author: PATTERSON, Retired Appellate Judge.

text:
    STATE of Alabama v. George J. THOMAS, Jr.
    CR-00-2704.
    Court of Criminal Appeals of Alabama.
    April 19, 2002.

      Andrew W. Redd, general counsel, and Jane LeCroy Brannan, asst. atty. gen., Department of Corrections, for appellant.
    George J. Thomas, Jr., pro se.
   PATTERSON, Retired Appellate Judge.

George Thomas filed a petition for a writ of habeas corpus contesting the calculation by the Alabama Department of Corrections (“the Department”) of his release date from prison, i.e., the amount of time remaining on his sentences.

At issue is whether Thomas is due to be credited 8 months and 28 days to the service of his sentences. The following facts were established in the record. While on parole serving a sentence for an Alabama conviction, Thomas was allowed to reside in California under the supervision of California authorities, pursuant to the Interstate Compact for the Supervision of Parolees and Probationers, § 15-22-1, Ala. Code 1975. However, the Alabama Board of Pardons and Paroles (“the Board”) declared him delinquent on September 28, 1992. Pursuant to that delinquency declaration, he was incarcerated in California on the same date. He was returned from California to the custody of the Department on June 26, 1993. A parole-revocation hearing was held on July 13, 1993. The Board member presiding over the hearing recommended, “Reinstated to a satisfactory program.” The Board ordered “[t]hat the order of delinquency is void and inmate is reinstated on parole.” More than five years’ later, the Department classified the time Thomas served between the 1992 declaration of delinquency (September 28, 1992) and California’s transfer of him to the Department (June 26, 1993) as “dead time,” for which Thomas would not be credited. The Department stated, “Even though Inmate Thomas was reinstated and continued on parole, he is not entitled to credit from his delinquency date to the date returned from California to the Department of Corrections.”

The question of credit for Thomas’s service of time from the delinquency declaration to his return to the Department, i.e., credit for the time he was incarcerated in California, is still pertinent because Thomas is incarcerated for the remainder of his sentences pursuant to a subsequent revocation of parole. He claims that, if he is entitled to this credit, he is due to be released immediately.

Upon these facts, the circuit court granted Thomas’s petition, ordering the Department to credit 150 days to the service of Thomas’s sentences. Its order states, in part:

“Petitioner contends that he is entitled to credit for the time he was held in California as a result of a warrant issued for his arrest pursuant to the delinquency by the State of Alabama. He was incarcerated in California as a result of the delinquency petition; there was no other charge issued by the State of California. The State of Alabama alleged that he is not entitled to credit for the time he was incarcerated in California. The Court having considered the same finds that there is nothing that supports the Respondents’ contention that petitioner is not entitled to credit for time served as a result of the delinquency filed by the State of Alabama, although said time was served in California awaiting extradition. The Court, therefore, is of the opinion that petitioner is entitled to credit for the time spent incarcerated in the State of California as a result of the delinquency petition filed by the State of Alabama....”

In this appeal, the attorney general raises the following issue:

“Is an Alabama inmate who has been paroled by the Board ... entitled to ‘jail credit’ for time incarcerated in another state which held the inmate upon the demand of the ... Department ... after the inmate was declared delinquent by the ... Board?”

This statement of the issue, however, ignores a critical fact: upon hearing the revocation petition, the Board ruled that the order of delinquency was void, and it reinstated Thomas to parole. Thus, the question is broader: whether a parolee is entitled to credit for all time served between the declaration of delinquency and the Board’s order voiding that delinquency declaration and reinstating parole. This appears to be an issue of first impression in Alabama.

In addressing this issue in our review of the circuit court’s ruling, we start with § 15-22-32, which stated, at the time pertinent to these proceedings:

“Whenever there is reasonable cause to believe that a prisoner who has been paroled has violated his parole, the Board ..., at its next meeting, shall declare such prisoner to be delinquent, and time owed shall date from such delinquency. The warden of each prison shall promptly notify the board of the return of a paroled prisoner charged with violation of his parole. Thereupon, such board, or a single member of such board, shall, as soon as practicable, hold a parole court ... and consider the case of such parole violator, who shall be given an opportunity to appear personally or by counsel before such board and produce witnesses and explain the charges made against him. The board shall, within a reasonable time, act upon such charges and may, if it sees fit, require such prisoner to serve out in prison the balance of the term for which he was originally sentenced, calculated from the date of delinquency or such part thereof as it may determine; however, the delinquent parolee shall be deemed to have begun serving the balance of the time so required on the date of his rearrest as a delinquent parolee.”

The attorney general discussed the application of this statute in an attorney general’s opinion, as follows:

“Federal and state courts have held that when a parolee is declared delinquent, such declaration acts as an ‘interlocutory revocation of parole,’ which means that the parolee’s time stops running until there is a revocation hearing and a decision by the Parole Board on whether to revoke parole. Tunstill v. State, 41 Ala.App. 516, 138 So.2d 267 (1962); Ivy v. State, 381 F.Supp. 503 (S.D.Ala.1974).
“... As soon as the Parole Board holds a hearing on the delinquency charge, the Board may require the prisoner to serve out the balance of his original sentence. Pursuant to Section 15-22-32, this balance would be calculated from the date upon which the delinquent parolee was rearrested as a parole violator.
“The Parole Board may also find that the prisoner was not delinquent and may, pursuant to Code of Alabama 1975, reinstate him to 'parole. In this situation, the prisoner would be deemed to have had continuous service during the time he loas held as a delinquent.”

178 Ala. Op. Att’y Gen. 32 (1980) (emphasis added).

In 34 Ala. Op. Att’y Gen. 17 (1944), the attorney general likewise interpreted the predecessor to § 15-22-32: Tit. 42, Sec. 12, Ala. Code 1940, which in all material aspects is identical to § 15-22-32, except that it does not contain the final clause of § 15-22-32 (i.e., “however, the delinquent parolee shall be deemed to have begun serving the balance of the time so required on the date of his rearrest as a delinquent parolee”). The attorney general was presented with the following questions:

“[W]hether or not one, who has been paroled, declared delinquent, and after a hearing on delinquency is reinstated, loses credit for service of the time between the declaration and the reinstatement. Is the reinstatement retroactive insofar as credit on sentence is concerned?”

The attorney general answered that such a parolee “does not lose credit for service of the time between the declaration of delinquency and the reinstatement of his parole.” The attorney general explained, as follows:

“Although the first sentence of the [statute] authorizing the issuance of a declaration of delinquency provides that the time owed by the prisoner ‘shall date from such delinquency,’ this section by further providing for a hearing to determine whether the prisoner was in fact delinquent and by authorizing the Board ... to require the prisoner to serve in prison the balance of the term for which he was sentenced calculated from the date of delinquency, or such portion of the term as it may determine, indicates that the Legislature intended such forfeiture to be effective as of the date of the declaration of delinquency only upon a finding of fact that the prisoner was actually delinquent. Thus the term ‘time owed shall date from such delinquency’ contemplates a determination of actual delinquency at the hearing.
“Therefore, when the Board ..., having determined that a parolee had no intention of violating the conditions of his parole, or in fact had not done so, reinstates his parole, he is in the same status as if the declaration of delinquency had never been made, and he loses no credit for service of time.”

(Emphasis added.)

“We recognize that ‘[w]hile an opinion of the attorney general is not binding, it can constitute persuasive authority.’ ” State v. Corley, 831 So.2d 59, 61 (Ala.Crim.App.2001) (quoting Alabama-Tennessee Natural Gas Co. v. Southern Natural Gas Co., 694 So.2d 1344, 1346 (Ala.1997)). The two opinions of the attorney general discussed here constitute “persuasive authority” in the resolution of the issue before us. Although it contains some notations that have no clear meaning to this court, the form indicating the action taken by the Board in Thomas’s case clearly states the recommendation of the Board member presiding over the parole-revocation hearing: “Reinstated to a satisfactory program.” Even more impressive is the Board’s order: “That the order of delinquency is void and inmate is reinstated on parole.... ” “Void” means “[o]f no legal effect; null.” Black’s Law Dictionary 1568 (7th ed. 1999). “Reinstate” means “[t]o place again in a former state or position; to restore.” Id. at 1290. We construe this order as nullifying the declaration of delinquency and restoring Thomas to parole, as if there had never been a declaration of delinquency. Because the delinquency declaration is now a nullity, the time Thomas spent incarcerated in California pursuant to that declaration should be credited to him.

To hold otherwise could raise questions of constitutional dimension. For example, the Texas Court of Criminal Appeals in Ex parte Canada, 754 S.W.2d 660 (Tex.Crim.App.1988), declared that the parolee’s “right of due course of law” under the Texas Constitution was violated by a statute giving the Texas Board of Pardons and Paroles the discretion to grant or to deny credit to a parolee for the time he or she was incarcerated pursuant to a parole-violator warrant when the parole is ultimately formally continued. Analogizing the time confined while awaiting a parole-revocation decision to the time confined pending an appeal, the court explained:

“The denial of time credit to the defendant who is appealing his conviction constitutes an infringement of his constitutional right to freely exercise his right of appeal. Robinson v. Beto, [426 F.2d 797 (5th Cir.1970) ]. Similarly, the discretionary authority to deny time credit to the parolee awaiting revocation constitutes a ‘punitive policy ...,’ Pruett v. Texas, [468 F.2d 51,] 56 [(5th Cir.1972), aff'd and modified in part, 470 F.2d 1182 (5th Cir.), aff'd, 414 U.S. 802, 94 S.Ct. 118, 38 L.Ed.2d 39 (1973) ], that may chill the parolee’s decision to exercise his constitutional right to a pre-revocation hearing. This is so because the parolee who waives his right to a hearing and his parole is revoked will immediately begin to accrue time toward the completion of his sentence. Article 42.18, § 15(a), [Tex. Code Crim. Proc. Ann.].”

754 S.W.2d at 667-68. See also Ex parte Price, 922 S.W.2d 957 (Tex.Crim.App.1996).

Moreover, to deny credit to the parolee whose delinquency declaration is voided and whose parole is reinstated is most illogical. A parolee found innocent of a parole violation might not be credited with continuous service of his sentence, as was the case here, while one whose parole is revoked upon the Board’s finding of a parole violation would earn credit for time served between arrest and revocation.

It is without question that Thomas’s incarceration in California was solely pursuant to the request of Alabama authorities and that a detainer was lodged against him. Because the order of delinquency is now a nullity, Thomas is in the same status as if the declaration of delinquency had never been made, and he loses no credit for service of time. He is “deemed to have had continuous service during the time he was held as a delinquent.” 178 Ala. Op. Att’y Gen. 32.

Accordingly, the circuit court was correct in holding that Thomas is to be credited with the time he was incarcerated. However, we agree with Thomas that the circuit court erred in ordering that he be credited with having served only 150 days. It is unclear why the court specified that particular amount. We need not remand for an explanation, however, because whether he is credited with 150 days or more, Thomas is due to be released immediately.

The judgment of the circuit court is affirmed.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e).

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, SHAW, and WISE, JJ„ concur.

      .Thomas provided in his pleadings the date of his incarceration in California. The Alabama Department of Corrections did not refute this date. Thomas further asserted, without contest, that upon his arrest the California parole officer placed a detainer against him for delinquency of parole.

      . Thomas is presently serving two consecutive sentences. After being reinstated on parole in 1993, Thomas was convicted and sentenced for another offense.

      . We do not know how the circuit court arrived at 150 days as the amount of time to credit Thomas.


source: Caselaw Access Project

author: PER CURIAM. QUINCE, J.,

license: Public Domain

text:
    Richard TOOMBS, etc., Petitioner, v. ALAMO RENT-A-CAR, INC., Respondent.
    No. SC00-1755.
    Supreme Court of Florida.
    Oct. 31, 2002.
    William L. Petros, P.A., Miami, FL; and Ralph O. Anderson and Dinah S. Stein of Hicks, Anderson & Kneale, P.A., Miami, FL, for Petitioner.
    Daniel S. Pearson and Lenore C. Smith of Holland & Knight LLP, Miami, FL; and Walter A. Ketcham, Jr. and David W. Henry of Grower, Ketcham, More’, Rutherford, Noecker, Bronson & Eide, P.A., Orlando, FL, for Respondent.
    Joel D. Eaton of Podhurst, Orseck, Jo-sefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, FL, for the Academy of Florida Trial Lawyers, Amicus Curiae.
    Warren B. Kwavnick of Cooney, Matt-son, Lance, Blackburn, Richards & O’Con-nor, P.A., Fort Lauderdale, FL, for the Florida Defense Lawyers Association.
    Michael A. Tonelli of - Barr, Murman, Tonelli, Slother & Sleet, Tampa, FL, for The Rental Car Association of South Florida, Inc.
   PER CURIAM.

We have for review the decision in Toombs v. Alamo Rent-A-Car, 762 So.2d 1040 (Fla. 5th DCA 2000), which certified conflict with the decision in Enterprise Leasing Co. v. Alley, 728 So.2d 272 (Fla. 2d DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

The petitioner, Richard Toombs, personal representative of the estate of Julia Stuttard, filed a wrongful death action against Alamo Rent-A-Car seeking damages on behalf of her two surviving minor children. Julia Stuttard was killed in a car accident while a passenger in an Alamo automobile rented and driven by her husband, Ian Stuttard. Her husband and their two minor children, who were also passengers in the car, survived. Recovery was sought on the basis of the dangerous instrumentality doctrine.

Alamo moved for summary judgment on the ground that Julia Stuttard, as co-bailee of Alamo’s vehicle, could not rely on the dangerous instrumentality theory because the injury occurred while the vehicle was in her possession. Stated differently, Alamo argued that because Julia Stuttard would have been unable to maintain an action and recover damages against it under the dangerous instrumentality doctrine as a co-bailee of the rental car, neither could her survivors under the Wrongful Death Act. The trial court, granted Alamo’s motion for summary judgment.

On appeal, Toombs argued that the case was controlled by Enterprise Leasing Co. v. Alley, 728 So.2d 272 (Fla. 2d DCA 1999). In Alley the Second District, under circumstances practically identical to those in the instant case, allowed a wrongful death action against a rental car company to stand despite the decedent’s status as a co-bailee of the rental car: “We conclude that although the deceased mother would have no right of action against [Enterprise] had she survived, since the underlying cause of action remained viable, her survivors’ wrongful death action also survives.” Id. at 272.

The Fifth District rejected Alley, concluding that Stuttard’s status as co-bailee prevented a cause of action from existing altogether. See Toombs v. Alamo Rent-A-Car, 762 So.2d 1040, 1042 (Fla. 5th DCA 2000). Accordingly, the Fifth District affirmed the trial court’s order granting summary judgment and certified conflict with Alley. Id.

ANALYSIS

Section 768.19, Florida Statutes (1995), which defines the right of action under the Wrongful Death Act (the Act), provides:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, including those occurring on navigable waters, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person or watercraft that would have been hable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured, although death was caused under circumstances constituting a felony.

§ 768.19, Fla. Stat. (1995). Resolution of the conflict between Alley and the instant case revolves around the language in the second clause, which conditions the right of action created under the Act on the decedent’s entitlement to “maintain an action and recover damages if death had not ensued.”

NATURE OF THE ACTION CREATED UNDER THE WRONGFUL DEATH ACT

An action for wrongful death is a purely statutory right. See, e.g., Florida East Coast Ry. v. McRoberts, 111 Fla. 278, 149 So. 631, 632 (1933). Although such an origin ordinarily requires strict construction under traditional rules of construction, the legislature has expressly provided that the Act should be liberally construed to effect its remedial purposes. See § 768.17, Fla. Stat. (2001); see also, Stern v. Miller, 348 So.2d 303, 308 (Fla.1977).

In that vein, this Court has long characterized the Act as creating a new and distinct right of action from the right of action the decedent had prior to death. In Florida East Coast Railway v. McRoberts, 111 Fla. 278, 149 So. 631 (1933), this Court, in addressing the import of the second clause of the Act, explained:

The fact that the statute provides that an action for death by wrongful act can be maintained by the statutory beneficiaries only when the alleged wrongful death has been caused under such circumstances as would have entitled the injured party himself to maintain an action had he lived is simply a regulation of, and a limitation on, the new statutory right of action created.
Sections 4960, 4961, R.G.S., sections 7047, 7048, C.G.L., the Florida death by wrongful act statutes, do not purport to transfer to the statutory representatives of a person killed by another’s wrongful act the right of action which the injured party might have maintained for his injury had he lived, but those sections gave to such statutory representatives, subject to terms, conditions and limitations of the statute, a totally new right of action for the wrongful death, and that on different principles.

Id. at 633 (emphasis added).

In Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213 (1946) (on rehearing), we again emphasized the distinct nature of an action for wrongful death under our statutory scheme:

It will be observed that the statute gives a right of action to certain statutory beneficiaries for the recovery of damages suffered by them by reason of the death of the party killed; but it makes no provision for the recovery of the damages suffered by the injured person by reason of the injury inflicted upon him. Nor was the death by wrongful act statute ever intended to afford such a remedy. It was not the purpose of the statute to preserve the right of action which the deceased had and might have maintained had he simply been injured and lived; but to create in the expressly enumerated beneficiaries an entirely new cause of action, in an entirely new right, for the recovery of damages suffered by them, not the decedent, as a consequence of the wrongful invasion of their legal right by the tortfeasor.

Id. at 221; accord, e.g., Bilbrey v. Weed, 215 So.2d 479 (Fla.1968); Stokes v. Liberty Mut. Ins. Co., 213 So.2d 695 (Fla.1968); Moragne v. State Marine Lines, Inc., 211 So.2d 161 (Fla.1968); Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591 (Fla.1956); Brailsford v. Campbell, 89 So.2d 241 (Fla.1956); Klepper v. Breslin, 83 So.2d 587 (Fla.1955); Parker v. City of Jacksonville, 82 So.2d 131 (Fla.1955); Shiver v. Sessions, 80 So.2d 905 (Fla.1955); Epps v. Railway Express Agency, Inc., 40 So.2d 131 (Fla.1949).

It is this characterization of the right of action created under the Act that comprises the fulcrum of the petitioner’s claim that a right of action for wrongful death survived the decedent in the instant case. Specifically, the petitioner argues that this Court’s decision in Shiver v. Sessions precludes the decedent’s status as a co-bailee of the rental car from barring the right of the survivors to maintain an action for wrongful death. The petitioner reads Shiver too broadly.

SHIVER V. SESSIONS

In Shiver, four surviving minor children brought a wrongful death action against the estate of their stepfather, who had shot and killed their mother and then killed himself. The trial judge dismissed the suit, finding the plaintiffs barred from maintaining suit for the wrongful death of their mother as interspousal immunity would have prevented her from maintaining an action against their stepfather. This Court reversed, characterizing the in-terspousal immunity defense as personal to the decedent, not inhering in her husband’s tortious act, and therefore incapable of barring the plaintiffs’ independent right of action for wrongful death:

Thus, it is settled law in this jurisdiction that the wife’s disability to sue her husband for his tort is personal to her, and does not inhere in the tort itself. The tortious injury to the wife “does not cease to be an unlawful act, though the law exempts the husband from liability for the damage.” It is also well settled that our Wrongful Death Act creates in the named beneficiaries “an entirely new cause of action, in an entirely new right, for the recovery of damages suffered by them, not the decedent, as a consequence of the wrongful invasion of their legal right by the tort-feasor.” This right is “separate, distinct and independent” from that which might have been sued upon by the injured person, had he or she lived.

80 So.2d at 908 (citations omitted).

Relying heavily on this distinction, the Second District in Alley allowed a wrongful death action against a rental car company to proceed despite the fact that the decedent would have been unable to maintain an action as a co-bailee of the subject rental car. The decedent in Alley was killed in a single vehicle accident when her husband fell asleep at the wheel and crashed the rental car into a guard rail. The decedent’s husband and two minor children, who were also passengers in the automobile, survived. The Alley court rejected the rental company’s claim that the wrongful death action on behalf of the surviving children was barred given that the decedent was a co-bailee of the rental vehicle, explaining:

It is eminently clear to us, as stated by then Justice Ehrlich in his concurring opinion in Perkins, that a “wrongful death action is not derivative, but it is remedial and should be construed to fulfill its remedial function.” The Wrongful Death Act has been consistently held to create an entirely new and independent cause of action and an entirely new right in the statutory beneficiaries.
If a wrongful death action is not derivative, what then under the Wrongful Death Act is the nature of a decedent’s rights, if the decedent survived, that will either permit or preclude the survivors’ action? Shiver seems to be the seminal case that provides the best answer to that question. The answer depends on whether, at the time of the decedent’s death, there existed, had the decedent survived, either a “cause of action” or a “right of action” that would support an action for damages for the injuries of the decedent that resulted in death. If a cause of action would have existed, even if the right of action were extinguished, the survivors’ wrongful death action survives.
The cases relied upon by appellant to prevent a survivor’s action all seem to turn on the fact that the “cause of action” was barred or had been satisfied or eliminated so that it no longer existed. The lack of the ability to sue in that instance inheres in the tort itself. On the other hand, the survivor’s right of action is not lost where the viability of the tort so as to support a “cause of action” is not dissipated, but only a “right of action” in the decedent has been lost because of a disability to sue which is personal to the decedent and does not inhere in the tort or cause of action upon which the survivor’s separate “right of action” is premised.

Id. at 274.

Consistent with Alley the petitioner contends that the decedent’s co-bailee status, like the defense of interspousal immunity confronted in Shiver, is best characterized as a disability to sue personal to the decedent and therefore incapable of precluding survivors from maintaining an action for wrongful death. This argument, however, overlooks the genesis of the distinction drawn in Shiver.

At the heart of the distinction drawn in Shiver was this Court’s recognition that the policies engendered by interspousal immunity were of no moment in the action for wrongful death:

This is especially true in view of the fact that the reason for the rule of marital immunity automatically disappears from the picture simultaneously with the accrual of the right of action under the Wrongful Death Act. As stated in Welch v. Davis[, 410 Ill. 130, 101 N.E.2d 547 (1951)], supra, “An immunity based upon the preservation of marital harmony can have no pertinence in this case, for here the marriage has been terminated, husband and wife are both dead, and the action is brought for the benefit of a third person.”

80 So.2d at 908; see also Toombs, 762 So.2d at 1043 (Harris, J., concurring specially). Similar policy concerns are not implicated by a consideration of the decedent’s co-bailee status. Moreover, we have revisited the distinction drawn in Shiver between disabilities to sue personal to the decedent and defenses inhering in the cause of action on only one occasion. See Dressler v. Tubbs, 435 So.2d 792 (Fla.1983). Significantly, in Dressier we were again grappling with the role of inter-spousal immunity in an action for wrongful death.

In Dressier a husband and wife were killed in the crash of a plane piloted by the husband. The personal representative of the wife’s estate brought suit on behalf of the estate and the wife’s heirs against her husband’s estate to the extent of available liability insurance coverage on the aircraft. The trial court dismissed the suit, holding that it was barred by the doctrines of interspousal and interfamily tort immunity. On appeal, the Fifth District reversed and we approved their decision on the strength of Shiver. See Dressler, 435 So.2d at 793-94.

Indeed, our most recent inquiries into the wrongful death right of action confirm Shiver and Dressler’s status as a sport in this Court’s wrongful death jurisprudence crafted to address the vagaries inherent in an application of interspousal immunity to bar an action for wrongful death, but ill-suited for general application to the consideration of wrongful death actions. This Court’s post-Shiver determination of whether a right of action for wrongful death attached in the statutory survivors has focused on the existence of a right of action in the decedent at his or her death, not the distinction between-personal disabilities to sue and defenses inhering in the underlying cause of action which guided our inquiry in Shiver.

TOST-SHIVER CASES

In Variety Children’s Hospital v. Perkins, 445 So.2d 1010 (Fla.1983), we held that a father’s wrongful death action on behalf of his deceased minor son was barred because his son had recovered a judgment for personal injuries flowing from the same tortious act underlying the wrongful death action. In the prior personal injury action the decedent recovered damages for his injuries and his parents recovered damages for past and future medical expenses. Accordingly, the defendant argued, inter alia, that the father’s cause of action had already been satisfied. The trial court agreed, dismissing the action, and the Third District reversed, reasoning that “the right to recover for wrongful death is separate and independent from, rather than derivative of, the injured person’s right while living to recover for personal injuries.” Id. at 1011. We quashed the district court’s decision, “holding] that the judgment for personal injuries rendered in favor of the injured party while living barred the subsequent wrongful death action based on the same tortious conduct.” Id.

This Court explained that at his death, the decedent had no right of action against the tortfeasor because his cause of action had already been satisfied; therefore, no cause of action for wrongful death survived the decedent:

At the moment of his death the injured minor Anthony Perkins had no right of action against the tortfeasor because his cause of action had already been litigated, proved and satisfied. The recovery awarded by the judgment in the previous, personal injury action included damages arising from future expenses. Since there was no right of action existing at the time of death, under the statute no wrongful death cause of action survived the decedent.

Id. at 1012 (emphasis added).

Next, in Ash v. Stella, 457 So.2d 1377 (Fla.1984), we addressed whether the statute of limitations pertinent to medical malpractice actions was applicable to an action for wrongful death where the tort underlying the wrongful death action involved a claim of medical malpractice. Although we framed the issue as “whether a surviv- or can bring a wrongful death action in cases where if the decedent had survived, the decedent would have been precluded from filing suit because of the statute of limitations,” id. at 1378-79, this Court did not reach that question. Instead this Court held that, by its very language, the medical malpractice statute of limitations applied to actions for wrongful death. Id. at 1379.

The question that went unanswered in Ash was answered in Hudson v. Keene Corp., 445 So.2d 1151 (Fla. 1st DCA 1984), approved) 472 So.2d 1142 (Fla.1985). In Hudson the First District affirmed the summary judgment entered in favor of the defendant, holding that since the statute of limitations applicable to the decedent’s personal injury action had expired at the time of his death, the wrongful death action based on the same tortious conduct (although filed within the limitations period applicable to wrongful death actions) was likewise barred:

[T]he circuit judge in the present case properly granted appellees’ motion for summary judgment, because under the supreme court interpretation of the statutory language [of the Wrongful Death Act] in Perkins, Ela Hudson would not have been able to maintain an action against appellees if death had not ensued due to the running of the limitations period with regard to the personal injury suit.

Hudson, 445 So.2d at 1153.

In Nissan Motor Co. v. Phlieger, 508 So.2d 713 (Fla.1987), we held that the products liability statute of repose was inapplicable to bar an action for wrongful death based on products liability. The plaintiff filed a wrongful death action within two years of her husband’s death. However, Nissan argued that the action was barred because it was filed more than twelve years after the purchase of the vehicle. The trial court granted Nissan’s motion for summary judgment, but the district court reversed, holding the products liability statute of repose inapplicable by its very language to wrongful death actions. Nissan argued to the contrary on the strength of this Court’s decisions in Ash and Perkins, but this Court rejected those arguments: “Florida’s Wrongful Death Act does create a right of action in favor of statutory beneficiaries which was not recognized at common law. However, this Court has consistently held that the act also creates a new and independent cause of action in the statutorily designated beneficiaries. Neither Ash nor Perkins should be read to have held to the contrary.” Nissan, 508 So.2d at 714 (citations omitted). Importantly, we distinguished our decision in Perkins by noting that unlike the decedent there, Phlieger had a right to maintain an action against Nissan at the time of his death because the twelve-year statute of repose had not yet expired at that time:

In Perkins we held ... that a wrongful death action is barred where the decedent, during his lifetime, had filed a personal injury action against the tort-feasor and had fully recovered. Our holding was based on the fact that “[a]t the moment of his death [the injured party] had no right of action against the tortfeasor because his cause of action had already been litigated, proved and satisfied.... Since there was no right of action existing at the time of death, under the statute no wrongful death action survived the decedent.” As noted by the district court below, at the moment of Jay Phlieger’s death, the twelve years had not yet run. Therefore, unlike the decedent in Perkins, Mr. Phlieger had a right to maintain an action against Nissan at the time of his death; and thus, Mrs. Phlieger, acting as his personal representative, had a statutory right to bring an action based on injuries suffered by Mr. Phlieger’s survivors as a result of his death.

Id. at 715 (citation omitted).

Most recently, in Safecare Health Corp. v. Rimer, 620 So.2d 161 (Fla.1993), we addressed the question of whether an action for wrongful death against a joint tortfeasor is barred by a prior settlement of the decedent’s claim for personal injuries against the other tortfeasor and whether the tortfeasor that was not a party to the settlement is entitled to a damage setoff. We answered both questions in the negative, distinguishing our decision in Perkins in the process by emphasizing that the decedent’s claim against Safecare had not been resolved at her death:

Unlike [Perkins], the instant case involves two joint-tortfeasors charged with independent acts of negligence, and only one of the tortfeasors reached a settlement with the injured party before death. As the district court noted, Loeb’s death extinguished her personal injury action; however, because she had not resolved her claim against Safecare, Loeb’s survivors are entitled to bring a wrongful death action.
... In the instant case, the deceased had a viable claim against Safecare that had not been resolved at the time of her death; therefore, Rimer is not barred from bringing a wrongful death action.

Id. at 163-64 (emphasis added).

As is apparent from our discussion in Perkins, Ash, Hudson, Phlieger, and Safecare, we have predicated the wrongful death right of action upon whether the decedent maintained a right of action at his or her death. Accordingly, we consider whether the decedent enjoyed a right of action at her death in the instant case.

In Raydel, Ltd. v. Medcalfe, 178 So.2d 569 (Fla.1965), this Court held that an owner of a vehicle is not liable to a co-bailee for injuries sustained by that bailee because of the bailee’s own negligent operation of the vehicle. The plaintiff in Ray-del, Mrs. Medcalfe, was injured when her husband negligently drove a vehicle in which she was the passenger. The Med-calfes’ employer had loaned the vehicle in question to them. Accordingly, Mrs. Med-calfe sought damages against her employer for the injuries she sustained in the accident under the dangerous instrumentality doctrine. We rejected that claim, explaining:

[W]e do not believe the dangerous instrumentality doctrine applies where an automobile is entrusted to a husband and wife jointly and while it is in their personal use and under their dominion and control it is negligently operated by one of them, injuring one or both of them. Under such circumstances recovery for such injuries can not be had by either or both of them from the owner of the automobile.

Id. at 572. Although Raydel did not involve an action for wrongful death, Raydel makes clear that a co-bailee has no right of action against the owner of a vehicle because that status prevents the imputation of their negligence to the owner under the dangerous instrumentality doctrine: “She and her husband were co-bailees or joint adventurers, having been entrusted jointly with the possession of the automobile for their personal use. In such status they cannot impute the negligent operation of the automobile by either of them to the Petitioners and recover damages for injuries to either of them arising therefrom.” Id.

The Fifth District in the instant case concluded that as the decedent had no right of action against Alamo as a co-bailee of the rental vehicle, no wrongful death cause of action arose in the survivors:

We do not believe that an individual’s status as a co-bailee of a dangerous instrumentality is a mere disability to sue, but rather, [it] prevents the cause of action from wholly existing in such a circumstance. The dangerous instrumentality doctrine, in short, was never intended to apply to the bailee of that instrumentality during the operation of the bailment. The co-bailee cannot impute the negligence of the other co-bailee/driver to Alamo. We hold that because no right of action existed at the time of Julia Studdard’s [sic] death, no wrongful death cause of action survived the decedent.

Toombs, 762 So.2d at 1042 (emphasis added). We agree. Absent the ability to impute Ian Stuttard’s negligence to Alamo, no right of action originated in the decedent to which a wrongful death cause of action could attach.

CONCLUSION

Although we have long emphasized that an action for wrongful death is distinct from the decedent’s action for personal injuries had he or she survived because it involves different rights of recovery and damages, the language of the Act makes clear a cause of action for wrongful death that is predicated on the decedent’s entitlement to “maintain an action and recover damages if death had not ensued.” See Valiant Ins. Co. v. Webster, 567 So.2d 408, 411 (Fla.1990) (“While the Wrongful Death Act creates independent claims for the survivors, these claims are also derivative in the sense that they are dependent upon a wrong committed upon another person.”); Celotex Corp. v. Meehan, 523 So.2d 141, 147 (Fla.1988) (“[A] wrongful death action is derivative of the injured person’s right, while living, to recover for personal injury.”). Accordingly, consistent with our decisions in Perkins, Hudson, Phlieger, and Safecare, we hold that no cause of action for wrongful death survived the decedent in the instant case because she had no right of action at her death. We approve Toombs and disapprove Alley.

It is so ordered.

ANSTEAD, C.J., SHAW, WELLS, PARIENTE, and LEWIS, JJ., and HARDING, Senior Justice, concur.

QUINCE, J., dissents with an opinion.

QUINCE, J.,

dissenting.

I believe that the principle espoused by this Court in Shiver v. Sessions, 80 So.2d 905 (Fla.1955), is equally applicable to this case and would allow the minor children of the decedent in this case to sue for wrongful death. As the majority points out, the plaintiffs in Shiver, the minor children of the decedent, brought suit against the estate of their stepfather, who had shot and killed their mother and then himself. The estate argued that the children could not maintain the action for wrongful death since the mother could not have maintained an action because of interspousal immunity. This Court, however, reversed the dismissal of the case, finding the conduct of the husband did not cease to be a tort merely because the wife would not bring an action for reasons personal to herself. In so doing, the Court said:

It is also well settled that our Wrongful Death Act creates in the named beneficiaries “an entirely new cause of action, in an entirely new right, for the recovery of damages suffered by them, not the decedent, as a consequence of the wrongful invasion of their legal right by the tortfeasor.” Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213, 218, 221. This right is “separate, distinct and independent” from that which might have been sued upon by the injured person, had he or she lived. Epps v. Railway Express Agency, Fla.1949, 40 So.2d 131, 133.
A workable distinction between these two separate and distinct rights of action, on the one hand, and the “original act of negligence of the tortfeasor [which is] the gist of all actions maintainable either by the decedent in his lifetime or by the personal representative and the widow [or other beneficiary under the Wrongful Death Act] after his death,” Epps v. Railway Express Agency, supra, on the other, was made by the Ohio Supreme Court in Fielder v. Ohio Edison Co., 158 Ohio St. 375, 109 N.E.2d 855, 859, 35 A.L.R.2d 1365, in considering the Ohio Wrongful Death Act in another context. It was there said that “A right of action is a remedial right affording redress for the infringement of a legal right belonging to some definite person, whereas a cause of action is the operative facts which give rise to such right of action. When a legal right is infringed, there accrues, ipso facto, to the injured party a right to pursue the appropriate legal remedy against the wrongdoer. This remedial right is called a right of action.” With this distinction in mind, it is clear that the Legislature intended that the right of action created by the Wrongful Death Act in favor of the named beneficiaries must be predicated upon operative acts which would have constituted a tort against their decedent under established legal principles — in other words, they must state a “cause of action” for tort against the tortfeasor, subject to the defenses of contributory negligence and the like which the tort-feasor could have pleaded in a suit against him by the decedent during his or her lifetime, and this court has so held in many cases. But we think it is unreasonable to imply that the Legislature intended to bar the “right of action” created by the Act on account of a disability to sue which is personal to a party having an entirely separate and distinct “right of action” and which does not inhere in the tort— or “cause of action” — upon which each separate right of action is based.

Shiver, 80 So.2d at 907-08.

Based on the Shiver analysis, the Second District Court of Appeal in Enterprise Leasing Co. v. Alley, 728 So.2d 272 (Fla. 2d DCA 1999), allowed a wrongful death action by a decedent’s minor children under circumstances similar to the ones presented in this case. In Alley, the decedent was the co-bailee with her husband of an automobile rented from Enterprise Leasing. While the decedent’s husband was driving, he fell asleep, and the ear veered off of the highway and crashed into a guardrail. The personal representative for the estate of the wife filed suit, and the children of the decedent recovered damages under the Wrongful Death Act. In affirming the recovery, the Second District concluded the decedent’s status as a co-bailee was personal to her but did not bar the survivors’ action against the tortfeasor.

I agree with this analysis. The fact that the decedent in the case before us was a co-bailee of the vehicle rented from Alamo does not negate the fact that her husband, the driver of the rented vehicle, committed a tortious act. Thus, there exists a cause of action based on his tortious conduct. The Wrongful Death Act has given the decedent’s children a right of action for the infringement of their rights to their mother’s support, companionship, etc. This right of action should not be changed or abridged simply because, for reasons personal to her, the mother could not have recovered for her own injuries, had she lived.

Because I believe the children have a right of action under these circumstances, I would quash the decision of the Fifth District Court of Appeal in Toombs v. Alamo Rent-A-Car, 762 So.2d 1040 (Fla. 5th DCA 2000), and approve the decision of the Second District Court of Appeal in Enterprise Leasing Co. v. Alley, 728 So.2d 272 (Fla. 2d DCA 1999).

      . In the complaint, Toombs, as next friend, also sought damages for personal injuries suffered in the accident by Stuttard’s daughter, Bethan.

      . The dangerous instrumentality doctrine "imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.” Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000) (citing Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629, 637 (1920)).

      . The petitioner raises a collateral issue regarding the propriety of the trial court's order granting summary judgment, arguing that the facts did not establish that the decedent was a co-bailee of the rental car as a matter of law. We disagree. The facts established that Julia Stuttard's name and license number appeared on the rental agreement as an additional driver. Moreover, although the rental agreement was not signed by Julia, Ian Stuttard testified that Julia intended to and did drive the rental car prior to the accident. Finally, pursuant to the rental agreement, the Stuttards were charged for an additional driver. Under these circumstances we find no error in the trial court's conclusion that a joint bailment was established as a matter of law.

      . The summary judgment granted by the trial court did not affect the claim for personal injuries on behalf of Stuttard's minor daughter.

      . The accident which gave rise to the instant wrongful death action occurred on January 8, 1996. Section 768.19 has remained unchanged since its enactment in 1972. See ch. 72-35, § 1, Laws of Fla.

      .Section 768.17, Florida Statutes (2001), provides:
      Legislative intent. — It is the public policy of the state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16 768.27 are remedial and shall be liberally construed.

      . The decedent in Alley was listed as an additional driver in the rental car agreement. The issue of her status as co-bailee was apparently not disputed by the parties. See Alley, 728 So.2d at 272.

      . As to our opinion in Shiver, Judge Harris observed:
      In Shiver, the court permitted a wrongful death action by the mother's survivors against the husband for murdering his wife but only because the defense of interspousal immunity is inapplicable to wrongful death actions because the reason justifying the defense, domestic tranquility, is no longer a valid consideration. Since the wife is dead, the law can do nothing to encourage further domestic tranquility.

        Toombs, 762 So.2d at 1043 (Harris, J., concurring specially) (emphasis added).

      . In Dressler we distinguished our decision in Raisen v. Raisen, 379 So.2d 352 (Fla.1979), wherein we rejected an attempt to abrogate the doctrine of interspousal immunity, by emphasizing that the policies fostered by inter-spousal immunity were not implicated in an action for wrongful death:
      Nor can Raisen be fairly read to overrule Shiver. Petitioner points to the concluding paragraph of this Court’s opinion in Raisen stating "that the common law doctrine of interspousal tort immunity is still viable in Florida and that it precludes a tort action between husband and wife in all cases." Raisen dealt with a tort and a suit arising therefrom occurring during a marriage. Both spouses were living and were parties to the suit. Raisen was decided on the grounds that allowing such a suit would be disruptive of marital unity and harmony. Obviously, Raisen cannot be applied to the factual situation here. Husband and wife are dead. There is no suit between spouses, just as there is no longer any marital unit to preserve.

        Dressler, 435 So.2d at 794 (citation omitted) (emphasis added).

      . The doctrine of interspousal immunity was abolished by this Court in Waite v. Waite, 618 So.2d 1360 (Fla.1993).

      . Our holding was premised on the doctrine of merger: "This rule is supported by the theory that a cause of action merges into the judgment and, once the judgment is rendered and final, no cause of action exists.” Perkins, 445 So.2d at 1012 (quoting Stuart M. Speiser, Recovery for Wrongful Death, § 5:18 (1966)).

      . We emphasized the narrow reach of our decision in Ash in Nissan Motor Co. v. Phlieger, 508 So.2d 713 (Fla.1987), wherein we stated:
      Although we stated in Ash that the issue before the Court was "whether a survivor can bring a wrongful death action in cases where if the decedent had survived, the decedent would have been precluded from filing suit because of the statute of limitations," that issue was never actually reached by this Court. In Ash we held that wrongful death actions based on medical malpractice would be governed by the medical malpractice statute of limitations, section 95.11(4)(b), Florida Statutes (1979). This conclusion was based solely on the fact that the statute of limitations at issue specifically defined an action for medical malpractice as including a "claim in tort or in contract for damages because of .. . death" and thus, clearly expressed the legislature’s intent that section 95.11(4)(b) apply to wrongful death actions based on medical malpractice.

        Id. at 715.


author: COVINGTON, Judge.

text:
    In re ESTATE OF Michael A. O’KEEFE, Deceased. Patrick H. O’Keefe, Samantha G. O’Keefe, Jennifer D. Bryan, Anthony M. O’Keefe, And Patrick H. O’Keefe, as Conservator for Sally T. O’Keefe and as Conservator for Molly D. O’Keefe, Appellants, v. Peter A. O’Keefe, Appellee.
    No. 2D01-2920.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2002.

      John J. Waskom of Icard, Merrill, Cul-lis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellants.
    Robert K. Robinson and Kevin J. Ka-pusta of Bowman George Scheb Tóale & Robinson, P.A., Sarasota (withdrew after briefing); Anthony C. Ekonomides of The Ekonomides Law Firm, P.A., St. Peters-burg (substituted as counsel of record), for Appellee.
   COVINGTON, Judge.

The appellants challenge a probate court order that denies their application for the recognition of a California judgment. We reverse.

The basic facts herein are the same as those underlying the controversy in O’Keefe v. Burchett, 833 So.2d 162 (Fla. 2d DCA 2002). That is, on September 5, 1996, the decedent, Michael A. O’Keefe, an orthopedic surgeon, died from massive injuries he suffered in a plane crash in Montana. At the time, the decedent was unmarried and a resident of Sarasota County. On September 27, 1996, his last will and testament dated May 14, 1996, was accepted for probate in the Circuit Court for Sarasota County. In accordance with the will, the decedent’s brother, Anthony D. O’Keefe, was appointed personal representative.

The decedent’s will set forth specific bequests to four of his seven surviving adult children. Those children, Patrick O’Keefe, Samantha O’Keefe, Anthony M. O’Keefe, and Jennifer Bryan, are the appellants. The decedent’s remaining three children were specifically disinherited. The appel-lee, Peter O’Keefe, was one of the decedent’s disinherited children.

At the time of his father’s death, Peter, a resident of Las Vegas, Nevada, also stood to be disinherited by his paternal grandmother, who was still alive and whose conservatorship estate was in litigation in Kansas. At issue in that litigation was, among other things, the grandmother’s irrevocable trust, which omitted Peter but otherwise included the four appellants as beneficiaries thereunder. Peter contested his disinheritance by his grandmother and planned to do the same with respect to his father. In October 1998, however, he entered into a “Compromise, Settlement Agreement and Release” with the appellants, wherein he agreed to refrain from pursuing, and thus forever waive, any claims he might have against the estates and/or trusts of either his grandmother or his father. In so agreeing, Peter specifically assigned to the appellants any interest he ultimately might have in those matters. In return, the appellants paid him $10,000. The foregoing agreement was entered into in Orange County, California, and further provided:

In the event a dispute arises between the parties concerning this Agreement or its performance or breach, the parties agree that all such disputes shall be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and any judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. AS A RESULT OF THIS PROVISION, NO PARTY TO THIS AGREEMENT WILL BE ENTITLED TO HAVE A JUDGE OR JURY DECIDE THE DISPUTE AND EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY ON SUCH CLAIM. The laws of the State of California will govern this Agreement and any such arbitration shall take place in Orange County, California and shall be conducted pursuant to the provisions of Title 9 of Part Three of the California Code of Civil Procedure, beginning with §■ 1280, et seq.

(Emphasis in original.)

In May 1999, the decedent’s brother, as personal representative of the decedent’s estate, petitioned for a revocation of probate with respect to the May 14,1996, will. The personal representative explained that the subject will had never been signed by the decedent. He averred that the signature affixed to the will was in fact forged by him after the decedent’s death.

In January 2000, probate of the May 14, 1996, will was revoked by written order. The order provided that, due to the revocation, the decedent was considered to have died intestate and that all seven of his children were thus his sole heirs.

Once the forgery of the will was revealed, Peter questioned the validity of the aforementioned assignment of his interests to the appellants. In accord with the parties’ settlement agreement, the appellants submitted the matter for resolution by binding arbitration in Orange County, California.

Peter filed a pro se response in the arbitration proceeding. In that response, he alleged fraud and/or mutual mistake with respect to the subject assignment. Peter primarily contended that he was fraudulently induced by the appellants to enter into the agreement. He claimed that the appellants, while knowing of the will forgery, exploited his belief that his father left a valid, probated will which disinherited him.

A final arbitration hearing ensued in August 2000. Peter, however, did not attend, despite having been properly noticed. Thus, based on the evidence presented in the arbitration tribunal, the arbitrator rejected Peter’s claims and determined the assignment to be valid. On September 14, 2000, a written arbitration award in favor of the appellants was entered.

Afterwards, the appellants petitioned a California Superior Court for a written order confirming the arbitration award. A notice of hearing was personally served on Peter on October 18, 2000. , The notice informed him 'that’the matter was set to be heard on December 15,- 2000. Peter appeared pro se at that hearing. Supplemental court transcripts indicate that Peter did not file any opposing documents in the case. Thus, the California court denied his request, made at the hearing, for a continuance to hire an attorney. The matter then proceeded. On December 28, 2000, the California court entered both an order confirming the arbitration award and a final judgment, which declared the parties’ agreement to be valid and enforceable. No direct appeal was taken from either order.

In February 2001, the appellants filed an application in the probate court below, seeking recognition of the California judgment. Recognition, of course, would preclude Peter’s receipt of his intestate interest in his father’s estate. Peter thus opposed recognition of the California judgment, alleging that the appellants procured such by committing a fraud on the California Superior Court. He averred that, when he assigned his interest in his father’s estate, the appellants knew the May 14, 1996, will was a forgery. Peter also claimed that the California court did not have personal jurisdiction over him. For that reason, he argued that the California judgment was void and thus not entitled to full faith and credit in Florida.

A hearing on the appellants’ application was held in the probate court. At that time, Peter presented the former personal representative’s petition for revocation of probate and his deposition, which was submitted in the revocation proceeding. In both the petition and the deposition, the former personal representative asserted that some or all of the appellants may have known of the will forgery. The appellants, on the other hand, countered that they were responsible for originally discovering the will forgery and bringing the matter to light, long after the will was accepted for probate. They explained that the discovery was made purely by happenstance during the Kansas litigation involving the con-servatorship of their grandmother. At that time, they noticed that the decedent’s signature on the will was different from his signature as it appeared on certain conser-vatorship documents.

At the close of the hearing, the probate court announced that it was denying recognition of the California judgment, because “there’s some question on the Court whether it appeared by fraud.” On June 13, 2001, a written order was entered accordingly.

On appeal, the appellants contend the trial court erred in refusing to extend full faith and credit to the California judgment. As we concluded in Burchett, the unusual and suspicious circumstances of this case notwithstanding, we are compelled, as a matter of law, to agree with the appellants.

Courts in every jurisdiction are required to give judgments entered in sister states the full faith and credit of the law. Art. IV, § 1, U.S. Const.; 28 U.S.C. § 1738 (2001). Foreign judgments, however, may be challenged on grounds that the foreign court lacked either personal or subject matter jurisdiction. Milligan v. Wilson, 107 So.2d 773, 775 (Fla. 2d DCA 1958); see also Hinchee v. Golden Oak Bank, 540 So.2d 262, 263 (Fla. 2d DCA 1989) (addressing personal jurisdiction only). “Likewise, the validity of [a foreign] judgment may be challenged on grounds of extrinsic fraud.” Hinchee, 540 So.2d at 263 (citing Haas v. Haas, 59 So.2d 640 (Fla.1952)). Regardless of the ground upon which the foreign judgment is challenged, however, “[t]he jurisdiction of the foreign court and the validity of the foreign judgment must be analyzed under the law of the foreign state.” Id. (citing Trauger v. A.J. Spagnol Lumber Co., 442 So.2d 182 (Fla.1983), and Milligan).

In the instant case, the California court had both personal and subject matter jurisdiction when it entered the judgment at issue. California courts have personal jurisdiction over an individual who makes a general appearance in a case and who voluntarily submits to jurisdiction without challenging such. Torres v. Torres (In re Marriage of Torres), 62 Cal.App.4th 1367, 73 Cal.Rptr.2d 344, 353 (1998). California courts also obtain personal jurisdiction where a party has specifically agreed that a particular contractual arrangement will be governed by California law. Pedus Bldg. Servs., Inc. v. Allen, 96 Cal.App.4th 152, 116 Cal.Rptr.2d 542, 552 (2002); see also Berard Constr. Co. v. Mun. Court, 49 Cal.App.3d 710, 122 Cal.Rptr. 825, 832 (1975) (concluding that contractual agreement constituted consent to personal jurisdiction in California court). In the instant case, the record shows that Peter made a general appearance in the California Superior Court and did not otherwise contest personal jurisdiction. Furthermore, he specifically agreed that California law would govern the parties’ contractual arrangement. He thus expressly consented to the personal jurisdiction of the California court.

While personal jurisdiction can be conferred on a California court by consent, subject matter jurisdiction cannot be so conferred. Id Nonetheless, subject matter jurisdiction — which relates to the nature of a cause of action, see Greener v. Workers’ Comp. Appeals Bd., 6 Cal.4th 1028, 25 Cal.Rptr.2d 539, 863 P.2d 784, 787 (1993)— is conferred on a California court when the controversy involves a contract executed and performed in California, Janzen v. Workers’ Comp. Appeals Bd., 61 Cal.App.4th 109, 71 Cal.Rptr.2d 260, 263-64 (1997). Here, the matter in controversy involved a settlement agreement that was executed and performed in California. Thus, the California Superior Court indisputably had subject matter jurisdiction of that cause.

Last, there is no showing on the instant record of extrinsic fraud. Peter claimed he was fraudulently induced by the appellants to enter into the assignment at issue. Such, however, was a matter to be resolved by the Orange County, California, arbitration tribunal and, ultimately, the California Superior Court. The issue in those proceedings was the validity and enforceability of the parties’ agreement in light of Peter’s fraud claims. Fraud that goes to the merits of a ease constitutes intrinsic, not extrinsic, fraud. Hinchee, 540 So.2d at 264; see also DeClaire v. Yohanan, 453 So.2d 375, 380 (Fla.1984) (holding that filing of false financial affidavits in child support matter related to issue in controversy and thus constituted intrinsic fraud).

Extrinsic fraud, on the other hand, actually prevents a party from defending in an action, raising issues, or otherwise presenting his or her case. Cerniglia v. Cerniglia, 679 So.2d 1160, 1163 (Fla.1996); see also Hinchee, 540 So.2d at 264; Lefler v. Lefler, 776 So.2d 319, 321-23 (Fla. 4th DCA 2001); Lamb v. Leiter, 603 So.2d 632, 635 (Fla. 4th DCA 1992) (explaining that a husband who intimidates, threatens, or coerces his wife to prevent her from litigating child custody, alimony, and property division issues commits extrinsic fraud). Such has not been shown to be the case here. The will forgery, itself, and allegations that some or all of the appellants may have had some involvement in such conduct cast a pall on the issues herein. The instant record, however, reflects no evidence of any. conduct on the part of the appellants that prevented Peter from appearing, defending, or otherwise objecting in either the arbitration or the California court proceeding. Therefore, as disconcerting as these circumstances are, this court is constrained by the law, as we were in Burchett, to conclude that the California judgment cannot be refused recognition on the basis of extrinsic fraud.

Because the record fails to demonstrate any legal basis for refusing recognition of the California judgment, the probate court’s order denying the appellants’ application in this instance is reversed and remanded. On remand, the probate court is directed to extend full faith and credit to the California judgment.

Reversed and remanded.

FULMER and WHATLEY, JJ., Concur.


text:
    In re ESTATE OF Michael A. O’KEEFE, Deceased. Patrick H. O’Keefe, Samantha G. O’Keefe, Jennifer D. Bryan, Anthony M. O’Keefe, and Patrick H. O’Keefe, as Conservator for Molly D. O’Keefe and as Conservator for Sally T. O’Keefe, Appellants, v. Charla Burchett, as Guardian Ad Litem for Sally T. O’Keefe, Appellee.
    No. 2D01-3404.
    District Court of Appeal of Florida, Second District.
    Aug. 9, 2002.

      John J. Waskom of Icard, Merrill, Cul-lis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellants.
    Kimberly A. Bald of Harllee, Porges, Hamlin, Knowles, Bald & Prouty, P.A., Bradenton, and Charla McNally Burchett of Lee & Burchett, P.A., Sarasota, for Appellee.
   COVINGTON, Judge.

The appellants challenge a probate court order that denies their application for the recognition of a Montana judgment. The judgment sought to be recognized approves the assignment of the appellants’ incapacitated sibling’s interest in their father’s Florida estate. We reverse.

The controversy herein arises- from the same basic facts as those underlying O’Keefe v. O’Keefe, 833 So.2d 157 (Fla. 2d DCA 2002). Specifically, on September 5, 1996, the decedent, Michael A. O’Keefe, an orthopedic surgeon, died from massive' injuries he suffered in a plane crash in Montana. At the time, the decedent was unmarried and a resident of Sarasota County. On September 27, 1996, his last will and testament dated May 14, 1996, was accepted for probate in the Circuit Court for Sarasota County. In accordance with the will, the decedent’s brother, Anthony D. O’Keefe, was appointed personal representative.

Thereafter, $250,000 of the decedent’s cash assets were placed in a trust pursuant to a pour-over provision of the will. Those 'proceeds were ultimately paid to the decedent’s girlfriend in accord with the terms of the will and the trust instrument. The remaining assets of the decedent’s estate were distributed to four of the decedent’s seven surviving adult children, Patrick O’Keefe, Samantha O’Keefe, Anthony M. O’Keefe, and Jennifer Bryan, who were named beneficiaries under the will. Those four children are also the appellants herein. The decedent’s remaining three children, Peter, Sally, and Molly O’Keefe, were specifically disinherited.

Three years later, in May 1999, the decedent’s brother, as personal representative of the decedent’s estate, petitioned for a revocation of probate with respect to the May 14, 1996, will. He explained that the subject will had never been signed by the decedent. He averred that the signature affixed to the will was in fact forged by him after the decedent’s death.

In July 1999, the probate court appointed Charla Burchett, the appellee herein, as guardian ad litem (GAL) for the decedent’s disinherited daughter, Sally. The appointment was made per the request of the personal representative in his petition for revocation of probate. However, Sally, too, sought the appointment of a GAL in a written pro se request, which was accompanied by an affidavit from her psychiatrist. Ultimately, a GAL was deemed necessary because Sally had been suffering from a severe mental disorder since birth and was thus incapacitated. She was in fact a resident of a state hospital in Montana.

In January 2000, probate of the May 14, 1996, will was revoked by written order. The order provided that, due to the revocation, the decedent was considered to have died intestate and that all seven of his children had become his sole heirs. Subsequent written orders were then entered directing the appellants and the decedent’s former girlfriend to return estate assets previously distributed to them under the forged will. Many difficulties arose in recapturing those assets. The record before us does not indicate what, if any, success the probate court has had in overcoming those difficulties.

Shortly after the revocation of probate, appellant Patrick O’Keefe petitioned a Montana court to appoint him as conservator for his incapacitated sister, Sally. In June 2000, the Montana court so appointed Patrick. As Sally’s conservator, Patrick further petitioned the Montana court for approval of a proposed family settlement agreement. Pursuant to that agreement, Sally would unconditionally assign to the appellants any and all of her interest in the decedent’s intestate estate. The agreement also provided that the appellants would establish, in accord with Montana law, a special needs trust for Sally, so that she could remain on public assistance in Montana. The appellants promised to fund the trust with $50,000. That promise, however, was expressly contingent on the appellants’ success in certain Kansas litigation involving the estate of their paternal grandmother. In that case, the appellants, as the sole beneficiaries of their grandmother’s estate, were attempting to recover from the estate of the decedent herein whatever was left of $20 million he allegedly procured from his own mother by fraud.

During negotiations in Sally’s pending Montana conservatorship case, appellee Burchett, as Florida GAL for Sally, informed the appellants that she opposed the assignment of Sally’s, interest in her father’s estate. Although the value of the decedent’s estate had not yet been determined, Burchett calculated Sally’s interest in the decedent’s intestate estate as approximately $200,000. It was thus Bur-chett’s opinion that the appellants’ promise to fund a special needs trust with $50,000 in exchange for Sally’s $200,000 inheritance was unconscionable. Thereafter, Burchett’s involvement in the Montana conservatorship negotiations, and in the Montana case altogether, ceased.

Eventually, a special GAL, Michael Dwyer, was appointed by the Montana court to represent Sally’s interests in the Montana conservatorship case. At some point, Dwyer filed a written report recommending the assignment of Sally’s interest in the decedent’s estate.

In January 2001, the Montana court entered a final judgment approving Patrick’s assignment of Sally’s interest in the decedent’s Florida estate. The Montana judgment recited that, “Notice of the hearing on [Patrick’s Montana] Petition was timely, duly and properly given to all interested persons, specifically including Charla Burchett, Esq., the special guardian ad litem in Florida.... No objections to the Petition were filed by any interested person.” The Montana judgment also indicated that the decision of the Montana court was based on GAL Dwyer’s written report. According to the Montana court, Dwyer recommended the assignment, because the decedent’s intestate Florida estate “will likely result in no distribution to the Con-servatee because of the significant probability that said estate is insolvent.”

In May 2001, the appellants herein filed an amended application in the Florida probate case, seeking recognition of the Montana judgment. Burchett, as GAL for Sally, objected in writing to the request. At that time, Burchett contended that the Montana court was without subject matter jurisdiction to approve the assignment of Sally’s interest in her father’s Florida estate.

On June 27, 2001, a hearing was held on the appellants’ application. At the hearing, counsel for the appellants conceded the possibility that, ultimately, the assignment could fail to benefit Sally. That is, in the event of no recovery in the Kansas litigation, the appellants would not be obligated to fund Sally’s special needs trust. Nonetheless, Patrick and the other appellants could possibly receive a windfall from the assignment of Sally’s interest in the decedent’s estate. Counsel explained, however, that the foregoing possibility would depend upon the actual value of the estate, and Sally’s proportionate share, at the conclusion of all litigation involving or relating to the estate and/or estate assets.

The foregoing notwithstanding, the appellants argued that the Montana judgment was entitled to full faith and credit in Florida. They claimed the Montana court had both personal jurisdiction of Sally as a lifelong Montana resident and subject matter jurisdiction of her personal property and how she might choose to dispose of it. They further asserted that Sally’s interests were fully protected and independently represented by GAL Dwyer in the Montana case. According to the appellants, Patrick’s interest as a co-beneficiary of the decedent’s Florida estate was disclosed to the Montana court and was in fact the reason a special Montana GAL was appointed for Sally.

Burchett, on the other hand, argued that the Montana judgment was not entitled to full faith and credit. She contended that Patrick and the other appellants fraudulently procured the subject assignment and otherwise engaged in self-dealing to circumvent the Florida probate proceedings, once probate of the forged will was revoked. She submitted that, based upon the deposition of the decedent’s brother in the probate revocation proceeding, two of the appellants — if not all four- — -may possibly have known that the May 14, 1996, will was a forgery at the time it was offered for probate. Burchett also argued that the Montana court was without subject matter jurisdiction to the extent that its judgment structured an agreement to alter the disposition of a Florida decedent’s estate. The foregoing arguments notwithstanding, Burchett did not dispute that she did not register an objection or otherwise appear in the Montana proceeding, despite having been duly noticed thereof.

At the conclusion of the hearing, the trial court announced that it was denying the appellants’ application for recognition of the Montana judgment. The trial court found that: (1) Patrick was acting in his own interests in procuring the assignment of Sally’s inheritance and was thus guilty of fraud and self-dealing; and (2) the Montana court was without subject matter jurisdiction to enter a judgment that affected the disposition of property in a Florida decedent’s estate. A written order was entered accordingly.

On appeal, the appellants contend the trial court erred in refusing to extend full faith and credit to the Montana judgment. As unusual and unfortunate' — and in fact suspicious — as the circumstances herein may be, we must agree with the appellants’ contention, strictly as a matter of law.

Courts in every jurisdiction are required to give judgments entered in sister states the full faith and credit of the law. Art. IV, § 1, U.S. Const.; 28 U.S.C. § 1738 (2001). Foreign judgments, however, may be challenged on grounds that the foreign court lacked either personal or subject matter jurisdiction. Milligan v. Wilson, 107 So.2d 773, 775 (Fla. 2d DCA 1958); see also Hinchee v. Golden Oak Bank, 540 So.2d 262, 263 (Fla. 2d DCA 1989) (addressing personal jurisdiction only). “Likewise, the validity of [a foreign] judgment may be challenged on grounds of extrinsic fraud.” Hinchee, 540 So.2d at 263 (citing Haas v. Haas, 59 So.2d 640 (Fla.1952)). Regardless of the ground upon which the foreign judgment is challenged, however, “[t]he jurisdiction of the foreign court and the validity of the foreign judgment must be analyzed under the law of the foreign state.” Id. (citing Trauger v. A.J. Spagnol Lumber Co., 442 So.2d 182 (Fla.1983), and Milligan).

In the instant case, the Montana court indisputably had both personal and subject matter jurisdiction when it entered the judgment at issue. Under Montana law, Montana courts have general personal jurisdiction over all persons found within the state of Montana. M.R.Civ.P. 4B(1); see also Threlkeld v. Colorado, 303 Mont. 432, 16 P.3d 359 (2000); Simmons Oil Corp. v. Holly Corp., 244 Mont. 75, 796 P.2d 189, 194 (1990). Sally has been a lifelong resident of Montana and resides there in a state hospital. The Montana judgment is thus unassailable on grounds of personal jurisdiction.

Further, Montana courts have subject matter jurisdiction of guardianships and conservatorships involving incapacitated Montana residents in need of protection. See § 72-5-306, Mont. Stat. (2001) (authorizing court-appointed guardians of incapacitated persons); § 72-5-409 (authorizing appointment of conservators for incapacitated persons); In re Estate of Bayers, 295 Mont. 89, 983 P.2d 339 (1999); In re Guardianship & Conservatorship of Swandal, 210 Mont. 167, 681 P.2d 701 (1984); see also Beverly Beach Props., Inc. v. Nelson, 68 So.2d 604, 608 (Fla.1953) (requiring the extension of full faith and credit to a California judgment and acknowledging the right of a California court under California law to appoint a guardian for a California resident).

In this instance, it is undisputed that Sally is an incapacitated Montana resident. The Montana court thus appointed Patrick as her conservator. When Patrick brought the agreement at issue before the Montana court, a separate and presumably independent Montana guardian was duly appointed to represent Sally’s interests. Relying on the Montana GAL’s report and ultimate recommendation, the Montana court entered the judgment at issue, which approved the subject agreement. The agreement merely directs an assignment of Sally’s interest in her father’s intestate estate upon the disposition of that interest in accord with Florida law. The agreement does not otherwise serve to alter Florida’s intestacy laws. The Montana judgment is thus unassailable for lack of subject matter jurisdiction.

Last, there is no showing on the instant record of extrinsic fraud. In this case, Burchett argues that Patrick, as conservator for Sally in Montana, engaged in fraud and self-dealing in proposing and securing court approval of an assignment that inured to his own benefit rather than that of his conservatee. Beyond setting forth the questionable nature of the overall circumstances — which are indeed very suspicious — Burchett failed to present any conclusive evidence in support of her claim in the probate court. Even if she had, however, such would be of no consequence here. The integrity of the conservator and the merits of his petition were matters to be resolved only by the Montana court in light of the evidence presented in that forum. Fraud that goes to the merits of a case constitutes intrinsic, not extrinsic, fraud. Hinchee, 540 So.2d at 264; see also DeClaire v. Yohanan, 453 So.2d 375, 380 (Fla.1984) (holding that filing of false financial affidavits in child support matter related to issue in controversy and thus constituted intrinsic fraud).

Extrinsic fraud, on the other hand, actually prevents a party from defending in an action, raising issues, or otherwise presenting his or her case. Cerniglia v. Cerniglia, 679 So.2d 1160, 1163 (Fla.1996); see also Hinchee, 540 So.2d at 264; Lefler v. Lefler, 776 So.2d 319, 321-23 (Fla. 4th DCA 2001); Lamb v. Leiter, 603 So.2d 632, 635 (Fla. 4th DCA 1992) (explaining that a husband who intimidates, threatens, or coerces his wife to prevent her from litigating child custody, alimony, and property division issues commits extrinsic fraud). Such has not been demonstrated here. This court acknowledges that, in viewing this case against the backdrop of such reprehensible conduct as will forgery, it is entirely possible that some extrinsic fraud occurred at some point. The instant record, however, reveals no evidence of any conduct on the part of Patrick or the other appellants that prevented any party or interested person from appearing, defending, or otherwise objecting in the Montana conservatorship case. Therefore, as dubious as the circumstances herein appear to be, this court is constrained by the law to conclude that the Montana judgment cannot be refused recognition on the basis of extrinsic fraud.

Accordingly, because the record fails to demonstrate any legal basis for refusing recognition of the Montana judgment, the probate court’s order denying the appellants’ application in this instance is reversed and remanded. On remand, the probate court is directed to extend full faith and credit to the Montana judgment.

Reversed and remanded.

PARKER and CASANUEVA, JJ„ Concur.


author: PER CURIAM. BROWNING, J.,

text:
    Douglas J. DAVIES, Appellant, v. Laurie DAVIES, Appellee.
    No. 1D01-1275.
    District Court of Appeal of Florida, First District.
    Aug. 28, 2002.
    Robert L. Appleget, Jr., Ocala, for Appellant.
    Cynthia Stump Swanson of Swanson & Sperling, P.A., Gainesville, for Appellee.
   PER CURIAM.

AFFIRMED.

BARFIELD, KAHN, JJ., concur, and BROWNING, J., concurs with separate opinion.

BROWNING, J.,

concurring opinion.

I join in the majority opinion, because the issues addressed in Appellant’s motion for temporary relief pending appeal are now moot. However, absent mootness, it is very clear to me that the trial court reversibly erred by determining that he did not have jurisdiction to hear such motion. Atlas v. Atlas, 708 So.2d 296 (Fla. 4th DCA 1998). There is absolutely no impediment to a trial court’s granting prospective downward modification as to prospective payments as requested in Appellant’s motion under Florida Rule of Appellate Procedure 9.600(c)(1).


author: PER CURIAM. SHARP, W., J.

text:
    Bruce DEMO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2772.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2002.
    Order Denying Rehearing Dec. 20, 2002.
    Bruce Demo, Polk City, pro se.
    Robert .A. Butterworth, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hall v. State, 823 So.2d 757 (Fla.2002); Williams v. State, 734 So.2d 1113 (Fla. 2d DCA 1999).

SHARP, W., PETERSON and PALMER, JJ., concur.

ON MOTION FOR REHEARING

SHARP, W., J.

We deny Demo’s motion for rehearing. This court per curiam affirmed the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion. Demo argues on rehearing that our affir-mance is inconsistent with our prior opinions in which we have required the trial court to attach portions of the record supporting the basis for the summary denial of relief. See, e.g., Moore v. State, 741 So.2d 577 (Fla. 5th DCA 1999).

In this case, the trial court concluded that the legal sufficiency of the reasons for the sentencing judge’s departure sentence had been affirmed numerous times and thus this motion was successive. However, the trial court did not attach copies of prior motions or briefs in the direct appeal raising this issue.

Nonetheless, this court’s own records establish that the departure reasons were challenged in Demo’s direct appeal filed with this court. This court retains copies of its criminal appeals, including bench memos, dating back to 1989 when Demo’s direct appeal was taken, and earlier. Thus our determination that a post-conviction motion is successive need not depend solely on attachments by the trial court.

However, the basis for our affirmance in this cause was that a challenge to the validity of departure reasons cannot be raised in a rule 3.800(a) motion. See Williams v. State, 734 So.2d 1113 (Fla. 2d DCA 1999); Pula v. State, 652 So.2d 981 (Fla. 5th DCA 1995). Further, Demo’s Apprendi challenge to his sentence was also legally insufficient on its face because his sentence does not exceed the statutory maximum for the offense. See Hall v. State, 823 So.2d 757 (Fla.2002); Henly v. State, 812 So.2d 549 (Fla. 5th DCA 2002).

Motion for Rehearing DENIED.

PETERSON and PALMER, JJ., concur.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


author: WEBSTER, J.

text:
    Lee Neuland JUPITER, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 1D00-5034.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2002.
    Rehearing Denied Dec. 23, 2002.
    Robert Augustus Harper and Jason Michael Savitz of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant/Cross-Appellee.
    Robert A. Butterworth, Attorney General; Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee/Cross-Appellant.
   EN BANC

WEBSTER, J.

In this direct criminal appeal, appellant claims that the trial court abused its discretion when it denied a motion for a mistrial and a subsequent motion seeking a new trial. The state cross-appeals, pursuant to Florida Rule of Appellate Procedure 9.140(e)(l)(J), claiming that the trial court erred when it refused to assess on the sentencing guidelines scoresheet victim injury points for distinct injuries sustained by a single victim as the result of separate offenses. Because we conclude that appellant has failed to demonstrate that the trial court abused its discretion, we affirm as to the two issues raised by him without further discussion. As to the state’s cross-appeal, while the trial court correctly applied a prior decision of this court, we now recede, en banc, from that decision. Accordingly, we vacate appellant’s sentence and remand for resentencing.

Appellant was convicted, following a jury trial, of conspiracy to kidnap, false imprisonment and third-degree murder, all of which were committed in December 1997, and all of which involved the same victim. At sentencing, the state argued that victim injury points should be assessed on the guidelines scoresheet for both the false imprisonment and the murder convictions. Relying on Hudson v. State, 765 So.2d 273 (Fla. 1st DCA 2000), a then recent decision by this court, appellant’s lawyers argued that victim injury points could be assessed only for one offense committed against a particular victim. After reading the Hudson decision and listening to additional argument, the trial court reluctantly concluded that, although Hudson appeared to be irreconcilable with the clear language of the applicable rule of criminal procedure, it was obliged to follow Hudson. Accordingly, the trial court assessed points for the third-degree murder conviction, but not for the false imprisonment conviction. Our standard of review for this ruling involving a pure issue of law is de novo. Rittman v. Allstate Ins. Co., 727 So.2d 391, 393 (Fla. 1st DCA 1999).

Because the offenses for which appellant was convicted were committed in December 1997, the applicable Florida Rule of Criminal Procedure is rule 3.703(d)(9). Compare Fla. R.Crim. P. 3.703(a) (“This rule applies to offenses committed on or after October 1, 1995”) with Fla. R.Crim. P. 3.704(a) (“This rule applies to offenses committed on or after October 1, 1998”); see also Heggs v. State, 759 So.2d 620 (Fla.2000) (holding that the 1995 sentencing guidelines were unconstitutional because they were passed by the legislature in violation of the “single subject rule”); Trapp v. State, 760 So.2d 924 (Fla.2000) (holding that the “window” for a Heggs challenge to the 1995 sentencing guidelines opened on October 1, 1995, and closed on May 24, 1997). Florida Rule of Criminal Procedure 3.703(d) reads, in pertinent part:

(9) “Victim injury” is scored for physical injury or death suffered by a person as a direct result of any offense pending before the court for sentencing. Except as otherwise provided by law, the sexual penetration and sexual contact points will be scored as follows. Sexual penetration points are scored if an offense pending before the court for sentencing involves sexual penetration. Sexual contact points are scored if an offense pending before the court for sentencing involves sexual contact, but no penetration. If the victim of an offense involving sexual penetration or sexual contact without penetration suffers any physical injury as a direct result of an offense pending before the court for sentencing, that physical injury is to be scored in addition to any points scored for the sexual contact or sexual penetration.
Victim injury shall be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims. However, victim injury shall not be scored for an offense for which the offender has not been convicted.

(Emphasis added.) Similarly, section 921.0011(7)(a), Florida Statutes (1997) (which relates to sentencing guidelines), provides that “ ‘[vjictim injury’ means the physical injury or death suffered by a person as a direct result of the primary offense, or any additional offense, for which an offender is convicted and which is pending before the court for sentencing at the time of the primary offense.”

As the trial court noted, the language of rule 3.703(d)(9) appears to be clear and unambiguous — “Victim injury shall be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims.” “Our courts have long recognized that the rules of construction applicable to statutes also apply to the construction of rules.... Thus, when the language [of a rule] is unambiguous, it must be accorded its plain and ordinary meaning.” Brown v. State, 715 So.2d 241, 243 (Fla.1998) (citations omitted).

Courts had construed the pertinent portions of the rules of criminal procedure in existence prior to 1991 as prohibiting the scoring of victim injury points for more than one offense when only a single victim was involved. See Lowe v. State, 742 So.2d 350, 351 (Fla. 5th DCA 1999) (citing cases). However, in 1991, the rule (rule 3.701(d)(7)) was amended to require that victim injury points be assessed “for each count resulting in [a physical] injury whether there are one or more victims.” Florida Rules of Criminal Procedure re: Sentencing Guidelines (Rules 3.701 and 3.988), 576 So.2d 1307, 1310 (Fla.1991). Moreover, the Committee Note to that amendment removed any possible ambiguity regarding intent: “The purpose of the ... revision is to provide consistency in the scoring of victim injury by scoring for each offense at conviction for which victim injury can appropriately be scored, whether committed against a single victim or multiple victims.” Id.

Notwithstanding the clarity of rule 3.703(d)(9) and its predecessors dating back to 1991, in Hudson v. State, 765 So.2d 273 (Fla. 1st DCA 2000), this court Reversed the assessment of victim injury points for each of three counts of sexual battery committed on a single victim on March 22, 1997, holding that points could be assessed for only one count. Because the offenses in Hudson occurred within the Heggs “window,” rule 3.702(d)(5) controlled — “Victim injury shall be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims.” However, the Hudson court did not cite the rule. Instead, it cited as the sole authority for its holding Burrows v. State, 649 So.2d 902 (Fla. 1st DCA 1995). Unfortunately, the Hudson court failed to note that Burrows’ convictions were for offenses committed several years prior to the adoption, in 1991, of the rule amendment requiring that points be scored for each offense resulting in injury even if only one victim is involved. As discussed above, prior to 1991, the pertinent portions of the criminal procedure rules had been construed as prohibiting the scoring of points for more than one offense when only a single victim was involved. See Lowe, 742 So.2d at 351 (citing cases). Therefore, the decision in Burrows was inapplicable to the situation presented by the facts in Hudson. Nevertheless, the trial court correctly concluded that it was obliged to follow Hudson. See State Farm Mut. Auto. Ins. Co. v. Adair, 722 So.2d 958, 961 n. 4 (Fla. 3d DCA 1998) (while trial courts are free to express their disagreement with binding precedent of their district, they are obliged to follow it unless it is contrary to supreme court precedent), disapproved on other grounds in Allstate Ins. Co. v. Boecher, 733 So.2d 993, 1000 (Fla.1999).

Because Hudson failed to recognize the effect of the clear language of the applicable rule of criminal procedure requiring that victim injury points be scored for each offense even if only a single victim is involved, we recede from that decision. In this case, we hold that rule 3.703(d)(9) requires the trial court to score victim injury points for injuries sustained by the victim and attributable to both the false imprisonment and the third-degree murder convictions. Accordingly, we vacate appellant’s sentences and remand for re-sentencing. In all other respects, we affirm.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

ALLEN, C.J., ERVIN, BOOTH, BARFIELD, MINER, WOLF, KAHN, DAVIS, BENTON, VAN NORTWICK, PADOVANO, BROWNING, LEWIS and POLSTON, JJ., CONCUR.