author: PALMER, J.

text:
    Chad A. WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2960.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2010.

      Bradley N. Laurent and Carlus L. Haynes of the Law Office of Haynes and Laurent, P.A., Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Chad Wood (defendant) appeals the final order entered by the trial court denying his motion for post-conviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Determining that the trial court erred in failing to consider the contents of the memorandum of law which the defendant filed in support of his rule 3.850 motion, which was timely filed and sworn to under oath, we reverse and remand to allow the trial court to properly consider the contents of the memorandum.

The defendant filed a motion seeking post-conviction relief following his conviction on one count of sexual battery on a person under twelve years of age. After his motion was twice dismissed with leave to amend, the defendant filed a second amended motion for post-conviction relief. The motion set forth the same ten claims as were set forth in his previous motions and the motion contained a proper oath. At the same time, the defendant filed a separate amended memorandum of law which set forth additional factual details and claims of ineffective assistance of counsel. The memorandum of law also contained a proper oath. All filings were timely. The trial court summarily denied all but one of the defendant’s ten claims for relief set forth in his motion and, after conducting an evidentiary hearing thereon, denied that claim as well. We affirm the trial court’s rulings without discussion except for four claims which the trial court summarily denied as being facially insufficient without properly considering the contents of the defendant’s memorandum of law.

With regard to sub-claim 2 under claim 7, the defendant argued that his trial counsel was ineffective for failing to make objections during the State’s presentation of its witnesses and during the State’s closing argument. The trial court denied the sub-claim on the following basis:

Defendant does not identify any specific matters that were actually objectionable, how he was prejudiced within the meaning of Strickland by the absence of any particular matter, nor does he allege the legal grounds upon which any such objections should have been stated.

The defendant challenges this ruling arguing that his memorandum of law contained sufficient allegations of fact to warrant the grant of an evidentiary hearing. His amended memorandum of law did, in fact, set forth several pages of specific facts relating to the issue of trial counsel’s failure to object to improper comments made during the prosecutor’s closing argument and defense counsel’s failure to object during the course of trial. It is clear from the record that the trial court did not consider the facts set forth in the defendant’s memorandum of law before denying the defendant’s claim.

In Gamble v. State, 901 So.2d 376 (Fla. 2nd DCA 2005), the defendant appealed the trial court’s dismissal of his rule 3.850 motion. In the motion, the defendant raised four claims of ineffective assistance of counsel. The trial court dismissed the motion on the basis that it was facially insufficient because it failed to set forth any allegation of prejudice. The defendant appealed. Upon review, the Second District agreed that the motion was facially insufficient but held that the trial court should have considered the sworn memorandum of law that the defendant had filed with his motion:

That memorandum details the facts that Mr. Gamble contends demonstrate prejudice, adds new claims, and expands on those contained in the motion. Because the memorandum is properly sworn, the trial court should have considered it in evaluating the sufficiency of Mr. Gamble’s claims. Cf. Beck v. State, 801 So.2d 964 (Fla. 2d DCA 2001) (holding that the trial court may only consider postconviction motions and supporting memoranda if properly sworn); Courson v. State, 652 So.2d 512 (Fla. 5th DCA 1995) (holding that the trial court correctly ignored an unsworn memorandum but erred in disregarding sworn allegations in an affidavit attached to the memorandum). Accordingly, we reverse and remand for the trial court to reconsider Mr. Gamble’s motion taking into account his sworn memorandum of law as well as his motion.

Id. at 377.

We agree with the reasoning of Gamble and hold that the trial court was required to consider the defendant’s memorandum of law when ruling on the defendant’s request for rule 3.850 relief. Accordingly, we remand this matter so the trial court can consider the facts set forth in the memorandum of law in determining whether the defendant is entitled to receive an evidentiary hearing on this sub-claim.

In addition, the defendant argues that the trial court erred by failing to address any of the additional claims for relief which were set forth in the defendant’s memorandum of law. In the memorandum, the defendant alleged that he was entitled to receive post-conviction relief because his trial counsel failed to conduct a proper opening statement and/or a proper judgment of acquittal argument, and because trial counsel’s “multiple deficient acts and failures had a cumulative effect” that denied the defendant’s right to receive a fair trial. We note that, in cases where a rule 3.850 motion and sworn memorandum of law, when read together, are too contradictory or confusing to properly be analyzed, the trial court has the discretion to require the defendant to file a single document incorporating all of the arguments. However, in this case the pleadings were facially sufficient, yet the trial court did not expressly address or rule on any of the additional claims for post-conviction relief set forth in the defendant’s memorandum of law. As such, this matter must be remanded so that the trial court can consider and rule on those additional claims.

The State contends that the defendant waived his right to raise this claim of error on appeal because he “never pointed out to the court that there were additional claims [for post-conviction relief] hidden within the lengthy memorandum”. The State fails to cite to any statutory or case law which supports this waiver argument. In fact, no law requires the defendant to do more than to file a proper rule 3.850 pleading in order to be entitled to receive full review thereof by the trial court.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO, C.J., and ORFINGER, J., concur.

      . Compare Rincon v. State, 996 So.2d 922 (Fla. 4th DCA 2008)(holding that trial court erred in considering defendant’s untimely amendments to his rule 3.850 motion).


source: Caselaw Access Project

license: Public Domain

text:
    Diego Rodrigo PEREA, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2434.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2010.
    Rehearing Denied May 26, 2010.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Diego Perea (defendant) appeals his judgments and sentences. We affirm as to all counts except Count III, which requires remand for the entry of a corrected judgment and resentencing.

The defendant was charged with committing the offenses of sexual battery (Count I), lewd or lascivious exhibition (Count II), lewd or lascivious molestation (Count III), showing obscene material to a minor (Count IV), and lewd or lascivious conduct (Count V). The information alleged that the crimes occurred between February, 2004, and August, 2006.

The matter proceeded to trial before a jury. The jury found the defendant guilty as charged. The trial court entered judgments in accordance with the jury’s verdicts and sentenced the defendant to a term of life imprisonment on Count I, 15 years’ imprisonment on Count II, 25 years’ imprisonment (with a minimum mandatory of 25 years) on Count III, 5 years’ imprisonment on Count IV, and 15 years’ imprisonment on Count V. This appeal timely followed.

The defendant first argues that he is entitled to receive a new trial because the trial court erred in overruling his objection to comments made during the prosecutor’s closing argument. We disagree.

Defense counsel’s closing argument focused on the theory that the entire case “boils down to the credibility” of the victim. Counsel noted that initially the victim “said it never happened” at least three times.' Counsel then queried: ‘Well, why would a child make up such crazy things about something so important?” Defense counsel further highlighted the fact that the victim’s mother testified that the victim had once falsely accused the mother of physically abusing her.

On rebuttal, the prosecutor responded to defense counsel’s attacks on the victim’s credibility, arguing:

[Defense counsel] has given you lots of things to speculate about on how perhaps [the victim] came up with these stories, as she calls them. Well, if she was coming up with stories, first of all, why was she coming up with stories? There has been no evidence presented about any reasons why [the victim] made this up, none. There is no indications about family problems.

Defense counsel objected to this argument by stating: “Objection, improper shifting of the burden.” The trial court overruled the objection.

The defendant maintains that the trial court reversibly erred in overruling defense counsel’s objection because the prosecutor’s comments improperly invited the jury to shift the burden of proof to the defendant based on the defendant’s failure to present evidence demonstrating the victim’s reasons for offering false testimony. We disagree.

The prosecutor’s comments did not improperly shift any burden of proof to the defendant. The comments did not imply to the jury that the defendant had to prove anything in order to establish his innocence, nor did the comments tell the jury that the defendant had a burden to prove anything. Instead, the prosecutor made a permissible comment that the evidence at trial (as submitted by the State) did not suggest that the victim had any reason to lie. Such comment was a reasonable response to defense counsel’s comments indicating that the victim had lied when she testified about the defendant’s crimes. See Stancle v. State, 854 So.2d 228 (Fla. 4th DCA 2003)(holding that prosecutor’s statement during closing argument, in prosecution for possession of a firearm by a convicted felon and carrying a concealed weapon, to effect that no evidence indicated that gun had been where it was found for any other reason than because defendant had dropped it there and that common sense indicated that defendant had dropped it there, was permissible comment on evidence and fair reply to defense implication that police officer planted gun, and did not improperly shift burden of proof to defendant).

The defendant next argues that the trial court erred in sentencing him on Count III, the lewd molestation charge, to a 25-year mandatory minimum pursuant to the Jessica Lunsford Act. The State concedes error on this point.

The parties agree that the Jessica Luns-ford Act became effective on September 1, 2005. The State explains that, prior to the enactment of said statute, the crime of lewd molestation was a first degree felony; however, once the statute was enacted the crime of lewd molestation became a life felony subject to a penalty of life imprisonment or a term of not less than 25 years’ imprisonment followed by life probation. See § 800.04(5)(b), Fla. Stat. (2005). The State concedes that, on Count III, the defendant was charged and found guilty of committing the crime of lewd molestation occurring between February 1, 2004, and August 25, 2006. The State further concedes that, under Florida law, where the charged dates of an offense straddle the date when a sentencing statute becomes effective, the defendant is entitled to be sentenced under the more lenient of the two sentencing statutes. See Cairl v. State, 833 So.2d 312 (Fla. 2d DCA 200S)(en banc )(holding that a defendant should be sentenced under the more lenient version of the sentencing guidelines when sentencing laws change during a period in which a defendant is alleged to have committed an offense). The parties agree that, as such, the trial court erred in adjudicating the defendant under the Jessica Lunsford Act, and that the defendant is entitled to have the judgment corrected on Count III to reflect an adjudication for a first-degree felony and to be resentenced on that charge accordingly.

We affirm the defendant’s judgments and sentences on all counts except Count III. As to Count III, the judgment must be corrected to reflect the conviction of a first degree felony and the trial court must resentence the defendant on that conviction.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and JACOBUS, JJ., concur.


author: WHATLEY, Judge.

text:
    Frederick L. WATERFIELD Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4048.
    District Court of Appeal of Florida, Second District.
    April 30, 2010.

      Frederick L. Waterfield Jr., pro se.
    Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

In 1983 Frederick L. Waterfield Jr. was charged in Indian River County with several counts of murder and kidnapping. Reacting to pretrial publicity, the Circuit Court for the Nineteenth Judicial Circuit transferred some charges to the Fifth Judicial Circuit Court, Lake County. One homicide charge was transferred to the Twentieth Judicial Circuit, Charlotte County, where Waterfield was convicted of the lesser-included offense of manslaughter and sentenced to fifteen years in prison.

Over twenty-three years after his conviction and sentence were affirmed by this court, see Waterfield v. State, 491 So.2d 562 (Fla. 2d DCA 1986) (table decision), Waterfield filed a motion for post-conviction relief in the Charlotte County court, contending that the court never acquired jurisdiction over the murder prosecution because the Indian River County court’s transfer of his records was incomplete or improper. Rather than reviewing Waterfield’s motion, the postconviction court erroneously transferred it to the Indian River County court, reasoning its own jurisdiction was merely temporary because all of Waterfield’s files and records had been sent back to Indian River County. But when venue has been transferred for trial and imposition of a sentence, the transferee court remains the court in which collateral postconviction matters are to be heard. See State v. Overton, 970 So.2d 359 (Fla. 3d DCA 2007); Wasley v. State, 254 So.2d 243 (Fla. 4th DCA 1971).

If the postconviction court had reviewed Waterfield’s motion under Florida Rule of Criminal Procedure 3.850, it would have found it both untimely and successive. See Waterfield v. State, 1 So.3d 235, 237-38 (Fla. 4th DCA 2008). But because the postconviction court erroneously transferred Waterfield’s motion instead of considering it on the merits, we must reverse and remand. On remand, the postconviction court shall vacate the transfer order and enter an order disposing of Water-field’s motion on the merits.

Reversed and remanded with instructions.

DAVIS and WALLACE, JJ„ Concur.


author: PER CURIAM.

text:
    Tocorey GIBBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1477.
    District Court of Appeal of Florida, First District.
    May 4, 2010.
    Tocorey Gibbs, 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.

HAWKES, C.J., VAN NORTWICK and MARSTILLER, JJ., concur.


author: MAY, J.

text:
    Jackie Stetson LEDERER, Appellant, v. Marie Oneill FRAVEL, Appellee.
    No. 4D08-2136.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2010.
    Rehearing Denied June 15, 2010.
    Jason A. Dvoracek, Lantana, for appellant.
    Sheldon Engelhard of Sheldon Engel-hard, P.A., Boca Raton, for appellee.
   MAY, J.

A tenant appeals an order denying a motion to dismiss. The motion sought to vacate judgments for eviction, liability, damages, and attorney’s fees in a landlord/tenant dispute entered four and five years ago. In its motion, the tenant claimed that the trial court lacked jurisdiction to enter the judgments. The tenant now asks us to sort through a procedural quagmire and undo things that long ago became final. We decline to do so. We treat this appeal as one from an order entered, pursuant to Florida Rule of Civil Procedure 1.540, to vacate the judgments and affirm.

We will not belabor the tortured procedural history of this case. Suffice it to say, a county court dispute was transferred to circuit court. Pursuant to an administrative order conferring a temporary assignment to the circuit court, the county court judge presided over the proceedings, including the circuit court case.

When the judgments were entered, some of them unclearly indicated the court from which they emanated and caused further confusion for the appellate process. Nevertheless, the judgments were properly entered by a judge with the jurisdiction to do so. Opportunities to seek review of the various judgments have come and gone. The decisions have been made and are final. The tenant’s twelfth hour attempt to resuscitate issues resolved long ago is futile.

Affirmed.

GROSS, C.J., and CIKLIN, J., concur.

      . "Each county judge in Palm Beach County, Florida, who has been a Florida Bar member for the preceding five years, is hereby assigned to temporary service in the civil division of the circuit court, to hear and determine all amended claims, counterclaims, crossclaims, and third party actions in which the amount in controversy exceeds the jurisdiction of the county court and which are filed in cases then pending in the county court. This order shall include motions for rehearing and other post judgment matters in such cases. As to such matters, the county judge shall have all the jurisdiction and powers of a circuit judge of the Fifteenth Judicial Circuit of Florida. A copy of this order shall be placed by the clerk of court in the court file of every case heard by such judge.” Admin. Order 2.005-05/01.


author: FARMER, J.

text:
    RAYFIELD INVESTMENT COMPANY, Appellant, v. Howard KREPS, Appellee.
    No. 4D09-652.
    District Court of Appeal of Florida, Fourth District.
    May 5, 2010.
    Rehearing Denied June 15, 2010.

      James K. Green of James K. Green, P.A., West Palm Beach, for appellant.
    Howard Kreps, Miami, appellee.
   FARMER, J.

Opposing creditors clash over security interests in a painting found in the inventory of a failed art gallery. One creditor is its operating capital lender claiming a perfected security interest in all its inventory. The other is a consignor who placed a painting with the gallery for sale but without perfecting his interest in the consigned goods. Concluding that the governing statutes for security interests give the priority to the lender, we reverse the judgment awarding the painting to the consign- or.

Lender made a series of loans totaling $300,000 over a three-year period to a New York corporation doing business in Palm Beach under the trade name Style de Vie. Apparently its lifestyle did not allow it to pay its lender, for the gallery defaulted on the loan. Lender sued to foreclose its security interest on the gallery’s inventory. Lender proved non-payment and that it had perfected its security interest by filing a UCC-1 financing statement in Florida. Lender obtained a judgment and a writ of replevin for the inventory.

Consignor intervened after lender’s re-plevin of the inventory and claimed the painting. The evidence showed that he placed the painting with the gallery after lender’s security interest had been perfected. He did not attach any tag or legend to the painting that it was on consignment. Nor did he file a UCC-1 financing statement in Florida giving notice of his prior interest in the painting. Following a trial, the court found consignor’s interest superior to lender’s perfected interest, reasoning:

“[lender] had actual knowledge that [gallery] sold antiques and other goods on consignment. Specifically ... [lender] entered into a Profit Participation Agreement with [gallery] which contemplated participation in the profits of the sales of consigned goods. Further ... [lender] had actual knowledge and contemplated the continuing consignment of goods at [gallery], and contemplated participation in the profits from the sale of consigned goods. [Consignor] has shown by clear and convincing evidence that he has a superior right and title to the painting that is the subject of this law suit.”

From the judgment in consignor’s favor, lender appeals.

The Florida Uniform Commercial Code (UCC) governs sales and secured transactions. The UCC specifies that the term “security interest” means “an interest in personal property ... which secures payment or performance of an obligation” and “includes any interest of a consignor....” § 671.201(35), Fla. Stat. (2009). As for consignments, UCC Article 9 further specifies:

“Consignment means a transaction, regardless of its form, in which a person delivers goods to a merchant for the purpose of sale and:
1. The merchant deals in goods of that kind under a name other than the name of the person making delivery; is not an auctioneer; and is not generally known by its creditors to be substantially engaged in selling the goods of others;
2. With respect to each delivery, the aggregate value of the goods is $1,000 or more at the time of delivery;
3. The goods are not consumer goods immediately before delivery; and
4. The transaction does not create a security interest that secures an obligation.” [internal subheadings omitted]

§ 679.1021(l)(t), Fla. Stat. (2009). Again the record indisputably shows that consignor did nothing to perfect a prior interest in the painting by filing a UCC-1, by affixing a tag or by having the gallery post a sign that some inventory is on consignment.

At trial consignor presented evidence that lender’s principal knew some of the gallery’s items were on consignment. The lender’s principal complained that the gallery failed to furnish inventories during the three years before the consignment. When he finally received an inventory, it listed several thousand items for sale but there were not more than 60 at the time. According to some records, consignment goods never exceeded 15% of inventory in the few years preceding the store’s demise.

While lender knew there were some consignment goods for sale, there is absolutely no record evidence as to whether the gallery was “generally known by its creditors to be substantially engaged in selling the goods of others.” § 679.1021(l)(t)lc. Consignor presented no evidence as to who or how many creditors the gallery had when he placed his painting there for sale in 2006. Similarly there is no evidence that lender knew this painting was on consignment or of any agreement between the gallery and consignor. So it is clear this case involves a prior perfected security interest in inventory and a subsequent unperfected security interest in a painting placed with the gallery for sale on consignment.

The law does not support the trial judge’s decision. The Florida UCC explicitly provides that a perfected security interest in goods takes priority over all subsequently perfected and unperfected security interests in the same goods. § 679.322(1), Fla. Stat. (2009). Florida law also explicitly provides that a consign- or’s interest in goods placed for sale with a consignee who routinely sells such goods is merely an unperfected security interest subject to the claims of those with prior perfected security interests. See §§ 679.319 and 679.322(l)(b), Fla. Stat. (2009); see also In re Corvette Collection of Boston Inc., 294 B.R. 409, 414 (Bkry.S.D.Fla.2003) (holding that as to consigned goods, presumption is that goods are held by consignee on sale or return basis subject to claims of consignee’s creditors).

The consignor in this case could have defeated the priority of secured creditors only by proving that a majority of the gallery’s creditors knew that it was substantially engaged in consignment sales. See e.g. Corvette Collection, 294 B.R. at 414. But consignor offered no evidence as to who the gallery’s creditors were or what they knew about his goods for sale. The cases follow a general rule of thumb that consignees are not considered to be “substantially engaged” in selling the goods of others unless they hold at least 20% of inventory on a consignment basis. See In re Valley Media Inc., 279 B.R. 105, 125 (Bkry.D.Del.2002); see also In re Wedlo Holdings Inc., 248 B.R. 336, 342 (Bkry.N.D.Ill.2000) (holding as a matter of law that consignee who obtained only 15% to 20% of its inventory on consignment was not substantially engaged in selling goods of others).

To satisfy the “generally known” requirement, a consignor must show that a majority of the consignee’s creditors were aware that the consignee was substantially engaged in selling the goods of others by consignment sales, and the majority is determined by the number of creditors, not by the amount of their claims. See Valley Media, 279 B.R. at 126; In re Wicaco Mach. Corp., 49 B.R. 340, 344 (E.D.Pa.1984) (holding that 20% of creditors knowing of consignment relationship does not satisfy general knowledge requirement, notwithstanding that such creditors represented 63% of claims against debtor). Again, here the consignor had no idea who or how many creditors the gallery had. Consignor’s case authorities are inappo-site, for they involve actual knowledge by the lender of a specific consignment.

This case is factually similar to Valley Media. There, some of the debtor’s vendors had entered into consignment arrangements with the debtor before the debtor filed for bankruptcy. 279 B.R. 105 at 115. The consigned inventory was commingled with all of the other inventory of the debtor at two warehouse locations. 279 B.R. 105 at 116. No signs were posted at the warehouses, and there were no signs or markings on the consigned inventory indicating that the inventory had been obtained on a consignment basis. 279 B.R. 105 at 116. When the debtor moved the bankruptcy court to sell all of its inventory, the consignment vendors objected, arguing that they owned their consignment inventory by virtue of their consignment arrangements. 279 B.R. 105 at 121-22. The court observed that the consignors could have obtained a prior interest in their consigned goods if they had either (1) filed UCC-1 financing statements identifying their goods as required under UCC Article 9, or (2) proved that the consignee was generally known by its creditors to be substantially engaged in selling the goods of others. 279 B.R. at 123. See also In re New York Diamond & Jewelry Exch. Inc., 26 B.R. 32 (Bkry.S.D.Fla.1982) (consignor failed to perfect security interest by filing financing statement and failed to establish that debtor was generally known by its creditors to be substantially engaged in sale of goods of others, had unperfected security interest in diamonds, subject to trustee’s right, and since trustee did not have diamond among assets of estate, trustee was entitled to judgment against plaintiff); ITT Commercial Fin. Corp. v. Unlimited Auto. Inc., 166 B.R. 637 (N.D.Ill.1994) (secured creditor of debtor-dealer had priority over consignor of motor vehicle, where consignor did not comply with applicable filing requirements of UCC and secured creditor enjoyed status of perfected secured creditor with claim to inventory of debtor).

What this case presents is the common collision between a legal rule and an opposing claim for individualized justice. Ours is supposed to be a rule of law, not of judges. Some rules of law are meant to be categorical and unavoidable. The law requires, for example, citizenship to vote, driving on the right side of the road, recorded title to real property, timely assertion of civil claims — to mention just a few — all of which cannot be avoided by an individual claim for sympathetic understanding. Some legal rules explicitly allow their application to be varied by individual circumstances, using equitable principles, but the commercial law on secured transactions is not among them.

The rules for acquiring and enforcing security interests were not written to permit individualized justice and equity contrary to their requirements. It would not be much of a uniform code, for example, if legal rules on sales rights and remedies transformed themselves from case to case, or negotiable instruments were not predictably and reliably negotiable, or that priorities of security interests were adjustable depending on whose individual circumstance is more sympathetic. The statutes give us no authority to refuse to enforce priorities under UCC Article 9 on the basis that the painting has been in the family for years, or that the lender knew the gallery did some consignment sales, or that this lender’s funding agreement with the gallery allowed it to share to some extent in its profits, or by framing the painting’s sale as a bailment instead of a consignment.

The law creating the priority rule afforded consignor effective tools to avoid a prior security interest in gallery’s inventory. These tools were simple, not burdensome, and easily satisfied. He needed only to file a UCC-1 under Florida law. Aside from that, he could have required the gallery to affix a tag onto the painting and place a sign alerting prospective buyers of a consignment sale. He did none of these things. Nothing in the record we have been given suggests that lender or gallery did anything to dissuade him from prior consultation with a lawyer to protect his painting by complying with statutes for avoiding prior interests. In the end he failed to offer any evidence that most of gallery’s creditors knew that a substantial part of its sales were consignments.

The judgment of the trial court is in error. The perfected security interest of lender has priority over the claim of consignor.

Reversed.

HAZOURI and MAY, JJ., concur.

      . The painting was by an artist named Cortes. The consignment agreement stated that gallery was free to sell for not less than $42,000.

      . Florida law requires the consignor of works of art to give notice to the public by:
      "affixing to such work of art a sign or tag which states that such work of art is being sold subject to a contract of consignment, or such consignee shall post a clear and conspicuous sign in the consignee's place of business giving notice that some works of art are being sold subject to a contract of consignment.”
      § 686.502(2), Fla. Stat. (2009).

      . See § 679.1021(l)(t), Fla. Stat. (2009) (consignment means any transaction — regardless of its form — in which a person delivers goods to a merchant for purpose of sale).


text:
    Edward BIVINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-189.
    District Court of Appeal of Florida, First District.
    May 6, 2010.

      Edward Bivins, pro se, Appellant.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Edward Bivins challenges an order barring him from filing further pro se papers in relation to his conviction and sentence. We reverse.

A Leon County jury convicted Bivins of burglary of a structure, for which the circuit court sentenced appellant to five years in prison. The Department of Corrections (Department) determined that by this conviction and sentence, Bivins violated his parole in connection with two unrelated offenses, committed in Gadsden County. A Gadsden County court thus recommitted appellant to serve the 11 years in prison remaining on sentences imposed in Gadsden County Case Numbers 93-265 and 93-481.

Defense counsel filed a motion to clarify and/or modify sentence, inquiring of the Circuit Court for Leon County whether the sentence for burglary was to run concurrently with, or consecutive to, the sentences for violation of parole. The circuit court denied the motion, asserting that “the Court did not intend to sentence Mr. Bivins concurrently with any sentence imposed in any other case.” Before the direct appeal, appellate counsel filed a motion to correct sentencing error, pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Citing Richardson v. State, 947 So.2d 1219, 1221 (Fla. 1st DCA 2007), appellant argued that the sentencing court failed to “exercise its discretion to order a sentence imposed for an offense committed while on community release concurrent or consecutive to [the] community release sentence.” The circuit judge found no infirmity with the sentence, and in denying the motion concluded that “[n]o motion for clarification, rehearing or reconsideration of the order, however titled, shall be allowed nor will any such motion be entertained if filed.”

After Bivins lost his direct appeal, he filed a pro se motion pursuant to Florida Rule of Criminal Procedure 3.800(c), requesting the court to run the sentences concurrently. The court denied the motion, but also directed Bivins to show cause why he should not be barred from filing further pro se motions in this case and why the court should not recommend that the Department take appropriate disciplinary action. Appellant filed a motion to show cause, stating he filed the subject motion only on the advice of counsel, who, Bivins said, told him, “Perhaps you can ask the Court to make the sentences concurrent in a rule 3.800(c) motion.” The circuit court nonetheless entered an order barring appellant from filing further pro se pleadings in the case.

We review a determination on “the ability of a pro se litigant to separately address the court” for abuse of discretion. See Sheppard v. State, 17 So.3d 275, 280 (Fla.2009). “Courts may, upon a demonstration of egregious abuse of judicial process, restrict parties from filing pro se pleadings with the court.” State v. Spencer, 751 So.2d 47, 47 (Fla.1999). Though we are sensitive to the need for judicial economy and the efficient administration of justice, we also observe that pro se litigants are afforded some latitude in the filing of papers. See Mims v. State, 994 So.2d 1233 (Fla. 3d DCA 2008) (providing that “denying a pro se litigant the opportunity to file future petitions is a serious sanction, especially where the litigant is a criminal defendant”); Martin v. Stewart, 588 So.2d 996, 996 (Fla. 4th DCA 1991) (referring to “extreme remedy” of barring defendant from further pro se filings).

Historically, moreover, the interests of justice have abided some rather uninhibited pro se filers, litigants far more prolific in their consumption of judicial resources than Mr. Bivins. See, e.g., Minor v. State, 963 So.2d 797, 798 (Fla. 3d DCA 2007) (directing clerk of court “not to accept any further pro se pleadings from defendant” only after tenth post-conviction motion for relief); Martin, 588 So.2d at 996 (invoking “extreme remedy” of barring appellant from filing further pro se papers” after entertaining “at least fifteen separate proceedings”). Having filed but a single pro se petition, appellant has not yet exhibited the sort of reflexive caviling that might warrant such a serious sanction, his failure to follow a duly rendered court order notwithstanding. In this case, we find the trial court abused its discretion by prohibiting appellant from filing further pro se motions. The trial court order prohibiting Bivins from filing future pro se papers is thus REVERSED.

KAHN, PADOVANO, and WETHERELL, JJ., concur.


text:
    Franklin L. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0526.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.

      Franklin L. Jones, pro se, Appellant.
    Bill McCollum, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this Anders case, the appellant challenges the sentence imposed after his rule 8.800(a) motion was granted in part and he was resentenced. We reverse and remand.

The record reveals that when the trial court resentenced the appellant he was not represented by counsel. A resentencing is a de novo proceeding to which “the full panoply of due process considerations attaches.” Gonzalez v. State, 888 So.2d 1242 (Fla. 1st DCA 2003). As such, the defendant was entitled to representation of counsel at this critical stage of the proceedings. Id.; Sandoval v. State, 884 So.2d 214 (Fla. 2d DCA 2004). Here, there is no waiver of counsel in the record, and therefore, the trial court erred when it failed to appoint counsel for the re-sentencing hearing. Gonzalez, 838 So.2d at 1243. Such an error is never harmless and need not be preserved. Id. The state concedes that the appellant is entitled to be resentenced.

Accordingly, we vacate the appellant’s sentence and remand for resentencing consistent with this opinion.

WOLF, BENTON, and PADOVANO, JJ., concur.

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

      . When a defendant makes clear his desire to represent himself at a critical stage, the trial court is obligated to conduct a Faretta inquiry to determine if a defendant is knowingly and intelligently waiving his right to counsel and is "aware of the dangers and disadvantages of self-representation.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Fla. R.Crim. P. 3.111(d)(2). No such hearing was held.


text:
    Charles E. LONG, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1716.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Charles E. Long, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

WOLF, PADOVANO, and CLARK, JJ., concur.


text:
    Antonio M. LING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1676.
    District Court of Appeal of Florida, First District.
    May 6, 2010.

      Antonio M. Ling, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

WOLF, PADOVANO, and CLARK, JJ., concur.


text:
    Nabor MENDOZA, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6522.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Nabor Mendoza, pro se, Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850 in which he raises several allegations of ineffective assistance of trial counsel related to counsel’s failure to pursue at trial that at least one vindictive adult had brainwashed the child-victims into lying that the appellant had committed lewd molestation of children under the age of 12. The appellant asserts that, pursuant to Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), he has suffered prejudice because had counsel made this argument there is a reasonable probability that the court would have found the victims’ statements unreliable and would have dismissed the case against the appellant.

In the order on appeal, the lower court denied the claim by finding that the defense had argued during trial that “others had gotten the child victims to lie[,]” and it concluded that the appellant had thus failed to prove that he suffered any prejudice. However, the- trial court failed to attach any record evidence to support its denial.

We therefore reverse and remand for the trial court to either attach such portions of the record which conclusively refute this claim, or to hold an evidentiary hearing. See, e.g., Merkison v. State, 1 So.3d 279 (Fla. 1st DCA 2009) (reversing and remanding for record attachments or an evidentiary hearing in a case involving a claim that an adult had encouraged the child-victim to lie about alleged sexual abuse).

REVERSED AND REMANDED.

KAHN, ROWE, and MARSTILLER, JJ., concur.


text:
    Jason CROFF, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2509.
    District Court of Appeal of Florida, First District.
    May 7, 2010.

      Jason Croff, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the May 1, 2008, judgment and sentence in Bay County Circuit Court case number 04-4316-CFMA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

HAWKES, C.J., VAN NORTWICK and MARSTILLER, JJ., concur.


text:
    Terrance A. LAKE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0129.
    District Court of Appeal of Florida, First District.
    May 7, 2010.
    Terrance A. Lake, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the May 20, 2008, order which denied a motion for postconviction relief in Duval County Circuit Court case number 16-2004-CF-10654-AXXX. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

HAWKES, C.J., VAN NORTWICK and MARSTILLER, JJ., concur.


text:
    Nathaniel BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0578.
    District Court of Appeal of Florida, First District.
    May 7, 2010.
    Nathaniel Brown, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition alleging ineffective assistance of appellate counsel is hereby denied.

The petition herein is the latest of Brown’s repeated pro se attempts challenging his 2005 conviction in Duval County. None of Brown’s filings have been found to have any merit, although this court’s conscientious review of those filings has consumed an inordinate amount of our limited judicial resources.

This is the sixth petition alleging ineffective assistance of appellate counsel to challenge the performance of counsel in case number 1D05-4533. A timely petition alleging ineffective assistance of appellate counsel was denied on the merits in case number 1D07-4714. Three untimely petitions alleging ineffective assistance of appellate counsel were denied in case numbers 1D09-2526, 1D09-3459 and 1D09-5208. Most recently, a petition alleging ineffective assistance of appellate counsel in case number 1D10-0086 was denied as untimely; however, this court also conducted a review on the merits of all the claims raised, including the three claims asserted in the present petition, and found no basis for relief.

In addition, Brown has unsuccessfully sought other relief challenging his 2005 Duval County conviction. A petition for writ of habeas corpus was denied in case number 1D06-3382. Two appeals from the summary denials of rule 3.850 motions have been affirmed in case numbers 1D07-5726 and 1D08-0423. Recently, two post-conviction appeals were affirmed in case numbers 1D09-6237 (summary denial of a rule 3.800 motion) and 1D09-6238 (summary denial of a rule 3.850 motion).

Based on this litigation history, Brown was directed to show cause why sanctions should not be imposed against him, including a prohibition against any future appeals or petitions challenging the 2005 Du-val County judgment and sentence, unless Brown is represented by an attorney in good standing with The Florida Bar.

Having considered the response to the show cause order, we conclude that Brown has failed to show good cause why sanctions limiting his right to appear pro se should not be imposed. Accordingly, the clerk of this court is directed to reject for filing any future appeals, petitions, motions, pleadings or other filings submitted by Nathaniel J. Brown which challenge the judgment and sentence in Duval County Circuit Court case number 16-2005-CF-001831, unless signed by a member in good standing of The Florida Bar.

WOLF, WEBSTER, and THOMAS, JJ., concur.


text:
    Skyler JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1609.
    District Court of Appeal of Florida, First District.
    May 7, 2010.

      Skyler D. Jones, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Skyler Jones, appeals the denial of his postconviction relief motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied relief as to six claims and denied relief as to the two remaining claims following an evidentiary hearing. We find no error in the trial court’s denial of relief as to claims one through five and seven. However, we reverse as to the summary denial of claims six and eight and remand.

As the State conceded in its response to our show cause order, the trial court failed to attach portions of the record conclusively refuting Appellant’s sixth claim that trial counsel was ineffective in failing to protect his right to a speedy trial and in failing to file a motion for discharge. See Washington v. State, 10 So.3d 1126, 1127 (Fla. 1st DCA 2009) (noting that a trial court must attach to its order portions of the record that conclusively refute a legally sufficient postconviction claim or hold an evidentiary hearing).

With respect to claim eight wherein Appellant alleged that he was denied effective assistance of counsel because trial counsel had a conflict of interest, the trial court, in summarily denying relief, relied upon court records for one of the State’s witnesses. There is no indication, however, that these documents were made part of the record in this case or that the trial court utilized the proper procedure in taking judicial notice of the documents. See Ward v. State, 984 So.2d 650, 652 (Fla. 1st DCA 2008) (holding that the trial court, in summarily denying a postconviction claim, erred in relying on the record in a civil case that the defendant had been a party to because the documents at issue were never properly made part of the record in the criminal case and noting that although a trial court may take judicial notice of its own records after affording the parties a reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed, the trial court did not follow that procedure); see also Smalls v. State, 18 So.3d 606, 608 (Fla. 1st DCA 2009) (concluding that the trial court erred in relying upon photographs that were not part of the record in summarily denying relief as to a postconviction claim).

Accordingly, the order is AFFIRMED as to claims one through five and seven,

REVERSED as to claims six and eight, and the case REMANDED for further proceedings.

DAVIS, CLARK, and WETHERELL, JJ., concur.


text:
    Claybourne MOBLEY, Petitioner, v. Celeste KEMP, et al., Respondents.
    No. 1D10-1089.
    District Court of Appeal of Florida, First District.
    May 10, 2010.
    Claybourne Mobley, pro se, Petitioner.
    Bill McCollum, Attorney General, and Lance Eric Neff, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Anthony J. FAILS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1199.
    District Court of Appeal of Florida, First District.
    May 10, 2010.
    Anthony J. Fails, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


text:
    Michael CHANDLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1941.
    District Court of Appeal of Florida, First District.
    May 10, 2010.
    Michael Chandler, 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.

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


author: SILBERMAN, Judge. ALTENBERND, Judge,

text:
    Steven E. BAKER, Appellant, v. Angela R. BAKER, Appellee.
    No. 2D09-3907.
    District Court of Appeal of Florida, Second District.
    May 12, 2010.
    Victor R. Smith and Sergiu Gherman of Frost Van Den Boom & Smith, P.A., Bar-tow, for Appellant.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellee.
   SILBERMAN, Judge.

In this nonfinal appeal in a dissolution of marriage proceeding, Steven E. Baker (the Husband) challenges the trial court’s order on a motion for temporary relief that requires him to contribute $7500 to the attorney’s fees of Angela R. Baker (the Wife). Because the Wife failed to present competent, substantial evidence as to the reasonableness of the amount of the attorney’s fees, we reverse the determination of the amount of fees and remand for further proceedings. We also remand the Wife’s motion for appellate attorney’s fees to the trial court for further proceedings.

At a hearing on May 1, 2009, the trial court considered several motions, including the Wife’s motion for temporary relief. The subject of temporary attorney’s fees for the Wife was not the primary focus of the hearing. Near the end of the hearing, the Wife testified that she borrowed $4500 to retain counsel and that approximately $1800 was spent on depositions. The Wife stated that she was involved in four days of depositions and that she made “more than eight” trips to her attorney’s office. No evidence or testimony was presented regarding the Wife’s attorney’s hourly rate or the number of hours expended on the case.

In the appealed order, the trial court found that the Wife had the need and the Husband had the ability to contribute $7500 to the Wife’s attorney’s fees. The Husband does not dispute on appeal the Wife’s need and his ability to contribute to her attorney’s fees. He does challenge the lack of evidence to support the trial court’s determination as to the amount of temporary fees and the court’s failure to make findings as to the reasonableness of any hourly rate, the number of hours expended or to be expended, or the amount of the fees sought.

To obtain an award of temporary attorney’s fees in a dissolution of marriage proceeding, “[t]he party seeking fees must prove with evidence the reasonableness and the necessity of the fee sought.” Chhouri v. Chhouri, 2 So.3d 987, 988 (Fla. 2d DCA 2008) (citing Safford v. Safford, 656 So.2d 485 (Fla. 2d DCA 1994)). Although the trial court has broad discretion in making an award of temporary attorney’s fees, the trial court must support the award with “factual findings regarding reasonableness of the hourly rates and time expended.” Id.

In Ghay v. Ghay, 954 So.2d 1186, 1189 (Fla. 2d DCA 2007), this court reversed an award of temporary attorney’s fees, noting that the award was “unaccompanied by any factual findings regarding reasonable hourly rates and the amount of fees that are expected to be reasonably incurred.” We also observed that the evidence presented did not support the temporary awards of attorney’s fees, alimony, and child support. Id.; see also Kasm v. Kasm, 933 So.2d 48, 49 (Fla. 2d DCA 2006) (reversing temporary fee award that lacked findings on reasonableness and stating that “this court cannot determine from the record before us how the trial court arrived at its determination of the amount awarded”).

Here, the trial court did not make factual findings regarding the reasonableness of the attorney’s fees and, in fact, could not do so because no evidence was presented to support findings on a reasonable hourly rate. Further, limited information was presented as to the time expended or to be expended. Because the record does not contain competent, substantial evidence to support a determination on the reasonableness of the fees awarded, we reverse the appealed order to the extent that it awarded $7500 in temporary attorney’s fees.

The Husband contends that because the Wife failed to produce evidence supporting the fee award, no remand is required. The Husband cites to Braswell v. Braswell, 4 So.3d 4 (Fla. 2d DCA 2009), a case dealing with a final order on attorney’s fees. However, a temporary award does not create vested rights, and the trial court may modify or vacate a temporary award at any time during the litigation. Ghay, 954 So.2d at 1190. We thus remand for further proceedings for the trial court to determine a reasonable temporary fee award and for the trial court to make findings to support that award. See Kasm, 933 So.2d at 50 (reversing and remanding for further proceedings regarding the amount of a temporary fee award).

With respect to appellate attorney’s fees, the Wife filed a motion for fees based on section 61.16, Florida Statutes (2009), asserting her need and the Husband’s ability to pay. The Husband filed a response, asserting that a litigant cannot obtain attorney’s fees for litigating the amount of fees. He cited, among other cases, State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla.1993), and Wight v. Wight, 880 So.2d 692 (Fla. 2d DCA 2004).

In Palma, the supreme court determined that a statutory provision for attorney’s fees in an insurance case did not authorize a fee award for litigating the amount of fees. 629 So.2d at 833. The supreme court stated that “[s]uch work inures solely to the attorney’s benefit and cannot be considered services rendered in procuring full payment of the judgment.” Id. In Wight, this court applied Palma to a postdissolution proceeding and determined that the wife was not entitled to fees awarded for litigating the amount of fees. 880 So.2d at 695. This court recognized that the purpose of section 61.16 “ ‘is to ensure that both parties possess a similar ability to retain competent legal counsel.’ ” Id. (quoting Lopez v. Lopez, 780 So.2d 164, 166 (Fla. 2d DCA 2001)). This court stated that the Palma analysis does allow fees for litigating fees “if a statute’s intent is to promote the representation of the poor” but that section 61.16 did not indicate an intent “to encourage lawyers to represent indigent clients.” Id. at 694-95. Further, this court stated that “limiting fees for fees has the advantage of encouraging parties to litigate fees in an efficient manner.” Id. at 695.

We decline to extend Wight to temporary fee awards because it may affect the needy party’s ability to litigate the remainder of the case. The Florida Supreme Court has “stated that ‘section 61.16 should be liberally-not restrictively-eon-strued to allow consideration of any factor necessary to provide justice and ensure equity between the parties.’ ” Id. at 696 (Silberman, J., concurring specially) (quoting Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997)). Section 61.16 also serves the “significant purpose” of assuring that the needy party “ ‘is not limited in the type of representation he or she would receive because that party’s financial position is so inferior to that of the other party.’ ” Id. (quoting Rosen, 696 So.2d at 699). Preventing a needy party from recovering fees for litigating the amount of fees that the “monied party” is required to pay may undermine the purpose of section 61.16. Id.

Here, the Wife points out that a determination of the amount of temporary fees does not inure solely to the attorney’s benefit but inures to the litigant’s benefit. The needy party may be unable to undertake litigation of the amount of fees, and in a case regarding temporary fees, like the present one, it may affect the needy party’s ability to litigate the remainder of the case. Therefore, we distinguish Wight, which did not involve a temporary fee order, and conclude that a party may seek appellate attorney’s fees in an appeal concerning the amount of temporary attorney’s fees that the trial court awarded.

We thus remand the Wife’s motion for fees for determination of entitlement under section 61.16, and if the Wife establishes entitlement, for the trial court to award all or a portion of her reasonable appellate fees.

Reversed and remanded.

VILLANTI, J„ Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in this opinion. I write only to observe that Mr. Baker has won the most Pyrrhic of victories. We reverse a temporary award of trial fees merely to remand the matter for another hearing on temporary fees. Although we have little information about the assets of this family, this relatively small award of temporary fees could almost certainly be adjusted at the time of the final judgment if that proved necessary.

Assuming that $200 an hour would be a reasonable hourly rate in the trial court, it is completely obvious from this record that Mrs. Baker’s attorney had already spent at least 37.5 hours representing her client at what Mr. Baker’s attorney described at the hearing as “all these numerous hours in depositions over the past two weeks.” Thus, Mr. Baker has simply incurred the cost of this appeal, including attorney’s fees for himself and for his wife, in order to return to the trial court for a hearing where a larger award of temporary fees will almost certainly occur.

This family appears to be a typical, middle-class family with children; the wisdom of this appeal evades me. But for the precedents governing this issue, I would have treated the omission of the findings in the order on appeal as harmless error and would have affirmed this appeal.

      . In Schneider v. Schneider, 32 So.3d 151, 157 (Fla. 4th DCA 2010), the court addressed Wight in the context of an award of fees arising out of postjudgment proceedings. The Schneider court disagreed with the conclusion in Wight that fees cannot be awarded to a needy spouse in a dissolution action for litigating the amount of fees. Id. at 157.


author: HAZOURI, J.

text:
    W & W LUMBER OF PALM BEACH, INC., a Florida corporation, Appellant, v. TOWN & COUNTRY BUILDERS, INC., a Florida corporation and Florida Extruders International, Inc., a Florida corporation, Appellees.
    No. 4D09-878.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.

      Shelly J. Stirrat of Fox, Wackeen, Dun-gey, Beard, Sobel, Bush & McCluskey, L.L.P., Stuart, for appellant.

      Scott J. Topolski and Robert E. Pershes of Buckingham Doolittle & Burroughs, L.L.P., Boca Raton, for appellee Town & Country Builders, Inc., a Florida corporation.
   HAZOURI, J.

W & W Lumber of Palm Beach County, Inc. (“W & W”), appeals a final judgment award of $53,054.44 rendered against it following a bench trial. We reverse.

Town & Country Builders, Inc. (“Town & Country”), a general contractor, contracted with W & W, a subcontractor, for materials (windows) and labor (window installation and millwork) for six of its residential projects. At the onset of the project, W & W used windows manufactured by Florida Extruders International, Inc. (“FEI”).

Pursuant to the contracts, W & W was obligated to comply with state and local laws and agreed to indemnify Town & Country for any damages caused by a failure to comply with local law. After the parties executed the contracts, W & W began work at the Town & Country construction sites, providing FEI windows and millwork where required. On September 9, 2002, Palm Beach County issued a directive, temporarily stopping shipment of FEI windows to Palm Beach County. The County stopped shipment of the windows because of concerns about the windows’ thickness and lack of labeling showing an approved product evaluation entity. At that time, W & W had installed FEI windows at only one of the sites, the Lantern Key project. The County permitted the installed FEI windows to remain and allowed W & W to install the FEI -windows it had remaining in stock.

Two months later, the County told the parties the FEI windows were satisfactory and FEI could resume shipping them to Palm Beach County. By then, W & W and Town & Country decided to replace the FEI windows with another brand of windows, i.e., Seasonshield windows. The parties ordered and received the Sea-sonshield windows before the County’s directive.

Because of the County’s initial directive, Town & Country experienced delays at the Lantern Key project, as there was uncertainty about how the parties would resolve the FEI window issue. The Seasonshield windows were also more expensive than the FEI windows, causing a cost increase of $13,094.34. Town & Country signed a new purchase order agreeing to the extra charge as an increase to the parties’ contract price.

A few months later, W & W and Town & Country had a dispute over outstanding purchase orders. When Town & Country advised W & W that it would not pay the invoices, W & W stopped work at Town & Country’s six sites, failing to complete the contracted work. Town & Country spent approximately three weeks finding and contracting with replacement subcontractors. The replacement subcontractors finished W & W’s contracted work.

Town & Country and W & W met to discuss the amount owed to W & W for previously performed work and outstanding purchase orders. They also discussed the cost incurred by Town & Country because of the FEI window problem and W & W’s work stoppage. The parties could not agree on the amounts owed. That disagreement led to Town & Country suing W & W for breach of contract. In its complaint, Town & Country asserted that W & W breached the parties’ contract by stopping work before completion (Count I) and by failing to provide windows that complied with the applicable law and regulations (Count II). For those claims, it sought delay damages for cost of completion and carrying charges.

W & W answered and counterclaimed. In W & W’s counterclaim, it argued Town & Country breached the parties’ contract by not paying W & W, as it had substantially completed the contracted work. Additionally, W & W brought counterclaims for open account, account stated, unjust enrichment for material and labor furnished, and payment with interest for goods and services supplied. In Town & Country’s answer to W & W’s counterclaims, it did not assert the affirmative defense of setoff. W & W, in an amended counterclaim, joined FEI as a party by bringing a third-party complaint against it. W & W sought indemnification by FEI for Town & Country’s claim against it arising from the FEI window problem (i.e., Count II of Town & Country’s complaint).

FEI and Town & Country entered into a settlement agreement before trial. In a notice of dismissal it filed the morning of trial, Town & Country voluntarily dismissed Count II of its complaint against W & W with prejudice. At trial, W & W orally stipulated to the voluntary dismissal, and the trial court excused FEI. Despite the fact that Town & Country had settled with FEI for the delay damage claimed in Count II, the trial court permitted Town & Country, over W & W’s objection, to amend its answer to W & W’s counterclaim to assert as a setoff the delay damages caused by FEI. W & W argued below that Town & Country’s voluntary dismissal with prejudice was a final adjudication of that claim and the doctrines of res judicata and collateral estoppel barred further litigation of those delay damages. Town & Country contended the doctrines did not bar a setoff, as the voluntary dismissal was part of the current lawsuit and not part of a prior suit. It contended this negated the application of the doctrines because the parties were not relitigating an issue or claim from a prior suit. W & W also requested production of the settlement agreement between Town & Country and FEI, which the trial court denied.

Following the bench trial, the trial court, in a final judgment, held that Town & Country proved Count I of its complaint, finding that W & W breached the parties’ contract by stopping work on the sites before completion. It also found in W & W’s favor for its counterclaims for open account, account stated, unjust enrichment for material and labor furnished, and payment with interest for goods and services supplied. After calculating the damages owed to both parties and Town & Country’s setoff — which the trial court determined to be $50,000.00 — the trial court found that W & W owed Town & Country $53,054.44 in damages.

On appeal, at issue is the propriety of the trial court’s damage award. Specifically: 1) whether the trial court erred by granting Town & Country’s motion to amend its affirmative defenses to include setoff because res judicata barred the set-off; and 2) whether the trial court erred in its decision to exclude Town & Country and FEI’s settlement. The parties also stipulated that because of a miscalculation by the trial court, Town & Country owes W & W an additional $550.00.

We reverse, as the trial court erred by allowing Town & Country to amend its answer to include setoff because res judi-cata barred the setoff.

Our review of the trial court’s ruling concerning the application of res judicata or collateral estoppel is de novo. Felder v. Fla. Dep’t of Mgmt. Servs., 998 So.2d 1031, 1034 (Fla. 1st DCA 2008). Res judicata is a judicial doctrine used to bar parties from relitigating claims previously decided by a final adjudication on the merits. See Gilbertson v. Boggs, 743 So.2d 123, 126 (Fla. 4th DCA 1999) (holding that a voluntary dismissal with prejudice “is a final adjudication on the merits for which res judicata attaches”). “As a general rule, a voluntary dismissal with prejudice operates as an adjudication on the merits, barring a subsequent action on the same claim.” Capital Bank v. Needle, 596 So.2d 1134, 1136 (Fla. 4th DCA 1992). Res judi-cata bars relitigation of a claim decided in a prior final adjudication if the subsequent claim satisfies the following four elements: “1) identity in the thing sued for; 2) identity of the cause of action; 3) identity of persons and parties of the action; and 4) identity of the quality in the person for or against whom the claim is made.” Signo v. Fla. Farm Bureau Cas. Ins. Co., 454 So.2d 3, 4 (Fla. 4th DCA 1984).

In this case, res judicata barred Town & Country from asserting its setoff as an affirmative defense because the parties previously adjudicated that claim on its merits. Specifically, Town & Country, after it settled with FEI, voluntarily dismissed with prejudice its claim against W & W for delay damages caused by the FEI window problem. That voluntary dismissal with prejudice was a final adjudication on the merits for that claim between Town & Country and W & W. Town & Country then sought to amend its pleadings to assert the affirmative defense of setoff against W & W’s counterclaims, with the effect of that setoff being the relitigation of Town & Country’s voluntarily dismissed claim. This setoff mirrored Town & Country’s claim against W & W that it voluntarily dismissed with prejudice. The trial court allowed the amendment and it set off against W & W’s damage award the delay damages caused by the FEI window problem. This was error because res judicata barred that amendment, as Town & Country and W & W (identity of parties) already litigated Town & Country’s claim (identity of cause of action and quality in the person for or against whom a claim is made) against W & W for delay damages caused by the FEI window problem (identity in the thing sued for) when the parties adjudicated that claim on its merits by voluntarily dismissing it with prejudice.

In addition, the trial court erred in denying W & W’s request to produce the settlement agreement between Town & Country and FEI. W & W was entitled to examine the amount of the settlement and the terms of the agreement. See, e.g., Mitchell v. Realty Source Inc., 740 So.2d 39, 40-41 (Fla. 1st DCA 1999) (stating the “trial court may consider whether a set-off is appropriate ... to preclude a second recovery of damages already received by Mitchell in her settlement with the condominium association”). However, because res judicata applies to the delay damages asserted in Count II, that error is harmless.

Therefore, we reverse and remand and direct the trial court to recalculate the final judgment consistent with this opinion. As to all other issues raised on appeal, we affirm.

Reversed and Remanded with Directions.

FARMER, and MAY, JJ., concur.

      . FEI is not a party to this appeal.


author: FARMER, J. LEVINE, J.,

text:
    DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES, State of Florida, Appellant, v. Toby BOGORFF, Robert Bogorff, Timothy Farley, Beth Garcia, Roald Garcia, Robert Pearce, and Barbara Pearce, as representatives of the certified class, Appellees.
    No. 4D08-4474.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.

      Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, LLP, Miami, for appellants.
    Bruce S. Rogow and Robert C. Gilbert of Alters Boldt Brown Rash & Culmo, P.A., Miami, Julie H. Littky-Rubin of Ly-tal Reiter Clark Fountain & Williams, LLP, West Palm Beach, Jamie Alan Cole of Weiss Serota Helfman Pasoriza Cole & Boniske, P.A., Fort Lauderdale, and Michael J. Pucillo of Berman Devalerio, LLP, Palm Beach Gardens, for appellees.
    Steven Geoffrey Gieseler, Stuart, for Pacific Legal Foundation, Amicus Curiae.
   FARMER, J.

The Florida Department of Agriculture and Consumer Services (DACS) appeals a final judgment in favor of a class of more than 50,000 owners of healthy citrus trees in Broward County cut down and destroyed by DACS as part of its citrus canker eradication program (CCEP). The trial judge found that over 100,000 non-commercial trees in the County not affected with citrus canker had been taken and destroyed by DACS during the covered period, that the taking was for a public purpose, and that the owners of these residential trees were entitled to just and fair compensation for their healthy trees. A jury then found that just compensation for the class was $11,531,463. After applying certain setoffs and adding pre-judgment interest, the court entered judgment against DACS and the State of Florida in the amount of $8,043,542.

On appeal, DACS essentially argues:

A. The trial court improperly rejected its evidence in favor of the evidence offered by the plaintiff class.
B. No inverse condemnation was shown because the trees lacked any compensable value, citrus canker being deemed a public nuisance as a matter of law, and the trial court applied the wrong test for determining whether there had been a taking.
C. The legislature has abolished any common law claim of inverse condemnation and replaced it with a statutory claim.
D. The court applied the wrong measure of damages for the healthy trees destroyed in the CCEP.
E. No pre-judgment interest is allowed in this case.

There is no merit in any of these arguments.

A. Whose evidence and science was more reliable and credible?

When the contention is that the trier of fact has rejected what a party believes is the better evidence, both lay and expert, the supreme court has explained:

“It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test ... is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject ‘inherently incredible and improbable testimony or evidence,’ ... it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.” [e.s.]

Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). Moreover, when specific findings of fact on discrete conflicts in the evidence are not made by the trial judge or by a jury in a special interrogatory verdict, we are required to accept those facts shown by the evidence as favoring the prevailing party. On all the factual claims made by DACS in this appeal, the settled facts are not as it represents. Instead the evidence establishes quite the contrary.

There is substantial competent evidence that healthy, privately owned citrus trees are not harmful or destructive, even though found within 1,900 feet of a tree having citrus canker. There is evidence in the record that the healthy trees taken under the CCEP had continued to produce the fruit, the juice, the shade, the pleasing aromas, the agreeable vistas — all the virtues for which their owners carefully planted and tended them. There was expert testimony that no study using an acceptable scientific method supports a conclusion that healthy trees so situated will necessarily develop citrus canker or bring trouble or damage to anybody. DACS has failed to show error here.

Moreover the finder of fact is free to determine the reliability and credibility of expert opinions and, if conflicting, to weigh them as the finder sees fit. Even when expert testimony is unchallenged, the finder of fact is free to weigh the opinion, just as it does with any other witness, and reject such testimony. We routinely instruct juries that it is their function to resolve conflicts and to reject an expert’s testimony and rely on other record evidence. Although an expert’s opinion may seem forcefully and unequivocally influential, in weighing all the evidence the jury may still apply its knowledge and experience and rely on other evidence.

By its argument, DACS is attempting to have a reviewing court decide which side’s evidence — scientific and otherwise— should be accepted as a matter of law, and which to reject. We are not able to engage in that kind of review. As the foregoing authorities establish, it is solely the province of the finder of fact to determine which science is real, which evidence is most reliable. None of the evidence supporting the judgment is inherently incredible or improbable. Both the judge (as to the takings) and the jury (as to just compensation) simply thought the evidence and science of the class of plaintiffs was the more reliable and credible. We must accept those decisions, for they are based on substantial competent evidence.

B. Inverse condemnation; value of trees; public nuisance; test for taking.

DACS argues it is not liable for any damages as a matter of law because healthy trees exposed to citrus canker constitute a public nuisance having no value, that exposed citrus will itself develop canker and become worthless. It is apparent from the history of this case that DACS destroyed these privately owned healthy trees not because they were really “imminently dangerous” to anybody but instead to benefit the citrus industry in Florida. See Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040, 1050 (Fla. 4th DCA 2003) (“because protecting the citrus industry benefits the public welfare, it is within the state’s police power to summarily destroy trees to combat citrus canker”). To be a public nuisance, property must cause “inconvenience or damage to the public generally.” If trees are destroyed not to prevent harm but instead to benefit an industry, it is difficult to understand how DACS can argue on appeal that the trees legally constituted a nuisance without any value. Property with any value cannot be deemed a nuisance, the nature of which perforce lacks that redeeming quality.

Here again DACS asks us to prefer evidence it presented to the takings judge, and then to the jury, and disregard the contrary evidence on which both relied in making their decisions. “Whether regulatory action of a public body amounts to a taking must be determined from the facts of each case ... and the trial judge in an inverse condemnation suit is the trier of all issues, legal and factual, except for the question of what amount constitutes just compensation.” Dep’t of Agric. & Consumer Servs. v. Mid-Florida Growers Inc., 521 So.2d 101, 104 (Fla.1988) (“Mid-Florida Growers I ”). A trial court’s finding of liability in an inverse condemnation suit is presumed correct and its findings will not be disturbed on appeal if supported by competent, substantial evidence. Atl. Int’l Inv. Corp. v. State, 478 So.2d 805, 808 (Fla.1985).

It has long been acknowledged that a “physical invasion” of private property is the clearest example of a governmental taking for which just compensation is due. See e.g. United States v. Gen. Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945) (destruction of property constitutes a taking); United States v. Welch, 217 U.S. 333, 339, 30 S.Ct. 527, 54 L.Ed. 787 (1910) (agency destroyed easement by flooding: “if it were ... destroyed and ended, a destruction for public purposes may as well be a taking as would be an appropriation for the same end”); Corneal v. State Plant Bd., 95 So.2d 1, 6 (Fla.1957) (“We have found no case — and none has been cited — holding that a healthy plant or animal, not imminently dangerous, may be destroyed without compensation to the owner in order to protect a neighbor’s plant or animal of the same specie” [e.o.]); Kendry v. State Rd. Dept., 213 So.2d 23 (Fla. 4th DCA 1968) (flooding resulted in taking).

DACS argues that the trial judge used the wrong legal test for regulatory takings. Frankly it is difficult to understand how the test used would be error. It is true that whether a regulation amounts to a taking may depend on the unique circumstances of the case, and the court’s factual inquiry may change from case to case. See Rubano v. Fla. Dep’t of Transp., 656 So.2d 1264, 1266 (Fla.1995). But in Graham v. Estuary Properties Inc., 399 So.2d 1374 (Fla.1981), cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981), the court recognized no settled formula to determine where a valid exercise of the police power ends and a taking of property begins. The court did discuss some non-exclusive factors, the first of which (physical invasion or destruction) is dispositive under the facts of this case.

The facts of this case require no application of multi-part, recondite tests to decide whether the State regulation has gone too far and must pay just compensation. Cutting down and destroying healthy non-commercial trees of private citizens could hardly be more definitively a taking. Government has regulatory power for the very purpose of safeguarding the rights of citizens, not for destroying them. Under any possible meaning, if government cuts down and burns private property having value, then government has taken it. And if government has taken it, government must pay for it.

To the argument that the Legislature has labeled citrus canker a public nuisance, it is also settled that “a State, by ipse dixit, may not transform private property into public property without compensation.” [e.o.] Webb’s Fabulous Pharm. Inc. v. Beckwith, 449 U.S. 155, 164, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980); see also Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1031, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (“South Carolina must do more than proffer the legislature’s declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a common-law [for public nuisance]”).

C. Common law and statutory claims of inverse condemnation.

DACS argues that the Legislature eliminated the common law claim for inverse condemnation of citrus trees and replaced it with an exclusive statutory claim. Like most of the arguments of DACS in this dispute, it seems to have been made without regard to history, positive law or precedent. More than a half century ago in State Plant Board v. Smith, 110 So.2d 401 (Fla.1959), a case involving a predecessor agency of DACS also destroying healthy citrus plants to eradicate a plant disease, the court made very clear that “where, as here, a [constitutional] provision for ‘just compensation’ is a clear requisite to the act of destruction, then we find no authority for the Legislature’s specification of the maximum compensation to be paid.” 110 So.2d at 407. That decision eliminated any basis to argue the contrary as DACS seeks to do here.

Then again, little more than 20 years ago, in Mid-Florida Growers I, another case also involving a state agency’s destruction of healthy citrus plants to eradicate a plant disease, the supreme court reaffirmed State Plant Board in holding that constitutional just compensation “was a clear requisite ... to the act of destroying healthy trees.” 521 So.2d at 104. Even more emphatically, the court added: “Because article X, § 6, Fla. Const, is self-executing, it is immaterial that there is no statute specifically authorizing recovery for loss.” 521 So.2d at 104 n. 2 [c.o.].

If it is not yet clear, the point is that the common law and statutory provisions for inverse condemnation do not displace the constitutional requirement for just compensation when the State destroys privately owned property to aid some industry. The only effect of § 581.1845 is to set an opening bid for the price the State will pay without litigation. As the court said in Patchen v. Fla. Dep’t of Agric. & Consumer Servs., 906 So.2d 1005, 1008 (Fla.2005):

“Citrus Canker Law sets a compensation floor that is consistent with the established principle that ‘the determination of what is just compensation ... is a judicial function that cannot be performed by the Legislature’” [quoting Haire, 870 So.2d at 785 (quoting State Plant Board, 110 So.2d at 407 (quoting Spafford v. Brevard County, 92 Fla. 617, 110 So. 451, 454 (1926))) ].

If the compensation required by the Constitution exceeds a statutory amount, the State will have to pay that amount.

D. The measure of damages.

DACS argues that the trial court instructed the jury as to the wrong measure of damages. In takings cases, “the proper valuation method or methods for any given ease are inextricably bound up with the particular circumstances of the case.” In this dispute we previously rejected this identical argument when DACS appealed class certification. Fla. Dept. of Agri. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002), rev. denied, 845 So.2d 889 (Fla.2003) (appeal of class certification, rejecting argument that as matter of law class claims are not compensable and finding no error in using replacement value for destruction of healthy trees). The trial court credited the testimony of the two expert witnesses for the class that replacement cost is the only measure used by arborists familiar with the trade. In fact the trial court took note of the fact that DACS itself directed a staff employee to research the replacement cost of the trees before the subject version of the CCEP was adopted and implemented.

We also find no error in the trial judge’s decision not to rely on DACS witnesses who used the reduction in value of real estate as the measurement. It seems apparent to us that the issue here was not the value of the existing real estate but the value of the trees destroyed.

E. Pre-judgment interest.

The jury assessed class compensation of $11,531,463, determining that DACS was entitled to set-offs equal to the amounts actually used by the class on their retail gift cards and the $55 statutory tree payments. After deducting these set-offs (which were stipulated as $7,196,370), the amount of the judgment was $4,335,093, before pre-judgment interest.

The plaintiff class sought prejudgment interest from the date their property was destroyed by DACS, consistent with the eminent domain statute and established precedent in takings cases. We agree that the trial judge did not err by calculating pre-judgment interest from the filing date of the case, while giving DACS credit for set-offs in the year in which they were actually provided. This procedure was consistent with the statute and prior decisions upholding pre-judgment interest in takings cases.

In this regard, we note that — over the objections of the certified class — DACS sought and was granted an aggregate verdict, even though the takings involved thousands of trees over a period of time. Consistent with this aggregation, no error is shown in the trial court’s calculation of interest from the date this action was filed. It does not strike us as unfair to DACS to fix the date of loss for purposes of prejudgment interest as the filing date of the class action for so many trees taken from so many owners on so many different dates. The date of filing was necessarily well after the actual dates of destruction for many trees and thus benefits DACS.

Finally on a procedural issue, any error in the denial of a stay pending non-final review of the trial court’s order requiring DACS to fund the cost of notice to the class could be seen as rendered moot by the takings judgment and the verdict on just compensation. As the party taking the property, the State is obviously liable for these costs. But we agree with the class that stays pending review are within the supreme court’s exclusive authority over procedural rules in judicial review. See Fla. R.App. P. 9.310; St. Mary’s Hosp. v. Phillipe, 769 So.2d 961 (Fla.2000) (statute limiting right of malpractice defendant to stay arbitration award did not unconstitutionally infringe rule expressly requiring automatic stay of money judgment by posting bond because defendants voluntarily participated in statutory arbitration process and thus also agreed to different stay procedure in statute).

We find no error shown in any other arguments made by DACS.

Affirmed.

TAYLOR, J., concurs.

LEVINE, J., concurs specially with opinion.

LEVINE, J.,

concurring specially.

I fully agree with the majority opinion, but I write to emphasize the clear legal right of the individual homeowner to receive just compensation as a result of the actions of the State. The State’s actions in cutting down these trees most assuredly constituted “takings,” whether under the regulatory takings or physical takings analysis, that demanded just compensation. Regardless of the type of takings denominated here, the result in this case must be the same — full and just compensation to the homeowners.

By requiring the State to abide by its constitutional obligation to compensate individual homeowners, we safeguard the property rights of all. “The sacred rights of property are to be guarded at every point. I call them sacred, because, if they are unprotected, all other rights become worthless or visionary.” Joseph Story, The Value and Importance of Legal Studies (1829), in Miscellaneous Writings of Joseph Story 503, 519 (William W. Story ed., 1852).

As highlighted by the majority opinion, it is well settled in law that generally there is a right to just compensation where private property is taken for the public welfare. As Justice Black stated, “The Fifth Amendment’s guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1554 (1960). In this case, by requiring the State to provide just and fair compensation, it alleviates from the affected homeowners the onerous burden of shouldering costs that should be borne by all the citizenry.

      . For a history of prior review in this case, see:

      (1) Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 792 So.2d 539 (Fla. 4th DCA 2001);
      (2) Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002), rev. denied, 845 So.2d 889 (Fla.2003);
      (3) Fla. Dep’t of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040 (Fla. 4th DCA 2003), rev. granted, 842 So.2d 844 (Fla.2003);
      (4) Haire v. Fla. Dept. of Agric. & Consumer Servs., 870 So.2d 774 (Fla.2004); and

        (5) Fla. Dept. of Agric. & Consumer Servs. v. Cox, 947 So.2d 561 (Fla. 4th DCA 2006), rev. denied, 962 So.2d 336 (Fla.2007).

      . New Nautical Coatings Inc. v. Scoggin, 731 So.2d 145 (Fla. 4th DCA 1999); S. Bell Tel. & Tel. Co. v. Broward County, 665 So.2d 272, 274 (Fla. 4th DCA 1995); NCNB Nat’l Bank of Fla. v. Aetna Cas. & Sur. Co., 477 So.2d 579, 583 (Fla. 4th DCA 1985).

      . Easkold v. Rhodes, 614 So.2d 495, 498 (Fla.1993); Vorsteg v. Thomas, 853 So.2d 1102, 1103 (Fla. 4th DCA 2003).

      . Behm v. Div. of Admin., State Dept. of Transp., 336 So.2d 579 (Fla.1976) (jury’s function is to weigh credibility and reliability of expert testimony; expert opinion is worth no more than reasons on which it is based; if properly susceptible to differing interpretations jury is free to make such interpretations); Rosenbloom v. Rosenbloom, 892 So.2d 531, 535 (Fla. 4th DCA 2005) (trier of fact not bound by testimony of expert witnesses even where unrebutted); Southpointe Homeowners Ass’n Inc. v. Segarra, 763 So.2d 1186, 1187 (Fla. 4th DCA 2000) (trial judges are not bound by unrebutted expert testimony); Baldwin Piano & Organ Co. v. Dote, 740 So.2d 1230 (Fla. 4th DCA 1999); County of Sarasota v. Burdette, 479 So.2d 763, 764 (Fla. 2d DCA 1985) (jury could return verdict for amount less than maximum sought by landowner because jury determines weight and credibility to be given expert’s testimony).

      . See Fla. Std. Juiy Instr. (Civ.) 2.2b ("You may accept such opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case”); Shaw v. Puleo, 159 So.2d 641, 644 (Fla.1964), modified on other grounds, Griffis v. Hill, 230 So.2d 143 (Fla.1969); Gulf Life Ins. Co. v. Shelton, 155 Fla. 586, 21 So.2d 39 (1945).

      . Trolinger v. State, 300 So.2d 310 (Fla. 2d DCA 1974), cert. denied, 310 So.2d 740 (Fla.1975).

      . Orlando Sports Stadium Inc. v. State ex rel. Powell, 262 So.2d 881, 884 (Fla.1972).

      . See also Penn. Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922) (regulatory action that goes too far is taking).

      . Corneal, 95 So.2d at 1, 6-7 (holding that Plant Board had clear legal duty to pay just compensation to owners of healthy citrus trees destroyed under a compulsory program).

      . See § 581.1845, Fla. Stat. (2004).

      . Fla. Dep’t of Agric. & Consumer Servs. v. Mid-Florida Growers Inc., 570 So.2d 892, 895 (Fla.1990) (Mid-Florida Growers II) (quoting Dade County v. Gen. Waterworks Corp., 267 So.2d 633, 639 (Fla.1972)).

      . See § 74.061, Fla. Stat. (2008); Behm v. Div. of Admin., State Dept. of Transp., 383 So.2d 216, 218 (Fla.1980); State Rd. Dep’t v. Bender, 147 Fla. 15, 2 So.2d 298 (1941) (interest awarded from date of taking); County of Volusia v. Pickens, 439 So.2d 276, 277 (Fla. 5th DCA 1983) (prejudgment interest based on value of property from date of taking).-

      . See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985) (for purpose of assessing pre-judgment interest, claim becomes liquidated when verdict has effect of fixing damages as of prior date).


text:
    Arthur Rodgers TRAYNOR, Jr., an individual, and Akerman, Senterfitt & Eidson, P.A., a Florida professional association, Appellants, v. Daniel DELMONICO, an individual and Myd Marine Distributor, Inc., a Florida corporation, Appellees.
    No. 4D09-881.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.
    Rehearing Denied June 25, 2010.
    Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and William M. Martin of Peterson Bernard, Fort Lauderdale, for appellants.
    Holiday Hunt Russell of The Law Offices of Holiday Hunt Russell, Hollywood, for appellees.
   PER CURIAM.

The issue is whether appellants, the defendants below, can recover attorney’s fees based upon proposals of settlement conditioned upon acceptance of both plaintiffs. The trial court found the proposals invalid, relying on Attorneys’ Title Insurance Fund, Inc. v. Gorka, 989 So.2d 1210 (Fla. 2d DCA 2008). While this appeal was pending, the supreme court approved the Second District’s decision, holding that “a joint offer of settlement or judgment that is conditioned on the mutual acceptance of all of the joint offerees ... is invalid and unenforceable because it is conditioned such that neither offeree can independently evaluate or settle his or her respective claim by accepting the proposal.” Attorneys’ Title Ins. Fund, Inc. v. Gorka, — So.3d - (Fla.2010). Pursuant to Gorka, we affirm the order denying appellants’ motion for attorney’s fees.

Affirmed.

WARNER, DAMOORGIAN, and LEVINE, JJ., concur.


text:
    Bruce ROSENBLATT, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2360.
    District Court of Appeal of Florida, Fourth District.
    May 12, 2010.
    Rehearing Denied June 17, 2010.

      Fred Haddad of Fred Haddad P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, Helene C. Hvizd and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Sanguine v. State, 895 So.2d 1198 (Fla. 3d DCA 2005).

POLEN, GERBER and LEVINE, JJ., concur.