author: GREEN, J.

text:
    Ronnie JONES and Sylvia Jones, Appellants, v. GOODYEAR TIRE & RUBBER COMPANY, Appellee.
    No. 3D01-3583.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Rehearing Denied May 12, 2004.

      Wetherington, Klein & Hubbart and Phillip A. Hubbart; Lauri Waldman Ross, for appellants.
    Thornton, Davis & Fein, P.A., and Frederick J. Fein, and Kathleen M. O’Connor, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   GREEN, J.

Ronnie Jones and his wife Sylvia, plaintiffs below, appeal a post-trial entry of a directed verdict for the defense and/or order for new trial as well as a pre-trial confidentiality order in their personal injury action against Goodyear Tire and Rubber Company (“Goodyear”). For the reasons that follow, we reverse and remand for a reinstatement of the jury’s verdict and vacate the confidentiality order.

Facts

Jones, a tire mechanic for the Dade County Public Schools (“DCPS”), received on-the-job training from his co-worker, Patrick Redding. Jones and Redding repaired the tires on DCPS vehicles, and made road service calls when necessary. Their jobs required them to completely service tires, including rebuilding them if necessary.

On October 18, 1994, Jones and Redding transported a school bus for repair to a northeast facility. Jones noticed that one of the bus’ interior tires was low on air. Jones, using a hydraulic jack, lifted the bus from the ground and checked the tire for a “hollow” sound, which would have indicated that the tire was flat. The tire did not sound hollow, nor did it have any nails or objects protruding from it. In addition, the tire contained approximately forty to fifty pounds of air pressure. Given these facts, both men assumed that the tire had a valve stem leak. These leaks are usually checked by filling the tire with air. Jones began filling the tire, which was still mounted on the bus, when suddenly the tire exploded. Jones was thrown back against a gate, and knocked unconscious. He sustained serious injuries, requiring four separate surgeries, including two surgical fusions of the spine. Jones sustained a 16% whole body impairment, severe brain damage and “intractable depression.” He was also deemed unemployable.

Jones instituted this action against Goodyear, seeking personal injury damages for negligence in design, testing and/or failure to test, and failure to warn; and strict liability for a design defect in the tire. Goodyear answered with a general denial and various affirmative defenses. Its answer was subsequently amended to add possible Fabre defendants, including Jones’ employer, DCPS.

On the first day of trial, Goodyear filed two motions in limine. The one relevant to this appeal sought a Frye hearing to exclude the opinion testimony of Jones’ only tire expert, Richard Baumgardner, on grounds that there was no underlying support for Baumgardner’s testimony and consequently the testimony would be nothing but pure speculation. The court denied the motion and permitted Baumgard-ner to testify.

Baumgardner, a tire engineer with 43 years of designing, inspecting, and testing experience, opined that there was a design defect in the Goodyear tire which caused “zipper failure.” He stated that the “flaw” in the Goodyear tire design was that there was too much of a difference between the thickness of the center portion of the sidewall of the tire and the areas above and below it. Baumgardner opined that the solution to the “zipper failure” problem was to either increase the thickness of the rubber at the “flex point” or to thin out other areas of the sidewall rubber to create a wider flex area.

Goodyear’s expert, Charles Gold, on the other hand, opined that the applicable tire was not defectively designed and that no tire has been created which would not “zipper.” He stated that zipper failure occurs when a tire has been under-inflated or flat for a significant period of time. It was Gold’s opinion that Jones’ injuries were caused by using unsafe procedures to reinflate a damaged tire.

At the close of Jones’ case, and at the close of all the evidence, the trial court “reserved” ruling on a defense motion for directed verdict, although no such motion had been presented to the court. The case was thereafter submitted to the jury on a special interrogatory verdict. The jury found Goodyear liable for strict liability and negligence, and awarded Jones $1,800,000 in damages. The jury found no fault on Jones’ part, but attributed 80% fault to Goodyear and 20% to DCPS.

Goodyear filed a post-trial motion for directed verdict and new trial. The motion for directed verdict asserted that Jones did not present sufficient evidence of Goodyear’s negligence and strict liability because Baumgardner’s opinions were unsupported, speculative and inadmissible. In addition, Goodyear claimed that there was no evidence to support a finding of its negligent failure to warn. At the hearing on the post-trial motions, Goodyear renewed its motion in limine, seeking to exclude Baumgardner’s testimony on the ground that it was inadmissible under Frye. Goodyear contended that Baumgard-ner had offered opinions which involved “new and hovel scientific evidence,” because the redesigning of a tire involves the scientific principles of engineering, physics and chemistry. The trial court granted Goodyear’s motion for directed verdict specifically finding that:

a. The testimony of Plaintiffs’ expert witness [H. Richard] Baumgardner, was incompetent, speculative and inadmissible pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923) and Florida Statute 90.702 and therefore Plaintiffs’ proof of their negligence and strict liability claims, Counts I and II of the complaint, was legally insufficient.
b. There was a lack of evidence submitted at trial upon which the jury could lawfully find that Goodyear failed to warn; and
c. There was a lack of evidence submitted at trial upon which the jury could lawfully find that the subject tire was defective in any way.

Moreover, the trial court’s order also granted Goodyear’s motion for new trial on grounds that:

b. The verdict was against the manifest weight of the evidence and was motivated more by the jurors’ sympathies than by the testimony and the evidence presented at trial.
c. There was a lack of evidence presented at trial to warrant a jury instruction on negligent failure to warn; and
d. Goodyear was prejudiced in that it was not permitted to call Mr. Edward Martino as a witness at trial.

This appeal followed. For the following reasons, we reverse.

Law

The Directed Verdict

It is well-settled that in determining a motion for directed verdict, all evidence and reasonable inferences must be viewed in the light most favorable to the non-moving party. Woods v. Winn Dixie Stores, Inc., 621 So.2d 710, 711 (Fla. 3d DCA 1993). If there are conflicts in the evidence or in inferences drawn from it, the issue is a factual one for the jury, not a legal matter to be resolved by the court. Blake v. Hi-Lu Corp., 781 So.2d 1122, 1124 (Fla. 3d DCA 2001).

In his complaint Jones alleged causes of action for both negligence and strict liability. The negligence count was premised on two different theories: 1) failure to warn, and 2) negligent design. The strict liability count, on the other hand, alleged that Goodyear placed a product into the marketplace which was unreasonably dangerous to the user. The jury found in Jones’ favor on both counts. Thus, there must be insufficient evidence on both counts to support a directed verdict. See Teichner & Mella, P.A. v. Butler, 600 So.2d 507, 508 (Fla. 3d DCA 1992).

Under Florida law expert opinions involving “new or novel scientific techniques” must meet the test set forth in Frye v. United States, 293 F. 1013 (D.C.Cir.1923). See Spann v. State, 857 So.2d 845, 852 (Fla. 2003). This test requires the scientific principle or discovery underlying an expert’s opinion to be “sufficiently established to have gained general acceptance in the particular field in which it belongs.” Frye, 293 F. at 1014. See also Hadden v. State, 690 So.2d 573, 576 (Fla.1997) (stating that the Frye test requires the scientific principles undergird-ing an expert’s opinion be found by the trial court to be generally accepted by the relevant members of its particular field). By definition, however, the Frye test is only applicable to cases where an expert’s opinion is based upon new and/or novel scientific evidence. See U.S. Sugar Corp. v. Henson, 823 So.2d 104, 109 (Fla.2002); Brim v. State, 695 So.2d 268, 271-72 (Fla. 1997). “Therefore, in the vast majority of cases, no Frye inquiry will be required' —because no innovative scientific theories will be at issue.” Henson, 823 So.2d at 109; see also Spann, supra, 857 So.2d at 852.

Expert opinion that is based on an expert’s own experience or training, however, is deemed “pure opinion.” Holy Cross Hosp., Inc. v. Marrone, 816 So.2d 1113, 1117 (Fla. 4th DCA 2001)(“ ‘Pure opinion’ refers to expert opinion developed from inductive reasoning based on the experts’ own experience, observation, or research, whereas the Frye test applies when an expert witness reaches a conclusion by deduction, from applying new and novel scientific principle, formula, or procedure developed by others.”). An expert’s pure opinion testimony does not have to pass the Frye test because the testimony is based on the expert’s personal opinion. Rickgauer v. Sarkar, 804 So.2d 502, 504 (Fla. 5th DCA 2001).

In this case, Baumgardner’s testimony made no reference to a “new or novel scientific principle or discovery.” Instead, Baumgardner personáíly inspected the tire at issue and opined that based upon his 27 years’ experience in designing and testing tires with Firestone Tire and Rubber Company and 16 additional years as a consultant in tire failure, he believed that the tire in question exploded because of a design defect which led to “zipper failure,” and that this “defect” could have been prevented had the tire been designed differently. This testimony does not involve a novel scientific principle or discovery. Thus, the trial court’s exclusion of Baum-gardner’s testimony for not meeting the Frye test was an abuse of discretion.

In our decision in Davis v. Caterpillar, Inc., 787 So.2d 894 (Fla. 3d DCA 2001), review dismissed, 817 So.2d 845 (Fla.2002), a case proeedurally similar to this case, we found that

[I]n rejecting the expert’s opinion, the [trial] court concluded that the expert’s opinions failed to meet the test outlined in Frye ... designed to ensure that a jury will not be misled by experimental scientific methods which may ultimately prove to be unsound. However as plaintiffs argue and defendants as much as concede, [the expert’s] opinions did not rely on new or novel scientific evidence. ...
* * *
In sum, the expert was qualified, his testimony was based on relevant undisputed facts and did not involve any novel scientific principle, and his conclusion seems entirely logical in light of the facts. Accordingly, we conclude that the trial court abused its discretion in excluding [the expert’s] testimony and entering final judgment in favor of [the defendants]. The trial court’s order striking the expert testimony and entering the judgment ... [is] reversed.

787 So.2d at 898-99. This same reasoning is applicable to the case at bar and accordingly we reverse the directed verdict.

The Order for New Trial

After granting Goodyear’s motion for directed verdict the trial court was initially inclined to deny the motion for new trial, yet eventually granted it stating: •

The Court: ... I would grant a new trial on the same grounds [as the directed verdict]....
Counsel for Jones: Which is the competency as to Mr. Baumgardner?
The Court: And the validity, yeah. Counsel for Jones: Of his opinion?
The Court: Of his opinion.
* * *
Counsel for Goodyear: There is one more, issue that you’ve not addressed and that has to do with the failure to warn issue, the instruction, and our not being able to call an additional witness, and we would submit that that is also supportable grounds for new trial.
The Court: Well, I possibly was in error in letting [the failure to warn] issue go ... to the jury.... I don’t — quite frankly, I don’t think there was a failure to warn. I don’t think there’s any testimony in this record that shows that there was no failure to warn.
It’s true that they might: not have warned the individuals.
-!' * *
Counsel for Jones: Your Honor is holding there was no duty to warn?
The Court: There was no duty — well, there may have been a duty to warn its dealers, which the testimony was they did.

The written order of the court, however, reflects somewhat different findings.

As the first ground for awarding a new trial, the court adopted the reasoning relied upon for the directed verdict. Since we have found that reasoning to be reversible error, we find the same here.

The second ground, contained in the order for new trial, claims that the verdict was “against the manifest weight of the evidence and was motivated more by the jury’s sympathies than by the testimony and the evidence.... ” The order, however, gives no reasons or specifics to support this finding. This deficiency renders the order defective and reversible. See Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999)(“When a trial judge grants the motion for. a new trial, he or she must articulate the reasons for the new trial in the order.”). See also Wackenhut Corp. v. Canty, 359 So.2d 430, 436 (Fla.1978)(up-holding district court’s reversal of trial court’s grant of new trial where trial order did not explain why verdict was excessive). Moreover, the trial court’s oral pronouncements regarding the granting of a new trial did not include, a finding that the “verdict was against the manifest weight of the evidence.” Thus, we find that the court abused its discretion in granting a new trial based on this finding. See Midtown Enters., Inc. v. Local Contractors, Inc., 785 So.2d 578, 582-83 (Fla. 3d DCA 2001)(finding that where oral pronouncements of trial court only referred to evi-dentiary errors, trial court abused its discretion in granting new trial on basis that verdict was against manifest weight of evidence).

As its third ground, the court found that it had given a jury instruction on failure to warn which was not warranted by the evidence. This ground is not supported by any reasoning, either oral or written, and thus is also defective. See Gould v. Nat’l Bank of Fla., 421 So.2d 798, 803 (Fla. 3d DCA 1982)(holding that trial court must give express reasons that support its findings for a new trial); Travelers Indem. Co. v. Hicks, 363 So.2d 628, 629 (Fla. 3d DCA 1978) (“[O]rders granting motions for new trial should articulate reasons for so doing so that appellate courts may exercise proper appellate review.”). See also Brown v. Estate of Stuckey, supra. Moreover, a review of the record evidence shows that Jones was entitled to the standard jury instruction on failure to warn. See La- Torre v. First Baptist Church of Ojus, Inc., 498 So.2d 455, 456 (Fla. 3d DCA 1986)(holding that a party is entitled to a jury instruction on his/her theory of the case when the evidence, viewed in light most favorable to that party, supports the theory regardless of whether the theory is controverted by opposing party.).

Finally, we conclude that the record does not support the trial court’s determination that Goodyear was prejudiced by its inability to call Mr. Martino as a witness. In its motion for a new trial, Goodyear claimed that “Mr. Martino was the one Goodyear witness through which it would present its failure to warn defense.” However, Martino’s proffered deposition testimony showed that Goodyear furnished product service bulletins to its dealers, including Martino, but that Martino did not pass these bulletins on to his customers, such as DCPS, Jones’ employer. Thus, the admission of this testimony would have negated Goodyear’s defense that it had warned its customers. Accordingly, the exclusion of this testimony cannot form the basis for a new trial. See Katos v. Cushing, 601 So.2d 612 (Fla. 3d DCA 1992)(finding test for harmful error regarding evidentiary ruling is whether it altered the outcome of the trial).

Moreover, the court’s oral pronouncement regarding Martino’s testimony is in direct conflict with its written finding of prejudice. At the hearing, the court specifically stated:

I don’t know what difference [the exclusion of Mr. Martino’s testimony] will make on the failure to warn because ... the evidence in this trial shows that [Goodyear] did give the warnings that they had an obligation to give, i.e., to their dealers.

For this reason alone this portion of the order should be reversed. See Bassett v. Saunders, 835 So.2d 1198, 1201 (Fla. 1st DCA 2002)(“[A] written order or final judgment must conform to the oral pronouncement of the trial court.”); Goosby v. Lauxrence, 711 So.2d 577, 579 (Fla. 3d DCA 1998)(finding reversal and remand required because of variances between oral pronouncements and written order).

Accordingly, like the directed verdict, the order for new trial is reversed and this case is remanded with directions to reinstate the jury’s verdict and enter judgment in Jones’ favor, together with prejudgment interest from the date of the jury’s verdict. See Fla. R.App. P. 9.340(c).

The Confidentiality Order

Finally, the trial court, on Goodyear’s motion, granted, over objection, a pre-trial confidentiality order that prohibited the parties and their counsel from disclosing Goodyear documents obtained during discovery. Jones argues that this order should be vacated as it is violative of section 69.081(3), Florida Statutes (2001). This statute provides in pertinent part:

(3) Except pursuant to this section, no court shall enter an order or judgment which has the purpose or effect of concealing a public hazard or any information concerning a public hazard, nor shall the court enter an order or judgment which has the purpose or effect of concealing any information which • may be useful to members of the public in protecting themselves from injury which may result from the public hazard.

§ 69.081(3), Fla. Stat. (2001). To this end, “public hazard” has been statutorily defined as:

[A]n instrumentality, including but not limited to any device, instrument, person, procedure, product, or a condition of a device, instrument, person, procedure or product, that has caused and is likely to cause injury.

§ 69.081(2), Fla. Stat. (2001).

Since the jury clearly found that Jones was injured by the tire in question, the tire is deemed a “public hazard.” Thus, pursuant to section 69.081(2), no order can be entered which would conceal information regarding this tire. Accordingly, we vacate said order.

Conclusion

Finding that the trial court abused its discretion in substituting its judgment for that of the jury, and that the jury’s verdict was not unjust, we reverse both the directed verdict and motion for new trial granted in Goodyear’s favor. See Michelin Tire Corp. v. Milbrook, 799 So.2d 248, 251 (Fla. 3d DCA 2001)(“The role of the trial judge ... is not to substitute his or her own verdict for that of the jury, but to avoid what, in the judge’s trained and experienced judgment, is an unjust verdict.”). We thus remand with directions to reinstate the jury’s verdict and award prejudgment interest to the plaintiffs, starting at the date of said verdict.

In addition, we remand with the additional instruction that the pre-trial confidentiality order be vacated.

Reversed, remanded with directions.

      . School bus tires are mounted two to each axle, parallel without touching.

      . Sylvia Jones also filed a claim for loss of consortium.

        . Fabre v. Marin, 623 So.2d 1182 (Fla.1993).

      . Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

      . A "zipper” was defined at trial as
      circumferential upper sidewall fatigue failure, typically 10 to 20 inches in length. From the epicenter, the rupture continues in both directions due to the instant transfer of load to adjacent steel body cables until the stored energy from inflation pressure is dissipated. The occurrence of this rupture has been compared to the opening of a zipper.

      .Sylvia Jones was awarded $210,000 for her loss of consortium claim.

      . The United States Supreme Court has held that expert opinion testimony of a tire failure expert does not constitute "scientific testimony.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 142, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

      . Moreover, Baumgardner’s testimony was also admissible under section 90.702 because he was qualified to give an expert opinion, and his testimony assisted the jury in understanding the evidence. § 90.702, Fla. Stat. (2001).

      . The order for new trial was drafted by Goodyear's attorneys and signed by the court.

      . This instruction provided:
      The issue for your determination on the claims of Ronnie Jones against Goodyear Tire & Rubber Company is whether Goodyear negligently failed to warn of a dangerous condition and risk which was known to Goodyear and which Ronnie Jones neither knew or should have known by the use of reasonable care and if so whether such negligent failure to warn was a legal cause of the injuries sustained by Ronnie Jones.

      . This order provides in relevant part:
      Said documents shall not be given, shown, made available, discussed or otherwise communicated in any way to anyone other than:
      a. the court or courts in which this litigation is being pursued;
      b. the Plaintiffs or co-Defendant;
      c. the attorneys of record for the Plaintiffs or co-Defendant, and their associated attorneys, including employees of such attorneys to whom it is necessary that the material be shown for purposes of the litigation; and
      d. independent professional engineers, accident reconstruction or other independent experts retained by the attorneys of record for such Plaintiffs or co-Defendant to assist in the preparation of this litigation.


source: Caselaw Access Project

author: PETERSON,- J.

license: Public Domain

text:
    FORELINE SECURITY CORPORATION, Appellant, v. Marishia SCOTT, Appellee.
    No. 5D02-1210.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2004.
    Rehearing Denied May 10, 2004.

      Sylvia H. Walbolt and Robert E. Biasot-ti of Carlton Fields, P.A., St. Petersburg, for Appellant.
    Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Crews & Bodiford, P.A., Orlando, for Appellee.
   PETERSON,- J.

Foreline Security Corporation (“Fore-line”) appeals a final judgment in favor of Marishia Scott (“Scott”). Foreline contends that the trial court: erred by refusing to instruct the jury under the Slavin doctrine derived from Slavin v. Kay, 108 So.2d 462 (Fla.1959); erred in refusing to enter a directed verdict in favor of Fore-line for fraudulent and negligent misrepresentation; and erred in holding Foreline liable for the full amount of damages. We agree.

Foreline installed a bank security system at the Mount Dora' branch of the United Southern Bank (“USB”) in 1993. The installation during the construction of the branch facility included system wiring, panic buttons that triggered a silent alarm, ■cash drawers equipped with wireless “bait money clips” that would also trigger a silent alarm and placement of a security camera, monitor and VCR. Foreline’s original design required placement of the monitor and VCR in a location out of sight of the public, but both were placed in a manager’s glassed-in office in full view of the public after a USB officer instructed Fore-line to place the monitor in that office. After the installation, USB operated the system without mishap until the tragic events of March 20,1999.

On that date, Fred Anderson, a parolee who had visited USB on previous days while posing as a college student doing research on a career in banking and who knew the head teller from church, entered the branch facility shortly after 10:00 a.m. Anderson brought with him orange juice and doughnuts for the two female tellers on duty, Scott and Heather Young. Inexplicably, USB had no other employees or security officer on duty that morning. Anderson visited with the tellers until the bank was empty of customers, left briefly to retrieve a gun from his car and returned. He then pointed the gun at Scott, fired a shot and said “[D]o not set off any alarms, go straight to the vault.” Once in the vault, he asked the two tellers “who wants to die first?” Then Anderson shot and killed Heather Young and then shot Scott in the neck, rendering her a quadriplegic. Anderson was caught as he exited the bank and was later tried and convicted for the murder of Heather Young.

Scott sued Foreline adopting several theories of liability: 1) Foreline negligently installed the security video monitor and VCR at the bank in an area accessible to a potential bank robber, causing the robber to select that particular bank to rob; 2) Foreline failed to provide panic buttons at the bank’s teller station and in the bank’s vault; and 3) Foreline fraudulently and negligently represented to USB that the security system was a “UL listed burglary and holdup alarm system.” Foreline denied liability and asserted various affirmative defenses including the Slavin doctrine. At trial, Scott’s security alarm expert opined that readily accessible panic alarm devices should have been installed at the teller stations, at the drawer containing the keys to the day. gate, in the locking mechanism for the day gate and in the bank vault itself. In addition, the expert testified that Foreline had not installed a “UL listed hold-up and alarm system.” In sum, the alarm expert testified that the system Foreline installed fell short of industry standards for such a system.

The jury returned a verdict in favor of Scott on all of her claims except the breach of contract claim. In addition to finding negligence on the part of Foreline, the jury found USB was also, negligent and apportioned fifty percent fault to USB and fifty percent fault to Foreline. After the damages phase of the bifurcated trial, the jury awarded Scott $26,917,000 in total damages, including $11,917,000 in economic damages and $15,000,000 in non-economic damages. The trial court entered judgment against Foreline for the full amount of the verdict ($26,917,000) ruling that allocation of damages for comparative negligence pursuant to section 768.81, Florida Statutes, did not apply.

I. THE SLAVIN DOCTRINE

Foreline contends that it was entitled to an instruction based on Slavin because it contracted with USB to provide and install a security and video surveillance system and USB accepted the system as installed, and operated it for six years before Anderson’s robbery.

Florida follows the Slavin rule, also known as the “completed and accepted rule,” although a majority of states have adopted the “modern rule.” In Slavin, the plaintiff sued a motel owner and a plumbing contractor for negligence when a wash basin installed by the contractor on a wall in the owner’s motel room fell from the wall and injured the plaintiff. Slavin, 108 So.2d at 463. The trial court directed a verdict in favor of the hotel owner because the defect was not discoverable by ordinary inspection. The trial court also directed a verdict in favor of the contractor because of a lack of privity between the contractor and the plaintiff. The Florida Supreme Court affirmed both judgments but on rehearing, reversed the contractor’s judgment, discarded the privity requirement and announced the doctrine now known as the Slavin doctrine: a contractor is not liable for injuries to third parties after the owner has accepted the work unless the defect at issue was latent and could not have been discovered by the owner or unless the contractor was dealing with inherently dangerous elements. Id. at 466-67.

The Slavin doctrine extinguishes the liability of a contractor for a defect by shifting the duty of care originally owed to others by the contractor to the accepting owner as long as any defects are patent. Under Slavin, a patent defect prevents a claim of liability on the part of the contractor after acceptance by the owner.

In the instant case, Foreline presented evidence that it had completed the installation of USB’s security system six years before the robbery, that USB had accepted the security system in 1993, and that USB and its head of security were required by federal law to “select, test, operate and properly maintain” their security system. Foreline also asserted that USB and its head of security were in a superior position to observe the system on a day-to-day basis and could discover any patent defects in the system, such as the danger alleged by Scott of placing the VCR and monitor in the public’s view and the danger posed by any alleged lack of panic buttons in various locations in the branch even though some of those locations had been wired for panic devices with USB’s knowledge.

A trial court commits reversible error when it refuses to give a requested jury instruction which accurately states the law, if: a) there is evidence supporting the instruction; and b) the instruction was necessary to allow the jury to properly resolve all issues in the case. E.g., Cornette v. Spalding & Evenflo Cos., 608 So.2d 144, 145 (Fla. 4th DCA 1992); Orange County v. Piper, 523 So.2d 196, 197 (Fla. 5th DCA 1988). Litigants have a “right to have the court instruct the jury on the law applicable to the evidence under the issues presented.” Ruiz v. Cold Storage & Insulation Contractors, Inc., 306 So.2d 153, 154 (Fla. 2d DCA 1975). In the instant case, Foreline, having presented evidence that USB had accepted the security systems as designed and installed, and that any defects in the system were patent and were known or should have been known by USB, was entitled to a jury instruction based on Slavin. Scott argues that a jury instruction based on Slavin is not necessary as this is a “products liability” case and the security and video surveillance systems were products, not structural improvements to the real property. We find no merit in Scott’s argument. See, e.g., Equibank v. U.S. I.R.S., 749 F.2d 1176, 1179 (5th Cir.1985) (holding that alarm systems from the societal viewpoint, are not movable; they are electrical installations which become a component part of the building or construction to which they are attached). See also Travelers Ins. Co. v. Guardian Alarm Co., 231 Mich.App. 473, 586 N.W.2d 760, 762-63 (1998) (holding that a fire alarm system constituted an improvement to real property); Qualitex, Inc. v. Coventry Realty Corp., 557 A.2d 850, 852 (R.I.1989), and Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 225 N.W.2d 454 (1975) (each holding that fire protection sprinkler systems and high-pressure water pipes designed for fire protection are improvements to real property for the purpose of a statute of repose).

II. FRAUDULENT AND NEGLIGENT MISREPRESENTATION

Foreline also contends on appeal that the trial court erred in failing to grant its motion for a directed verdict on Scott’s fraudulent and negligent misrepresentation claims that Foreline represented that its system was UL listed or approved. In order for Scott to recover on her claim of fraudulent misrepresentation, Scott must prove, inter alia, reliance on a fraudulent misrepresentation. E.g., Johnson v. Davis, 480 So.2d 625, 627 (Fla.1985). This same requirement pertains to Scott’s negligent misrepresentation claim. E.g., Baggett v. Electricians Local 915 Credit Union, 620 So.2d 784, 786 (Fla. 2d DCA 1993). Rebanee means that Scott must show that Foreline made a misrepresentation that she personally relied upon. See, e.g., Lance v. Wade, 457 So.2d 1008, 1010-11 (Fla.1984). There is no evidence in the record that Foreline communicated any misrepresentation of fact to Scott or that Scott relied on any misrepresentation of fact. In order to prevail, Scott must have known about and relied upon a misrepresentation of fact; she cannot rely on any statement made to USB about which she had no knowledge. Accordingly, the trial court erred when it failed to grant Fore-line’s motion for directed verdict on Scott’s fraudulent and negligent misrepresentation counts. Scott neither knew of any misrepresentations of fact, nor could she have relied on any such statements.

III. COMPARATIVE NEGLIGENCE

Finally, Foreline contends that the trial court erred when it determined post-verdict that Foreline was solely responsible for the full amount of Scott’s damages. In its answer and affirmative defenses, Fore-line raised several defenses including comparative fault. At trial, Foreline’s theory of liability was that USB, not Foreline, was responsible for Scott’s injuries, or at least a part of those injuries. After Foreline pursued a comparative negligence theory of liability throughout the trial, the jury was then instructed by the trial court that “[t]he court in entering judgment will take into account your allocation of fault.” The jury then found USB 50% liable and Fore-line 50% liable. The trial court then ignored the allocation of fault determined by the jury and ruled that Scott was entitled to judgment against Foreline for 100% of the award of damages.

We conclude that the trial court erred by not applying the comparative negligence statute when it misled the jury into believing that it was allocating fault fifty-fifty between Foreline and USB. The jury may have reached a different verdict on damages had it known that Foreline would bear the entire amount.

IV. CONCLUSION

We find that the trial court committed reversible error when it failed to instruct the jury on Foreline’s Slavin rule defense. In addition, the trial court erred in refusing to enter a directed verdict in favor of Foreline for fraudulent and negligent misrepresentation because Scott did not show reliance. The trial court also erred in holding Foreline liable for the full amount of damages when it misled the jury into thinking that the jury’s allocation of fault would be considered, and it was not.

We remand to the trial court for retrial.

REVERSED AND REMANDED.

SHARP, W. and TORPY, JJ., concur.

      . Scott alleged seven causes of action: strict liability; negligence; breach of implied warranty of fitness; breach of an implied warranty of merchantability; breach of contract; intentional misrepresentation; and negligent misrepresentation.

      . "The 'completed and accepted' rule applies so as to free the contractor from liability where the contractor did not owe a duty of care to a third person, the contractor did not breach a duty of care to a third person, and the contractor is not negligent or the contractor's negligence, if any, is a remote cause of the injury and the negligence of the owner or another person is the proximate cause of the injury.’' 74 A.L.R. 544-45 (1999).

      . "The modern rule' or the 'forseeability doctrine’ provides that a building or construction contractor is liable for injury or damage to a third person as a result of the condition of the work, even after completion of the work and acceptance by the owner where it was reasonably foreseeable that a third person would be injured by such work due to the contractor's negligence or failure to disclose a dangerous condition known to such contractor." 74 A.L.R. 5th, § 2[a] 543-44 (1999).

      .Patent defects are defects which are apparent to a normally observant person, especially a buyer on a reasonable inspection. Black’s Law Dictionary 429 (1999).

        . Evidence was presented that USB elected to not install some panic buttons in order to reduce the cost of the system.

      . The significance of the security system not being "UL listed” is not clear from the record. There is no indication that any security system is UL listed although some components of a system may be UL approved.


author: PETERSON, J.

text:
    STATE of Florida, Appellant, v. Timothy MULDOWNY and William E. Pitts, Appellees.
    No. 5D02-4035.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2004.
    Rehearing Denied May 4, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellant.
    Stuart I. Hyman of Stuart I. Hyman, P.A., Orlando, for Appellees.
   PETERSON, J.

This appeal is before this court after a county court suppressed the results of in-toxilyzer tests in two different cases in which Timothy Muldowny and William E. Pitts were charged with driving under the influence of alcohol. This court accepted jurisdiction after the county court certified the following questions to be of great public importance pursuant to rule 9.160, Florida Rules of Appellate Procedure:

Is a defendant entitled to inspect and copy and potentially use at trial or hearing the operator’s manuals, maintenance manuals and schematics of the intoxilyzer? Assuming the answer to the above question is yes, is the appropriate remedy exclusion of the breath test for the state’s failure to provide such documentation?

Under rules 9.030(b)(4)(A) and 9.160, Florida Rules of Appellate Procedure, this court has discretionary review of non-final orders of a county court containing a question certified to be of great public importance. Such is the case here. See also State v. Slaney, 653 So.2d 422, 424 (Fla. 3d DCA 1995) (holding District Court of Appeal has jurisdiction to entertain state’s appeal from a non-final order of the county court certified to be of great public importance).

Under rule 9.160(f)(1), once this court accepts the appeal, “it will decide all issues that would have been subject to appeal if the appeal had been taken to the circuit court.” See, e.g., Sidney, 653 So.2d at 424. Because the non-final county court order suppressing the breathalyzer tests is normally subject to appeal to the circuit court and because this court accepted jurisdiction to hear the certified questions and the order suppressing the breathalyzer test, this court must also consider the suppression issue.

The issues in these two cases crystalized when the Defendants moved to produce the documentation described in the certified question. When the State failed to produce the documents, the trial court suppressed the breath results of the Intoxilyzer 5000.

The Defendants sought production of the information in order to determine whether the intoxilyzer actually used to establish their driving impairment had been substantially modified by the inclusion of parts that were not on the schematics or whether the machine was approved by the Florida Department of Law Enforcement (FDLE). Only approved breath testing machines may be used to establish impairment pursuant to section 316.1932(l)(a), Florida Statutes (2002), commonly known as Florida’s “Implied Consent Law.” E.g., State v. Polak, 598 So.2d 150 (Fla. 1st DCA 1992); State v. Flood, 523 So.2d 1180 (Fla. 5th DCA 1988). FDLE rule 11D-8.003 establishes the procedures for approval of the machines.

Section 316.1932(l)(f)(4), Florida Statutes (2002), requires that when a person tested with a machine requests it, full information concerning the test is to be made available. It must necessarily follow that when a person risks the loss of driving privileges or perhaps freedom based upon the use and operation of a particular machine, full information includes operating manuals, maintenance manuals and schematics in order to determine whether the machine actually used to determine the extent of a defendant’s intoxication is the same unmodified model that was approved pursuant to statutory procedures. It seems to us that one should not have privileges and freedom jeopardized by the results of a mystical machine that is immune from discovery, that inhales breath samples and that produces a report specifying a degree of intoxication.

We modify the first part of the certified question to read:

Is a defendant entitled to inspect and copy and potentially use at trial or hearing the operator’s manuals, maintenance manuals and schematics of the intoxilyzer used to test the defendant when the results of the test are intended for use to affect the driving privileges of or assess penalties against that defendant?

We answer that question in the affirmative.

Having answered the first part of the question in the affirmative, we turn to the issue of whether exclusion of the breath test results was an appropriate remedy for the State’s failure to provide the documentation.

Exclusion of evidence is a permissible sanction for the violation of a discovery rule. See Fla. R.Crim. P. 3.220(n)(l). But the sanction should be imposed only if no other remedy suffices. Miller v. State, 636 So.2d 144, 149 (Fla. 1st DCA 1994).

If, during the course of the proceedings, it is brought to the attention of the trial court that the state has failed to comply with rule 3.220, the court must conduct a hearing to determine whether the state’s violation was inadvertent or willful, whether the violation was trivial or substantial, and, most importantly, what effect, if any, the violation had upon the ability of the defendant to prepare adequately for trial, (citation omitted).
Only after the court has made a sufficient inquiry into all of the surrounding circumstances may it exercise its discretion to determine whether the state’s noncompliance with the disclosure rule resulted in harm or prejudice to the defendant, thereby requiring the imposition of some sanction, such as exclusion of the evidence.

Lowery v. State, 610 So.2d 657, 659 (Fla. 1st DCA 1992) (citing Richardson v. State, 246 So.2d 771, 775 (Fla.1971)).

In the instant case, the State’s failure to comply with the order to produce frustrated the defendants’ quest to determine if the specific intoxilyzer used to test them had been substantially modified by the inclusion of parts that were not on the schematic of a machine approved by FDLE. Clearly, the State’s discovery violation caused prejudice and harm to the defendants’ ability to make a determination of the subject machine’s internal makeup. See, e.g., Miller v. State, 636 So.2d at 149 (Fla. 1st DCA 1994); Hatcher v. State, 568 So.2d 472, 475 (Fla. 1st DCA 1990). In this case, the State’s discovery violation prevented the defendants from properly preparing their cases for trial. See, e.g., Duarte v. State, 598 So.2d 270, 271-72 (Fla. 3d DCA 1992). Accordingly, we answer the second part of the county court’s certified question in the affirmative and find the trial court was within its discretion in excluding the breath test results and remand for further proceedings.

AFFIRMED AND REMANDED.

GRIFFIN and PALMER, JJ., concur.

      . The Defendants sought to obtain the information through public records requests and court orders, but the State steadfastly asserts that the information is exempt from public disclosure.


author: PER CURIAM.

text:
    Dorliska I. MELENEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, and FACS Group, Appellees.
    No. 3D03-2692.
    District Court of Appeal of Florida, Third District.
    May 5, 2004.
    Langbein & Langbein, Aventura, for appellant.
    John D. Maher (Tallahassee), for appel-lee.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Dorliska I. Melenez appeals a decision denying her unemployment benefits after she was terminated from her employment as a sales associate for Burdines. We find that while there may have been grounds for firing Ms. Melenez, those grounds are not sufficient for denial of unemployment benefits under Section 443.036(29)(a), Florida Statutes (2003).

Revei’sed and remanded.


author: COPE, J.

text:
    SINGER ASSET FINANCE COMPANY, L.L.C., Appellant, v. Harry TEMPKINS, Esquire, as Curator of the Estate of Dorothy J. Bethel, Deceased, Appellee.
    No. 3D02-2588.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Rehearing Denied May 12, 2004.
    Nason, Yeager, Gerson, White & Lioce, P.A., and Brett J. Horowitz and Nat Na-son, West Palm Beach, for appellant.
    Newman & Tempkins, P.A., and Harry Tempkins, Miami Beach, for appellee.

      Before COPE, GODERICH and RAMIREZ, JJ.
   COPE, J.

Singer Asset Finance Company, L.L.C., appeals a summary judgment in its suit on two loans secured by assignments of the payment stream of a structured settlement agreement. We respectfully disagree with the trial court and conclude that the summary judgment must be reversed.

I.

In 1995, the Estate of Anna Symonette entered into a settlement with Jackson Manor Nursing Home, Inc. The Estate had sued for wrongful death arising out of alleged negligence while Ms. Symonette was a patient at the nursing home.

The settlement agreement provided for a structured settlement. There was an initial lump sum payment, followed by installment payments of $1,500 per month for twenty years. There were to be additional lump sum payments at five, ten, fifteen, and twenty years.

Dorothy J. Bethel was the payee of the structured settlement. She designated a cousin, Shirley Cravatt, and Antonio Eugene Williams, her son, to receive the payments in the event that she died before twenty years had expired. The payors of the structured settlement were GE Capital Assignment Corporation and Great Northern Insured Annuity Corporation (“the Payors”).

In 1999, Ms. Bethel executed two notes whereby she borrowed $129,100 against the payment stream of the structured settlement. The notes were to be repaid by one hundred eighty-four-monthly installments of the structured settlement agreement. This included the payments due between July 1999 and October 2014. The loan was made by Merrick Bank Corporation in Utah, but the notes were assigned to appellant Singer Asset.

Ms. Bethel advised the Payors of the assignment and directed them to send the monthly payments to an address specified by the lender. The Payors complied with this instruction.

As part of the loan transaction, the lender required Ms. Bethel to change the beneficiary of the structured settlement agreement to be her Estate, instead of the previously-designated beneficiaries, Ms. Cravatt and Mr. Williams. She did so.

In 2000, Ms. Bethel died. The appellee, Harry Tempkins, was appointed Curator of Ms. Bethel’s Estate.

Singer Asset filed a claim against the estate for repayment of the loans. The Curator objected and Singer Asset filed this adversary action. In it, Singer has filed suit on the notes, sought to foreclose its security interest on the payment stream, requested imposition of a constructive trust on the monthly payments, and has made a claim for unjust enrichment. During the litigation, the Payors have made the monthly payments to the Estate.

On the Curator’s motion for summary judgment, the trial court ruled in substance that while Ms. Bethel’s assignment may have been valid during her lifetime, the remainder of the payment stream could not be encumbered, nor the beneficiaries changed, without the beneficiaries’ consent. Singer Asset has appealed.

II.

We begin with an important caveat. Effective October 1, 2001, loans of the type involved here are regulated by statute. See § 626.99296, Fla. Stat. (2001); see also ch.2001-207, 2001-247, Laws of Fla. The new statute governs transactions occurring on or after October 1, 2001, and contains a procedure requiring court approval. See § 626.99296(3)-(5), Fla. Stat. (2001).

Because the loans now before us were made prior to the effective date of the statute, the statute does not apply here.

III.

The structured settlement agreement provided in part:

3. Payee’s Right to Payments

Said payments to Payee required herein cannot be accelerated, deferred, increased or decreased by the Payee and no part of the payments called for herein or any assets of the Defendant and/or the Insurer is to be subject to execution or any legal process for any obligation in any manner, nor shall the Payee have right, power or authority to sell or mortgage or encumber same, or any part thereof, nor anticipate the same or any part thereof, by assignment or otherwise.

(Emphasis added).

The parties to the structured settlement agreement were Ms. Bethel and the Pay-ors. Thus under the structured settlement agreement, Ms. Bethel (the Payee) did not have the right to sell, mortgage, encumber, or assign the payment stream.

Ms. Bethel’s promise ran to, and was for the benefit of, the Payors. Under this provision the Payors are not obliged to deal with third parties unless the Payors choose to do so. “Contractual provisions against assignability are generally enforceable in Florida.... ” Cordis Corporation v. Sonics International, Inc., 427 So.2d 782, 783 (Fla. 3d DCA 1983) (citation omitted). It is for the Payors to decide whether to enforce or decline to enforce the anti-assignment provision. The Payors have not objected to any of the arrangements entered into by Ms. Bethel.

During Ms. Bethel’s lifetime, the monthly payments went to Singer Asset as agreed. The Bethel Estate does not seek any return of payments already made and, as previously stated, the Payors were free to make those payments at the request of Ms. Bethel if they so chose.

The Bethel Estate argues, and the trial court agreed, that the controlling legal principles changed at Ms. Bethel’s death. As part of the transaction with Singer Asset, Ms. Bethel changed the beneficiaries of the structured settlement agreement. The original beneficiaries were her cousin Ms. Cravatt and her son Mr. Williams. Ms. Bethel changed the beneficiary of the structured settlement agreement to be her Estate. The trial court ruled that Ms. Bethel “could not alienate the benefits to her heirs.... ”

We respectfully disagree with the trial court’s analysis on this point. The structured settlement agreement specifically allowed Ms. Bethel to designate a beneficiary in writing and also allowed for a written revocation of any such designation. Thus, Ms. Bethel was allowed to change the beneficiary designation in the way that she did.

In the end, the reality is that Ms. Bethel was the Payee of an income stream who chose to exchange that payment stream for a lump sum payment of $129,100. The terms of the transaction are clear, and Singer Asset paid the agreed-upon sum. We conclude that the Bethel Estate is bound by Ms. Bethel’s actions. The agreements are enforceable in accordance with their terms.

This matter came before the trial court on cross-motions for summary judgment. We conclude that the summary judgment in favor of the Curator must be reversed, and the cause remanded with directions to enter summary judgment in favor of Singer Asset.

Reversed and remanded.

      . The relevant contractual provision stated:
      7. Payee’s Beneficiary

      Any payments to be made after the death of the Payee in accordance with the terms of this Settlement Agreement shall be made to the beneficiary designated herein or to such beneficiary as may be requested in writing by the Payee to the Assignee. If no beneficiary is designated herein or requested by the Payee, the payment shall be made to the estate of the Payee. No request made under the section nor any revocation thereof shall be effective unless it is in writing and delivered to the Assignee. Payments due after the death of the Payee shall be made to Shirley Cravatt, cousin, and Antonio Eugene Williams, son, equally or to the survivor.
      (Emphasis added).


author: PALMER, J.

text:
    Johnnie LAMM, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-481.
    District Court of Appeal of Florida, Fifth District.
    March 12, 2004.
    Rehearing Denied May 5, 2004.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Johnnie Lamm (“Lamm”), appeals his judgment and sentence which were imposed by the trial court after a jury found him guilty of committing the crime of possession of a firearm by a convicted felon. Finding no reversible error with regard to Lamm’s judgment of guilt, we affirm. However, since the jury failed to specifically find that Lamm actually possessed a firearm, we strike the portion of Lamm’s sentence which imposed a mandatory minimum term of three-years imprisonment.

Lamm was charged by information with possession óf a firearm by a convicted felon. The information alleged that Lamm did “unlawfully own or have in his care, custody, possession or control, a certain firearm.” The jury was instructed on constructive and joint possession, as well as actual possession, of a firearm. The jury found Lamm guilty as charged in the information, but did not make any finding that he actually possessed the firearm.

At the sentencing hearing, Lamm argued that since the jury had not made a specific finding whether he had actual, joint, or constructive possession of the firearm, the trial court could not impose a mandatory minimum three-year sentence pursuant to section 775.087(2)(a)l. of the Florida Statutes. Notwithstanding Lamm’s argument, the trial court sentenced him to a term of 43 months in the Department of Corrections, including a three-year mandatory minimum sentence. This sentence was improper.

In Johnson v. State, 855 So.2d 218 (Fla. 5th DCA 2003), we held that the imposition of a mandatory minimum sentence was error absent a jury finding of actual possession. As the Supreme Court noted in State v. Hargrove, 694 So.2d 729 (Fla. 1997), even when the use of a firearm is uncontested, there must be a specific finding by the jury because the jury is the fact finder and use of a firearm is a finding of fact. Accordingly, we strike the three-year mandatory minimum portion of Lamm’s sentence and direct that upon remand the trial court enter a corrected sentencing order. The defendant need not be present for this correction of sentence. See Trumbower v. State, 849 So.2d 1183 (Fla. 2d DCA 2003)(holding that defendant did not need to be present for resentenc-ing when the only change required on remand was to remove a three-year mandatory minimum term).

Judgment AFFIRMED; sentence AFFIRMED as corrected; cause REMANDED for entry of a corrected sentencing order.

SAWAYA, C.J., and PETERSON, J., concur.

      . See § 790.23, Fla. Stat. (2001).


text:
    Tancredo BERGES, Appellant, v. Mary P. BERGES, Appellee.
    No. 3D02-2499.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Rehearing or Reconsideration Denied May 12, 2004.

      Harvey D. Rogers, Miami, for appellant.
    Marks & West, P.A., and Carolyn W. West, Miami, for appellee.
    Before COPE, GODERICH and RAMIREZ, JJ.
   COPE, J.

Tancredo Berges (“husband”) appeals a final judgment of dissolution of marriage. We conclude that the trial court erred in its calculation of the husband’s income for child support purposes. We affirm on the remaining issues.

I.

The husband and Mary P. Berges (“wife”) were married for ten and one half years. There was one child born of the marriage, who resides with the wife. The wife is a nurse. The husband is a tile and marble contractor.

The final judgment awarded child support to the wife, and granted her a lump sum alimony. The husband has appealed.

II.

The husband contends that the trial court erred in its calculation of his income for purposes of the child support statute. The husband’s point is well taken. The wife and the court misapprehended the statute and arrived at an income calculation which is not supported by evidence.

The husband operates a small business as a tile and marble contractor. At the time of the final hearing, he was regularly hired as a subcontractor by a general contractor known as Built By Owner, Inc. The husband would bid for tile and marble installation work on a price per square foot basis. He would hire installers by the job, and supervise their work. On any given job one to five installers would install the tile or marble.

Because the husband’s company was an independent contractor, Built By Owner would issue an Internal Revenue Service Form 1099 to the husband each year, reporting the amount Built By Owner had paid to the husband. At the time relevant here, the husband maintained a separate bank account for his business income and expenditures. Throughout the marriage, the husband and wife consistently used the same accountant for preparation of the tax returns.

The child support statute has three related, but distinct, categories which are involved here. These are “gross income,” “business income,” and “net income.”

The pertinent parts of the child support statute state:

(2) Income shall be determined on a monthly basis for the obligor and for the obligee as follows:
(a) Gross income shall include, but is not limited to, the following terms:
3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.
(3) Allowable deductions from gross income shall include:
(a) Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and incomes tax liabilities.
(b) Federal insurance contributions or self-employment tax.
(c) Mandatory union dues.
(d) Mandatory retirement payments.
(e) Health insurance payments, excluding payments for coverage of the minor child.
(f) Court-ordered support for other children which is actually paid.
(g) Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court.
(4) Net income for the obligor and net income for the obligee shall be computed by subtracting allowable deductions from gross income.

§ 61.30(2)-(4), Fla. Stat. (2002) (emphasis added).

In the trial court, the husband presented extensive financial evidence regarding his business. The time period relevant here was the employment as a subcontractor by the current employer, Built By Owner. The husband presented evidence of the amounts paid to him by Built By Owner, his business expenses, his tax returns, and his bank account records. After subtracting his business expenses from the gross receipts from Built By Owner, the husband arrived at a figure for his business income.

The wife contended that the husband’s calculation was too low. She argued that the husband must have additional income that he was not reporting, even though one of the owners of Built By Owner testified that the husband was working for Built By Owner constantly as a subcontractor. The wife never presented any evidence of additional “side” jobs performed by the husband, nor did the wife provide the court with any basis for calculating or estimating such additional “side” income, even assuming such “side” jobs existed.

Instead, the wife took the position at trial that the entirety of the gross receipts received by the husband’s business should be treated as being his personal gross income, without making any deduction of business expenses. The wife reasoned that since these were the husband’s business accounts, he had control over the funds and this meant the money in the business account must necessarily be his personal income. The wife proposed that the trial court accept the Built By Owner Form 1099 as being a correct statement of the husband’s income, or alternatively, that the court accept the amounts the husband deposited in his business accounts as being a correct statement of the husband’s income. The trial court accepted the wife’s approach.

In taking this position, the wife necessarily was accepting that the Form 1099 prepared by Built By Owner was accurate, not inaccurate. Further, as a matter of law, the amount paid by Built By Owner to the husband’s business constituted “gross receipts” for purposes of the child support statute. From this amount, the trial court was obliged to subtract the husband’s ordinary and necessary business expenses in order to arrive at the husband’s business income. In failing to do this, the trial court reversibly erred.

On this appeal, the wife attempts to argue new theories, suggesting that the trial court was right for the wrong reason. These new arguments cannot salvage the child support calculation.

The wife now argues that the Form 1099 issued by Built By Owner was inaccurate and understated the income paid to the husband. This contradicts the wife’s position in the trial court that the Form 1099 was accurate. The wife’s contention was never made in the trial court and there is no competent evidence in the record to support it.

The wife argues that the trial court must not have believed the husband’s records regarding his business expenses, and therefore disallowed them. That argument is without merit. Both the general contractor and the husband testified that the husband employed tile setters to carry out the work on the various subcontracts, which the husband supervised. The wife offered no testimony to the contrary. Obviously the tile setters must be paid, and wages for tile setters is the husband’s major business expense. The wife made no particularized challenge to the business expenses.

The wife contended at oral argument that it was insufficient for the husband to introduce his business records regarding the wages he paid to his workers. According to the wife, it was necessary for the husband to bring each worker to court to testify personally about the amount of wages he had been paid by the husband. No such argument was made in the trial court, and there is no such rule of law. The husband’s business records and testimony were competent evidence of his business expenses. If the wife believed that any of the workers did not exist, it was then her burden to introduce evidence of that fact. She made no such claim in the trial court.

The wife contends that the total amount of the parties’ combined expenses exceeded the parties’ reported incomes, and therefore imputation was permissible. The wife never developed any such calculation in the trial court, and the record does not support it. See Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002).

For the stated reasons, we reverse the child support award and remand with directions to recalculate the husband’s income in accordance with the child support statute and the evidence the husband has submitted, i.e., the gross receipts and business expenses reported by the husband. We recognize that the last complete year of financial records in the trial exhibits is the year 2000, plus evidence for part of 2001. While the records in evidence for 2000 will govern the child support calculation for that time period, the trial court may reopen the record for the submission of more recent tax returns and financial records for subsequent years, in order to perform the child support calculations for the time period subsequent to 2000.

The wife argues that the husband’s business income has improved in more recent years. Nothing we say here precludes the wife from moving for modification if she believes that the statutory trigger contained in paragraph 61.30(l)(b), Florida Statutes, has been surpassed.

III.

The husband argues that the trial court should not have awarded the wife lump sum alimony in the form of her retirement plans accumulated during her employment at Mercy Hospital. We reject this argument and conclude that the trial court’s award was entirely within its discretion. The marriage in this case is within the so called “gray area” between short-term and long-term marriages. See Levy v. Levy, 862 So.2d 48, 51 (Fla. 3d DCA 2003); Bracero v. Bracero, 849 So.2d 388 (Fla. 5th DCA 2003); Nelson v. Nelson, 721 So.2d 388 (Fla. 4th DCA 1998). In April 1998, the wife was diagnosed with rheumatoid arthritis, a progressive degenerative disease. While the wife takes medication to inhibit the progress of the disease, it has already produced observable physical effects on the hands, feet, and forearms. The wife testified that in sixty percent of such cases, the disease progresses to the point that it produces disability. The lump sum award was plainly within the trial court’s discretion. We reject the husband’s remaining points on appeal without further discussion.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . The husband’s business income was reported on. Schedule C.

      . Business income is simply one type of gross income. Other examples of gross income include salary or wages, bonuses, commissions, interest and dividends, rental income, pension benefits, and so on. See id. § 61.30(2)(a). Only business income is at issue in this case.

      . There was testimony regarding "side” jobs during the husband’s employment by a previous contractor, Gallo Marble. Be that as it may, the relevant issue for child support purposes was the amount paid by the current contractor, Built By Owner.

      . These two amounts were similar to each other, except that the Built By Owner Form 1099 amount was somewhat higher.

      . At oral argument the wife argued that the husband's business checks were not in the record. We fail to understand that argument. The trial exhibits are part of the record on appeal, and the bank statements contain photocopies of the checks. Further, the wife at trial relied heavily on bank records as a basis for calculating the husband’s income.

      .The wife argues that the parties' financial affidavits itemized expenses in excess of their incomes. She argues that this necessarily supports the proposition that the husband had unreported income. However, in making this argument the wife has overlooked the fact that both financial affidavits report that the parties were running monthly deficits, the wife $1,500 per month and the husband, $1,000 per month. Both parties testified that during the period of separation, they had to borrow money to make ends meet. The wife's argument thus rests on the faulty premise that the parties had sufficient current income to cover their expenses. Even if we were willing to entertain the wife’s argument for purposes of discussion, it is simply not supported by the record.


text:
    Dean R. SENA and Cheyl Sena, Appellants/Cross-Respondents, v. Daru Sena LANE, Robert Chamless Lane, and Daru Laurel Lane, Appellees/Cross-Petitioners, Dion R. Sena and Dianne Sena Medoro, Intervenors.
    No. 3D03-3043.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Rehearing Denied May 12, 2004.

      Rones & Navarro and Victor K. Rones, North Miami Beach, for appellants/cross-respondents.
    Purcell, Flanagan & Hay and Harris L. Bonnette, Jr., Jacksonville, for appel-lees/cross-petitioners.
    Ruden, McClosky, Smith, Schuster & Russell and James R. George and Carrie Stolzer Robinson, Fort Lauderdale, for in-tervenors.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. Lallouz v. Lallouz, 695 So.2d 466, 467-68 (Fla. 3d DCA 1997); Publix Super Markets, Inc. v. Cheesbro Roofing, Inc., 502 So.2d 484, 486 n. 4 (Fla. 5th DCA 1987)(superceded by statute on other grounds); Royal v. Parado, 462 So.2d 849, 853 (Fla. 1st DCA 1985).


author: TORPY, J.

text:
    Samuel G.S. BENNETT, Appellant, v. COMMISSION ON ETHICS, Appellee.
    No. 5D03-1669.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2004.
    Rehearing Denied May 5, 2004.
    C. Allen Watts and Ty Harris, of Cobb & Cole, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, and James H. Peterson, III, Assistant Attorney General, Tallahassee, for Appellee.
   TORPY, J.

Samuel Bennett (“Appellant”) challenges the determination by Appellee, Commission on Ethics (“the Commission”) that he corruptly used his position as Chairman of the Council of the Town of Pierson, Florida, to obtain a special benefit in violation of section 112.313(6), Florida Statutes (1999). Because we conclude that the evidence does not support a finding of corrupt intent by Appellant, we reverse.

At the center of this dispute is the allegation that Appellant made, or caused to be made, changes to the official zoning map of Pierson, Florida. The map had been created and adopted by the Pierson Town Council in 1994. Although it was an improvement over the Town’s prior method of accounting for zoning designations, the map was inaccurate and not comprehensive. Moreover, the vellum-like document had become tattered and difficult to read. As a result, at the suggestion of Mr. Keeth, a land planner commissioned by the Town, the Pierson Town Council considered replacing the map with a computer-created digital map that would be more complete and easier to read, maintain, and update. Keeth told the council that, as a part of the process of creating a new map, individual council members and members of the public could suggest zoning changes. The suggested changes, if approved after appropriate public workshops and hearings, could then be incorporated into the final map. The council requested that Keeth work with Appellant in preparing a new map for consideration by the council.

In November of 1999, Keeth met with Appellant to discuss the map. Appellant retrieved the map from the Town Clerk so that he and Keeth could review it as an initial step for the project. The clerk was hesitant to release what was the only copy of the map to Appellant because she was responsible for it and Appellant, in her words, had a history of losing things. She testified that it was the “policy” to never permit the zoning map to leave the town hall and the clerk’s supervision. Despite her reluctance, the clerk acknowledged that she ceded to the request of Appellant.

Thereafter, Keeth and Appellant spent time reviewing the map in Appellant’s home. In addition, the two drove around Pierson to check for discrepancies between the actual zoning use of the land and the zoning classification identified on the map. During the drive, pencil notations were apparently made on the map. Although the evidence was in dispute as to the origin of the marks, the administrative law judge found that the marks had been made either by Appellant or by Keeth at Appellant’s direction, for the purpose of indicating “suggested” zoning changes.

Keeth and Appellant returned to the town hall around lunch .time and returned the map to the town clerk. The clerk did not examine the map at that time. However, she noted the pencil markings on the map later that afternoon when she re-, trieved .the map to assist another individual. The pencil notations could clearly be distinguished from the official markings on the map and did not eviscerate the official marks in whole or in part. Apparently, these were not the only such marks on the map. A prior clerk testified that she too had at one time placed some marks on the map. Some of the suggested zoning changes made by Appellant, or at his behest, had they been approved, would have positively affected property owned by Appellant.

Subsequently, Keeth forwarded a draft map to Appellant that incorporated Appellant’s suggested changes. A memorandum that accompanied the draft reflected that the proposed map included changes that had been suggested by Appellant. Throughout the following months Keeth prepared many drafts of the map, some of which included changes that were also suggested by citizens of the Town. Ultimately, after appropriáte public hearings, a map was adopted, but none of the suggested zoning changes affecting Appellant’s property were adopted. Throughout this process, Appellant’s actions in having marked the original map came under scrutiny, culminating in an investigation and the instant action.

The statutory provision at issue here is section 112.313(6), Florida Statutes, which provides, in pertinent part as follows:

Misuse of public position. — No public officer, employee of an agency, or local government attorney shall [1] corruptly use or attempt to use his or her [2] official position or any property or resource which may be within his or her trust, or perform his or her official duties, [3] to secure a special privilege, benefit, or exemption for himself, herself, or others.

§ 112.313(6), Fla. Stat. (1999) (enumeration added).

Appellant contends that he did not act in the corrupt manner required under the statute and that the evidence does not support an attempt by him to procure a special benefit by his actions. The Commission argues that Appellant not only acted with a wrongful intent, but that such conduct was inconsistent with the proper performance of his official duties. This, the Commission asserts, meets the “corrupt” standard required under section 112.313(6), Florida Statutes. Furthermore, the Commission contends that had Appellant’s changes been adopted, Appellant would have received a special benefit through an increase in the value of his property.

Turning first to the question of whether Appellant acted corruptly, we note that the legislature has defined “corruptly” as “done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.” § 112.312(9), Fla. Stat. (1999). To satisfy this statutory element, proof must be adduced that Appellant acted “with reasonable notice that [his or] her conduct was inconsistent with the proper performance of [his or] her public duties and would be a violation of the law or the code of ethics.” Blackburn v. State, Comm’n on Ethics, 589 So.2d 431, 434 (Fla. 1st DCA 1991).

Here, the factual findings of the administrative law judge, which were adopted by the Commission, contradict the conclusion that Appellant acted corruptly. After having been invited by Keeth to make suggested changes to the map, Appellant did just that. Appellant’s purpose in marking the map, therefore, was to “suggest” that the zoning be changed, which belies the Commission’s conclusion that Appellant’s acts were corrupt. The Commission readily acknowledges that an elected member of a Town Council may suggest that zoning be changed on property owned by the member provided that disclosure and recu-sal from voting occurs, but no allegation is made here that Appellant voted on these suggestions or failed to disclose his interest in the parcels. Furthermore, the Commission points to no law that prohibited Appellant from possessing or marking the map. The conclusion that Appellant acted corruptly under these facts, therefore, is erroneous.

Based on our conclusion that the corruption element was not satisfied, Appellant’s other arguments are not considered.

REVERSED.

PLEUS, J., concurs.

GRIFFIN, J., dissents without opinion.

      . Certainly, had Appellant secretly altered the map with the intent to effect a zoning change without proper public hearing, a different case would be made, but the evidence here fails to support any such scenario.


text:
    Whisler CHARLES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2175.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.
    Rehearing Denied April 21, 2004.
    Bennett H. Brummer, Public Defender and Sheryl J. Lowenthal, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Melissa G. Vaughn and Douglas J. Glaid, Assistant Attorneys General, for ap-pellee.
    Before GODERICH, GREEN, and WELLS, JJ.
   GREEN, J.

Appellant, Whisler Charles, appeals the denial of his motion to suppress physical evidence, namely, two handguns taken from him by arresting officers. Because we find that the police were justified in detaining Charles and seizing his weapons, we affirm.

The content of Charles’s mother’s report to the police — that she had seen Charles brandishing guns and making death threats three days earlier, that her daughter had indicated that he was doing the same thing on the day in question, and that Charles usually carried two guns— was enough, given the totality of the circumstances, to give the police reasonable suspicion to justify an investigatory stop. See State v. Maynard, 783 So.2d 226, 230 (Fla.2001) (finding that information provided by citizen informant, i.e., defendant’s mother, gave officer reasonable suspicion to conduct investigative stop.). See also State v. Manuel, 796 So.2d 602, 605 (Fla. 4th DCA 2001) (“A tip by a citizen-informant, as opposed to an anonymous tipster, is entitled to a presumption of reliability and does not require further corroboration to provide the requisite reasonable suspicion for a stop.”).

When stopped by the police, Charles behaved uncooperatively. He refused to show his hands and kept them hidden under a towel on his lap. Thus, we find that the officer was also justified in conducting a pat-down search of Charles to protect both himself and his fellow officer. See Brown v. State, 358 So.2d 596, 598 (Fla. 2d DCA 1978) (finding that police may conduct limited protective search for concealed weapons when officer is justified in believing that individual who is acting suspicious is armed and dangerous to officer or to others). When this search revealed two concealed handguns, the police had probable cause to arrest Charles. Accordingly, the introduction of these weapons into evidence was entirely proper. See State v. Merritt, 519 So.2d 36 (Fla. 3d DCA 1988) (finding evidence seized from a properly conducted pat-down search admissible); Williams v. State, 403 So.2d 453, 456 (Fla. 1st DCA 1981) (holding that weapons seized in pat-down search were admissible even though defendant was not under arrest at time).

Affirmed.


text:
    ARCHIVE AMERICA, INC., a Florida Corporation, Appellant, v. HEALTHSOUTH DOCTORS' HOSPITAL, INC. d/b/a Healthsouth Doctors' Hospital, Appellee.
    Nos. 3D03-2832, 3D03-3037, 3D03-3136.
    District Court of Appeal of Florida, Third District.
    March 24, 2004.
    Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer (Fort Lauder-dale), for appellant.
    Fischman, Harvey & Dutton and Bruce D. Fischman and Jonathan E. Kanov and Maria C. Menendez, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge.
   PER CURIAM.

Affirmed, certiorari denied on the authority of Archive America, Inc. v. Variety Children's Hospital, 873 So.2d 359, 2004 WL 575717 (Fla.2004).


author: SAWAYA, C.J.

text:
    Clarence BARFIELD, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3806.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, C.J.

Clarence Barfield appeals the sentences imposed following his plea of guilty to violating the terms of his probation in case numbers 97-1578 (robbery with a firearm) and 97-1997 (burglary of a dwelling, dealing in stolen property, and grand theft). He argues that the trial court violated the state and federal proscriptions against double jeopardy when it sentenced him for both grand theft and dealing in stolen property because both offenses arose from the same scheme or course of conduct.

We emphasize that Barfield entered an open, unconditional plea to the court that was not made pursuant to a plea agreement. Moreover, there is nothing in the record to indicate that Barfield waived any double jeopardy violation. See Novaton v. State, 684 So.2d 607 (Fla.1994).

Barfield’s argument is premised on section 812.025, Florida Statutes (2001), which provides:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

In Hall v. State, 826 So.2d 268 (Fla.2002), the supreme court found that “section 812.025 prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo con tendere.” Id. at 271.

Barfield acknowledges that he did not raise this issue below, but contends that because his argument is a double jeopardy claim, it can be raised for the first time on appeal, noting that a conviction that is not statutorily authorized may be attacked at any time. The State responds that this is not a double jeopardy claim, asserting that Hall did not find that the dual convictions violated double jeopardy, but rather that they were prohibited by section 812.025. Thus, the State contends, because the issue was not raised below, it may not be raised for the first time on appeal.

The State’s argument was rejected in Kilmartin v. State, 848 So.2d 1222 (Fla. 1st DCA 2003), wherein the court analyzed Hall and concluded:

Given the holding in Hall, one must conclude that the supreme court had determined that the legislature’s intent when it adopted section 812.025 was to prohibit separate punishments for both grand theft and dealing in stolen property when both offenses were parts of the same criminal transaction. Accordingly, one must conclude, further, that separate punishments for both offenses in such cases, whether as the result of a trial or of pleas, violate the state and federal prohibitions against double jeopardy.
Appellant raises this argument for the first time on appeal, following his unconditional guilty pleas to both offenses. The state contends that appellant is precluded by his guilty pleas from doing so, relying on Florida Rule of Appellate Procedure 9.140(b)(2), which identifies the circumstances in which an appeal from a guilty or no contest plea is permitted. Appellant responds that the dual convictions constitute fundamental error, and that this appeal is permitted by rule 9.140(b)(2)(A)(ii)e as one “otherwise provided by law.” We agree with appellant because it is clear that a conviction that violates the prohibition against double jeopardy constitutes fundamental error, e.g., State v. Johnson, 483 So.2d 420 (Fla.1986); and a claim of fundamental error may be raised for the first time on appeal. E.g., Sanford v. Rubin, 237 So.2d 134 (Fla.1970).

Id. at 1224; see also Toson v. State, 864 So.2d 552 (Fla. 4th DCA 2004).

In the instant case, it is the lack of record evidence that Barfield’s convictions for dealing in stolen property and grand theft arose from the same scheme or course of conduct that creates the true impediment to Barfield’s argument on appeal. Our review of the record shows that Count II of the information charged Bar-field with grand theft of, among other things, jewelry, while Count III charged him with dealing in stolen property, alleging that Barfield “did traffic in or endeav- or to traffic in property, to-wit: jewelry that [he] knew or should have known was stolen....” There is no mention in the record whether the jewelry referenced in the counts is the same jewelry; however, the information charged that both offenses occurred on or about May 12, 1997. The fact that the offenses occurred the same date arguably supports Barfield’s position, but only inferentially. Our perusal of the transcript of the sentencing hearing reveals that it too is silent regarding the specifics of the case, as the public defender asked the court to “take judicial notice of the arrest affidavit and the factual allegations contained in the case file that support the factual basis.” Although the arrest affidavit is contained in the record, it does not reflect the facts of the case and, in any event, could not have been relied upon. See Burgess v. State, 831 So.2d 137 (Fla. 2002) (rejecting the argument that an un-sworn arrest report in the court file indicating that offenses for which defendant was convicted were part of same criminal episode could be used as the basis for determining that offenses arose from same criminal episode).

We conclude that an evidentiary hearing is required to determine whether the offenses were part of the same scheme or course of conduct, as there is nothing in the record that conclusively demonstrates (or rebuts) that claim. Thus, it would appear that the issue may have to be dealt with via a rule 3.850 motion. See Burgess (holding that the issue of whether offenses arose out of single criminal episode is not a pure question of law but rather requires an evidentiary determination pursuant to a motion for post-conviction relief under rule 3.850). Accordingly, we affirm the sentences on appeal without prejudice to Bar-field filing a timely rule 3.850 motion.

AFFIRMED.

PLEUS and ORFINGER, JJ„ concur.

      . Barfield has had two prior appeals, neither of which give the factual background for the charges alleged in case number 97-1997. See Barfield v. State, 792 So.2d 706 (Fla. 5th DCA 2001) (reversing and remanding for preparation of a corrected scoresheet and reconsideration of defendant's right to be resentenced under Heggs because of the improper scoring of case number 97-1578); Barfield v. State, 762 So.2d 564 (Fla. 5th DCA 2000) (reversing armed robbery conviction in case number 97-1578 and remanding for a new trial based on failure to give requested jury instruction; affirming the sentences in case number 97-1997).


author: PLEUS, J.

text:
    FLORIDA STATE LOTTERY, Appellant, v. Lisa G. WOODFIN, Leland Woodfin, et al., Appellees.
    No. 5D03-2969.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Rehearing Denied May 5, 2004.

      Charles J. Crist, Attorney General, and George Waas, Special Counsel, Tallahassee, for Appellant.
    Edward S. Donini, Daytona Beach, for Appellees.
   PLEUS, J.

In this Volusia County automobile accident case, the Department of the Lottery (“the Department”) takes this interlocutory appeal from an order denying its motion to change venue to Leon County. Because we conclude that an exception applies in this case, we affirm.

Lisa Woodfin, her husband and their children (“the Woodfins”) filed a complaint in Volusia County alleging that they were injured in a car accident with a vehicle owned by the Department and driven by an employee in the course of his employment or as a permissive user of the Department’s vehicle. The complaint also sought to impose liability on the Department for negligent hiring of the driver.

We review the trial court’s denial of a motion for change of venue using the abuse of discretion standard. Rivera v. State, 859 So.2d 495, 511 (Fla.2003); Safety Nat. Cas. Corp. v. Florida Mun. Ins. Trust, 818 So.2d 612 (Fla. 5th DCA 2002). Section 24.110, Florida Statutes, states that “venue for all civil or administrative actions against the department shall be in Leon County.” The Department argues that the so-called “home venue” provision is clear and unambiguous, and should be given its plain and obvious meaning unless doing so would create an absurd result. See Scudder v. Greenbrier C. Condominium Assoc., Inc., 663 So.2d 1362, 1365 (Fla. 4th DCA 1995).

Although the Department’s position is generally correct, exceptions to the “home venue” privilege exist, one of which, the “joint tortfeasor” exception, was established by our supreme court in Board of County Com’rs of Madison County v. Grice, 438 So.2d 392 (Fla.1983). Recently, the Grice exception has been expanded to include a suit to compel a state agency to produce public records. See Fla. Dept. of Children & Families v. Sun-Sentinel, Inc., 865 So.2d 1278 (Fla.2004) (“Gricelike” exception applies to public records case). Although Grice and Sun-Sentinel both involve exceptions to the common law venue privilege, dicta in Grice suggests that the court would apply the exception to a statutory “home venue” provision. In discussing this exception, the supreme court in Grice suggested that the exception should apply not only to the common law rule, but also to specific venue statutes. The court stated:

Returning to the main issue at hand, we recognize that Florida is one of the jurisdictions in which the home county venue privilege for government bodies is derived from judicial development of the common law rather than legislative act. See Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). Most states have statutes requiring that governmental entities be sued where their headquarters are located. Annot., 48 A.L.R.2d 423 (1956). Where venue is thus regulated by statute, courts are often reluctant to interfere with the express provision of the legislature. See State v. Superior Court of County of Pima, 120 Ariz. 273, 585 P.2d 882 (1978). There is a modern trend, however, toward allowing exceptions to such statutory requirements where government bodies are sued as joint tortfeasors. See Lawless v. Village of Park Forest South, 108 Ill.App.3d 191, 63 Ill.Dec. 936, 438 N.E.2d 1299 (1982); Hoffman v. Bos, 56 Mich.App. 448, 224 N.W.2d 107 (1974); Peaceman v. Cades, 272 Pa.Super. 568, 416 A.2d 1042 (1979). In the cited cases, the courts recognized that even under modern venue statutes the right of governmental defendants to insist on venue at their headquarters is not absolute. Lawless v. Village of Park Forest South. Modern methods of communication and transportation have weakened the policy reasons supporting the privilege while current crowded court docket conditions have strengthened the policy reasons for avoiding duplicative litigation if possible. Hoffman v. Bos.
In the present case the trial court, in granting the county’s motion to dismiss for improper venue, relied upon Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). There we held that the statutory waiver of sovereign immunity did not affect the common-law privilege of the state and its agencies and subdivisions to be sued in the county where the principal headquarters were located. The Court declined to make an exception to the privilege for actions based in tort. We reasoned that the home venue privilege “promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.” 354 So.2d at 364.
Frequently, however, these beneficial purposes are not furthered when the governmental defendant is sued as a joint tortfeasor. In such cases the district courts, in attempting to follow the dictates of Carlile, have been ordering severance of lawsuits that would normally be tried in a single proceeding. See, e.g., Wagner v. Nova University, Inc., 397 So.2d 375 (Fla. 4th DCA 1981); County of Volusia v. Atlantic International Investment Corp., 394 So.2d 477 (Fla. 1st DCA 1981); Liberty Mutual Insurance Co. v. Ford, 392 So.2d 354 (Fla. 4th DCA 1981); Lake County v. Friedel, 387 So.2d 514 (Fla. 5th DCA 1980); State Department of Transportation v. Bromante, 365 So.2d 388 (Fla. 4th DCA 1979); City of Boca Raton v. Walker, 354 So.2d 440 (Fla. 3d DCA), cert. denied, 359 So.2d 1221 (1978). The result, of course, is separate proceedings requiring increased use of public resources. The benefit of money saved by state agencies and subdivisions by not having to defend against lawsuits filed outside their home counties must now be weighed against the increased costs incurred in the operation of the courts, costs which are paid in substantial part by all taxpayers. Therefore, the objective of minimizing public expenditures in the operation of the courts is not furthered when the home venue privilege results in multiple lawsuits. We therefore hold, as did the district court, that the home venue privilege for government entities is not absolute.
We hold further that a trial court has discretion to dispense with the home venue privilege when a governmental body is sued as a joint tortfeasor. The exercise of this discretion must be guided by considerations of justice, fairness, and convenience under the circumstances of the case. In its discretion the trial court may retain the entire case, sever and transfer the cause of action against the entity asserting the privilege if it is severable, or transfer the entire case. The home venue privilege, although not absolute, should be given substantial consideration in this process along with the other circumstances presented and the interests of the other parties.

Id. at 394 (emphasis added). We conclude that the Grice considerations of “justice, fairness, and convenience” apply to the facts of this case and that this exception should apply to section 24.110. The accident occurred in Volusia County. The plaintiffs, their treating physicians, the lottery truck driver, two eyewitnesses and the responding police officers all reside in Volusia County. One of the plaintiffs submitted an affidavit from her doctor advising that she has a serious kidney condition and should not travel. It would be expensive, inconvenient and prejudicial to the plaintiffs to require all the witnesses in the case to travel to Leon County. The Department’s responsibility for the negligence of the driver, if any, has not been disputed. This case does not involve an attack on the operation of the lottery. This case does not involve an attack on the operation of the lottery. All of these facts and arguments were heard by the trial court.

The Department has argued that the exception does not apply because the driver has been dismissed from the lawsuit. However, the lottery truck driver was dismissed after the amended complaint was filed. It is well-settled that venue is determined by the facts at the time a lawsuit is filed. See, e.g., Air South, Inc. v. Spaziano, 547 So.2d 314, 315 (Fla. 4th DCA 1989). At the time the amended complaint was filed, the driver was still a defendant.

We have carefully considered the Department’s remaining arguments and find them to be without merit. Accordingly, we affirm the trial court’s denial of the motion for change of venue based on the Grice exception. Because of our holding on this ground, we need not reach the Woodfins’ constitutional claims.

AFFIRMED.

GRIFFIN and TORPY, JJ., concur.


author: ORFINGER, J.

text:
    STATE of Florida, Petitioner, v. Daniel COUGHLIN, Respondent.
    No. 5D03-3003.
    District Court of Appeal of Florida, Fifth District.
    March 26, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Petitioner.
    Stuart I. Hyman of Stuart I. Hyman, P. A., Orlando, for Respondent.
   ORFINGER, J.

The State of Florida seeks certiorari review of a decision of the circuit court acting in its appellate capacity, affirming an order of the county court dismissing the DUI prosecution of Daniel Coughlin on speedy trial grounds. Because we find that the circuit court failed to apply the correct law, we grant certiorari and quash the circuit court’s order.

Daniel Coughlin was involved in a traffic crash investigated by the Lake Mary Police Department. Because the investigating officer suspected that Coughlin was driving while impaired, he informed Coughlin that a criminal investigation was being conducted and advised him of his Miranda rights. While performing a field sobriety test, Coughlin fell backwards, hitting his head on the ground. As a result, emergency medical personnel were called .to the scene. Before departing with the medical personnel, Coughlin provided the police with a blood sample. The sample subsequently revealed a blood alcohol level of .271.

About a month after the crash', the investigating officer issued and mailed Coughlin what was entitled “Florida Uniform Traffic Citation,” and which specified the date and nature of the alleged violation, but did not-indicate any date, time or place to appear. Rather, the citation indicated that Coughlin would be notified when he was required to appear in court.

Coughlin’s counsel subsequently filed a motion for discharge on speedy trial grounds, contending that for speedy trial purposes, he was taken into custody when the summons was issued. The county court’s order simply stated that the motion for discharge was granted. The circuit court affirmed, citing Rodriguez v. State, 453 So.2d 175 (Fla. 2d DCA 1984), and State v. Hancock, 529 So.2d 1200 (Fla. 5th DCA 1988).

We conclude that this case is controlled by this court’s decision in Fothergill v. State, 754 So.2d 174 (Fla. 5th DCA 2000), wherein we said:

Florida Rule of Criminal Procedure 3.191(a) starts the running of “speedy trial” ... when the person is taken into custody as defined under subdivision (d). Subdivision (d) states:
“For purposes of this rule, a person is taken into custody (1) when the person is arrested as- a result of the conduct or criminal episode that gave rise to the crime charged, or (2) where the person is served with a notice to appear in lieu óf physical arrest.”
Appellant relies on cases such as Genden v. Fuller, 648 So.2d 1183 (Fla.1994) and Rodriguez v. State, 453 So.2d 175 (Fla. 2nd DCA 1984)[sic] for the proposition that speedy trial commenced to run when she was issued the citation, rather than when the information was filed. In Genden, Fuller had been arrested on a charge of grand theft. After the arrest but before an information was filed, the state voluntarily terminated the prosecution by announcing that it would take no action. Some seven months later it file an information based on the same event for which Fuller had originally been arrested. In affirming his discharge, the supreme court held that speedy trial time began to run when Fuller was first taken into custody, rather than when charges were filed against him.
In Rodriguez, appellant was issued a criminal traffic citation and notice to appear for willful and wanton reckless driving and driving while license suspended, both misdemeanors. Later, the state filed an information charging appellant with two counts of manslaughter by culpable negligence as a result of the same incident which gave rise to the traffic citations. In holding that Rodriguez was entitled to discharge because he was not brought to trial within 180 days after issuance of the traffic citation [sic]. The court held that “(T)he service of a citation to appear for a criminal traffic offense constitutes a taking into custody” under Rule 3.191(a).

Id., 754 So.2d at 174-75.

Here, as in Fothergill, Couglin was not arrested nor was he issued a notice to appear. All the traffic citation indicated was “to be notified.” There was' no requirement that Couglin respond in any way. Thus, for the purposes of Rule 3.191, he was not taken into custody, so the speedy trial time had not expired when he filed his motion for discharge.

Because we find this matter controlled by Fothergill, we grant certiorari and quash the circuit court’s order.

CERTIORARI GRANTED, ORDER QUASHED.

GRIFFIN and MONACO, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).