text:
    William DELUCCIO, Stephen B. Miller, Terri Noyes, Clarence L. Spannuth, Jr., M.D. and Karen E. Spannuth, husband and wife, individually and as representatives of similarly situated persons, Appellants, v. Ed HAVILL, in his official capacity as Property Appraiser of Lake County, Florida; Bob McKee, in his official capacity as Tax Collector of Lake County, Florida; Lake County, a political subdivision of the State of Florida; The Lake County School Board; City of Groveland, a political subdivision of the State of Florida; Marcus Saiz De La Mora, in his official capacity as Property Appraiser of Miami-Dade County, Florida; Fernando Casamayor, in his official capacity as Tax Collector of Miami-Dade County, Florida; Miami-Dade County, a political subdivision of the State of Florida; The Miami-Dade County School Board; City of Miami, a political subdivision of the State of Florida; Charles Hackney, in his official capacity as Property Appraiser of Manatee County, Florida; Ken Burton, Jr., in his official capacity as Tax Collector of Manatee County, Florida; Manatee County, a political subdivision of the State of Florida; The Manatee County School Board; City of Longboat Key, political subdivision of the State of Florida; Kenneth Wilkinson, in his official capacity as Property Appraiser of Lee County, Florida; Cathy Curtis, in her official capacity as Tax Collector of Lee County, Florida; Lee County, a political subdivision of the State of Florida; The Lee County School Board; City of Cape Coral, a political subdivision of the State of Florida; Lisa Echeverri, in her official capacity as Executive Director of the Florida Department of Revenue; and all named Defendants, individually as entities or persons and as entities or persons acting in their official capacities, Appellees.
    No. 1D08-5529.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2009.
    Talbot D’Alemberte of D’Alemberte & Palmer, PLLC, Tallahassee; Marsha L. Lyons and Douglas S. Lyons of Lyons & Farrar, P.A.; Tallahassee; William C. Owen of William C. Owen, LLC, Tallahassee; James G. Feiber, Jr., of Salter, Feiber, Murphy, Hutson & Menet, P.A., Gainesville; and William Slaughter of Has-kell, Slaughter, Young & Rediker, LLC, Birmingham, Alabama, for Appellants.
    Bill McCollum, Attorney General, Scott D. Makar, Solicitor General, Joseph C. Mellichamp, III, Special Counsel, and Jar-rell L. Murchison, Assistant Attorney General, Tallahassee; and C.B. Upton of Arn-stein & Lehr, LLP, Tampa, for Appellee Lisa Echeverri, in her individual and official capacities.
    Gregory T. Stewart, Harry F. Chiles, and Carly J. Schrader of Nabors, Giblin & Nickerson, P.A., Tallahassee, for Appellees Lee County, Lee County School Board, The City of Groveland, Lake County, Ed Havill in his official capacity as Property Appraiser of Lake County and Bob McKee in his official capacity as Tax Collector of Lake County.
    R. Laine Wilson Harris and John C. Dent, Jr., of Dent & Johnson, Chartered, Sarasota, for Appellee Kenneth Wilkinson, as Property Appraiser of Lee County.
    Luis E. Rivera, II and Suzanne M. Boy of Henderson, Franklin, Starnes & Holt, for Appellee Cathy Curtis, in her official capacity as Tax Collector for Lee County.
    John W. Bowen, School Board of Manatee County, for Appellee Manatee County School Board.
    Janelle L. Esposito of Green Hamrick Perrey Quinlan & Schermer, P.A., Braden-ton, for Appellee Ken Burton, Jr. in his official capacity as Manatee County Tax Collector.
    W. Nelon Kirkland of Harrison, Kirkland, Pratt, Chulock & McGuire, P.A., Bra-denton, for Appellee Charles Hackney in his individual and official capacity as Manatee County Property Appraiser.
    David P. Persson of Hankin, Persson, Davis, McClenathen & Darnell, Sarasota, and William R. Pomeroy of William R. Pomeroy, P.A., Sarasota, for Appellee The Town of Longboat Key.
    Stephen W. Johnson of McLin & Burnsed, P.A., Leesburg, for Appellee School Board of Lake County.
    Julie O. Bru, City Attorney, Warren Bittner, Deputy City Attorney, and John A. Greco, Assistant City Attorney, for Ap-pellee City of Miami.
    Luis M. Garcia, Miami, for Appellee School Board of Miami-Dade County.
    Mark E. Lupe, Assistant City Attorney, for Appellee City of Cape Coral.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and Melinda S. Thornton, Assistant County Attorney, for Appellees Miami-Dade County, Marcus Saiz de la Mora in his official capacity as Property Appraiser of Miami-Dade County, and Fernando Casamayor, in his official capacity as Tax Collector of Miami-Dade County.
    Tedd N. Williams, Jr., County Attorney, and James A. Minix, Chief Deputy County Attorney, for Appellee Manatee County.
   PER CURIAM.

Appellants seek reversal of a final order which dismissed with prejudice their amended complaint challenging the constitutionality of certain portions of section 4, Article VII of the Florida Constitution. More particularly, appellants have challenged the constitutionality of (i) the “Save Our Homes Amendment” (SOHA) which placed a cap on the amount the assessed value of homestead property could be increased annually, and (ii) Amendment 1, adopted by popular referendum in 2008, which, among other things, made a portion of a homesteader’s existing exemption portable to newly-purchased homestead property. Art. VII, § 4(c)(1) and (8), Fla. Const. Appellants argue that these amendments violate several federal constitutional provisions. Because the trial court erroneously concluded that it lacked subject matter jurisdiction when appellants did not comply with section 194.171(1), Florida Statutes, we reverse on the authority of Lanning v. Pilcher, 16 So.3d 294 (Fla. 1st DCA 2009), and Reinish v. Clark, 765 So.2d 197 (Fla. 1st DCA 2000).

We note that this case has been consolidated with Bruner v. Hartsfield, 23 So.3d 192 (Fla. 1st DCA 2009), and this case raises nearly identical constitutional challenges to section 4, Article VII, which have been raised and rejected by this court in Bruner. In Bruner, the plaintiffs were state residents, whereas the plaintiffs in the case before us are nonresidents, as were the plaintiffs in Reinish. Because the trial court below erroneously concluded it lacked subject matter jurisdiction, it divested itself of authority to rule on the merits, and we are thus foreclosed from considering the merits as well.

We therefore REVERSE and REMAND for further proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    QUALITY HOLDINGS OF FLORIDA, INC., and William Planes, Sr., Appellants, v. SELECTIVE INVESTMENTS, IV, LLC, Appellee.
    No. 4D09-1347.
    District Court of Appeal of Florida, Fourth District.
    Nov. 18, 2009.

      Langfred W. White of The Law Offices of Langfred W. White, PA, Palm Harbor, for appellants.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC, Fort Lauderdale, and Sean L. Moore of Moore & Goodman, P.A., Fort Lauderdale, for appellee.
   POLEN, J.

The appellants, Quality Holdings of Florida, Inc. and William Planes, Sr. (collectively referred to as “Quality”), appeal the trial court’s order granting Selective Investments IV, LLC (“Selective”)’s motion for second escrow disbursement. This court has jurisdiction. Fla. R.App. P. 9.130(a)(3)(C)(ii). We reverse and remand.

FACTS

This non-final appeal challenges a court-ordered distribution from an escrow fund relating to a land sale contract for commercial property. Quality was the seller and Selective was the buyer. A commercial tenant occupied the property pursuant to a lease. The escrow fund was created pursuant to an Estoppel, Escrow and Post-Closing Agreement (“Agreement”) to ensure Quality’s performance of several post-sale contractual obligations. Notably, the obligations included remediating an underground fuel storage tank on the property and reimbursing Selective for any rent the tenant withheld as a result of the tank remediation or as a result of any incorrect statement Quality made in the Agreement.

In the underlying action, Selective sued Quality for breach of contract, fraud, and declaratory relief regarding a portion of the escrow fund owed to two subcontractors for the tank work. Quality denied the allegations and counterclaimed for declaratory relief that its obligations under the escrow fund were complete. The trial court granted Selective’s first motion for escrow distribution to pay the subcontractors for the tank remediation; this order is not on appeal.

The subject of this appeal is Selective’s second Motion for Escrow Disbursement. The motion claimed that Quality had not completed the tank remediation by the contractual deadline, despite several demands, and that Quality had abandoned the work. Selective claimed that it had suffered damages totaling $44,657.98 as a result of Quality’s actions. Selective quantified its damages as follows:

a) Tenant withheld rent $15,511.42
b) EnviroCare 800.00
c) Lien satisfaction (recording) 10.00
d) Bill from tenants 4,408.56
e) Legal fees 23,928.00
TOTAL $44,657.98

The only evidence in the record to substantiate the individual line items is an affidavit from Selective’s General Manager, which was directly contradicted by an affidavit from Quality’s CEO. Quality claimed that Selective read into the Agreement requirements that did not exist and that Selective was not entitled to funds from escrow.

The trial court held a hearing on Selective’s motion, which Quality’s attorney attended by telephone. There is no indication that live testimony was taken. There was no evidentiary presentation other than the contradictory affidavits of the parties. The record contains no evidence of invoices or receipts to substantiate the line items for which the escrow disbursement was sought. It appears that the hearing was not recorded, and there is no transcript of the hearing. Thereafter, the trial court entered its second disbursement order in the amount of $44,657.98, the same amount that Quality had listed as damages in its motion. The trial judge made no findings of fact in the order granting the second escrow disbursement.

STANDARD OF REVIEW

Often, in the absence of an adequate record, an appellate court is compelled to affirm the decision of the trial court. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979); Howle v. Howle, 967 So.2d 435, 436 (Fla. 4th DCA 2007). However, an appellate court may reverse an order even in the absence of an adequate record if the order is fundamentally erroneous on its face. See Howle, 967 So.2d at 436.

If a trial court ruled solely on the basis of a written record and arguments made by lawyers and made no findings of fact, an appellate court reviews the record as the trial court did. See Town of Jupiter v. Alexander, 747 So.2d 395, 399 (Fla. 4th DCA 1998); Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So.2d 1111, 1118 (Fla. 4th DCA 1997) (stating that if a trial court’s findings are based on affidavits rather than live testimony, the presumption of correctness given to a trial court’s rulings is lessened because the appellate court has everything the trial court had before it).

Here, the record on appeal is inadequate because the record before the trial court was inadequate. The trial court’s order is fundamentally erroneous on its face because, in light of the conflicting affidavits, the trial court had absolutely nothing before it that could have justified its order of the second escrow disbursement. Having concluded that Applegate does not prohibit our consideration of this appeal, pursuant to Toum of Jupiter and Ciba-Geigy, we apply a standard of review more akin to de novo than to a review for abuse of discretion.

Line Items for Withheld Rent, EnviroCare, Bill from Tenants

There simply is no evidence in the record that could have led the trial court to conclude that the specific amount of money requested for withheld rent, Envi-roCare, and a bill from tenants was authorized by the Agreement. Because the trial court made no findings of fact, Selective’s bare assertion in its affidavit that a payment was made does not justify an escrow distribution when the right to receive that distribution is directly challenged by Quality’s opposing affidavit. In light of the conflicting affidavits, we reverse and remand. On remand, the trial court must conduct an evidentiary hearing and make findings of fact to resolve whether Selective is entitled to a disbursement pursuant to the Agreement for each line item and, if so, the amount that should be disbursed.

Attorney’s Fees

The law is clearly established that an award of attorney’s fees “must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved.” Simhoni v. Chambliss, 843 So.2d 1036, 1037 (Fla. 4th DCA 2003); see also Brewer v. Solovsky, 945 So.2d 610, 611 (Fla. 4th DCA 2006). Substantial competent evidence includes invoices, records and other information detailing the services provided, as well as the testimony of the attorney in support of the fee. Brewer, 945 So.2d at 611.

The only evidence the trial court appears to have received regarding attorney’s fees is the affidavit of Selective’s General Manager. In the affidavit, Selective’s General Manager itemizes damages that he “incurred to defend and resolve” various disputes relating to the litigation. The affidavit merely contains a single line item, which parrots the motion, for “Legal fees” in the amount of $23,928.00. This bare description does not constitute substantial and competent evidence to justify the trial court awarding attorney’s fees. It appears that the trial court received no invoices or records detailing the services provided, and it appears that the attorney did not testify in support of his fee, as Brewer requires. Nor did the trial court make findings regarding the number of hours reasonably expended or the reasonable hourly rate for the type of litigation involved, as Simhoni requires. Furthermore, the award of attorney’s fees is premature if it was awarded under the prevailing party clause of the Agreement, as we assume it was. Until the litigation is complete, there is no prevailing party. Lastly, while we have no basis to comment on the reasonableness or necessity of the amount of attorney’s fees, we note that if $23,928.00 in fees was incurred to secure $20,729.08 ($44,657.98-$23,928.00) in other disbursements to the client, this should certainly raise a judicial eyebrow.

Selective encourages this court to uphold the award of attorney’s fees as an element of damages. However, with such a barren record before it, this court has absolutely no basis to find that the attorney’s fees were awarded as damages. Therefore, with respect to the attorney’s fees, we reverse, and leave the question of prevailing party attorney’s fees to be determined after the trial court determines the prevailing party.

Reversed and remanded.

STEVENSON and GERBER, JJ., concur.

      . Attorney's fees may be recoverable as an element of damages with respect to certain intentional malicious torts, such as wrongful attachments, false imprisonment, malicious prosecution, and slander of title. Martha A. Gottfried, Inc. v. Amster, 511 So.2d 595, 600 (Fla. 4th DCA 1987); see also Bidon v. Dep’t of Prof'l Regulation, Fla. Real Estate Comm'n, 596 So.2d 450, 452 n. 3 (Fla.1992) (stating generally, and in dicta, that "[a]n exception to the general rule is that attorney's fees may be considered an element of damages in cases in which the wrongful act of the defendant has caused the plaintiff to become involved in litigation with third parties”).


author: WOLF, J.

text:
    STATE of Florida, Appellant, v. Anthony Deshawn GLOVER, Appellee.
    No. 1D08-5225.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2009.
    Rehearing Denied Jan. 12, 2010.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   WOLF, J.

The State appeals a downward departure sentence. Appellee was charged with possession of a firearm by a convicted felon and possession of marijuana. Appel-lee pled no contest to possession of marijuana and a bench trial was conducted as to the possession of a firearm charge. During the trial, an officer testified he responded to a nightclub at 2:00 a.m. in reference to a disturbance involving a patron armed with a weapon. He testified nightclub security guards directed him to appellee’s car, in which he was sitting with a large handgun on the floorboard between his legs and marijuana in his possession. Another officer testified appellee said the gun was his. Appellee testified he did not know the gun was in the car; however, he stated he was in fear for his safety because on two occasions during the two days prior to his arrest, a man with a gun threatened him and his family. When asked if he was afraid the man who threatened him would be at the club, appellee responded he had never been to that club before. The trial court found appellee guilty and imposed a downward departure sentence, finding his “perception of danger was real and reasonable.”

A trial court may not impose a sentence that departs from the statutory guidelines “unless there are mitigating circumstances or factors present as provided in s. 921.0026.” § 921.00265, Fla. Stat. (2006). Section 921.0026, Florida Statutes (2006), provides a non-exclusive list of mitigating circumstances that reasonably justify departure.

In Banks v. State, 732 So.2d 1065, 1067-68 (Fla.1999), the supreme court outlined the two-step process for imposing a departure sentence. “First, the [trial] the court must determine whether it can depart, i.e., whether there is a valid legal ground,” explaining “[l]egal grounds are set forth in case law and statute.” Id. at 1067. (emphasis in original). “Second ... the trial court further must determine whether it shoidd depart ... weighing] the totality of the circumstances in the case, including aggravating and mitigating factors.” Id. at 1068 (emphasis in original). This determination is reviewed for abuse of discretion, which is abused “only where no reasonable person would agree with the trial court’s decision.” Id.

Here, it is unnecessary for this court to determine whether the trial court’s reason for departure was legally valid, meeting step 1 of the Banks test. The trial court’s reason for departure fails step 2 of the Banks test as it was clearly an abuse of discretion.

Weighing the totality of the circumstances, the trial court’s decision to impose a downward departure sentence for possession of a firearm by a convicted felon was not reasonable. The evidence established appellee was arrested after a disturbance involving a firearm at a nightclub. He was identified as the person in possession of the firearm. The arrest occurred in the parking lot of a nightclub at 2:00 a.m. Appellee was in possession of marijuana. There was no indication appellee reasonably believed that danger was immediate or imminent.

Therefore, we reverse and remand for resentencing within the guidelines. See Pope v. State, 561 So.2d 554, 556 (Fla.1990) (citing Shull v. Dugger, 515 So.2d 748 (Fla.1987)) (finding resentencing must be within the guidelines “when the initial reasons [for departure] had been reversed by an appellate court”); State v. Owens, 848 So.2d 1199 (Fla. 1st DCA 2003) (reversing and remanding for resentencing within the guidelines where the trial court’s reason for departure was invalid).

HAWKES, C.J, and WETHERELL, J., concur.

      . While we do not necessarily say that for a departure sentence to be upheld on the basis of fear, the circumstances must rise to the level which would support the legal defense of necessity, here the circumstances do not support a reasonable basis for a convicted felon to have a gun. See State v. Steadman, 827 So.2d 1022, 1025 (Fla. 3d DCA 2002) (affirming downward departure sentence based on police conduct which did not rise to the level of entrapment, finding " ‘the trial court can mitigate a sentence based on conduct that is not sufficient to excuse the crime.’ ") (quoting Hines v. State, 817 So.2d 964, 965 (Fla. 2d DCA 2002)).


author: KELLY, Judge.

text:
    Daron MEYER, Appellant, v. Victor MEYER, Appellee.
    No. 2D08-2286.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.

      R. Michael DeLoach of R. Michael De-Loach, P.A., Brandon, for Appellant.
    Christopher V. Carlyle and Shannon MeLin Carlyle of The Carlyle Appellate Law Firm, The Villages, for Appellee.
   KELLY, Judge.

In this appeal from a final judgment, Daron Meyer challenges the order dismissing his claims for specific performance of a contract, the summary judgment dismissing his claim for equitable estoppel, and the denial of his motion for new trial. We reverse and remand for a new trial.

Victor Meyer, Daron’s father, owned and operated a tropical fish farm in Hills-borough County. According to Daron, his father expressed an interest in selling the business to him. Daron prepared a contract to buy the business and presented it to his father. He quit his job to operate the fish farm, began making monthly payments toward the purchase price, and assumed responsibility for the financial obligations of the business. In return, he expected his father to execute a quitclaim deed as required by the contract. Ultimately, Victor refused to do so.

Daron filed suit for breach of contract and specific performance. Victor moved to dismiss the claims for specific performance arguing they were barred by the statute of limitations. The trial court agreed and dismissed the specific performance counts in the initial and the amended complaints. Daron filed a third amended complaint again alleging claims for breach of contract and specific performance; however, in the specific performance counts, he alleged that Victor made “promises and misrepresentations” to induce him to forego instituting legal action. He also included a count titled “equitable estoppel” in which he alleged that he had relied on “promises and misrepresentations” to his detriment.

Victor again moved to dismiss the specific performance counts based on the statute of limitations and the claim for equitable estoppel based on the failure to state a cause of action. At the hearing on the motion to dismiss, Daron admitted that the one-year statute of limitations for specific performance had run, but he argued that the doctrine of equitable estoppel precluded his father from asserting it as a defense to the claims of specific performance. Citing the tolling statute, section 95.051, Florida Statutes (2005), the trial court dismissed those claims with prejudice because equitable estoppel was not one of the statutorily authorized grounds for tolling a limitation period. Victor then moved for summary judgment on the equitable estop-pel count arguing that it was an affirmative defense, not a cause of action. The trial court agreed and dismissed the equitable estoppel count for failure to state a cause of action.

The case proceeded to trial on Daron’s breach of contract claims. Although the jury found that Daron and Victor had a valid written contract and that Victor had breached the contract, it awarded zero damages. Daron moved for a new trial arguing that the verdict was against the manifest weight of the evidence and was inadequate as a matter of law. The trial court denied the motion, and this appeal followed.

Daron first contends the trial court erred when it rejected his equitable estoppel defense and instead looked to the tolling statute to determine whether his claims for specific performance were barred by the statute of limitations. The doctrine of equitable estoppel acts as a bar to a statute of limitations defense. Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001); see also Fla. Dep’t of Health & Rehabilitative Servs. v. S.A.P., 835 So.2d 1091, 1096 (Fla.2002) (“The pre-clusive effect of the statutes of limitation can be deflected by various legal theories, including the doctrine of equitable estop-pel.”). “Equitable estoppel presupposes a legal shortcoming in a party’s case that is directly attributable to the opposing party’s misconduct. The doctrine bars the wrongdoer from asserting that shortcoming and profiting from his or her own misconduct.” Morsani, 790 So.2d at 1077. “Equitable estoppel ... does not ‘toll’ anything. By definition ... equitable estop-pel ‘estops’ or bars a party from asserting something (e.g., a fact, a rule of law, or a defense) that he or she otherwise would be entitled to assert.” Id. Its application is “wholly independent” of the statute of limitations and its tolling provisions. See id. at 1079-80. Thus, the trial court erred when it relied on the tolling statute to determine whether Daron’s claims for specific performance were barred by the statute of limitations.

Victor nevertheless argues that we should affirm because Daron did not allege sufficient facts to raise a defense of equitable estoppel. “In some circumstances, even though a trial court’s ruling is based on improper reasoning, the ruling will .be upheld if there is any theory or principle of law in the record which would support the ruling.” Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999). We conclude that the record in this case will not permit us to affirm on this alternate basis. At the hearing on the motion to dismiss, Victor’s counsel acknowledged that the allegations in the third amended complaint were probably adequate to raise an equitable estop-pel defense. Because the adequacy of the allegations was not in issue, Daron had no opportunity to argue they were adequate or, alternatively, to proffer additional facts. If we were to review the allegations now and affirm the trial court’s dismissal, our decision would operate to deprive Daron of an opportunity to attempt to cure any alleged deficiencies. Under these circumstances we conclude that it is not appropriate to affirm on the basis suggested by Victor. See Robertson v. State, 829 So.2d 901, 908-09 (Fla.2002) (explaining that affirming based on an alternate ground that was not at issue in the trial court was improper where it operated to deprive a party of the opportunity to present evidence and argument on the matter). On remand, Victor may challenge the sufficiency of the allegations, and if the court finds they are deficient, Daron should have an opportunity to cure the deficiency.

Daron next contends that the trial court erred when it dismissed his claim for equitable estoppel. Relying in part on the same factual allegations he asserted in his claims for specific performance, Daron attempted to plead equitable estoppel as a cause of action. “In this state, equitable estoppel is a defensive doctrine rather than a cause of action.” Agency for Health Care Admin. v. MIED, Inc., 869 So.2d 13, 20 (Fla. 1st DCA 2004). “Florida has long recognized that ‘[ejquita-ble estoppel is not designed to aid a litigant in gaining something, but only in preventing a loss.’ ” Id. (quoting Kerivan v. Fogal, 156 Fla. 92, 22 So.2d 584, 586 (1945)). Because Daron’s count for equitable estoppel was a claim for affirmative relief rather than an attempt to avoid potential defenses, the trial court correctly concluded that it failed to state a cause of action.

Finally, Daron contends he is entitled to a new trial on his breach of contract claim because the jury’s zero verdict was inadequate. We agree. This court has previously noted that a zero verdict will be upheld if, based on the evidence, the jury could reasonably conclude that the plaintiff sustained no damages. Sur. Mortgage, Inc. v. Equitable Mortgage Res., Inc., 534 So.2d 780 (Fla. 2d DCA 1988). On appeal, Victor has not been able to point to evidence that would have permitted the jury to award zero damages. Instead, he points to conflicting evidence regarding the value of the property and the business. While such conflicting evidence might have permitted the jury to choose between alternative damage figures, it does not justify an award of zero damages. Where a jury awards no damages despite uncontradicted evidence establishing more than nominal damages, the award is inadequate and must be reversed. Id.

Accordingly, we reverse the final judgment on Daron’s claims for breach of contract and we remand for further proceedings consistent with this opinion. We affirm the final judgment on Victor’s counterclaim.

Reversed in part, affirmed in part, and remanded.

CASANUEVA, C.J., and WALLACE, J., Concur.

      . Daron's father had asserted a counterclaim that was also submitted to the jury. He did not prevail on the counterclaim, and he did not file a cross-appeal from the final judgment.


text:
    FLORIDIAN COMMUNITY BANK, INC., Petitioner, v. Howard BLOOM, Diane Bloom, and Ashley Barrett Bloom, Respondents.
    No. 4D09-3195.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.

      Frank C. Simone and Craig B. Sherman of Sherman Law Offices, Chartered, Fort Lauderdale, for petitioner.
    James T. Ferrara of Shraiberg, Ferrara & Landau, P.A., Boca Raton, for respondents.
   POLEN, J.

Floridian Community Bank, Inc. (FCB) filed a petition for writ of prohibition challenging the Broward Circuit Court’s subject matter jurisdiction to proceed with a pending lawsuit seeking to rescind mortgage documents and to enforce a document modifying mortgage documents. We grant the petition.

In December 2006, respondents, Howard Bloom, Diane Bloom, and Ashley Barrett Bloom, obtained loans from FCB in the sum of $750,000. As collateral, they gave FCB a first mortgage on real property located in Collier County. FCB agreed in 2007 and 2008 to modify the terms of the underlying promissory notes and mortgages to extend the maturity date, among other things.

Around January 2009, the parties considered further modifications. In March 2009, respondents and FCB executed a loan extension agreement. This agreement, along with the original mortgages, notes and subsequent modifications, are secured by the real property located in Collier County. Pursuant to the March 2009 loan extension agreement, respondents promised to pay FCB $13,752.63 as outstanding interest and attorney’s fees immediately upon execution of the agreement and to pay a $200,000 principal reduction sum by April 15, 2009. In exchange, FCB agreed to forebear from foreclosing through April 15, 2009, as long as respondents complied with the terms of the agreement.

FCB alleges that respondents did not pay the principal reduction sum. Instead, respondents filed a complaint in Broward County against FCB on April 15, 2009, alleging breach of loan extension agreement, breach of covenant of good faith and fair dealing, novation, and rescission of the loan extension agreement. In their complaint, respondents alleged that FCB refused to recognize the loan extension agreement previously negotiated, and that a new one was presented with “onerous and unilateral terms.”

Thereafter, FCB filed mortgage foreclosure actions against respondents in Collier County, the site of the real property used as security for the original mortgages, notes and modifications.

In response to respondents’ lawsuit in Broward Circuit Court, FCB filed a motion to dismiss, or in the alternative, a motion to transfer venue. FCB argued that the action failed to state a cause of action, and if anything, the claims in the complaint should be asserted as affirmative defenses to FCB’s foreclosure actions pending in Collier County. FCB argued that, in the alternative, the action should be transferred to Collier County under the local action rule. Finally, FCB argued that splitting the causes of action was contrary to Florida law.

The trial court heard FCB’s motion on July 7, 2009, and issued an order granting the motion to dismiss or transfer as to the count for novation, but denying it without prejudice as to the other counts.

Prohibition lies where a petitioner has demonstrated that a trial court lacks subject matter jurisdiction over a lawsuit. English v. McCrary, 348 So.2d 293 (Fla.1977). This case involves application of the “local action rule,” which governs subject matter jurisdiction, not venue. Hudlett v. Sanderson, 715 So.2d 1050 (Fla. 4th DCA 1998); State Dep’t. of Nat’l Res. v. Antioch Univ., 533 So.2d 869 (Fla. 1st DCA 1988).

In Ocean Bank v. State, Dept. of Fin. Serv., 902 So.2d 833 (Fla. 1st DCA 2005), Ocean Bank sought prohibition on the grounds that the Leon Circuit Court was exceeding its subject matter jurisdiction in a receivership action by presiding over matters directly related to a foreclosure action pending against real property located in Dade County. Id. at 834. The first district applied the “local action rule” under which a suit primarily seeking transfer of title to real property is considered quasi in rem and is required to be brought in the county where the land is situated. Id. at 835.

The first district also found in Ocean Bank that the claim to void a mortgage was a compulsory counterclaim in the pending mortgage foreclosure action. Id. Similarly, in the present ease, the respondents’ claims for breach of loan extension agreement, breach of covenant of good faith and fair dealing, novation and rescission of the loan extension agreement involve parties, properties, facts and circumstances, and security instruments identical to those involved in FCB’s mortgage foreclosure action. Therefore, respondents’ claims “aris[e] out of the transaction or occurrence that is the subject matter” of FCB’s claim and are compulsory counterclaims properly brought pursuant to Florida Rule of Civil Procedure 1.170(a) in connection with FCB’s action in Collier County.

For the foregoing reasons, we grant FCB’s petition for prohibition.

GROSS, C.J., and GERBER, J., concur.


author: MONACO, C.J.

text:
    Douglas Hugh BLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3413.
    District Court of Appeal of Florida, Fifth District.
    Dec. 4, 2009.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, C.J.

Douglas Hugh Blair did not appear for the second day of his trial for DUI with serious bodily injury. At the end of the first day of trial, the court instructed the jury and parties that court would reconvene the following morning at 9:30 a.m., but indicated that the attorneys were to be present at 8:45 a.m. When Mr. Blair failed to appear for trial on the following morning, the trial judge inquired regarding his absence. The court clerk indicated that she had not heard from Mr. Blair, and defense counsel said that although he called Mr. Blair’s phone, he got only a voicemail. The judge decided to proceed with trial.

Later in the morning defense counsel received an instant message from his secretary saying that Mr. Blair was in a hospital. No other details were received. The trial court decided to proceed, and denied a request to advise the jury of the message. After lunch, but before closing arguments, defense counsel said he tried to find further information regarding the hospital referred to in the instant message and tried again to reach his client by phone. He was unsuccessful in both efforts. The trial judge then stated:

All right. And this morning I told you we were going forward. I think he was officially scheduled to be back at 9:30. I told you all to get back a little bit earlier than that so you could go over jury instructions. He wasn’t here. When we started back up, it was about 10:05 when I brought the jury back in. We waited 35 minutes. And my observations of him yesterday led me to believe that he was voluntarily absenting himself, because he didn’t look happy about how the trial was progressing.
So he knew to be back. And whether you can prove anything about the hospital, that’s a whole other issue for another day. But I did tell you that we’re going forward without his presence if he wasn’t here. And we waited 35 minutes. I thought that was reasonable under the circumstances. We had witnesses ready to go.
So your objection is duly noted.

The jury found Mr. Blair guilty of the lesser included misdemeanor offense of DUI with personal injury, and the court proceeded to sentencing immediately. After the State presented information concerning Mr. Blair’s prior criminal record, the defense offered only that Mr. Blair was a member of the Fraternal Order of Eagles. The court sentenced Mr. Blair to 364 days in county jail and other associated DUI punishments.

Mr. Blair moved for a new trial contending that he was not willfully absent from trial because he was in a hospital. He attached to the motion a fax from Osceola Regional Medical Center indicating that he was a patient and was admitted on the date corresponding to the second day of trial. After the trial court denied the motion without comment and without hearing, Mr. Blair appealed.

Among a criminal defendant’s most basic constitutional rights is the right rooted in the Confrontation Clause of the Sixth Amendment to be present at every critical stage of a criminal proceeding. See Evans v. State, 909 So.2d 424 (Fla. 5th DCA 2005)(citing Jackson v. State, 767 So.2d 1156 (Fla.2000)); see also United States v. Gagnon, 470 U.S. 522, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985); Francis v. State, 413 So.2d 1175 (Fla.1982), receded from on other grounds by Muhammad v. State, 782 So.2d 343, 352 n. 4 (Fla.2001). In Florida we have set forth these critical stages in rule 3.180, Florida Rules of Criminal Procedure. Trial and sentencing procedures are, of course, among the critical stages at which a defendant is entitled to be present. Id.; see also Fla. R. Civ. P. 3.180(a)(l)-(9). It has been held, however, that this right can be waived. See Capuzzo v. State, 596 So.2d 438, 439-40 (Fla.1992). In this connection rule 3.180(c)(l)-(2), Florida Rules of Criminal Procedure, states, in pertinent part:

(c) Defendant Absenting Self.
(1) Trial. If the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of court, or is removed from the presence of the court because of his or her disruptive conduct during the trial, the trial of the cause or the return of the verdict of the jury in the case shall not thereby be postponed or delayed, but the trial, the submission of the case to the jury for verdict, and the return of the verdict thereon shall proceed in all respects as though the defendant were present in court at all times.
(2) Sentencing. If the defendant is present at the beginning of the trial and thereafter absents himself or herself as described in subdivision (1), or if the defendant enters a plea of guilty or no contest and thereafter absents himself or herself from sentencing, the sentencing may proceed in all respects as though the defendant were present at all times.

A defendant’s waiver of the right to be present may either be express or implied from the defendant’s voluntary absence. Capuzzo, 596 So.2d at 439-40. Generally, however, any error in denying a defendant his or her right to be present at a critical stage of any proceeding is fundamental error. Orta v. State, 919 So.2d 602, 604 (Fla. 3d DCA 2006) (citing Dougherty v. State, 785 So.2d 1221, 1223 (Fla. 4th DCA 2001)). The issue presented in circumstances involving purported violations of rule 3.180 is whether fundamental fairness has been thwarted which determines “whether the error is reversible.” Pomeranz v. State, 703 So.2d 465, 471 (Fla.1997); see also Johnson v. State, 750 So.2d 22, 28 (Fla.1999).

We find no fault with the trial court’s handling of the absence of the appellant from the trial. It was Mr. Blair’s burden to demonstrate that his absence from trial was involuntary, and his counsel’s unsworn representation concerning the instant message he had received would not meet that burden. See Wallen v. State, 932 So.2d 493 (Fla. 4th DCA 2006). The motion for rehearing with the attached letter from the hospital, however, at least marginally does meet the burden. We think, therefore, that Mr. Blair was at least entitled to an evidentiary hearing on his motion.

We come to this conclusion because the record, including the motion and attachment, still does not establish whether Mr. Blair’s absence from trial was voluntary or involuntary. The hospital letter concerning his admission does not indicate for what condition he was admitted, nor how long he was there. In Miller v. State, 833 So.2d 318 (Fla. 2d DCA 2003), our sister court in the Second District determined that the trial court erred when it conducted a restitution hearing in the absence of the defendant. There, the defendant’s counsel represented that the defendant was bedridden and awaiting surgery at an area hospital and the State presented nothing to contradict that assertion. Id. at 319. Because the Second District concluded that the record did not demonstrate that the defendant voluntarily absented herself from the restitution hearing, it reversed. Id.

The same problem is presented here. We do not know why Mr. Blair was admitted or for what purpose. We do not know if the condition that caused the admission was self induced or naturally occurring. It seems to us, therefore, that the fair and proper resolution of this case is to reverse the order denying the appellant’s motion for new trial, and to remand this matter to the trial court with instructions to conduct an evidentiary hearing to determine whether Mr. Blair’s absence was voluntary or involuntary. Accordingly, we do so.

REVERSED and REMANDED with instructions.

SAWAYA and PALMER, JJ., concur.


author: THOMAS, J.

text:
    Daniel CHAVEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1532.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2009.
    Rehearing Denied Jan. 11, 2010.
    Nancy A. Daniels, Public Defender, Glen P. Gifford and Maria Ines Súber, Assistant Public Defenders, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Thomas H. Duffy and Giselle D. Lylen, Assistant Attorneys General, and Trisha Meggs Pate, Tallahassee Bureau Chief, Criminal Appeals, Tallahassee, for Appellee.
   THOMAS, J.

In this appeal, Daniel Chavez, Appellant, challenges his conviction for the first-degree murder of his wife, Kathy Chavez. He asserts that the trial court committed reversible error by admitting hearsay statements regarding his threats to harm his wife if she left the marriage. We reverse and remand for a new trial.

We reverse because the evidentiary doctrine of “forfeiture by wrongdoing” has not been adopted by the legislature. Further, even if the common-law constitutional rule of forfeiture by wrongdoing is applicable, it does not allow admission of hearsay testimony sub judice, because the murder was not committed with the specific intent to prevent the victim from offering testimony. Although the forfeiture by wrongdoing doctrine is grounded in well-established principles of equity and sound public policy, we are without authority to rely on it because of the statutory exclusion of hearsay evidence in the Florida Evidence Code.

Despite the significant evidence of Appellant’s guilt in this case, we cannot find the error harmless under the standard established by the Florida Supreme Court in State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). We affirm all other issues raised by Appellant.

Facts

Seven months after them marriage, Mrs. Chavez moved out of the marital residence, leaving behind her wedding ring. Mrs. Chavez told her mother, Teresa Hernanes, that Appellant told her that if he could not have her as his wife, then nobody else could; she told a friend that Appellant told her that he was going to stab her; and three weeks before her death, she told another friend that she and Appellant had argued and Appellant said that if she left him, he would stab her to death and no one would have her. Mrs. Chavez moved in with Patsy Haley, a friend to whom she also relayed Appellant’s threat that if he could not have her as his wife, then nobody would.

On the day of her death, a Sunday, Mrs. Chavez was preparing to attend church with Haley and Haley’s mother, Frances Macarages. Around 9:30 a.m., as they were getting ready, Appellant arrived at Haley’s house. Haley told her that Appellant was at the house; appearing scared and upset, Mrs. Chavez responded that she did not want to talk to Appellant. Haley said if she went outside to talk to Appellant, Haley would call the police.

Eventually, Mrs. Chavez went outside and met Appellant in the backyard, and Haley called 911. Witnesses inside the house heard the couple conversing in Spanish. Haley found her mother watching from a window and guided her into another room to avoid the situation. As they moved away from the window, they heard Mrs. Chavez repeatedly say, “No, Daniel. No Daniel.” Haley’s uncle, Frank Herrington, passed by the back door and heard the couple; from the tone, it sounded like they were engaged in an angry argument.

Meanwhile, a deputy arrived at the home and Haley went out front to meet him. Inside the house, Macarages returned to the kitchen window and saw Appellant and his wife standing face-to-face. All of a sudden, Macarages witnessed Appellant stab himself with a knife. Both Appellant and Mrs. Chavez fell to the ground. Macarages and Herrington heard her say, “You stabbed me. You stabbed me.” Herrington ran from the kitchen into the backyard and threw a glass of water on Appellant. He then saw Appellant stab himself with a knife.

Haley and the deputy heard Mrs. Chavez scream, and they ran to the backyard where they found her laying on the edge of the porch. She yelled, “He stabbed me. He has killed me, Ms. Patsy.” The deputy ran to move Appellant away from his wife. Mrs. Chavez was covered in blood, and an open, bloody pocketknife was lying in the grass.

Mrs. Chavez did not survive the two stab wounds to her chest. Both stab wounds entered her chest, penetrating skin, fat, muscle, and the pericardium, the sack around the heart. One blow penetrated a rib, and either or both wounds penetrated her heart. The path of the blade was from front to back, progressing downward. According to the autopsy report, the wounds were inconsistent with an accidental cutting because they were both “going toward the heart and one is going through bone.... ” Thus, the death was ruled a homicide.

By contrast, Appellant’s self-inflicted stab wounds were not life threatening.

At trial, Appellant claimed that he did not intentionally Ml his wife; rather, he only intended to kill himself that day. Appellant testified that his only intent in going to Haley’s house was to see his wife because he missed her. He carried a knife because he always carried a pocketknife on his person. Appellant testified that during their conversation, he took out his pocketknife and threatened to commit suicide, and she pulled on his arm as he prepared to stab himself. Appellant testified that he tried to push her away, but ended up hitting her twice with the open knife.

Analysis

Standard of Revieiv

“The trial court’s ruling on the admissibility of evidence will not be reversed absent an abuse of discretion.” Almond v. State, 1 So.3d 1274, 1276 (Fla. 1st DCA 2009) (citing McCray v. State, 919 So.2d 647, 649 (Fla. 1st DCA 2006)). However, a court’s discretion is limited by the evidence code and applicable case law, and a court’s interpretation of these authorities is reviewed de 'll,ovo. Id. Here, the trial court specifically admitted hearsay evidence of Appellant’s threats to harm his wife based on the legal doctrine of forfeiture by wrongdoing. Thus, our review here is de novo, contrary to the views expressed by both parties.

The Evidentiary Doctrine of Forfeiture By Wrongdoing

The hearsay statements at issue occurred during the testimony of several witnesses and related to Appellant’s purported threats. The trial court admitted these double hearsay statements on the grounds that, although the alleged threats were not admissible under the state of mind exception, they were admissible under the common-law hearsay exception of forfeiture by wrongdoing.

Following a pretrial evidentiary hearing, the trial court found that the State had carried its burden by a preponderance of the evidence to establish that Appellant’s conduct resulted in Mrs. Chavez’s absence. Thus, the trial court ruled that the equitable common-law exception of forfeiture by wrongdoing applied to allow admission of the hearsay threats. Accordingly, the trial court found that the statements were admissible, because Appellant had forfeited both his confrontation and hearsay rights ■with respect to the victim’s statements about his alleged threats.

We hold that the trial court’s ruling was in error as a matter of law, because the common-law hearsay exception of forfeiture by wrongdoing is not authorized under Florida’s Evidence Code, unlike numerous other states’ evidence codes. See e.g. Cal. Evid.Code § 1350; Del. R. Evid. 804(b)(6); Haw. R. Evid. 804(b)(7); Ky. R. Evid. 804(b)(5); Md. R. 5-804(b)(5); Md. Code Ann., Cts. & Jud. Proc. § 10-901; Mich. R. Evid. 804(b)(6); N.D.R. Evid. 804(b)(6); Ohio R. Evid. 804(B)(6); Or. Rev.Stat. Ann. § 40.465(3)(f); Pa. R. Evid. 804(b)(6); Tenn. R. Evid. 804(b)(6); Vt. R. Evid. 804(b)(6). Furthermore, Florida’s Evidence Code states in clear terms, “Except as provided by statute, hearsay evidence is inadmissible.” § 90.802, Fla. Stat.

The legislature has declared that such hearsay is not admissible, precluding any contrary view we may have. Although section 90.102 states that common law that does not conflict with the Code is still applicable in Florida, section 90.802 prohibits courts from admitting hearsay “except as provided by statute.” Where two statutory provisions conflict, the specific provision controls the general provision. Murray v. Mariner Health, 994 So.2d 1051, 1061 (Fla.2008). The Florida Evidence Code has expressly established that to be admissible, hearsay evidence must fall under a statutory exception, and the ádmission of hearsay evidence under the common-law doctrine of forfeiture by wrongdoing contradicts this express directive.

Unlike in Florida, the doctrine of forfeiture by wrongdoing was codified in the federal courts as a hearsay exception in 1997. Federal Rule of Evidence 804(b)(6) makes admissible “[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” (emphasis added). The only relevant provision in Florida’s Evidence Code states in section 90.804(1), Florida Statutes, that a declar-ant is not unavailable for purposes of the unavailable witness hearsay exception, when the declarant’s unavailability is “due to the procurement or wrongdoing of the party who is the proponent of his or her statement in preventing the witness from attending or testifying.” (emphasis added). Thus, the legislature precluded a hearsay exception where the proponent’s wrongdoing produced the witness’s absence; by contrast, the legislature has not provided a hearsay exception based on such wrongdoing.

The State argues that the doctrine of forfeiture by wrongdoing is applicable in Florida as a common-law hearsay exception under section 90.102, Florida Statutes, which provides that the Florida Evidence Code replaces or supersedes only conflicting statutory or common law. We reject this argument.

Even if section 90.802 did not prohibit application of the doctrine of forfeiture by wrongdoing as a hearsay exception, that common-law doctrine would not give us authority to affirm the admission of the hearsay threats. There is no evidence that Appellant killed his wife with the intent to make her unavailable as a witness. Despite this fact, the State urges this court to adopt a broad view of the doctrine of forfeiture by wrongdoing, and points to the United States Supreme Court case of Giles v. California, — U.S. -, -, 128 S.Ct. 2678, 2687, 171 L.Ed.2d 488 (2008), as support for its argument that the common-law doctrine applies, even without evidence of Appellant’s specific intent to make his wife unavailable as a witness.

The Supreme Court’s decision in Giles provides a comprehensive overview of forfeiture by wrongdoing, although' it is not directly on point, because it addresses the doctrine’s application in the context of the Confrontation Clause rather than hearsay. Id. at 2681. The statements at issue in Giles were treated as testimonial statements subject to the Sixth Amendment. Id. at 2682. The Supreme Court held that an unavailable witness’s out-of-court testimonial statements were not admissible under the doctrine of forfeiture by wrongdoing unless the defendant specifically intended to prevent that witness from testifying. Id. at 2683-84, 2686-87, 2693. In light of Giles, the State argues that a broader version of the doctrine applies here to permit admissibility of the hearsay statements because they are non-testimonial, and thus not subject to the requirement that the defendant intended to prevent the declarant from testifying.

Even though there is a distinction between testimonial statements subject to the Sixth Amendment and non-testimonial statements subject to the evidentiary rules involving hearsay, a close reading of Giles indicates that the common-law doctrine of forfeiture by wrongdoing would apply similarly to non-testimonial statements. Specifically, in Giles, the Supreme Court examined the roots and application of the common law doctrine, noting, “[t]he terms used to define the scope of the forfeiture rule suggest that the exception applied only when the defendant engaged in conduct designed to prevent the witness from testifying,” and

[t]he manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying. In cases where the evidence suggested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifying — as in the typical murder case involving ac-cusatorial statements by the victim — the testimony was excluded unless it was confronted or fell within the dying-declaration exception.

Id. at 2683, 2684 (emphasis in original).

Accordingly, even if the common-law exception of forfeiture by wrongdoing was applicable in Florida as a hearsay exception, it would not apply in the present case where there was no evidence presented that Appellant acted with the intent to prevent his wife from testifying.

In light of the statutory exclusion of such testimony, we must decline to create a broad rule allowing the admission of such testimony. We note that our view is consistent with the view of other jurisdictions that the doctrine requires the State prove the specific intent of preventing the witness from testifying, as recognized in the Confrontation Clause context in Giles. 128 S.Ct. at 2688 n. 2 (“Only a single state evidentiary code appears to contain a forfeiture rule broader than our holding in this case ... allow[s].”); see also Cal. Evid.Code § 1350(a)(1); Mich. R. Evid. 804(b)(6); People v. Stechly, 225 Ill.2d 246, 312 Ill.Dec. 268, 870 N.E.2d 333, 349-50 (2007) (requiring specific intent to forfeit Confrontation Clause objection); People v. Geraci, 85 N.Y.2d 359, 625 N.Y.S.2d 469, 649 N.E.2d 817, 822-23 (1995) (same); State v. Hand, 107 Ohio St.3d 378, 840 N.E.2d 151, 170-72 (2006) (discussing that the forfeiture exception to hearsay rule requires some motive to prevent witness from testifying); see generally Timothy M. Moore, Forfeiture by Wrongdoing: A Survey and Argument for its Place in Florida, 9 Fla. Coastal L.Rev. 525, 539-41 n. 84 (2008).

We acknowledge that there are jurisdictions that recognize a broader view of this doctrine. See Roberts v. State, 894 N.E.2d 1018 (Ind.App.2008) (holding that “a party, who has rendered a witness unavailable for cross-examination through a criminal act, including homicide, may not object to the introduction of hearsay statements by the witness as being inadmissible”); State v. Mason, 160 Wash.2d 910, 162 P.3d 396 (2007) (holding that equity compelled the adoption of the doctrine of forfeiture by wrongdoing when the defendant was unable to confront a witness who was unavailable due to defendant’s own action); State v. Jensen, 299 Wis.2d 267, 727 N.W.2d 518 (2007); People v. Bauder, 269 Mich.App. 174, 712 N.W.2d 506 (2006). We must decline the invitation to adopt that view, however, because we find no historical or common-law grounding for such a view. In addition, we do not have the authority to make that decision.

We note that if a broader -view of the forfeiture by wrongdoing doctrine was accepted by this court, we would be required to craft procedures to ensure the reliability of such statements, as well as a procedure to make a factual determination that the defendant had engaged in the wrongdoing. Thus, we defer to the legislature and the Florida Supreme Court, which possess the requisite power to amend substantive and procedural law. See, e.g., State v. Byrd, 198 N.J. 319, 967 A.2d 285, 301-03 (2009) (referring a proposed rule creating a forfeiture by wrongdoing hearsay exception to the New Jersey Legislature).

Other Grounds for Admission of the Threats

The State further argues that the double-hearsay statements are also admissible under the state of mind exception found in section 90.803(3), Florida Statutes. We agree with the trial court’s ruling that the statements do not fall under this exception. Appellant noted at trial that he would not have testified but for the admission of the hearsay statements. Thus, the victim’s statements were not relevant to demonstrate her state of mind during the State’s case-in-chief. See Stoll v. State, 762 So.2d 870, 875 (Fla.2000).

Harmless Error Analysis

Because the trial court erred in admitting the hearsay statements, its ruling is subject to an analysis for harmless error. The pertinent question in a harmless error analysis is not the sufficiency or quality of the remaining, properly admitted evidence; rather, it is “whether there is a reasonable possibility that the error affected the verdict.” DiGuilio, 491 So.2d at 1139.

In the present case, admission of the hearsay threats cannot be deemed harmless. The key issue at trial was whether Appellant had the requisite premeditation for first-degree murder. In light of the strong, prejudicial nature of the hearsay statements, we cannot say that them admission did not reasonably affect the jury’s guilty verdict for first-degree murder. Despite the significant evidence of guilt, the trial court’s error in admitting the statements was not harmless under the controlling precedent of DiGui-lio. Accordingly, we reverse Appellant’s conviction for first-degree murder and remand for a new trial.

AFFIRMED in part, REVERSED in part, and REMANDED.

WEBSTER and LEWIS, JJ., concur.


author: WALLACE, Judge.

text:
    L. Julio REINSTEIN, M.D., and Bay Pediatric Gastroenterology, Hepatology & Nutrition, P.L., Appellants, v. PEDIATRIC GASTROENTEROLOGY, HEPATOLOGY AND NUTRITION OF FLORIDA, P.A., and Daniel T. McClenathan, M.D., Appellees.
    No. 2D08-4813.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2009.

      Henry A. Stein and Honor B. Rodgers of The Stein Law Group, P.A., St. Peters-burg, for Appellants.
    Michael J. Keane, Brandon S. Vesely, and Charles W. Gercles of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg, for Appellees.
   WALLACE, Judge.

This appeal arises from two separate orders granting partial summary judgments in litigation between two physicians and their respective practice entities. The focus of the litigation was the enforcement of a covenant not to compete. Daniel T. MeClenathan, M.D., and Pediatric Gas-troenterology, Hepatology and Nutrition of Florida, P.A., sought to enforce a covenant not to compete against L. Julio Reinstein, M.D., and Bay Pediatric Gastroenterology, Hepatology & Nutrition, P.L. Because Dr. Reinstein was entitled to a declaratory judgment concerning the enforceability of the covenant against Dr. MeClenathan, the circuit court erred in entering a partial summary judgment that dismissed Dr. MeClenathan as a party to the litigation. Thus we reverse that partial summary judgment. We affirm without discussion the second partial summary judgment.

I. THE FACTS

Before 1997, Daniel T. MeClenathan, M.D., was the sole shareholder of the medical practice that became known as Pediatric Gastroenterology, Hepatology and Nutrition of Florida, P.A. (the P.A.). Dr. MeClenathan is a specialist in pediatric gastroenterology. The P.A. operates in Pinellas County and in Hillsborough County. In 1997, L. Julio Reinstein, M.D., who also specializes in pediatric gastroenterolo-gy, purchased a 49.8% interest in the P.A. After the sale of stock to Dr. Reinstein, Dr. MeClenathan owned a 50.2% interest in the P.A.

Dr. MeClenathan, Dr. Reinstein, and the P.A. executed various documents to memorialize the new practice arrangement. Three of these documents are pertinent to this appeal: (1) an Operating Agreement; (2) a Stock Transfer Restrictions and BuyOut Agreement (the Buy-Out Agreement); and (3) a Professional Services Employment Agreement (the Employment Agreement). The Operating Agreement was executed by both physicians and the P.A. The Buy-Out Agreement was executed by the P.A. and its two shareholders, Dr. MeClenathan and Dr. Reinstein. The Employment Agreement was between the P.A. and Dr. Reinstein.

Of particular importance to this case are the noncompete covenants contained in two of the agreements. The Buy-Out Agreement contains a section titled “Shareholder Non-Competition Covenants.” This section provides — in pertinent part — that while employed by the P.A., and for a period of two years following the sale or redemption of a shareholder’s shares, the shareholder shall not compete with the P.A. within Pinellas County, Florida. This section also contains a provision giving “the [P.A.] or any Shareholder ... the right to seek monetary damages ... and equitable relief’ in the event of a breach of the covenants. A separate section on remedies in the Buy-Out Agreement provides “that in the event of any actual or threatened default in or breach of any of the provisions in this Agreement the party or parties who are aggrieved thereby shall have the right to ... appropriate relief,” including specific performance, an injunction, and damages. (Emphasis added.)

The Employment Agreement contains the second covenant not to compete. The pertinent section is titled “Covenants Against Competition.” The noncompete provisions in the Employment Agreement are similar to the ones in the Buy-Out Agreement in that they restrict competition within Pinellas County for two years following the separation of the employed physician from the practice. A significant difference between the two covenants is that the one contained in the Employment Agreement provides only that the “Practice,” i.e., the P.A., shall have the right to seek damages and equitable relief in the event of a breach, while the covenant in the Buy-Out Agreement grants enforcement rights to the P.A. or any shareholder.

In March 2005, Dr. Reinstein filed an action against Dr. McClenathan and the P.A. seeking a declaratory judgment that the two noncompete covenants were not enforceable. Dr. Reinstein’s employment with the P.A. was subsequently terminated, and he opened a new medical practice in Pinellas County. Dr. Reinstein’s new practice was organized as Bay Pediatric Gastroenterology, Hepatology & Nutrition, P.L. (the P.L.).

II. THE PROCEEDINGS IN THE CIRCUIT COURT

In his complaint, Dr. Reinstein alleged that Dr. McClenathan and the P.A. had breached the pertinent agreements, particularly the Operating Agreement and the Employment Agreement. The complaint sought damages for the alleged breaches of the agreements. In addition, the complaint requested a declaration that (1) the P.A. and Dr. McClenathan had breached the agreements; (2) the P.A. and Dr. McClenathan had unclean hands and were estopped to enforce the noncompete covenant by reason of their material breaches of the agreements; (3) the P.A. and Dr. McClenathan were estopped to enforce the noncompete covenant in the Employment Agreement because “they [did not] have a legitimate business interest to treat ALL [of] the pediatric patients [in] Pinellas CountyU Dr. Reinstein [being] the only other board[-]certified pediatric gastroen-terologist practicing in [the] county”; and (4) the noncompete covenant, if enforced, “would harm the public health, safety and welfare” and was against public policy because it deprived the children of Pinellas County of one of the only two board-certified pediatric gastroenterologists in the county.

The P.A. filed a separate action seeking injunctive relief and damages against Dr. Reinstein and the P.L. for their alleged violations of the'covenants not to compete. Dr. Reinstein and the P.L. responded by filing an answer and affirmative defenses, a counterclaim, and a third-party complaint against Dr. McClenathan.

Subsequently, the P.A. and Dr. McClen-athan moved to enforce the arbitration provisions contained in the agreements. The circuit court referred Dr. Reinstein’s claims for damages to arbitration and retained the claims relating to the enforceability of the covenants not to compete. The parties eventually went to arbitration, and all of Dr. Reinstein’s claims for damages against Dr. McClenathan and the P.A. were resolved. As a result, the remaining issues in the case pertained to the covenants not to compete.

After the completion of the arbitration, the P.A. moved to consolidate the two pending actions and to realign the parties. The circuit court granted this motion and realigned the parties, designating the P.A. as the Plaintiff, because it was the party seeking to enforce the noncompetition agreement, and designating Dr. Reinstein and the P.L. as the Defendants, because they were the parties seeking to avoid the noncompetition agreements.

Dr. McClenathan also moved for partial summary judgment, seeking to be dismissed from the litigation. In support of his motion, Dr. McClenathan asserted that he “is not the party seeking enforcement of the non-competition agreement and, consequently, should not be named individually in these proceedings by Dr. Rein-stein.” Despite the provisions of the BuyOut Agreement, Dr. McClenathan claimed that “the [pertinent] documents vest no right in him to bring this action on the non-competition agreement against Dr. Reinstein.” Dr. McClenathan concluded that “he should be dropped from [the litigation because he had been] improvidently sued.”

III. THE CIRCUIT COURT’S ORDER

After a hearing, the circuit court entered an order dismissing Dr. McClena-than as a party to the litigation. In its order, the circuit court noted: “Although Dr. McClenathan is a party to the [BuyOut Agreement], he is not seeking to enforce the terms of that agreement in this action. Instead, the action to enforce the agreement has been brought by [t]he P.A.” The circuit court ruled that because Dr. Reinstein was not seeking a money judgment against Dr. McClenathan and because the P.A. was the only party seeking enforcement of the noncompetition covenants, Dr. McClenathan would be dismissed as a party to the litigation. The circuit court also noted that “Dr. Reinstein may preserve his arguments that Dr. McClenathan individually may have done something improper as a defense to the P.A.’s enforcement action.”

IV. DISCUSSION

On appeal, Dr. Reinstein challenges the circuit court’s order granting partial summary judgment and dismissing Dr. McClenathan as a party to the litigation. Dr. Reinstein’s primary argument concerning the order dismissing Dr. McClenathan as a party is that the Buy-Out Agreement grants Dr. McClenathan the right to seek enforcement of the covenants not to compete. Accordingly, Dr. Reinstein asserts that he is entitled to obtain a declaratory judgment regarding the enforceability of the covenants not to compete that will be binding on both the P.A. and Dr. McClena-than.

In response, Dr. McClenathan contends that he has no adverse or antagonistic interest in the litigation “because he was precluded, by the plain language of the two ... agreements at issue, from enforcing the non-compete covenants as a ‘Shareholder’ once the P.A. elected to do so.” Dr. McClenathan’s argument focuses on the use of the conjunction “or” in the section of the Buy-Out Agreement allowing “the [P.A.] or any Shareholder” to seek damages and equitable relief in the event of a breach of the covenant. In support of his argument, Dr. McClenathan asserts that the word “or” as used in the quoted phrase must be read in the disjunctive, with the result that if the P.A. brings an action to enforce the covenant, the shareholder may not. Based on this close reading of the Buy-Out Agreement, Dr. McClenathan concludes that he is precluded from bringing an action to enforce the covenant not to compete because the P.A. has already brought an action to enforce its rights. Accordingly, he argues, the circuit court properly dismissed him as a party to the litigation. We disagree.

The use of a word in the disjunctive means only that alternative means are expressed. See Ellinwood v. Bd. of Architecture & Interior Design, 835 So.2d 1269, 1270 (Fla. 1st DCA 2003); D.M. v. State, 712 So.2d 1204, 1204 (Fla. 5th DCA 1998) (“The word ‘or’ is generally construed in the disjunctive when used in a statute or rule, and normally means that alternatives were intended.”). But the expression of two alternatives does not require the conclusion that the use of one excludes the use of the other. See Rodriguez v. State, 694 So.2d 96, 97 (Fla. 3d DCA 1997) (“ ‘If a statute makes it punishable to do a particular thing specified, “or” another thing, “or” another, one commits the offense who does any one of the things, or any two, or more, or all of them.’ ” (quoting Edwards v. State, 62 Fla. 40, 56 So. 401, 403 (1911))).

In this case, the use of the word “or” does not describe an action, as is the case with the statutory construction cases cited above and discussed in the parties’ briefs; instead, it joins together two parties — a Shareholder and the P.A. The use of the word “or” grants each of these parties the right to seek an injunction or other relief against contractually proscribed competition by another Shareholder. In this context, we conclude that the right of one of these parties to act may not be precluded simply because the other party has acted first.

We find additional support for our conclusion in the section on remedies in the Buy-Out Agreement that grants the right to seek relief for a breach of the agreement to “the party or parties who are aggrieved thereby.” The reference to enforcement by multiple parties is inconsistent with the idea that the filing of an enforcement action by one party precludes another from doing so.

The circuit court’s order dismissing Dr. McClenathan as a party could also lead to difficulties in the conduct of the litigation between these parties. Dr. McClenathan’s argument that the initiation of enforcement action by one of the parties precludes enforcement action by the other is based on the unarticulated assumption that the P.A. will pursue its enforcement action to judgment and that the resulting judgment will be binding on Dr. McClenathan. We may assume for the purpose of discussion that Dr. McClenathan’s interpretation of the Buy-Out Agreement’s covenant not to compete is correct. Nevertheless, barring the entry of a summary judgment against it, the P.A. might dismiss its enforcement action at any time before submission of this nonjury case to the circuit court for decision. See Fla. R. Civ. P. 1.420(a)(1). In that event, Dr. Reinstein and the P.L. would still be at risk of the filing of a new enforcement action by Dr. McClenathan. Dr. McClenathan’s argument in support of his dismissal from the litigation ignores the practical considerations requiring that Dr. Reinstein obtain a declaratory judgment concerning the enforceability of the covenants not to compete that will be binding on both of his potential adversaries.

Under the Buy-Out Agreement, Dr. McClenathan had the right to seek enforcement of the covenant not to compete against Dr. Reinstein and persons or entities acting in concert with him. It follows that Dr. Reinstein and the P.L. had the right to obtain a declaration of the enforceability of the covenant not to compete that would be binding on Dr. McClenathan as well as on the P.A. Dr. McClenathan could not prevent Dr. Reinstein and the P.L. from obtaining a declaratory judgment that would be binding on him by arranging for only the P.A. to seek enforcement of the covenant not to compete. “[Bjefore any proceeding for declaratory relief is entertained all persons who have an ‘actual, present, adverse, and antagonistic interest in the subject matter’ should be before the court.” Fla. Dep’t of Educ. v. Glasser, 622 So.2d 944, 948 (Fla.1993) (quoting May v. Holley, 59 So.2d 636, 639 (Fla.1952)); see also § 86.091, Fla. Stat. (2004) (“When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceedings.”). Because Dr. McClenathan has an “actual, present, adverse, and antagonistic interest in the subject matter” of the litigation, Dr. Reinstein and the P.L. had the right to obtain declaratory relief that would be binding on Dr. McClenathan.

V. CONCLUSION

The circuit court erred in dismissing Dr. McClenathan from the litigation. Accordingly, we reverse the order granting Dr. McClenathan’s motion for partial summary judgment and dismissing him from the case. We affirm the remaining partial summary judgment under appeal.

Affirmed in part; reversed in part.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . Both the P.A. and the circuit court referred to this process as the "reordering” of the parties instead of as realignment.

      . A summary judgment dismissing a party defendant from an action is reviewable as a final summary judgment. See Seijo v. Futura Realty, Inc., 269 So.2d 738, 740 (Fla. 3d DCA 1972).


author: PER CURIAM.

text:
    Marvin DOUZE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1816.
    District Court of Appeal of Florida, Fourth District.
    Dec. 16, 2009.

      Marvin Douze, Lauderhill, pro se.
    No appearance required for appellee.
   PER CURIAM.

On December 19, 2003, appellant, Marvin Douze, was sentenced in case number 03-2178CF to seven years in prison with credit for 277 days time served. The sentence was to run concurrently with four other sentences imposed in case numbers 02-6753CF, 02-3374CF, 03-11286CF, and 02-1335CF. The sentences imposed in all the cases except 02-3374CF were entered upon negotiated nolo contendere pleas.

When appellant arrived at prison, he was given a prison interview sheet that indicated ninety-four days for jail credit. His maximum release date was calculated to be March 15, 2010. On April 7, 2006, appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), alleging that he received only ninety-four days of jail credit when he was entitled to 573 days for the time he spent in the Broward County Jail prior to sentencing. In its order denying the motion, the trial court stated that appellant previously presented the same argument in a motion for clarification of sentence. In the order on the motion to clarify, the trial court calculated the amount of credit for time served in each of appellant’s cases. They were: 02-3374CF — 574 days; 02-1335CF — 572 days; 02-6753CF — 218 days; 03-11286— ninety-six days; and 03-2178CF — 163 days. Appellant appealed from the denial of his 3.800(a) motion and this court affirmed per curiam. Douze v. State, 956 So.2d 1197 (Fla. 4th DCA 2007). Based upon the number of days calculated in the order, the Department of Corrections recalculated appellant’s maximum release date to July 7, 2010, which is 114 days later than the previously calculated maximum release date.

On March 31, 2009, appellant filed his second 3.800(a) motion to correct illegal sentence. He asserted that when he was initially sentenced, he was given 277 days credit for time served in case number 03-2178CF. When the trial court clarified the sentences, it reduced the number of days by 114 to 163 days credit for time served and, according to appellant, this was an illegal sentence. The trial court denied appellant’s motion referring to its previous order, which it stated addressed the same issue of credit for time served and which this court affirmed on appeal. Appellant then filed this appeal.

Initially, we address the trial court’s finding that it previously addressed the same issue of credit for time served, which this court affirmed. The “law of the case applies only to proceedings within the same case” and “bars consideration only of those legal issues that were actually considered and decided in a former appeal.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 107 (Fla.2001). In appellant’s first 3.800(a) motion, he addressed the issue of whether he was entitled to more than ninety-four days credit, which the DOC determined at his prison interview. He now argues that the trial court erred in reducing his credit for time served only in case number 03-2178GF. This was not the same issue considered in the prior appeal.

Florida Rule of Criminal Procedure 3.800(a) allows a court at any time to “correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served.” Citing King v. State, 913 So.2d 758 (Fla. 2d DCA 2005), appellant argues that the trial court violated the prohibition against double jeopardy when it reduced his credit for time served.

In King, the defendant’s credits for time served in two separate cases were reduced upon the state’s rule 3.800(a) motion to correct sentence, filed one year after he was sentenced. The defendant appealed, arguing that the reduction of the credits for time served was a violation of his double jeopardy protection. For purposes of the appeal, the Second District assumed that the original jail time credit was erroneous and the defendant was not entitled to the amount he was awarded. The court held that a trial court

has no authority to rescind a defendant’s jail credits after the sixty-day period for modifying a sentence provided in Florida Rule of Criminal Procedure 3.800(c), even when the jail credits were improperly awarded. The award of improper jail credits does not make the defendant’s sentence illegal and therefore subject to modification at any time.... Moreover, any attempt to rescind jail credits already awarded constitutes an enhancement of the defendant’s sentence that violates the prohibition against double jeopardy.

Id. at 760 (quoting Bailey v. State, 777 So.2d 995, 996 (Fla. 2d DCA 2000)); see also Stang v. State, 24 So.3d 566 (Fla. 2d DCA 2009); Wheeler v. State, 880 So.2d 1260 (Fla. 1st DCA 2004); Lebron v. State, 870 So.2d 165 (Fla. 2d DCA 2004); Platt v. State, 827 So.2d 1064 (Fla. 2d DCA 2002).

We, therefore, reverse and remand for correction of appellant’s credit for time served in case number 03-2178CF from 163 days back to 277 days.

Reversed, and Remanded.

HAZOURI, DAMOORGIAN and CIKLIN, JJ., concur.

      . Appellant's reliance on the DOC's statement of ninety-four days jail credit is mistaken because the actual maximum release date was based upon the actual credits given for time served at the time of sentencing. Because the original credit of 277 days was reduced by 114 days and appellant's maximum release date was extended by 114 days, the DOC did base its calculations on the credits given by the trial court at sentencing. The sentence in case number 03-2178CF ended up being the longest sentence of the five sentences, which was then made longer by the change in days credited. This is the basis of appellant's appeal herein.

      . In Gallinat v. State, 941 So.2d 1237 (Fla. 5th DCA 2006), the Fifth District held that a later correction to the time served calculation, even after sixty days, does not increase a defendant's sentence for double jeopardy purposes, which conflicts with the First and Second Districts' decisions. However, in Gallinat, the Fifth District recognized two exceptions to its rule. Appellant's circumstances fall into the exception
      in which the state and a defendant negotiate an overall sentence structure that includes a stipulated amount of time served. In these cases, the number of days credit to be given are part of the bargained-for sentence. If the trial court exercises its discretion to accept the plea and impose the agreed sentence, the court should not be allowed to later lower the agreed upon jail credit figure.

        Id. at 1240. Appellant entered a negotiated plea in case number 03-2178CF.