author: VAN NORTWICK, J.

text:
    Fred M. JOHNSON, Appellant, v. GULF COUNTY, Florida, a political subdivision of the State of Florida; William Joseph Rish, Jr., an individual; D&K of Northwest Florida, LLC, a Florida Limited Liability Company; Panhandle Investment GROUP, LLC, a Florida Limited Liability Company; and Edwards Properties, Ltd., an Alabama Limited Liability Partnership, Appellees.
    No. 1D08-6189.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Jan. 22, 2010.

      Fred M. Johnson of Johnson, Farrell & Mabile, LLC, Tallahassee, for Appellant.
    Timothy J. McFarland, Port St. Joe, for Appellee Gulf County, Florida.
    Clifford W. Sanborn and Holly Melzer of Barron, Redding, Hughes, Fite, Sanborn & Kiehn, P.A., Panama City, for Appellees William Joseph Rish, Jr., D&K of Northwest Florida, LLC, Panhandle Investment Group, and Edwards Properties, Ltd.
   VAN NORTWICK, J.

Fred M. Johnson appeals a final judgment in favor of appellees on all counts of his Fourth Amended Complaint in which Johnson sought declaratory, injunctive and mandamus relief to bar appellee William Joseph Rish, Jr.’s development of wetlands on Rish’s property located near Johnson’s home on Cape San Bias. Johnson alleged that the development violated the comprehensive plan of appellee Gulf County, that Gulf County wrongfully refused to enforce its comprehensive plan and its regulations relating to replats with respect to Rish’s development activities, and that Rish wrongfully filled wetlands without first obtaining a permit. We agree with Johnson that the trial court erred in ruling that the wetlands on Rish’s property were “non-jurisdictional” and that, as a result, the County was not required to comply with the provision in its comprehensive plan that prohibited development within 50 feet of wetlands. Further, we hold that the trial court erred in ruling that Rish was not required to obtain a development order or development permit from the County before clearing and filling wetlands located on his property. Finally, we find that the trial court erred when it held that Rish was not required to comply with the County’s subdivision ordinance when he replat-ted his property and converted three lots into five new and different lots. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

I.

Factual and Procedural Background

In Florida, each county must adopt a comprehensive plan for future development and growth, see sections 163.3164-.3215, Florida Statutes (2006), and obtain the approval of the Department of Community Affairs (DCA) with respect to its plan. See § 163.3177, Fla. Stat. (2006). In response to concerns raised by DCA when the County enacted its comprehensive plan in 1990, DCA and Gulf County entered into a settlement agreement in 1992 which states, in pertinent part:

Future land use policy 1.1.10, will be revised to state the following:
To promote the protection of wetlands and other surface water resources, specifically including the St. Joseph Bay Aquatic Preserve, the County shall require the following:
Development within 50 feet of coastal waters and wetlands (including salt marsh areas) will be prohibited. Structures will be restricted to minor accessory structures such as elevated walkways, etc.

This language was incorporated into Gulf County’s comprehensive plan.

To implement comprehensive plans, counties are required to adopt and enforce land development regulations. § 163.3202, Fla. Stat. (2006). In 1993, Gulf County complied with the mandate of section 163.3202 by adopting Land Development Regulations, which, in pertinent part, state:

1.02.01 General Applicability
[T]he provisions of this Code shall apply to all development in Gulf County ... and no development shall be undertaken without prior authorization pursuant to this Code.
1.03.02 Definitions
DEVELOPMENT OR DEVELOPMENT ACTIVELY: Includes any of the following activities:
1. Construction, clearing, filling, excavating, grading, paving, dredging, mining, and/or other similar activities.

(Emphasis added). Gulf County, Florida, Unified Land Development Regulations §§ 1.02.01 and 1.03.02.

Johnson owns property on Cape San Bias in Gulf County which fronts on St. Joseph Bay. In November 2005, Rish purchased a 4.12 acre parcel in close proximity to Johnson’s property. The Rish parcel consisted of a house, 2.13 acres of uplands and 1.99 acres of wetlands. After Rish’s attempted sale to another developer failed, Rish proceeded to develop the property himself.

Prior to his purchase of this property, Rish submitted dredge and fill applications to the United States Army Corps of Engineers (Corps) and the Florida Department of Environmental Protection (DEP). DEP advised him by letter that it did not appear that his property was “located in Waters of the State or their landward extent as defined by Florida Administrative Code Rule 62-312.030,” and therefore he was not required to obtain a “Department of Environmental Protection wetland resource permit.” However, the letter states further: “Please be advised that this letter does not authorize any fill to be placed in regulated wetlands.” In addition, Rish received a letter from the Corps stating that he was not required to obtain a permit from the Department of the Army to develop his property. The letter advises that “[pjursuant to the U.S. Supreme Court’s January 9, 2001 decision concerning isolated wetlands, the on-site wetlands are not subject to the Corps’ regulatory jurisdiction.” In this proceeding, Rish and the County assert that, once Rish received letters from the DEP and the Corps, he could proceed to fill the wetlands on the property and that neither the County’s comprehensive plan nor its land use regulations prohibited the development of so-called non-jurisdictional wetlands.

On August 17 or 18, 2006, Rish began to clear and fill his property. The neighbors, including Johnson, protested to the County, but to no avail. On August 21, 2006, these parties filed a complaint seeking in-junctive relief alleging that the clearing violated Gulf County’s comprehensive plan because it failed to maintain a 50-foot buffer for the wetlands. The neighbors alleged standing under section 163.3215(3), Florida Statutes (2006).

The trial court dismissed the complaint ruling that Johnson and the other neighbors did not possess standing to seek relief under section 163.3215. This court reversed. Johnson v. Gulf County et al., 965 So.2d 298 (Fla. 1st DCA 2007) (holding that the trial court had abused its discretion in dismissing the case without allowing appellants an opportunity to amend).

Throughout this litigation, Rish proceeded to clear and fill his property. On March 21, 2007, Rish filed his first “minor replat” application with the County. Pri- or to that replat, Rish’s parcel of property was comprised of three lots, lots 4, 5 and 6, platted as follows:

The March 2007 replat created parcels “A,” “B,” and “C,” from what was previously lots 4, 5, and 6. Resulting parcel “A” consisted of a 0.661 acre portion of former lot 6. Resulting parcel “B” consisted of a 0.596 acre portion of former lot 6 and former lot 5. Resulting parcel “C” consisted of a 2.861 acre portion of former lots 4, 5, and 6. The reconfigured three lots were platted as follows:

On March 27, 2008, Rish filed a second ‘minor replat” which reconfigured the recently-created parcel C into three new parcels that were designated as a 0.67 acre parcel C, a 0.50 acre parcel D, and an approximately 1.691 acre parcel E. After the March 2008 replat, the property was configured as follows:

In 2007, Kish sold three of these lots to D & K of Northwest Florida, LLC (D & K), Panhandle Investment Group, LLC (Panhandle), and Edwards Properties, Ltd. (Edwards), respectively.

The case went to trial on Johnson’s fourth amended complaint against the County, Rish, D & K, Panhandle, and Edwards seeking declaratory, injunctive, and mandamus relief. In Counts I through IV, Johnson alleged that the County allowed development in violation of its comprehensive plan and §§ 1.02.01 and 1.03.02 of its land development regulations. Johnson contended that these regulations require authorization from the County before a landowner may clear and fill land.

In particular, Johnson alleged that under the comprehensive plan and county regulations, a landowner must first be granted a development order from the County which would allow neighboring landowners adversely affected to challenge the County’s determination within 30 days. Johnson asserted that only after an adversely affected party has been given an opportunity to challenge the development order can the County issue a development permit. In Counts V and VI, Johnson challenged the manner in which Rish subdivided his parcel into five lots. The remaining counts of the Fourth Amended Complaint are not at issue in this appeal.

At trial, David Richardson, the County-Planner for Gulf County, viewed photographs of the clearing and filling that Rish had performed, which essentially had eliminated the wetlands and placed truckloads of fill on the subject property, and he agreed that this activity did constitute “development” under the County’s ordinances. He maintained, however, that the letter that Rish received from DEP constituted the permit needed to develop this land. In contrast, DEP employee Christopher Stall testified that, while DEP may have found the wetlands on this property to not be within DEP’s jurisdiction, the letter that DEP wrote to Rish was not a permit for development. Susan Poplin, a DCA regional planning administrator, testified that under her interpretation of the 1992 DCA settlement with the County, the required 50-foot setback was only applicable to the St. Joseph Bay Aquatic Preserve. Dr. Hoffa, a retired Florida State University professor and one of Rish’s neighbors, testified that the wetlands on Rish’s property were within 140 to 175 feet from St. Joseph Bay and should have been subject to regulatory jurisdiction of the Corps. Don Butler, the County Administrator for Gulf County, testified that he interpreted the 1992 settlement to the comprehensive plan as requiring a 50-foot setback only from the waters of the St. Joseph Bay Aquatic Preserve. He testified that, if wetlands are determined to be non-jurisdictional by the Corps and DEP, Gulf County does not require any other permit before the property owner is allowed to place fill. He acknowledged that a property owner would need a permit for fill if he was putting in a subdivision. Jess Van Dyke, a retired DEP employee, testified as an expert for Johnson opining that the wetlands at issue in this case were connected to St. Joseph Bay and that DEP and the Corps were mistaken when they determined these wetlands were outside of their jurisdiction. Rish objected to Van Dyke’s testimony asserting that, since neither the Corps nor DEP were joined as parties in the lawsuit, evidence as to the jurisdiction of those agencies was irrelevant. The trial court excluded the testimony as irrelevant, but allowed Johnson to proffer Van Dyke’s testimony. On proffer, Van Dyke testified that, because the wetlands were adjacent to St. Joseph Bay, DEP and the Corps were required to take jurisdiction. Martin Gawronski, an environmental consultant, testified for Rish that, in his opinion, if you could travel completely around a wetland and find no surficial connection to waters of the state, the wetland would not be within the jurisdiction of DEP. On cross-examination, Gawronski did acknowledge that, if the wetlands were within 200 feet of the Bay, the Corps would have been in error to decline jurisdiction over these wetlands because, by rule, the Corps takes jurisdiction over wetlands if they are within 200 feet of waters of the United States.

Thereafter, the trial court entered final judgment for appellees. With respect to Counts I, II, and III, the trial court found that all parties involved in the 1992 settlement that revised the County’s land use policy 1.1.10 testified consistently that they interpreted the provision for a 50-foot setback from wetlands to be limited to the St. Joseph Bay Aquatic Preserve. Thus, the trial court found that the 50-foot setback was not applicable to the wetlands on Rish’s property. The court rejected Johnson’s attempt to dispute the determinations of DEP and the Corps that these wetlands were non-jurisdictional because neither DEP nor the Corps were joined in the lawsuit.

Turning to Gulf County’s practice of allowing the filling of wetlands when they have been determined to be non-jurisdictional by DEP and the Corps, the trial court found that Johnson failed to prove that Rish’s clearing and filling activities materially altered the use, density, or intensity of the use of the land pursuant to section 163.3215(3). Next, the court rejected Johnson’s contention that the County should have issued a development order and, then, a permit before any clearing or filling activities occurred finding that, “even if a written permit were issued, or required to be issued by the court, the result would be the same. A written permit (or a de facto permit) authorizing the filling of non-jurisdictional wetlands is not inconsistent with the comprehensive plan.”

Finally, the court rejected Johnson’s assertions that Rish’s development violated the subdivision ordinance. The court noted that the subdivision ordinance allows the County to permit division of a single lot or parcel of land into two lots through a minor replat. The court found that the minor replat recorded in March 2007 simply moved boundaries and did not increase the number of lots or parcels. The court found that the minor replat recorded in March 2008 merely permitted one tract to be divided into two parcels so compliance with the subdivision ordinance was not required. This appeal ensued.

This court reviews de novo the trial court’s interpretation of Gulf County’s comprehensive plan, land use regulations and subdivision ordinance. B.Y. v. Dep’t of Children and, Families, 887 So.2d 1253, 1255(Fla.2004).

II.

Gulf County Comprehensive Plan

The 1992 settlement agreement which revised future land use policy 1.1.10, unambiguously provides that “[development within 50 feet of coastal waters and wetlands (including salt marsh areas) will be prohibited.” As this language is not ambiguous, the trial court erred in accepting parol evidence to determine the meaning and intent of the language of this land use policy. Jenkins v. Eckerd Corp., 913 So.2d 43, 52 (Fla. 1st DCA 2005) (“If a contract provision is ‘clear and unambiguous’ a court may not consider extrinsic or ‘parol’ evidence to change the plain meaning set forth in the contract.”). As the Supreme Court has explained:

It is a fundamental principle of statutory construction that where the language of a statute is plain and unambiguous there is no occasion for judicial interpretation .... Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.... If it has been passed improvidently the responsibility is with the Legislature and not the courts.

Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992) (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694-95 (1918)).

Despite this unambiguous language in its comprehensive plan, the County maintains that, in Gulf County, there are jurisdictional and non-jurisdictional wetlands. As noted, see footnote 1, supra, the jurisdictional wetlands are ones over which DEP or the Corps have taken jurisdiction. The County asserts that all other wetlands are non-jurisdictional wetlands over which the County has no control. For this proposition, the County relies upon section 4.01.01 of its land use regulations which provides:

Water’s Edge and Wetland’s Edge:
The water’s or wetland’s edge shall be determined by whichever of the following indices yields the most landward extent of waters or wetlands.
1. the boundary established by the annual mean high water (MHW) mark or
2. the landward boundary of wetland vegetation as established by the Florida Department of Environmental Protection (FDEP) or U.S. Army Corps of Engineers (COE) jurisdiction determination.

Gulf County Fla. Unified Land Development Regulations § 4.01.01.

The County maintains that, because the Corps and DEP both determined that Rish’s property contained only non-jurisdictional wetlands, Gulf County could require nothing additional from Rish prior to his clearing or filling his property. We reject this interpretation because it is inconsistent with the 1992 settlement that was incorporated into the County’s comprehensive plan.

The County is required to implement its comprehensive plan “through the adoption of land development regulations that are consistent with the plan.” Bd. of County Commr’s of Brevard County v. Snyder, 627 So.2d 469, 473 (Fla.1993) (emphasis added). The County cites no authority for the proposition that it can enact a land use regulation which is inconsistent with its comprehensive plan. Should section 4.01.01 be l'ead to relieve the County from prohibiting or regulating “[djevelopment within 50 feet ... [of wetlands]” this would violate section 163.3202(1), Florida Statutes (2006), which provides that “[e]ach county ... shall adopt or amend and enforce land development regulations that are consistent with and implement their adopted comprehensive plan.” (emphasis supplied). We do not believe it is necessary, however, to reach a conclusion that section 4.01.01 is an inconsistent regulation. The language of this regulation should be read as determining the “Wetlands Edge” for the purpose of the comprehensive plan. It does not establish a limit to the County’s jurisdiction to regulate development of wetlands. Thus, in short, Gulf County’s comprehensive plan required it to take jurisdiction and regulate any development within 50 feet of wetlands under its land development regulations.

III.

Development Order Required,

Gulf County’s land use regulation § 1.03.02(1) defines “development or development activity” as including “clearing” and “filling.” Accordingly, before a developer may engage in this development activity, the County is required to enter a “development order” pursuant to its land regulations. Gulf County, Florida, Unified Land Development Regulations § 2.00.03. The record is clear that Rish’s clearing and filling activities constituted “development” under § 1.03.02(1). More importantly, Gulf County’s comprehensive plan required development on the Rish parcel to comply with a 50-foot setback from the wetlands on that property. Under the circumstances here, we hold that the County was required to issue a development order before Rish’s activities could proceed.

On remand, Rish, D & K Panhandle, and Edwards shall comply with all laws and regulations governing the development of the subject property. The County shall comply with its land use regulations by issuing a development order. Moreover, because Johnson asserts that the development proposed and accomplished by Rish violates the County’s comprehensive plan, Johnson is entitled to a de novo hearing to challenge the decision of Gulf County to permit Rish’s development. § 163.3215(3), Fla. Stat. On remand, the County shall determine whether other remedies are necessary or appropriate, including requiring Rish, D & K Panhandle and Edwards to restore the wetlands previously on their portion of the subject property to the condition that existed prior to Rish’s development activities. Further, development activities on the subject property shall be enjoined until the completion of such proceedings.

IV.

DEP and The Corps

The Corps’ jurisdiction arises under the Clean Water Act which seeks “to restore and maintain the chemical and physical and biological integrity of the Nation’s waters ...” 33 U.S.C. § 1251(a) (2006). “[Wjaters of the United States” include “[wjetlands adjacent to those waters which are currently used ... in interstate or foreign commerce.” 33 C.F.R. § 328.3(a)(1), (7). As explained in the information sheet attached to the letter received by Rish from the Corps, “[t]he term ‘adjacent’ means bordering, contiguous, or neighboring. Wetlands separated from other waters of the U.S. by man-made dikes or barriers, natural river berms, beach dunes, and the like are also adjacent.” See also 33 C.F.R. § 328.3(c).

Regarding DEP jurisdiction, Florida Administrative Code Rule 62-312.030 explains when DEP will take jurisdiction and require a dredge and fill permit for dredging and filling conducted “in, on, or over those surface waters of the State.” Upon request, DEP will give a formal jurisdictional determination to “a property owner, a person who has power of eminent domain, or any other person with a legal or equitable interest in a property.” Fla. Admin. Code R. 62-312.040(1). With respect to wetlands, Florida Administrative Code Rule 62-312.045 provides “isolated wetlands that infrequently flow or otherwise exchange water with the described water body are not intended to be included within the dredge and fill jurisdiction of the department.”

In the proceeding below, testimony was adduced as to whether DEP and the Corps correctly declined to exercise jurisdiction over this development. Specifically, several issues were raised: whether there is a significant nexus between the wetlands and St. Joseph Bay, see Rapanos v. United States, 547 U.S. 715, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006); whether the Corps’ reliance upon the 2001 decision of the United States Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) for its non-jurisdiction letter was incorrect in light of Rapanos; whether the wetlands which were located on Rish’s property were within 200 feet of St. Joseph Bay; and whether the waters of St. Joseph Bay and the wetlands were connected infrequently. Neither the Corps nor DEP was a party to the litigation below. Accordingly, we will not address the jurisdiction of these two agencies. Upon remand and the County’s issuance of a development order, assuming that Johnson requests a de novo hearing, the extent to which he may introduce evidence challenging the decisions of DEP and the Corps can be addressed by the trial court. The jurisdiction of these two agencies, however, is not determinative of the County’s jurisdiction to administer its comprehensive plan and land use regulations.

V.

Subdivision Ordinance

The County’s subdivision ordinance provides in section 2.1 that a “[subdivision shall mean the platting of real property into three or more lots, ...” Pursuant to section 2.7, a “minor replat” means “[t]he subdivision of a single lot or parcel of land into two (2) lots or parcels.” When Rish purchased the property in 2005, it consisted of three adjoining lots. Through the use of two “minor replats,” Rish reconfigured all of those lots and added two lots to make a parcel of land consisting of five lots, none of which were the same as the three lots which he purchased in 2005.

We agree with Johnson that the lower court erred in ruling that Rish’s new five-lot subdivision was not required to comply with the County’s subdivision ordinance. We reject the trial court’s reasoning that Rish was not obligated to comply with the subdivision ordinance because the first replat simply moved the boundaries of the lots. Changing the boundaries of lots is not a recognized exception to the subdivision ordinance. Moreover, original lot 4 became an expanded lot which included portions of original lots 5 and 6. Thus, in effect, Rish created a subdivision by reconfiguring his property into three new and different lots. The minor replat exception to the subdivision ordinance is inapplicable here because it is specifically limited to one lot or parcel. The evidence is undisputed that in the second minor replat which replatted parcel C, the parent tract was divided into three new parcels, not two. In the replat, Rish reduced parcel C from 2.861 acres to .67 acres, and created a new parcel D, consisting of .50 acres, and E, consisting of 1.69 acres. We find no exception in the County’s subdivision ordinance which allows the creation of three lots from one without a development plan. Moreover, the land development regulations provide that there shall be “[n]o further division of an approved Minor Replat ... unless a development plan is prepared and submitted in accordance with this Article.” Gulf County Florida Unified Land Development Regulations § 2.03.02(b). This provision expressly prohibits a second replat of the same land without a development plan.

Allowing Rish to circumvent the subdivision ordinance enabled him to create five lots in his development rather than three. Further, because no development plan was required, Rish was not obligated to satisfy the street width and surface requirements of the ordinance. Gulf County, Florida, Ordinance No. 2002-01, Article 4. The subdivision ordinance also requires the planning department to place notice in a newspaper before the proposed final plat is accepted. Id. at art. 3, § 3. Johnson correctly argues that, because he and his neighbors never received notice of Rish’s replats, they were denied their right to submit comments, as permitted by article 3, section 3 of Ordinance No. 2002-01. Accordingly, the trial court erred when it failed to grant a declaratory judgment against Gulf County for failure to enforce the terms of its subdivision ordinance. Further development activity shall be enjoined until appellees comply with the subdivision ordinance.

REVERSED and REMANDED for further proceedings consistent with this opinion.

BARFIELD, and KAHN, JJ., concur.

      . The so-called “jurisdictional wetlands” are those wetlands over which the DEP and Corps exercise jurisdiction. See 33 C.F.R. § 331.2 (Corps makes a jurisdictional determination when it provides a written determination “that a wetland ... is subject to regulatory jurisdiction under [the Clean Water Act];” Fairbanks N. Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (C.A.9 2008) (wetlands jurisdictional determination alone was not reviewable in federal district court); Fla. Admin. Code R. 62-312.030-.050 (explaining when DEP takes jurisdiction and requires a permit for dredging and filling). The County takes the position that all other wetlands are "nonjurisdictional” wetlands over which it has no control. See section IV, infra.

      . Section 163.3215(3), Florida Statutes (2006), provides in pertinent part:
      (3) Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or. other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part.
      Section 163.3164(6), Florida Statutes (2006) provides that “Development” has the same meaning as that term is given in section 380.04. Section 163.3164(7) defines “Development order” as meaning "any order granting, denying, or granting with conditions an application for a development permit.” Section 380.04 provides in pertinent part:
      (1) The term “development” means the carrying out of any building activity or mining operation, making of any material change in the use or appearance of any structure or land, or the dividing of land into three or more parcels.
      (2) The following activities or uses shall be taken for purposes of this chapter to involve "development” as defined in this section:

      (0 Clearing of land as an adjunct of construction.
      (g) Deposit of refuse, solid or liquid waste, or fill on a parcel of land.

      . Gulf County’s subdivision ordinance provides that a landowner may undertake a "minor replat" of property without approval of the County. This ordinance provides:
      Article 2 — Definitions
      2.1 Subdivision shall mean the platting of real property into three or more lots, ...

      2.7 Minor Replat: The subdivision of a single lot or parcel of land into two (2) lots or parcels ...

      2.9 Minor Subdivision shall mean the division of real property resulting in 3 or more, but less than 10, lots, blocks, parcels, tracts, tiers and units.
      Gulf County, Florida, Ordinance No. 2002-01.

      . In Gulf County's development regulations, a "development order" and a "development permit” are defined as follows:

        Development Order:

      An order granting, denying, or granting with conditions an application for approval of a development activity. A distinction is made between a development order and a building permit. A development order is the County authorization of a proposed development project. Such authorization must be granted by the County prior to issuance of a building permit by the County as defined for purposes of these regulations. (The development order authorizes the project, whereas the building permit authorizes specific components of the project, such as building construction, sign installation, and the like.) ...

        Development Permit:

      For purposes of this Code, a development permit is that official City/County document which authorizes the commencement of construction or land alteration without need for further application and approval

      Gulf County, Florida, Unified Land Development Regulations § 2.00.03; see also § 163.3164(7) and (8), Fla. Stat. (2006), footnote 2, supra.


source: Caselaw Access Project

author: RAMIREZ, C.J.

license: Public Domain

text:
    Dora PUIG, The Puig Group, and Dora Puig, P.A., Petitioners, v. PADC MARKETING, LLC, Collins Avenue Associates, LLC, and R. Donahue Peebles, Respondents.
    No. 3D09-2094.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Rehearing Denied Jan. 27, 2010.
    Schlesinger & Cotzen, and Michael J. Schlesinger, and Michael L. Cotzen, Miami, for petitioners.
    Higer, Lichter & Givner, Michael J. Higer, Aventura; Abadin & Cook, Ramon A. Abadin, Miami, for respondents.
    Before RAMIREZ, C.J., and GERSTEN, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

This is a petition for certiorari review of an order denying plaintiffs’ motion to compel the deposition of R. Donahue Peebles and granting an indefinite stay of this entire action against all defendants pending the completion of the bankruptcy proceeding of only one defendant, PADC Marketing, LLC. Because the order departs from clear legal precedent, we grant the petition.

Petitioner Dora Puig is a licensed real estate sales broker and is the Director of the Petitioners Puig Group, Inc. and Dora Puig, P.A. Respondent Collins Avenue Associates, LLC is the original developer and owner of a high end condominium complex called the Residences at the Bath Club, located in Miami Beach, Florida. Respondent Peebles is the president, owner, managing member, and sole member of Collins Avenue. Peebles exercised complete control over all the aspects relating to the development and management of the Bath Club. Respondent PADC is the sales and marketing arm of the Collins Avenue. Peebles is the owner and sole managing member of PADC. It is undisputed that Peebles, PADC, and Collins Avenue are separate and distinct entities.

Collins Avenue contractually retained Puig, first as a marketing consultant and after the Bath Club’s public opening, as the Director of Marketing and Sales. In early 2002, Peebles requested that Puig consent to an assignment of the contract to a new company, PADC. Plaintiffs have alleged that, after prolonged negotiations, Puig agreed to the assignment of her contract to PADC, but with the caveat that she did not consent to any limitation on her right to collect compensation from Collins Avenue. They further have alleged that respondents eventually breached their contracts, leading to the filing of their complaint on May 5, 2006. They argue in their petition for certiorari that the claims against Collins Avenue and Peebles are independent claims and can be tried without inclusion of PADC. On April 6, 2009, petitioners noticed this case for trial and the court issued, on April 14, 2009, a Uniform Order Setting Cause for Jury Trial for the two week trial period commencing August 3, 2009.

During the litigation, petitioners had been attempting to depose Peebles. They noticed his deposition for May 7-8, 2009 and noticed the deposition of the corporate representative of Collins Avenue for May 19, 2009. On April 27, 2009, ten days before Peebles’ scheduled deposition and over a month after it was noticed, PADC filed for bankruptcy in the Southern District of Florida. That same day, respondents’ counsel informed petitioners’ counsel that Peebles would not be appearing for his May 7 deposition.

In Malloy v. Gunster Yoakley, Valdes-Fauli & Stewart, P.A., 850 So.2d 578, 580-81 (Fla. 2d DCA 2003), where the petitioners sought a writ of certiorari to avoid the effect of the trial court’s order abating their action, the court stated that the petitioners must establish that the lower court departed from the essential requirements of the law. The court concluded that cer-tiorari jurisdiction was appropriate review of an order staying a case. Likewise here, the trial court violated a clearly established principle of law and departed from the essential elements of law by indefinitely staying this action. The stay will cause material injury to the petitioners in that their action against Collins Avenue and Peebles was improperly stayed pending the resolution of PADC’s bankruptcy proceedings by the United States Bankruptcy Court, a court without jurisdiction over petitioners’ claims against Peebles and Collins Avenue.

The filing of a bankruptcy petition imposes an automatic stay under the United States Bankruptcy Code. See 11 U.S.C. § 362. The bankruptcy stay is imposed by Congress, protects the debtor, and is triggered by the filing of a voluntary or involuntary petition. The scope of the automatic stay, however, does not include the non-debtors, Collins Avenue and Peebles. As a result, the only way that this action could be properly stayed is through the discretionary power of the lower court. A stay for an indefinite time frame (through the bankruptcy proceeding), like what happened here, is overbroad and improper.

Although the scope of the automatic stay under section 362 is broad, the clear language of section 362(a) stays actions only against a “debtor.” Maritime Elec. Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1204 (3d Cir.1991). The language of section 362 refers only to actions against the debtor and does not relate to any other interparty claims. See In the Matter of Johns-Manville Corp., 26 B.R. 405, 409 (S.D.N.Y.1983). Both federal and state courts in Florida have followed the general rule that the United States Bankruptcy Code generally stays proceedings against the debtor alone, in this case, PADC, which is the only party to this matter that has sought protection from the bankruptcy court. See W.W. Gay Mech. Contractor, Inc. v. Wharfside Two, Ltd., 545 So.2d 1348, 1350 (Fla.1989) (“Generally, the protections of the automatic stay do not apply to a codefendant not in bankruptcy.”).

Because Collins Avenue guaranteed PADC’s obligation to Puig, both sides argue the applicability of A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994 (4th Cir.1986). We read the A.H. Robins decision as authorizing courts to extend the automatic stay to non-bankrupt co-defendants only in “unusual circumstances.” Id. at 999. Such an unusual situation, as explained in A.H. Robins would be “when there is such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment or finding against the debtor.” Id. Because the trial court did not find such an unusual situation existed, nor do we conclude that such a finding would be warranted, we grant the petition for writ of certiorari and quash the order staying the entire action.


author: PER CURIAM.

text:
    MASTER PLASTER, INC., Appellant, v. SCOTTSDALE INSURANCE COMPANY, Appellee.
    No. 3D09-60.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Rehearing and Rehearing En Banc Denied Feb. 5, 2010.
    Ver Ploeg & Lumpkin and R. Hugh Lumpkin and Christine A. Gudaitis and Randall S. Goldberg, Miami, for appellant.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer and Hinda Klein, Hollywood, for appellee.
    Boyle & Gentile and Mark A. Boyle, Ft. Myers, for National Association of Home Builders, The Florida Home Builders Association, United Policyholders, Aubuchon Homes, Inc., Barnard Construction Co., Inc., Bollenback Builders, Inc., Boran Craig Barber Homes, Inc., Camden Developers, Inc., Civitest Construction Corp., Continental Construction of SW Florida, Inc., Keenan, Hopkins, Schmidt <& Stowell Contractors, Inc., Mark Maconi Homes of Tampa Bay, Inc., Maronda Homes, Summit Contractors, Inc., and Target Builders, as amici curiae.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed.


author: SUAREZ, J.

text:
    UNITED REAL ESTATE VENTURES, INC., Petitioner, v. VILLAGE OF KEY BISCAYNE, Florida, Respondent.
    No. 3D09-1191.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2009.
    Rehearing Denied Feb. 10, 2010.
    Bilzin Sumberg Baena Price & Axelrod LLP, Carter N. McDowell, Albert E. Dotson, Eileen Ball Mehta and Alexandra L. Deas, Miami, for petitioner.
    Weiss Serota Helfman Pastoriza Cole & Boniske and Joseph H. Serota and Laura K. Wendell, Miami, for respondent.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

United Real Estate Ventures, Inc. (“United”), petitions this Court for a writ of certiorari quashing the circuit court’s opinion upholding an order issued by a special magistrate of the Village of Key Biscayne, Florida, in a code enforcement proceeding involving the use of a helipad by the property owner, United. We deny the petition for writ of certiorari.

The standard of review on a second-tier petition for writ of certiorari is whether the lower court applied the correct law and afforded procedural due process. City of Miami v. Cortes, 995 So.2d 604 (Fla. 3d DCA 2008).

We find that the circuit court correctly applied the law and afforded procedural due process and deny the petition for writ of certiorari. The federal use of the helipad by President Nixon’s administration was immune from enforcement by reason of the supremacy clause of the United States Constitution and was not conformed into a legal non-conforming use for private individuals when the federal government ceased to use the helipad and conveyed the property to a private third party. See Alaska R.R. Corp. v. Native Village of Eklutna, 43 P.3d 588 (Alaska 2002); Nolan Bros. v. City of Royal Oak, 219 Mich.App. 611, 557 N.W.2d 925 (1996). The Code Enforcement Special Magistrate correctly-applied the law and afforded procedural due process in concluding that United was in violation of Section 30-100(a) of the Code of the Village of Key Biscayne by engaging in a prohibited use.

Petition for writ of certiorari denied.


author: WELLS, Judge.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. COMPREHENSIVE HEALTH CENTER, LLC, a/a/o Leonie A. Joseph, Respondent.
    No. 3D09-1930.
    District Court of Appeal of Florida, Third District.
    Dec. 30, 2009.
    Michael J. Neimand, Miami, for petitioner.
    Marlene S. Reiss, Miami, for respondent.
    Before WELLS, CORTIÑAS, and SALTER JJ.
   WELLS, Judge.

United Automobile Insurance Company petitions this court to issue a writ of cer-tiorari quashing a decision of the appellate division of the circuit court, affirming a summary judgment entered following exclusion of the insurance company’s expert medical witness affidavit because that affidavit was not predicated on an independent medical examination conducted by the insurance company. We grant the writ and quash the decision on the authority of this court’s most recent decisions confirming that a physician’s report, whether used to support a section 627.736(4)(b) denial of a claim that a bill or claim is not reasonable, related or necessary or whether used to support withdrawal or termination of payments being made to a treating physician under section 627.736(7)(a), need not be based on a physical examination conducted by either the reporting physician or by another physician on the insurance company’s behalf. See, e.g., United Auto. Ins. Co. v. Perez, 21 So.3d 886 (Fla. 3d DCA 2009); Partners in Health Chiropractic v. United Auto. Ins. Co., 21 So.3d 858 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Santa Fe Med. Ctr. (a/a/o Telmo Lopez), 21 So.3d 60 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Metro Injury & Rehab. Ctr., 16 So.3d 897 (Fla. 3d DCA 2009).

Petition granted.


author: STEVENSON, J.

text:
    Joan C. FRANCIS, Appellant, v. Lawrence V. STUBBS and Donna J. Stubbs, his wife, Clyde D. Crouch and Sandra D. Crouch, his wife, Appellees.
    Nos. 4D08-2405, 4D08-4300.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.
    R.N. Koblegard, III, Fort Pierce, for appellant.
    Paul R. Berg of Vocelle & Berg, LLP, Vero Beach, for appellees.
   STEVENSON, J.

This is a consolidated appeal from an order dismissing a complaint to quiet title and for ejectment, and an order granting summary judgment in favor of the defendants below on their counterclaim to quiet title. We reverse both orders.

The appellant, Joan Francis (“Homeowner”), is the owner of a five-acre tract of land in St. Lucie County, Florida. The appellees, Lawrence and Donna Stubbs (“Neighbors”), are the owners of ten contiguous acres to the north of Homeowner’s property. Homeowner filed an action to quiet title and for ejectment against Neighbors, seeking to establish a boundary between the two properties consistent with a wire fence that allegedly had separated the two properties since at least 1971. Homeowner alleged that, in 1974, a dispute over the boundary line of the property arose between Homeowner and Neighbors’ predecessors in title, that Homeowners and Neighbors’ predecessors in title had agreed the fence constituted the legal boundary between their properties, and that Homeowner, Neighbors’ predecessors in interest, and Neighbors, who acquired the property in approximately 1986, had continuously treated the fence as the boundary line separating the properties. In June 2005, Neighbors allegedly moved the fence fifty-three feet to the south, claiming that the location of the old fence did not reflect the true boundary line as contained in the “unambiguous” deeds to the properties. In this consolidated appeal, Homeowner challenges (1) a final order of the trial court dismissing her Fifth Amended Complaint to Quiet Title and for Ejectment and (2) a final summary judgment in favor of Neighbors on their counterclaim to quiet title based on the face of their deed. Homeowner’s complaint was predicated on theories of boundary by acquiescence and boundary by agreement.

We reverse the dismissal and the summary judgment, and find that Homeowner’s complaint stated a cause of action to quiet title and for ejectment based on the theories of boundary by acquiescence and boundary by agreement and that genuine issues of material fact exist on Neighbors’ counterclaim to quiet title, despite the “unambiguous” legal description contained in the deed. See, e.g., Sembler Marine Partners, Ltd. v. Skidmore, 842 So.2d 1003, 1005 (Fla. 4th DCA 2003) (“Three essential elements must be proven to establish a boundary by acquiescence: (1) uncertainty or dispute as to the location of the true boundary; (2) location of a boundary line by the parties; and (3) acquiescence in the location for the prescriptive period.”); Reil v. Myers, 222 So.2d 42, 43 (Fla. 4th DCA 1969) (“While title to real estate cannot be transferred by verbal agreement, yet, where the boundary between contiguous lands is uncertain or disputed, the owners of such lands may agree upon a certain line as a permanent boundary line, and where the agreement is followed by actual occupation according to such' line as the boundary, the line will be binding upon them and their successors in title, as the boundary.”); Williams v. Johntry, 214 So.2d 62, 64 (Fla. 1st DCA 1968) (“[Tjitle and boundary line between adjoining property, may be resolved by a line agreed upon to be the true boundary line, regardless of the description contained in the deed ..., by estoppel or acquiescence or by written agreement, verbal agreement, or even by implied agreement, if the conduct of the parties is such as to support the same.”).

Accordingly, the orders on appeal of dismissal and summary judgment are reversed and this cause is remanded for further proceedings.

Reversed and remanded.

TAYLOR and MAY, JJ., concur.

      . Appellees Clyde and Sandra Crouch are the owners of five contiguous acres to the south of Homeowner’s property and were brought into this action upon motion of Neighbors. The Crouches have not made an appearance in this appeal.


author: COHEN, J.

text:
    Edward SHAW, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3761.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.

      James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Edward Shaw challenges his sentence as a prison releasee reoffender (“PRR”) for burglary of an occupied conveyance with an assault. Succinctly summarized, Shaw argues that he could not be sentenced as a PRR because the jury was not specifically instructed that it had to find he committed an assault during the burglary, and because burglary of an occupied conveyance is not a qualifying offense. We reject both these arguments and affirm.

Shaw’s first argument raises an Appren-di issue: that the jury had to specifically determine any facts, other than prior convictions, that may be used to enhance his sentence. Relevant to the instant case, Shaw contends the trial court erred by not specifically instructing the jury that it had to determine that he committed an assault during the burglary. As reflected in its verdict, the jury did just this when it found Shaw guilty of burglary of an occupied conveyance with an assault. Shaw’s second argument is equally unmeritorious.

A defendant can be sentenced as a PRR if he commits an enumerated offense or, under the catch-all provision, for “[a]ny felony that involves the use or threat of physical force or violence against an individual” within three years after being released from a state correctional facility in this, or any other jurisdiction, following incarceration for an offense whose punishment is more than a year in this state. § 775.082(9)(a)l.o., Fla. Stat. (2007). The trial court found Shaw qualified as a PRR under the catch-all provision.

Shaw argues he did not qualify for PRR sentencing because burglary of an occupied conveyance with an assault does not fit within the catch-all provision, citing Gorham v. State, 988 So.2d 152 (Fla. 4th DCA 2008), and Tumblin v. State, 965 So.2d 354 (Fla. 4th DCA 2007). In both these cases, the defendants were convicted of burglary with an assault or battery and sentenced as PRRs under the catch-all provision. In Tumblin, 965 So.2d at 356, the court reversed because, “[ljike battery on a law enforcement officer ... the offense could be committed by an unlawful touching during a burglary and does not necessarily include the threat or use of physical force or violence.” Following Ttmblin, the court in Gorham, 988 So.2d at 154, also reversed the defendant’s PRR sentence. Both these cases simply followed the supreme court’s decision in State v. Hearns, 961 So.2d 211, 218 (Fla.2007), which held that committing a felony with a simple battery was not a forcible felony that qualified for enhanced sentencing under the violent career criminal statute. These cases do not hold or intimate that a defendant cannot qualify for PRR sentencing when he commits a burglary, or other felony, with an assault. In fact, a plain look at the elements of the offense Shaw committed reveals that it is a qualifying offense under the catch-all provision. See id. at 216 (whether an offense qualifies under the catch-all provision is determined by looking at the elements of the offense).

Undisputedly, burglary is a felony. By definition, an assault always involves an “intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so....” § 784.011(1), Fla. Stat. (2007). Consequently, under the statutory elements test, burglary of an occupied conveyance with an assault qualifies as an offense under the catch-all provision of the PRR statute, and Shaw was properly sentenced as one.

In rendering our decision, we recognize the irony that a defendant who commits a battery during the commission of a felony does not qualify as a PRR under the statute, but a defendant who commits an assault does. It is the Legislature’s duty to correct any incongruity.

AFFIRMED.

LAWSON and EVANDER, JJ., concur.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


author: LaROSE, Judge.

text:
    Eric CANONICO, Appellant, v. Jackie CALLAWAY; Scripps Howard Broadcasting Company; The E.W. Scripps Company; Tampa Bay Television, Inc.; ABC News, Inc.; American Broadcasting Companies, Inc.; and ABC, Inc., Appellees.
    No. 2D08-6016.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.
    Rehearing Denied Feb. 9, 2010.

      Gregory G. Jones of Gregory G. Jones, P.A., Tampa; and Kevin C. Ambler of Law Offices of Kevin C. Ambler, P.A., Tampa, for Appellant.
    Gregg D. Thomas and James J. McGuire of Thomas, LoCicero & Bralow, PL, Tampa, for Appellees.
   LaROSE, Judge.

Eric Canónico appeals an order dismissing, with prejudice, his defamation lawsuit against various media defendants. The trial court dismissed the lawsuit because Mr. Canónico filed his claim prematurely, before satisfying a presuit notice requirement. See § 770.02, Fla. Stat. (2005). His lawsuit was thereafter barred by the applicable statute of limitations. See § 95.11(4)(g), Fla. Stat. (2003). We affirm.

We review the trial court’s order de novo. Lander v. Smith, 906 So.2d 1130, 1132 (Fla. 4th DCA 2005) (citing MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004)). The interplay between section 770.01 and Florida Rule of Civil Procedure 1.090(a) is central to our review. The statute provides as follows:

770.01 Notice condition precedent to action or prosecution for libel or slander. — Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory.

Providing notice is a condition precedent to filing suit. See Gifford v. Bruckner, 565 So.2d 887 (Fla. 2d DCA 1990); Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So.2d 1376, 1377 (Fla. 4th DCA 1997); Cummings v. Dawson, 444 So.2d 565 (Fla. 1st DCA 1984).

Section 770.01 does not specify whether the five-day period is calculated using business or calendar days. The trial court sought guidance from rule 1.090(a):

Rule 1.090 Time
(a) Computation. In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday, or legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.

Rule 1.090 governs the computation of time absent specific computation provisions to the contrary. See, e.g., Lehmann Dev. Corp. v. Nirenblatt, 629 So.2d 1098, 1099 (Fla. 2d DCA 1994) (holding that rule applies to time computation for filing a claim for a construction lien when the final day of the period falls on a weekend or legal holiday); Berry v. Clement, 346 So.2d 105 (Fla. 2d DCA 1977) (holding that rule applies in computing the five-day period allowed for filing defensive pleadings in summary eviction proceedings); Health Quest Corp. IV v. Dep’t of Health and Rehabilitative Servs., 593 So.2d 533, 536 (Fla. 1st DCA 1992) (holding that certificate of need’s expiration date, which was on Sunday, was extended by operation of law to Monday); Pub. Health Trust of Dade County v. Gabrilove, 349 So.2d 1228, 1229 (Fla. 3d DCA 1977) (stating that rule is applicable in computing statutory thirty-day time period within which a claimant must file suit on a claim against estate after being served with estate’s objection to the claim); Moffett v. MacArthur, 291 So.2d 134 (Fla. 4th DCA 1974) (stating that statute providing for demand for jury trial not later than five days after an action comes to issue should be computed by excluding day on which cause comes to issue, as well as any intervening Saturday, Sunday, or legal holiday).

The alleged defamation occurred on October 8, 2003. The final day of the limitations period was October 10, 2005. See § 95.11(4)(g). Mr. Canónico mailed his section 770.01 notice on Tuesday, October 4, 2005. Under rule 1.090, the intervening Saturday and Sunday, October 8 and 9, 2005, did not count; Tuesday, October 11, 2005, was the end of the five-day notice period. However, Mr. Canónico filed suit on October 10, 2005, a day too soon under section 770.01, read in conjunction with rule 1.090. The trial court, therefore, dismissed the defamation lawsuit for failure to satisfy the condition precedent. The trial court then concluded that the dismissal must be with prejudice because the cause of action expired before expiration of the five-day period. See § 95.11(4)(g); Williams v. Campagnulo, 588 So.2d 982, 983 (Fla.1991); City of Coconut Creek v. City of Deerfield Beach, 840 So.2d 389 (Fla. 4th DCA 2003).

In analyzing an appellate rule governing timeliness, which contained language similar to that in rule 1.090, we said that the rule “does not extend the time set by the legislature — it merely defines the manner in which the statutory times [are] to be computed.” Finley v. State, 168 So.2d 201, 202 (Fla. 2d DCA 1964). Such rules are procedural, used to implement a substantive right. State v. J.A., 367 So.2d 702, 703-04 (Fla. 2d DCA 1979). In Finley, the State argued that the appeal should be dismissed as one day untimely, notice having been due on a Sunday but filed on Monday. It contended that the filing of a notice of appeal was “jui’isdic-tional” and the district courts had no power to waive or extend the statutory period set by the legislature. We rejected the argument, stating “the ... rule merely operates to compute time prescribed by rules, orders or applicable statutes.” 168 So.2d at 203. Here, the trial court merely used rule 1.090 to compute a legislatively-mandated period.

We are not unsympathetic to Mr. Canonico’s predicament. After all, rule 1.090 is typically applied to extend a period in which to perform some task. See, e.g., Ludwig v. Glover, 357 So.2d 233, 237 (Fla. 1st DCA 1978) (noting that rule 1.090(a) relates to periods within which some act or action must be taken; deferring any decision on the issue of whether a ten-month period would be extended for the commencement or conclusion of a hearing before a medical malpractice mediation panel should the last day fall on a Saturday, Sunday, or legal holiday because it was not an issue in the case). Under section 770.01, Mr. Canónico could not act until the five-day notice period expired. However, we cannot accept his argument that, because section 770.01 is silent on the manner in which to calculate the five-day period, calendar days must be used. The plain language of rule 1.090 dictates that the trial court was correct. See also BNP Paribas v. Wynne, 944 So.2d 1004, 1005 (Fla. 4th DCA 2005) (explaining that in the absence of a statutory provision setting forth the manner of time computation, the computation of days provided by a statute is governed by rule 1.090(a), as stated in its express language); Op. Att’y Gen. Fla. 94-37 (1994) (advising that the five-day time computation period for publication of notice of sale under section 45.031(1), Florida Statutes (1993), should be computed by using rule 1.090(a)).

The trial court properly computed the written notice requirement of section 770.01 by applying rule 1.090(a). Accordingly, we must affirm. However, we certify to the Supreme Court of Florida a question of great public importance:

WHEN THE FIVE-DAY PRESUIT NOTICE IS GIVEN IN A DEFAMATION SUIT UNDER SECTION 770.01, DOES FLORIDA RULE OF CIVIL PROCEDURE 1.090(a) APPLY TO EXCLUDE SATURDAYS, SUNDAYS, AND LEGAL HOLIDAYS?

WHATLEY and KHOUZAM, JJ., Concur.

      . In the trial court, Mr. Canónico also claimed that abatement was the proper remedy and not dismissal. He does not pursue that argument here. See Hosp. Corp. of Am. v. Lindberg, 571 So.2d 446 (Fla.1990) (holding that failure to follow presuit screening process in medical malpractice suit was not a fatal jurisdictional defect but could be corrected by dismissal with leave to amend as long as notice of intent to litigate was served within limitations period).


author: SALTER, J.

text:
    AMERICAN UNIVERSITY OF the CARIBBEAN, et al., Petitioners/Appellants, v. Ming TIEN, Respondent/Appellee.
    Nos. 3D09-929, 3D09-948, 3D09-2195.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 2010.
    Rehearing Denied Feb. 5, 2010.

      Aballi Milne Kalil and Craig P. Kalil and Hendrik G. Milne, and Joshua D. Poyer and Renee R. Tischler, Miami, for petitioners/appellants.
    Pathman Lewis and Roger Slade and Alan Fertel and Lara A. Schenkman, Miami, for respondent/appellee.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SALTER, J.

These three consolidated cases were begun by foreign companies impleaded in a dissolution of marriage proceeding between one spouse in Florida and another in Taiwan. The legal issues involve a Florida circuit court’s ability to enjoin access to some $100 million on deposit in Florida bank accounts of bona fide international companies that are themselves owned in part by the non-resident spouse. We conclude that the trial court’s well-intentioned attempt to protect the Florida-based spouse’s rights to equitable distribution impermissibly violates the rights of the international companies; that the Florida spouse may pursue other legal remedies here and abroad; and that the injunction below must be vacated.

Background

Ming Tien and Paul Tien were married in Taiwan in 1952. In October 2006, Paul Tien commenced an action for dissolution of marriage against Ming Tien in Taiwan. A month later, Ming Tien commenced an action for dissolution of the marriage in the Miami-Dade circuit court. Although Ming Tien was not domiciled in Taiwan and did not appear in the Taiwan dissolution case, the court there entered a final judgment finding that she was duly served and dissolving the marriage in October 2008. Paul Tien appeared specially in the Florida dissolution case, and he moved to quash purported substitute service on him.

Beginning in approximately 1980, Paul Tien established a for-profit medical school in Montserrat called American University of the Caribbean (the University). The University, relocated to St. Maarten following a volcanic eruption in Montserrat in 1995, is now owned and operated by three foreign companies collectively referred to as “AUC:” American University of the Caribbean, a Cayman Islands company formed in 1982; American University of the Caribbean School of Medicine, a Cayman Islands company formed in 1999; and the American University of the Caribbean, N.V., a Netherlands Antilles company formed in 1996. A fourth company, Medical Education Information Office, Inc. (MEIO), is a Florida corporation formed to perform certain administrative services relating to the University. Paul Tien owns all or a majority of the stock of the three AUC entities, while the stock of MEIO is owned by the adult sons of the Tiens.

The Tiens began living apart in the 1980’s — Paul Tien maintained homes in Montserrat and Taiwan, and Ming Tien lived in Miami. The University thrived, though the marriage did not. The AUC companies ultimately deposited tens of millions of dollars in bank accounts in Miami, but nearly $70 million in AUC funds were transferred by one of the Tiens’ sons without authorization to Miami bank accounts in the name of a Turks & Caicos Islands company. In 2004, these transactions came to light and the AUC entities demanded the return of those and other funds. At that point, the bank commenced an interpleader action in the U.S. District Court for the Southern District of Florida. The AUC entities, MEIO, the Tiens, and them two adult sons were all impleaded to assert their respective claims to the funds in the bank accounts. The federal court’s detailed findings of fact and conclusions of law are set forth in Wachovia Bank, N.A. v. Tien, 534 F.Supp.2d 1267 (S.D.Fla.2007).

While the federal interpleader action was underway, the bank accounts were placed under the control of a court-appointed receiver and thus effectively frozen. In November 2006, in the Florida dissolution of marriage case, Ming Tien moved for an ex parte injunction over the funds held by the federal receiver (then in excess of $96 million) to avoid alleged dissipation of marital assets. The circuit court granted the temporary injunction; a $25,000 bond was required and posted.

In December 2007, following the federal court’s resolution of the interpleader action, AUC moved to vacate the state court injunction in the Florida dissolution case and requested an evidentiary hearing. After several resets, a hearing was set in March 2009. However, two weeks before the scheduled hearing the court denied the motion. AUC and MEIO filed the petition for a writ of mandamus here to compel the trial court to conduct an evidentiary hearing (Case No. 3D09-929). AUC also appealed the order denying the motion to vacate (Case No. 3D09-948).

The court later conducted an evidentiary healing to determine the bond amount. AUC presented evidence of lost investment income caused by tying up the University’s funds. A CPA testified as to the value of AUC’s portion of the funds. AUC presented evidence of the adverse tax consequences of keeping the funds in the United States. There was testimony as to the receivership costs and bond premiums. The court increased the bond to $300,000, which Ming Tien then posted. AUC appealed this order as well (Case No. 3D09-2195). We consolidated all three cases for consideration.

Analysis

We reverse the trial court’s order denying the motion to vacate or modify the ex parte injunction. The record demonstrates that there was no immediate or irreparable injury that would have resulted without the entry of the ex parte injunction. Fla. R. Civ. P. 1.610(a)(1); Grand Condo. Ass’n v. Cohn, 970 So.2d 365 (Fla. 3d DCA 2007). Secrecy and speed served no purpose as the funds were then under the control of the federal court-appointed receiver.

Nor did Ming Tien’s motion or the trial court’s order denying AUC’s motion to vacate the injunction set out a sufficient factual or legal basis for the injunction. This record reflects that the funds being enjoined are corporate funds of AUC and MEIO. At best, Paul Tien’s stock in the offshore companies would be a marital asset subject to valuation and distribution in the Florida action. There has been no allegation to support any corporate veil piercing, or any basis for joining the AUC entities in the dissolution action. See Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114 (Fla.1984).

In Vargas v. Vargas, 771 So.2d 594 (Fla. 3d DCA 2000), relied upon by Ming Tien, the plaintiffs alleged that their interest in certain “offshore, bearer corporate shares” had been converted, and that those shares could be used to convert or dissipate $4.4 million in bank accounts in the name of the offshore company. The injunction was appropriate because there was no finding that the offshore companies had any board or governance to preclude the holders of the bearer shares from helping themselves to the cash. Possession of the bearer shares was alleged to result from fraud or conversion. There are no such concerns in this case. The AUC entities are bona fide companies with a “stellar board of directors” and the University “offers unique worldwide services to medical students.” Wachovia Bank, N.A., 534 F.Supp.2d at 1288. Ownership of the shares of the AUC companies resulted from Paul Tien’s work and the family’s tax planning, the federal court determined. The University has by now prepared many classes of students for the M.D. degree, and its tuition is eligible for U.S. Department of Education assistance. Ming Tien made no showing that an injunction against disposition of her spouse’s shares in AUC would be unenforceable, or that Paul Tien had taken any step toward dissipation of AUC’s funds or assets.

Wolf v. Wolf, 979 So.2d 1123 (Fla. 2d DCA 2008), is the second case cited by the trial court in the order denying AUC’s motion to vacate the ex parte injunction. That ease merely affirms the trial court’s statutory duties to identify marital and non-marital assets (and liabilities) and to determine the individual valuation of significant assets. The case does not support the entry of an injunction to freeze the funds of a bona fide foreign corporation owned or controlled by one of the spouses.

Injunction vacated; orders denying vacation of the injunction and setting bond reversed; petition for mandamus denied as moot.

      . After oral argument, the motion to quash was denied by the trial court, and Paul Tien appealed (Tien v. Tien, Case No. 3D09-3273, 2010 WL 204301). The parties immediately filed various pleadings suggesting that we should or should not consider that ruling, but that order and the latest appeal have no bearing on our consideration of these three consolidated cases.

      . Ms. Tien was a party to the federal case and is bound by these findings. The federal court further recommended that the frozen funds be turned over to the AUC entities because the "enhancement of the medical school would only serve to increase the value of the stock from which Ming Tien may be entitled to an equitable distribution under Florida law.” Wachovia Bank, N.A., 534 F.Supp.2d at 1288.

      . A Florida injunction precluding Paul Tien from disposing of his shares in the AUC entities would ordinarily be recognized and enforced by the courts of the foreign jurisdictions involved here. The bond amount set by a Florida court for such an injunction would surely be less than the bond for potential loss occasioned by freezing the funds of a fully-functional and historically-profitable medical school. We do not suggest, however, that Ming Tien is entitled to an injunction precluding Paul Tien from transferring or encumbering his shares in the AUC entities, or prohibiting the AUC entities from distributing any funds or property to Paul Tien. Any such relief would naturally be dependent upon Ming Tien’s subsequent motion and the evidence.

      .Our reversal of the order denying the motion to vacate the injunction makes it unnecessary that we consider in detail the appeal from the order increasing the bond amount, Case No. 3D09-2195. However, there is no question that the $300,000 bond was insufficient. Vargas v. Vargas, 771 So.2d 594, 596 (Fla. 3d DCA 2000) (holding that bond is insufficient because it does not cover "parties’ costs and damages if the injunction is wrongfully issued”); Braswell v. Braswell, 881 So.2d 1193 (Fla. 3d DCA 2004) (same).


author: POLEN, J.

text:
    Margery E. GOLANT, Appellant, v. GERMAN SHEPHERD DOG CLUB OF AMERICA, INC., Appellee.
    No. 4D08-2843.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 2010.

      Stuart M. Golant, Boca Raton, for appellant.
    Thomas A. Groendyke of Douberley & Cicero, Sunrise, for appellee.
   POLEN, J.

Margery Golant appeals the trial court’s order granting the German Shepherd Dog Club of America, Inc. (“the Club”)’s motion to dismiss for a lack of personal jurisdiction. We reverse.

The Club is a not-for-profit corporation organized and existing under the laws of the State of New York. Along with several other related objectives, the Club bylaws state that the Club exists to “encourage, promote, and improve the breeding of quality purebred German Shepherd Dogs, to educate the fancy, and to do all possible to bring the natural qualities of the German Shepherd Dog to perfection.” The Club’s management is vested in the Club’s Board of Directors (“Board”), which consists of nineteen individuals.

Although the Club has thousands of members who are domiciled throughout the United States and several foreign countries, Florida represents the second largest state of Club membership. There are approximately 150 to 170 Club members who reside in Florida. Florida is the state with the greatest number of Board members, with three of the nineteen members residing in Florida. The Club collects dues from and communicates with its Florida members. Additionally, the Club sponsors and collects fees from regional member clubs in Florida. The Club publishes a monthly magazine that contains paid advertising and which is mailed to the Club members in Florida. In 2003, the Club held a dog show and several Club meetings in Florida. Although the Club is incorporated in New York, the Club maintains no physical office there and has no address there; nor does the Club have a physical office anywhere. The Club necessarily transacts business through the actions of its Board, the members of which are spread throughout the United States.

Golant is a resident of Broward County, Florida. Golant served as Recording Secretary, which is a Board position, from January 2004 until her removal from office on August 19, 2007. She conducted Club business from her home in Florida, and received no payment for her work as Recording Secretary. In her position, Golant communicated with other Club officers and directors by post, email, and telephone. Golant claims that her home was a de facto office of the Club because she created, sent, received, and maintained Club minutes in her home, and because she attended telephonic Club meetings and communicated with the Club from her home.

Golant’s underlying lawsuit was filed in response to a Club-conducted telephonic “trial” that arose from Golant’s alleged “misconduct and dereliction of duty” in her Club office. Golant alleges that she attended the meeting from her Florida home, as did other Board members who reside in Florida. Golant alleges that her removal from office was not authorized by the laws of New York or by the Club bylaws. Golant filed a complaint in Bro-ward County naming the Club and five Board members as defendants. Only four of the seven counts are alleged as to the Club: malicious use of process, defamation and libel, conspiracy to defame, and declaratory relief to determine that Golant remains Recording Secretary of the Club. The trial court granted the individual board members’ motion to dismiss, listing lack of jurisdiction and venue as grounds, and we affirmed per curiam. Golant v. Bunch, 994 So.2d 318 (Fla. 4th DCA 2008). The trial court granted the Club’s motion to dismiss for lack of personal jurisdiction on the grounds that no connexity or substantial activity in the State was shown and that an alleged defamatory email was not defamatory on its face. The trial court, however, did not enter judgment for or against a party.

Golant appealed the trial court’s order dismissing the Club, the last remaining defendant. However, because the trial court’s order only granted the motion to dismiss and did not enter judgment for or against a party, Golant’s appeal was of a non-appealable, non-final order. See Rust v. Brown, 13 So.3d 1105, 1106 (Fla. 4th DCA 2009); Dobrick v. Discovery Cruises, Inc., 581 So.2d 645, 646 (Fla. 4th DCA 1991). We issued a ‘Dobrick’ order granting Golant thirty days to obtain a final judgment, which Golant obtained, thus making the appeal ripe for review.

A trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002); Beta Drywall Acquisition, LLC v. Mintz & Fraade, P.C., 9 So.3d 651, 652 (Fla. 4th DCA 2009).

Golant claims that the trial court has jurisdiction over the Club based on multiple grounds specified in the Florida long arm statute. See § 48.193, Fla. Stat. (2007). We address Golant’s jurisdictional claim under section 48.193(l)(a) only. The long arm statute grants jurisdiction “for any cause of action arising from ... [o]p-erating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.” §§ 48.193(1), (l)(a), Fla. Stat. (2007).

As used in the long arm statute, “[t]he term ‘aidsing from’ is broad; it does not mean ‘proximately caused by,’ but only requires a direct affiliation, nexus, or substantial connection to exist between the basis for the cause of action and the business activity.” Citicorp Ins. Brokers (Marine), Ltd. v. Charman, 635 So.2d 79, 82 (Fla. 1st DCA 1994) (quotations omitted); see also Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074-75 (Fla. 4th DCA 2002) (citing Citicorp for the same proposition).

A two-part analysis is used to evaluate personal jurisdiction. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989); Renaissance Health Publ’g, LLC v. Resveratrol Partners, LLC, 982 So.2d 739, 741 (Fla. 4th DCA 2008). First, a court must determine that the facts of the underlying action bring the action within the ambit of the Florida long arm statute. Venetian Salami, 554 So.2d at 502. Second, a court must determine whether the defendant has sufficient “minimum contacts” with Florida such that due process requirements are satisfied. Id. Due process is satisfied if the foreign defendant would reasonably anticipate being haled into court in Florida. Beta Drywall, 9 So.3d at 652-53 (citing Doe v. Thompson, 620 So.2d 1004, 1005 (Fla.1993)). To establish personal jurisdiction, both prongs of Venetian Salami must be satisfied. Beta Drywall, 9 So.3d at 653.

We conclude that Golant’s allegations are sufficient to satisfy both prongs of the Venetian Salami test with respect to section 48.193(l)(a), which confers long arm jurisdiction over a defendant for actions arising from “[Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.” To invoke long arm jurisdiction under section 48.193(l)(a), the activities of the corporation “must be considered collectively and show a general course of business activity in the State for pecuniary benefit.” Dinsmore v. Martin Blumenthal Assocs., Inc., 314 So.2d 561, 564 (Fla.1975); see also Citicorp, 635 So.2d at 81.

Golant’s allegations are sufficient to satisfy the first prong of the Venetian Salami test and bring her action within the ambit of the Florida long arm statute. See 554 So.2d at 502. Given that the Club maintains no physical office and that Club business is conducted largely, if not exclusively, from the homes of its Board members, we find persuasive Golant’s argument that her home was a de facto office of the Club; thus, section 48.193(l)(a) jurisdiction is proper for “having an office ... in this state.” Furthermore, Golant’s lawsuit satisfies the connexity requirements of the long arm statute: Golant’s alleged misconduct in her Club office gave rise to her removal from office and the resulting lawsuit.

The second prong of the Venetian Salami test is also met. Given the Club’s sufficient minimum contacts with Florida, the Club should reasonably anticipate being haled into court in Florida, and thus due process is satisfied. See Beta Drywall, 9 So.3d a niary benefit from its business activity when it receives dues from its Florida members and receives fees from its associated member clubs in Florida. The Club has reached out to Florida in the past, holding a dog show and multiple Club meetings in Florida. Additionally, the Club receives advertising revenue from its monthly magazine, which is mailed to the Club members in Florida. This activity, when considered collectively, shows a “general course of business activity in the State for pécuniary benefit.” See Dinsmore, 314 So.2d at 564. Furthermore, Go-lant provides a pecuniary benefit to the Club by serving as Recording Secretary in an unpaid capacity.

Accordingly, the two prongs of the Venetian Salami test are satisfied. The trial court erred when it dismissed Golant’s complaint against the Club for a lack of personal jurisdiction. Because we conclude that personal jurisdiction is proper under subsection (l)(a) of the long arm statute, we need not address Golant’s claims regarding jurisdiction under subsection (l)(b) or section (2) of the long arm statute.

Reversed and remanded.

MAY and GERBER, JJ., concur'.


author: MORRIS, Judge.

text:
    Clifford THOMPSON and Terri Thompson, Appellants, v. TREISER, COLLINS & VERNON; Fitzgerald Frater; and Jared Kane Company, Inc., Appellees.
    No. 2D09-2864.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2010.
    Jon D. Parrish and Kirt R. Posthuma of Parrish, Lawhon & Yarnell, P.A., Naples, for Appellants.
    Joseph D. Stewart, Naples, for Appel-lees Treiser, Collins & Vernon and Fitzgerald Frater.
    No appearance for Appellee Jared Kane Company, Inc.
   MORRIS, Judge.

Clifford and Terri Thompson appeal an order vacating a November 2005 order and a resulting January 2006 final judgment. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(5). For the reasons discussed below, we reverse.

Procedural Facts

The initial procedural facts are set forth in this court’s opinion in Thompson v. Jared Kane Co., 872 So.2d 356 (Fla. 2d DCA 2004).

[Appellee Jared Kane Company, Inc. (“JKC”) ] sought foreclosure of a construction lien against the Thompsons’ home after disputes arose during the home’s construction. The claim of lien was filed pursuant to section 713.05, Florida Statutes (1997), which allows for the creation of a lien where the lienor is in privity with the owner. JKC’s action to foreclose the lien alleged that the Thompsons had entered into a “construction agreement” with JKC. During the litigation, the Thompsons attempted to amend their answer and counterclaim to allege that they had not contracted with JKC but had contracted with another entity, Kane Communities, Ltd. (“KCL”). The trial court refused their request to amend, found that JKC had a valid lien against the home, and awarded JKC $178,208.05 in damages. The trial court also entered separate judgments against the Thompsons for attorney’s fees and costs.

Id. at 358. This court reversed all three judgments because the “trial court’s refusal to allow the Thompsons to amend their answer and counterclaim was an abuse of discretion.” Id. The key legal issue in the litigation was whether the Thompsons entered into a contract with JKC or KCL. Id. at 359-60.

On remand, the Thompsons amended their answer and counterclaim to deny that JKC was the contracting party and to allege that KCL was the contracting party. In response, JKC moved to amend its complaint to allege that JKC had entered into an oral agreement with the Thomp-sons. JKC attached to its complaint a contractor’s affidavit indicating that KCL was the contracting party. The Thomp-sons then filed a motion for relief for fraud on the court. The Thompsons alleged that JKC and its attorney, Fitzgerald Frater, accidentally revealed the affidavit, which conflicted with JKC’s contention throughout the litigation that the Thompsons had contracted with JKC but which was consistent with the Thompsons’ contention throughout the litigation that the Thomp-sons had contracted with KCL. The Thompsons alleged that JKC, Frater, and JKC’s principal, Lief Metsch, committed fraud on the court by intentionally hiding the affidavit.

In November 2005, the trial court held a nonevidentiary hearing on the Thompsons’ motion for relief based on fraud on the court. At the hearing, the Thompsons’ counsel alleged that the affidavit was requested in discovery but was not produced by JKC. Frater did not object. The trial court orally announced that it was denying the Thompsons’ request to dismiss JKC’s action, but the trial court “impose[d] the sanction that the Thompsons be awarded all costs and attorney’s fees for the first portion of this trial including the appeal no matter what the ultimate outcome is.” On November 29, 2005, the trial court entered a written order finding fraud and imposing sanctions against JKC, KCL, Metsch, Fra-ter and Frater’s former firm, Treiser, Collins, and Vernon, P.L. (“TCV”). In November 2005, the trial court also entered an order allowing Frater and TCV to withdraw from representing JKC.

In January 2006, in accordance with its November 2005 order finding fraud, the trial court entered a final judgment in favor of the Thompsons in the amount of $216,429.75 against JKC, KCL, Metsch, Frater, and TCV. (The November 2005 order finding fraud and the resulting January 2006 judgment will hereinafter be referred to as the order and judgment.) Frater moved for rehearing and for relief from the order and judgment pursuant to Florida Rules of Civil Procedure 1.530 and 1.540(b).

In February 2006, TCV moved for rehearing and for relief from the order and judgment, claiming that no discovery violation had been committed. In March 2006, TCV moved to amend its motion for rehearing and for relief from the order and judgment, arguing that the order and judgment should be “completely vacated.” In April 2006, Frater moved to amend his motion for rehearing and for relief from the order and judgment, claiming that no discovery violation had been committed. Frater argued that the “Order and Final Judgment should be vacated entirely. At the very least, the Order and Final Judgment should be vacated as to Fitzgerald A. Frater, Esq., and the other non-parties [sic].” TCV then moved to adopt Frater’s amended motion for rehearing and for relief from the order and judgment.

In June 2006, the trial court held a hearing on Frater’s and TCV’s motions. As a result, the parties agreed to a stipulated order. In December 2006, TCV moved for entry of a stipulated order removing the nonparties from the order and judgment or in the alternative for the trial court to vacate the order and judgment based on TCV’s previously filed motions. Frater joined in TCV’s motion for a stipulated order. In January 2007, the trial court entered the stipulated order vacating order and judgment as to all the nonparties only, specifically KCL, Metsch, Frater, and TCV.

In April 2007, the Thompsons moved for summary judgment against JKC. In June 2007, the trial court granted the Thomp-sons’ motion for summary judgment and entered summary judgment in favor of the Thompsons against JKC.

In September 2008, the Thompsons moved for sanctions against JKC and the nonparties on the basis of fraud on the court, claiming that Frater and TCV were liable for fraud on the court.

In February 2009, an evidentiary hearing was held on the Thompsons’ motions for sanctions based on fraud on the court. In March 2009, the trial court entered an order denying the Thompsons’ motions for sanctions, finding that the Thompsons failed to present evidence supporting a finding of fraud by the nonparties.

In May 2009, the trial court held a hearing on Frater’s and TCV’s 2006 motions for rehearing and for relief from the order and judgment. On May 14, 2009, the trial court entered the order vacating the order and judgment that is on appeal in this case.

Analysis

The Thompsons first argue on appeal that Frater and TCV did not have standing to- attack the finding of fraud entered against JKC in the order and judgment. We conclude that Frater and TCV had standing to challenge the finding of fraud based on their alleged involvement in the fraud. However, as argued by the Thomp-sons on appeal, Frater’s and TCV’s motions for rehearing and for relief from judgment were mooted by entry of the stipulated order in 2007.

In Frater’s amended motion for rehearing and for relief from the order and judgment filed in April 2006, Frater asked for the order and judgment to be vacated entirely and “[a]t the very least,” for the order and judgment to be “vacated as to Fitzgerald A. Frater, Esq., and the other non-parties [sic].” TCV joined in Frater’s motion. Then, TCV filed a motion for a stipulated order, asking the trial court to remove the nonparties from the order and judgment. This motion asked “[i]n the alternative” for the court to vacate the order and judgment. Frater joined in this motion.

At the hearing held in June 2006, the Thompsons, Frater, and TCV agreed for the trial court to enter a stipulated order removing them from the order and judgment. After a long discussion, it was agreed to by all present (Frater, TCV, and counsel for the Thompsons) that the stipulated order would resolve all pending issues between the Thompsons, Frater, and TCV that were raised in Frater’s and TCV’s motions for rehearing and for relief from the order and judgment. The Thompsons wanted to preserve their right to allege fraud against Frater and TCV at a later date, and TCV and Frater wanted to preserve them right to contest any allegations of fraud by the Thompsons against them that may arise in the future. Fra-ter’s counsel stated that he wanted to make it clear that he was not in any way trying to adversely affect the interests of any party not represented (presumably referring to JKC), but at no point at the hearing did either Frater or TCV specifically reserve them right to challenge on behalf of JKC the finding of fraud as against JKC in the order and judgment.

When the trial court entered the stipulated order in January 2007, at the request of Frater and TCV, and Frater and TCV did not ask the trial court to consider granting the other relief sought in their motions for rehearing and for relief from the order and judgment on behalf of JKC until two years later, Frater and TCV abandoned their request for that other relief. See Grizzard v. Grizzard, 726 So.2d 397, 398 (Fla. 2d DCA 1999). In Grizzard) the former husband was ordered to pay temporary fees to the former wife during postdissolution modification proceedings filed by both parties. Id. The husband filed a motion for rehearing of the temporary fee order. In the meantime, he and the former wife stipulated to the dismissal of both modification petitions. Five months after moving for rehearing on the temporary fee issue, the former husband’s motion was called up for hearing. A year after the trial court entered its temporary fee order, it reversed the order and ordered the former wife to return the temporary fee money to the former husband.

On appeal, this court held that the former husband waived or abandoned his motion for rehearing on the fee issue by failing to address it in the stipulated dismissal or request the trial court to retain jurisdiction to address it. Id. This holding was based on the unique facts and procedural posture of the case resulting from many postdissolution pleadings, motions, and appeals. Id.

As in Giizzard, based on the unique facts and procedural posture of this case, Frater and TCV abandoned or waived them motions to vacate the order and judgment completely and in their entirety by entering into the stipulated order and by not seeking any additional relief for two years. Any request for relief from the order and judgment in 2009 would have been untimely. See Fla. R. Civ. P. 1.540(b). Therefore, the trial court erred in granting Frater’s and TCWs motions for rehearing and for relief from judgment. Accordingly, we reverse the order vacating the order and judgment.

Reversed and remanded.

WHATLEY and LaROSE, JJ., Concur.

      . Frater was a member of TCV until August 2005, when Frater formed his own firm. Fra-ter continued to represent JKC until he filed a motion to withdraw in October 2005.

      . It appears from the record that JKC did not hire new counsel after Frater withdrew and that JKC did not act any further in the proceedings below. At the time of this hearing in June 2006, JKC still had time to file on its own behalf a timely motion for relief from judgment pursuant to rule 1.540(b).

      . The Thompsons have always maintained that the stipulated order disposed of Frater’s and TCV's motions. At the February 2009 hearing on the Thompsons' motion for sanctions against Frater and TCV, the trial court indicated that it was going to consider Fra-ter’s and TCV's motions for rehearing and for relief from judgment that were still pending from 2006, but the Thompsons' counsel objected on the basis that the stipulated order had dealt with those motions. The trial court nonetheless set Frater’s and TCV’s motions for another hearing. At that hearing in May 2006, the Thompsons' counsel argued that the motions for rehearing and for relief from judgment were stale and that the stipulated order mooted them. The Thompsons’ counsel read portions of the June 2006 hearing transcript to the trial court and argued that the motions no longer existed because they had been disposed of by the stipulated order.

      . Throughout the proceedings below, several trial judges were assigned to this case. We understand that the trial judge who entered the order on appeal was attempting to undo perceived errors that were a result of confusion caused by all parties to the litigation and presented to a trial judge previously assigned to the case. However, any timely claim on behalf of JKC to undo the fraud finding was abandoned, and JKC never sought relief from the order and judgment on its own behalf.


author: WOLF, J.

text:
    GADSDEN JAI ALAI, INC. and Washington County Kennel Club, Inc., Appellants, v. STATE of Florida, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING and Gretna Racing, LLC, Appellees.
    No. 1D08-5655.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2010.
    Harold F.X. Purnell and John M. Lockwood of Rutledge, Ecenia & Purnell, P.A., Tallahassee, for Appellants.
    Garnett W. Chisenhall, Chief Appellate Counsel, Department of Business & Professional Regulation, Tallahassee, for Ap-pellee Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering; David S. Romanik of David S. Romanik, P.A., Tallahassee, and Marc W. Dunbar of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Ap-pellee Gretna Racing, LLC.
   WOLF, J.

Appellants, Gadsden Jai Alai, Inc. and Washington County Kennel Club, challenge a final order of the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (DBPR), dismissing with prejudice appellants’ petition for administrative hearing based on a determination that appellants lacked standing. Appellants sought to challenge the issuance of a permit to Gretna Racing, LLC to conduct quarter horse racing. We affirm because the permitting statutes governing the issuance of permits for quarter horse racing facilities do not contemplate consideration of the economic interests of other types of pari-mutuel facilities. See Agrico Chem. Co. v. Dep’t of Envtl. Regulation, 406 So.2d 478 (Fla. 2d DCA 1981) (finding in order to have standing to contest a permit application, a party’s substantial interests must be affected, meaning the party must demonstrate (1) the party “will suffer injury in fact”; and (2) the injury is “of a type or nature which the proceeding is designed to protect,” which may include economic interests if the permitting statute was “meant to redress or prevent injuries to a competitor’s profit and loss statement.”); Abbott Labs. v. Mylan Pharm., Inc., 15 So.3d 642, 652 (Fla. 1st DCA 2009) (“Prior decisions in licensing or permitting cases have made it clear that a claim of standing by third parties based solely upon economic interests is not sufficient [to establish standing] unless the permitting or licensing statute itself contemplates consideration of such interests.... ”). We determine this case is unlike Boca Raton Mausoleum, Inc. v. State Department of Banking & Finance, 511 So.2d 1060 (Fla. 1st DCA 1987), where the statutory permitting scheme reviewed specifically contemplated competition and impact on existing facilities would be considered. See also Abbott Labs., 15 So.3d at 652 (discussing the different and more stringent considerations for standing in licensing versus other types of administrative proceedings).

Appellants raise a number of issues challenging DBPR’s determination that they lack standing, one of which we feel merits further discussion: whether parties whose substantial interests were not affected pursuant to the two-part test announced in Agrico Chemical Co., 406 So.2d 478, have standing to participate in an administrative proceeding when they raise constitutional challenges to statutory sections which they allege (1) directly affect the validity of the permit approval process; and (2) provide the basis for the argument that the statutory framework does not support consideration of their economic interests.

Appellants’ constitutional challenges relate to sections of chapter 550, Florida Statutes, which they assert subject quarter horse permit applicants to more relaxed standards than those which are applicable to applicants for all other types of parimutuel facilities. These standards include exclusion from (1) mileage restriction between pari-mutuel facilities; (2) requirements relating to zoning; (3) requirements for financial stability; and (4) requirements for approval by county referendum. §§ 550.334(1), 550.334(4), 550.0651, Fla. Stat.

Appellants correctly assert that parties with standing to initiate an administrative proceeding may raise constitutional issues within an administrative proceeding. Key Haven Associated Enters., Inc. v. Bd. of Trustees of Internal Improvement Trust Fund, 427 So.2d 153, 157 (Fla.1982). Key Haven, however, specifically contemplates the party raising the constitutional challenge has an independent basis to participate in the administrative proceeding. In this case, as previously discussed, there is no independent basis for standing. We can find no case directly on point. While appellants’ arguments have some initial appeal, we determine the dangers of allowing parties to raise constitutional issues in order to gain standing to address other issues in the permitting process outweigh any arguable consideration of judicial economy. It is preferable under these circumstances to have the constitutional issues addressed in an independent circuit court proceeding.

The decision of DBPR is AFFIRMED.

PADOVANO and THOMAS, JJ, concur.