author: THREADGILL, EDWARD F., Senior Judge.

text:
    Vivian THRASHER, Appellant, v. Marco A. ARIDA, Appellee.
    No. 2D02-5154.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.
    David A. Wallace and Morgan R. Bentley of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for Appellant.
    Robert W. Boos, John H. Pelzer, and Beth A. Cronin of Ruden, McClosky, Smith, Schuster & Russell, P.A., Tampa, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Vivian Thrasher appeals from a final judgment in a quiet title action brought by Marco Arida disputing whether their common root of title from the Vander Griends conveyed the fee or merely an easement across a fifty-foot strip of land adjacent to both of their properties. Because we conclude that a latent ambiguity existed in the original warranty deed, we reverse and remand for the court to take testimony concerning the quality of title intended to be conveyed.

The Vander Griends owned the original parcel of forty acres until 1969 when they conveyed ten acres of it to the Schomburgs by warranty deed (the Schomburg deed) that separately described two parcels. The deed’s language first described by metes and bounds in a block-indented paragraph a parcel (referred to in this case as Parcel One) that contained 10.0 acres. Parcel One is located in the northwest corner of the original parcel and its conveyance of fee title is not disputed. The next paragraph continues at the left margin and reads “[tjogether with a 50-foot strip for ingress and egress described ... ”, and includes a separate metes and bounds description for that property. The disputed parcel (Parcel Two) is a 50-foot by 305-foot strip, and its acreage is not specified in the deed. The deed’s next flush paragraph below Parcel Two’s description includes specifically listed buildings and fixtures connected with this chicken and egg farm property and miscellaneous yard equipment.

Parcel Two runs along the remaining portion of the original parcel’s western boundary to the southwest corner of the original parcel, where it intersects with a county road. The Vander Griends retained the remaining thirty acres of the original parcel (the Retained Lands) until they conveyed it to the Thrashers in 1972. Although they continued to reside and conduct a cattle farming business on the Retained Lands until 1972, the Schomburg deed did not reserve an easement or right-of-way across Parcel Two for their personal or ranching use.

In 1972, the Vander Griends conveyed to the Thrashers the fee title to the Retained Lands by deed that described the original parcel less Parcels One and Two conveyed in the Schomburg deed. On May 16,1997, Arida acquired Parcels One and Two. He then filed the complaint in this case to quiet title in fee simple to Parcel Two. Thrasher rejected his claim, but alternatively asserted a counterclaim for a prescriptive easement or easement by necessity across the property. Therefore, the issue in dispute is whether the interest in Parcel Two transferred by the Vander Griends to the Schomburgs is fee simple title or an easement for ingress and egress.

At the bench trial, Arida’s counsel asserted that the judge did not have to hear any evidence and that she could rule based on the documentary evidence alone. Ari-da’s counsel moved for a judgment as a matter of law before the trial actually started. The court declined, indicating that it had to at least take some evidence before it would consider such a motion.

The court considered exhibits 1 and 2, the Schomburg deed and mortgage, and ruled without considering any other evidence that Robb v. Atlantic Coast Line Railroad Co., 117 So.2d 584, 536-37 (Fla. 2d DCA 1960), controlled, to the effect that the language “for ingress and egress” was descriptive and did not create less than a fee simple title. The court rejected Thrasher’s argument that the ingress and egress language rendered the deed ambiguous on its face and ruled that the Schom-burg deed conveyed fee simple titles to both parcels.

Following its ruling, the court allowed Thrasher’s counsel to present several witnesses’ proffered parol testimony on the quality of title or the grantors’ intent to convey merely an easement as to Parcel Two. In particular, surveyor Leo Mills testified that Mr. Vander Griend employed him to prepare the survey that he made a week before the July 22, 1969, closing of the Schomburg deed and that his client told him that Parcel Two was intended as an easement. His survey specifically notes that the 50-foot strip was an “ingress & egress easement.” However, the legal description on the survey did not include the word “easement.” All of the parties to the Schomburg deed transaction relied on this survey map prior to and at the time of the closing, according to Mills.

Subsequently, the court reconvened to consider Thrasher’s counterclaim and ruled that she held a common law easement, as codified at section 704.01(1), Florida Statutes (2002), over Parcel Two and established two separately described easements across the strip for her use.

This appeal presents a question that is reviewed de novo. See Kaplan v. Bayer, 782 So.2d 417, 419 (Fla. 2d DCA 2001); Bd. of Trs. of the Internal Improvement Trust Fund v. Lost Tree Vill. Corp., 805 So.2d 22, 24 (Fla. 4th DCA 2001). There is a strong presumption in favor of the correctness of deeds and other official documents, but courts cannot lose sight of the fact that it is the intention of the parties which governs the interpretation of a document. Barr v. Schlarb, 314 So.2d 609, 610 (Fla. 1st DCA 1975). The court must interpret the contract in such a manner as to reconcile the conflicting provisions. Kaplan, 782 So.2d at 418. The most basic rule in a court’s interpretation of a deed is for the court to “consider the language of the entire instrument in order to determine the intent of the grantor, both as to the character of estate and the property conveyed and to so construe the instrument as if legally possible to effectuate such intent.” Reid v. Barry, 93 Fla. 849, 112 So. 846, 851 (1927).

Section 689.10, Florida Statutes (1969), provides that words of limitation in the conveyance of real estate shall be construed to vest fee simple title “unless a contrary intention shall appear in the deed.... ” We have examined whether the deed’s inconsistencies such as the parcels’ separate legal descriptions, the lack of an acreage specified as to Parcel Two, and the difference in paragraph style between the two parcels’ descriptions give rise to a latent ambiguity in the deed that requires the court to consider parol evidence to properly conclude the parties’ intent. As the court explained in Lost Tree Village, 805 So.2d at 25-26,

[a] latent ambiguity in a deed description is said to exist when the deed, clear on its face, is shown by some extraneous fact to present an equivocation by being susceptible to two or more possible meanings. Where there is a latent ambiguity in a deed or contract, parol and other extrinsic evidence may be introduced to show the true intent of the parties.
Whenever a party presents an arguable claim that a document contains a latent ambiguity, the court is obliged to consider the extrinsic evidence, at least to the extent necessary to determine whether the claimed latent ambiguity actually exists.

Id. (citations omitted).

The language in the conveyance of Parcel Two “for ingress and egress” is meaningless if one construes the conveyance to transfer fee simple. There would be no need for this language in the deed, and no reason to separate the two parcels’ legal descriptions in the deed. That language is inconsistent with an intent to transfer fee title to Parcel Two. Looking at the entire document, the legal description for Parcel One is blocked and indented to separate it from other paragraphs in the deed. The conveyance of the right of ingress and egress in Parcel Two is not indented and is similar to the ünindented language in the last paragraph that conveys title to fixtures and miscellany. Where only one construction will give full effect to all of the words of the instrument, it should be followed. Loveland v. CSX Tramp., Inc., 622 So.2d 1120 (Fla. 3d DCA 1993).

The inconsistencies on the face of the deed, together with the meaninglessness of the deed’s language “for ingress and egress,” if one construes it to have conveyed fee title, appear to create a contrary intention under section 689.10 as to Parcel Two. The survey map used by the parties to the transaction expresses a different intent as to the quality of title conveyed to the Schomburgs. The lower court also perceived the fact that the deed operated to landlock the grantor without reserving to the grantor any right-of-way albeit granting a way for ingress and egress for the grantee. Recognizing this dilemma, the trial court created an easement of necessity across the property for the benefit of Thrasher, the grantor’s successor in interest.

We conclude that the statute does not compel a finding of fee simple title of Parcel Two to Arida. The lower court’s reliance on Robb, 117 So.2d 534, is over-broad. That case is distinguishable because there was no ambiguity as to multiple legal descriptions with language limiting the quality of title or use of the property, and the warranty deed, using a single property description, conveyed a parcel “for right-of-way purposes” to the railroad.

We hold that a latent ambiguity exists in the deed’s description and in the quality of title intended to be transferred as to Parcel Two. We therefore reverse and remand for an evidentiary hearing to consider par-ol evidence of the parties’ intent.

WHATLEY and COVINGTON, JJ., concur.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Raymond MABREY, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 2D03-51.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.

      Raymond Mabrey, pro se.
    Mark J. Hiers, Assistant General Counsel, Tallahassee, for Respondent.
   WALLACE, Judge.

Raymond Mabrey, a state prisoner, petitions this court for a writ of certiorari to review a circuit court order that denied his petition for writ of habeas corpus. Ma-brey filed his habeas corpus petition in the circuit court to review the Florida Parole Commission’s revocation of his conditional release. Because we conclude that the circuit court’s order departs from the essential requirements of the law, we grant the petition, quash the circuit court’s order, and remand the case to the circuit court for further proceedings consistent with this opinion.

The Facts

On February 11, 1993, Mabrey was sentenced to a term of twenty-two years in prison. On January 1, 2001, after he had accumulated 155 months’ worth of basic and incentive gain time, Mabrey was released from custody in accordance with the provisions of sections 947.1405 and 947.141, Florida Statutes (2000), known as the “Conditional Release Program Act.”

At the time of the events relevant to this case, the terms of Mabrey’s conditional release included the following conditions:

7. YOU SHALL OBEY ALL LAWS, ORDINANCES AND STATUTORY CONDITIONS OF CONDITIONAL RELEASE.
16. YOU SHALL MAKE RESTITUTION TOWARD THE TOTAL AMOUNT OF $2,506.00 (NOT LESS THAN $40.00 PER MONTH) TO THE VICTIM IN CASE NUMBER 91-09561 WITH METHOD OF PAYMENT THROUGH YOUR CONDITIONAL RELEASE SUPERVISOR. ALL PAYMENTS MADE BY THE OFFENDER SHALL BE APPLIED TO RESTITUTION IN THE ABOVE NAMED CASE(S) UNTIL PAID IN FULL. PAYMENTS SHALL THEN BE APPLIED TO ANY OTHER FINANCIAL OBLIGATIONS REQUIRED BY THIS ORDER.

Condition 16 concerning the payment of restitution was not imposed at the time of Mabrey’s release but was added on May 21, 2001.

Evidence presented at Mabrey’s revocation hearing established the pertinent facts. The event that precipitated the revocation of Mabrey’s conditional release was a telephone call made by Mabrey’s girlfriend (to whom we shall refer as “S.W.”) to the St. Petersburg Police Department on the afternoon of September 23, 2001. Mabrey and S.W. had moved into an apartment in St. Petersburg earlier that month. Although the lease on the apartment was in S.W.’s name, Mabrey paid all the bills. S.W. testified that on the day in question, she wanted to leave the apartment in St. Petersburg and go home to Bradenton, but Mabrey would not let her take his car. S.W. decided to call the police and make a false report that Mabrey had hit her. Her motive was to get Mabrey out of the apartment so that she could take his vehicle and drive to Bradenton.

Officer David Skinner of the St. Peters-burg Police Department was dispatched to respond to S.W.’s report of domestic violence. When Skinner arrived, S.W. was waiting outside the apartment. She told Skinner that Mabrey had slapped her face and that she wanted him out of the apartment. Skinner entered the apartment and found Mabrey sitting on the bed. Mabrey made no comment to Skinner about S.W.’s claim that Mabrey had hit her. Skinner placed Mabrey under arrest. Skinner reported at the hearing that Mabrey was polite. Mabrey asked Skinner to call his probation officer so that she would know his whereabouts.

When S.W. realized that Mabrey was under arrest and going to jail, she told Skinner that she did not want Mabrey to go to jail, just out of the apartment. S.W. refused to fill out any victim witness sheets and declined to be photographed. Skinner did not observe any evidence of injury to S.W. S.W. testified that she refused to sign anything because she knew she was lying. After Mabrey was arrested, S.W. took his vehicle and went to Bra-denton.

Pursuant to a report filed by Mabrey’s probation officer, Crystal Milton, the Parole Commission issued a warrant for Mabrey’s arrest. The warrant charged Mabrey with violating condition 7 of the conditions of his release by slapping S.W. in the face. The warrant further charged Mabrey with violating condition 16 of the conditions of his release “in that he is $120.00 in arrears towards his monetary obligation in restitution as of September 25, 2001.”

The Violation Hearing

Mabrey entered a plea of not guilty to both charges. A parole examiner conducted a hearing on the warrant alleging that Mabrey had violated the conditions of his conditional release. Four witnesses, including Mabrey, testified at the hearing. S.W. appeared and denied that Mabrey had hit her as she had earlier reported. S.W. also testified concerning the details of her living arrangements with Mabrey, the events that led to her telephone call to the police, and her motivation for making the false report that Mabrey had slapped her. S.W. also offered some testimony concerning Mabrey’s earnings and their joint living expenses, which Mabrey paid. Officer Skinner testified concerning the events that had occurred when he responded to S.W.’s report that Mabrey had slapped her.

Mabrey offered testimony concerning the details of his employment, his earnings, and his various expenses and obligations. Mabrey stated that he had not had the additional funds available to pay the restitution obligation that was imposed in May 2001 but expressed the intention of “eventually making up the differences.” Mabrey did not admit striking S.W. but expressed regret about having the argument with her that led to her telephone call. Mabrey said that S.W. was pregnant with his child.

Mabrey’s probation officer, Milton, testified that S.W. had called to tell her that Mabrey had not hit her; S.W. just wanted Mabrey out of the apartment. S.W. had continued to call Milton periodically to request that Mabrey be released from jail. Milton had no personal knowledge concerning S.W.’s allegation of domestic violence. However, Milton did report that the state attorney’s office had declined to file an information on the charge.

Milton told the parole examiner that she had charged Mabrey with failure to pay restitution because he received the new law violation. Although Milton had instructed Mabrey in May 2001 concerning the new requirement to pay restitution in the amount of $40 per month, she had not made any determination at that time of his ability to pay restitution. At the time of the issuance of the warrant, Mabrey was delinquent in his restitution obligation in the amount of $120, having failed to pay for the months of June, July, and August. Milton’s information concerning Mabrey’s employment income was incomplete. She did not know the extent of his expenses and obligations but was aware that he had an automobile. Milton testified that because she was concerned about the stability of Mabrey’s employment and residence, she “did not push the restitution issue with him.”

Milton testified that although Mabrey was initially unemployed following his release, he eventually obtained two jobs in order “to make ends meet.” Mabrey had been placed on electronic monitoring and had no problems with the system. Ma-brey had submitted all of his monthly written reports in a timely manner. Milton was concerned about Mabrey’s relationship with S.W. but recommended that he be reinstated to his conditional release status.

The Parole Examiner’s Findings and Recommendation

Because there was no evidence presented to prove the allegation, the parole examiner found Mabrey not guilty of the new law violation. On the second charge of violating condition 16 by failing to pay restitution, the parole examiner found Ma-brey not guilty because no evidence was submitted that he had the ability to pay. The parole examiner recommended that Mabrey’s supervision be reinstated.

The Parole Commission’s Order

On January 30, 2002, the Parole Commission issued its order finding that Ma-brey had violated the terms and conditions of his conditional release. The evidence that the Parole Commission said it relied upon in support of its finding was:

Condition 16: Finding of guilt based upon the testimony of Correctional Probation Officer Crystal Milton that she had instructed subject on May 20, 2001, that he was to pay $40.00 per month toward restitution. Also, that subject had reported an income of $1,100.00 for the month of July 2001, and $1,120.00 for the month of June 2001.

Based upon this finding, the Parole Commission revoked Mabrey’s conditional release, and he was returned to prison.

Proceedings in the Circuit Court

In July 2002, Mabrey filed a petition for writ of habeas corpus in the circuit court. Mabrey’s petition alleged, in pertinent part:

[A]fter the formal revocation hearing, the hearing officer found as to the allegation of missed restitution payments that the Petitioner was not guilty. She based this determination on all the evidence admitted at the hearing and reasoned that no evidence was submitted to prove he had the ability to pay. She further recommended CRS [conditional release supervision] be reinstated.
To Petitioner’s misfortune, the Commission was dissuaded by the hearing officer’s recommendation and decided to revoke the CRS based on its’ [sic] own independent review of the evidence. This act of the commission violates basic notions of due process and state law.

(Record references omitted.) Mabrey argued further that the parole examiner’s finding that he did not willfully and substantially violate the terms and conditions of his conditional release was supported by competent, substantial evidence. Mabrey concluded that the Parole Commission was wrong to “second guess” the parole examiner. Mabrey requested that he be returned to conditional release supervision.

In its order denying the petition for writ of habeas corpus, the circuit court did not directly address Mabrey’s argument on this point but said:

The Court further finds that the evidence adduced at this Conditional Release violation hearing reflects that the Conditional Release violation was a willful and substantial violation of the terms and conditions of supervision. As reflected in the Conditional Release Hearing Summary which constitutes a sufficient record of the violation proceedings, Glumb v. Honsted, 891 F.2d 872, 873-874 (11th Cir.1990), the Petitioner had sufficient income to pay the restitution amount, even when considering the Petitioner’s reported monthly expenses. The Court finds no error in the Commission’s decision to revoke the Petitioner’s Conditional Release supervision on the basis of his failure to pay restitution. Clark v. State, 510 So.2d 1202 (Fla. 2d DCA 1987).

(Record references omitted.) Having effectively rejected the argument Mabrey made about the Parole Commission’s decision to “second guess” the parole examiner, as well as his other arguments, the circuit court entered an order denying his petition for writ of habeas corpus. Ma-brey timely petitioned this court for review by certiorari of the circuit court’s order.

The Nature and Scope of Review

The Parole Commission is an administrative agency, and its final orders are ordinarily subject to review by appeal to the appropriate district court of appeal under the provisions of section 120.68(2), Florida Statutes (2002). See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202, 1205 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998). Nevertheless, section 120.81(3)(a) precludes parolees from seeking review by appeal of orders of the Parole Commission that rescind or revoke parole. Id. In the absence of a statutory right to an appeal, however, review of a Parole Commission order remains available by mandamus or habeas corpus. See Griffith v. Fla. Parole & Prob. Comm’n, 485 So.2d 818, 820 (Fla.1986); Sheley, 703 So.2d at 1205. Once an inmate has had a full review on the merits of a Parole Commission order in the circuit court, the inmate is not entitled to a second plenary appeal of the order in the district court of appeal. See Sheley, 720 So.2d at 217-18. Thus review of the trial court’s order is by petition for writ of certiorari. Id. at 217.

The scope of our review on a petition for second-tier certiorari is limited to determining whether the circuit court (1) afforded procedural due process and (2) applied the correct law. See Miami-Dade County v. Omnipoint Holdings, Inc., 28 Fla. L. Weekly S717, — So.2d -, 2003 WL 22208012 (Fla. Sept. 25, 2003); Sheley, 703 So.2d at 1206. This second-tier certio-rari review is simply another way of deciding whether the lower court “departed from the essential requirements of law.” Omnipoint Holdings, Inc., 28 Fla. L. Weekly at S718, — So.2d at - (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995)). A ruling constitutes a departure from the essential requirements of law when it amounts to a “violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. (quoting Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003)). The district court may not review the record to determine whether the underlying agency decision is supported by competent, substantial evidence. Id. (citing Fla. Power & Light Co. v. City of Dania, 761 So.2d 1089, 1093 (Fla.2000)).

The Applicable Law

Mabrey’s petition for writ of certiorari to this court raises three points. Two of these points lack merit and do not warrant further discussion. With respect to his third point, Mabrey does not contend that the circuit court denied him due process of law. Mabrey contends instead that the circuit court’s order departs from the essential requirements of law. Mabrey’s argument on his third point proceeds from the parole examiner’s finding that he was not guilty of violating special condition 16 because there was no evidence submitted to prove that he had the ability to pay restitution as required.

In Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994), the Supreme Court of Florida held that “before a person on probation can be imprisoned for failing to make restitution, there must be a determination that that person has, or has had, the ability to pay but has willfully refused to do so.” In order to prove willfulness, a necessary element to prove a violation, the State must present evidence of the probationer’s ability to pay. See Robinson v. State, 773 So.2d 566, 567 (Fla. 2d DCA 2000); Cherry v. State, 718 So.2d 294, 295 (Fla. 2d DCA 1998); Haynes v. State, 571 So.2d 1380, 1381 (Fla. 2d DCA 1990). The parties agree that the rule announced in Stephens is applicable to Mabrey’s case, and the circuit court did not rule to the contrary.

In support of his contention that the circuit court’s order departs from the essential requirements of the law, Mabrey has called our attention to the recent decision in Tedder v. Florida Parole Commission, 842 So.2d 1022 (Fla. 1st DCA 2003). Tedder was placed on conditional release. One of the conditions of his release was that he not change his residence without securing the permission of his conditional release supervisor. After a hearing on a charge of violating the condition in question, the parole examiner found that the evidence failed to prove that Tedder had moved from his residence as charged. The parole examiner recommended that Tedder be reinstated to conditional release supervision. The Parole Commission reweighed the evidence, found the evidence sufficient to establish Tedder’s guilt of the violation charged, and revoked his conditional release.

Tedder sought review by writ of mandamus in the circuit court. Tedder argued that because the parole examiner’s findings were based on competent, substantial evidence, the Parole Commission was not permitted to disregard them. The circuit court concluded that sufficient evidence had been presented at the revocation hearing to support the Parole Commission’s decision to revoke Tedder’s conditional release and denied his petition.

Tedder then sought further review by a petition for writ of mandamus to the district court. After noting the basic principle of administrative law that an agency may not reject a hearing officer’s finding of fact that is supported by competent, substantial evidence, the First District applied this principle to the circumstances in Tedder’s case:

In this case, it is apparent that the Parole Commission merely reweighed the evidence considered by the examiner, finding that evidence sufficient to satisfy it that Tedder had moved on August 3, as alleged. Because it is also apparent that the examiner’s finding to the contrary was supported by competent, substantial evidence, the Parole Commission was not permitted to disregard the examiner’s finding in favor of its own, and to revoke Tedder’s conditional release on that basis.
In denying Tedder’s petition for a writ of mandamus, the trial court did not follow the well-established law set out above. Instead, .it focused exclusively on the Parole Commission’s decision, concluding that it was supported by competent, substantial evidence. This, too, constituted a departure from the essential requirements of law because it is well-settled that whether the agency findings are supported by competent, substantial evidence is irrelevant as long as those of the hearing officer are as well. See Gross [v. Dep’t of Health], 819 So.2d [997,] 1003 [(Fla. 5th DCA 2002)] (“if the court concludes that both the administrative law judge’s findings and the agency’s substituted or modified findings are supported by substantial competent evidence, the findings made by the administrative law judge must prevail and the agency’s order rejecting or modifying them must be reversed”); Westchester Gen. Hosp. v. Dep’t of Health & Rehab. Servs., 419 So.2d 705, 708 (Fla. 1st DCA 1982) (when both the hearing officer’s findings and those of the agency are supported by competent, substantial evidence, the former must prevail).

Id. at 1025-26. Based upon its analysis, the First District granted the petition, quashed the circuit court’s order, and remanded the case for reconsideration of Tedder’s petition. Id. at 1026.

Analysis

In this case, the parole examiner found that Mabrey did not violate special condition 16 because no evidence was submitted to prove that he had the ability to pay restitution. In its order, the Parole Commission did not conclude that the parole examiner’s finding was unsupported by competent, substantial evidence. Instead, the Parole Commission reevaluated the evidence presented at the hearing and reached a different conclusion from the hearing examiner. This was impermissible under clearly established principles of administrative law. See, e.g., Gross v. Dep't of Health, 819 So.2d 997, 1001 (Fla. 5th DCA 2002); Heifetz v. Dep’t of Bus. Reg., 475 So.2d 1277, 1281 (Fla. 1st DCA 1985).

On its first-tier review, the circuit court also reweighed the evidence presented at the hearing and found “that the Conditional Release violation was a willful and substantial violation of the terms and conditions of supervision.” The circuit court concluded that it found “no error in the Commission’s decision to revoke the Petitioner’s Conditional Release supervision on the basis of his failure to pay restitution.” Thus the circuit court failed to apply the correct law in considering Mabrey’s petition. The circuit court limited its consideration of the matter to the adequacy of the evidence to support the Parole Commission’s decision to revoke Mabrey’s conditional release based upon a failure to pay restitution. Instead, the subject of the circuit court’s inquiry should have been whether the parole examiner’s contrary finding was supported by competent, substantial evidence. If the parole examiner’s finding was supported by competent, substantial evidence, then the parole examiner’s finding must prevail over the Parole Commission’s conclusion to the contrary. See Gross, 819 So.2d at 1003.

Conclusion

The circuit court departed from the essential requirements of the law when it denied Mabrey’s petition for the writ of habeas corpus based upon its re-examination of the adequacy of the evidence to support the Parole Commission’s finding. Therefore, we grant the petition for writ of certiorari, quash the circuit court’s order denying Mabrey’s petition for writ of habe-as corpus, and remand this case to the circuit court for reconsideration of Ma-brey’s petition. We note that more than two years have elapsed since Mabrey was arrested for the unproven domestic violence offense. Accordingly, on remand, we direct that the circuit court expedite its reconsideration of Mabrey’s petition.

Petition for writ of certiorari granted, circuit court order quashed, and case remanded to the circuit court for further proceedings consistent with this opinion.

FULMER, J., and DANAHY, PAUL W., Senior Judge, Concur.

      . The circuit court entered its order on December 5, 2002. The decision in Tedder was issued on April 22, 2003.

      . On remand, when the circuit court conducts its inquiry into whether competent, substantial evidence supported the parole examiner's finding that no evidence had been submitted to prove that Mabrey had the ability to pay, we recommend that the circuit court not overlook the following: (1) Mabrey's probation officer testified that she did not determine whether he had the ability to pay or not; (2) the probation officer "did not push the restitution issue with him” prior to or during the time Mabrey fell into arrears because she was concerned about his precarious financial situation; and (3) the State had the burden to prove Mabrey’s ability to pay in light of Ma-brey's contention that his financial situation at the time he fell into arrears precluded his ability to pay. See Green v. State, 620 So.2d 1126, 1129-30 (Fla. 1st DCA 1993) (holding that the State failed to prove that the probationer willfully violated a condition to pay restitution when he offered unrefuted testimony, partially corroborated by this probation officer, that he did not have the ability to pay at the time of the violation).


author: ALTENBERND, Chief Judge.

text:
    In the interest of B.B., C.B., and M.M.B., Minor children. S.B., father, Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-66.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.
    Heather M. Gray, Riverview, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, for Appellee.
   ALTENBERND, Chief Judge.

This is the second in what may prove to be a series of cases reversing orders adjudicating children dependent or terminating parental rights based upon “defaults.” The first case was G.A. v. Department of Children & Family Services, 857 So.2d 310, 2003 WL 22316864 (Fla. 2d DCA Oct.10, 2003). These “defaults” are contrary to the Florida Rules of Juvenile Pro-eedure. When parents arrive late to court or otherwise miss an arraignment hearing, a court cannot simply deprive people of their parental rights or place their child in dependency status without a measure of process beyond that received in these cases.

On March 22, 2002, the Department of Children and Family Services (DCF) filed a petition seeking emergency shelter of S.B.’s three children. The children were temporarily placed in foster care. The following day, the trial court found no probable cause for the petition and ordered DCF to return the children to S.B., their father.

On May 13, 2002, DCF filed a petition for an adjudication of dependency of the children as to both the mother and S.B. A dependency summons was served on S.B. for an arraignment hearing scheduled for June 18, 2002. Although the original summons in the record is slightly water-damaged, it appears to order S.B. to arrive for the hearing at 9 a.m.

The transcript of the arraignment hearing indicates that the hearing began at 8:30 a.m. Apparently, this case was one of many on a several-hour docket. From our record, we are not entirely certain that this specific hearing began after 9 a.m. S.B. was unrepresented by counsel at this stage in the dependency proceeding and was not present when his case was called. However, S.B. used his cell phone to call the cell phone of a DCF employee who was in the courtroom. He advised the employee that he was on his way. He claimed that he was stuck in traffic due to a rain storm. No one suggested that S.B. was providing false information to the court.

In response to this information, the trial court merely confirmed that S.B. had been served and requested that DCF move for a “default.” DCF accommodated the court. Although the judge orally granted the default, a “clerk’s default” was actually entered in the file. This was the only order entered as a result of this hearing. The trial court did not enter an “order on arraignment and notice of next hearing” as contemplated by Florida Rule of Juvenile Procedure Form 8.965.

The trial court did not appoint counsel to represent S.B. until October 2002. Shortly thereafter, S.B.’s counsel filed a motion to set aside the “default.” S.B.’s counsel scheduled a hearing on this motion for December 3, 2002, at which he attempted to argue the default should be set aside. The trial court cut off counsel’s argument and summarily denied the motion, even though S.B. was anxious to testify and to explain why he had arrived five minutes late for the hearing.

We will not repeat the discussion contained in our opinion in G.A. We understand that circuit courts in urban communities may find it necessary to schedule many arraignments in a single hearing. When parties arrive late or are otherwise unprepared to start on time, lengthy dockets are difficult to manage. As a result, we appreciate the trial courts’ need to control their busy dockets. However, dependency arraignment hearings where many parties are unrepresented and all parties have already demonstrated that they have difficulty coping with life’s normal burdens are an especially questionable place to rigidly impose “defaults” as a method of case management.

Furthermore, the trial court must follow the established rules of procedure. The dependency court is not empowered to enter a default. We recognize that section 39.506(3), Florida Statutes (2002), provides that a failure to appear at an arraignment hearing constitutes consent to the adjudication. A notice of this statutory provision was provided to S.B. in bold letters on the summons as required by the statute. The trial court was thus permitted to enter a “consent” order. The Rules of Juvenile Procedure, however, also required the trial court to schedule a disposition hearing within fifteen days. See § 39.506(3), Fla. Stat. (2002); Fla. R. Juv. P. 8.315(a). Form 8.965 provides the appropriate method for a trial judge to comply with rule 8.315. In this case, the trial court did not enter such an order and did not schedule a disposition hearing within fifteen days. Indeed, the court did not schedule a disposition hearing at all. A disposition order was not entered until January 17, 2003. That order adjudicating the child dependent indicated that the court had adjudicated the children dependent at the hearing held June 18, 2002, but referred to circumstances and proceedings dating both before and after the date of the arraignment to support the adjudication.

Rule 8.315(b) gives a party the right to seek to withdraw a consent “for good cause” prior to the beginning of the disposition hearing. See J.C. v. State, Dep’t of Children & Family Servs., 716 So.2d 331 (Fla. 2d DCA 1998). When a consent is entered for nonappearance, a party should file a motion to withdraw the consent pursuant to this rule with a valid explanation for the absence. In the alternative, a party may seek rehearing pursuant to Florida Rule of Juvenile Procedure 8.265. We can think of few better reasons to permit a party to withdraw such a consent or to obtain rehearing than a situation in which the consent was presumed solely because the parent was a few minutes tardy for court due to inclement weather. We therefore reverse the order adjudicating the children of S.B. dependent based upon his presumed consent and remand for further proceedings consistent with this opinion. This opinion does not require the trial court to give S.B. immediate custody or to alter current visitation rights, but the trial court must review these issues and make a lawful decision as soon as possible following issuance of our mandate.

Reversed and remanded.

SILBERMAN and CANADY, JJ„ concur.

      . Although S.B. filed a notice of appeal indicating he was appealing an order denying his motion to set aside a default, we treat the notice of appeal as prematurely seeking review of the order adjudicating the children dependent, which was entered shortly after this appeal was commenced.

      . This default is an odd document. It looks similar to the standard civil default form in Florida Rule of Civil Procedure 1.980, except it is not prepared by or served on a party. It includes a "motion for default” of S.B. that seems to be a motion by the clerk of court. The default is granted by a deputy clerk, not by the judge.

      . The mother appeared for the arraignment hearing and was appointed counsel, although the counsel was not present at the arraignment. The mother apparently had custody of the children as a result of a domestic violence injunction, and this may explain why the trial court did not schedule a disposition hearing within fifteen days as required by Florida Rule of Juvenile Procedure 8.315(a).

      . When a party is deemed to consent to a dependency proceeding by virtue of not appearing at an arraignment hearing, we are uncertain what steps the trial court must take to satisfy the "duty of the court” set forth in Florida Rule of Juvenile Procedure 8.320 to advise parents of the right to counsel, to appoint counsel to represent indigent parents, and to determine that the right to counsel is understood and waived only by way of specific procedures. We note that the summons advises the parents that counsel may be appointed at the arraignment hearing. We have some concern about a parent’s ability to comply with rule 8.315(b) within fifteen days, if the parent has no attorney.


author: STRINGER, Judge.

text:
    Lonnie LANGWORTHY, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Communication Installation and Cisco, Appellees.
    No. 2D03-717.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.
    Lonnie Langworthy, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Unemployment Appeals Commission.
    No appearance for Appellee Communication Installation and Cisco.
   STRINGER, Judge.

Lonnie Langworthy seeks review of the Unemployment Appeals Commission’s (“UAC”) order which affirmed the appeals referee’s decision denying unemployment benefits. Langworthy argues that the appeals referee erred in dismissing his appeal for lack of jurisdiction based on the untimely fax stamped received date on the request for hearing. We agree and reverse.

On September 12, 2002, the Agency for Workforce Innovation (the Agency) denied Langworthy’s entitlement to unemployment benefits in a notice of determination. Section IV of the notice, entitled “Appeal Rights of the Notice of Determination” states in part:

This determination will become final unless you request a hearing within twenty 20 days from the mailing date of this notice explaining the basis of the protest. ... Your request must be filed in writing by mailing a letter ... or faxing a letter.... The postmark or fax stamped received date shall be the date of filing.

Langworthy therefore had until October 2, 2002, to file his request for hearing. Langworthy testified that on Monday, October 1, 2002, his wife faxed a request for hearing to the UAC’s Tallahassee office. However, the stamped receipt date on the fax is October 3. Also on October 1, 2002, Langworthy’s wife sent the request via certified mail to the local unemployment office in St. Petersburg. The letter was not received until October 3, and Langwor-thy did not present evidence of the letter’s postmark.

The appeals referee subsequently dismissed the appeal for lack of jurisdiction because the request for hearing was filed untimely. The UAC affirmed the referee’s decision, and Langworthy sought review of the UAC’s order in this court. Langwor-thy argues that the appeals referee erred in dismissing the appeal for lack of jurisdiction because Langworthy presented evidence that the request for hearing was timely faxed to the UAC.

Under Florida Administrative Code Rule 60BB-5.005(3), “[ajppeals filed by ... facsimile shall be considered to have been filed when date stamped received at the authorized location.” While this language appears to be mandatory, the courts have carved an exception for cases when the claimant proves that he or she successfully transmitted a fax within the time provided in the rule. See Mendelsohn v. Fla. Unemployment Appeals Comm’n, 851 So.2d 208 (Fla. 1st DCA 2003); Reynolds v. SV Cent. Dania Props., Inc., 849 So.2d 1181, 1182 (Fla. 4th DCA 2003); Ebersol v. Unemployment Appeals Comm’n, 845 So.2d 945, 947 (Fla. 5th DCA 2003).

In Ebersol, the appeals referee summarily dismissed the claimant’s appeal as late because it was docketed after the deadline. Id. at 946-47. The claimant asserted that he had faxed the request for hearing prior to the deadline and provided a fax history report that corroborated his assertion. Id. at 947. The Fifth District held that if a claimant provided evidence to show that he timely requested an appeal via facsimile, an issue of fact is created that must be resolved by the appeals referee. The court explained:

While as a general proposition, a party such as [the claimant] is deemed to assume the risk of transmission difficulties associated with faxes, the record here contains a fax history report reflecting that [the claimant] did indeed fax a document to the agency ... well within 20 days of the date of the appeals referee’s decision. While the Commission did not docket any request for appeal within this 20 day period, the record is completely silent as to whether this was because the fax was not received by the Commission or because the Commission received the fax but was remiss in not docketing the request. To simply accept the Commission’s position that [the claimant] bears the risk in either circumstance would excuse the agency from developing careful procedures for docketing faxed requests for appeals which it receives. We are more inclined to embrace a salutary rule that where a claimant makes an evidentiary showing that he did, in fact, timely and correctly direct a fax of a request to appeal to the Commission, an issue of fact is created as to whether the Commission received the request for timely docketing.

Id.

We adopt the “salutary rule” articulated in Ebersol because it comports with guarantees of procedural due process. The UAC has provided twenty days for a claimant to file a request for hearing, and rule 60BB-5.005(3) mandates that the date stamp on hand-delivered or faxed requests will be the date of filing. While the rule imposes a burden on the claimant to timely transmit a faxed request for hearing, it does not expressly impose a corresponding duty on the UAC to timely docket the request. We conclude that the UAC’s duty to timely docket a hand-delivered or faxed request is implicit. Thus, the party seeking relief via facsimile assumes the risk of transmission difficulties but is relieved of the burden upon receipt of the request for hearing by the UAC. As noted by the Fifth District in Ebersol, placing the burden of ensuring that the request is docketed on the claimant “would excuse the agency from developing careful procedures for docketing faxed requests for appeals which it receives.” 845 So.2d at 947.

When Langworthy informed the referee that his wife timely faxed the request for hearing, the referee declined to entertain the argument, stating, ‘Well, what we’re required to do is use the fax stamped date as the date of filing.... And the stamp-fax stamped [sic] receipt date is October 3rd, which is too late.” In the appendix to his appellate brief, Langwor-thy included the fax transmission report which indicates that the request for hearing was faxed on October 1, 2002, the day before the expiration of the statutory time in which to file the request. Additionally, the request for hearing in the record contains a printed transmittal date of October 1. While the UAC presented evidence that the request was docketed on October 3, 2002, it presented no evidence that the fax was not transmitted on October 1, 2002.

Accordingly, the appeals referee erred in dismissing Langworthy’s appeal for lack of jurisdiction based on the fax stamped received date on the request for hearing. We therefore reverse and remand with directions for the appeals referee to conduct a hearing on the timeliness of the appeal based on the dictates of Ebersol.

Reversed and remanded.

SALCINES and VILLANTI, JJ„ Concur.

      . We note that neither the appeals referee nor the UAC had the benefit of these cases at the time of their decisions.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Tony BULLARD, Appellee/Cross-Appellant.
    No. 2D00-2285.
    District Court of Appeal of Florida, Second District.
    Nov. 7, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Erica M. Raffel, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellee/Cross-Ap-pellant.

      . Judge Stringer has been substituted for Judge Parker, who was on the original Bul-lard, panel.

   KELLY, Judge.

The State of Florida appeals from an order granting Tony Bullard a new trial based on an alleged Brady violation. Bul-lard cross-appeals because the trial court granted a new trial on fewer than all counts and because it ordered a new trial on a count to which Bullard had previously entered a plea. We reverse because the trial court erroneously concluded that the State had withheld exculpatory evidence that was material to the defense and because it granted a new trial on a count to which Bullard had entered a plea.

The State charged Bullard with battery on a law enforcement officer, resisting an officer with violence, possession of cocaine, possession of marijuana, and possession of paraphernalia. A jury found Bullard guilty on each charge except battery on a law enforcement officer. The jury failed to reach a verdict on that count. After trial, the State amended the information to charge Bullard with misdemeanor battery rather than battery on a law enforcement officer in exchange for Bullard’s agreement to enter a plea of no contest to that charge.

Bullard moved for a new trial on the remaining charges. In that motion, Bul-lard informed the trial court that Deputy Broome, the State’s primary witness, had been suspended for three days by the Pi-nellas County sheriffs office after an Internal Affairs investigation found that he had made false statements to a member of the public regarding salary issues in the sheriffs office. The motion alleged that the suspension was effective January 25, 2000, and that Bullard’s trial commenced on February 1, 2000. Bullard argued that Internal Affairs investigations are relevant and admissible impeachment evidence and that the undisclosed information was Brady material. The trial court agreed and ordered a new trial.

To establish a Brady violation, the defense must establish that (1) the State possessed evidence favorable to the defendant because it was either exculpatory or impeaching; (2) the State willfully or inadvertently suppressed the evidence; and (3) the defendant was prejudiced. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). To satisfy the prejudice element of Brady, a defendant must show that the evidence was material. Way v. State, 630 So.2d 177, 178 (Fla.1993). Evidence is material “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” Id. Stated differently, the element of prejudice is measured by determining whether “the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

After reviewing the record, we conclude that there is no reasonable probability that the evidence regarding Deputy Broome would have changed the outcome of Bullard’s trial because the evidence would not have been admissible and, therefore, is not material. Bullard argues that the evidence would have been admissible to impeach Deputy Broome by demonstrating bias or that he had a motive to testify as he did. While a defendant in a criminal case has a right to cross-examine a prosecution witness to show bias or motive to be untruthful, that right has limits. Courts have allowed cross-examination on Internal Affairs investigations where the investigation arose from the same incident as the defendant’s criminal charges or, if a defendant claims an officer used excessive force, investigations involvirig prior incidents of excessive force, but they have refused to allow such evidence when the investigation is completely unrelated to the defendant’s case. See, e.g., Breedlove v. State, 580 So.2d 605, 608 (Fla.1991) (stating that in order to impeach a state witness with evidence that the witness is under criminal investigation, the investigation “must not be too remote in time and must be related to the case at hand to be relevant.”). The investigation that resulted in Deputy Broome’s suspension did not arise from the same incident as Bullard’s criminal charges and it did not involve the use of excessive force. Because it was completely unrelated to Bullard’s case, it would not have been admissible. Accordingly, Bullard failed to establish the materiality element of a Brady violation and the trial court abused its discretion in ordering a new trial.

Our conclusion that the trial court abused its discretion in ordering a new trial makes it unnecessary for us to reach the issues Bullard raises in his cross-appeal, although we note that the trial court should not have ordered a new trial on the count for battery on a law enforcement officer because Bullard had already entered a plea on that charge.

Accordingly, we reverse the order granting a new trial and remand with instructions for the trial court to enter judgments on the jury’s verdicts.

Reversed and remanded.

SALCINES and STRINGER, JJ„ Concur.

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).


author: SHARP, W„ J. TORPY, J.,

text:
    Lois TENNY, Appellant, v. Richard ALLEN, etc., Appellee.
    No. 5D03-93.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2003.

      Christopher C. Coleman and Bradley R. Killinger, of Cameron, Hodges, Coleman, LaPointe & Wright, P.A., Ocala, for Appellant.
    Charles D. Tucker of Charles D. Tucker, P.A., Ocala, for Appellee.
   SHARP, W„ J.

Lois Tenny, the defendant in this personal injury action, appeals from the trial court’s order which set aside the part of the jury verdict which found the plaintiff, Sandra Allen, had not sustained a permanent neck injury. The order also directed a verdict in favor of Allen on the issue of her permanent neck injury, and granted her a new trial solely on the issue of damages. We conclude the evidence presented at trial was sufficient to support the jury’s determination that Allen suffered no permanent injury caused by the defendant’s negligence. Accordingly, we reverse and remand with directions to reinstate the jury verdict.

In November of 1999, a van driven by Allen’s husband collided with a vehicle driven by Tenny. Tenny admitted liability for having caused the accident. Allen was a passenger in the backseat of the van. About an hour or so after the accident, Allen went to the hospital, complaining of neck, back and wrist pain.

The emergency room physician who examined Allen described her condition as follows:

NECK/EXTREMITIES/BACK: Supple with no palpable fracture or deformity. No significant tenderness. She has full range of motion of her neck and shoulders. She can bend forward and nearly touch her toes and bend backwards without significant pain. He (sic) can do lateral bending without significant pain. She is able to walk, sit, and stand. Examination of the back does not reveal any significant tenderness. Straight leg raising is negative.

Allen was later seen by Dr. Hunter, who specializes in physical medicine and rehabilitation. Dr. Hunter concluded she had suffered a permanent neck and back injury as a result of the accident.

In June 2001, Allen filed this personal injury action against Tenny. Tenny stipulated to having caused the accident but disputed the permanency of Allen’s injuries and damages.

On August 2, 2001, Allen’s counsel took her deposition. Two weeks later, she died from lung cancer, a cause not related to the automobile accident. Her husband, Richard Allen, as personal representative, continued the lawsuit.

No live witnesses testified at the trial. The parties presented the following evidence: the depositions of Allen and Dr. Hunter; Allen’s medical records; photographs of the Allen vehicle; an estimate to repair that vehicle for $507.68; a stipulation that Allen’s unreimbursed medical expenses totaled $1,661.64; and Tenny’s answer to an interrogatory stating repairs to her vehicle were estimated at $9,000.

In his deposition, Dr. Hunter stated he first saw Allen several weeks after the automobile accident. At this time she was complaining of headache and pain in her neck, left elbow, wrist and lower back. Her neck muscles were tight and she had decreased motion of neck movements.

On her next visit to Dr. Hunter, Allen had improved range of motion of her neck and back but continued to have neck tenderness with rigidity or muscle spasms. At her January 2000 visit, Allen brought x-rays with her which showed degenerative changes of her cervical spine.

At her February 2000 visit, Allen was still having problems with her neck and back. She also reported a new symptom— when she tipped her neck and head backwards, she had a sharp, electrical feeling. These new complaints prompted Dr. Hunter to recommend an MRI for her neck and lower back and also a nerve test. The MRI showed Allen had two herniated discs in her neck. The nerve test showed no evidence of nerve-root damage to her neck.

At her next few visits, Allen was still having problems with her neck and back. At a visit in January 2001, Allen disclosed she had been diagnosed with lung cancer and had chemotherapy and radiation. At her April 2001 visit, Dr. Hunter concluded Allen had a permanent injury to her neck and back related to the November 1999 accident.

At the close of all the evidence, Allen’s personal representative moved for a directed verdict on the permanent nature of her neck and back injuries, arguing the jury had no basis to reject Dr. Hunter’s opinion that the injuries were permanent. Counsel for Allen ultimately conceded there was evidence the medical history Allen had given Dr. Hunter regarding her prior back pain may have been inaccurate, thus creating a jury issue on the permanency of her back injury. However, counsel maintained there was no such inaccuracy regarding the history of neck pain. Thus, counsel for Allen argued she was entitled to a directed verdict on permanent injury to her neck. The court concluded the jury should decide the issue and denied the motion for directed verdict.

The jury found Allen did not sustain a permanent injury as the result of the accident and awarded no damages for past medical expenses. Since a verdict had been directed on the issue of negligence (pursuant to Tenny’s concession), the court instructed the jury its verdict was inconsistent and some damages must be awarded. The jury then awarded $507.68.

Post trial, Allen’s personal representative moved the court to reconsider the motion for directed verdict and to set aside the verdict and order a new trial. The court reconsidered the evidence and determined it was insufficient to have established a jury question with regard to the permanency of Allen’s neck injury. Therefore, as to the neck injury only, the court set aside the jury’s verdict, granted a directed verdict as to permanency and ordered a new trial on damages.

Had the trial judge not directed a verdict in favor of Allen’s personal representative but merely granted a new trial on the issue of permanency and damages, we may have been constrained to uphold that ruling based on the applicable standard of review. A motion for new trial should not be granted unless no reasonable jury could have reached the verdict rendered. Wilson v. The Krystal Co., 844 So.2d 827 (Fla. 5th DCA 2003). When reviewing an order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. Jordan v. Brown, 855 So.2d 231 (Fla. 1st DCA 2003); Clough v. Christopher, 711 So.2d 610 (Fla. 5th DCA 1998).

In contrast, the standard of review on appeal of the trial court’s ruling on a motion for directed verdict is the same as the test used by the trial court in ruling on that motion. Marriott International, Inc. v. Perez-Melendez, 855 So.2d 624 (Fla. 5th DCA 2003); Wright v. Ring Power Corp., 834 So.2d 329 (Fla. 5th DCA 2003); Goolsby v. Qazi, 847 So.2d 1001 (Fla. 5th DCA 2003). A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the non-moving party. Id. In considering a motion for directed verdict, the court is required to evaluate the testimony in the light most favorable to the non-moving party and every reasonable inference deduced from the evidence must be indulged in the non-moving party’s favor. Marriott International; Goolsby; Reams v. Vaughn, 435 So.2d 879 (Fla. 5th DCA 1983). If, in applying this test, no view of the evidence could sustain a verdict for the party moved against, then the directed verdict was properly entered. Reams. However, if there are conflicts in the evidence or different reasonable inferences may be drawn from it, then the issue is a factual one that should be submitted to the jury and not be decided by the trial court as a matter of law. Marriott International.

This court has repeatedly held that a defendant in a personal injury action is not required to present expert testimony to contradict the plaintiffs expert testimony concerning permanent injuries. McCown v. Estate of Seidell, 831 So.2d 218 (Fla. 5th DCA 2002); Rogers v. Morini, 714 So.2d 674 (Fla. 5th DCA 1998). Regardless of the absence of testimony by an opposing expert witness, the issue of whether a plaintiff has sustained a permanent injury is generally one for the jury. Wright v. Ring Power Corp., 834 So.2d 329 (Fla. 5th DCA), rev. denied, 846 So.2d 1148 (Fla.2003); Tolivert v. Estate of Scherer, 715 So.2d 358 (Fla. 5th DCA 1998). It is the function of the jury to evaluate the credibility of the witnesses and the jury is free to accept or reject the testimony of an expert witness on the issue of permanent injury to the plaintiff. Wright; Tolivert; Rice v. Everett, 630 So.2d 1184 (Fla. 5th DCA 1994).

In this case, the evidence supporting the jury’s finding of no permanency was less weighty than in many such personal injury cases. There was no IME and defense medical experts due to the fact that Allen was terribly ill with cancer at the time of the trial. But, the contradictory evidence was not inconsequential.

Here the jury viewed photographs of the Allen van which showed little damage, and indicated a low-speed collision. The jury considered the report from the emergency room physician, who found Allen had no significant tenderness and a full range of motion of her neck and shoulders immediately after the accident. She could bend forward and nearly touch her toes and bend backwards without significant pain.

Further, on cross-examination, the defense elicited from Dr. Hunter that he did not know whether Allen’s herniated discs in her neck existed or did not exist at the time of the accident. Dr. Hunter acknowledged he had no prior studies to compare so he did not know if the herniated discs were actually there before the accident.

Finally, the defense impeached the medical history Allen had given Dr. Hunter. She told Dr. Hunter she had been in a prior motor vehicle accident and had some neck symptoms but that they had resolved after physical therapy. However, Allen did not give Dr. Hunter any prior history of a lower back problem. The defense showed Allen had, in fact, a long history of lower back pain. Although the defense did not directly impeach Allen’ medical history regarding her neck injury, her lack of candor in describing her past back injuries was a factor the jury could have considered in evaluating her credibility and the reliability of Dr. Hunter’s medical findings.

We conclude the evidence, although borderline, was sufficient to support the jury’s conclusion that Allen did not sustain a permanent neck injury caused by the accident. Thus the trial court should not have set aside that verdict. See Wright (trial court properly denied plaintiffs motion for directed verdict on the issue of permanent injury; although plaintiff presented expert testimony he suffered a permanent injury, the defense in rebuttal presented evidence of plaintiffs pre-existing neck condition, evidence that plaintiff may not have completely disclosed prior neck problems to his treating physician, and a surveillance tape showing plaintiff moving his neck); Rogers (jury’s verdict finding no permanent injury was supported by the evidence even though defense did not present expert testimony where defense discredited plaintiffs evidence she was permanently injured); Rice (in action to recover for injuries to husband and wife, impeachment of wife and videotape which showed physical capabilities of both plaintiffs were sufficient lay evidence to justify the jury’s rejection of plaintiffs’ expert testimony on permanency).

REVERSED and REMANDED to reinstate the jury verdict.

PETERSON, J., concurs.

TORPY, J., dissents with opinion.

TORPY, J.,

dissenting.

I cannot find that the trial court abused its discretion on this record. I would affirm.


author: STONE, J.

text:
    Demetrice COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4020.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.

      Cynthia Grooms Marvin of Marvin, Smith & Alonzo, P.A., Stuart, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Collins entered a negotiated plea of no contest to multiple charges where the state agreed to a sentence “cap” of ten years and waived habitual offender status. At the time of the plea, the trial court conducted a complete colloquy and Collins signed an extensive plea form. Subsequently, Collins filed a motion to withdraw plea. We affirm the order denying the motion to withdraw plea and the judgment and sentence.

At the hearing on the motion to withdraw the plea, Collins claimed that his attorney told him that it would be in his best interest to change his plea and that if he did not like the sentence given, Collins could withdraw the plea at that time and would be entitled to a trial.

Collins testified that he advised his attorney, a few days after the plea, that he wanted to withdraw it. The attorney advised Collins to take time to reconsider and wait until sentencing before seeking to withdraw the plea. Counsel acknowledges that he was not aware of the heavier burden of proof imposed by waiting; however, the point is moot as the trial court explicitly treated the motion as if it had been made before sentencing, applying the lesser burden imposed in Florida Rule of Criminal Procedure 3.170(f). The rule provides that “[t]he court may in its discretion, and shall on good cause, at any time before the sentence, permit a plea of guilty to be withdrawn.” Thus, upon a showing of good cause, a defendant must be allowed to withdraw a plea. Upon a showing of less than good cause, withdrawal of the plea is within the court’s discretion. Catinella v. State, 732 So.2d 444, 445 (Fla. 4th DCA 1999).

Clearly, a defendant’s entry of a plea based upon his attorney’s mistaken advice can be a basis for a motion to withdraw plea. Snodgrass v. State, 837 So.2d 507, 508 (Fla. 4th DCA 2003). The issue, therefore, is whether the claim of misadvice is proved and whether it constitutes good cause in the context of the record.

Upon taking the plea, the trial court made it clear to Collins that he would not be entitled to withdraw his plea after it was entered and accepted. The record reflects that, upon taking the plea, the court instructed, “You understand, as your attorney said to you, if you change your mind after today, tomorrow, tonight, an hour from now, it’s too late once you enter this plea. Do you understand that?” The court later emphasized, “You can — you can ask for less than that, but if you get ten years you can’t do a thing about changing this plea or doing anything about it. You understand that, sir?”

The record also reflects that Collins’s attorney warned him in open court that “[ojnce you sign it we can’t change it. Once you give it to the Judge it can’t be changed.” Collins further acknowledged that his attorney had not forced him to plead, nor had he been coerced or promised anything. He also remembered the judge telling him that once he entered his plea, he could not change his mind later, and that the judge asked Collins if he had any problems or questions. Collins has not challenged the sufficiency of the plea colloquy. At the hearing, Collins admitted that the court explained to him what would happen if he entered the plea and that he understood that what the judge said was different from what he claims his attorney told him. Collins, a 34-year-old high school graduate, likewise admitted that he had been to court on numerous prior charges and that he had entered pleas before. He had not gone to trial on any of his prior cases.

In denying Collins’s motion, the trial court found that the defense counsel did not misadvise Collins as to the maximum sentences he faced. The court added that “[t]here’s nothing here to indicate differently regarding a legal reason to set aside the plea.”

Although Collins claims that his attorney misadvised him about withdrawing a plea, that is not confirmed by the attorney who clearly denied advising Collins that he would be allowed to withdraw the plea, or advising that the plea was optional.

The record reflects that before accepting the plea, the trial court insured that Collins understood the plea, the charges he was facing, the possible sentences he was facing, as well as determined that he was not coerced or misinformed. The trial court also found that the plea was entered freely and voluntarily with the effective assistance of counsel.

Great weight is placed on a trial judge’s findings made pursuant to rule 3.172. Buell v. State, 704 So.2d 552, 553 (Fla. 4th DCA 1997).

Therefore, the order denying Collins’s motion to withdraw his plea and the judgment and sentence are affirmed.

WARNER and HAZOURI, JJ., concur.


author: GROSS. J.

text:
    Dr. Patricia CALDWELL, Appellant, v. BOARD OF TRUSTEES BROWARD COMMUNITY COLLEGE, Appellee.
    No. 4D02-3995.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.

      Marjorie J. Binder of Watterson & Hy-land, P.A., Palm Beach Gardens, for appellant.
    Gina E. Caruso of Hinshaw & Culbertson, Fort Lauderdale, for appellee.
   GROSS. J.

Patricia Caldwell appeals the dismissal of her whistle-blower complaint by the Florida Commission on Human Relations, which determined that it lacked the jurisdiction to investigate it. We affirm, holding that the College’s board of trustees was not a “state agency” within the meaning of the applicable statutes.

Caldwell was the provost of Broward Community College. Her employment was terminated for cause on August 15, 2002. Five days later she filed a complaint with the Commission alleging that her termination violated the Whistle-blower’s Act, sections 112.3187-31895, Florida Statutes (2002). The Commission determined that it did not have jurisdiction to investigate her complaint, because the College was not a “state agency” within the meaning of section 216.001, Florida Statutes (2002).

The Commission’s jurisdiction to investigate whistle-blower complaints is circumscribed by section 112.31895(l)(a). That section allows an employee of “a state agency, as defined in s. 216.011,” to file a complaint with the Commission. This limitation is reflected in section 112.3187(8)(a) which indicates that the remedy for a whistle-blower violation available to an employee of a state agency, “as the term ‘state agency’ is defined in s. 216.011,” begins with the filing of a complaint with the Commission. See § 112.3189(1) (setting investigative procedures upon the disclosure of “information as described in s. 112.3187(5)” by an employee, former employee, or prospective employee of “a state agency as the term ‘state agency’ is defined in s. 216.011”).

The Whistle-blower’s Act thus utilizes section 216.011 to define the term “state agency” for the purpose of delineating the scope of the Commission’s jurisdiction. The pertinent part of section 216.011(l)(qq) defines “state agency” as “any official, officer, commission, board, authority, council, committee, or department of the executive branch of state government.” (Emphasis added). Under this definition, only if the College were deemed to be a part of the executive branch of government, would the commission have had jurisdiction to investigate Caldwell’s whistle-blower complaint.

We hold that the board of trustees of the College is not a board of “the executive branch of state government” within the meaning of section 216.011(l)(qq), so it is not a “state agency” under section 112.31895(l)(a).

At the time the Commission declined jurisdiction in this case, sections 240.301-384, Florida Statutes (2001) governed the community college system. The legislature has declared that each community college district is “an independent, separate, legal entity created for the operation of a community college.” § 240.313(1), Fla. Stat. (2001) (current version at § 1004.65(2), Fla. Stat. (2002)). A community college is a political subdivision of the state that is operated by that college’s board of trustees. See § 240.317, Fla. Stat. (2001) (current version at § 1004.67, Fla. Stat. (2002)). Under the statutory scheme, a “member of [a] community college district’s board of trustees is an officer of a special district created to perform a special governmental function.” In re Advisory Opinion, 630 So.2d 1055, 1057 (Fla.1994).

Emphasizing the separation between the executive branch and a community college’s board of trustees, section 240.317 described

the legislative intent that community colleges, constituted as political subdivisions of the state, continue to be operated by district boards of trustees as provided in s. 240.315 and that no department, bureau, division, agency, or subdivision of the state exercise any responsibility and authority to operate any community college of the state except as specifically provided by law or rules of the State Board of Education and State Board of Community Colleges.

§ 240.317, Fla. Stat. (2001) (emphasis added) (current version at § 1004.67, Fla. Stat. (2002)); see Op. Att’y Gen. Fla. 97-82 (1997) (noting that community colleges are political subdivisions of the state and a member of the board of trustees is a district officer, not a state officer).

We agree with the reasoning of those Attorney General Opinions finding that Florida’s public community colleges operated under Chapter 240 are not part of the executive branch of state government. See Op. Att’y Gen. Fla. 71-175 (1971); see also Op. Att’y Gen. Fla. 74-303 (1974); cf. Op. Att’y Gen. Fla. 84-68 (1984) (finding that vocational schools and schools operated as part of a district school system are not part of the executive branch and therefore are not state agencies). The status of community colleges as political subdivisions

does not serve to dissolve or terminate the existing community college districts or change the nature of such entities or their governing boards of trustees. Neither does it convert those districts into state agencies in the sense that the districts or their governing boards become part of the Executive Branch of state government or the officers of such districts become state officers.

Op. Att’y Gen. Fla. 80-16 (1980); see also In re Advisory Opinion, 630 So.2d at 1058.

For these reasons, the Commission correctly determined that it did not have jurisdiction to investigate Caldwell’s complaint.

The exclusion of the College from the definition of a state agency under section 216.011 is not inconsistent with the definition of “agency” in section 112.3187(3)(a) which includes a “community college.” The section 112.3187(3)(a) definition of “agency” identifies those agencies that are subject to the prohibitions contained in section 112.3187 of the Whistle-blower’s Act; that definition is broader than the section 216.011 definition of “state agency,” which determines whether the Commission is authorized to investigate complaints under section 112.31895(l)(a).

AFFIRMED.

FARMER, C.J., and TAYLOR, J., concur.

      . Effective January 7, 2003, Chapter 2002-387, Laws of Florida repealed sections 240.301 through 240.385 and created sections 1001.61 through 1001.65, Florida Statutes (2002) to govern community colleges. We find nothing in the newly created sections that changes the analysis of this opinion.

      . "Each community college district board of trustees is constituted a body corporate by the name of 'The District Board of Trustees of (name of community college), Florida.' In all suits against a board, service of process shall be made on the chair of the board or, in the absence of the chair, on another member of the board.” § 240.315, Fla. Stat. (2001).


author: GERSTEN, J.

text:
    Alan Thomas HUCH, Appellant, v. Susan Sareena MARRS, Appellee.
    No. 3D02-2469.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Glantz & Glantz, North Miami Beach; and Mitchell Haymes, for appellant.
    Susan Sareena Marrs, pro se, for appel-lee.
    Before GERSTEN, RAMIREZ and SHEPHERD, JJ.
   GERSTEN, J.

Alan Thomas Huch (“Huch”), appeals the trial court’s order granting the appel-lee, Susan Sareena Marrs’(“Marrs”) petition for an injunction against repeat violence. We affirm.

In 1988, Huch met Marrs at her workplace in Texas, where they maintained a platonic friendship until 1993. During this time, Huch tried to win Marrs’ affection with expensive gifts. Marrs ended the friendship after Huch became possessive, told others that she was his girlfriend, and threatened to cause trouble between Marrs and her boyfriend.

Huch however, continued to “crack on.” Huch ignored Marrs’ express wishes to be left alone. He sent Marrs flowers several times a week and even posed as a delivery man to get past security at Marrs’ home and work. Huch also showed up uninvited at social gatherings that Marrs attended. After Huch started peering through Marrs’ windows at home, she reported him to the Dallas police.

Huch’s harassment continued and became so overwhelming, that Marrs moved to Florida in 2001 in an attempt to flee from Huch. In July of 2002, Huch found Marrs through the internet and showed up at her residence in Miami. Huch again posed as a flower delivery man to get past security. Fearing for her safety, Marrs called the police.

Huch admitted to the police that he had obsessive feelings for Marrs. She was understandably scared that Huch was constantly watching her and had followed her half-way across the country. Marrs believed that Huch was delusional, that his obsessive behavior was increasing, and that his behavior had the potential to escalate.

In July of 2002, Marrs filed a petition for injunction against Huch pursuant to section 784.046, Florida Statutes (2001). After a hearing, the trial court entered an injunction for protection against repeat violence based on a finding of stalking. Huch then filed this appeal challenging the sufficiency of the evidence. We conclude the evidence was sufficient to support the entry of an injunction against repeat violence, and affirm.

Stalking is a series of actions that, when taken individually, may be perfectly legal. However, these actions constitute illegal behavior when they are not consensual and intimidate or scare a victim. U.S. Dep’t of JustiCe, Domestic Violence and Stalking, The Seoond Annual RepoRt to Congress UndeR the Violenoe Against Women Act (1997). An injunction for protection from repeat violence hopefully prevents this type of unconsented harassment from escalating. This is particularly important because stalking and obsessive/possessive behaviors are indicators of high victim risk. JaCQUelyn Campbell, Assessing DaNGEROÜSNESS: VIOLENCE By SEXUal Offenders, Batterers, and Child Abusers (Sage Publ’ns, 1995).

Not only are injunctions designed to prevent more serious physical injuries from occurring, they also provide stalking victims relief from emotional distress. Abravaya v. Gonzalez, 734 So.2d 577 (Fla. 3d DCA 1999); see Predick v. O’Connor, 260 Wis.2d 323, 660 N.W.2d 1 (Ct.App.2003)(stalking victims often suffer long-term emotional injuries at the hands of their stalkers and many experience depression, anxiety, obsessive-compulsive behaviors and even symptoms of post-traumatic stress disorder). All fifty states and the District of Columbia now have stalking statutes.

Florida’s “repeat violence statute,” provides that a trial court may issue an injunction when a respondent commits two incidents of violence or an incident of stalking directed against the petitioner or the petitioner’s immediate family. Section 784.046(l)(b), Florida Statutes (2001).

Stalking is further defined by section 784.048, Florida Statutes (2001), as any person who willfully, maliciously and repeatedly follows or harasses another person. “Harass” means to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose. § 784.048, Fla. Stat. (2001). “Course of conduct” is defined as a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. § 784.048, Fla. Stat. (2001).

The purpose of the stalking statute is to criminalize unlawful conduct that falls short of assault or battery. Curry v. State, 811 So.2d 786 (Fla. 4th DCA 2002). The stalking and repeat violence statutes are designed to protect victims, by ensuring that they do not have to be injured or threatened with death before they could stop a stalker’s harassment. Curry, 811 So.2d at 741.

In the present case, Huch repeatedly showed up uninvited to Marrs’ home, workplace and social activities, and followed her from Texas to Florida. Huch knew that Marrs did not want him to contact her and yet, he used underhanded methods to gain access to her. We find these activities show a continuing, ongoing act that caused emotional distress to Marrs and served no legitimate purpose. See Pallas v. State, 686 So.2d 1358 (Fla. 3d DCA 1994)(telephone calls numbering fifty times in one day falls within the definition of harassment); Garza v. State, 736 N.E.2d 323 (Ind.Ct.App.2000)(defendant’s actions including repeated and unwelcome flowers, notes and phone calls were sufficient to support conviction of stalking); State v. Collins, 580 N.W.2d 36 (Minn.Ct.App.l998)(sending two letters was acting “repeatedly,” for purposes of harassment statute). We agree with the trial court’s conclusion that sufficient evidence existed to establish that Huch stalked Marrs.

The seriousness of the crime of stalking cannot be overstated. The National Violence Against Women Survey, the first national survey conducted on the issue of stalking, found that over eight million women, approximately one in every twelve, have been stalked at some point in their lives. Joseph C. Mershman, The Dark Side of the Web: Cyberstalking and the Need for Contemporary Legislation, 24 HARV. Women’s L.J. 255, 258 (2001). Although some acts of stalking may appear benign, these acts are often a prelude to violence against the victims including assault, rape and murder. We commend the trial court for recognizing the seriousness of Huch’s actions and entering the injunction.

Affirmed.

      . A term frequently used in Patrick O'Brian’s maritime series. Patrick O’Brian, Master and Commander (W.W. Norton & Co., Inc., Haddin Craftsmen 1970). The term means simply to pursue without backing off.

      . Florida has recently added cyberstalking as an additional means of stalking. See § 784.048, Fla. Stat. (2003). Other states have defined stalking as unconsented contact including: following or appearing within the sight of the victim, approaching or confronting the victim in a public place or on private property, appearing at the workplace, school or residence of the victim, entering or remaining on property owned by the victim, contacting the victim by phone, sending mail or electronic communications, or placing an object on or delivering an object to property owned, leased or occupied by the victim. See § 750.41 l(f)(i)-(vii), Mich. Comp. Laws (2003); § 609.749(2)(l)-(7), Minn.Stat. (2003); § 1173(4)(a)-(g), Okla. Stat. (2003); § 163.730(3)(a)-(k), Or.Rev.Stat. (2003).

      . It is estimated that this type of violence occurs between 25% and 30% of the time in cases that started out as stalking. Joseph C. Mershman, The Dark Side of the Web: Cyber-stalking and the Need for Contemporary Legislation, 24 Harv. Women’s L.J. at 258.


author: WARNER, J. STONE, J.,

text:
    Sandi M. NEWMAN, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 4D01-4378.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Orrin R. Beilly of The Law Offices of Orrin R. Beilly, P.A., West Palm Beach, for appellant.
    No appearance for appellee.
   WARNER, J.

Newman appeals a final judgment in favor of Shirley Adkinson and State Farm. The sole issue is whether the trial court abused its discretion by denying Newman’s motion for leave to file a second amended complaint. We reverse.

In 1994, Newman was injured in a multi-vehicle collision involving Adkinson. She filed suit against Adkinson in January 1998. In January 1999, Newman amended her complaint to add a count against State Farm, her uninsured/underinsured motorist insurance carrier, for damages Newman sustained in excess of Adkinson’s policy limits.

In May of 1999, the trial court set the case for trial for the calendar starting on January 3, 2000. On September 29, 1999, State Farm took the deposition of Mr. Chaviat Mata, who was also involved in the multi-vehicle collision. He stated that while driving on 1-95, he observed a mattress fall off a pick-up truck some distance ahead of him. The cars in front of Mr. Mata slowed down. When Mr. Mata slowed his speed, Newman’s Jeep hit his car from behind. The truck that had carried the mattress did not stop.

On November 4, 1999, Newman sought leave to file a second amended complaint. The motion was set on a November 18 motion calendar. At the hearing, counsel for, State Farm asserted that there was insufficient time to argue the law as to whether the new claim was barred by the statute of limitations and whether the new claim against the new phantom defendant related back to the original complaint against Adkinson. Newman’s attorney acknowledged that the police report placed them on notice of the mattress, but argued that they did not know until the deposition that there was a witness who claims that he saw it fall immediately before the accident.

The trial court denied the motion as untimely because the trial had already been set for January and the information making up the new claim against State Farm was known to Newman since 1994. The case proceeded to trial where the jury found that Adkinson was not negligent.

Florida Rule of Civil Procedure 1.190(a) provides that leave to amend pleadings “shall be given freely when justice so requires.” Although the policy in Florida to liberally allow amendments where justice requires diminishes as the case progresses to trial, see Allett v. Hill, 422 So.2d 1047, 1049 (Fla. 4th DCA 1982), in exercising its discretion to allow the amendment, the trial court should still weigh the amendment in terms of the prejudice to the opposing party in the preparation for trial. See Dimick v. Ray, 774 So.2d 830, 833 (Fla. 4th DCA 2000). If the amendment simply restates an issue already present in the case of which the opposing party is aware and needs no extensive preparation for trial, then there may be no prejudice to the opposing party and great prejudice to the moving party to deny the amendment.

In this case, the amendment would merely add the existence of a phantom vehicle to the claim against State Farm for uninsured motorist coverage, coverage that Newman bought and paid for. It did not state a new cause of action but introduced an alternative theory of causation based upon Mata’s deposition. State Farm knew about this possible additional theory at least from the time of the deposition and did not suggest that the amendment would entail additional discovery or the continuation of the scheduled trial. Its sole contention was that it relied on further claims being barred by the statute of limitations, a claim we find lacking any merit as it arose out of the same incident as the initial complaint. Indeed, State Farm relied upon this alternative theory at trial to avoid liability when it argued that Adkinson should not be liable because the accident was caused by the negligence of the phantom pick-up truck which dropped the mattress on the highway. Thus, State Farm used the negligence of the phantom vehicle to defeat Newman’s claim, even though it should have been liable under its uninsured motorist coverage if either Ad-kinson or the phantom vehicle were hable for the accident.

While the trial court’s discretion in denying leave to amend complaints is broad, it is not unlimited. Under the circumstances of this case, we conclude that the court abused its discretion in denying the motion to amend the complaint. We reverse and remand for the trial court to grant the amendment of the complaint and further proceedings thereon.

STEVENSON, J., concurs.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I cannot conclude that the trial court’s decision constitutes an abuse of discretion.

While courts must liberally allow amendments to pleadings where justice so requires, this “liberality” gradually diminishes as the case progresses to trial. Allett v. Hill, 422 So.2d 1047, 1049 (Fla. 4th DCA 1982). A trial court has the discretion to deny further amendments where a case has progressed to a point that liberality ordinarily to be indulged has diminished. Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983). What interval is sufficient or insufficient, it seems to me, will vary from case to case.

This case is not one that is only in the pleading stages, as in Video Independent Medical Examination Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001), leaving the defendant with ample time to answer and prepare a defense. Similarly, I note that in Dimick v. Ray, 774 So.2d 830 (Fla. 4th DCA 2000), relied on by Appellant, leave to amend was requested at the summary judgment stage. In upholding leave to amend in Dimick, this court distinguished the Dimick facts from circumstances in which a trial is imminent. 774 So.2d at 835.

In my judgment, this case falls into a gray area in which a trial judge should have discretion to determine whether to permit a late amendment. Here, not only was it six weeks to trial, the trial court recognized that, although Newman claimed she had only recently discovered the information, she could have discovered the information much earlier. This also was not a case in which the defendant’s own conduct interfered with the plaintiffs efforts to discover information. See Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996). There is no explanation why Mr. Mata’s deposition was not taken until three months before trial. See San Martin v. Dadeland Dodge, Inc., 508 So.2d 497 (Fla. 3d DCA 1987)(denying motion to amend made on the eve of trial where plaintiff, in the exercise of due diligence, should have been aware of alleged basis for proposed fraud count long before he sought to amend his complaint).

Clearly, amendments to pleadings must be liberally allowed so that cases may be resolved on their merits. However, there are also compelling case management responsibilities on the court. Brown v. Montgomery Ward & Co., 252 So.2d 817, 819 (Fla. 1st DCA 1971)(concluding that the trial court did not abuse its discretion in denying appellant the right to file amended complaint two weeks before scheduled trial and after several years of pendency in court).

I would, therefore, affirm.

      . Adkinson has been voluntarily dismissed as a party to this appeal.


author: PER CURIAM.

text:
    Carmelo PALOMINO, Appellant, v. Lana K. Michele PALOMINO, Appellee.
    No. 3D02-1799.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.

      Cynthia L. Greene, Miami, for appellant.
    Greenman & Manz and David L. Manz, Marathon, for appellee.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Ugarte v. Ugarte, 608 So.2d 838 (Fla. 3d DCA 1992).


author: POLEN, J.

text:
    VITERRA ENERGY SERVICES, INC., Appellant, v. GATEWAY GP SAWGRASS MILLS, INC., Appellee.
    No. 4D02-4256.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Peter H. Levitt and Omar Ortega of Adorno & Yoss, P.A., Miami, for appellant.
    Gustavo J. Lamelas of Gustavo J. Lame-las, P.A., Miami, for appellee.
   POLEN, J.

This appeal arises from a final judgment against Viterra, following a jury trial. The dispute involves a breach of contract action in which Gateway, the owner of a 400-unit apartment project, alleged that Viterra installed a water sub-metering system which did not function properly resulting in the under-billing of residents for their water use. The underlying contract was documented, at least in part, by two separate Purchase Order Agreements, which pertain to the installation of an integrated sub-metering system, and a Reading/Billing Agreement, which is a lengthy formal document that makes no reference to the installation of the sub-metering system and pertains solely to the reading and billing aspect of the parties’ deal. The jury returned a $95,000.00 verdict for Gateway, consisting of $60,000.00 for failure to read the sub-meters and bill residents in accordance with the contract and $35,000.00 for failure to install a water metering system in accordance with the contract. The Final Judgment was adjusted upward to $118,802.45 to account for Gateway’s contractual prevailing party attorneys’ fees and taxable costs. For the reasons set forth below, we reverse.

Gateway failed, in both the Complaint and the Amended Complaint, to allege breach of an oral contract. Furthermore, the parties’ Joint Pre-Trial Stipulation does not contain any reference to an oral agreement. Moreover, Viterra’s Second Interrogatories to Gateway asked Gateway to identify all oral and written warranties which were given by Viterra. In response, Gateway stated, “Plaintiff does not allege any oral express warranty.” Despite this response, at trial, Gateway sought to prove that a Viterra salesman for the project made oral representations by explaining that Viterra would provide a system that was capable of rendering consistently accurate water usage readings. The court erred in allowing this testimony.

During the charging conference, Gateway told the trial court the jury needed to be able to determine whether there was “an agreement embodied in the purchase order and embodied in the oral communications between the salesman” and Gateway, and that the jury should be able to consider what the salesman told Gateway as to what the deal was and what was intended by the agreement. Gateway’s interrogation of the salesman, in hindsight, confirms Gateway’s attempt to prove an oral agreement or at the very least oral warranties, which had been breached. Furthermore, Gateway erroneously advised the trial court that it pled a contract’s existence beyond the four corners of the three documents. Ultimately, the trial court gave the following jury instruction over the objection of Viterra: “A legally binding contract may be established by ... an oral agreement between the parties.”

“The law is clear that litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared.” Triana v. FI-Shock, Inc., 763 So.2d 454, 458 (Fla. 3d DCA 2000); see also Bloom v. Dorba-Duque, 743 So.2d 1202, 1203 (Fla. 3d DCA 1999) (stating that “[i]t is well settled that a defendant cannot be found liable under a theory that was not specifically pled.”). Since Gateway did not initially plead breach of an oral contract, nor seek to amend its pleading prior to or during trial, Viterra lacked sufficient notice to adequately address this claim during the discovery period. Neither can Gateway claim the issue of oral contract was tried by implied consent. See Fla. R. Civ. P. 1.190(b). Thus, Viterra was not permitted to fully develop any possible defenses to an oral contract claim, such as the statute of limitations and statute of frauds. Consequently, we find the trial court erred by instructing the jury that they could find Viterra in breach of an oral agreement. Therefore, we reverse for a new trial based on the written contract.

REVERSED and REMANDED.

KLEIN and STEVENSON, JJ., concur.


text:
    Stanley RICH, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3588.
    District Court of Appeal of Florida, Fourth District.
    Nov. 12, 2003.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse appellant’s conviction for aggravated battery because the trial court negated appellant’s self-defense claim by instructing the jury that the use of force was not justified if appellant was committing or attempting to commit aggravated battery. In Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002), we held that this instruction, which is based upon section 776.041, Florida Statutes (2002), was applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time. Giving this instruction where the only charge against the defendant is the aggravated battery, which also was the act that the defendant claimed was self-defense, would improperly negate the self-defense claim. See id. at 1266.

Although appellant did not object to this instruction, we hold that it is fundamental error. “An incorrect jury instruction on the defense of justifiable use of deadly and non-deadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction.” Thomas v. State, 831 So.2d 253, 253 (Fla. 3d DCA 2002) (citations omitted). We determined in Giles that this instruction was misleading, and it was reasonably possible that it contributed to Giles’ conviction under circumstances similar to this case. 831 So.2d at 1266. In addition, we have held that fundamental error results where an inaccurate and misleading instruction negates a defendant’s only defense. See Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001).

Reversed and remanded.

GUNTHER, WARNER and MAY, JJ., concur.