text:
    The KING’S ACADEMY, INC., a Florida not for profit corporation, and Robert Crowley, Appellants, v. John DOE, a minor by and through his parents and natural guardians, and Jane Doe and John Doe, Sr., and Jane Doe individually, Appellees.
    No. 4D09-2055.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Esther E. Galicia of Fowler White Burnett, P.A., Miami, for appellants.
    Bernard A. Lebedeker of Burman Crit-ton Luttier & Coleman, P.A., West Palm Beach, for appellees.
   PER CURIAM.

This case arises from a physical altercation between one of the appellees, John Doe, a minor (Doe Jr.), and other members of the King’s Academy, Inc.’s football team. After the altercation, the appel-lees — John Doe, Sr., Jane Doe, and Doe Jr. — filed suit against the appellants, i.e., the King’s Academy and the team’s football coach, Robert Crowley. King’s Academy and Crowley moved to dismiss and compel arbitration. They argued arbitration was required because they and the Does executed a contract that contained an arbitration provision compelling arbitration. In a non-final order, the trial court, without holding an evidentiary hearing as required under section 682.03(1), Florida Statutes (2007), determined the provision was both substantively and procedurally unconscionable and denied the motion. We reverse and remand for an evidentiary hearing.

Section 682.03(1) states:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

(emphasis added).

In Curcio v. Sovereign Healthcare of Boynton Beach L.L.C., 8 So.3d 449, 450-51 (Fla. 4th DCA 2009), this court, relying on section 682.03(1), reversed a trial court’s order granting the defendant’s motion to compel arbitration because the trial court, before rendering its order, failed to hold an evidentiary hearing on the plaintiffs unconscionability challenge to the enforceability of an arbitration provision. This court held the trial court erred by not having a hearing because: 1) the plaintiff, in opposition to the motion to compel arbitration, argued the arbitration provision was unconscionable; and 2) the parties disputed the circumstances that existed at the time the arbitration provision was made and took effect. See id. In considering these two factors, this court held that an evidentiary hearing regarding the plaintiffs unconscionability challenge was “mandatory in nature,” as “Florida courts have determined that [section 682.03(1)] requires an expedited evidentiary hearing if a substantial disputed issue exists concerning the making of the agreement [to arbitrate].” Id. at 450.

In this case, the Does raised an uncon-scionability challenge to the enforceability of the arbitration provision. The parties, through their arguments, also disputed the circumstances that existed at the time the arbitration provision was made and took effect. The trial court, under section 682.03(1), was therefore required to hold an evidentiary hearing on the Does’ uncon-scionability challenge, because a substantial disputed issue existed concerning the making of the arbitration provision. Accordingly, we reverse and remand for an evidentiary hearing.

Reversed and Remanded with Directions.

HAZOURI, MAY and DAMOORGIAN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Karla MARADRIAGA, Appellant, v. 7-ELEVEN and Kemper Group, Appellees.
    No. 1D09-6394.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Albert Marroquin of Richard E. Zaldi-var, P.A., Miami, for Appellant.

      Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Ft. Lauder-dale, for Appellees.
   ON MOTION TO DISMISS

PER CURIAM.

Upon review of Appellant’s response to this Court’s show cause order entered January 12, 2010, we GRANT Appellees’ motion to dismiss and DISMISS this appeal for lack of jurisdiction. See Fla. R.App. P. 9.180(b)(1). See also Fla. Retail Fed’n Self-Insured, Fund v. Quintero, 909 So.2d 332, 333 (Fla. 1st DCA 2005).

LEWIS, THOMAS, and WETHERELL, JJ., concur.


author: DAMOORGIAN, J. HAZOURI, J.,

text:
    Sherley FRANCIS, as Personal Representative of the Estate of Kodijah Tulloch, Deceased, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, Appellee.
    No. 4D08-3953.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.

      John R. Whittles of Richman Greer, P.A., West Palm Beach, for appellant.
    Randall D. Burks and Gerald A. Williams, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Sherley Francis, as Personal Representative of the Estate of Kodijah Tulloch, brought suit against the School Board of Palm Beach County (the school board) seeking damages for the death of her daughter, who was struck and killed by an automobile while walking to her school bus stop. The school board filed a motion to dismiss arguing that it was sovereignly immune from suit because the placement of a school bus stop is a planning-level function. The school board also argued that its actions were not the proximate cause of Kodijah’s death. The trial court granted the motion to dismiss and entered a final order dismissing the second amended complaint with prejudice. Francis appeals the final order of dismissal. We affirm.

A trial court’s ruling on a motion to dismiss for failure to state a cause of action is reviewed de novo. Della Ratta v. Della Ratta, 927 So.2d 1055, 1058 (Fla. 4th DCA 2006). As with the trial court, our review of the complaint is limited to the four corners of the complaint ancl we must accept the facts alleged in the complaint as true. See Goodall v. Whispering Woods Ctr., L.L.C., 990 So.2d 695, 697 (Fla. 4th DCA 2008). Moreover, all reasonable inferences are drawn in favor of the pleader. Id.

Turning to the complaint, the following factual allegations serve as the basis for the negligence claims against the school board. Kodijah was enrolled at John F. Kennedy Middle School and was assigned to the bus stop located on the west side of the roadway at the intersection of Caribbean Boulevard and Haverhill Road. Because of problems her children were having on the school bus, Francis met with a guidance counselor or other employee of the school board. The school employee instructed Francis that Kodijah should cross Haverhill Road to use the bus stop on the east side of the roadway. Sometime after changing bus stops, Kodijah was struck by a vehicle while crossing Haver-hill Road to reach the east side bus stop. She died as a result of her injuries.

Francis argues that the school board’s negligent failure to control the students on Kodijah’s original school bus, negligent instruction that Kodijah cross the road to another bus stop, and negligent failure to warn Kodijah of the dangers of crossing the road were operational-level actions which are not protected by sovereign immunity. She further alleges that the school board was aware of hazardous conditions at or near Kodijah’s newly-designated bus stop and failed to take any precautions to warn parents, students, and other motorists. She asserts that these allegations constitute a prima facie case for negligence for which the school board was not entitled to sovereign immunity.

The school board makes three arguments in response. First, it argues that it did not owe a duty of care to Kodijah while she was en route to her bus stop; second, the school board’s acts were not the proximate cause of Kodijah’s death; and third, the school board was sovereignly immune from suit because its acts were planning-level decisions.

When addressing the issue of governmental liability under Florida law, the duty analysis is distinct from the later inquiry regarding whether the governmental entity is sovereignly immune from suit. Wallace v. Dean, 3 So.3d 1035, 1044 (Fla.2009). “If no duty of care is owed with respect to alleged negligent conduct, then there is no governmental liability, and the question of whether the sovereign should be immune from suit need not be reached.... However, if a duty of care is owed, it must then be determined whether sovereign immunity bars an action for an alleged breach of that duty.” Pollock v. Fla. Dep’t of Highway Patrol, 882 So.2d 928, 932-33 (Fla.2004) (citations omitted).

The first allegation of a duty in Francis’s complaint is that the school board owed the general public a duty to exercise due care in carrying out all of its operations. This broad allegation does not support a negligence claim because, in a government tort suit, the plaintiff must prove that the defendant breached a common law or statutory duty “owed to the plaintiff individually and not a tort duty owed to the public generally.” See Holodak v. Lockwood, 726 So.2d 815, 816 (Fla. 4th DCA 1999).

The second set of allegations in Francis’s complaint concern the school board’s negligent failure to warn Kodijah of the dangers at the bus stop and to take other precautions to make the bus stop safer. She asserts that the school board had a duty to provide lights, warnings, or some other indicia that the location was being used as a school bus stop, and to warn her and her children of the dangerous conditions at the bus stop. She also alleges that the school board had notice that the bus stop was dangerous because of reports from various citizens groups and organizations.

A governmental entity that creates a known, dangerous condition which might not be readily apparent, and has knowledge of the presence of people likely to be injured, has a duty to avert the danger or properly warn those who might be injured. Harrison v. Escambia County Sch. Bd., 434 So.2d 316, 320 (Fla.1983) (citing Dep’t of Transp. v. Neilson, 419 So.2d 1071, 1078 (Fla.1982)); see also Duval County Sch. Bd. v. Dutko, 483 So.2d 492, 495 (Fla. 1st DCA 1986) (holding that the school board had a duty to warn students of the dangerous conditions at their bus stop because the conditions were created by the school board and were not readily apparent). However, the duty to warn is limited and arises only where the dangerous condition is “so serious and so inconspicuous ... that it virtually constitutes a trap.” Dep’t of Transp. v. Konney, 587 So.2d 1292, 1299 (Fla.1991) (Kogan, J., concurring); see also Kaweblum ex rel. Kaweblum v. Thornhill Estates Homeowners Ass’n, 801 So.2d 1015, 1017 (Fla. 4th DCA 2001).

The school board did not have a duty to warn Kodijah because it did not create the busy roadway that constituted the danger. Moreover, a busy roadway is not so inconspicuous that it virtually constitutes a trap. On the contrary, the danger of a busy roadway should be apparent.

The third set of allegations in Francis’s complaint concern the steps the school board took to deal with the altercations on Kodijah’s school bus. Francis argues that the school board acted negligently in training Kodijah’s bus driver to deal with discipline problems on the bus, and in directing Kodijah to cross Haverhill Road to another bus stop.

District school boards are required to provide transportation for public school students when such transportation is “necessary to provide adequate educational facilities and opportunities which otherwise would not be available and to transport students whose homes are more than a reasonable walking distance ... from the nearest appropriate school.” § 1006.21(3)(a), Fla. Stat. (2008). The school board must employ maximum regard for the safety of its students when routing buses, appointing bus drivers, and providing operating equipment. § 1006.22, Fla. Stat. (2008).

The tragic accident in this case, however, did not occur while Kodijah was riding her school bus or waiting at her bus stop. It occurred while she was walking to her bus stop. Students are under the school board’s control during the time they are being transported to or from school at public expense. § 1003.31(l)(a), Fla. Stat. (2008). The school board does not have custody or control over students while they are en route to their bus stops; that control rests solely with the students’ parents or guardians. Thus, the school board does not have any duty to its students during this period of time. See Pratt v. Robin son, 39 N.Y.2d 554, 560, 384 N.Y.S.2d 749, 349 N.E.2d 849 (N.Y.1976) (noting that a school board’s duty to its students stems from its physical custody over them, and is limited to the time in which the board has control over the students).

In Harrison v. Escambia County School Board, our supreme court stated the following:

School boards, however, are not insurers of students’ safety, and a school board’s control over its students regarding transportation extends from when a school bus picks up a student at a bus stop to the school door. When a student is injured before reaching a designated bus stop, or after leaving one, that student is outside the board’s duty of care because the board’s duty stems from the fact of the school board’s physical custody of its students.

434 So.2d at 319 (citations omitted). This limitation has been codified in Florida Administrative Code Rule 6A-3.0121(2)(c)l (2008), which states that parents must “ensure the safe travel of their students during the portions of each trip to and from school and home when the students are not under the custody and control of the school district, including during each trip to and from home and the assigned bus stop.... ”

Accordingly, the crux of the issue is that Kodijah was not under the school board’s control when the accident occurred. Regardless of the circumstances that led to her using the alternate bus stop, she was under the exclusive control of her parents or guardians during the time she was walking to the bus stop. The school board did not have a duty to ensure Kodijah’s safety in arriving at her bus stop. For this reason, we affirm the trial court’s order dismissing Francis’s complaint with prejudice.

We need not reach the question of whether the school board was sovereignly immune from suit because, without a duty, there can be no action in negligence.

RODRIGUEZ-POWELL, MILY, Associate Judge, concurs.

HAZOURI, J., concurs specially with opinion.

HAZOURI, J.,

concurring specially.

The Florida Supreme Court’s decision in Harrison v. Escambia County School Board, 434 So.2d 316 (Fla.1983), compels me to concur with the majority. Harrison essentially eliminates a school board’s liability for any operational decision — no matter how unreasonable or careless — so long as a student has not boarded the school bus. This appears contrary to the school board’s statutory obligation.

As noted by the majority:

District school boards are required to provide transportation for public school students when such transportation is “necessary to provide adequate educational facilities and opportunities which otherwise would not be available and to transport students whose homes are more than a reasonable walking distance ... from the nearest appropriate school.” § 1006.21(3)(a), Fla. Stat. (2008). The school board must employ maximum regard for the safety of its students when routing buses, appointing bus drivers, and providing operating equipment. § 1006.22, Fla. Stat. (2008).

(emphasis added).

The routing of school buses certainly includes the location of stops. Where a school board chooses to designate a bus stop can have serious consequences for students who are walking to that stop, which is exactly what happened here. As alleged in the complaint, Haverhill Road is a busy roadway that exposes children to serious harm when they have to cross it to get to a bus stop. At the time of her death, Kodijah was eleven years old. The bus stop originally designated for Kodijah did not require her to cross Haverhill Road. The school board, instead of taking measures to assure that other students did not harass Kodijah at her original bus stop, chose to direct her to cross a busy roadway to a different bus stop. This action on the part of the school board hardly constitutes employing maximum regard for the safety of its students when routing buses. Nonetheless, Harrison requires affirmance.

      . We note that the school board did not specifically make the duty argument at the trial court level. Nevertheless, this Court may consider that argument as a basis to affirm the trial court’s order dismissing the complaint. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999) (an appellate court may affirm a decision from the trial court that reaches the right result for the wrong reason as long as “there is any basis which would support the judgment in the record.”). At the hearing on the motion to dismiss, the trial court considered the duty aspect of governmental liability, although it did not clearly separate that analysis from the analysis of sovereign immunity.


author: SHEPHERD, J.

text:
    Norma QUINTANA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 3D09-1444.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.
    Norma Quintana, in proper person.
    M. Elaine Howard, Senior Attorney, Tallahassee, for appellee, Florida Unemployment Appeals Commission.
    Before GERSTEN and SHEPHERD, JJ„ and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

On October 24, 2008, a notice of determination, holding Norma Quintana was disqualified from receiving benefits and was overpaid in excess of seven hundred dollars, was mailed to the claimant with instructions for taldng a timely appeal from agency action. Since the appeal was not filed until January 12, 2009, well beyond the twenty-day statutory time limit, it was dismissed by the appeals referee. The Unemployment Appeals Commission affirmed. As nothing in the record supports a finding that the claimant’s notice was not provided to her in a timely manner, and Florida law does not permit good cause exceptions to the dismissal rule, we are bound to affirm the order of the Appeals Commission below. See Robinson v. Sun Bank & Trust Co., 685 So.2d 1325 (Fla. 2d DCA 1996); Riegler v. Unemployment Appeals Commission, 633 So.2d 1182 (Fla. 4th DCA 1994); Leon v. Unemployment Appeals Commission, 476 So.2d 761 (Fla. 3d DCA 1985).

Affirmed.


author: GROSS, C.J.

text:
    Al LAMBERTI, as Sheriff of Broward County, Florida, Appellant, v. Lazaro MESA, Appellee.
    No. 4D09-1007.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.

      Carmen Rodriguez of Law Offices of Carmen Rodriguez, P.A., Miami, for appellant.
    Rhea P. Grossman of Rhea P. Gross-man, P.A., Fort Lauderdale, for appellee.
    Shaina Brenner and R.W. Evans of Allen Norton & Blue, P.A., Tallahassee, for Amicus Curiae, The Florida Sheriffs Association.
   GROSS, C.J.

Al LambertiAl Lamberti, the Sheriff of Broward County, appeals a final order awarding Lazaro Mesa, a former deputy sheriff, attorney’s fees and costs under section 111.065, Florida Statutes (2006). We reverse because Mesa did not request that the Sheriff provide him with legal representation before he hired his own attorney, thereby failing to comply with a statutory condition precedent.

In December 2006, after the Sheriff brought the case for review to the state attorney’s office, the state charged Deputy Mesa with 5 crimes stemming from a bar fight. A jury found Mesa not guilty on all counts.

After the trial, Mesa’s trial attorney, Alberto Milian, sent a demand to the Sheriff pursuant to section 111.065. Milian requested $100,000 in attorney’s fees and $4,135 as costs. The Sheriff declined to pay. Milian filed an application for payment with the circuit court that had jurisdiction over the criminal case. See § 111.065(4)(b)3, Fla. Stat. (2006).

The court held a hearing on the request for fees.

Mesa testified about the circumstances that led to the criminal charges, which arose from an off-duty detail at a bar, an assignment given to him by the Sheriff pursuant to office policy. After he was charged, he did not ask the Sheriffs office to provide him with legal representation.

Mesa secured Milian’s services through the Police Benevolent Association. Mesa did not pay Milian anything and believed that the union was providing Milian’s services as a benefit of membership.

Milian testified that he did not have any fee agreements with the PBA to provide legal representation to the union’s members. He said that in a high profile case like Mesa’s, with three felony and two misdemeanor charges, he would typically charge “in the vicinity of $150,000 to $200,000.” He sought an award of only $100,000 because that was the maximum allowed under section 111.065. In response to a question from the Sheriff, Mili-an requested an hourly rate of $500.

Attorney William Matthewman appeared as Mesa’s expert. To prepare for his testimony, he reviewed Milian’s file. Matthew-man said that charging a lump sum in a criminal case was “standard and routine.” He estimated that Milian had spent 169 hours on the case. He opined that “a reasonable flat fee in this case would easily be in the area of $150,000, $175,000” and that a reasonable hourly rate was between $350 and $400.

The circuit court awarded $84,500 in fees and $4,135 in costs. The court concluded that it was unnecessary for Mesa to have requested representation from the Sheriff, because

[i]t is disingenuous to expect that the entity seeking a matter reviewed for prosecution, not solely with regards to the alleged harm to a private citizen, but also with reference to the legality of the actions undertaken in the performance of official duties, would agree to pay the attorney’s fees of the individual they sought investigated.

The judge also noted that the Sheriff had not offered evidence of a process “in place ... to evaluate claims for fees at the onset of prosecution.”

The trial judge erroneously disregarded the statutory condition precedent that an officer seeking reimbursement under section 111.065 must first request representation from the officer’s employing agency. Accordingly, we hold that Mesa was not entitled to an award of attorney’s fees and costs.

A court’s interpretation of a statute “is a question of law subject to de novo review.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). The goal of statutory interpretation is “to give effect to the Legislature’s intent.” Id.

Subsection 111.065(8) describes the situation where an employing agency must pay an officer’s reasonable attorney’s fees and costs:

The employing agency shall provide an attorney and pay the reasonable attorney’s fees and costs for any officer in a criminal action commenced against the officer in any court if the employing agency determines that the officer’s actions that gave rise to the charges:
(a)l. Occurred in response to what the officer reasonably believed was an emergency;
2. Occurred when the officer reasonably believed that his or her action was necessary to protect the officer or others from imminent death or bodily harm; or
3. Occurred in the course of the officer’s fresh pursuit, apprehension, or attempted apprehension of a suspect whom the officer reasonably believed had perpetrated, or attempted to perpetrate, a forcible felony as defined in s. 776.08, or the offense of escape;
(b) Arose within the course and scope of the officer’s duties; and
(c) Were not acts of omission or commission which constituted a material departure from the employing agency’s written policies and procedures, or generally recognized criminal justice standards if no written policies or procedures exist.

If the employing agency determines that an officer has not met the conditions for mandatory reimbursement under subsection 111.065(3), or if the officer decides not to use the agency’s designated attorney, then the officer has the options provided in subsection 111.065(4)(a):

If legal representation is requested under subsection (3) and the employing agency determines that the conditions set forth in subsection (3) have not been satisfied or the officer does not choose to use the employing agency’s designated attorney, the officer may:
1. Select from a list of attorneys provided by the employing agency; or
2. Choose his or her own attorney. The officer may request the employing agency to reimburse reasonable attorney’s fees and costs if the officer’s actions giving rise to the charge did not result in the entry of a plea of guilty or nolo contendere or in a finding of guilt by a court or jury to any offense charged or any lesser or included offense that is substantially related to the offense charged.

Reading subsections (3) and (4) in harmony, we conclude that to proceed under subsection (4), an officer must first request from the agency legal representation under subsection (3). This is the effect of the language that begins subsection (4)(a) — “If legal representation is requested under subsection (3)....” A request for legal representation pursuant to subsection 111.065(3) is a statutory condition precedent to recovery of fees under subsection 111.065(4).

The third district came to the same interpretation of section 111.065 in City of Sweetwater v. Alvarez, 14 So.3d 1210 (Fla. 3d DCA 2009). There, the court reversed a fee award in favor of two officers, agreeing with the city’s argument “that the officers failed to first request representation from the City before hiring their own counsel.” Id. at 1211. The salient facts of Alvarez are similar to those in this case:

[Two] police officers ... were criminally charged ... based upon allegations of the wrongful use of force during the course of an arrest.... Although the officers apparently negotiated some agreement with their union, the Police Benevolent Association, with respect to the payment of fees, they did not request that the City provide them with a defense to the charges. Instead, they chose private counsel, successfully defended the case, and then sent their legal bills to the City. The City rejected the bills.... The trial court found that the officers’ counsel were entitled to reimbursement of their attorney fees.

Id. (footnote omitted).

In Alvarez, the third district held that, “[ijnterpreting the statute holistically, as we must, it is clear a fee applicant must first request the employing agency to designate an attorney to represent the officer.” Id. at 1212 (internal quotations removed). The court explained that the statute was “a legislative compromise between protecting law enforcement officers from being impoverished and the employer’s need to protect the public fisc.” Id. at 1213. “Balancing these interests,” the third district concluded that “the Florida legislature [had] determined that police and correction officers in this state must afford the governmental entity the opportunity to provide legal representation before seeking reimbursement of attorney fees and costs under the statute.” Id.

The trial court did not apply the statutory condition precedent of section 111.065 because it would have been “disingenuous to expect” the Sheriff to pay attorney’s fees in this case. We understand the trial court to have meant that, because the Sheriff presented the case to the state attorney for prosecution, it would have been futile for Mesa to have requested the Sheriff to provide an attorney and pay reasonable attorney’s fees and costs under subsection 111.065(3). While the doctrine of futility may excuse a party from performing a condition precedent in a contract, that doctrine does not apply to excuse a statutory condition precedent. To impose a common law doctrine to eliminate a statutory condition precedent would be to rewrite the statute. See Westchester Asphalt Distrib. Corp. v. Yonkers Contracting Co., 4 A.D.2d 774, 165 N.Y.S.2d 283, 285 (N.Y.App.Div.1957) (court rejected concept that doctrine of futility could excuse a failure to comply with a statutory condition precedent), affirmed, 4 N.Y.2d 751, 172 N.Y.S.2d 166, 149 N.E.2d 92 (1958); Booth v. Churner, 532 U.S. 731, 739-41, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (acknowledging that where a Congressional amendment to 42 U.S.C. § 1997e(a) had eliminated the judicially created exceptions to the administrative exhaustion requirement for prisoner actions challenging conditions of confinement, Court would “not read futility or other exceptions into statutory exhaustion requirements where Congress has provided otherwise”).

We reverse the March 3, 2009 fee and cost award in this case and remand with the direction that judgment be entered for the Sheriff.

FARMER and CIKLIN, JJ., concur.

      . The crimes were aggravated battery, two counts of official misconduct, and two counts of falsifying records.

      . On cross-examination, when questioned about any fee arrangement he might have had to defend Mesa, Milian refused to "discuss any relationship or agreements that I have with any particular clients of mine because I believe that's attorney/client privilege information.” After discussion, the court sustained Milian’s objection on the ground of relevance, finding "that any contractual arrangement between Mr. Milian and the PBA are not relevant to the issue before the court.” We do not reach the propriety of this ruling.

      . The Sheriffs expert testified that a fair market rate for Mesa's defense would be a lump sum of between $15,000 and $25,000. The court gave credence to Matthewman’s testimony over the Sheriff's expert's, because the latter "did not have the opportunity to review Mr. Milian's files in order to access [sic] the time and labor involved.”


author: SALTER, J.

text:
    ACT SERVICES, INC., et al., Petitioners, v. SCHOOL BOARD OF MIAMI-DADE COUNTY, Respondent.
    No. 3D09-2879.
    District Court of Appeal of Florida, Third District.
    March 10, 2010.

      Restani, Dittmar & Hauser, and Helen Ann Hauser, Coral Gables; Robert A. Bauman and Robert E. Morris, Tampa, for petitioners.
    Tew Cardenas, and Joseph A. DeMaria and Brett M. Halsey, Miami, for respondent.
    Before COPE, WELLS, and SALTER, JJ.
   SALTER, J.

A general contractor, ACT Services, Inc., and its surety, The American Insurance Company (AIC), seek a writ of certio-rari regarding a trial court order severing for separate trials the School Board of Miami-Dade County’s claims against the petitioners. Because the issues and facts involved in each set of claims overlap and are intertwined, we grant the petition and vacate that portion of the order severing the claims for separate trials.

From commencement in mid-2006 through early 2009, the underlying lawsuit (by the School Board as plaintiff) proceeded as a garden variety set of claims regarding the construction of an elementary school. ACT Services filed third-party claims against various subcontractors, and a typical set of cross-claims for indemnification and breach followed as well. Nonbinding arbitration was unsuccessful. In April 2009, the School Board noticed the case for trial. Shortly after that, it filed a notice of status conference in which it requested the entry of “a scheduling order severing its breach of contract claim against AIC from the other claims at issue.” The School Board sought to proceed against the surety, AIC, in the first trial, with the apparent goal that all other claims and cross-claims could then be sorted out among the other parties in a second, separate trial. AIC, ACT, and a subcontractor objected to severance, asserting that the severance as proposed by the School Board would result “in a multiplicity of trials, issues, and repetition regarding the facts and circumstances surrounding the claims of [the School Board].” The School Board’s request was heard by the trial court at the status conference, and the trial court entered an order which, among other things, granted the School Board’s request for separate trials pursuant to Florida Rule of Civil Procedure 1.270(b). The order specified that a separate trial of the School Board’s claim against AIC as surety would be scheduled, but it also provided that “ACT Services, Inc. shall be permitted to participate in the trial to present defenses to Plaintiffs Complaint.”

We exercise our discretion to grant certiorari review only when there has been a departure from the essential requirements of law or a failure to afford procedural process; if the former, the departure from the essential requirements of law must constitute a “violation of a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). The problem with the severance of claims against the surety from claims against the contractor is that those claims clearly overlap and are intertwined. Allowing the contractor’s witnesses (in the trial of the claims against the surety) to “participate in the trial to present defenses” is tantamount to a combined trial rather than a severance.

In Bethany Evangelical Church v. Calandra, 994 So.2d 478 (Fla. 3d DCA 2008), we granted a petition for certiorari for similar reasons. In that case, a parent sued a church school teacher, the local church itself, a regional church organization, and the national church organization. The parent moved for severance and separate trials of the claims against the teacher and local church from those against the regional and national church organizations. We found an abuse of discretion and significant harm in the form of an increased possibility of inconsistent verdicts, granted the writ, and held that “where the facts and issues underlying the claims are intertwined, the trial court should conduct a single trial. Here, the claims all arise from allegations of a single injury and it makes sense to try them together.” Id. at 479 (internal citations omitted).

In its response to the petition, the School Board has urged us to “affirm that portion of the Order which separates the main trial of the School Board against AIC on its breach of surety bond claim from all of the indemnification claims,” and then “reverse only that portion of the trial court’s Order that prevents the third party defendants from presenting their individual defenses to the School Board’s claims of construction defects, with instructions to the trial court to enter an Amended Order allowing those parties to participate fully in the main trial to raise those specific defenses, as is the case with ACT.” We decline to assume procedural direction of the case as invited. We vacate only the challenged portion of the order of September 23, 2009 (paragraph 1), the provision which granted the School Board’s request for separate trials of the claims against AIC and those against ACT Services and the third-party defendants.

The trial court retains complete discretion to sever certain claims from others, but only to the extent that this can be done without trying intertwined issues of responsibility and causation twice and running the resulting risk of inconsistent verdicts. That is normally difficult to accomplish, of course, in a construction case.

Petition granted.

      . The School Board's response to the petition states that it also does not object to the third-party subcontractors' and third-party individual indemnitors' participation in the main trial “solely to present their defenses to the School Board's claim of incomplete and defective construction work.” In a footnote, the School Board also explains that by participating in the trial against the surety, ACT "will be included in the verdict form and bound by the judgment."

      . Indeed, the School Board has even supplied a proposed amended paragraph for us to "instruct the trial court” to use as a replacement for the paragraph of the challenged order severing claims for separate trial. Not even in the case cited for our supposed authority to issue such a directive, Nelson v. Wakulla

        County, 985 So.2d 564 (Fla. 1st DCA 2008), do we find an appellate court providing specific editorial corrections to a trial court's order on certiorari review.


author: MAY, J.

text:
    Horace MALCHAN, Appellant, v. Leis HOWARD, Appellee.
    No. 4D08-3584.
    District Court of Appeal of Florida, Fourth District.
    March 10, 2010.
    Brian M. Moskowitz and Thomas J. Butler of Law Offices of Brian M. Moskowitz, Boynton Beach, for appellant.

      No appearance for appellee.
   MAY, J.

Malchan appeals an injunction entered against him for protection against domestic violence. He argues the trial court erred in entering an injunction based on a disputed event that occurred three years prior. We agree and reverse.

In July 2008, the mother of Malclian’s child filed a petition for injunction for protection against domestic violence. The petition alleged that in 2005, Malchan punched a wall in their home, pushed her into a wall, tried to choke her, and told her that he was going to kill her. There were no allegations of recent violence or threats of violence.

At the hearing, the mother alleged that Malchan had physically assaulted and threatened to harm her in 2005. When the judge asked why she wanted the injunction, she replied: “I’m just scared.” She claimed to be scared because she was planning to file for child support and that Malchan had a temper. She told the court that Malchan is very verbal, but that he had not threatened to kill her or her child since 2005. Even then, she did not call the police because she was scared.

The mother spoke with Malchan three weeks before the hearing. He called to ask if he could take their son to Orlando; she told him no. She testified that Mal-chan was good to their son and did not threaten the child’s safety.

Malchan testified he saw the mother three weeks prior to the hearing when he returned their son after a birthday party. He denied the 2005 incident described by the child’s mother. He admitted a prior criminal history of possession of marijuana and assault without violence on a law enforcement officer. He did not own any weapons, firearms, or ammunition. When asked, Malchan testified that he thought the motive for the injunction was his new girlfriend. The mother had been acting vindictive because she claimed to still love him.

The trial court granted the injunction and ordered Malchan to attend a thirteen-week anger management program. Mal-chan now appeals the injunction.

An order imposing a permanent injunction will be affirmed absent a showdng of abuse of discretion. Reiss v. Reiss, 17 So.3d 849, 850 (Fla. 3d DCA 2009).

“A court may issue an injunction when it appears that the petitioner is either the victim of domestic violence or ‘has reasonable cause to believe he or she is in imminent danger of becoming a victim of domestic violence.’ ” Ambrefe v. Ambrefe, 993 So.2d 98, 98 (Fla. 2d DCA 2008) (quoting section 741.30(1)(a), Florida Statutes). In determining whether the victim’s fear is reasonable, “the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole. Giallanza v. Giallanza, 787 So.2d 162, 164 (Fla. 2d DCA 2001) (citing Gustafson v. Mauck, 743 So.2d 614, 616 (Fla. 1st DCA 1999)).

Here, the mother failed to present sufficient evidence that she had a reasonable fear of imminent danger of domestic violence. Her only basis for requesting the injunction was a disputed incident three years before and a subjective fear that her anticipated request for child support might cause Malchan to become angry. The mother never alleged any recent violence or threats of violence. See, e.g., Moore v. Hall, 786 So.2d 1264, 1266-67 (Fla. 2d DCA 2001) (a pushing incident, coupled with a knife in a statuette, was insufficient to support the issuance of an injunction when it occurred twelve years prior and there had been no further violence or threats).

The trial court is also required to consider current behavior. Gustafson, 743 So.2d at 616. Here, Malcharis current behavior consisted of civility between the parties in determining visitation and child support issues. There had been no violence or threat of violence in the past three years. The only concerns expressed were Mal-charis temper, his verbal response when the mother refused to allow their son to go to Orlando, and her worry that Malchan placed blame on the mother. This is simply insufficient to support an objective reasonable fear of imminent violence. We therefore reverse and remand the case to the trial court to vacate the injunction.

Reversed and Remanded.

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


text:
    CONTINENTAL FLORIDA MATERIAL, INC./Lehigh Portland Cement/The Standard Fire Insurance/Travelers, Appellants, v. Idilio RAMOS, Appellee.
    No. 1D10-0287.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellants.
    Richard E. Zaldivar of Richard E. Zaldi-var, P.A., Miami, and Kimberly A. Hill of Kimberly A. Hill, P.A., Ft. Lauderdale, for Appellee.
   PER CURIAM.

Upon review of Appellants’ response to this court’s January 26, 2010, order to show cause, we conclude Appellants have failed to show cause why the appeal should not be dismissed as one from a non-appeal-able, non-final order. See Fla. R.App. P. 9.180(b)(1). Accordingly, the appeal is DISMISSED for lack of jurisdiction.

VAN NORTWICK, LEWIS, and ROWE, JJ., concur.


author: CLARK, J.

text:
    Alfreco LETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5324.
    District Court of Appeal of Florida, First District.
    March 10, 2010.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

As the state concedes, the trial court committed fundamental error by failing to instruct the jury on the knowledge element for the charge of resisting arrest without violence because that element was disputed at trial. Leonard v. State, 1 So.3d 1271 (Fla. 1st DCA 2009); Harris v. State, 935 So.2d 1259 (Fla. 5th DCA 2006). The standard jury instruction for this offense does not contain language addressing a defendant’s knowledge that the person he or she is resisting is an officer, but when such knowledge is in dispute, it is an element of the crime of resisting an officer without violence and requires instruction. Cooper v. State, 742 So.2d 855 (Fla. 1st DCA 1999).

The state’s request to certify the question of whether knowledge is an element of resisting an officer without violence is denied.

The conviction for resisting arrest without violence (Count III) is REVERSED and this case REMANDED.

VAN NORTWICK and MARSTILLER, JJ., concur.


text:
    Andrea KEISTER, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D09-4164.
    District Court of Appeal of Florida, First District.
    March 11, 2010.
    Valarie Linnen, Jacksonville, for Appellant.
    John Beranek, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Pagenet, Inc. v. State, Dept. of Revenue, 843 So.2d 1027 (Fla. 1st DCA 2003); Augustin v. Blount, 573 So.2d 104 (Fla. 1st DCA 1991).

DAVIS, BENTON, and MARSTILLER, JJ., concur.


author: SILBERMAN, Judge. ALTENBERND, Judge,

text:
    JAFFE & HOUGH, P.C., Appellant, v. Laura BAINE, Michael Baine, and Bausch & Lomb Incorporated, a foreign profit corporation, Appellees.
    No. 2D09-3385.
    District Court of Appeal of Florida, Second District.
    March 12, 2010.

      Joseph T. Metzger and Lisa N. Wysong of Metzger Law Group, P.A., Tampa, for Appellant.
    John W. Frost, II and Peter W. Van den Boom of Frost Van den Boom & Smith, P.A., Bartow, for Appellees Laura Baine and Michael Baine.
    No appearance for Appellee Bausch & Lomb Incorporated.
   SILBERMAN, Judge.

Jaffe & Hough, P.C., seeks review of the trial court’s order denying its motion to dismiss for lack of personal jurisdiction. The underlying action is a summary proceeding filed by Laura and Michael Baine against Jaffe & Hough. The Baines sought to determine Jaffe & Hough’s right to a charging lien for representation of the Baines as to a products liability claim against Bausch & Lomb Incorporated. Because the Baines failed to satisfy them burden of pleading sufficient facts to subject Jaffe & Hough to personal jurisdiction, the trial court erred in denying the motion to dismiss. Accordingly, we reverse.

Laura Baine suffered injuries due to an eye infection that she developed while using one of Bausch & Lomb’s products. In August 2006, the Baines entered into a written contingency fee agreement in which they agreed to retain Jaffe & Hough to prosecute a products liability claim against Bausch & Lomb. Jaffe & Hough is a law firm located in Philadelphia, Pennsylvania. The Baines, who are residents of Polk County, Florida, signed the fee agreement at Jaffe & Hough’s offices in Pennsylvania. In July 2007, before any lawsuit was filed, the Baines discharged Jaffe & Hough as their counsel and then hired Frost Van den Boom & Smith, P.A., a law firm located in Polk County, to pursue their claim. Frost Van den Boom filed a complaint in Polk County, and the Baines eventually settled with Bausch & Lomb.

After, the settlement, counsel for Bausch & Lomb, who was located in Kansas City, Missouri, received a letter from Jaffe & Hough’s counsel asking Bausch & Lomb to hold distribution of the settlement monies pending resolution of Jaffe & Hough’s attorney’s lien issues. The Baines became aware of this letter and initiated a summary proceeding by filing a complaint in the products liability action in Polk County. The complaint sought to “determine former attorneys’ Jaffe & Hough’s charging lien.” Jaffe & Hough then filed a lawsuit in the Eastern District Court of Pennsylvania seeking attorney’s fees from the Baines. Jaffe & Hough also moved to dismiss the summary proceeding in Polk County based on a lack of personal jurisdiction.

In its motion to dismiss, Jaffe & Hough alleged that the Baines failed to satisfy their burden of pleading a sufficient basis for long-arm jurisdiction by failing to allege either the language of the long-arm statute or specific facts to demonstrate that Jaffe & Hough fit within the statute. Jaffe & Hough also alleged that the Baines failed to establish that Jaffe & Hough had sufficient minimum contacts with Florida to subject the firm to personal jurisdiction here. The Baines asserted that jurisdiction was proper based on case law stating that an attorney’s right to a charging lien should be determined in the original action. The trial court summarily denied the motion to dismiss.

In Hilltopper Holding Corp. v. Estate of Cutchin ex rel. Engle, 955 So.2d 598, 600-01 (Fla. 2d DCA 2007), this court summarized how it determines whether plaintiffs have satisfied them burden of pleading personal jurisdiction as follows:

It is well established that determining the propriety of a plaintiffs attempt to exercise long-arm jurisdiction over a foreign defendant is a two-step inquiry. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989); Kin Yong Lung Indus. Co. v. Temple, 816 So.2d 663, 666 (Fla. 2d DCA 2002). The first inquiry is whether the plaintiff has alleged sufficient jurisdictional facts to subject the defendant to long-arm jurisdiction under section 48.193, Florida Statutes. Venetian Salami, 554 So.2d at 502; Kin Yong Lung Indus. Co., 816 So.2d at 666; see also Doe v. Thompson, 620 So.2d 1004, 1004 (Fla.1993). If the plaintiff has done so, the second inquiry is whether the defendant possesses sufficient minimum contacts with Florida to satisfy constitutional due process requirements. Venetian Salami, 554 So.2d at 500; Kin Yong Lung Indus. Co., 816 So.2d at 666. This requires the court to determine whether the defendant has availed itself of the privilege of doing business in Florida or has committed acts with an effect in Florida such that it would anticipate being haled into Florida’s courts. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1141 (Fla. 2d DCA 2006).

The burden of pleading jurisdiction lies with the plaintiff. 955 So.2d at 601. The plaintiff may allege the language of section 48.193, Florida Statutes (2008), without supporting facts or may set forth specific facts showing that the defendant’s actions are encompassed by section 48.193. If the plaintiff satisfies this pleading requirement, then the burden shifts to the defendant to produce evidence contesting the jurisdictional facts in the complaint. 955 So.2d at 601.

Although the summary proceeding complaint here does not track the language of section 48.193 or set forth specific facts establishing jurisdiction under section 48.193, the Baines argue that the complaint sets forth sufficient information showing that personal jurisdiction is proper. They contend that under Daniel Mones, P.A. v. Smith, 486 So.2d 559 (Fla.1986), they were required to pursue a determination of Jaffe & Hough’s entitlement to a charging lien as a summary proceeding in the original action. The Baines also argue that their complaint establishes quasi in rem jurisdiction over the settlement funds.

In support of their first point, the Baines argue that, under Daniel Mones, P.A., Jaffe & Hough was subject to jurisdiction in Polk County because the Baines filed their lawsuit against Bausch & Lomb in Polk County. The Baines also rely on several cases citing to Daniel Mones, P.A. See In re Gen. Dev. Corp., 169 B.R. 756 (S.D.Fla.1994); Baker & Hostetler, LLP v. Swearingen, 998 So.2d 1158 (Fla. 5th DCA 2008); New England Mut. Life Ins. Co. v. Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., 690 So.2d 1354 (Fla. 3d DCA 1997); Edward C. Tietig, P.A. v. Se. Reg’l Constr. Corp., 617 So.2d 761 (Fla. 4th DCA 1993).

In Daniel Mones, P.A., an attorney filed an action to collect fees allegedly owed by his former clients for several legal matters. 486 So.2d at 560. The attorney had deposited $22,000 of settlement proceeds from a mechanics lien case into an attorney’s trust account. He claimed fees of $14,400 for the mechanics lien case and approximately $30,000 in fees for services in prior matters. Although the clients disputed the fees, the attorney then transferred the balance to his personal account. When the former clients demanded he disburse the proceeds to them, he refused and filed suit. He claimed he was authorized to hold the funds until the fee dispute was resolved because he held a retaining lien and a charging lien on the funds. Id. at 560-61.

The trial court ruled in the attorney’s favor, but the Third District reversed. Id. at 561. The appellate court determined that the attorney had not perfected a charging lien because he had not filed a notice of lien or pursued the charging lien in the mechanics lien action that resulted in the settlement proceeds at issue. The court also determined that the attorney was not entitled to a retaining lien as to the funds in the attorney trust account for past legal services in unrelated cases. Id.

The Florida Supreme Court approved the Third District’s decision in part and quashed it in part. The court described the issue as “whether the attorney acquired a valid lien on his client’s settlement proceeds, thereby allowing him to retain the funds until a dispute over fees is settled.” Id. at 560. The court concluded that a charging lien could not be imposed but that a retaining lien could. Id. at 561-62. As to the charging lien, the court explained that one of the requirements was timely notice. Id. at 561. This could be accomplished by either filing a notice of lien or by pursuing the lien in the original action. The court explained: “A summary proceeding in the original action represents the preferred method of enforcing an attorney’s charging lien in Florida.” Id. Because the attorney neither filed a notice of lien nor pursued the charging lien in the original action, the court determined that a valid charging lien could not be imposed on the settlement proceeds. Id.

The Baines argue that under Daniel Mones, P.A., the preferred method for them to determine Jaffe & Hough’s entitlement to a charging lien was to file a summary proceeding in the original action. However, Daniel Mones, P.A. addressed what the attorney who sought to impose a charging lien must do. That case does not address what a client can or should do to contest a potential charging lien. Further, even if the client could initiate a proceeding to detei'mine the existence of a charging lien, Daniel Mones, P.A. does not exempt the client in such a proceeding from the pleading requirements to establish personal jurisdiction over a foreign defendant under Venetian Salami. In fact, the issue of personal jurisdiction is not mentioned in Daniel Mones, P.A. Thus, the Baines’ reliance on Daniel Mones, P.A. is misplaced.

The Baines’ reliance on Baker & Hostetler, LLP, In re General Development Corp., New England Mutual Life Insurance Co., and Edward C. Tietig, P.A., is similarly misplaced. In Baker & Hostetler, LLP, for example, the issue again concerned whether the law firm provided proper notice of the charging hen in the dissolution action in which the firm represented a party. 998 So.2d at 1160-61. As in Daniel Mones, P.A., the attorney sought to enforce a charging lien, not the client. The court relied on Daniel Mones, P.A. for the proposition that “a summary proceeding in the original action represents the preferred method of enforcing an attorney’s charging lien in Florida as opposed to a separate action.” Id. The court concluded that notice must be filed before the entry of final judgment or dismissal based on a settlement agreement unless the trial court reserves jurisdiction over the issue of both entitlement to and amount of attorney’s fees. Id. at 1161-63. The court’s decision turned on whether the determination of entitlement and amount of attorney’s fees had been finalized, not whether the law firm had subjected itself to jurisdiction by attempting to enforce a charging lien. Id. at 1163.

As in Daniel Mones, P.A., the Baker & Hostetler, LLP court did not address the issue of personal jurisdiction. The other cases cited by the Baines likewise do not address the issue of personal jurisdiction over the attorney seeking the charging lien. See In re Gen. Dev. Corp., 169 B.R. 756; New England Mut. Life Ins. Co., 690 So.2d 1354; Edward C. Tietig, P.A., 617 So.2d 761. Accordingly, the trial coui't erred in rejecting Jaffe & Hough’s argument that the Baines had failed to plead a sufficient basis for long-arm jurisdiction.

In support of their second point, the Baines argue that it was unnecessary to establish personal jurisdiction because the complaint established that the court had quasi in rem jurisdiction over the Baines’ settlement funds. However, an assertion that the trial court has quasi in rem jurisdiction is not sufficient to relieve the Baines of their burden to plead that Jaffe & Hough has sufficient minimum contacts with Florida. See Pinkerton v. Leisure Props., Ltd., 559 So.2d 402, 403 (Fla. 1st DCA 1990) (citing Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977)). Furthermore, notwithstanding the Baines’ arguments, the summary proceeding complaint does not reference the location of the Baines’ settlement funds.

Because the Baines’ complaint does not establish a basis for personal jurisdiction over Jaffe & Hough, we reverse and remand for the trial court to dismiss the complaint.

Reversed and remanded.

MORRIS, J., Concurs.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge,

Specially concurring.

I fully concur in this opinion. This court’s record in this nonfinal appeal consists of a very limited appendix. However, it should be emphasized that Bausch & Lomb was a defendant in a large number of similar personal injury actions around the country. About the same time that the Baines retained Jaffe & Hough, the federal personal injury cases were subjected to multidistrict litigation assigned to the district court in South Carolina. See In re Bausch & Lomb Inc. Contact Lens Solution Prods. Liab. Litig., 444 F.Supp.2d 1336 (J.P.M.L.2006). There are indications in our record that Mrs. Baine received medical treatment for this injury in Pennsylvania. Thus, nothing in our record suggests that Jaffe & Hough ever contemplated that its representation of the Baines would require litigation in Florida.

Moreover, although the Baines filed this action initially in Polk County, the record suggests that it was removed to federal court and transferred to the multidistrict litigation. If so, I question whether it was appropriate to file such a “summary proceeding” in a case that had long ago been removed to federal court.

      . See § 51.011, Fla. Stat. (2008) (providing for abbreviated pre-trial and trial procedures in certain actions).

      . The complaint alleges that the Baines reside in Polk County, Florida. The complaint also summarizes the factual background as to the Baines' claim against Bausch & Lomb, which was filed in Polk County by Frost Van den Boom. However, the complaint does not contain any allegations suggesting that Jaffe & Hough undertook any actions in Florida or had any dealings in Florida.


text:
    D.L., a minor child by and through her attorney ad litem, Andrea REID, Esquire of the Legal Aid Society of Palm Beach County, Inc., Appellant, v. The PARENTS OF D.L., Appellees.
    No. 4D10-807.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2010.
    Ross L. Baer, Supervising Family Law Attorney, and Andrea Reid, Court Appointed Attorney Ad Litem, The Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellant.
    J.L., Lake Worth, appellee pro se.
   PER CURIAM.

At issue in this petition for writ of cer-tiorari is an order finding D.L. in civil contempt for her refusal to comply with court orders that she not run away from her parents’ home. We treat the petition as a non-final appeal seeking review of the civil contempt order. Tschapek v. Frailing, 699 So.2d 851, 852 (Fla. 4th DCA 1997).

The trial court ordered that the Sheriff of Palm Beach County place D.L. under house arrest for thirty days, with various conditions. D.L.’s failure to comply with the order would result in the court’s issuance of a “pick up” order and her placement in the Palm Beach County Jail pending a hearing. We find that the sanction of house arrest is criminal as opposed to civil because the sanction is for a definite period of time and there is no purge provision. See Parisi v. Broward County, 769 So.2d 359, 364-65 (Fla.2000). We reverse and remand for the trial court to afford D.L. the constitutional due process protections afforded to criminal defendants under Florida Rule of Criminal Procedure 3.840, which governs indirect criminal contempt. Id.

Reversed and remanded.

FARMER, CIKLIN and GERBER, JJ., concur.

      . We decline review of the order that denies D.L.'s motion to strike her parents as parties to the pending paternity action.


author: HAZOURI, J.

text:
    Arthur COOK and Southern Cross Yachts International, Inc., a Florida corporation, Appellants, v. CUSTOM MARINE DISTRIBUTING, INC. and Marine Yacht Specialties, Inc., Appellees.
    No. 4D08-4892.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Lee H. Schillinger of Law Office of Lee H. Schillinger, P.A., Hollywood, for appellants.
    Michael J. Sacks of Brush & Sacks, Parkland, for appellees.
   HAZOURI, J.

Southern Cross Yachts International Tnc., and Arthur Cook, appeal from a final judgment in favor of Custom Marine Distributing Inc., and Marine Yacht Specialties, Inc. The final judgment was rendered against the appellants as a result of their answer being stricken as a sanction for discovery misconduct. We reverse.

Pursuant to Florida Rule of Civil Procedure 1.380, the striking of a party’s pleadings as a sanction for discovery misconduct is authorized. “The striking of pleadings, though, is ‘the most severe of penalties and must be employed only in extreme circumstances.’ ” Fisher v. Prof'l Adver. Dirs. Co., Inc., 955 So.2d 78, 79 (Fla. 4th DCA 2007) (quoting Poling v. Palm Coast Abstract & Title, Inc., 882 So.2d 483, 486 (Fla. 5th DCA 2004) (citing Mercer v. Raine, 443 So.2d 944 (Fla.1983))). This court further found in Fisher:

The striking of a party’s pleadings is justified only where there is “ ‘a deliberate and contumacious disregard of the court’s authority.’ ” Barnett v. Barnett, 718 So.2d 302, 304 (Fla. 2d DCA 1998) (quoting Mercer, 443 So.2d at 946). In assessing whether the striking of a party’s pleadings is warranted, courts are to look to the following factors: 1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for the noncompliance; and 6) whether the delay created significant problems of judicial administration.
Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993). The emphasis should be on the prejudice suffered by the opposing party. See Ham v. Dunmire, 891 So.2d 492, 502 (Fla.2004); [citation omitted]. After considering these factors, if a sanction less severe than the striking of a party’s pleadings is “a viable alternative,” then the trial coiut should utilize such alternatives. Kozel, 629 So.2d at 818. “The purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation” and “[t]his purpose usually can be accomplished by the imposition of a sanction that is less harsh than dismissal” or the striking of a party’s pleadings. Id.

Fisher, 955 So.2d at 79-80.

There is nothing in the trial court’s order to indicate these factors were considered. Therefore, the failure to make the required findings in the order requires reversal. See Bank One, N.A. v. Harrod, 873 So.2d 519, 521 (Fla. 4th DCA 2004) (citing Fla. Nat’l Org. for Women v. State, 832 So.2d 911, 914 (Fla. 1st DCA 2002)); see also Carr v. Reese, 788 So.2d 1067, 1072 (Fla. 2d DCA 2001) (holding that trial court’s failure to consider all of the factors as shown by final order requires reversal). We reverse and remand and direct the trial court to enter an order based on the factors outlined in Kozel, to support the striking of the appellants’ pleadings, or, absent that, the trial court should vacate the final judgment. We do not preclude the trial court from imposing a lesser sanction than striking of the pleadings should it determine a lesser sanction to be more appropriate.

Reversed and Remanded with Directions.

MAY and DAMOORGIAN, JJ., concur.


text:
    Eric V. ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3292.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Eric Ross entered a no contest plea to 2006 and 2007 possession of cocaine charges filed in three lower court case numbers. He then sought the imposition of an alternative sentence pursuant to section 948.20, Florida Statutes (2007), authorizing the trial court to withhold the imposition of sentence and to place the defendant on “drug offender probation” if the defendant is “a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a).” The State insisted Ross’s multiple prior, non-drug felony convictions precluded the imposition of sentence under section 948.20, relying upon State v. Langdon, 978 So.2d 263 (Fla. 4th DCA 2008), where this court held that a defendant with prior, non-drug felony convictions could not receive a sentence of probation under section 948.034, Florida Statutes. The trial court accepted the State’s argument and denied Ross’s motion for alternative sentencing. Ross appealed.

Subsequent to the imposition of sentence, this court held that Langdon does not control the imposition of sentence pursuant to section 948.20 and that a defendant’s prior, non-drug felony convictions do not bar the imposition of a drug offender probation sentence under section 948.20. See Nelson v. State, 16 So.3d 286 (Fla. 4th DCA 2009); see also State v. Cox, 19 So.3d 1183 (Fla. 4th DCA 2009); Nelson v. State, 17 So.3d 911 (Fla. 4th DCA 2009). We thus reverse the trial court’s denial of Ross’s motion for imposition of an alternative sentence pursuant to section 948.20 and remand the case so that the trial court may reconsider the matter.

Reversed and Remanded.

WARNER, POLEN and STEVENSON, JJ., concur.

      . Effective July 1, 2009, section 948.20 was amended. See Ch. 2009-64, § 7, at 583-84, Laws of Fla.


author: PER CURIAM. MAY, J.,

text:
    Matthew LEVINE, Appellant, v. Loren LEVINE, Appellee.
    No. 4D08-3363.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Joel M. Weissman and Kristen A. Floyd of Joel M. Weissman, P.A., West Palm Beach, for appellant.
    Henry B. Handler of Weiss, Handler, Angelos & Cornwell, P.A., Boca Raton, for appellee.
   PER CURIAM.

This appeal and cross-appeal arises from the trial court’s Order on Remand entered pursuant to this court’s decision in Levine v. Levine, 964 So.2d 741 (Fla. 4th DCA 2007). We affirm the trial court’s order in all respects without discussion except for the issue of accounting for income from the marital home which the former wife, Loren Levine, received as part of the equitable distribution of the parties’ marital assets.

The former wife presently lives in the marital home with her children. The trial court correctly determined that income cannot reasonably be imputed from this asset at this time. However, should this asset become income-producing in the future, the former husband is not precluded from seeking modification of his alimony obligation.

Affirmed.

HAZOURI and DAMOORGIAN, JJ., concur.

MAY, J., concurs specially with opinion.

MAY, J.,

concurring specially.

I concur with the majority in affirming the trial court’s order on remand. It is clear the trial court painstakingly worked to comply with our mandate and reach an equitable resolution of the ongoing dispute concerning alimony. When all of the numbers are properly accounted for and the calculations performed, the alimony award is justified. I therefore agree the alimony award should be affirmed.

I write simply to call attention to the issue raised in the briefs and in oral argument that was not specifically made to the trial court: whether a spouse can request a non-liquid asset in equitable distribution, leaving the liquid assets to the other spouse, thereby generating income and ability to pay for one spouse while increasing the need for alimony of the spouse with the non-liquid asset. It would seem that this could result in strategic maneuvering to the benefit of the spouse seeking alimony and the detriment of the one who will be required to pay.

While this case does not present a factual situation necessitating an analysis of this strategy, the future may yield a factual scenario that does. For example, with marital assets of $1,000,000, a non-employed spouse requests a $500,000 non-liquid asset (the marital residence); the other employed spouse receives an income-producing $500,000 asset. The non-employed spouse then asks for alimony and claims to have no income. The employed spouse’s income is increased because of the liquid asset and therefore has a greater ability to pay while the non-employed spouse with the non-liquid asset claims the greater need for alimony.

Florida case law supports the imputation of income to liquid assets. McLean v. McLean, 652 So.2d 1178, 1181 (Fla. 2d DCA 1995). “When a party receives an asset in equitable distribution that will result in immediate investment income, we see no reason for that income to be excluded from consideration under section 61.08(2)(g).” Id. at 1181. Contrastingly, no Florida case has yet held that a non-liquid asset must have income imputed to it. But, that day may come.

As the trial court found, we did not order the former wife to sell the home, nevertheless she now possesses a non-liquid asset of $925,000 without restrictions to which no income is imputed. Yet, it seems appropriate for the former wife and five children to continue to live in their home without further disruption. Wisely, the trial court reserved jurisdiction to consider the imputation of income to this asset at a later time. But that is a question for another day.

      . Our review of the record reveals small calculation errors on both sides of the equation, which effectively cancel each other out.

      . “Jurisdiction is reserved on this issue once circumstances change that may reasonably allow the Court to impute income, such as when the children are no longer minors or the Former Wife derives rental income therefrom.”


text:
    Richard MYSHRALL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3006.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Richard Myshrall timely appeals his judgment of conviction and sentence for criminal conspiracy to commit bank i’ob-bery. “[I]n order to establish the coi"pus delicti of conspiracy, the state must present substantial evidence that the defendant and a coconspirator agreed to commit a crime and that the defendant intended to commit the offense.” Baxter v. State, 586 So.2d 1196, 1199 (Fla. 2d DCA 1991). “Admissions or confessions of a defendant may not be admitted in evidence absent independently established corpus delicti.” Chaparro v. State, 873 So.2d 631, 633 (Fla. 2d DCA 2004) (citing Burks v. State, 613 So.2d 441, 444 (Fla.1993)). Based on the testimony presented at trial, we find that there was no evidence introduced which would allow for the conclusion that a corpus delicti of conspiracy to commit bank robbery existed so as to permit the admittance of Myshrall’s statement to the police. As such, we find the trial court should have granted Myshrall’s motion for judgment of acquittal as to the conspiracy charge, and we must reverse the conviction and sentence. See Brown v. State, 800 So.2d 697, 698 (Fla. 1st DCA 2001) (reversing conviction of conspiracy to commit armed robbery because trial court should have granted defendant’s motion for judgment of acquittal where prosecutor failed to present sufficient evidence, independent of appellant’s self-incriminating statement, to establish corpus delicti of the crime).

Reversed.

WARNER, POLEN and STEVENSON, JJ., concur.


author: WARNER, J.

text:
    Jerome KNOWLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4209.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.

      Carey Haughwout, Public Defender, Paul E. Petillo and Timothy D. Kenison, Assistant Public Defenders, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

WARNER, J.

We deny appellant’s motion for rehearing, withdraw our previously issued opinion and substitute the following in its place.

In appealing his conviction for vehicular homicide, appellant claims that the court erred in denying his motion for judgment of acquittal on the enhanced charge of failing to stop and render aid following the accident resulting in the death. We conclude that the state presented evidence inconsistent with the defendant’s reasonable hypothesis of innocence that he was unaware of the accident. On all other issues we also affirm.

The state charged Knowles with first-degree vehicular homicide, i.e., “the killing of [David Markel] ... caused by [Knowles’s] operation of a motor vehicle ... in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2005). The charged crime constituted a first-degree felony because the state alleged that Knowles knew or should have known that an accident occurred, and failed to give aid and information as required by law. § 782.071(l)(b), Fla. Stat.

The accident occurred around 10:30 a.m., on a clear sunny day, amid moderate traffic, on the southbound lanes of the Florida turnpike, a few miles north of the PGA Boulevard exit, where the speed limit was seventy miles per hour. Knowles was driving his orange Dodge Dakota truck southbound on the turnpike to visit his father in Fort Lauderdale. Ken Borman was a passenger in the vehicle.

Several witnesses observed part or all of the chain of events which led to the death of Markel. David Blitstein and Rene Can-tin both observed erratic driving by an orange vehicle. Blitstein was proceeding south in the right lane, looked to his left, and saw an orange truck driving directly towards his car’s driver-side door. Blit-stein swerved to the right and ended up on the shoulder, at which point he turned back to the left and continued driving in the right lane. Cantin was driving south in the left lane when he observed an orange truck in his rear-view mirror approaching quickly and weaving in and out of traffic. The truck passed Cantin on the right and pulled into the left lane in front of Cantin.

A bit further south of Blitstein and Can-tin, Michael Willover was driving between seventy and seventy-five miles per hour in the left lane. Markel was driving a white Toyota Tundra pick-up truck in the right lane about a half-a-car-length ahead of Willover. In his rear-view mirror, Will-over noticed Knowles’s orange truck in the left lane, approaching rapidly. Knowles moved to the right lane, came up beside Willover’s car, and attempted to force his way back into the left lane, in front of Willover. Willover slowed down and Knowles managed to get around him without hitting Willover or Markel. Knowles fishtailed his vehicle to the right and then to the left. Willover thought that fishtailing caught Markel by surprise.

Markel turned the wheel hard to the right to avoid the orange truck, then turned the wheel back to the left, and finally made a hard right turn onto the shoulder. Markel’s truck then rolled over multiple times until it came to rest in a ditch. Vai'ious witnesses testified that Knowles did not tap on his brakes but continued driving southbound without stopping. Knowles’s truck had fully functioning rear and side view mirrors. According to Borman, Knowles’s passenger, Markel swerved from the right lane into the left lane, forcing Knowles to swerve left towards the guardrail. Markel then straightened the car out, and Knowles continued driving southbound without stopping. Borman did not notice anything which would have suggested that the white truck crashed. Willover, who was behind Knowles’s vehicle, only saw Markel begin to roll his car as he passed. He did not see the accident, nor did he see any debris flying.

Markel died as a result of injuries suffered in the crash. Knowles did not stop at the scene of the accident but exited the turnpike, stopped at a Mobil gas station, and then proceeded over other roads to his father’s home in Fort Lauderdale. Because a witness -was able to obtain a license plate number, Knowles was eventually found and arrested for vehicular homicide.

At his trial, in addition to the witnesses to the accident, the state presented the lead traffic homicide investigator as an accident reconstruction expert. Mary Go-dino ascertained from the physical evidence and witness statements that Markel was traveling seventy miles per hour when he hit his brakes, veered sharply right onto the shoulder, back onto the road and into the left lane, then to the right and onto the shoulder again. As a result, he lost control of the car which rolled several times until it came to a stop in a ditch. Based upon the physical evidence as well as the witness reports, she concluded that Knowles caused the accident through his driving actions.

After the trial court denied Knowles’s motion for judgment of acquittal, Knowles’s passenger, Ken Borman, testified that he had not noticed anything unusual in his drive down to Fort Lauderdale with Knowles. While he saw Markel turn into Knowles’s lane, and the two cars almost touched, he did not see any debris flying nor any accident. Knowles’s wife and father testified that Knowles acted normally that day and did not look bothered by anything.

During the charge conference, defense counsel requested that the court give a lesser included charge of reckless driving. The court denied the request. The jury was charged and returned a verdict finding Knowles guilty as charged, finding that he knew or should have known of the accident and failed to stop and render aid. The court sentenced him to thirty years in prison. He appeals his conviction.

In Pagan v. State, 830 So.2d 792, 808 (Fla.2002), the supreme court articulated the standard for review of a judgment of acquittal.

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction. However, if the State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence.

(citations omitted). Nevertheless,

The state is not required to “rebut conclusively every possible variation” of events which could be inferred from the evidence, but only to introduce competent evidence which is inconsistent with the defendant’s theory of events. Once that threshold burden is met, it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.

State v. Law, 559 So.2d 187, 189 (Fla.1989) (citation and footnote omitted).

The state charged Knowles with vehicular homicide under section 782.071(l)(b), Florida Statutes. That section requires that the state prove the killing of a human being “caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another” and that “1. At the time of the accident, the person knew, or should have known, that the accident occurred; and 2. The person failed to give information and render aid as required by s. 316.062.”

Knowles moved for judgment of acquittal, arguing that the evidence of whether he knew or should have known that an accident occurred was circumstantial in this case. He posited a reasonable hypothesis of innocence that he did not know an accident occurred, nor should he have known as he had passed the scene before the Markel vehicle rolled over. After a careful review of all of the evidence in the case in a light most favorable to the state in accordance with the foregoing legal standard, we conclude that the state presented evidence inconsistent with the reasonable hypothesis of innocence.

This is an atypical case, because the Knowles vehicle never contacted the Mark-el vehicle. When Knowles cut in front of Willover’s vehicle and ended up beside Markel in the left lane, Markel reacted by pulling his vehicle to the right, then to the left, and finally sharply to the right when it left the road, went into the grass, and began to roll. Knowles was right beside Markel when he first pulled to the right, and his own passenger observed Markel swerve. Willover testified that he heard a very loud noise of Markel’s tire screeching as the Markel vehicle swerved sharply. The state asked the following unobjected-to question and received a response which is inconsistent with Knowles’s hypothesis of innocence:

Q. When you saw the vehicle go from right to left back to right, you said that the orange vehicle wasn’t that far, well far ahead I think as defense described it, was there anything obstructing the view from the orange vehicle to the white vehicle during this rollover and during this crash and loss of control?
A. I’d say no. It happened in that [sic] seconds right next to it. So 1 don’t think anything could have impaired the view of one to the other.

(emphasis supplied). In light of this testimony, taken together with the loud noise of Markel’s vehicle as it swerved and the fact that Knowles’s vehicle fishtailed right beside the Markel vehicle, coming within a couple of feet of it, we conclude that the evidence was inconsistent with Knowles’s claim that he was unaware of the accident that was beginning to unfold right beside him. Therefore, the court properly submitted the issue to the jury for resolution.

Knowles also claims that his conviction for vehicular homicide should be reversed because the state failed to instruct on the lesser included offense of reckless driving. The court denied Knowles’s request based on State v. Barritt, 531 So.2d 338 (Fla.1988), and ultimately instructed the jury on vehicular homicide under section 782.071, Florida Statutes. In Barritt, 531 So.2d at 339, the supreme court recognized that “reckless driving is a necessarily lesser included offense of vehicular homicide” and that a defendant is normally “entitled to an instruction on all necessarily lesser included offenses.” However, the coirnt held that “[i]f vehicular homicide is charged, a requested instruction on reckless driving need not be given where it is undisputed that a death has occurred as a result of the accident.” Id.

The evidence was undisputed that Mark-el’s death was the result of the accident. Knowles only disputed whether he caused the accident, as he argued that Market's own conduct in losing control over his vehicle caused him to roll over. In Reaves v. State, 979 So.2d 1066, 1069 (Fla. 1st DCA 2008), the First District noted that a “decedent’s conduct may only be asserted as a defense to vehicular homicide when that conduct could be viewed as the sole proximate cause of the accident which resulted in the death.” In this case, Market’s conduct alone did not cause the accident. Knowles’s angling his car between Markel and Willover together with Markel’s response thereto, caused the accident. We agree with the trial court that Barritt controls.

We affirm as to the remaining issues raised. Although we do not conclude that the trial court erred in its rulings, even if errors occurred, we would find them harmless beyond a reasonable doubt. With, respect to the accident reconstruction expert describing Knowles’s driving as “possibly reckless,” the defense did not object to that comment. While the defense had objected to the expert testifying that Knowles caused the accident, the description of Knowles’s driving as reckless was not within the scope of that objection.

Affirmed.

POLEN, J„ and KAPLAN, MICHAEL G., Associate Judge, concur.


text:
    Lancelot Uriley ARMSTRONG, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-989.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.
    Lancelot Uriley Armstrong, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is before us on remand from the Florida Supreme Court. On the authority of Roesch v. State, 633 So.2d 1 (Fla.1993), we affirm the trial court’s order denying the appellant’s motion that he be furnished public records at state expense.

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


author: WELLS, Judge.

text:
    FLORIDA ACTION FILMS, INC., Ted Vernon Specialty Automobiles, Inc., Ted Vernon and Estate Marketing, Inc., Appellants, v. GREEN EAST # 2, LTD., Appellee.
    No. 3D09-944.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Rehearing and Rehearing En Banc Denied March 31, 2010.

      Alan K. Marcus, for appellants.
    Shutts & Bowen and Stephen B. Gill-man, Miami; Shutts & Bowen and Suzanne Youmans Labrit, Tampa, for appel-lee.
    Before COPE, WELLS, and CORTIÑAS, JJ.
   ON MOTION FOR REHEARING AND CLARIFICATION

WELLS, Judge.

The appellees have filed motions for clarification and rehearing in connection with the opinion issued by this Court on December 2, 2009. We deny the motion for rehearing, but grant clarification, withdraw our previous opinion, and substitute this corrected opinion in its stead.

Florida Action Films, Inc., Ted Vernon Specialty Automobiles, Inc., Ted Vernon, and Estate Marketing, Inc. appeal from a Final Judgment interpreting and enforcing an easement in a 1935 deed. We agree with the trial court that the express easement is unambiguous and accords only an easement of ingress and egress extending only from the northern border of the parcel conveyed in 1935 to 79th Street on the south. We also agree that no easement by way of necessity over Appellee, Green East # 2 Ltd.’s property has been proved to exist. Lastly, we agree that the court below properly enjoined the Appellants herein from their admittedly continuing trespass on Green East’s property. See Autozone Stores, Inc. v. Northeast Plaza Venture, LLC, 934 So.2d 670, 673 n. 1 (Fla. 2d DCA 2006) (confirming that an injunction is an appropriate remedy for a continuous or repeated trespass); Overstreet v. Lamb, 128 So.2d 897, 900 (Fla. 1st DCA 1961) (recognizing injunctive relief as an appropriate remedy for “a continuing trespass on land”).

Accordingly, the order on appeal is, in all respects, affirmed.

      . The evidence was that Florida Action Films, Inc. and Estate Marketing, Inc. own two separate parcels of landlocked property that are adjacent to Green East's property. In the lower proceedings, the trial court found that Estate Marketing, Inc.’s property was entitled to an easement by way of necessity over Green East's property and the parties thereafter stipulated to the route of the easement at trial, subject to future modification upon changed circumstances. That easement is not a subject of this appeal and this determination.