has chosen to apply:

Stabling or Boarding of Farm Animals
Roadside Stand
Livestock Auction
Feed Store
Saw Mill (where wood is from trees grown on the site of the saw mill)
Slaughterhouse (where animals to be slaughtered are pastured on the site of the slaughterhouse)
Veterinary Facilities: Large Animal
Riding Academy
Airstrip for Crop Dusting

(Emphasis added).

Obviously, the use of examples in the Land Development Code is meant to elucidate the Code’s definition of the category, not the other way around. Inclusion of an example in this list does not mean that those uses are necessarily “commercial” or that they necessarily relate to “agricultural production.” That is why they are called “examples” — they may or may not apply. Clearly, not all “Stabling or Boarding of Farm Animals” is a commercial activity. Besides, “Commercial — Agriculture-Related” suggests the operation of a business on the property as its principal use. What the Wilsons propose is an incidental fee-generating activity on rural residential property, not agriculturally-related activity on commercial property. The “Commercial — Agriculture-Related” category is designed to specify where commercial activities related to agricultural production are allowed to be sited, i.e. you can’t put a stable or a slaughterhouse in the local mall.

Even more to the point, the “Stabling or Boarding of Farm Animals” in a commercial category certainly implies, as a matter of common understanding, that the landowner is paid money to stable or board the farm animals of others. Here people come and camp overnight on the Wilsons’ property with their own horse. How is that “stabling or boarding?” And how is it more like “stabling or boarding” than camping?

The only argument the majority offers that the special permitted use constitutes the “Stabling or Boarding of Farm Animals” is that the participants in the trail rides keep their horses in their portable pens on the Wilsons’ property when they are not actually out on the trail. That is about as oblique an example of “Stabling or Boarding of Farm Animals” as one could conjure up. Allowing the trail ride participants to keep their horses on the property overnight while they sleep alongside in them campers does not make this the “stabling or boarding of farm animals” any more than driving a race car onto the property would make the ranch a race track. Besides, the fee here is for the competitive trail ride, not for the “stabling or boarding of farm animals.” If the majority is right, then the Wilsons could simply announce that the horses stay for free and eliminate the Comprehensive Plan issue.

Assuming that the majority can somehow surmount the obstacle that the category of “Commercial — Agriculture-Related” only applies to “uses directly related to agricultural production” and the fact that the Wilsons’ proposed activities have nothing to do with agricultural production, I will grant that the “Riding Academy” example is somewhat descriptive of Mrs. Wilson’s riding lessons. But I don’t think a residential property becomes a “Riding Academy” if a few children are given riding lessons there. “Riding Academy” implies a place of business open to the public to go and learn riding. It is a place where the owner can sell as many riding lessons to as many people as they can get through the door. It is a place where horses can be rented to ride and where equestrian goods and supplies are sold. That is not what the Wilsons are doing. Remember, section 163.3215 only does one thing. It provides a remedy if a county approves a development order that is inconsistent with the Comprehensive Plan. What the Wilsons are doing is engaging in an activity that relies on the attraction of natural resources and their facilities for active recreation, i.e., horseback riding in a rural setting. As the trial judge said, this is expressly allowed in the Comprehensive Plan. The only legitimate legal issue in this case is whether allowing riding lessons for six children at the Wilsons’ home is not an Activity-Resource-Based use under the Comprehensive Plan. Whether it is similar to examples of possible commercial agricultural uses in the Land Development Code is irrelevant.

I do not suggest that it is improper to refer to the County’s Land Development Code to understand the meaning of the terms within the Comprehensive Plan. On the contrary, I maintain that the Comprehensive Plan is the only document we should be interpreting and the way in which the County uses and interprets these terms is relevant. So, what does the County Land Development Code say about “Recreation-Resource-Based?” It says this category “includes public recreational uses that primarily rely on natural resources as the attraction.” This perfectly describes the Wilsons’ proposed use and is a description entirely consistent with the campgrounds, camps, marinas, and fish camps specifically identified in the Comprehensive Plan. In order to find inconsistency, the majority again has to bypass the definition and rely on the Code’s “examples.” The only two examples given in the Land Development Code are parks and beaches. So, says the majority, this can’t be a Resource-Based Recreational use because it isn’t a park or a beach. Just as the majority ignores that the Code defines the “Commercial-Agriculture-Based” land use category as “commercial uses directly related to agricultural production,” it ignores that Recreation-Resource-Based includes recreational uses that rely on natural resources as the attraction. If the majority is right that Recreation-Resource-Based means only a park or a beach, then campgrounds and fish camps would not qualify, and yet we know that they do because the Comprehensive Plan says so.

The majority accords no deference to the trial judge’s detailed order, presumably because the only legitimate issue is the interpretation of the Comprehensive Plan. That is why most of the majority opinion is irrelevant, and its recitation of what it sees as the facts, colorful as they may be, do not matter because it is the trial judge’s job to determine the facts. The trial court heard Keene and his friends and his expert and concluded that what the Wilsons were doing was Activity-Resource Based, that the location, scale and intensity of the activities were compatible with the surrounding areas and that there was no material or undue impact on the neighbors.

Finally, there is a certain irony in the outcome of this appeal. Environmentalists and other organized opponents of large-scale developments, which section 163.3215 was actually intended to address, probably never imagined, in their wildest dreams, that a proposed Development Order, consistent on its face with a County’s Comprehensive Plan, could be attacked as inconsistent by matching it with an example listed somewhere else in a county’s development code.

I would affirm.

      . The dissent questions whether the SUP issued to the Wilsons is a development order under section 163.3215. This is not an issue raised by the parties in the instant proceedings. Even the Wilsons admitted in the trial proceedings that “the permit purports to be a development order...." Nevertheless, the SUP issued in this case is clearly a development order. Section 163.3164(7), Florida Statutes, specifically defines "development order" as "any order granting, denying, or granting with conditions an application for a development permit.” Section 163.3164(8) defines "development permit" as an official action having the effect of permitting the development. Section 163.3215(6) defines “development" as having the meaning in section 380.04, Florida Statutes, which defines “development” as "making any material change in the use or appearance of any structure or land....” The Zoning Board admitted in the trial proceedings that the SUP was issued as a development order and the record reveals that the Wilsons applied for a development permit. They filed a Pre-Application for Development Review that specifically states:
      Prior to filing for development plan review for Class II or Class III development projects, the owner or developer must submit a draft version of the plan of development for review by the Development Review Committee (DRC).... The purpose of the pre-application conference is for the owner or developer to introduce and describe the proposed development project. ...
      The application for development further requested that the owner or developer provide a "Project Description: (Please provide a conceptual site plan showing proposed improvements on the site....)." The proposed uses and improvements the Wilsons included in their response stated that the project would be used to give riding and horsemanship lessons and trail rides twice yearly, that a mobile home would be used for restroom and kitchen facilities, and that additional handicapped facilities would be provided for the events. The Wilsons applied for a development permit for their proposed development project and received a development order.

      . The land use element is a specific part of a comprehensive plan. See § 163.3177, Fla. Stat. (2007).

      . The dissent states that the trail rides were permitted by the Florida Division of Forestry and sponsored by the South Eastern Distance Riders Association. These facts have absolutely nothing to do with whether the Wilsons were legally using their property to board and stable the horses that participate in the riding event that takes place on nearby property.

      . The Florida Division of Forestry requires a permit to conduct the rides in the State Forest, which the Wilsons obtained.

      . Apparently, in order to find the meaning of the term "development order," it is necessary to go to chapter 380, the legislation pertaining to "Land and Water Management.” Section 380.031 defines a "Development Order” to be "any order granting, denying, or granting with conditions an application for a development permit.” "Development Permit” is defined to include "any building permit, zoning permit, plat approval, or rezoning, certification, variance, or other action having the effect of permitting development as defined in this chapter.” In order to ascertain what constitutes “development,” it is necessary to examine the various provisions of section 380.04, entitled "Definition of Development." There is no category in section 380.04 suggesting that a special use permit like the one we have here pertains to development. The closest is section 380.04(l)(b), which identifies as "development:” "[a] change in the intensity of use of land, such as an increase in the number of dwelling units in a structure or on land or a material increase in the number of businesses, manufacturing establishments, offices, or dwelling units in a structure or on land.” But this is not that. Allowing a total of four nights of camping connected to trail rides into the adjacent State Forest and riding lessons for up to six children is not “development" and the challenged permit is not a development order. If it is not a development order, Mr. Keene does not have a cause of action under section 163.3215. Section 163.3215 is not designed to cover every land use dispute in Florida.

      . Here, verbatim is the Comprehensive Plan’s authorization of Activity-Based and Resource-Based recreational uses for the Rural-Residential category:
      f. Activity-Based and resource-based recreational uses are permitted subject to compliance with standards provided in the land development code. The location, scale and intensity of activity and resource-based recreational uses shall be compatible with the overall character of the existing and future development of the area. Certain resource-based recreational uses shall be further regulated as follows:
      1. Marinas and fish camps will be permitted only adjacent to Georges Lake, Crescent Lake, Lake George and the St. Johns River and its major tributaries and are subject to compliance with detailed and specific standards of the land development regulations.
      2. Marinas, fish camps, campgrounds and other camps may be limited in scale in the development review process to mitigate impacts on the natural resources they utilize and to mitigate impacts on adjacent residential development.

      . The majority makes much of a County employee’s so-called "admission” that a "Commercial — Agricultural Related” use is not allowed in Rural Residential, but that is not the issue. Ms. Kennedy specifically testified that the Wilsons' uses are Activity-Resource-Based recreational uses. Besides, this employee’s understanding, or lack thereof, may not have carried much weight with the trial judge since she is the staff person referred to in the first part of the majority opinion who initially and erroneously recommended approval of the permit as a "Rural Recreational” use.

      . Unfortunately, the record is not well developed concerning this $65 fee. If it merely covers expenses, rather than generate a profit, to call this a "commercial” use becomes even more far-fetched.

      . In this case, the County has no axe to grind in this dispute between neighbors. The County wrote these documents and lives and works with them every day. The fact that Putnam County agrees that the Wilsons’ special uses are Activity-Resource-Based and not inconsistent with their Comprehensive Plan is not irrelevant. Putnam County made the policy decision in its Comprehensive Plan to allow activity/resource-based uses, including camping in rural residential areas, and has approved the Wilsons’ use to be consistent with their Comprehensive Plan.


author: KAPLAN, MICHAEL G., Associate Judge.

text:
    REIMBURSEMENT RECOVERY, INC., a foreign corporation authorized to do business in the State of Florida, Appellant, v. INDIAN RIVER MEMORIAL HOSPITAL, INC., a Florida non-profit corporation, Appellee.
    No. 4D08-1098.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 2009.

      Craig M. Rappel of Rappel Health Law Group, P.L., Vero Beach, for appellant.

      Harvey W. Gurland and Michelle M. Gervais of Duane Morris LLP, Miami, and Lewis W. Murphy, Jr. of Murphy & Walker, P.L., Vero Beach, for appellee.
   KAPLAN, MICHAEL G., Associate Judge.

The appellant, Reimbursement Recovery, Inc. (RRI), timely appeals an amended final judgment awarding the appellant money damages following a bench trial resolving a breach of contract action. The appellee, Indian River Memorial Hospital, Inc. (IRMH), cross-appeals the trial court’s award of prejudgment interest to RRI. Because the trial court’s factual findings were supported by competent, substantial evidence, we affirm the damages award. We further affirm the trial court’s award of prejudgment interest to RRI, as the payment of the interest upon submission of invoices was contemplated by the parties’ contract.

In 2001, IRMH was reimbursed by Medicare for hospital services based upon a favorable wage index established for the Fort Pierce area, but was about to lose the Fort Pierce area designation. If the designation was lost, IRMH would revert to either the least favorable rural classification or an intermediate Orlando classification. IRMH filed its annual application with the Medicare Geographic Classification Review Board but neglected to apply for re-classification of its wage index. Just before the application deadline, RRI approached IRMH informing them that if they did not act immediately they would revert back to the rural classification. Following execution of a letter agreement between the parties, RRI made a last minute application on behalf of IRMH to reinstate the more favorable Fort Pierce area wage index. That application was ultimately approved by the Medicare board resulting in payment to the hospital of several million dollars more than it would have received under rural classification, and about a million dollars more that it would have received had it been classified under a moderately favorable Orlando area designation. The court considered evidence on the issue of whether RRI’s 15% commission was payable upon the several million that were saved had IRMH reverted to the rural classification or the million IRMH saved over a scenario in which the existing application might have been amended to seek an Orlando wage index.

The factual issue in this case was whether RRI’s fifteen percent commission provided for in its contract with IRMH was properly determined by the trial court. Pursuant to the contract, the commission was to be calculated at “15% of the monies collected by [IRMH] resulting from [RRI’s] services related to this specific issue of geographic reclassification” by the Medicare Geographic Classification Review Board. At trial, RRI sought $1,325,412, plus prejudgment interest of $773,494.00. After consideration of all of the evidence produced at trial, the court concluded that RRI was only entitled to $239,912, which equaled 15% of the additional benefits obtained for IRMH as a result of the reclassification that it obtained through the assistance of RRI. The trial court went on to award prejudgment interest to RRI pursuant to the contract on a finding that “RRI began submitting monthly invoices on or about November 5, 2002”. The court reasoned that “although the evidence establishes that the invoices were not completely accurate, IRMH made no effort to calculate what it thought were the correct charges and then to attempt to submit same until December 14, 2007. The Court finds that RRI is entitled to prejudgment interest on the actual amounts that were due as of December 5, 2002”. The prejudgment interest was determined to be $111,429.64.

DAMAGES

The standard of review applicable to the trial court’s factual findings is whether they are supported by competent, substantial evidence. Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278 (Fla. 1st DCA 2003).

It is undisputed that IRMH breached its contract by not timely paying pursuant to its contract. The only issue is the amount of damages under the parties’ agreement. That question turns exclusively on the amount of additional monies earned by IRMH as a result of RRI’s actions. Put in other words, what would the hospital have earned had RRI not acted? Would its earnings have been determined under the rural wage index based upon the hospital’s initial application that failed to request reclassification or would it have been permitted to amend the initial application to seek reimbursement under the Orlando wage index?

That issue was addressed at trial by IRMH’s expert, Julia DiFrancesco. DiFrancesco opined that the Medicare Geographic Classification Review Board would have rejected IRMH’s initial application as incomplete and would have provided an opportunity for the hospital to amend its application to seek the Orlando wage index. Counsel for RRI objected generally to DiFrancescos’ expertise in the field, but made no contemporaneous objection to the specific questions resulting in the expert’s opinions.

This court need not determine whether DiFrancesco’s opinions are supported by the other evidence in the case because RRI failed to seek their exclusion. As no objection to this crucial evidence was raised below, it was waived. See Anderson v. State, 863 So.2d 169, 180-81 (Fla.2003) (holding that “speculation” objection as to expert testimony was waived where a different ground for objection was offered below).

While the trial court does not exclusively rely upon the opinions of IRMH’s expert, those opinions, along with the other factual findings made by the trier of fact, amount to competent, substantial evidence upon which the trial court correctly relied to determine RRI’s damages.

PREJUDGMENT INTEREST

The contract between the parties called for 1% interest per month on unpaid invoices. It is undisputed that the monthly invoices submitted by RRI beginning November 5, 2002 were not completely accurate. The trial court found as such, but further found that IRMH made no effort to calculate what it believed to be the correct invoice charges and submit those figures to RRI until December 14, 2007. The parties understood and recited RRI’s right to prejudgment interest by providing in a letter contract that “a monthly interest charge of 1% will be due and payable to RRI for any amounts not paid within thirty days of RRI’s invoices.” The trial court found that RRI is entitled to prejudgment interest on the actual amounts due as of December 5, 2002 and established that amount at $239,912.

The trial court’s decision concerning entitlement to prejudgment interest is reviewed de novo. Berloni v. Della Casa, 972 So.2d 1007 (Fla. 4th DCA 2008). Where a disputed claim becomes liquidated by the trier of fact as to the amount recoverable, interest should be awarded from the date the payment was due. Id. (quoting Celotex Corp. v. Buildex, Inc., 476 So.2d 294, 295 (Fla. 3d DCA 1985)). “Prejudgment interest cannot be denied simply because the amount of damages was disputed.” Id. The certainty of the amount of loss does not affect the award of prejudgment interest. Id.; Miller v. Transflorida Bank, 656 So.2d 1364, 1367 (Fla. 4th DCA 1995).

IRMH argues that because the invoices were only estimated amounts and not true invoices prejudgment interest is not owed. This argument is contrary to the obvious intention of the parties. The parties recognized in the contract that there might be an adjustment of the amounts owed once actual payments were received by the hospital, but that monthly invoices were to be submitted to IRMH pending final payment from the federal government resulting in some adjustment to the submitted invoices. Because the award of prejudgment interest is consistent with the apparent intention of the parties under a contract which is, at a minimum, ambiguous, the trial court’s judgment as to this issue must be affirmed.

Both parties move for appellate attorney’s fees based upon the filing of competing offers of judgment. This Court grants both motions conditioned upon that party exceeding their offer of judgment pursuant to statute.

Accordingly, we affirm the trial court in all respects as to both the appeal and cross-appeal and conditionally grant the parties’ respective motions for appellate attorney’s fees.

Affirmed.

WARNER and POLEN, JJ., concur.


text:
    Hector CHAVEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2597.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 2009.
    Hector Chavez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS and CORTINAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.800. Defendant-appellant Hector Chavez entered into a negotiated plea and was sentenced to ten years in prison followed by eight years of probation followed by two years of community control. The written sentencing order specifies “no credit time served per court.” Defendant-appellant alleges that he is entitled to credit for five hundred sixty-four days served in county jail prior to sentencing. The postconviction record now before us does not contain the plea colloquy or the written plea agreement.

On appeal from an order summarily denying a motion for postconviction relief, this court is required to reverse unless the postconviction record conclusively shows that the defendant is not entitled to any relief. Fla. RApp. P. 9.141(b)(2)(D). We therefore reverse the order now before us and remand for further proceedings. If the trial court again denies relief, it shall attach record excerpts conclusively showing that the defendant is not entitled to any relief.

Reversed and remanded for further proceedings consistent herewith.


text:
    Billy F. HANSEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3933.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2009.
    Billy F. Hansen, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Tallahassee Bureau Chief-Criminal Appeals, Tallahassee, for Respondent.
   PER CURIAM.

GRANTED. The order below dismissing the appellant’s motion for rehearing is QUASHED. See Earley v. State, 937 So.2d 260 (Fla. 5th DCA 2006).

BARFIELD, DAVIS, and ROBERTS, JJ., concur.


text:
    Joel ROTOLANTE, Appellant/Cross-Appellee, v. Denise ROTOLANTE, Appellee/Cross-Appellant.
    No. 5D08-685.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.

      Stanley Wolfman, Melbourne, for Appellant/Cross-Appellee.
    Maureen Monaghan Matheson, of Matheson Appellate Law, P.A., Satellite, for Appellee/Cross-Appellant.
   PER CURIAM.

In this dissolution proceeding, Joel Ro-tolante (“the former husband”) appeals the Supplemental Final Judgment and the Order Finding Contempt, Establishing Ar-rearage and Providing for Purge and/or Incarceration entered by the trial court. Denise Rotolante (“the former wife”) cross-appeals. We affirm in part and reverse in part.

In June 2005, four years after the dissolution proceedings were initiated, the trial court entered a judgment dissolving the parties’ marriage and reserving ruling on all other issues. Following a trial on the matter, the remaining issues were resolved in early 2008 by the entry of a supplemental final judgment, an order finding the former husband in contempt for nonpayment of support, and an order denying the former husband’s motion to set aside the parties’ postnuptial agreements.

On appeal, the former husband challenges various aspects of the alimony award. He also asserts that the postnup-tial agreements were conditioned upon an attempted reconciliation by the parties and, therefore, the trial court erred in enforcing those agreements. Finally, he contends the contempt order was not supported by adequate findings. On cross-appeal, the former wife argues the trial court erred by failing to award her the additional sums incurred by her due to the former husband’s failure to repay the parties’ margin loan, by failing to adequately enforce the former husband’s obligation to pay medical expenses, and in denying her motion for an award of additional attorney’s fees.

The issues presented by the parties center around the trial court’s interpretation of two postnuptial agreements executed by the parties during the pendency of the divorce proceedings. The relevant provisions required the former husband to pay the former wife $5,620.00 per month beginning in June 2003, “as support for her and the children,” as well as certain medical bills and the outstanding balance on a margin loan. The former husband challenges the trial court’s enforcement of these agreements. The record demonstrates that the trial court properly found the agreements to be valid and binding.

Next, we find no error in the trial court’s decision to enforce the parties’ contractual support provision and to allocate the amount between alimony and child support. At the former wife’s request, the court allocated the $5,620.00 contractual support figure into specific amounts for alimony and child support. The support provision, in particular, had previously been held to be valid and enforceable by prior orders of the trial court. In the contempt order, the court required the former husband to pay arrearages owed on the support amount and to reimburse the former wife for attorney’s fees expended in obtaining enforcement thereof. See, e.g., Zalka v. Zalka, 100 So.2d 157 (Fla.1958); Beasley v. Beasley, 154 So.2d 874, 875 (Fla. 1st DCA 1963). The former husband failed to preserve for appellate review his various arguments challenging the trial court’s factual findings as being inadequate. See Alpha v. Alpha, 885 So.2d 1023, 1027 (Fla. 5th DCA 2004). In any event, because the support amount was contractual in nature, the findings required by section 61.08, Florida Statutes were unnecessary. See Hannon v. Hannon, 740 So.2d 1181, 1187 (Fla. 4th DCA 1999) (alimony statute does not displace nuptial agreements); Todd v. Todd, 734 So.2d 537, 541 (Fla. 1st DCA 1999)(fact-finding requirements of section 61.08 are applicable where entitlement to alimony or amount is at issue).

We also reject the former husband’s contention that the trial court was required to consider whether a modification of the support amount was warranted under section 61.14, Florida Statutes, as he never requested modification below. However, we do agree with the former husband that the trial court should have designated the type of alimony that was awarded. This omission appears to be in the nature of a scrivener’s error, as the type of alimony is readily apparent from the record. Therefore, we remand to the trial court with instructions to correct the supplemental judgment to specify that the alimony be allocated as permanent periodic alimony.

We also agree with the former husband that the trial court erred in not including the former wife’s dividend and interest income on the Morgan Stanley account as income for purposes of calculating the parties’ child support obligations. She received ownership of the accounts pursuant to the parties’ postnuptial agreements and they were already generating monthly income by the time the final order was entered. Inclusion of these earnings in the wife’s income was mandated by section 61.30(2)(a)(10) of the Florida Statutes. See Henin v. Henin, 767 So.2d 1284 (Fla. 5th DCA 2000)(holding wife was chargeable with one-half of the fair rental value of her exclusive occupancy of property since it was not included in the award of child support). See also Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003)(holding when the court’s distribution of assets affects the parties’ gross income those awards must be taken into account when calculating child support). After the parties’ child support obligations are recalculated, the amount of the alimony award should then be refigured by deducting the former wife’s portion of child support from the $5,620.00 total contractual support figure. We affirm the award of alimony and child support in all other respects.

As for the former husband’s argument concerning enforcement of other provisions of the parties’ postnuptial agreements, such as repayment of the margin loan, we conclude that the trial court correctly interpreted as conditional on reconciliation, only those provisions containing express conditions. The language of the agreements, the circumstances surrounding their execution, and additional competent substantial evidence at trial supports this interpretation. For example, requiring repayment of the margin loan was not expressly conditioned on the reconciliation of the parties. Rather, it plainly requires the former husband to repay the entire outstanding balance. Accordingly, we affirm the trial court’s decision to enforce repayment.

The former husband’s final issue is also without merit. Specifically, the record refutes his challenge to the contempt order and reflects that the trial court made adequate findings that he willfully failed to pay support in violation of a prior court order, despite having the ability to pay. See Dileo v. Dileo, 939 So.2d 181, 184 (Fla. 5th DCA 2006). These findings are supported by competent substantial evidence and are, therefore, upheld.

Turning to the cross-appeal, the former wife is not entitled to receive the additional relief she seeks with one minor exception. We agree with the trial court’s conclusion that the former wife was only entitled to receive payment of the amount of the margin loan listed in the postnuptial agreements because the agreements did not specify a time for performance or provide for payment of penalties and interest in the event of delayed payment or nonpayment. However, although the postnup-tial agreement recited that the approximate amount of the margin loan was $282,000.00, it was established without dispute at trial that the actual amount of the margin loan at the time of the agreement was $283,032.85. The final judgment awarded the wife the amount of $282,000.00 for the unpaid margin loan. The ex-husband concedes that the amount of the final judgment is in error and must be adjusted to reflect the actual balance of $283,032.85. Upon remand, such adjustment must be made.

We also agree with the trial court’s interpretation of the medical expenses provision as having prospective application only through the date of trial. Despite the use of the term “future” in the provision, there is nothing to indicate an intention by the parties to obligate forever the former husband to pay all medical bills incurred by the former wife and children. See Siegel v. Whitaker, 946 So.2d 1079, 1083-84 (Fla. 5th DCA 2006)(courts must interpret settlement agreements in a manner that accords with reason and avoids absurd constructions).

Finally, we reject the former wife’s assertion that she was entitled to receive an award of attorney’s fees in the supplemental judgment based on the former husband’s contempt. In making this assertion, the former wife overlooks the fact that the contempt order granted her request for attorney’s fees and costs expended in obtaining enforcement of the support arrearages.

We remand with directions to the trial court to correct the supplemental final judgment to recalculate the alimony award, to specify that the type of alimony awarded was permanent periodic alimony payable until the former wife’s remarriage or death and to correct the amount of the margin loan to $283,032.85.

AFFIRMED in part; REVERSED in part; and REMANDED.

PALMER, ORFINGER, JJ., and THOMPSON, E., Senior Judge, concur.


text:
    Gary A. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1752.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.

      Gary A. Williams, Wewahitchka, pro se.
    No appearance for Appellee.
   PER CURIAM.

Gary A. Williams appeals from the denial of his Florida Rule of Criminal Procedure 3.800(a) motion. In his Volusia County case, Williams was charged with capital sexual battery upon a person less than twelve years of age. He entered into a favorable negotiated plea in which he pled nolo contendere in return for the lesser charge of attempted sexual battery while in a position of familial or custodial authority, a first-degree felony. As further consideration for his plea, the State agreed not to file charges in a separate case.

Williams’ written plea agreement, which he and his counsel signed, was individually drafted and very specific about what it meant. He was sentenced, as agreed, to twelve years’ prison, followed by ten years of sexual offender probation. At the plea hearing, an extensive discussion ensued about the meaning and consequences of his plea. Williams was informed that filing a motion asserting that his sentence was illegal under the sentencing guidelines would be unsuccessful due to the terms of his plea agreement. Both his attorney and the trial judge presciently warned him that the jailhouse “lawyers” would tell him that he received an illegal sentence, and they explained to him why his sentence was not illegal. Williams expressly indicated his understanding. This was illustrated when his attorney stated, in open court with Williams present:

I’ve explained to him that this is a plea negotiation that he have — he has received a huge benefit from. And as a result of that, he is agree — he has agreed to this increased incarcerative sentence. So that if he were to turn around and say that I was illegally sentenced, he is completely — one, he affects any gain time that the prison system would give him, as a result of this, because it would be a frivolous appeal. He also understands that there’s really nothing to appeal after today, because this is all something that we have negotiated, therefore, if he did appeal, the— he — he would end up being punished by whatever Appellate Court, through the department of prisons, for undertaking a frivolous appeal. And he does understand that and has indicated to me that he appreciates all the consequences of this negotiation.

(Emphasis added.)

Ignoring good advice, Williams filed his rule 3.800(a) motion, arguing precisely what his attorney and the judge told him was not a valid claim: “Since my incarceration, I have learned that the court erred in allowing me to agree to a sentence which is illegal under Florida laws.” His claim was based on the contention that his twelve-year prison sentence and ten-year probationary sentence, when added together, was “a severe upward departure sentence imposed without oral or written reasons.” Conveniently, he ignores the bottom of his scoresheet where it is written in bold letters: “SENTENCE AN AGREED UPON PLEA BARGAIN,” under which he initialed or signed his name.

Williams ignores well-settled law in erroneously asserting that the probationary portion of his sentence has to fall under the guidelines when added to his prison sentence. See, e.g., Sullivan v. State, 801 So.2d 185, 186 (Fla. 5th DCA 2001) (under sentencing guidelines, the term “sentence” refers to term of incarceration and not any term of probation; so prison sentence under the guidelines is irrelevant to length of probation to follow, except as limited by statutory maximum for offense), citing Weiner v. State, 562 So.2d 392, 393 (Fla. 5th DCA 1990).

He also wrongly maintains that his total twenty-two year sentence is “illegal” for his “first-degree felony” because it is a Level 7 crime. Again, the law is clear and well-settled that a defendant can agree, through a plea bargain, to a sentence not specifically authorized by statute or rule as long as the sentence does not exceed the statutory maximum. See Maddox v. State, 760 So.2d 89, 103 (Fla.2000). The statutory maximum for a first-degree felony is thirty years. § 775.082(3)(b), Fla. Stat. (1993).

After reviewing his motion and the applicable parts of the record, especially the extremely thorough and specific plea colloquy and written plea, we issued an order directing Williams to show cause why this court should not “issue a written finding and direct that a certified copy be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department.” See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (litigant must be provided notice and opportunity to respond before preventing further attacks on conviction and sentence). Like his current appeal, Williams’ response cited and argued case law that was completely inapplicable.

Williams’ motion, appeal, and response demonstrate that he will file pleadings without any attempt to ascertain the proper law on the subject and will ignore the plain words of the plea transcript and his own plea agreement. We warn him and other similarly situated defendants of the dangers in doing so. See, e.g., Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005) (directing Clerk to forward a certified copy of opinion to DOC for consideration of disciplinary procedures where inmate’s response demonstrates he obstinately persisted in asserting erroneous interpretations of the law); Johans v. State, 901 So.2d 396, 396 (Fla. 5th DCA 2005) (banning further pro se pleadings in order “to conserve judicial resources” from a frivolous, abuse-of-process case).

We recognize that Williams is a pro se litigant and therefore held to a less stringent standard in technical matters than an attorney. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). However, a defendant should make some attempt to divine whether the record in his case, or the law he cites, supports or defeats his claim. As one appellate court explained in discussing pro se prisoners’ filings:

These motions are either facially insufficient or completely misleading, and illustrate problems with pro se representation which this court is confronting with increasing frequency. The filing of inappropriate, repetitive, or frivolous pleadings places an unwarranted burden upon the staff of this court and interferes with the prompt dispatch of the court’s duties. We therefore deem it appropriate to issue this order in opinion form, not just to admonish Blanton personally but to caution all potential pro se litigants that we will insist upon certain standards of diligence and responsibility even as we take into consideration the less stringent technical requirements applicable to prisoner self-representation.

Blanton v. State, 561 So.2d 587, 587 (Fla. 2d DCA 1989).

The situation has only gotten worse in the years since Blanton was issued. See, e.g., Henderson v. State, 903 So.2d 999, 1000 (Fla. 5th DCA 2005) (frivolous appeals do the criminal defendant no good; they clog the court system; and, worse, they hurt meritorious appeals, in part by engendering judicial impatience with all criminal defendants). “Every paper filed with [a court], no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.” In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989).

The Clerk of this Court is directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See §§ 944.09, 944.279(1), 944.28(2), Fla. Stat. (2008). Having carefully considered Williams’ response, we conclude that this appeal is patently frivolous for the reasons previously explained.

AFFIRMED; OPINION CERTIFIED; and FORWARDED to Department of Corrections.

MONACO, C.J., GRIFFIN and COHEN, JJ., concur.


author: KHOUZAM, Judge.

text:
    Angel Manuel NIEVES, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3809.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2009.

      Lee Hollander of Law Offices of Hollander and Hanuka, Naples, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Angel Manuel Nieves appeals his judgment and sentence for second-degree murder. Nieves contends that the trial court committed fundamental error when it instructed the jury on the lesser-included offense of manslaughter by act because the standard instruction in effect at the time of and given at his trial improperly imposed the additional element of “intent to kill” to that offense. In support of his contention, Nieves relies on Montgomery v. State, — So.3d - (Fla. 1st DCA 2009), review granted, 11 So.3d 943 (Fla.2009), in which the First District determined that the trial court fundamentally erred in giving the standard instruction on manslaughter by act in effect at the time of Montgomery’s trial, which was virtually identical to the instruction given at Nieves’ trial. This court, however, recently held that the instruction was not fundamentally erroneous. See Zeigler v. State, 18 So.3d 1239, 1245-46 (Fla. 2d DCA 2009). Furthermore, unlike Montgomery and Zeigler, the jury in Nieves’ case was also instructed on the lesser-included offense of manslaughter by culpable negligence.

Accordingly, we affirm Nieves’ conviction and sentence, and as we did in Zeig-ler, we certify conflict with Montgomery.

Judgment and sentence affirmed; conflict certified.

WALLACE and MORRIS, JJ., Concur.

      . The instruction given in Nieves' case is no longer the standard instruction for manslaughter by act. The instruction, which was modified by the supreme court in December 2008, now reads: "In order to convict of manslaughter by intentional act, it is not nec-essaiy for the State to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403, 403 (Fla.2008).


text:
    Guy J. STRATTAN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5351.
    District Court of Appeal of Florida, First District.
    Nov. 9, 2009.
    Guy J. Strattan, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

VAN NORTWICK, PADOVANO, JJ., and BROWNING, JR., EDWIN B„ Senior Judge, concur.


text:
    Ervin KENNEDY, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5091.
    District Court of Appeal of Florida, First District.
    Nov. 9, 2009.
    Ervin Kennedy, III, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, PADOVANO, JJ., and BROWNING, JR., EDWIN B, Senior Judge, concur.