text:
    Jason WEEKS, Appellant, v. TOWN OF PALM BEACH, A Municipality of the State of Florida; Peter B. Elwell, Town Manager and in his Individual Capacity; Kirk Blouin, Director of Public Safety and in his Individual Capacity; Darrel Donatto, Deputy Fire Chief and in his Individual Capacity; Danielle Olson, Director of Human Resources and in her Individual Capacity; Dan Szarszewski, Deputy Police Chief and in his Individual Capacity; Brodie Atwater, Assistant Fire Chief and in his Individual Capacity; Margaret Cooper, in her Individual Capacity; John Cuomo, in His Individual Capacity; Richard Ward, in His Individual Capacity; Mark Bradshaw, in his Individual Capacity; Danny Dunnam, in his Individual Capacity; James Duane, in his Individual Capacity; Peter Codispoti, in his Individual Capacity; and Brian Fuller, in his Individual Capacity, Appellees.
    No. 4D17-1061
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Jonathan O'Boyle of The O'Boyle Law Firm, Deerfield Beach, for appellant.
    Robert W. Wilkins of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellees.
   Fahnestock, Fabienne E., Associate Judge.

Jason Weeks, the Appellant, filed an amended complaint for fraud, conspiracy to defame, negligent supervision, negligent interference with a prospective advantageous business relationship, prevention of due process, and injunctive relief against the Town of Palm Beach ("the Town") and several individual defendants, personally and in their official capacities (collectively, "the Appellees"). The complaint was based upon an alleged series of events that caused his demotion within, and eventual termination from, the Town's Fire and Rescue Department. Upon motion, the trial court granted summary judgment in favor of the Appellees. Weeks appealed the judgment, and he raises five issues on appeal, but only two merit discussion. We affirm the trial court's decision as to each issue.

In his complaint, Weeks claimed that while employed by the Town's Fire and Rescue Department, and with full support of his command staff, he created a website that offered public facts and opinions about the Town's proposed changes to the department's pension plan. Thereafter, the Town fired Weeks' superior, Chief William Amador, for his role in the site's creation and his alleged untruthfulness regarding such role. Weeks claimed that after he met with the allegedly displeased Appellees, the Appellees planned a scheme to gather false and defamatory statements and fabricate documents and records with malicious intent towards him. He asserted that the plan brought about several investigations throughout 2011 and 2012, which resulted in his demotion and ultimate termination.

On December 9, 2015, Weeks filed his initial complaint against the Appellees. In it, he alleged that the action was "for defamation, negligent supervision, tortious interference with a prospective advantageous business relationship, and civil conspiracy ...." Five months later, he filed his first amended complaint in which he alleged that the action was "for defamation, conspiracy to defame, tortious interference with a prospective business relationship, and intentional infliction of emotional distress ...."

After a hearing where the trial court considered the defense of absolute immunity, Weeks filed a second amended complaint. In it, Weeks stated that the action was "for Common Law Fraud, Conspiracy to Defame, Negligent Supervision, Negligent Interference with a Prospective Advantageous Business Relationship, Prevention of Due Process and Intentional Infliction of Emotional Distress ...." The complaint's general allegations and facts closely mirrored those of the first amended complaint. Within the second amended complaint, Weeks discussed allegedly false, malicious, critical, disparaging, inaccurate, misleading, wrongful, and fraudulent statements and accusations that were allegedly damaging to his personal and professional reputation.

After Weeks filed his second amended complaint, the Appellees filed joint motions to dismiss and for summary judgment. After a hearing on the motions, the trial court found, among other things, that the Appellees were acting within "the scope of their duties as set forth in codified rules and under direction of their superiors." It concluded that the statements made by the individual defendants were "protected by an absolute privilege." Consequently, the trial court granted the motion for summary judgment, and within the order granting the motion, the court specifically noted that the order rendered the motion to dismiss moot.

Standard of Review

This court reviews summary judgment orders de novo . See Weinstein Design Grp., Inc. v. Fielder , 884 So.2d 990, 997 (Fla. 4th DCA 2004). " 'When reviewing a ruling on summary judgment, an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party.' " Id. (quoting City of Lauderhill v. Rhames , 864 So.2d 432, 434 n.1 (Fla. 4th DCA 2003) ).

Defamation

"The question of whether allegedly defamatory statements are absolutely privileged is one of law to be decided by the court, Resha v. Tucker , 670 So.2d 56, 59 (Fla. 1996), and consequently is ripe for determination on motion for summary judgment." Stephens v. Geoghegan , 702 So.2d 517, 522 (Fla. 2d DCA 1997). Public officials are absolutely immune from claims for defamation where their allegedly defamatory statements are made within the scope of their duties. See Bates v. St. Lucie Cty. Sheriff's Office , 31 So.3d 210, 213 (Fla. 4th DCA 2010). Further:

"The public interest requires that statements made by officials of all branches of government in connection with their official duties be absolutely privileged." The court recognized that democracy needs "free and open explanations" of governmental actions and the right to this absolute privilege is a function of that necessity. This absolute privilege extends to a sheriff for comments made in the course of the sheriff's duties.
Crowder v. Barbati , 987 So.2d 166, 167 (Fla. 4th DCA 2008) (quoting Hauser v. Urchisin , 231 So.2d 6, 8 (Fla. 1970) ).

Id. ; see also Blake v. City of Port Saint Lucie , 73 So.3d 905, 906 (Fla. 4th DCA 2011) ("Nothing in the emphasized language suggests that the legislature intended to abrogate or limit the absolute immunity which the common law provides to public officials who make statements within the scope of their duties.").

The Florida Supreme Court has stated:

"It seems to be well settled in this State that words spoken or written by public servants in judicial and legislative activities are protected by absolute privilege from liability for defamation. However false or malicious or badly motivated the accusation may be, no action will lie therefor in this State. Nor is it questioned that such absolute immunity in this State extends to county and municipal officials in legislative or quasi-legislative activities as well as to members of the State Legislature and activities connected with State legislation."

Hauser , 231 So.2d at 8 (quoting McNayr v. Kelly , 184 So.2d 428, 430 (Fla. 1966) );

accord Cassell v. India , 964 So.2d 190, 193 (Fla. 4th DCA 2007).

"[T]he controlling factor in deciding whether a public employee is absolutely immune from actions for defamation is whether the communication was within the scope of the officer's duties." City of Miami v. Wardlow , 403 So.2d 414, 416 (Fla. 1981) ; accord Forman v. Murphy , 501 So.2d 640, 641 (Fla. 4th DCA 1986). "[T]he Florida Supreme Court has decided that the scope of an official's duties extends beyond enumerated, required tasks, and includes discretionary duties that are associated with a given position." Stephens , 702 So.2d at 523.

In this case, the trial court correctly found that the Appellees were absolutely immune from defamation claims due to their status as public officials. See Bates , 31 So.3d at 213. Weeks' initial complaint and first amended complaint included claims for defamation. After the trial court considered the defense of absolute immunity, Weeks filed a second amended complaint, and instead of including a claim for defamation, asserted a claim for common law fraud. The terminology used in each of the three complaints regarding statements made in the various investigations indicates that the re-labeling of the defamation claim was simply a poisoned apple.

Based upon the facts presented to the trial court and made part of the appellate record, the statements made by the Appellees were protected by absolute privilege from claims for defamation, no matter how false, malicious, or badly motivated. See Cassell , 964 So.2d at 193 ; Hauser , 231 So.2d at 8. This is because the alleged statements or accusations were made in the course of sanctioned investigations by the Appellees. As such, the controlling factor of whether the communications were in the scope of the public officer's duties was met for each Appellee. See Stephens , 702 So.2d at 523 ; Alfino v. Dep't of Health & Rehab. Servs. , 676 So.2d 447, 449 (Fla. 5th DCA 1996) ; City of Miami , 403 So.2d at 416. We affirm on this ground.

Statute of Limitations

The statute of limitations for a defamation suit is two years. See § 95.11(4)(g), Fla. Stat. (2012) ; Wagner, Nugent, Johnson, Roth, Romano, Erikson & Kupfer, P.A. v. Flanagan , 629 So.2d 113, 114 (Fla. 1993). "The period begins to run from the time the cause of action accrues[.]" Id. at 115 ; accord § 95.031, Fla. Stat. (2012). "A cause of action for defamation accrues on publication[.]" Wagner , 629 So.2d at 115 ; accord § 770.07, Fla. Stat. (2012). "Although chapter 770 primarily addresses media defendants, we note that the chapter is broadly titled Civil Actions for Libel." Wagner , 629 So.2d at 115. Thus, section 770.07 is "applicable to all civil litigants, both public and private, in defamation actions." Id.

On appeal and below, Weeks claims that the Town terminated him based upon a compilation of allegations that were fabricated on December 13, 2012. The record on appeal demonstrates that Weeks knew of the alleged defamatory statements at or near the time of publication. The instant lawsuit, filed three years later on December 9, 2015, was one year beyond the conclusion of the statute of limitations for defamation. See § 95.11(4)(g) ; § 95.031 ; Wagner , 629 So.2d at 114-15. We therefore affirm the trial court's entry of summary judgment on this basis.

Conclusion

Consequently, we affirm the trial court's order granting summary judgment in favor of the Appellees because the Appellees were immune from claims for defamation and Weeks filed the lawsuit beyond the applicable two-year statute of limitations. See § 95.11(4)(g) ; Bates , 31 So.3d at 213.

Affirmed.

Damoorgian and Kuntz, JJ., concur.

      It is well-established that Florida does not recognize a cause of action for negligent interference with a business relationship. See Ragsdale v. Mount Sinai Med. Ctr. of Miami , 770 So.2d 167, 169 n.2 (Fla. 3d DCA 2000) ; Fla. Power & Light Co. v. Fleitas , 488 So.2d 148, 151 (Fla. 3d DCA 1986).

      In addition to the Town of Palm Beach, Weeks also sued: Peter B. Elwell, individually and as the Town's manager, Kirk Blouin, individually and as the Directory of Public Safety, Darrel Donatto, individually and as the Deputy Fire Chief, Danielle Olson, individually and as Director of Human Resources, Dan Szarszewski, individually and as the Deputy Police Chief, Brodie Atwater, individually and as the Assistant Fire Chief, and the following individuals: Margaret Cooper, John Cuomo, Richard Ward, Mark Bradshaw, Danny Dunnam, James Duane, Peter Codispoti, and Brian Fuller.

      Throughout his brief, Weeks frequently mislabels and wrongly argues that his appeal concerns a dismissal; instead, this case concerns an order granting final summary judgment in favor of the Appellees, and this court reviews this appeal as such.

      The application of the two-year statute of limitations, as opposed to the four-year statute of limitations as argued by Weeks, is based upon our prior determination that the second amended complaint is nothing more than a reassertion of the defamation claims in the guise of fraud claims.


source: Caselaw Access Project

author: Kuntz, J.

license: Public Domain

text:
    Mary ABT and Robert Abt, Appellants, v. METRO MOTORS VENTURES, INC. d/b/a Greico Nissan and Steinger, Iscoe & Greene, P.A., Appellees.
    No. 4D17-1960
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, and Bradford L. Jefferson of Bradford L. Jefferson, P.A., Fort Pierce, for appellants.
    Alfred R. Bell, Jr., and Sean J. Greene of Steinger, Iscoe & Greene, P.A., Port St. Lucie, for appellee Steinger, Iscoe & Greene, P.A.
   Kuntz, J.

Mary Abt ("Former Client") appeals a judgment imposing an attorney's charging lien in favor of her former law firm Steinger, Iscoe & Greene, P.A. ("Law Firm") for work performed while representing her in a personal injury matter. She argues that the court erred in awarding the Law Firm amounts incurred in the prosecution of the charging lien. We agree.

The Law Firm was retained on a contingency fee basis. Before completing the case, the Former Client discharged the Law Firm, and the Law Firm filed a charging lien. Although the personal injury litigation settled, the court retained jurisdiction over the Law Firm's lien and found that the charging lien amounted to $59,649.61. This included $21,079.61 incurred in prosecuting the lien.

As argued by the Former Client, our decision in Tucker v. Tucker , 165 So.3d 798, 800 (Fla. 4th DCA 2015), resolved this exact issue. In Tucker , the circuit court's order imposing a charging lien in the amount of $9,251 which included "$1,400.00 in attorney's fees plus $1,137.50 in expert witness fees accrued in enforcing the charging lien." Id. at 800. Relying on Rudd v. Rudd , 960 So.2d 885 (Fla. 4th DCA 2007) and Cole v. Kehoe , 710 So.2d 705, 706 (Fla. 4th DCA 1998), we concluded that "the actions of an attorney in enforcing a charging lien does nothing to contribute to a positive judgment or settlement for the client." Tucker , 165 So.3d at 800. Thus, we affirmed the court's imposition of the charging lien, but remanded the case for the court to "eliminate from the order the $2,537.50 incurred in the prosecution of the charging claim." Id.

Here, the circuit court's order states that the Law Firm "has a valid charging lien against [the Former Client's] recovery and is entitled to recovery of $38,570.00 for attorney's and legal assistant fees, plus expert witness fees and prevailing party costs which will be determined at a later time." The court entered judgment in the amount of $59,679.61, an increase of $21,079.61. However, in her initial brief the Former Client states that "the trial court awarded an astonishing $20,158.22" in costs, and in the reply brief the Former Client states that we "should reverse the judgment awarding the [Law Firm] almost $19,000 in costs in the prosecution of its $38,570 lien." On remand, the court should eliminate the amounts incurred in the prosecution of the charging lien from the judgment.

Reversed and remanded with instructions.

Taylor and May, JJ., concur.


author: Taylor, J.

text:
    Laurence SCHNEIDER, Appellant, v. FIRST AMERICAN BANK, as successor by merger to Bank of Coral Gables, LLC, Unknown Tenant #1, Unknown Tenant #2 and The Oaks at Boca Raton Property Owner's Association, Inc., Appellees.
    No. 4D17-2239
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Ryan D. Gesten of The Law Offices of Ryan D. Gesten, P.A., Fort Lauderdale, for appellant.
    Henry H. Bolz, III and Sheyla Mesa of Keller & Bolz, LLP, Coral Gables, for Appellee First American Bank.
   Taylor, J.

Laurence Schneider appeals a final judgment of foreclosure and a separate amended final judgment awarding damages to First American Bank (the "Bank") for breach of a credit agreement. We reverse to the extent that the judgments improperly allowed the Bank to simultaneously execute on the money judgment and foreclose on appellant's property. On all other issues, we affirm.

It is well-settled that "to collect money owed on a note, a mortgagee may pursue its legal and equitable remedies simultaneously, until the debt is satisfied." Royal Palm Corp. Ctr. Ass'n v. PNC Bank, NA , 89 So.3d 923, 929 (Fla. 4th DCA 2012). "[T]he reason that an action at law on a note may be pursued simultaneously with the equitable remedy of foreclosure is that the two remedies are not inconsistent." Id. at 932. Accordingly, a trial court may enter a final judgment of foreclosure that allows for immediate execution of the damages award, so long as the trial court withholds the setting of the foreclosure sale of the property until the plaintiff certifies that its money judgment has not been satisfied. Id. at 926, 928, 933.

A trial court may not, however, simultaneously allow a foreclosure plaintiff to execute on the money judgment and foreclose on the subject property. Id. at 933 ; see also Farah v. Iberia Bank , 47 So.3d 850, 851 (Fla. 3d DCA 2010) (striking "for which let execution issue" language from final judgment of foreclosure).

Here, we find that the trial court erred in entering two judgments-a money judgment and a foreclosure judgment-that together allowed the Bank to simultaneously execute on the money judgment and foreclose on appellant's property. To remedy this error, we reverse only the foreclosure judgment. On remand, the trial court shall modify the foreclosure judgment so as to withhold the setting of the foreclosure sale of the property until the Bank certifies that its money judgment remains unsatisfied. See Royal Palm , 89 So.3d at 928. This procedure assures that, while the Bank was free to pursue both remedies, it will not obtain a recovery that exceeds the amount of the debt. Id. at 933. Moreover, once the Bank "has obtained a foreclosure sale of the property, it cannot collect on the note other than to pursue the appropriate deficiency amount." Bonita Real Estate Partners, LLC v. SLF IV Lending, L.P. , 222 So.3d 647, 652 (Fla. 2d DCA 2017).

Affirmed in part, Reversed in part, and Remanded.

Warner and Levine, JJ., concur.

      A foreclosure sale on the property has not yet been held, however, as the trial court granted a stay pending appeal.


author: Levine, J.

text:
    Teodoro LOPEZ, Appellant, v. Mariana Garcia HERNANDEZ, Appellee.
    No. 4D17-3495
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Dianne Bonfiglio of Legal Response Center PL, Palm City, for appellant.
    No appearance for appellee.
   Levine, J.

The husband appeals a final judgment of dissolution of marriage, challenging the trial court's valuation of the marital home, the buy-out provision relating to the marital home, and the award of a "special equity" in the marital home to the wife. We affirm the first two issues, but reverse on the third issue.

Following a partial mediation agreement, the case proceeded to trial on the sole issue of the marital home. In the final judgment of dissolution of marriage, the trial court found that the wife bought the marital home during the marriage for $42,000. The husband's name is not on the deed. The trial court found that the home had a fair market value of $65,700 and that the wife had a "special equity" of $8,000. The court awarded the wife sole ownership of the home and ordered her to pay the husband $500 a month for fifty-five months to buy out the husband's one-half interest.

In his first issue on appeal, the husband argues that the trial court's valuation is not supported by competent substantial evidence. We affirm this issue per Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979), as the husband has failed to provide this court with a transcript from the trial. We further reject the husband's argument that the trial court failed to support its valuation with factual findings as required by section 61.075(3), Florida Statutes (2017). Section 61.075(3) applies to a trial court's distribution of assets, not to the valuation of specific assets. As this court has recognized, there is no requirement that a trial court make findings of fact regarding the valuations placed on different properties. Jordan v. Jordan , 127 So.3d 794, 796 (Fla. 4th DCA 2013) ; Kelly v. Kelly, 557 So.2d 625, 627 (Fla. 4th DCA 1990).

As to the second issue, the husband challenges the portion of the order allowing the wife fifty-five months to buy out his interest in the marital home. The distribution of marital assets and liabilities is reviewed for abuse of discretion. Canakaris v. Canakaris , 382 So.2d 1197, 1202 (Fla. 1980). In the absence of a transcript, an appellate court's review is limited to error apparent on the face of the judgment. See Matteis v. Matteis , 82 So.3d 1048, 1048 (Fla. 4th DCA 2011). No such error is present here. Section 61.075(10), Florida Statutes (2017), explicitly gives a trial court discretion to order an equitable distribution of marital assets payable in installments over a fixed period of time. This case is unlike Thomas-Nance v. Nance , 189 So.3d 1040 (Fla. 2d DCA 2016), where the buy-out period spanned twenty years and thus was "patently unreasonable," as it effectively deprived the wife of her interest in the marital home.

Finally, the husband contends that the trial court erred by awarding the wife special equity in the marital home. A trial court's distribution of assets is generally reviewed for abuse of discretion, but is reviewed de novo to the extent the issue on appeal concerns a pure question of law. Mathers v. Brown , 21 So.3d 834, 837 (Fla. 4th DCA 2009).

In 2008, the legislature abolished special equity. Ch. 2008-46, § 1, Laws of Fla. "All claims formerly identified as special equity, and all special equity calculations, ... shall be asserted either as a claim for unequal distribution of marital property and resolved by the factors set forth in subsection (1) or as a claim of enhancement in value or appreciation of nonmarital property." § 61.075(11), Fla. Stat. Under section 61.075(1), "the court shall set apart to each spouse that spouse's nonmarital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal." The court may not depart from this premise "unless there is a justification for an unequal distribution based on all relevant factors." Id. The statute then lists ten factors that a trial court must consider when deciding to make an unequal distribution. Id. Additionally, "any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1)." § 61.075(3), Fla. Stat. A trial court's failure to make statutorily required findings may warrant reversal even in the absence of a transcript. Id.

Keurst v. Keurst , 202 So.3d 123 (Fla. 2d DCA 2016), is instructive. In Keurst , the trial court made an unequal distribution of proceeds from the sale of the marital home, awarding the wife a special equity of $30,000 based on her contribution of nonmarital funds to the down payment on the home. The Second District reversed because the trial court incorrectly relied on the abolished concept of special equity. Additionally, the judgment did not contain findings reflecting that the trial court conducted the unequal distribution analysis required by section 61.075(1). The Second District directed the trial court on remand to "apply section 61.075(1) to the facts, make its equitable distribution decision anew, and support its decision with findings specific to each of the factors listed in section 61.075(1)." Id. at 126.

In the instant case, the trial court did not make any findings as to whether the marital home-which was purchased during the marriage but titled only in the wife's name-was purchased with marital or nonmarital funds. Additionally, like in Keurst , the trial court improperly relied on the abolished concept of special equity and the judgment did not contain any findings reflecting that the judge applied section 61.075(1).

Accordingly, based on Keurst , we reverse and remand for the trial court to "apply section 61.075(1) to the facts, make its equitable distribution decision anew, and support its decision with findings specific to each of the factors listed in section 61.075(1)." Id. We affirm the other two issues raised on appeal.

Affirmed in part, reversed in part, and remanded.

Damoorgian and Kuntz, JJ., concur.


author: Damoorgian, J.

text:
    Yvette Louise FOURNIER, Appellant, v. Paul CALVO, Appellee.
    Nos. 4D13-2611 4D13-3900 4D13-3902 4D13-3903
    District Court of Appeal of Florida, Fourth District.
    [July 25, 2018]
    Yvette Louise Fournier, Old Saybrook, Connecticut, pro se.
    T. Robert Shahady of Kopelowitz Ostrow Ferguson Weiselberg Gilbert, Fort Lauderdale, for appellee.
   Damoorgian, J.

In this consolidated appeal, Yvette Fournier challenges: 1) an amended final judgment entered against her (Case 13-2611); 2) a non-final order denying a motion for relief from the challenged judgment (Case 13-3902); 3) a post-trial order compelling the production of post-judgment financial information (Case 13-3903); and 4) a final judgment for attorney's fees and costs (Case 13-3900). We affirm the final judgment, the order denying Appellant relief from the judgment, and the order compelling post-judgment financial information without further comment. We reverse the final judgment awarding Appellee's counsel attorney's fees and costs to the limited extent that the judgment is in favor of Appellee's counsel, and not Appellee.

This appeal stems from a lawsuit Appellee filed against Fournier and her husband. The claim against Fournier was for unjust enrichment. After a bench trial, the trial court entered judgment against Fournier based on the court's finding that she received and retained funds from Appellee which were earmarked for repairs to real property owned by Appellee. The court found that Appellee was entitled to damages because Fournier and her husband never made the repairs and failed to return the money to Appellee.

After trial, Appellee moved for fees on the grounds that Fournier rejected Appellee's valid proposal for settlement. Following a hearing, the court determined that Appellee was entitled to fees based on the proposal. The amount was determined at a later hearing.

Fournier argues that the fee judgment must be vacated entirely due to several procedural errors. We address two of those arguments. First, Fournier asserts that Appellee was not entitled to fees against her because he did not plead entitlement to fees in his complaint and failed to timely serve his motion for fees within thirty days of the rendition of final judgment as provided by Florida Rule of Civil Procedure 1.525. Both of these assertions lack merit.

Generally speaking, "a claim for attorney's fees, whether based on statute or contract, must be pled" or entitlement is waived. Stockman v. Downs , 573 So.2d 835, 837 (Fla. 1991). The exception to this rule is when the party otherwise has notice that their opponent claims entitlement to attorney's fees. Id. at 838. Here, Appellee's claim of entitlement to fees was based on a rejected offer of judgment served pursuant to section 768.79 of the Florida Statutes. Section 768.79 provides the proper mechanisms for establishing notice of intent to seek attorney's fees in the event an offer of judgment is rejected. § 768.79, Fla. Stat. (2013). Appellee complied with these requirements by serving his proposal on Fournier and filing a notice of service in the record.

As to the timeliness argument, both section 768.79(6) and Florida Rule of Civil Procedure 1.525 provide that a party seeking fees must file a motion within thirty days after the entry of judgment. The Supreme Court of Florida stated in Saia Motor Freight Line, Inc. v. Reid , 930 So.2d 598, 600 (Fla. 2006) that the thirty-day deadline for filing fee motions is a bright-line rule and applies once a final judgment is first entered regardless of whether it is modified on rehearing. However, the court later clarified that "where entitlement to attorneys' fees and costs has already been determined by the trial court in its final judgment, rule 1.525, requiring the filing of a motion for fees and costs within thirty days of the final judgment, does not apply." Amerus Life Ins. Co. v. Lait , 2 So.3d 203, 207 (Fla. 2009) (emphasis added).

In this case, the original final judgment was entered on February 26, 2013. In that version of the final judgment, the court ruled that Appellee was entitled to fees and costs from Fournier pursuant to a written agreement between Appellee and Fournier's husband. Accordingly, the time restraints of Rule 1.525 did not apply to this judgment. Amerus Life , 2 So.3d at 207. Thereafter, pursuant to Fournier's motion, the court entered an Amended Final Judgment on March 13, 2013. In the Amended Final Judgment, the court "reserved jurisdiction to enter further orders that are proper for entitlement to attorney's fees against [Fournier]." By reserving on the issue of entitlement to fees, this version of the judgment triggered the time implications of Rule 1.525. Appellee then properly filed his motion for entitlement to fees and costs against Fournier on April 9, 2014, within the thirty-day window.

Next, Fournier argues that the fee judgment is void because it was entered in favor of Appellee's attorney, who was not a party to the proceedings. The fee judgment against Fournier was entered pursuant to Florida's offer of judgment statute, section 768.79, which provides, in pertinent part:

If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred from the date the offer was served.

§ 768.79(6)(a), Fla. Stat. (2013) (emphasis added).

Appellee was the plaintiff in the case, not his attorney. Therefore, a plain reading of the statute compels us to conclude that Appellee's attorney cannot personally be awarded fees under section 768.79(6)(a). See Neustein v. Miami Shores Vill., Inc. , 837 So.2d 1054, 1055 (Fla. 3d DCA 2002) (holding that fee judgment could not personally be imposed against an attorney who was not named as a party based on a fee statute allowing for recovery of fees against another party); see also Soliman v. Ebasco Servs. Inc. , 822 F.2d 320, 323 (2d Cir. 1987) (holding that "independent of his client, an attorney has no personal right to an award of statutory attorney's fees" pursuant to a civil rights statute which allowed for prevailing party fees).

Based on the foregoing, we affirm the final judgments and orders on appeal, but remand for the trial court to amend the fee judgment so that the judgment is in favor of the Appellee and not his legal counsel.

Affirmed in part, reversed in part and remanded.

Levine and Kuntz, JJ., concur.

      Fournier's husband, Pieter Van Der Vliet, is also an appellant in each case. However, the husband's appeal has been stayed due to his pending bankruptcy case. The United States Bankruptcy Court granted Appellee relief from the bankruptcy stay as to Fournier. Accordingly, we only consider the issues on appeal raised by Fournier.


author: Gross, J.

text:
    Kristal RYAN, Appellant, v. Robert RYAN, Appellee.
    No. 4D17-2440
    District Court of Appeal of Florida, Fourth District.
    [August 8, 2018]
    Dave K. Roy of Roy & Associates, P.A., West Palm Beach, for appellant.
    Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Tana R. Sachs Copple of Copple Sachs Copple, Palm Beach Gardens, for appellee.
   Gross, J.

On May 4, 2017, the father filed a supplemental petition for relocation pursuant to section 61.13001, Florida Statutes (2017).

The petition was served on the mother on May 17, 2017, and she was required to file a response "within 20 days after service of [the] petition to relocate." § 61.13001(3), Fla. Stat. (2017). She obtained a lawyer, who filed a notice of appearance on May 26, 2017. The response was due on June 6; on that day the mother's lawyer filed a motion for enlargement of time, requesting an additional 20 days to respond to the petition. The motion was never ruled upon.

On June 15, the presiding judge recused herself and the case was reassigned to Judge Miller. Five days later, the father moved for an order allowing relocation due to the mother's failure to object.

On June 27, the mother filed an objection to the petition, which argued that "good cause" existed for the court not to enter a default judgment. The objection documented various reasons, including the hospitalization of the mother's lawyer and the sudden illness of the lawyer's daughter.

Two days later, the trial court entered its final judgment granting relocation "without an evidentiary hearing due to the other party's failure to file an objection." The court noted that the mother's response was untimely and determined "that the relocation is in the best interests of the children based upon the undisputed pleadings." The court adopted the time-sharing schedule and post-relocation transportation arrangements contained within the petition and attached a relocation parenting plan.

Section 61.13001(3)(d) provides that where a parent fails to timely file a response objecting to a petition to relocate, the court shall enter an order granting the petition "absent good cause."

Here, "good cause" existed to preclude entry of the relocation judgment despite the former wife's untimely response to the petition. The mother timely obtained a lawyer. The delay in filing was entirely the fault of the lawyer, who provided documentation for excuses beyond his control. The statute allows a court to act expeditiously when one parent puts up no roadblock to relocation. Where, through filings in the court file, a parent indicates an intention to participate in the relocation process, the law frowns on defaults and encourages a noticed hearing where both sides can present their positions and the trial judge may consider children's best interests. See Vaelizadeh v. Hossaini , 174 So.3d 579, 584 (Fla. 4th DCA 2015).

As we did in Vaelizadeh , we reverse the relocation judgment, treat the judgment as a non-final order granting temporary relocation, and remand for a hearing consistent with section 61.13001.

Conner and Klingensmith, JJ., concur.


author: Per Curiam.

text:
    Dillon MCDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-1412
    District Court of Appeal of Florida, Fourth District.
    [August 8, 2018]
    Dillon McDonald, Wewahitchka, pro se.
    No appearance required for appellee.
   Per Curiam.

Affirmed. See Hart v. State , 246 So.3d 417 (Fla. 4th DCA 2018) (en banc). Although two members of this panel dissented in Hart , we affirm because we are bound by Hart , which is currently the law of this district. We again certify conflict with Cuevas v. State , 241 So.3d 947 (Fla. 2d DCA 2018) ; Blount v. State , 238 So.3d 913 (Fla. 2d DCA 2018) ; Mosier v. State , 235 So.3d 957 (Fla. 2d DCA 2017) ; Alfaro v. State , 233 So.3d 515, 516 (Fla. 2d DCA 2017) ; and Burrows v. State , 219 So.3d 910, 911 (Fla. 5th DCA 2017).

Gerber, C.J., Warner and Taylor, JJ., concur.


text:
    Jose TORRES, Appellant, v. BANK OF NEW YORK as Trustee FOR the CERTIFICATE HOLDERS CWABS, INC. ASSET BACKED CERTIFICATES SERIES 2006-26, Appellee.
    No. 4D17-1625
    District Court of Appeal of Florida, Fourth District.
    [August 22, 2018]
    Kendrick Almaguer and Peter Ticktin of The Ticktin Law Group, P.L.L.C., Deerfield Beach, for appellant.
    J. Kirby McDonough of Quarles & Brady, LLP, Tampa, for appellee.
   Per Curiam.

Jose Torres ("the homeowner") appeals an order denying his motion for attorneys' fees and costs rendered in favor of the Bank of New York as Trustee ("the bank") following an involuntary dismissal of the bank's foreclosure action. We affirm in part and reverse in part.

First, we affirm the denial of attorneys' fees. Because the homeowner prevailed on an argument that the bank failed to prove entitlement to enforce the note and mortgage, the homeowner cannot now seek to take advantage of the fee provisions of the note and mortgage. See Sabido v. Bank of N.Y. Mellon , 238 So.3d 867, 868-69 (Fla. 4th DCA 2018) ; Nationstar Mortg. LLC v. Glass , 219 So.3d 896, 898 (Fla. 4th DCA 2017), review granted , No. SC17-1387, 2018 WL 2069328 (Fla. Feb. 13, 2018).

However, we reverse the denial of costs. Florida Rule of Civil Procedure 1.420 provides in relevant part, "Costs in any action dismissed under this rule shall be assessed and judgment for costs entered in that action, once the action is concluded as to the party seeking taxation of costs." Fla. R. Civ. P. 1.420(d) ; see also § 57.041(1), Fla. Stat. (2017) ("The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment ...."). Because the case was involuntarily dismissed, the homeowner is entitled to taxable costs.

In this situation, any costs awardable to the homeowner flow from rule 1.420 and not from the subject mortgage and/or note.

We therefore remand for the trial court to consider what costs should be awarded as authorized by the Uniform Guidelines for Taxation of Costs in Civil Actions.

Affirmed in part; reversed in part.

Gerber, C.J., Gross and Ciklin, JJ., concur.

      Fla. R. Civ. P. Taxation of Costs.


text:
    Jimmy Jose CARTER, Appellant, v. Nicole Daniellle GEBAUER, Appellee.
    No. 4D18-796
    District Court of Appeal of Florida, Fourth District.
    [August 22, 2018]
    Ronald L. Bornstein of Ronald L. Bornstein, P.A., Greenacres, for appellant.
    A. Thomas Connick of A. Thomas Connick, P.A. and Boutwell and Connick, Deerfield Beach, for appellee.
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979).

Taylor, May and Forst, JJ., concur.


text:
    Anthony THARPE and Jacqueline Buchanan, Appellants, v. NATIONSTAR MORTGAGE LLC, any and All Unknown Parties Claiming by, Through, Under, and Against The Herein Named Individual Defendant, Who Are Not Known To Be Dead or Alive, Whether Said Unknown Parties May Claim an Interest as Spouses, Heirs, Devisees, Grantees or Other Claimants, Mortgage Electronic Registration Systems, Inc; Verolago Homeowners Association, Inc., John Doe and Jane Doe as Unknown Tenants in Possession, Appellees.
    No. 4D17-3569
    District Court of Appeal of Florida, Fourth District.
    [August 22, 2018]
    Anthony Tharpe, Wabasso, pro se, and Jacqueline Buchanan, Wabasso, pro se.
    Jennifer R. Dixon and James E. Walson of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee Nationstar Mortgage LLC.
   Per Curiam.

Affirmed. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979).

Taylor, Levine and Forst, JJ., concur.


text:
    Delvin JOHNSON, Appellant, v. DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT and Kisha Adams, Appellees.
    No. 4D18-1377
    District Court of Appeal of Florida, Fourth District.
    [August 22, 2018]
    Delvin D. Johnson, Hialeah, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for appellee Department of Revenue.
   Per Curiam.

Affirmed. See Fla. R. App. P. 9.315(a).

Levine, Klingensmith and Kuntz, JJ., concur.


text:
    Jeremy M. CARTER, Appellant, v. MARK I. GRUMET REVOCABLE TRUST DATED MAY 9, 2007, and Community 8 Properties, LLC, Appellees.
    No. 4D17-3817
    District Court of Appeal of Florida, Fourth District.
    [August 22, 2018]
    Jeremy M. Carter, Estill, South Carolina, pro se.
    Dane T. Stanish of the Law Offices of Dane Stanish, P.A., Hollywood, for appellee Mark I. Grumet Revocable Trust.
    Joseph J. Huss and Joshua J. Shore of Krinzman Huss & Lubetsky, Fort Lauderdale, for appellee Community 8 Properties, LLC.
   Per Curiam.

Appellant appeals the trial court's order dismissing his complaint. He raises three issues on appeal, but we reverse on only one. Over the course of two years, appellant unsuccessfully tried to serve process on the defendants. Eventually, he resorted to service by publication, which the trial court quashed for being improper. The trial court then dismissed the complaint for failure to serve process despite appellant's pending motion to amend his complaint.

A trial court has no discretion to deny a plaintiff's first amendment to a complaint before a responsive pleading has been served. Boca Burger, Inc. v. Forum , 912 So.2d 561, 568 (Fla. 2005). Rather, a party is entitled to "amend a pleading once as a matter of course at any time before a responsive pleading is served ...." Fla. R. Civ. P. 1.190(a). Because appellant had an absolute right to amend his complaint before a responsive pleading was served, the trial court erred in dismissing the action. See Boca Burger , 912 So.2d at 567. We therefore reverse and remand for the trial court to allow appellant to amend his complaint.

Affirmed in part, reversed in part, and remanded.

Taylor, Levine and Forst, JJ., concur.


author: FERNANDEZ, J.

text:
    Terrence HARRIS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D17-1583 3D17-2274
    District Court of Appeal of Florida, Third District.
    Opinion filed November 15, 2017
    Terrence Harris, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ, and LUCK, JJ.
   FERNANDEZ, J.

Terrence Harris appeals the denial of his 3.850 motion for post-conviction relief and the lower Court's Final Order Prohibiting Defendant from Filing Further Pro Se Pleadings in the Circuit Court. We consolidate both appeals and affirm without discussion.

ORDER TO SHOW CAUSE

Furthermore, as it appears that Harris has submitted multiple pro se post-conviction appeals, all of which have been meritless, we order Harris to show good cause within thirty (30) days why this Court should not prohibit him from submitting further pro se appeals, petitions, motions or other proceedings related to circuit court case number F00-35187A, unless such pleadings are signed by an attorney who is a duly licensed member of the Florida Bar in good standing. After this order to show cause and giving Harris an opportunity to respond, this Court may prevent such further filings. State v. Spencer, 751 So.2d 47 (Fla. 1999).

Additionally, and absent a showing of good cause, this Court may issue an order to be forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2017).

Affirmed. Order to show cause issued.

      See 3D15-2638; 3D14-1192; 3D14-1050; 3D12-2972; 3D10-2995; 3D10-412; 3D09-1223; 3D08-3155; 3D07-2990; and 3D07-1255.


author: ROTHENBERG, C.J.

text:
    Daniel WOLENTARSKI and Maria Wolentarski, Appellants, v. ANCHOR PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 3D17-2405
    District Court of Appeal of Florida, Third District.
    Opinion filed May 30, 2018
    Dieppa Law Firm P.A., and Eduardo E. Dieppa III ; Tabares Law P.A., and Jasiel Tabares, for appellants.
    Groelle & Salmon, P.A., and Robert Groelle and Bethany C. Ruiz, for appellee.
    Before ROTHENBERG, C.J., and SUAREZ and LOGUE, JJ.
   ROTHENBERG, C.J.

Daniel and Maria Wolentarski ("the appellants") appeal the final judgment entered in favor of Anchor Property & Casualty Insurance Company ("Anchor") issued after the trial court entered summary judgment in favor of Anchor. Because the appellants failed to timely submit any evidence or filings in opposition to Anchor's motion for summary judgment, there was no record evidence of a material issue of disputed fact. The trial court, therefore, correctly granted Anchor's motion for summary judgment. See Fla. R. Civ. P. 1.510(c) (providing that evidence in opposition to summary judgment must be served at least five days prior to the day of the hearing or delivered no later than 5:00 p.m. two business days prior to the date of the hearing); Deshazior v. Sch. Bd. of Miami-Dade Cty, Fla., 217 So.3d 151, 152 (Fla. 3d DCA 2017) (holding that the trial court's decision not to consider an untimely affidavit in opposition to a motion for summary judgment was not an abuse of discretion).

Affirmed.


author: LaROSE, Chief Judge.

text:
    Leonard Richard FILIPKOWSKI, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3869
    District Court of Appeal of Florida, Second District.
    Opinion filed June 8, 2018
    Leonard Richard Filipkowski, pro se.
   LaROSE, Chief Judge.

Leonard Richard Filipkowski appeals a final order summarily denying his motion and amended motions for postconviction relief. See Fla. R. Crim. P. 3.850. He sought relief on three grounds. Grounds one and two are legally insufficient or conclusively refuted by the record. Accordingly, we affirm, without further discussion, the order as to those grounds. In ground three, however, Mr. Filipkowski may be able to state a facially sufficient claim if given an opportunity to amend his motion to assert the requisite prejudice. We reverse the order as to ground three and direct the postconviction court to strike it with leave to amend within a reasonable time.

Mr. Filipkowski pleaded no contest and was convicted of four counts of lewd and lascivious molestation of a victim over twelve and under sixteen years of age; two counts of lewd and lascivious exhibition to a victim under sixteen years of age; battery; possession of a photograph of a sexual performance by a child; and use of a computer server to seduce, solicit, or entice a child. The trial court sentenced Mr. Filipkowski to time served on the battery count; it imposed consecutive five-year sentences for a total of forty years' imprisonment on the remaining counts. Mr. Filipkowski did not pursue a direct appeal.

Mr. Filipkowski filed a timely, counseled motion for postconviction relief. In ground three, he alleged that his plea was involuntary because the trial court failed to explain, as required by Florida Rule of Criminal Procedure 3.172(c)(1), that the maximum possible sentence was 105 years' imprisonment if the court imposed consecutive sentences for each offense. Allegedly, "he would not have entered into the Plea Agreement he did had he been informed of the maximum number of years that could be imposed or that the Counts to which he was entering his plea could be run consecutively; totaling up to 105 years."

Mr. Filipkowski also alleged that his trial counsel was ineffective for failing to advise him of the plea terms, including the possibility of a 105-year prison term. Mr. Filipkowski failed to allege prejudice resulting from counsel's alleged deficient performance. Instead, he recognized that he "must meet a high threshold to withdraw a plea after Sentencing, and it is [his] burden to prove that a manifest injustice has occurred and that a withdrawal of the plea is necessary to correct that injustice, [and] is prepared to assume that burden." He asked to withdraw his plea. Alternatively, Mr. Filipkowski requested an evidentiary hearing to determine whether his plea was voluntary.

The State responded that any failure by the trial court to comply with rule 3.172(c)(1) was a trial court error not subject to collateral review. The State conceded, however, that Mr. Filipkowski was entitled to raise the claim under Marckman v. State, 997 So.2d 1275 (Fla. 2d DCA 2009). Even so, the State argued that the record conclusively refuted Mr. Filipkowski's claim that the trial court failed to comply with rule 3.172(c)(1). It argued that rule 3.172(c)(1) only requires a trial court to advise a defendant of the maximum penalty for each offense, which was done. Thus, the State argued that ground three should be denied.

In reply, Mr. Filipkowski contended that he was entitled to an evidentiary hearing on his claim that trial counsel failed to inform him about the prospect of consecutive sentences. He maintained that "while it is true that the trial court never advised [him] of the fact that the maximum sentences on all Counts could be run consecutive ... his trial counsel affirmatively misadvised him of his exposure to consecutive sentencing as well." He requested that "to the extent that the [postconviction court] determines that it is required that [he] swear, under oath, that but-for the ineffectiveness of his trial counsel as to the consequences of his plea, he would have proceeded to trial," he be given a reasonable opportunity to amend his motion in accordance with Spera v. State, 971 So.2d 754 (Fla. 2007).

Thereafter, the postconviction court summarily denied relief on ground three:

Defendant's third claim is that his plea was involuntarily entered as he was never informed of his maximum statutory exposure. During the plea colloquy, the Defendant was informed that counts one through seven and nine were second degree felonies, punishable by up to 15 years; and that counts eight, ten, eleven and twelve are third degree felonies punishable by up to 5 years. The Court agrees with the State's response that this was sufficient to inform the Defendant of the maximum possible penalty of the charges.

We review an order summarily denying a postconviction motion de novo. See Martin v. State, 205 So.3d 811, 812 (Fla. 2d DCA 2016). To plead a facially sufficient ineffective assistance of trial counsel claim, Mr. Filipkowski must plead facts establishing that his or her trial counsel's performance was deficient and that he was prejudiced thereby. See id. (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "In the plea context, a defendant satisfies the prejudice requirement only where he can demonstrate 'a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.' " Hernandez v. State, 124 So.3d 757, 762 (Fla. 2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ). "[A] defendant is entitled to an evidentiary hearing on a postconviction relief motion unless (1) the motion, files, and records in the case conclusively show that the prisoner is entitled to no relief, or (2) the motion or a particular claim is legally insufficient." Freeman v. State, 761 So.2d 1055, 1061 (Fla. 2000) ; see also Fla. R. Crim. P. 3.850(f)(5).

In his reply, Mr. Filipkowski abandoned his claim of involuntary plea based upon the trial court's failure to comply with rule 3.172(c)(1). He focused on trial counsel's alleged deficient performance. Counsel's alleged inaccurate advice about the length of a sentence can be a basis for postconviction relief when not conclusively refuted by the record. Baker v. State, 879 So.2d 663, 664 (Fla. 5th DCA 2004) ; see also Campbell v. State, 139 So.3d 490, 494 (Fla. 2d DCA 2014) (holding that a defendant's allegation that had he been properly advised of the maximum penalty that he faced he would not have entered a plea but would have insisted on going to trial states a facially sufficient claim for postconviction relief); Gadson v. State, 807 So.2d 817, 817 (Fla. 4th DCA 2002) (noting same).

Counsel must advise his client about "all pertinent matters bearing on the choice of which plea to enter and the particulars attendant upon each plea and the likely results thereof, as well as any possible alternatives that may be open to the defendant." Fla. R. Crim. P. 3.171(c)(2)(B). "[A] plea cannot be knowing and voluntary if the defendant does not understand all direct consequences of the plea, including those that affect the range of punishment" Odegaard v. State, 137 So.3d 505, 508 (Fla. 2d DCA 2014) (emphasis added). Thus, trial counsel's failure to advise a defendant entering an open plea that his sentences can be imposed consecutively to increase the sentencing range constitutes deficient performance. Id. (holding that trial counsel's failure to advise the defendant that his maximum statutory sentences of thirty and fifteen years could be imposed consecutively for a total sentence of forty-five years' imprisonment constituted deficient performance and rendered the plea involuntary); cf. Nelfrard v. State, 34 So.3d 221, 223 (Fla. 4th DCA 2010) (holding that the record conclusively refuted the defendant's claim that counsel misinformed him about the maximum penalty he faced; "[d]uring the plea colloquy, the defense attorney and the court both informed the defendant of the maximum sentences to which he could be sentenced, noting that he could face any sentence up to the maximum of consecutive five-year sentences on the two cases"). Simply advising a defendant of the maximum statutory sentence for each offense without advising him that those sentences may be imposed consecutively to increase the defendant's maximum possible penalty is insufficient. See Odegaard, 137 So.3d at 507-08.

Notably, Mr. Filipkowski faced a maximum possible penalty of 101 years' imprisonment. He received a forty-year sentence, which is significantly greater than a total of fifteen years' imprisonment if the trial court had imposed the maximum statutory sentences concurrently.

Nothing in our record reflects that Mr. Filipkowski knew that his sentences could be imposed consecutively or that he faced a maximum possible penalty of 101 years' imprisonment. Thus, the record does not conclusively refute ground three of his motion. We also conclude that Mr. Filipkowski is entitled to an opportunity to amend his motion to assert the requisite prejudice, if he can. See Fla. R. Crim. P. 3.850(f) ; see also Spera, 971 So.2d 754.

We affirm the order to the extent that it denied relief on grounds one and two of the motion. We reverse the order to the extent that it summarily denied relief on ground three. We direct the postconviction court to strike ground three with leave to amend within a reasonable time. The postconviction court may, again, summarily deny ground three if Mr. Filipkowski fails to allege the requisite prejudice or the postconviction court attaches those portions of the record that conclusively refute the claim. Otherwise, it must hold an evidentiary hearing. See Fla. R. Crim. P. 3.850(f).

Affirmed in part, reversed in part, and remanded with directions.

MORRIS and LUCAS, JJ., Concur.

      Judge Mark F. Carpanini entered an order denying grounds one and three and denying relief on ground two, in part. Thereafter, Judge Carpanini recused himself before entry of a final order on the motion and amended motions. Judge William D. Sites entered the final order on review, adopting Judge Carpanini's prior rulings, including the denial of ground three.

      Mr. Filipkowski miscalculated his actual maximum possible sentence. He pleaded no contest to six second-degree felonies, two third-degree felonies, and a first-degree misdemeanor. Thus, he faced a maximum sentence of 101 years' imprisonment. See §§ 784.03(1), Fla. Stat. (2009 and 2010); §§ 800.04(5)(c)(2), (7)(b), Fla. Stat. (2008, 2009, and 2010); §§ 827.071(5)(a), 847.0135(3), Fla. Stat. (2011). If the trial court had imposed the maximum sentence for each offense concurrently, Mr. Filipkowski faced fifteen years' imprisonment.

      A defendant may seek to withdraw from an involuntary plea under rule 3.850(a)(5) based upon the trial court's alleged failure to advise him of his maximum penalty in accordance with rule 3.172(c)(1). Marckman, 997 So.2d at 1276 (first citing Mungen v. State, 932 So.2d 1229, 1230 (Fla. 2d DCA 2006) ; then citing Youngblood v. State, 930 So.2d 852, 852 (Fla. 2d DCA 2006) ; and then citing Butler v. State, 764 So.2d 794, 795 (Fla. 2d DCA 2000) ).

      The plea transcript reflects that there was no written plea agreement. In addition, Mr. Filipkowski had no prior convictions. During the plea colloquy, Mr. Filipkowski agreed that no one had made any promises about his sentences, and he acknowledged that his attorneys had given him the "sentencing guidelines." (Presumably, he meant that his attorneys gave him his scoresheet.) Although the scoresheet presumably would have reflected Mr. Filipkowski's maximum possible sentence, the scoresheet is not included in the record, and we cannot assume that it did so. Cf. Campbell, 139 So.3d at 494 (holding that the postconviction court could not rely on the waiver of rights form to refute the defendant's claim that he was not advised of his maximum possible sentence when "the trial court failed to conduct a proper plea colloquy and determine whether [the defendant] understood the form").


author: PER CURIAM.

text:
    Susan A. BRODSKY, Appellant, v. Charles V. BRODSKY, Appellee.
    No. 3D17-51
    District Court of Appeal of Florida, Third District.
    Opinion filed June 20, 2018
    Susan A. Brodsky, in proper person.
    Charles V. Brodsky, in proper person.
    Before LAGOA, EMAS, and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979).


author: EISNAUGLE, J.

text:
    Jason Ray RIVERA, Appellant, v. Shannon PURTELL, Appellee.
    Case No. 5D17-2198
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 22, 2018
    Christie Mitchell, of The CLM Law Firm, P.A., Orlando, for Appellant.
    Shannon L. Akins, of Law Offices of Shannon L. Akins, P.A., Orlando, and David T. Roberts, of The Roberts Family Law Firm, P.A., Orlando, for Appellee.
   EISNAUGLE, J.

Jason Ray Rivera ("Father") timely appeals an order that granted Shannon Purtell's ("Mother") motion for a new trial and set aside a Final Judgment of Paternity, Parental Responsibility, Timesharing and Child Support ("Final Judgment"). Father's only argument on appeal is that the trial court erroneously concluded in its order granting a new trial that it could not prospectively modify timesharing as of the time the child starts kindergarten. We agree with Father and reverse the trial court's order granting a new trial.

The Final Judgment and Order Granting New Trial

Mother and Father both filed petitions to determine paternity below. At the conclusion of trial, the court entered a Final Judgment finding that Father is the child's biological and legal father and set a timesharing schedule.

Initially, the court ordered equal timesharing, with each parent having the child multiple nights during the week even though the parties live about fifty miles apart. However, the Final Judgment provided that once the child started kindergarten, the child's residence for school purposes would be Father's home. At that point, Father would have majority timesharing during the school year unless Mother has "moved within 25 miles" of Father's residence by that time.

Mother moved for rehearing and a new trial, arguing, inter alia , that the Final Judgment "improperly and prospectively required what amounts to a relocation of the child." She argued that the trial court could not make a "prospective" determination as to timesharing, citing to J.P. v. D.P. , 196 So.3d 1274 (Fla. 1st DCA 2016). According to Mother, J.P. prohibits the trial court from making any determination based on future events.

After a hearing, the trial court granted Mother's motion for new trial, citing J.P. and Arthur v. Arthur , 54 So.3d 454 (Fla. 2011). In so doing, the trial court echoed the Arthur decision and reasoned that:

the court is not equipped with a crystal ball that enables the court to determine what is best for the child when she is school-aged. Rather, the court can only make a determination of the best interest of the child at the time of the final hearing.

On appeal, Father argues that the trial court erred as a matter of law when it determined that it could not prospectively determine a change in timesharing based upon the child starting kindergarten. Father distinguishes Arthur and its progeny, arguing that the trial court may prospectively determine timesharing based upon an objectively and reasonably certain future event, citing to this court's decisions in Snowden v. Snowden , 985 So.2d 584 (Fla. 5th DCA 2008) and Stevens v. Stevens , 929 So.2d 721 (Fla. 5th DCA 2006). Mother, on the other hand, argues that Arthur and J.P. apply here, and that the trial court's timesharing plan is improperly prospective.

We review the trial court's order granting rehearing and a new trial de novo because the only issue on appeal presents a pure question of law. See Van v. Schmidt , 122 So.3d 243, 252 (Fla. 2013).

Arthur and Prospective Determinations in Family Law Cases

In Arthur , our supreme court considered the propriety of a "prospective based" relocation determination in a dissolution action based upon the best interests of a child at some time in the future. In that case, the trial court designated former wife as the primary residential parent and granted her request to relocate with the child, but delayed the relocation for twenty months until the child was three, concluding that the delay would give the child time to bond with former husband. Arthur , 54 So.3d at 455.

On appeal, former husband argued that the delayed relocation "was a prospective determination of the child's best interest and that the court lacked authority to make such a determination." Id. The second district affirmed, concluding that the trial court's detailed findings supported the delayed relocation request. Id. at 456.

On review, the Florida Supreme Court disagreed and reversed the portion of the order which prospectively authorized relocation of the child. The court explained:

the trial court authorized the relocation based in part on its conclusion that relocation would be in the best interests of the child twenty months from the date of the hearing. Such a "prospective-based" analysis is unsound. Indeed, a trial court is not equipped with a "crystal ball" that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation.

Id. at 459. In conclusion, the supreme court held that "[b]ecause trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a 'present-based' analysis." Id.

Since Arthur was decided, Florida's district courts have wrestled with its application. In Krift v. Obenour , 152 So.3d 645 (Fla. 4th DCA 2014), for instance, the fourth district interpreted Arthur narrowly, appearing to conclude that the prohibition on prospective-based determinations does not apply outside of the context of a petition for relocation of the child. Id. at 649. In that case, the trial court awarded equal, rotating timesharing between the parties until the minor child reached kindergarten. Id. at 647. Upon the child starting school, however, the trial court designated former husband the primary residential parent and gave him majority timesharing. Id.

On appeal, former wife argued that the trial court's modification of timesharing upon the child starting kindergarten was an "improper prospective relocation of the child." Id. at 648. The fourth district disagreed and distinguished Arthur , concluding that the "trial court's decision regarding the child's residence upon reaching kindergarten age is not a ruling on a relocation request." Id. at 649. The court reasoned that the "parenting plan in the amended final judgment does not involve 'relocation' ... but rather orders that the father become the primary residential parent once the child begins kindergarten." Id.

In J.P. , the first district took a broader view of Arthur , and applied the prospective-based prohibition to a timesharing determination. In that case, the trial court granted primary residency for the parties' six-year-old daughter to the father during elementary school, but prospectively changed the child's residency, requiring her to move 300 miles, when she started middle school. 196 So.3d at 1275.

On appeal, the first district reversed, concluding that the trial court's "prospective-based" change in the child's residence was contrary to Arthur . Id. at 1277. The district court reasoned that:

the trial court was not equipped with a crystal ball that would enable it to determine whether it would be in the best interests of the child, who is currently in first grade, to relocate over 300 miles away to live with her mother when she begins middle school. The relevant determination is the best interests of the child at the time of the final hearing. At the time of the final hearing, the court determined that it was in the child's best interests to live with appellant in Orlando and go to school there. Thus, the trial court abused its discretion when it ordered that she would relocate to live with her mother upon finishing elementary school.

Id.

Arthur Does Not Apply to Determinations Based on Reasonably Certain Future Events

We reject Mother's argument that the Final Judgment in this case violates Arthur . In our view, Arthur only prohibits a trial court from predicting a change in a child's best interests as of some future date or event. Such a practice would, of course, require the trial court to engage in an educated guess at best, and pure speculation at worst. However, we conclude that Arthur does not prohibit a timesharing plan which, as here, applies the child's best interests as determined at the time of the final hearing to an event that is reasonably and objectively certain to occur at an identifiable time in the future. In such a case, the trial court's determination is based upon the facts before it at the final hearing, and no crystal ball is required.

Likewise, J.P. does not advance Mother's argument for two reasons. First, to the extent J.P. holds that a trial court may not account for reasonably and objectively anticipated changes when creating a timesharing plan, we find it unpersuasive. Indeed, when crafting a timesharing plan, a trial court must be free to account for reasonably and objectively certain future events. Otherwise, the parties would be required to continuously seek permission from the court after every change that inevitably occurs in a child's life, like starting school. We decline Mother's invitation to interpret Arthur 's prohibition so broadly that Florida's trial courts become de facto parents.

Second, our holding today is not necessarily inconsistent with J.P. In J.P. , the change in residency was not based upon the child starting school outright, but rather on the child graduating from elementary to middle school. Importantly, there is nothing in J.P. to indicate that a shift from elementary school to middle school itself would justify a change in the child's residency or timesharing. In this case, the material change in circumstances was the expectation that the child would start school, not simply progress to the next grade.

Although not directly on point, we agree with Father that our decisions in Snowden v. Snowden , 985 So.2d 584 (Fla. 5th DCA 2008) and Stevens v. Stevens , 929 So.2d 721 (Fla. 5th DCA 2006) are instructive. In Snowden , former husband petitioned to modify child custody and to enforce a final judgment that provided for a change in custody if either party consumed alcoholic beverages or illegal drugs while the children were in that party's custody. 985 So.2d at 585-86.

The trial court denied the petition, finding that although former wife had consumed alcohol on a couple of occasions, she was never "impaired" while the children were in her custody. On appeal, former husband argued that Stevens was controlling, and that the trial court abused its discretion in refusing to order a change in custody based upon a future event (former wife's use of alcohol) identified in the final judgment.

We rejected former husband's argument, however, reasoning that Stevens "involved a planned custody change based upon an expected date-certain event."

Snowden , 985 So.2d at 587. We noted that in Stevens "the parties could reasonably anticipate the circumstances that would exist at the end of the husband's tour of duty, and the court could therefore make a reasoned best interests determination based upon those anticipated circumstances." Id. In contrast to Stevens , we concluded in Snowden that the trial court "could not have reasonably anticipated when, if ever, the [change in custody] provision would become operative." Id.

The reasoning employed in Snowden is consistent with Arthur and applicable here. There was nothing speculative or uncertain about the child in this case starting kindergarten. In fact, section 61.13(2)(b)3.b, Florida Statutes (2016), anticipates that children will start school and therefore requires a trial court to designate a residence for school boundary purposes when entering a timesharing order. Such an event is by definition a reasonably and objectively anticipated change in circumstances that will occur at a time certain. Thus, in this case, it was entirely proper for the trial court to adjust timesharing as of the time the child starts kindergarten. As such, we conclude that the Final Judgment does not violate Arthur 's prohibition on prospective-based best interest determinations, and that the trial court erred in granting rehearing and a new trial on that ground.

We therefore reverse the order granting Mother's motion for rehearing and new trial, and instruct the trial court to reinstate the Final Judgment.

REVERSED and REMANDED.

COHEN, C.J., and TORPY, J., concur.

      The child was three years old at the time of trial.


author: Roberts, J.

text:
    Imraan ANSAARIE, M.D., Appellant, v. FIRST COAST CARDIOVASCULAR INSTITUTE, P.A., Appellee.
    No. 1D17-2191
    District Court of Appeal of Florida, First District.
    June 28, 2018
    Seth Schwartz, Albert J. Tasker, IV, and Jesse Berryman of The Schwartz Law Group, P.A., Jacksonville, for Appellant.
    Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville; Michelle Barnett and Todd A Wright of Alexander Degance Barnett, P.A., Jacksonville, for Appellee.
   Roberts, J.

The appellant, Dr. Imraan Ansaarie, challenges a temporary injunction entered by the lower court on behalf of the appellee, First Coast Cardiovascular Institute, P.A. (FCCI), that severely restricted his ability to practice medicine in Putnam County, Florida. We find no error with the temporary injunction and affirm.

Facts

FCCI is a professional medical practice that provides medical care in the fields of cardiovascular medicine and sleep disorders. FCCI operates medical offices in several Florida counties, including Putnam County. In 2013, FCCI began expending substantial resources to develop a cardiology practice in Putnam County, which included marketing, hiring physicians and support staff, and constructing a large catheterization laboratory within walking distance of the local hospital, Putnam County Medical Center (PCMC). PCMC also has its own catheterization laboratory wherein cardiologists employed by FCCI, as well as cardiologists who are not employed by FCCI, can practice. In 2013, FCCI contracted with PCMC to provide 24/7 "STEMI" services at the hospital. FCCI expends significant resources annually in order to meet its contractual requirement with PCMC.

In furtherance of its efforts in Putnam County, FCCI recruited Dr. Ansaarie, a well-respected interventional cardiovascular surgeon, from out-of-state. Dr. Ansaarie entered into a Physicians Employment Agreement (the Agreement) with FCCI in April 2014, wherein he agreed to be bound by the terms and restrictive covenants of the Agreement. The non-competition provision prohibited Dr. Ansaarie from providing competing cardiovascular services within a five-mile radius of FCCI's practice for two years after termination of employment. The non-solicitation provision prohibited Dr. Ansaarie from soliciting an FCCI patient, referral source, or vendor for competing cardiovascular services within the restricted geographic area and time period.

Dr. Ansaarie began his employment with FCCI in September 2014. FCCI invested in Dr. Ansaarie's success by marketing him and by providing him with access to FCCI's patients and referral sources. FCCI also arranged for Dr. Ansaarie to become the medical director of the PCMC Catheterization Laboratory, which position he assumed in 2015.

In October 2016, while still employed with FCCI, Dr. Ansaarie filed articles of incorporation with the Florida Department of State to create his own independent medical practice in Putnam County. In November 2016, FCCI gave Dr. Ansaarie notice that his employment would terminate on March 23, 2017. After termination, Dr. Ansaarie continued to see patients at his independent medical practice and continued to treat patients at PCMC. He also continued to serve as director of the PCMC Catheterization Laboratory.

Injunctive Relief

FCCI immediately sought injunctive relief to restrain Dr. Ansaarie from breaching the restrictive covenants. FCCI alleged that it had legitimate business interests in its substantial relationships with specific prospective and/or existing patients and referral sources as well as legitimate business interests in the customer and patient goodwill that it had established in the area. FCCI put forth evidence that its referral sources had declined since Dr. Ansaarie's departure and that many existing patients had asked to have their files transferred to Dr. Ansaarie's practice. The lower court granted the motion for temporary injunction, finding FCCI had satisfied all of the elements for temporary injunctive relief. The lower court found FCCI's asserted interests were "legitimate business interests," the restrictive covenants were valid and enforceable, and Dr. Ansaarie's contravention of these covenants would irreparably harm FCCI.

The order temporarily enjoined Dr. Ansaarie from, among other things, providing cardiovascular services within the prohibited five-mile radius, including treating patients at PCMC; soliciting FCCI's patients, and soliciting FCCI's referral sources or PCMC. On appeal, Dr. Ansaarie seeks relief from the temporary injunction.

Standard of Review

We review a lower court's factual findings in an order for temporary injunction for an abuse of discretion, but review legal conclusions de novo . DePuy Orthopaedics, Inc. v. Waxman , 95 So.3d 928, 933-34 (Fla. 1st DCA 2012). See also White v. Mederi Caretenders Visiting Servs. of Se. Fla., LLC , 226 So.3d 774, 779 (Fla. 2017) (applying a de novo review to the issue of whether home health care service referral sources were a protected legitimate business interest under section 542.335, Florida Statutes (2016) ).

To be entitled to a temporary injunction, FCCI had to plead and establish the following four elements: (1) the likelihood of irreparable injury, (2) the unavailability of an adequate remedy at law, (3) a substantial likelihood of success on the merits, and (4) a temporary injunction will serve the public interest. DePuy , 95 So.3d at 938 (citations omitted). A temporary injunction is an available remedy when a party establishes that it has a valid, enforceable restrictive covenant that was violated. § 542.335(1)(j), Fla. Stat. (2016). Subsections 542.335(1)(b) and (c), Florida Statutes (2016), set the standard for enforcing restrictive covenants and require the party seeking enforcement to plead and prove: (1) the existence of "one or more legitimate business interests" justifying the restrictive covenant and (2) the contractually specified restraint is reasonably necessary to protect the legitimate business interest(s). The lower court properly determined the restrictive covenants were valid and enforceable here.

Legitimate Business Interests

1. Prospective and Existing Patients

A "legitimate business interest" includes, but is not limited to, substantial relationships with "specific prospective or existing customers, patients or clients." § 542.335(1)(b) 3., Fla. Stat. (2016). The lower court found FCCI had demonstrated a legitimate business interest in prospective and existing patients. In University of Florida, Board of Trustees v. Sanal , 837 So.2d 512, 516 (Fla. 1st DCA 2003), this Court examined the language of section 542.335(1)(b) 3. and concluded "specific" modified "prospective"; therefore, in order for a relationship with a prospective patient to qualify as a legitimate business interest, a party had to prove the relationship was with a particular, identifiable individual. FCCI did not offer any evidence of "specific" prospective patients to meet this burden.

However, FCCI's proof that it lost existing patients distinguishes this case from Sanal wherein the injunction was denied for the aforementioned reasons, but also because the University was unable to prove that Dr. Sanal had treated any existing patients. Id. at 514. FCCI put forth evidence of its efforts to cultivate a cardiac practice in Putnam County before 2014 as well as evidence that a number of its patients had recently requested to transfer their files to Dr. Ansaarie. The lower court properly found FCCI demonstrated a legitimate business interest in its substantial relationships with its existing patients. See Litwinczuk v. Palm Beach Cardiovascular Clinic, L.C. , 939 So.2d 268, 272 (Fla. 4th DCA 2006) (affirming a temporary injunction where a clinic established a legitimate business interest in its existing patients, forty-nine of which had been seen by the competing doctor in the same geographic area).

2. Substantial Investment: Existing Patient and Client Goodwill

"Legitimate business interest" also includes "customer, patient, or client goodwill" associated with "a specific geographic location" or "a specific marketing or trade area." § 542.335(1)(b) 4., Fla. Stat. (2016). In addition to proving a legitimate business interest in its substantial relationships with existing patients, FCCI also proved its substantial investments in developing its existing patient, client, and customer base as well as patient, client, and customer goodwill in Putnam County. See Southernmost Foot & Ankle Specialists, P.A. v. Torregrosa , 891 So.2d 591, 594 (Fla. 3d DCA 2004) (affirming the lower court's finding that Southernmost's investment in developing a podiatry practice in the Keys and recruiting Torregrosa for that practice constituted a legitimate business interest).

The lower court appropriately determined FCCI met its requirement under section 542.335(1)(c) by pleading and proving at least two legitimate business interests. Dr. Ansaarie ignores proof of the aforementioned legitimate business interests and contests two additional legitimate business interests on appeal. First, he argues that the lower court erred in interpreting physician referral sources to be a legitimate business interest. We reject this argument in light of the supreme court's recent holding that physician referral sources can constitute a legitimate business interest under section 542.335(1)(b). Mederi Caretenders , 226 So.3d at 786 (concluding that home health services referral sources may be a protected legitimate business interest "depending upon the context and proof adduced."). The lower court's finding in this regard was supported by competent, substantial evidence. Second, Dr. Ansaarie argues that FCCI's relationship with PCMC was not a legitimate business interest. We decline to address this argument as irrelevant because FCCI proved legitimate business interests necessary to justify the injunction's restrictions relating to existing patients, investment in Putnam County, and referral sources.

Reasonably Necessary

After demonstrating one or more legitimate business interests, FCCI was also required to plead and prove that the restraints were reasonably necessary to protect those interests. § 542.335(1)(c), Fla. Stat. (2016). The lower court properly found FCCI met this burden.

1. Restriction on Competition

Testimony showed the substantial financial and time investment FCCI had spent since 2013 to establish its cardiology practice in Putnam County and to recruit Dr. Ansaarie as a primary in the practice. The trial court found these efforts generated a substantial patient base and relationships that were legitimate business interests. Dr. Ansaarie does not challenge the two-year time limitation or the five-mile radius of the non-competition provision. FCCI proved that the restrictive covenants were reasonably necessary to protect its interests. See Torregrosa , 891 So.2d at 594 (finding similar evidence supported trial court's proper finding that a non-compete was reasonably necessary); see also Litwinczuk , 939 So.2d at 272.

2. Restriction on Solicitation

Case law has recognized the right of employers to enforce similar non-solicitation provisions when a former employee solicits its customers. Smart Pharmacy, Inc. v. Viccari , 213 So.3d 986, 989 (Fla. 1st DCA 2016) ; Litwinczuk , 939 So.2d at 270, 272-73 ; Torregrosa , 891 So.2d at 593-96. Dr. Ansaarie does not focus his argument on whether the non-solicitation was reasonably necessary. He mainly argues that there was no evidence that he directly solicited any of FCCI's patients, clients, or customers. Dr. Ansaarie's argument is misplaced in that FCCI made a sufficient evidentiary showing that enforcement of the restrictive covenants was reasonably necessary to protect its interests. See Infinity Home, 180 So.3d at 1067 (finding evidence that former employee was soliciting the same referral sources and employer's evidence of a decline in referrals after former employee's departure was sufficient to find enforcement of restrictive covenants was reasonably necessary to prevent unfair competition).

Once FCCI established a prima facie case that the restrictive covenants were reasonably necessary, the burden shifted to Dr. Ansaarie to establish that the restrictive covenants were overbroad, overlong, or otherwise not reasonably necessary. § 542.335(1)(c), Fla. Stat. (2016). Dr. Ansaarie did not make any arguments below that the restrictive covenants were overbroad or overlong.

Injunctive Relief

The lower court properly concluded that the restrictive covenants were valid and enforceable. The court also found that Dr. Ansaarie violated the terms of the restrictive covenants, which finding was supported by competent, substantial evidence. Litwinczuk , 939 So.2d at 271. The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of the restrictive covenant. § 542.335(1)(j), Fla. Stat. (2016). Once the presumption passed from FCCI, it became Dr. Ansaarie's burden to demonstrate the absence of irreparable injury, which the trial court found he failed to do. Environmental Servs., Inc. v. Carter , 9 So.3d 1258, 1266 (Fla. 5th DCA 2009) ; see also Variable Annuity Life Ins. Co. v. Hausinger , 927 So.2d 243, 245 (Fla. 2d DCA 2006) (recognizing the presumed harm under section 542.335 includes potential damages to a party's longstanding relationships with its customers and the protection of confidential client information). Dr. Ansaarie does not challenge the trial court's findings on the other three prongs for injunctive relief: the unavailability of an adequate remedy at law, a substantial likelihood of success on the merits, and a temporary injunction will serve the public interest. Those findings were properly made and were supported by the evidence. We find the temporary injunction was properly entered and AFFIRM.

Rowe and Winokur, JJ., concur.

      STEMI stands for ST-elevation myocardial infarction, which in layman's terms, encompasses serious heart attack patients.

      The Agreement defined "solicit" to mean "initiate contact, or knowingly receive contact, or to in any manner cause or encourage contact."

      Dr. Ansaarie's medical office was outside of the restricted five-mile area, but he could not perform any cardiovascular procedures in the office.


text:
    MIAMI REAL ESTATE INVEST, LLC, etc., Appellant, v. BEINI XU, et al., Appellees.
    Nos. 3D17-2332 & 3D17-1764
    District Court of Appeal of Florida, Third District.
    Opinion filed July 5, 2018
    Simon, Schindler & Sandberg, LLP, and Roger J. Schindler, Miami, for appellant.
    Lydecker | Diaz, and Joan Carlos Wizel, Miami, for appellees.
    Before SALTER, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Rotemi Realty, Inc. v. Act Realty Co., 911 So.2d 1181, 1189 (Fla. 2005) (holding that "to earn a commission a broker must perform two essential tasks: First, the broker must 'initiate negotiations by doing some affirmative act to bring the buyer and seller together.' Second, the broker must remain 'involved in the continuing negotiations between the seller and the buyer,' unless 'the seller and buyer intentionally exclude the broker from the negotiations.' Whether a broker has performed these tasks 'is a question of fact that the fact-finder must determine from the surrounding circumstances. Appellate courts uphold such determinations when supported by competent, substantial evidence' ") (internal citations omitted). See also Brickell Bayview Real Estate, Inc. v. Cooper, 691 So.2d 1094 (Fla. 3d DCA 1997) (holding that trial court's determination that appellant was not the procuring cause of the sale was supported by competent substantial evidence and hence could not be disturbed on appeal); Zupnik Haverland LLC v. Current Builders of Fla., Inc., 7 So.3d 1132, 1134 (Fla. 4th DCA 2009) (holding: "The lower court's ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence or to constitute an abuse of discretion").


author: LOGUE, J.

text:
    Edwidge Marie DESULME, Appellant, v. Miguel RUEDA, etc., et al., Appellees.
    No. 3D17-1652
    District Court of Appeal of Florida, Third District.
    Opinion filed July 11, 2018
    Edwidge Marie Desulme, in proper person.
    Law Offices of Douglas J. Jeffrey, P.A., and Douglas J. Jeffrey, Coral Gables; American Justice, P.A., and Theresa B. Edwards (Fort Lauderdale), for appellee Miguel Rueda.
    Before ROTHENBERG, C.J., and LOGUE and SCALES, JJ.
   LOGUE, J.

Edwidge Marie Desulme appeals an order dismissing her complaint against a receiver without prejudice to her seeking leave in the case establishing the receivership to sue the receiver. We affirm.

Desulme owns a unit in a distressed condominium that is subject to a court-ordered receivership. In Re Petition of Countryside Village Condo. Ass'n, Inc., Case no. 2010-61776 CA 32 (Fla. 11th Cir. April 13, 2011). She alleges that the receiver took possession of her unit, displaced her tenant, altered or repaired the unit without her consent, and collected higher rents from a new tenant. Although she agreed at one point to have the rent from the unit pay her long-standing arrears in condominium assessments, Desulme ultimately sued the receiver, tenant, association, and management company for forcible entry, unlawful detainer, ejectment, and trespass. Among other things, she seeks double the rental value and punitive damages.

In the decision under review, the trial court granted the receiver's motion to dismiss. The dismissal was without prejudice to Desulme seeking leave in the case establishing the receivership to sue the receiver. The dismissal also specified that the court "has not yet taken evidence or heard whether the receiver has stepped outside the ambit of the court order appointing him or done an act for personal or private gain not in furtherance of the receivership which might subject him to personal liability. This Court defers on this issue until it hears the Defendant's motion for leave to file separate action."

In dismissing the case without prejudice in this manner, the trial court properly applied the Barton doctrine, which requires that "before suit is brought against a receiver leave of the court by which he was appointed must be obtained." Barton v. Barbour, 104 U.S. 126, 128, 26 L.Ed. 672 (1881). Florida recognizes this doctrine. See Asset Recovery Group, LLC v. Cabrera, 233 So.3d 1173, 1176 (Fla. 3d DCA 2017) ("Even when the receiver has been discharged ... leave from the court that had appointed the receiver must still be obtained to file suit against the receiver. The requesting party must demonstrate a prima facie case of liability before the appointing court may grant leave to file suit.") (citation omitted); One South Ocean Drive 2000, Ltd. v. One Ocean Boca, LLC, 182 So.3d 872, 874 (Fla. 4th DCA 2016).

An exception to this general rules exists where the receiver has acted outside his or her legal authority. See generally Murtha v. Steijskal, 232 So.2d 53, 55 (Fla. 4th DCA 1970). However, when it is not clear from the face of the complaint whether the receiver acted outside his authority, it is proper to have that review take place in the context of a request to file suit against the receiver filed and heard in the case establishing the receivership. This process ensures that the issue is resolved by the trial court presiding over the receivership after notice to the parties to the receivership.

Affirmed.


author: LINDSEY, J.

text:
    Jose SARDINAS, Petitioner, v. Daniel JUNIOR, Director, Miami-Dade Corrections and Rehabilitation Department, and The State of Florida, Respondents.
    No. 3D18-1320
    District Court of Appeal of Florida, Third District.
    Opinion filed July 12, 2018
    Carlos J. Martinez, Public Defender, and James Odell, Assistant Public Defender, for petitioner.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for respondent The State of Florida.
    Before SALTER, LOGUE, and LINDSEY, JJ.
   LINDSEY, J.

Jose Sardinas petitions this Court to issue a writ of habeas corpus ordering the trial court to set conditions for his pretrial release. For the reasons set forth below, we deny the petition.

Mr. Sardinas was arrested on January 15, 2018 and charged with aggravated assault with a deadly weapon. Since that time, Mr. Sardinas has failed to comply with the conditions of his pretrial release on at least three separate occasions. His most recent arrest stems from an alias capias issued on December 4, 2015 and served on June 15, 2018.

On June 24, 2018, Mr. Sardinas' counsel filed a motion entitled, Motion to Instate Bond, requesting that a bond be set and contending that the trial court cannot hold him in pretrial detention without a written motion filed by the State. The next day, on June 25, 2018, the State filed a motion entitled, State's Motion to Revoke the Defendant's Bond Pursuant to Rule 3.131, wherein the State asserted that:

There has been a change in circumstances since the First Appearance Judge heard bond arguments: the Defendant has absconded the Honorable Court for over two years, demonstrating that the Defendant poses an increased risk of flight. This Court is bound to consider any condition deemed necessary to assure a defendant's appearance as required, and the penalty the Defendant now faces increased flight liability since he has absconded this Court over two years. Therefore, the Defendant's bond should reflect accordingly to assure his presence in court.

The trial court heard both motions on June 25, 2018. At the hearing, Mr. Sardinas, through counsel, represented that he has family in the community, is not working, was originally released to the pretrial intervention (PTI) program, that there were "some failures to appear," and that his bond was revoked on December 4, 2015. He further represented, through counsel, that he was willing to comply with any requirement of the court, including house arrest with a monitor, yet was unable to provide a current address.

The State argued that the only way to secure Mr. Sardinas' presence before the court was to hold him in custody and expressed concern over the number of years he had been absent from the court, that he was a flight risk and, that even on house arrest, there would be no way to know where he is staying.

At the conclusion of the hearing, the trial court stated: "Under the circumstances, the [c]ourt is going to hold the defendant no bond and make a finding that there is no condition of release that I can set that will reasonably assure his appearance and the safety of the community against the factual background I just reviewed." The trial court based its determination to hold Mr. Sardinas on the fact that: (1) it's "a case involving violence," (2) he is not "a native and a citizen of the United States," (3) he "has been missing for about three years from the proceedings in this case, since the AC [alias capias]," (4) he is not employed, and (5) he is homeless which gives rise to a concern that "we wouldn't know where to find him potentially." On June 29, 2018, the instant petition was filed.

In the petition, Mr. Sardinas contends that the State's motion was facially insufficient to initiate pretrial detention proceedings pursuant to section 907.041, Florida Statutes (2018), and Florida Rule of Criminal Procedure 3.131. As such, Mr. Sardinas contends that "[w]hen the State does not file a motion for pretrial detention a court 'is not authorized to impose pretrial detention.' " Resendes v. Bradshaw, 935 So.2d 19, 20 (Fla. 4th DCA 2006).

In Bratton v. Ryan, this Court explained that:

In State v. Paul, 783 So.2d 1042, 1051 (Fla. 2001), the Florida Supreme Court held that when a defendant breaches a bond condition and his bond is revoked, the trial court may deny the defendant's subsequent request for a new bond, but the trial court's discretion is limited by Florida statutes. Section 907.041(4)(c)(7) provides that:
(c) The court may order pretrial detention if it finds a substantial probability, based on a defendant's past and present patterns of behavior, the criteria in s. 903.046, and any other relevant facts, that any of the following circumstances exist:
....
7. The defendant has violated one or more conditions of pretrial release or bond for the offense currently before the court and the violation, in the discretion of the court, supports a finding that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial[.]
Among the criteria in section 903.046 that the trial court may consider is "[t]he defendant's past and present conduct, including ... failure to appear at court proceedings." § 903.046(2)(d).

133 So.3d 1158, 1159 (Fla. 3d DCA 2014) (alterations in original).

In Bratton, the defendant's bond was revoked for failing to appear for a pretrial sounding after receiving notice. Id. at 1159. The defendant contended he was "entitled to a full hearing and findings by the trial court pursuant to sections 907.041 and 903.046, Florida Statutes (2014)[.]" Id. This Court granted the petition and reversed because the trial court failed to make the requisite findings. Id.

Here, the trial court considered at least five factors in determining that no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial. Further, the transcript of the hearing reflects that the following exchange occurred between the trial court and Mr. Sardinas' counsel:

THE COURT: Okay, and the State didn't actually move for pretrial detention, right?
[MR. SARDINAS' COUNSEL]: Correct, Your Honor.
THE COURT: Okay. So you want me to review it and set a bond if that's appropriate, right?
[MR. SARDINAS' COUNSEL]: Yes, Your Honor.
THE COURT: Okay. Tell me Mr. Sardinas's background; tell me a little bit about his - - his ties to the community, his background.
What was the original bond set at and what - - even if I feel that it was a willful failure to appear, you maintain that I still should take a look at it, and see if there's appropriate bond that can be set, right?
[MR. SARDINAS' COUNSEL]: Correct, Your Honor.
THE COURT: Okay. So tell me a little bit about your client - -
....
THE COURT: Okay. Any other things you need to tell me before I hear from the State?
[MR. SARDINAS' COUNSEL]: No, Your Honor.
....
THE COURT: Okay. State, what do you want to tell me about this from your perspective?
[THE STATE]: Your Honor, so from a procedural standpoint first, in case it was not clear in the past, the State is making a motion to increase or revoke the defendant's bond - -
THE COURT: Okay.
[THE STATE]: So there'd be a point that they're asking for a written motion, the State does have a written motion today.
THE COURT: Okay.
[THE STATE]: If that pleases the Court and pleases the defense attorney, so now it is in writing that we are requesting to revoke the defendant's bond pursuant to Rule 3.131.
THE COURT: Okay, if you do that, aren't the - - is - - procedurally, are they entitled to some additional time? I don't know if they want to have it heard today or not?
[THE STATE]: Your honor, if they do want additional time, it's fine. This is a standard motion....

To the extent Mr. Sardinas alleges in the instant petition that the trial court could not order pretrial detention absent a written motion filed by the State, the State expressly clarified on the record that it had filed a written motion and was seeking to revoke Mr. Sardinas' bond pursuant to Rule 3.131. Further once the State made clear on the record that it was seeking to have Mr. Sardinas held in custody, there was neither an objection to the form of the State's request nor a request for a different form of written motion.

In addition, the trial court specifically raised the issue as to whether Mr. Sardinas needed additional time to respond to the State's motion (to which the State responded it had no objection). The trial court then inquired as to whether Mr. Sardinas wanted the court to hear the State's motion or whether he needed additional time to respond. Although Mr. Sardinas did argue, through counsel, for some form of pretrial release, he neither objected to the State's motion being heard nor accepted the trial court's invitation to take additional time.

PETITION DENIED.