author: COBB, Judge.

text:
    Richard YOUNG v. STATE of Alabama.
    CR-02-1258.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2004.

      Gary R. New, Eufaula, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman and Robin Blevins Scales, asst, attys. gen., for appellee.
   On Rehearing Ex Mero Motu

COBB, Judge.

The unpublished memorandum of January 23, 2004, is withdrawn, and the following is substituted therefor.

On November 19, 2002, Richard Young was convicted of first-degree sexual abuse, a violation of § 13A-6-66(a)(3), Ala.Code 1975. On December 3, 2002, the trial court sentenced him, as a habitual offender, to 45 years in prison. See § 13A-5-9(c)(1), Ala.Code 1975. On December 26, 2002, after the court reporter had filed the trial transcript with the trial court, Young’s appellate counsel filed a motion for a judgment of acquittal or a new trial. After conducting an untimely hearing, the trial court denied the motion on March 17, 2003. This appeal followed.

The victim testified at trial that, while her mother was out taking a walk, Young, her mother’s boyfriend, forced her to engage in intercourse. A subsequent examination by a pediatrician indicated that she had been the victim of “sexual abuse with evidence of vaginal penetration.” (R. 51.)

On appeal, Young argues that his trial counsel rendered ineffective assistance. Young acknowledges that, although he now raises specific claims of ineffective assistance of counsel on appeal, his posttrial motion asserted only a general allegation of ineffective assistance of counsel. However, he contends, he did not have the benefit of the trial transcript when he filed his motion for a new trial and, therefore, this is the first opportunity he has had to present these specific ineffective-assistance-of-counsel claims.

We note that the case action summary indicates that the trial transcript was filed with the trial court on December 6, 2002, and that Young’s posttrial motion was not filed until nearly three weeks later on December 26, 2002. Young states in his brief that, at the untimely hearing on his posttrial motion, the issue of ineffective assistance of counsel “was preserved for appeal in accordance with Alabama Rules of Criminal Procedure 32.2(d).” (Young’s brief, p. 3.) We note that the hearing was held after the posttrial motion had been denied by operation of law. Nonetheless, the record indicates that Young had the opportunity to present his specific contentions in his posttrial motion. Young’s general contention in his posttrial motion was inadequate. Therefore, his claims of ineffective assistance are not properly before this Court.

However, as this Court noted in a footnote'in V.R. v. State, 852 So.2d 194, 201 (Ala.Crim.App.2002) (opinion on application for rehearing):

“We recognize that in Ex parte Jefferson, 749 So.2d 406 (Ala.1999), the Alabama Supreme Court created an exception to the preservation requirement when a defendant asserts a claim alleging ineffective assistance of counsel. The Court held that a general claim of ■ineffective assistance of counsel may be sufficient to preserve for appellate review a more specific claim of ineffective assistance of counsel ‘[wjhere the record on appeal reflects that trial counsel’s performance was so deficient as to fall below an objective standard of reasonableness.’ 749 So.2d at 408. However, in Montgomery v. State, 781 So.2d 1007 (Ala.Crim.App.2000), this Court recognized that the exception carved out by the Alabama Supreme Court in Jefferson would bé applicable in ‘only a minute number of cases’ — those cases where counsel’s error is ‘so blatant and clear on the face of the record that there [is] no room for interpretation.’ 781 So.2d at 1011. We held in Montgomery that we would ‘not stretch to find ineffective assistance of counsel in cases where the claim has not been addressed by the trial court,’ and that if the record on appeal does not reflect on its face that counsel’s performance wás so deficient as to fall below an objective standard of reasonableness, the preservation exception carved out in Jefferson would not apply. Id.”

852 So.2d at 201 n. 2.

Young contends on appeal that trial counsel failed to discover whether another person had ever been charged with sexually abusing the victim in the case at hand; he does not, however, state that another person had ever been charged with sexually abusing the victim. Although Young claims that trial counsel failed to investigate the possibility that another person had previously been charged with sexually abusing the victim, he does not specify any evidence that would have been found from further investigation. Therefore, we cannot determine from the face of the record, or from the allegations in brief, whether trial counsel’s conduct was indeed deficient or whether the outcome of the trial would have been any different if trial counsel had further investigated before trial. See generally Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The same can be said of Young’s second contention of ineffective assistance of trial counsel. Young contends that “trial counsel had not made a minimal investigation by interviewing either in person or by telephone th[e] deputy” who was dispatched to investigate the report that the victim had been raped by Young, but does not specify the information that would have been garnered or how the outcome of the trial would have been different. Therefore, this contention, too, is insufficient, from the face of the record, to show that trial counsel’s conduct was so deficient as to fall below an objective standard of reasonableness.

Young’s third contention of ineffective assistance is that, had trial counsel further investigated before trial, evidence would have surfaced that would have called into question the veracity of the child victim. Young argues that trial counsel “never subpoenaed ... records [from the East Alabama Mental Health Hospital] that may have had probative value as to the veracity of the prosecutrix.” (Young’s brief, p. 15.) Again, an allegation that the records may have contained relevant information, without anything further on the record, is insufficient to show that trial counsel’s conduct in failing to procure the records was so deficient as to fall below an objective standard of reasonableness.

Young also states as an argument that “trial counsel waived the closing statement without even a request to the jury to consider testimony and evidence given during the trial by all witnesses and a further request to find the defendant not guilty of the charges.” (Young’s brief, p. 8.) “Per our decision in Behel v. State, 405 So.2d 51 (Ala.Cr.App.1981), waiver of closing arguments, without more, does not constitute ineffective assistance of counsel.” Twyman v. State, 565 So.2d 1215, 1223 (Ala.Crim.App.1990). Young does not provide further argument, and he does not explain how he was prejudiced by counsel’s waiving closing argument. With a bare allegation in brief and nothing instructive in the record before us, we cannot say that trial counsel’s decision to waive the closing statement constituted conduct so deficient as to fall below an objective standard of reasonableness.

Therefore, Young’s claims of ineffective assistance of counsel were neither properly preserved for appellate review nor clear on the face of the record on appeal.

For the reasons stated above, the judgment of the trial court is affirmed.

ON REHEARING EX MERO MOTU; UNPUBLISHED MEMORANDUM OF JANUARY 23, 2004, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

McMILLAN, PH., and SHAW and WISE, JJ., concur.

BASCHAB, J., concurs in the result.

      . New counsel was appointed to represent Young after his trial counsel moved to withdraw following sentencing.

      . This motion was denied by operation of law on February 24, 2003. None of the evidence presented at the hearing is considered in this opinion.

      . "[S]uch a general allegation of ineffective assistance of trial counsel in a motion for a new trial is generally not sufficient to preserve for review a more specific claim • of ineffectiveness. See, e.g., M.B. v. State, 641 So.2d 330 (Ala.Crim.App.1994).” V.R. v. State, 852 So.2d 194, 201 (Ala.Crim.App.2002) (opinion on application for rehearing) (footnote omitted).

      . We note that there is no transcript of the hearing included in the record before us, as there was in Underwood v. State, 879 So.2d 611 (Ala.Crim.App.2003).

      . The evidence adduced at trial revealed that the deputy did not find the victim’s mother's story to be credible and that he left the house without arresting Young.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ex parte Charles PHILLIPS. (In re State of Alabama v. Charles Phillips).
    CR-03-0348.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2004.
    Charles Thomas Phillips, pro se.
    William H. Pryor, Jr., atty. gen., and Corey L. Maze, asst. atty. gen., for respondent.
   PER CURIAM.

The petitioner, Charles Phillips, filed this petition for a writ of mandamus requesting that we grant him an out-of-time appeal from the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P.

In December 1982, Phillips was convicted of murder and attempted murder. He was sentenced under the Habitual Felony Offender Act (“the HFOA”) to life imprisonment without the possibility of parole. His conviction and sentence were affirmed on direct appeal. See Phillips v. State, 462 So.2d 981 (Ala.Crim.App.1984). In January 2003, Phillips filed a Rule 32 petition in the Jefferson Circuit Court attacking the trial court’s use of the HFOA to enhance his sentence. In February 2003, Judge Michael W. McCormick denied Phillips’s Rule 32 petition. Phillips contacted the clerk of the Jefferson Circuit Clerk Court in July 2003 to determine the status of his Rule 32 petition. In August 2003, Phillips was informed that his Rule 32 petition had been denied in February 2008. In August 2003, Phillips filed a second Rule 32 petition requesting an out-of-time appeal from the denial of his January 2003 petition. That petition was denied and Phillips appealed. This Court dismissed the appeal because the notice of appeal was filed more than 42 days from the date that the petition had been denied. See Rule 4, Ala.R.App.P. In December 2003, Phillips filed this petition for a writ of mandamus requesting an out-of-time appeal from the denial of his January 2003 Rule 32 petition.

Phillips argues that he is entitled to an out-of-time appeal because the circuit clerk failed to notify him when Judge McCormick denied his Rule 32 petition. The State has responded that we should deny this petition even though there is no evidence indicating that Phillips was informed when his petition was denied. It asserts that according to Cogman v. State, 852 So.2d 191 (Ala.Crim.App.2002), an out-of-time appeal is unnecessary because the January 2003 Rule 32 petition was filed after the expiration of the limitations period of Rule 32.2(c), and it failed to raise a jurisdictional claim. See Rule 32.2(c), Ala. R.Crim.P.

In Cogman, this Court stated:

“Cogman’s first Rule 32 petition raised claims of ineffective assistance of counsel. An ineffeetive-assistance-of-counsel claim is not jurisdictional; therefore, it is subject to the two-year limitations period in Rule 32.2(c). See Knight v. State, 727 So.2d 900, 901 (Ala.Crim.App.1999). By Cogman’s own admission, he did not file his first Rule 32 petition until December 11, 1998, one day after the two-year limitations period had expired. Because only nonjurisdic-tional claims for relief were contained in Cogman’s first Rule 32 petition, which was filed more than two years- after the certificate of judgment in his case was issued, those issues were precluded by Rule 32.2(c), Ala.R.Crim.P. Thus, the circuit court should have dismissed the petition as procedurally barred by Rule 32.2(c), Ala.R.Crim.P. Given these circumstances, there is no need to grant Cogman an out-of-time appeal from the denial of his first Rule 32 petition and the claims raised therein.”

852 So.2d at 192-93 (footnote omitted).

Phillips states in his mandamus petition that he alleged in his Rule 32 petition that the HFÓA was illegally applied to enhance his sentence because his prior convictions were not properly certified or authenticated. This assertion does not raise a jurisdictional claim. As this Court stated in Franks v. State, 819 So.2d 106, 107 (Ala.Crim.App.2001):

“Franks asserts that he was incorrectly sentenced as a habitual felony offender because the State did not provide properly certified copies of his prior convictions. However, the failure to object in the trial court to the State’s method of proving prior convictions precludes further consideration of that issue on direct appeal. Nichols v. State, 629 So.2d 51, 57-58 (Ala.Crim.App.1993). Because this issue is waivable on appeal, it does not involve depriving the trial court of its jurisdiction; thus, this issue is not jurisdictional. Nichols, 629 So.2d at 57 (a procedural requirement can be waived by defendant’s failure to object; a jurisdictional matter is not subject to waiver).”

Phillips’s Rule 32 petition was filed approximately 20 years after the limitations period had expired, and it did not raise a jurisdictional claim. Therefore, the circuit court had no jurisdiction to entertain the petition. The limitations period established in Rule 32.2(c), Ala. R.Crim.P., is mandatory and jurisdictional; failure to file a Rule 32 petition within the period deprives a court of the jurisdiction to review a Rule 32 petition. See Williams v. State, 783 So.2d 135 (Ala.Crim.App.2000).

Moreover, the very claim raised in Phillips’s January 2003 Rule 32 petition was addressed in-depth by this Court on direct appeal. See Phillips, 462 So.2d at 985. Thus, this claim would be procedurally barred in a Rule 32 petition proceeding because it was raised and addressed on direct appeal. See Rule 32.2(a)(4), Ala. R.Crim.P.

It is unnecessary to grant Phillips an out-of-time appeal from the denial of a Rule 32 petition that was barred by the limitations period and that raised an issue that was precluded. See Cogman, supra. To do so would be futile and would waste judicial resources.

For the forgoing reasons, this petition is due to be, and is hereby, denied.

PETITION DENIED.

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

      . As best we can determine from a review of our records before this Court computerized its docketing system, the certificate of judgment for Phillips’s direct appeal was issued sometime in 1984.


author: PER CURIAM. SHAW, Judge,

text:
    Kim Demitrius PRICE v. STATE of Alabama.
    CR-02-1499.
    Court of Criminal Appeals of Alabama.
    Feb. 27, 2004.
    Joe E. Herring, Jr., Dothan, for appellant.
    William H. Pryor, Jr., atty. gen., and Kristi L. Deason Hagood, asst. atty. gen., for appellee.
   PER CURIAM.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and BASCHAB and WISE, JJ., concur. SHAW, J., concurs in the result, with opinion, which COBB, J., joins.

SHAW, Judge,

concurring in the result.

I continue to disagree with the harmless-error analysis approved in Part II of the opinion in Pearson v. State, 794 So.2d 448 (Ala.Crim.App.2001). I cannot agree that a defendant suffers no substantial prejudice from an illegal mandatory sentence, even when the sentence imposed does not exceed the statutory maximum. See my special writing in Poole v. State, 846 So.2d 370, 397-98 (Ala.Crim.App.2001). Nevertheless, it does appear to me that the absence of a “complete verdict” in this case is subject to the constitutional harmless-error analysis set out in Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Therefore, based on my examination of the record, and relying on the rationale of Neder and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), I conclude that the trial court’s failure to instruct the jury on the statutory sentence enhancements was harmless beyond a reasonable doubt. Accordingly, I concur in the result only.


author: PER CURIAM. WELLS, J.,

text:
    Stacey ROBINSON, et al., Petitioners, v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Respondent.
    No. SC03-1670.
    Supreme Court of Florida.
    Oct. 28, 2004.
    Richard A. Kupfer, West Palm Beach, FL, for Petitioner.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans and Abel, P.A., Hollywood, FL, for Respondent.
   PER CURIAM.

We have for review Nationwide Mutual Fire Insurance Co. v. Robinson, 851 So.2d 888 (Fla. 4th DCA 2003), which expressly and directly conflicts with this Court’s de-cisión in Mercer v. Raine, 443 So.2d 944 (Fla.1983). We have jurisdiction. See art. Y, § 3(b)(3), Fla. Const. For the reasons set out below, we quash the decision of the Fourth District, and hold that absent extraordinary circumstances, a consideration of sanctions under Mercer does not include an examination of the merits of the claim set out in the pleading or other legal filing ordered stricken by the trial court as a sanction.

This case concerns the propriety of the sanctions imposed by the trial court for discovery violations. The petitioners filed a motion for attorney’s fees pursuant to the demand for judgment statute, section 768.79, Florida Statutes (1997). The respondent filed its opposition to the petitioners’ claim for fees, asserting that the petitioners were not entitled to fees because their demand for judgment was served prematurely. The parties then engaged in discovery on the issue of timeliness of the demand, during which time the trial court concluded that the respondent had committed several discovery violations. The petitioners filed a motion for sanctions. The trial court thereafter sanctioned the respondent for the discovery violations by striking the respondent’s opposition to the petitioners’ claim for attorney’s fees and awarding the petitioners attorney’s fees for the entire litigation. The respondent appealed the trial court’s order imposing sanctions.

On appeal, the Fourth District Court of Appeal addressed the issue of sanctions and appeared to apply the analysis of Mercer v. Raine, 443 So.2d 944 (Fla.1983). Under that analysis the court concluded that the trial court did not abuse its discretion when it imposed sanctions against the respondent for the discovery violations. Robinson, 851 So.2d at 890. However, the Fourth District then proceeded to consider the merits of the respondent’s defense of timeliness of the petitioners’ demand for judgment that was set out in the stricken response. Id. at 890-91. The district court ultimately reversed the trial court’s order imposing sanctions, concluding that because the petitioners’ demand for judgment was untimely, the sanctions were not authorized. Id.

Mercer v. Raine

Under rule 1.380(b)(2) of the Florida Rules of Civil Procedure, upon a party’s failure to comply with a discovery order, the court may impose sanctions that include the striking of pleadings and entering a default, prohibiting the introduction of evidence, and refusing to allow the presentation of a claim or defense. In Mercer, this Court stated that because of the severity of these sanctions, they should be employed only in extreme circumstances where the record demonstrates a party’s deliberate and contumacious disregard of the trial court’s authority, bad faith, or willful disregard to a trial court’s order, or conduct which evinces deliberate callousness. 443 So.2d at 946; see also Hetherington v. Donner, 786 So.2d 9, 11 (Fla. 3d DCA 2001); Harrell v. Mayberry, 754 So.2d 742, 744-45 (Fla. 2d DCA 2000); Amlan, Inc. v. Detroit Diesel Corp., 651 So.2d 701, 703 (Fla. 4th DCA 1995).

In this case, the issue presented to the Fourth District was the propriety of the sanctions imposed against the respondent for discovery violations committed while litigating the issue of timeliness of the petitioners’ demand for judgment. However, the district court did not limit itself to a consideration of the standard set forth in Mercer to determine the propriety of the sanctions imposed. Rather, the district court addressed the merits of the respondent’s response that the petitioners’ claim for attorney’s fees was untimely even though that response had been stricken by the trial court. The analysis under Mercer would not ordinarily include a consideration of the merits of an issue raised in a filing once there has been a determination that the trial court did not abuse its discretion in imposing the sanction of striking the filing. Hence, we conclude that the district court erred in considering the merits of the respondent’s position after concluding that there was no error in striking the filing that raised the issue of timeliness.

We would ordinarily simply quash the district court decision for going beyond the Mercer factors and direct a result in accord with Mercer. However, because we are unsure of whether the district court properly considered the Mercer factors in light of its discussion of the merits of the stricken filing, we remand to give the district court another opportunity to consider this issue.

Accordingly, for the reasons stated above, we quash the Fourth District’s decision below and remand this case for further proceedings consistent with this opinion.

It is so ordered.

PARIENTE, C.J., and ANSTEAD, LEWIS, and QUINCE, JJ., concur.

WELLS, J., dissents with an opinion, in which CANTERO and BELL, JJ., concur.

WELLS, J.,

dissenting.

I dissent because there is no conflict between the Fourth District’s opinion in the present case and this Court’s decision in Mercer v. Raine, 443 So.2d 944 (Fla.1983).

In Mercer, this Court approved the trial court’s authority pursuant to Florida Rule of Civil Procedure 1.380 to sanction parties for the failure to comply with discovery orders, including the sanction of the striking of pleadings or the entry of a default judgment for noncompliance, and held that the standard of appellate review as to imposed sanctions would be the abuse of discretion.

In the present case, the Fourth District expressly acknowledged this Court’s decision in Mercer, the authority of the trial court, and the standard of review. The Fourth District found that the trial court was within its discretion in sanctioning Nationwide.

However, the Fourth District went further and decided an issue which was not decided by this Court in Mercer. The Fourth District held:

While Florida Rule of Civil Procedure 1.380 permits the striking of “pleadings” as a discovery sanction in certain instances, it does not allow a defense to be stricken so as to validate and breathe new life into a void claim.

851 So.2d at 890. That holding is plainly not in conflict with Mercer since Mercer did not decide that issue.

CANTERO and BELL, JJ., concur'.


text:
    David W. BECKER, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D02-829.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2002.
    Rehearing Denied Dec. 8, 2004.
    Appellant David Becker, pro se, Cler-mont.
    Robert A. Butterworth, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Banks v. State, 801 So.2d 153 (Fla. 1st DCA 2001), petition for rev. pending, case no. SC01-2733.

KAHN, WEBSTER, and DAVIS, JJ„ concur.


author: GREEN, J.

text:
    The STATE of Florida, Appellant, v. Eddie SIMMONS, Appellee.
    Nos. 3D02-3120, 3D03-376.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.

      Charles J. Crist, Jr., Attorney General and Barbara A. Zappi, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Roy A. Heimlich, Assistant Public Defender, for appellee.
    Before GODERICH, GREEN, and FLETCHER, JJ.
   GREEN, J.

This is a consolidated appeal from the dismissal of two separate informations filed against Eddie Simmons alleging violations of the drug laws due to the state’s inability to produce the identity of a confidential informant/tipster. The state argues that the trial court erred in compelling the disclosure of the identity of the confidential informant/tipster and in subsequently dismissing the two informations for the state’s inability to do so. We agree and reverse for the reinstatement of the charges.

In case number 02-9992, Eddie Simmons was charged with the sale, manufacture, delivery and/or possession of cocaine in an encounter with undercover detective A. Pacheco on April 4, 2002 in violation of section 893.13(l)(a)l., Florida Statutes (2001). In case number 02-9991, Simmons was charged with possession with intent to sell, manufacture or deliver cocaine on April 5, 2002 and unlawful possession of a firearm by a convicted felon in violation of sections 790.23(l)(a) and 775.087, Florida Statutes (2001), respectively.

Simmons’ proposed defense to case number 02-9992 was that of misidentification, i.e., that he was not the person who sold cocaine to Detective Pacheco on April 4, 2002. His proposed defense to case number 02-9991 was that he had gone to a party on April 4, 2002 and spent the night at the home where the drugs and firearm had been found, but that he had no ownership or possessory interest in either the home or the drugs and firearm found the next day.

The defense filed a sworn motion to disclose the identity of the confidential informant for both cases. As for case number 02-9992, Simmons averred, among other things, that the confidential informant/tipster witnessed the sale of the cocaine to Detective Pacheco on April 4. In case number 02-9991, he averred only that “[P]roof that a person other than the Defendant sold cocaine on April 4, would buttress the Defendant’s assertion that he was present in the home on April 5 merely as an overnight guest and that he had no dominion or control over the siezed [sic] items.”

The state filed a memorandum of law in opposition to both motions asserting that Simmons sold cocaine to Detective Pacheco on the porch of a residence on April 4, 2002. The state acknowledged that the informant/tipster was used to gain access to the porch and front door of the residence and was present at the time of this transaction. The state further asserted that on the following day or April 5, 2002, the police executed a search warrant at the same residence and recovered additional cocaine as well as a firearm. Simmons was recorded as spontaneously stating that he owned and had control of the firearm. The state averred that it did not know the identity or the current whereabouts of the confidential source.

At the hearing on the motion, the defense maintained that dismissal of the in-formations was warranted because the confidential informant was an important witness and the state should have at least recorded his name and whereabouts for later use. The state countered that dismissal was not appropriate because the confidential informant was merely a witness used to lure Simmons out on the porch and that it was the officer, not the informant, who actually participated in the purchase of the cocaine.

The trial court found the confidential informant to be critical to Simmons’ defense of misidentification in case number 02-9992 and granted the motion to disclose confidential informant. Since the police had failed to obtain any information as to the informant’s identity or location, the trial court thereafter dismissed the charge. As to case number 02-9991, the lower court initially found the state’s failure to produce the identity and location of the informant to have no bearing on the defense of this charge and denied the defense’s motion to dismiss. Once the state filed its notice of appeal of the trial court’s dismissal of case number 02-9992, however, the trial court reversed itself and dismissed case number 02-9991 for the sole purpose of having this court simultaneously review and dispose of the issue raised in both cases.

Florida law is settled that the state has a limited privilege to withhold the identity of its confidential informants. See State v. Hassberger, 350 So.2d 1, 2 (Fla.1977); State v. Diaz, 678 So.2d 1341, 1344 (Fla. 3d DCA 1996); State v. Zamo ra, 534 So.2d 864, 867 (Fla. 3d DCA 1988); Spataro v. State, 179 So.2d 873, 878 (Fla. 2d DCA 1965); State v. Hardy, 114 So.2d 344, 346 (Fla. 1st DCA 1959). This privilege, however, must yield “[w]here the disclosure of an informer’s identity, or the contents of his communication, [1] is relevant and helpful to the defense of an accused, or [2] is essential to a fair determination of a cause.” Diaz, 678 So.2d at 1344 (quoting Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)). The burden is on the defendant seeking the disclosure of the confidential informant to establish why either or both of these exceptions should be invoked. Diaz, 678 So.2d at 1344. Simmons claims that both exceptions are applicable here.

Florida courts, however, “have consistently denied disclosure under this second ... exception where the sole showing for said disclosure was that the informant, as here, was merely present during the illegal drug transaction with which the defendant was charged, and accordingly was a witness thereto ... or acted as a mere tipster, furnishing the police with information which provided a lead in the investigation of the ease.... ” Zamora, 534 So.2d at 870 (citations omitted). Because the defendant was not charged with selling or delivering drugs to the confidential informant, the court concluded that disclosure was not required.

Similarly, both Florida and federal courts have also denied disclosure under a Roviaro exception where the sole showing for disclosure was that the informant merely furnished the police with the probable cause basis for a search or arrest of the defendant, but did not execute a search warrant affidavit against the defendant. Id. Again, courts have concluded that disclosure is not needed to ensure the defendant’s due process right to confront his accusers. Id.

The undisputed record evidence in this case reveals that the police utilized the informant solely to lure the appellee onto the front porch for a direct drug transaction with Detective Pacheco. Here, the informant witnessed rather than participated in the actual drug sale on the porch.

The mere presence of an informant to relevant events in a criminal case does not, without more, require the automatic disclosure of the confidential informant. See Miller v. State, 729 So.2d 417, 420 (Fla. 4th DCA 1999); Zamora, 534 So.2d at 871; State v. Carnegie, 472 So.2d 1329, 1330 (Fla. 2d DCA 1985). Rather, we have stated that it must also be shown that the defendant has a possible viable defense in the case, supported by sworn proof, of which the informant might be a material witness. Zamora, 534 So.2d at 871. We find the appellee’s self-serving general speculation or supposition that the informant could or would testify favorably on his behalf in case number 02-9992, without more, to be insufficient to carry this burden. State v. Carnegie, 472 So.2d 1329, 1330 (Fla. 2d DCA 1985) (finding that “conjectural quality” of defendant’s stated reasons in motion and at hearing to compel disclosure of identity of informant to be insufficient to sustain order compelling disclosure). The state correctly points out that the appellee will not be prejudiced at trial since the state will not be calling the informant as a witness and because the appellee will have ample opportunity to confront and cross examine his accuser (i.e., Detective Pacheco). We therefore conclude that the trial court’s order compelling the disclosure of the informant and dismissing this charge was error.

In so holding, we are not unmindful of the Second District’s contrary holding based upon similar facts in McCray v. State, 730 So.2d 817 (Fla. 2d DCA 1999). In that case, the Second District reversed an order denying disclosure of a confidential informant and remanded for an in-camera inspection by the trial court. Id. at 818. The defendant in that case, as in this case, was charged with selling cocaine to an undercover officer and filed a sworn pretrial motion to compel the disclosure of the informant who was present at the time. Id. at 817. The motion averred “that the confidential informant apparently knew the defendant, that the confidential informant was present when the crime transpired, that the undercover officer misidentified the defendant as the perpetrator of the crime, that the confidential informant’s testimony was essential to the defense of misidentification, and that the defendant was not involved in the sale of cocaine as charged.” Id. Citing its earlier decision in State v. Roberts, 686 So.2d 722 (Fla. 2d DCA 1997), the court found these sworn averments to be sufficient to warrant an in-camera hearing for the trial court to determine whether the confidential informant’s testimony tended to exculpate the defendant on the misidentification issue or varied materially from the testimony of the police officer who identified the defendant at trial. McCray, 730 So.2d at 818.

With due respect to our sister court, we disagree that the identity of an informant who is a mere witness to, but a nonparticipant in a criminal episode must be disclosed for purposes of the Roviaro exceptions merely because the defense raises a misidentification defense. Were that the case, the police would necessarily also be obligated to ascertain the identities of all passersby or observers who happen onto the scene of criminal activity or run the risk of the dismissal of the state’s charges. We, therefore, certify conflict with McCray in this regard.

Indeed, as to case number 02-9991, wherein the appellee was charged with possession with the intent to sell, manufacture or deliver cocaine and unlawful possession of a firearm by a convicted felon on the day following the alleged sale to Detective Pacheco pursuant to a search of the residence, it was error to compel the disclosure of informant’s identity where the informant did not execute the search warrant affidavit against the appellee, was not present, and otherwise had no involvement in the search of the residence. See Zamora, 534 So.2d at 870; Baker v. State, 150 So.2d 729, 730 (Fla. 3d DCA 1963). Moreover, the misidentification raised by the appellee in his motion would not be a defense to the possession of the contraband and firearm discovered at a different time in a different place. See State v. Devoid, 706 So.2d 924, 925 (Fla. 2d DCA 1998).

For all of the foregoing reasons, we reverse the orders under review and remand for proceedings consistent with this opinion.

Reversed and remanded; conflict certified.

      . The statute provides, in pertinent part:
      (1)(a) Except as authorized by this chapter and chapter 499, it is unlawful for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. Any person who violates this provision with respect to: 1. A controlled substance named or described in s. 893.03(l)(a), (l)(b), (l)(d), (2)(a), (2)(b), or (2)(c)4., commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
      § 893.13, Fla. Stat. (2001).

      . The statute provides, in pertinent part:
      (1) It is unlawful for any person to own or to have in his or her care, custody, possession, or control any firearm or electric weapon or device, or to carry a concealed weapon, including a tear gas gun or chemical weapon or device, if that person has been:
      (a) Convicted of a felony in the courts of this state....
      § 790.23, Fla. Stat. (2001).

      .The statute provides, in pertinent part:
      (2)(a) 1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:

      q .... trafficking in cocaine ... or r. Possession of a firearm by a felon and during the commission of the offense, such person actually possessed a "firearm” or "destructive device” as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years....
      , § 775.087, Fla. Stat. (2001).


text:
    Gerald NILES, Petitioner, v. Michael McCRAE, Respondent.
    No. 1D04-0877.
    District Court of Appeal of Florida, First District.
    April 6, 2004.
    Rehearing Denied May 13, 2004.

      Gerald Niles, pro se, petitioner.
    No appearance for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied as procedurally barred. See Denhart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

BARFIELD, BROWNING and LEWIS, JJ., concur.


author: SHEVIN, Judge. SCHWARTZ, Chief Judge PER CURIAM.

text:
    Girardo Baca FLORES, Appellant, v. ROOF TILE ADMINISTRATION, INC., Appellee.
    No. 3D03-2345.
    District Court of Appeal of Florida, Third District.
    June 9, 2004.
    Opinion on Rehearing/Rehearing En Banc Denied Dec. 22, 2004.
    J.H. Zidell, for appellant.
    Fisher & Phillips and Jim C. Polking-horn and Kristen L. Sampo and David A. Buehsbaum, Fort Lauderdale, for appellee.
    Before SCHWARTZ, C.J., COPE and SHEVIN, JJ.
   SHEVIN, Judge.

Girardo Baca Flores appeals a final summary judgment in his retaliatory discharge case. We affirm in part and reverse in part.

We reverse the summary judgment on the retaliatory discharge claim because the record demonstrates that there are genuine issues of material fact as to whether the employer’s Operations Manager, Frank Garces, knew that Flores had been injured on the job just days before and that Flores was fired as a result of that fact. The company policies permitted workers to communicate with upper management through the crew leader, Marco Duque, who was in daily radio contact with Garces. The record also demonstrates a dispute as to whether Duque was told of the injury, and his reaction to the news. Hence, defendant has not established the non-existence of genuine issues of material fact and summary judgment was improper. Moore v. Morris, 475 So.2d 666 (Fla.1985). Moreover, the final summary judgment demonstrates that in deciding the summary judgment motion, the trial court made impermissible witness credibility determinations. This is not permitted in deciding such a motion. Novoa v. Ameri-Source Corp., 860 So.2d 506 (Fla. 3d DCA 2003); Hernandez v. United Auto. Ins. Co., 730 So.2d 344 (Fla. 3d DCA 1999), and cases cited therein.

Additionally, the claim for lost wages should not have been stricken. Disputed issues remain regarding the availability of a light duty position in which Flores could have been placed.

We reverse the order striking plaintiffs demand for jury trial. In an action for damages for retaliatory discharge under the worker’s compensation statute, there is a right to jury trial. See Granfmanciera, S.A. v. Nordberg, 492 U.S. 33, 41-42, 109 S.Ct. 2782, 106 L.Ed.2d 26 (1989); see also Scott v. Otis Elevator Co., 572 So.2d 902 (Fla.1990); Martinolich v. Golden Leaf Mgmt., Inc., 786 So.2d 613 (Fla. 3d DCA 2001), review denied, 814 So.2d 439 (Fla.2002); Silvers v. Timothy J. O’Donnell Corp., 751 So.2d 747 (Fla. 5th DCA 2000).

We affirm the order striking Flores’ claim for attorney’s fees. We agree with the Fourth District that chapter 440 does not provide for attorney’s fees to be awarded against an employer in an action for retaliatory discharge. See Nicholson v. Ross Products, Inc., 506 So.2d 487 (Fla. 4th DCA 1987); § 440.34, Fla. Stat. (1997).

Affirmed in part, reversed in part.

COPE, J., concurs.

SCHWARTZ, Chief Judge

(dissenting).

I would affirm because the record establishes beyond question that Flores was not discharged “by reason of [a] valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law,” as required by section 440.205, Florida Statutes (2003). See Villavicencio v. Siemens Power Transmission & Distribution, Inc., 867 So.2d 628 (Fla. 3d DCA 2004). There was no evidence whatever that any comp, claim was ever made or even contemplated, much less that one had anything at all to do with Flores’s otherwise well-deserved firing.

On Rehearing Denied

PER CURIAM.

The applicable statute provides:

440.205. Coercion of employees
No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

§ 440.205, Fla. Stat. (1997).

Plaintiff in this case was injured on a Friday and did not come to work thereafter. He was fired the following Wednesday. The employer had given the plaintiff two written reprimands within the preceding three months for excessive absenteeism and failing to call a supervisor when he was going to be absent. The employer argues that Mr. Garces, the employer’s operations manager, fired the plaintiff for failing to call in, as required. Further, the plaintiff admitted that he did not call in, and has not offered any excuse for failing to do so. The employer maintains that this is a valid, nonretaliatory reason for firing the plaintiff.

On motion for summary judgment, however, we are obliged to read the record in the light most favorable to the plaintiff as the nonmoving party. Moore v. Morris, 475 So.2d at 668. The testimony of Jesus Baca, the plaintiffs coworker and cousin, creates a disputed issue of material fact. Baca testified that their roofing crew leader, Marco Duque, had gotten into trouble and almost been fired because the plaintiff had been injured. Deposition of Jesus Baca, Feb. 6, 2003, at 70-72. Baca testified that he had relayed a message from the plaintiff to the crew chief that the plaintiff needed to see a doctor and wanted the company to pay for it. Id. at 118. Baca also testified that, according to the crew leader, the plaintiff had been fired because he wanted to submit a worker’s compensation claim. Id. at 73. Thus, there are disputed issues of material fact which preclude summary judgment.

Rehearing denied.

COPE and SHEVIN, JJ., concur.

SCHWARTZ, C.J., dissents.


author: PER CURIAM. PER CURIAM.

text:
    Paul H. CLEVELAND, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2067.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.
    Opinion Denying Rehearing Dec. 3, 2004.

      James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Paul H. Cleveland appeals his conviction for aggravated battery. We reverse and remand for a new trial because the trial court committed fundamental error when it negated Cleveland’s self-defense claim by instructing the jury that the use of force was not justified if he was committing or attempting to commit aggravated battery.

At trial, the trial court instructed the jury on Cleveland’s self-defense claim. However, the trial court also gave an instruction on the forcible felony exception to self-defense. The forcible felony instruction was based on section 776.041(1), Florida Statutes (2002), which is applicable only in circumstances where the person claiming self-defense is engaged in another independent forcible felony at the time. Giles v. State, 831 So.2d 1268 (Fla. 4th DCA 2002); see also Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004);. Barnes v. State, 868 So.2d 606 (Fla. 1st DCA 2004). More specifically, the forcible felony instruction is given in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense as well as a separate forcible felony. In the instant case, the trial court’s instruction on the forcible felony exception to self-defense was erroneous because Cleveland was charged with only one forcible felony, the alleged aggravated battery. Giles, 831 So.2d at 1265. Giving a section 776.041(1) instruction where the only charge against Cleveland was the alleged aggravated battery, an act he claimed was done in self-defense, would improperly negate the self-defense' claim. Id. at 1266.

Although Cleveland did not make an objection at trial to the section 776.041(1) instruction, the giving of the instruction to the jury constitutes fundamental error. E.g., Zuniga, 869 So.2d at 1239; Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003).

REVERSED and REMANDED.

PETERSON, GRIFFIN and PALMER, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The State of Florida moves for rehearing after this court reversed Paul Henry Cleveland’s judgment and sentence and remanded for a new trial, finding that the original trial was flawed by fundamental error when the court negated Cleveland’s self-defense claim by instructing the jury on the forcible felony exception to self-defense.

The State’s motion for rehearing asserts for the first time that because a claim of self-defense acts as an affirmative defense, and not an element of the crime charged, the trial court’s instruction was not fundamentally erroneous and Cleveland was required to enter an objection to preserve the issue for review. The motion also cites several cases that had not been cited earlier and directs our attention to its notice of similar issue and notice of supplemental authority filed at the last possible moment before our earlier decision was released, and approximately three months after Cleveland filed his reply brief.

Florida Rule of Appellate Procedure 9.225 provides:

Notices of supplemental authority may be filed with the court before a decision has been rendered to call attention to decisions, rules, statutes, or other authorities that are significant to the issues raised and that have been discovered after the last brief served in the cause. The notice may identify briefly the points argued on appeal to which the supplemental authorities are pertinent, but shall not contain argument. ...

(emphasis added). The State did not comply with rule 9.225 because its notice of supplemental authority contained new argument not previously addressed in its answer brief and this new argument relied on a supreme court case that had been decided four years prior to the State’s filing of its answer brief. It appears to us that the State through its “supplemental authorities” is attempting to file an additional brief. See, e.g., Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377 (Fla. 1st DCA 1997) (recognizing that Florida Rule of Appellate Procedure 9.225 is intended to permit a litigant to bring to the court’s attention cases of real significance to the issues raised which were not cited in the briefs, either because they were not decided until after the briefs had been filed; or because, through inadvertence, they were not discovered earlier; it is not intended to permit a litigant to submit what amounts to an additional brief, under the guise of “supplemental authorities”).

Similarly, Florida Rule of Appellate Procedure 9.330 regarding motions for rehearing, clarification or certification provides:

A motion for rehearing, clarification, or certification may be filed within 15 days of an order or within such other time set by the court. A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding. ...

(emphasis added). Motions for rehearing are strictly limited to calling an appellate court’s attention — without argument — to something the appellate court has overlooked or misapprehended. “The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy.” Goter v. Brown, 682 So.2d 155 (Fla. 4th DCA 1996), rev. denied, 690 So.2d 1299 (Fla.1997). No new ground or position may be assumed in a petition for rehearing. Corporate Group Service, Inc. v. Lymberis, 146 So.2d 745 (Fla.1962); see also Ayer v. Bush, 775 So.2d 368 (Fla. 4th DCA 2000) (recognizing that it is a rather fundamental principal of appellate practice and procedure that matters not argued in the briefs may not be raised for the first time on a motion for rehearing); Sarmiento v. State, 371 So.2d 1047 (Fla. 3d DCA 1979) (same). Here, the State impermissi-bly attempts to raise a new argument in its notice of supplemental authority and petition for rehearing. This court need not entertain new argument or consider additional authority cited in support thereof. See, e.g., Cartee v. Fla. Dep’t of Health & Rehabilitative Svcs., 354 So.2d 81 (Fla. 1st DCA 1977). In summary, we decline the State’s belated invitation to consider the new argument and make no decision on its merits.

MOTION FOR REHEARING DENIED.

PETERSON, GRIFFIN and PALMER, JJ., concur.

        . § 784.041, Fla. Stat. (2002).


author: PER CURIAM. GROSS, J.,

text:
    Damian HUDSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D03-3255, 4D03-3296, 4D03-3343.
    District Court of Appeal of Florida, Fourth District.
    Aug. 4, 2004.
    Rehearing Denied Dec. 10, 2004.
    Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this consolidated case, Damian Hudson appeals his conviction of lewd and lascivious molestation after a jury trial. He also appeals the trial court’s revocation of his probation based upon the lewd and lascivious charge.

We reverse the convictions. This court has recently held in West v. State, 876 So.2d 614 (Fla. 4th DCA 2004), and Roberts v. State, 874 So.2d 1225 (Fla. 4th DCA 2004), that Miranda warnings given by the Broward County Sheriffs Office were constitutionally deficient. The same Miranda warnings given in this case, likewise, violate Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The admission of Hudson’s statements was not harmless error.

REVERSED AND REMANDED.

GUNTHER and POLEN, JJ., concur.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

But for State v. Scarlet, 800 So.2d 220 (Fla.2001), I would affirm the trial court’s revocation of appellant’s probation.

Generally, in a probation violation hearing, a court may consider evidence that would be inadmissible in a trial of an accused for a crime. See State ex rel. Ard v. Shelby, 97 So.2d 631, 633 (Fla. 1st DCA 1957). Florida courts have held that “the failure of a 'probation officer to advise [a probationer] of his Miranda rights prior to his admission of a violation of his probation” does not render the admission inadmissible at a probation revocation hearing. Evans v. State, 356 So.2d 1355, 1356 (Fla. 1st DCA 1978) (emphasis added); see also Cleveland v. State, 557 So.2d 959, 960 (Fla. 4th DCA 1990) (holding that un-Miran-dized statements to a probation and restitution center counselor were admissible in a probation revocation proceeding).

I agree with the reasoning of those cases holding that evidence obtained in violation of Miranda warnings may be admissible in probation violation hearings. Commonwealth v. Vincente, 405 Mass. 278, 540 N.E.2d 669, 670-71 (1989); Byrd v. People, 58 P.3d 50, 56-57 (Colo.2002); State v. Mason, 56 Or.App. 164, 641 P.2d 1139, 1141 (1982); see also Scarlet, 800 So.2d at 222 (Wells, C.J., dissenting); Phillip E. Hassman, Annotation, Admissibility, in State Probation Revocation Proceedings, of Incriminating Statement Obtained in Violation of Miranda Rule, 77 A.L.R.3d 669 (1977).

However, Scarlet holds that the exclusionary rule is applicable in violation of probation hearings to evidence seized in violation of the Fourth Amendment. 800 So.2d at 222. This holding is contrary to that of many courts which have held that the exclusionary rule should not apply to probation revocation hearings. See, e.g., United States v. Bazzano, 712 F.2d 826, 830 (3d Cir.1983). As the Massachusetts Supreme Court has written:

In Federal law and in most jurisdictions, the exclusionary rule does not apply as a matter of course to probation revocation proceedings because the “application of the exclusionary rule is restricted to those areas where its remedial objectives are thought most efficaciously served.” The Supreme Court’s dictum in Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963), to the effect that such evidence “shall not be used at all,” clearly does not apply to every kind of forum and proceeding under Federal law nor under the law of most States.

Commonwealth v. Olsen, 405 Mass. 491, 541 N.E.2d 1003, 1004 (1989) (additional citations omitted).

Given Scarlet’s application of the exclusionary rule to evidence seized in violation of the Fourth Amendment, I do not see how a different outcome could be reached if evidence is seized in violation of Miranda.

      . In addition to United States v. Bazzano, 712 F.2d 826 (3d Cir.1983), the Massachusetts Supreme Court cites to cases that do not apply the exclusionary rule in probation revocation proceedings. See United States v. Winsett, 518 F.2d 51, 53-54 (9th Cir.1975); People v. Rafter, 41 Cal.App.3d 557, 116 Cal.Rptr. 281 (1974); Payne v. Robinson, 207 Conn. 565, 541 A.2d 504 (1988), abrogated on other grounds by Johnson v. Comm'r of Corr., 218 Conn. 403, 589 A.2d 1214 (1991); People v. Dowery, 62 Ill.2d 200, 340 N.E.2d 529 (1975); Dulin v. State, 169 Ind.App. 211, 346 N.E.2d 746 (1976); State v. Caron, 334 A.2d 495 (Me.1975); Chase v. State, 309 Md. 224, 522 A.2d 1348 (1987); State v. Thorsness, 165 Mont. 321, 528 P.2d 692 (1974).


text:
    Ricardo THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-75.
    District Court of Appeal of Florida, Fifth District.
    Aug. 10, 2004.
    Rehearing Denied Sept. 20, 2004.
    Ricardo Thompson, Sanderson, pro se.
    Charles J. Crist, Jr. Attorney General, Tallahassee, and LaMya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Lambrix v. State, 698 So.2d 247, 248 (Fla.1996).

PETERSON, GRIFFIN and PALMER, JJ., concur.


text:
    Jeffrey D. MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2917.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2004.
    Jeffrey D. Miller, Raiford, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Wright v. State, 780 So.2d 216 (Fla. 5th DCA), review denied, 796 So.2d 539 (Fla.2001).

PETERSON, ORFINGER and MONACO, JJ., concur.


text:
    Sashtri A. HARNANAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-2815.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2004.
    Sashtria Harnanan, Malone, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Anderson v. State, 874 So.2d 1195 (Fla. 5th DCA 2004).

SHARP, W„ GRIFFIN and MONACO, JJ., concur.


text:
    Dewayne TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-489.
    District Court of Appeal of Florida, Fifth District.
    Sept. 21, 2004.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., THOMPSON and PLEUS, JJ., concur.


author: LEVY, Judge. SCHWARTZ, Chief Judge

text:
    AON RISK SERVICES, INC., et al., Appellants, v. QUINTEC, S.A., etc., Appellees.
    Nos. 3D02-2123, 3D03-97.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.

      Butler Burnett Pappas Weihmuller Katz Craig and Scott J. Frank, Miami; Winston & Strawn and Lawrence R. Desideri and Raymond W. Mitchell, for appellants.
    Covington & Burling and Roy M. Bartlett; Jeffrey B. Crockett, Miami and Jor-den Burt; Holland & Knight and Daniel S. Pearson and llene L. Pabian Lenore C. Smith, Miami, for appellee.
    Before SCHWARTZ, CJ., LEVY and GODERICH JJ.
   LEVY, Judge.

AON Risk Services, Inc., et. al, (collectively AON) appeal from a trial court Order entering Final Summary Judgment on Quintec, S.A.’s (“Quintec”) statutory and breach of contract claims. Quintec cross-appeals from the parts of the judgment that deny recovery on Quintec’s negligence claim and limit Quintec’s prejudgment interest. We reverse.

This case involves a commercial dispute between an exporting company, Quintec, and a trade credit insurance broker, AON. Quintec, until late 1997, owned Computek Enterprises USA, Inc. (“Computek”), which sold personal computers and related products for export to Latin America. In 1996, Computek decided to obtain trade credit insurance for protection against customer defaults. Computek retained AON as its credit insurance broker, and AON placed Computek with Trade Indemnity PLC, a London-based insurer, who, as it turns out, was not authorized to offer, sell, or place insurance,in Florida.

In late 1997, some of Computek’s customers became delinquent in their-Compu-tek accounts; and in early 1998, Computek submitted claims to AON under the Trade Indemnity policy for its unpaid losses for Byte On, Alvimer, and United Information Systems. AON reviewed the claims and sent them to Trade Indemnity , for processing. Trade Indemnity subsequently denied the claims, citing Computek’s failure to strictly comply with the terms of. the insurance contract.

Quintec filed a three-count Complaint against AON pursuant to Florida’s Unauthorized Insurer Act, section 626.901, Florida Statutes, which prohibits assisting an unauthorized insurer from doing business in Florida (Count I); for- broker negligence and .malfeasance in representing that Trade Indemnity was authorized to do business in Florida, failing to select an insurer that could do business in Florida, and negligently preparing and submitting Computek’s claims under the policy (Count II); and for breach of contract (Count III).

Quintec moved for Summary Judgment on the statutory claim, arguing that because Trade Indemnity was not authorized to do business in Florida, and because AON acted as Computek’s broker in the unauthorized insurance transaction, AON was liable for Computek’s losses without regard to technical coverage defenses. The trial court granted Summary Judgment and entered final judgment in the amount of $2,932,105.00. The parties subsequently moved for Final Summary Judgment on the negligence claim (Count II) and the breach of contract claim (Count III). The trial court granted Summary Judgment in favor of Quintec on the breach of contract claim (Count III), and entered Final Summary Judgment in favor of AON on the negligence theory (Count II), citing the economic loss rule. AON appeals from the Order granting Summary Judgment in favor of Quintec on the statutory and breach of contract claims. Quin-tec cross-appeals from the parts of the Order which deny Quintec’s recovery on its negligence claim based on the application of the economic loss rule, and which calculate prejudgment interest from July 31, 2000, instead of from February of 1998.

We reverse the damages portion of the Final Summary Judgment; We find that the portion of the Order finding AON liable to Quintec on the statutory claim is correct but remand with directions that the trial court review Computek’s claims against the policy of insurance and award damages, if any, accordingly.

The trial court in the instant ease essentially interpreted the statute for two purposes. First, to determine its application; and secondly, to figure damages. With respect to the statute’s application, the trial court found that if an insurer is unauthorized to do business in Florida, anyone assisting in procuring the insurance, including the broker, in the instant case AON, comes within the reach of the statute. With respect to damages, the trial court found that subsection (2) makes the broker “liable to the insured for the full amount of the claim or loss not paid,” and, accordingly, found the broker, in this case AON, was liable to the insurer for all claimed damages, without any regard to the policy terms and coverages.

With respect to whether the statute applies to AON, Section 626.901(1), Florida Statutes, specifically provides that

No person shall, from offices or by personnel or facilities located in this state, or in any other state or country, directly or indirectly act as agent for, or otherwise represent or aid on behalf of another, any insurer not then authorized to transact such insurance in this state in: [among other things,] (a) [t]he solicitation, negotiation, procurement, or effec-tuation of insurance ...; (b)[t]he dissemination of information as to coverage or rates; (c) [t]he forwarding of applications; (d) [t]he delivery of policies or contracts; (e) [t]he inspection of risks; ... (h) [t]he collection or forwarding of premiums[.] ...

§ 626.901(1), Fla. Stat. (2002). In the instant case, it is undisputed that AON undertook to find trade credit insurance for Computek, which was owned by Quintec at the time; it is undisputed that AON placed Computek with Trade Indemnity; it is undisputed that AON collected premiums and accepted Computek’s claim forms and forwarded them to Trade Indemnity. Additionally, it is undisputed that Trade Indemnity is not authorized to write business in Florida. Thus, section 626.901 clearly governs the instant matter, and AON is liable to Quintec.

With respect to the damages portion of the statute, subsections (2) and (3), provide:

(2) If an unauthorized insurer fails to pay in full or in part any claim or loss within the provisions of any insurance contract which is entered into in violation of this section, any person who knew or reasonably should have known that such contract was entered into in violation of this section and who solicited, negotiated, took application for, or effectuated such insurance contract is liable to the insured for the full amount of the claim or loss not paid.
(3) No insurance contract entered into in violation of this section shall be deemed to have been rendered invalid thereby.

§ 626.901, Fla. Stat. (2002) (emphasis added).

Quintec argued, and the court agreed, that subsection (2) provides for the payment of the insured’s “full amount of the claim or loss,” without consideration or review of the policy and/or the insurer’s reasons for denial of the claim. AON, on the other hand, argues that subsection (2) places liability upon the broker/agent only for claims or losses for which the insurer would have been responsible to pay. In sum, AON argues that to confer liability upon the broker/agent, the trial court must look at the insured’s claims and determine which, if any of them, would have been covered under the policy. We agree with AON.

The plain meaning of the statutory language is the first consideration when construing a statute. This rule requires a straightfoward consideration of each relevant sentence of the statute. Hechtman v. Nations Title Ins. of New York, 840 So.2d 993, 996 (Fla.2003); Hawkins v. Ford Motor Co., 748 So.2d 993, 1000 (Fla.1999); Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 328-29 (Fla. 1st DCA 2002). The “plain and ordinary meaning” of the phrase, “the full amount of the claim or loss not paid,” read together with the first sentence of the statute, which specifically refers to coverage under the provisions of the insurance contract — “If an unauthorized insurer fails to pay in full or in part any claim or loss within the provisions of any insurance contract” — the only fair reading of the statute is that the broker/agent’s liability is limited to coverage “within the provisions of the insurance contract.” § 626.901(2), Fla. Stat. (2002).

Moreover, the inclusion of subsection (3) suggests that the insurance contract is still the starting point for determining the broker/agent’s liability under subsection (2). Specifically, subsection (3) provides: “No insurance contract entered into in violation of this section shall be deemed to have been rendered invalid thereby.” The only purpose this subsection could have is to set the measure of damages under section 626.901, i.e.,.to a review of the policy in relation to the insured’s claim.

Giving the statute’s language its clear and ordinary meaning, it is clear that section 626.901, Florida Statutes, requires consideration of the claim or loss against the policy. Accordingly, the Order granting Summary Judgment -is • reversed. With respect to the statutory claim, however, we find that the trial court properly found that AON is liable to Quintec under Florida’s Unauthorized Insurer Act, Section 626.901, Florida Statutes, but reverse on the ground that the court must determine whether Computek’s claims were covered under the policy of insurance.

In case number 3D03-97, AON appeals from the trial court’s Order awarding fees and costs to Quintec. In light of our holding in case number 3D02-2123, remanding the matter for consideration of which claims, if any, would have been covered. under the policy, we reverse the fees Order without prejudice to renew the motion after the trial court rules on the remanded issue.

Reversed and remanded.

GODERICH, J., concurs.

SCHWARTZ, Chief Judge

(dissenting in part).

I entirely agree with the Court’s conclusion that Quintec’s recovery is limited to its entitlement under the pertinent insurance policies. As to the vast bulk of the claims, however, I see no reason for a remand to the trial court. Except for a portion of the so-called Alvimer claim which amounts to $166,435.00, I believe that the defendant has demonstrated on the cross-appeal that it is entitled to summary judgment because it appears without genuine issue that as a matter of law (a) there is no coverage; (b) policy defenses apply; or (c) both. Accordingly, I would require further trial proceedings only as to the $166,435.00 item and enter judgment for the broker as to the remaining amounts in controversy.

      . Quintec sold Computek to Ingram Micro in November of 1997. Ingram subsequently sought indemnity from Quintec for the losses on the Byte On, Alvimer, and UIS accounts under the warranty provisions of the Quin-tec/Ingram sales agreement. The matter was referred to an arbitrator who ordered Quintec to indemnify Ingram for Computek’s losses under these accounts. Quintec paid for the losses in late July or early August of 2000, and Ingram assigned Computek's claims against AON and Trade Indemnity to Quintec.

      . Computek submitted several claims under the policy but only the Byte On, Alvimer, and United Information claims are at issue on appeal.


text:
    Nisaratana (“Kitty”) RUSSELL and George Russell, Appellants, v. KSL HOTEL CORP., a Delaware Corp., d/b/a Doral Golf Resort & Spa, et al., Appellees.
    Nos. 3D02-2141, 3D02-1870.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Rehearing Denied Dec. 1, 2004.

      Wetherington, Klein & Hubbart and Phillip A. Hubbart; Lauri Waldman Ross, Miami; Rasco Reininger Perez & Esquena-zi and Steven R. Reininger, Miami, for appellants.
    Gunster, Yoakley & Stewart and Jack J. Aiello (West Palm Beach); Shankman & Westerman and David S. Shankman (Tampa), for appellees.
    Before SCHWARTZ, C.J., and COPE and LEVY, JJ.
   LEVY, Judge.

Nisaratana Russell and George Russell, the Plaintiffs below, appeal from a Final Judgment. We reverse and remand with directions to reinstate the jury verdict in its entirety. Mrs. Russell and her husband filed an amended complaint against her former employer, KSL Hotel Corporation d/b/a Doral Golf Resort & Spa (“Doral”), alleging hostile work environment sexual harassment; retaliatory discharge (1) for complaining of sexual harassment to Doral management, and (2) for filing a Workers’ Compensation claim; negligent retention based upon the continued employment of the Doral employee who allegedly harassed Mrs. Russell; and the husband’s loss of consortium.

At trial, Mrs. Russell testified that she worked as a pastry chef at the Doral Golf Resort & Spa from November 1997 until early March 1998. Her immediate supervisor was a woman named Vandee McDaniel, the supervisor of the Doral pastry kitchen. Mrs. Russell testified that on her first day of work, Elman Holder, who was also employed by Doral as a pastry chef, stated that he was expecting Doral to hire a man and expressed his dissatisfaction because Doral hired a woman for the position. Mrs. Russell further testified that when she introduced herself, Holder shook her hand but also pulled her towards him and kissed her on the cheek. According to Mrs. Russell, she protested but Holder laughed at her and made kissing noises. Mrs. Russell testified that she reported this incident to McDaniel.

Mrs. Russell further testified that, over the next few months, Holder frequently came up behind her, made kissing noises, cursed at her, tapped her on the back, and laughed at her. On one occasion, according to Mrs. Russell, he pushed her ear very hard. Mrs. Russell testified that in November or December 1997, the severity of the incidents escalated and that on several occasions, Holder approached her from the rear, rammed his erect penis into her buttocks and whispered in her ear, “Fuck you, Kitty. Fuck you.” Mrs. Russell testified that she reported all of these incidents to McDaniel and that McDaniel responded that she would complete a discipline report on Holder. McDaniel never completed such a report. According to McDaniel, Mrs. Russell reported no incidents other than the ear incident and another incident involving a sheet pan.

Mrs. Russell testified that in January 1998, she was inside a pastry kitchen freezer when she was hit in the neck by a plastic water bottle. Mrs. Russell reported the incident to Doral Security, which subsequently informed Human Resources. Diana Allen, the Director of Human Resources, spoke with Mrs. Russell. During this conversation, Mrs. Russell identified Holder as the individual who threw the bottle. Allen asked Mrs. Russell to document in writing the problems she had been having with Holder. After Mrs. Russell completed her account of the incidents, Gina Diaz, the Assistant Director of Human Resources, investigated the complaints and concluded that Mrs. Russell’s complaints were unfounded. In the course of the investigation, however, Holder admitted that he touched Mrs. Russell on one occasion. In response, Diaz issued him a written disciplinary warning that directed him not to touch other employees. Diaz also spoke with the pastry kitchen employees about sexual harassment.

At the end of February 1998, Mrs. Russell’s husband, George Russell, called Holder to confront him regarding the various incidents. Holder did not respond. The next day, according to Mrs. Russell, when she returned to work Holder said to Didier Schmielowski, another pastry kitchen employee, in a voice loud enough for Mrs. Russell to hear, “How many times should we fuck her? Should we call her husband? How many times can we fuck her?” Mrs. Russell testified that the two men then laughed.

Mrs. Russell further testified that, one hour later, Schmielowski came up behind her and punched her in her back and her elbow. She complained to McDaniel and begged McDaniel to leave work because of the severity of the pain. McDaniel refused and required her to remain at work late to finish inventory. The next morning, the Russells called the police and filed a police report. Mrs. Russell took the next two days off from work. On March 3, 1998, she returned to work and met with Eric Akel, Doral’s General Manager. She told him about the incidents involving Holder and Schmielowski and indicated that she needed to see a doctor. Doral arranged for a taxi to take Mrs. Russell to the doctor, where she filed a Workers’ Compensation claim. The doctor confirmed that she had contusions on her back and elbow and limited range of motion in her back. He prescribed her medication and had her return to work. Gina Diaz investigated this incident. Because Schmielowski denied the incident and because there were no witnesses to corroborate Mrs. Russell’s claim that the injury occurred at work, Diaz put the Workers’ Compensation claim into question.

Mrs. Russell returned to work after seeing’ the doctor. When her shift ended, McDaniel required her to work overtime. Mrs. Russell begged McDaniel to allow her to leave work because of the pain, but McDaniel refused. Mrs. Russell then consulted Executive Sous Chef Klaus Mueller, McDaniel’s supervisor. According to Mrs. Russell, Mueller permitted her to go home after her shift and requested that she leave McDaniel a note to that effect. The note was admitted into evidence at trial.

At the end of her shift on March 4,1998, the following day, Mrs. Russell was called to Human Resources where Allen and McDaniel fired her. Doral’s reasoning for the dismissal was that Mrs. Russell “[d]id not work her scheduled shift, [and] left without permission.”

After the trial, the jury returned a verdict in which it found for Mrs. Russell on the claims of sexual harassment and retaliatory discharge and for Mr. Russell on the loss of consortium claim. The jury awarded Mrs. Russell $1,516,000 in damages and Mr. Russell $55,000 in damages. The jury found for Doral on the claim of negligent retention.

After the jury verdict, Doral filed a Motion for Judgment Notwithstanding the Verdict or in the Alternative for New Trial in which it also moved for a remittitur. The trial court granted the motion, granting judgment notwithstanding the verdict for Doral on. the retaliatory discharge claims, the claim of sexual harassment, and the loss of consortium claim. The trial court also noted that it would, in the event that it was determined on review that judgment notwithstanding the verdict was improvidently entered, grant Doral’s alternative motions for new trial and remittitur.

On the sexual harassment claim, the trial court found that Mrs. Russell’s testimony was inherently incredible and so thoroughly contradicted by her actions that there was not sufficient evidence to support the jury’s determination that she was subjected to conduct of a sexually offensive nature, and that she had complained about it to Doral. On the claim for retaliation for making a sexual harassment complaint, the trial court found that the nonsexual conduct described above did not constitute sexual harassment, and therefore Mrs. Russell’s complaints about those matters were not complaints of sexual harassment. The trial court further found that, as to the allegation of the groin attacks, (1) there was not sufficient evidence to establish that any decisionmaker was aware of any complaint about that conduct, and (2) McDaniel, who was Mrs. Russell’s immediate supervisor, was not a decision-maker. As for the claim for retaliation for filing a Workers’ Compensation claim, the trial court found that the decisionmakers reasonably believed that Mrs. Russell did not have permission to leave work. Thus, according to the trial court, Mrs. Russell was discharged for a legitimate non-retaliatory reason, and there was not sufficient evidence to show that the reason was a pretext for retaliation. On the loss of consortium claim, the trial court ruled that because the loss of consortium claim was a derivative claim based upon the negligent retention claim, and because the jury found in Doral’s favor on that claim, the derivative action must fail. The trial court alternatively found that there was insufficient evidence to conclude that Doral was negligent in its retention of Elman Holder such that the trial court would have directed a verdict on negligent retention even if the jury had found for Mrs. Russell on that claim. Based upon that, according to the trial court, the loss of consortium claim would likewise fail.

As stated above, the trial court explained that it would grant Doral’s alternative motion for new trial if it was determined on review that judgment notwithstanding the verdict should not have been entered. In its Final Judgment, the trial court, based upon its discussion of the evidence in granting judgment notwithstanding the verdict, found that the manifest weight of the evidence was contrary to the jury’s verdict on each of the claims as to which the jury found in favor of the Russells. Finally, on the alternative motion for remittitur, if the judgment notwithstanding the verdict should not have been entered, the trial court stated that it would order a remittitur to the amount of $75,000. The trial court also entered an order denying the plaintiffs’ motion to tax fees and costs as moot. This appeal follows.

When reviewing an order granting a judgment notwithstanding the verdict, we view the evidence in a light most favorable to the non-moving party, resolve all conflicts in the evidence in favor of the non-moving party, and construe every reasonable conclusion which may be drawn from the evidence in favor of the non-moving party. See Stokes v. Ruttger, 610 So.2d 711, 713 (Fla. 4th DCA 1992) (quoting Collins v. School Bd. of Broward County, 471 So.2d 560 (Fla. 4th DCA 1985)); see also Irven v. Dep’t of Health and Rehabilitative Servs., 790 So.2d 403, 407 (Fla.2001). A judgment notwithstanding the verdict is appropriate only in situations where there is no evidence upon which a jury could rely in finding for the non-moving party. See Stokes, 610 So.2d at 713.

An order granting a new trial, which the trial court entered in the alternative, is reviewed for an abuse of discretion, and such an order should be affirmed if the appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court. See Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999). Moreover, in granting a motion for a new trial, the trial court must articulate the reasons for doing so in its order. See id.

I. SEXUAL HARASSMENT CLAIM

We conclude that the trial court erred in granting judgment notwithstanding the verdict for Doral on Mrs. Russell’s sexual harassment claim because there was evidence to support the jury’s verdict. Section 760.10(l)(a), Florida Statutes (2002), which prohibits employers from discriminating against an individual with respect to their employment based upon their gender, is derived from Title VII of the Federal Civil Rights Act. In Green v. Burger King Corp., 728 So.2d 369, 370-71 (Fla. 3d DCA 1999), we explained, “[i]t is well settled that when Florida statutes are adopted from an act of Congress, the Florida Legislature also adopts the construction placed on that statute by the federal courts insofar as that construction is not inharmonious with the spirit and policy of Florida’s general legislation of the subject.”

In order to establish a claim of “hostile work environment” sexual harassment, Federal courts have held that the plaintiff/employee must allege and eventually prove the following five elements: (1) that the employee belongs to a protected group; (2) that the employee was subjected to unwelcome harassment; (3) that the harassment was based on the employee’s gender; (4) that the harassment was severe enough to affect a term, condition, or privilege of employment and to create a discriminatorily abusive working environment; and (5) that the employer knew or should have known of the harassment and failed to intervene. See Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1279-80 (11th Cir.2003) (quoting Miller v. Kenworth of Dothan, Inc., 277- F.3d 1269, 1275 (11th Cir.2002)); Succar v. Dade County School Board, 229 F.3d 1343, 1344-45 (11th Cir.2000) (citing Henson v. City of Dundee, 682 F.2d 897, 903-05 (11th Cir.1982)).

At issue in the instant case is whether the harassment was directed at Russell because of her gender. See Succar, 229 F.3d at 1345 (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998)). In its Final Judgment, the trial court concluded that there was insufficient evidence to support the jury verdict because there was no evidence offered at trial to support the occurrence of “certain conduct of a decidedly sexual nature.” In reaching its conclusion, it is apparent that the trial court improperly utilized a divide- and-conquer approach to separate the alleged instances of misconduct into sexual conduct and non-sexual conduct. Ráther, any harassment or other disparate treatment of an employee that would not occur but for the gender of the employee may, if there is a pattern or pervasiveness in the conduct, constitute “hostile work environment” sexual harassment. Moreover, offensive conduct is not required to include sexual overtones in every instance. See Hall v. Gus Construction Co., Inc., 842 F.2d 1010, 1013 (8th Cir.1988).' Thus, when analyzing the sexual harassment issue, the trial court should have guided itself with the rule that sexual harassment conduct includes conduct that is not clearly sexual in nature. See Hall, 842 F.2d at 1014; King v. Auto, Truck, Industrial Parts and Supply, Inc., 21 F.Supp.2d 1370, 1379 (N.D.Fla.1998) (“harassing behavior lacking a sexual explicit content but directed at women and motivated by animus against women satisfies the requirement”). As the Eighth Circuit Court of Appeals stated in Hall,

Intimidation and hostility toward women because they are women can obviously result from conduct other then explicit sexual advances. Title VII “ ‘evinces a Congressional intention to define discrimination in the broadest possible terms. Congress chose neither to enumerate specific discriminatory practices, nor to elucidate in extensor the parameter of such nefarious activities.’ ”

842 F.2d at 1014 (quoting Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 514 (8th Cir.1977)).

When all of the alleged instances of ■harassment, whether sexual or non-sexual in nature, are taken into account, the jury’s verdict is indeed supported by the evidence. Mrs. Russell testified that on her first day on the job, Holder indicated that he expected Doral to hire a male and voiced his disgust to her that it hired a female instead. Mrs. Russell did not reply, but introduced herself to Holder and extended her hand, and Holder responded by pulling Russell to him and kissing her on the cheek. Although Holder denied that this incident occurred, for the purposes of analyzing the judgment notwithstanding the verdict we are required to resolve this conflict in Mrs. Russell’s favor. That being said, if the jury believed that the first-day incident did in fact take place, then it was certainly reasonable for the jury to conclude that this incident was the first link in a long chain of gender harassment which involved both sexual and nonsexual conduct. In other words, construing every reasonable conclusion which may be drawn from the evidence in favor of Mrs. Russell, Holder’s actions on Mrs. Russell’s first day of employment — which were clearly directed at Mrs. Russell because of her gender — lead to the reasonable conclusion that Holder’s subsequent actions were likewise directed at Mrs. Russell because of her gender. Additionally, the Record is replete with instances where Mrs. Russell voiced her complaints regarding Holder’s conduct.

In addition to concluding that the trial court erred in granting judgment notwithstanding the verdict for Doral, we also conclude that the trial court abused its discretion in granting, in the alternative, Doral’s motion for new trial. Evidently, the trial court premised its analysis on Doral’s motion for new trial on the same incorrect assumption as it did in granting judgment notwithstanding the verdict— that conduct which is purely sexual is the only conduct which constitutes sexual harassment. Moreover, the trial court failed to support its conclusion with any reasons which were premised outside of its incorrect assumption that only sexual conduct constitutes sexual harassment. Consequently, we conclude that a new trial on the sexual harassment claim is neither warranted nor supported by the Record.

II. RETALIATORY DISCHARGE CLAIMS

Like the sexual harassment claim, we conclude that the trial court erred in granting judgment notwithstanding the verdict for Doral on Mrs. Russell’s two retaliatory discharge claims — for making a sexual harassment complaint to Doral, and for filing a Workers’ Compensation claim. First, according to Section 760.10(7), Florida Statutes (2002), it is an unlawful employment practice for an employer to discriminate against any person because that person has made a charge of conduct which is prohibited under Section 760.10. As discussed in Part I of this Opinion, the “charge” of prohibited conduct was Mrs. Russell’s charge of sexual harassment as delineated in Section 760.10(l)(a), Florida Statutes (2002). Second, according to Section 440.205, Florida Statutes (2002), an employer cannot discharge an employee in response to an employee’s valid claim or attempt to claim Workers’ Compensation benefits.

Although two different chapters of the Florida Statutes govern the retaliatory discharge claims, the elements necessary to prove those claims are essentially the same. In order to establish a prima facie retaliation case, the plaintiff must demonstrate the following elements: (1) a statutorily protected expression; (2) an adverse employment action; and (3) a causal connection between the participation in the protected expression and the adverse action. See Gupta v. Florida Board of Regents, 212 F.3d 571, 587 (11th Cir.2000) (citing Farley v. Nationwide Mut. Ins., 197 F.3d 1322, 1336 (11th Cir.1999)); Raney v. Vinson Guard Service, Inc., 120 F.3d 1192, 1196 (11th Cir.1997) (citing Hairston v. Gainesville Sun Publishing Co., 9 F.3d 913, 918 (11th Cir.1993)).

In order to satisfy the “causal connection” prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally establish that the defendant was actually aware of the protected expression at the time the defendant took the adverse employment action. See Raney, 120 F.3d at 1197 (citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.1993)). Moreover, while awareness of protected expression may be premised upon circumstantial evidence, the plaintiff must show a defendant’s awareness with more evidence than mere curious timing coupled with speculative possibilities. See id. at 1197. Once a plaintiff establishes a prima facie case by proving only that the protected activity and the negative employment action are not completely unrelated, the burden then shifts to the defendant to proffer a legitimate reason for the adverse employment action. The burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the “legitimate reason” was merely a pretext for the prohibited, retaliatory conduct. See Sierminski v. Transouth Financial Corporation, 216 F.3d 945, 950 (11th Cir.2000).

On the retaliatory discharge counts, the trial court granted judgment notwithstanding the verdict for Doral because (1) on the sexual harassment count, given that Mrs. Russell did not inform anyone other than McDaniel (who the trial court believed not to be a decisionmaker) of any conduct of a sexual nature, there was not sufficient evidence to support the “causal connection” element of the prima facie case for sexual harassment; and (2) on both counts, there was not sufficient evidence to support a jury verdict that the reason given for Mrs. Russell’s termination was a pretext for retaliation. We disagree with the trial court on both points.

First, viewing the evidence in the light most favorable to Mrs. Russell, there was evidence to support the “causal connection” element of the prima facie case on the count of retaliatory discharge for making a sexual harassment complaint. As we discussed in Part I of this Opinion, both sexual conduct and non-sexual conduct can be construed as conduct that constitutes sexual harassment. The evidence adduced at trial indicates that even if Mrs. Russell did not inform McDaniel of any conduct of a sexual nature, both McDaniel and Allen—the individuals who discharged Mrs. Russell—were aware of the instances of non-sexual conduct which constitute sexual harassment. Thus, Mrs. Russell established the “causal connection” element to establish the prima facie case of retaliation for a sexual harassment complaint because both McDaniel and Allen were aware of the complaints.

Second, there was also evidence to support the contention that the reason given by Doral for Mrs. Russell’s discharge was a pretext for retaliation. The reason given by Doral for Mrs. Russell’s discharge was that Mrs. Russell did not work her scheduled shift and left work without permission. Taking the evidence in the light most favorable to Mrs. Russell, it was reasonable for the jury to conclude that Doral’s “legitimate reason” for the discharge was merely a pretext for prohibited, retaliatory conduct. The evidence, viewed in the light most favorable to Mrs. Russell, shows that Mueller, who was McDaniel’s supervisor, gave Mrs. Russell permission to leave at the end of her scheduled shift and that permission was memorialized in the note that Mrs. Russell left on McDaniel’s desk. Despite the fact that Mueller told the Doral staff that he did not give Mrs. Russell permission to leave work at the end of her shift, this conflict in the evidence should have been resolved in Mrs. Russell’s favor for the purposes of determining Doral’s entitlement to judgment notwithstanding the verdict. Accordingly, the trial court erred in granting judgment notwithstanding the verdict on the retaliatory discharge counts.

We also conclude that the trial court abused its discretion in granting a new trial on the retaliatory discharge counts because, like the sexual harassment count, the trial court provided no reasons for such a conclusion other than referring to the points it made in its flawed analyses on the judgment notwithstanding the verdict issues.

III. LOSS OF CONSORTIUM CLAIM

On Mr. Russell’s loss of consortium claim, we hold that Doral waived any inconsistency in the verdict because no objection was made to the defective verdict before the jury was discharged. See Re public Servs. of Fla., L.P. v. Poucher, 851 So.2d 866, 870 (Fla. 1st DCA 2003); J.T.A. Factors, Inc. v. Philcon Servs., Inc., 820 So.2d 367, 371 (Fla. 3d DCA 2002) (“contention that a jury verdict is inconsistent must be raised at the time the verdict is read and before the jury is released in order to allow an opportunity to cure”). Thus, this award must be reinstated.

IV. REMITTITUR

Finally, we conclude that the trial court abused its discretion in granting a remittitur to Doral. See Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999). Other than stating that “the damages awarded by the jury were clearly excessive,” the trial court provided no justification whatsoever for granting the remittitur or for reducing the award to $75,000. By granting a remittitur without explanation, the trial court has left us to “grasp at straws” in reviewing this portion of the Final Judgment. Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978).

Based upon the foregoing analysis of the Final Judgment, this case is remanded to the trial court with directions to reinstate the jury verdict in its entirety. Moreover, we direct the trial court to entertain the merits of the Plaintiffs’ claim for attorney’s fees, which was originally denied as moot.

Reversed and remanded with directions.

COPE, J., concurs.

SCHWARTZ, Chief Judge

(dissenting in part).

I cannot find that the trial court abused its discretion in determining that the verdict was contrary to the manifest weight of the evidence. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999); see Sheridan v. Forest Hills Public Schools, 247 Mich.App. 611, 637 N.W.2d 536 (2001). Indeed, after a review of the record, I am personally so convinced of the injustice of the plaintiffs cause that I would have voted to reverse the trial judge if she had ruled otherwise. Miller v. First American Bank and Trust, 607 So.2d 483 (Fla. 4th DCA 1992); see Florida Nat'l Bank v. Sherouse, 80 Fla. 405, 86 So. 279 (1920); Newman v. Smith, 77 Fla. 633, 82 So. 236 (1918); Branam v. Aqua-Clear Pools, Inc., 672 So.2d 69 (Fla. 3d DCA 1996); Ziontz v. Ocean Trail Unit Owners Ass’n, Inc., 663 So.2d 1334 (Fla. 4th DCA 1993). Accordingly, I would order a new trial in this case.


author: FLETCHER, Judge. SCHWARTZ, Chief Judge

text:
    SIRGANY INTERNATIONAL, INC., Petitioner, v. MIAMI-DADE COUNTY, Florida, Respondent.
    No. 3D04-1527.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    Rehearing and Rehearing En Banc Denied Dec. 3, 2004.

      Stephen M. Cody, Miami, for petitioner.
    Robert A. Ginsburg, County Attorney and Dennis A. Kerbel, Assistant County Attorney; Marie Perikles and Christopher Mazzella, Office of Inspector General, for respondent.
    Before SCHWARTZ, C.J., and COPE and FLETCHER, JJ.
   FLETCHER, Judge.

Sirgany International, Inc., has invoked by petition this court’s original jurisdiction, seeking the issuance of a writ of prohibition. Sirgany contends that the circuit court does not have jurisdiction over the underlying action (circuit court case no. 04-1922 CA32) brought by the Miami-Dade Inspector General to enforce his subpoena seeking certain records of Sirgany. We deny Sirgany’s petition on the merits.

As we noted in Sirgany Internat’l, Inc. v. Miami-Dade County, 845 So.2d 1017 (Fla. 3d DCA 2003), the Miami-Dade Office of Inspector General has the responsibility to investigate various and sundry county matters, and is delegated the power to subpoena witnesses and to require the production of documents in aid of investigation. The Inspector General has sought by subpoena the production of certain records of Sirgany in relation to Sir-gany’s commercial activities at the Miami International Airport. Sirgany has resisted production, thus placing the Inspector General in the position whereby he has had to seek circuit court enforcement of his subpoena.

Sirgany contends in its prohibition petition that the circuit court does not have jurisdiction of the Inspector General’s subpoena enforcement action. Sirgany bases its argument on Article V, section 20(c)(4), Florida Constitution, and on section 34.01(a), Florida Statutes (2003), both of which provide that the county courts shall have original jurisdiction of all violations of municipal and county ordinances. As Article V, section 5(b), Florida Constitution provides that the circuit courts shall have original jurisdiction which is not vested in the county courts, Sirgany’s ultimate argument is that only the county courts have jurisdiction over municipal and county ordinances.

However, section 26.012, Florida Statutes (2003) governs the jurisdiction of the circuit courts. It reads in pertinent part:

“(2) [Circuit courts] shall have exclusive original jurisdiction: ... (c) In all cases in equity ... [and] (3) the circuit court may issue injunctions.”

As we noted, the county courts’ jurisdiction is limited by the Florida Constitution and by statute to violations of municipal and county ordinances; that is, they have jurisdiction over the prosecutions of ordinance violators. On the other hand, the circuit courts have been assigned jurisdiction to issue all injunctions of whatever nature, which includes those enforcing ordinances. As the Inspector General’s petition seeks enforcement of his subpoena, an injunctive action, the circuit court has jurisdiction and Sirgany’s prohibition petition fails.

This jurisdictional arrangement is nothing new. In Pinellas County v. Hooker, 200 So.2d 560 (Fla. 2d DCA 1967), for example, the Second District Court of Appeal determined that the enforcement of an ordinance (there a zoning ordinance) by circuit court injunctive relief was not precluded by the availability of a legal “remedy,” that being the ability of the county to prosecute a criminal action in county court. In commenting on the jurisdictional arrangement the supreme court pointed out in Rich v. Ryals, 212 So.2d 641, 644 (Fla.1968) that denying the county injunc-tive relief to enforce zoning regulations and restricting it to county court criminal procedure would in effect render the zoning regulations useless. The same uselessness would result here. Indeed, Sirgany’s argument, if adopted, would eliminate the enforcement of any and all municipal and county ordinances, thus rendering them all useless.

The Inspector General is seeking equitable, injunctive relief enforcing his subpoena which he issued pursuant to the county’s ordinance. His petition in the underlying case has alleged issuance and Sirgany’s noncompliance. That is sufficient to invoke the circuit court’s jurisdiction.

Petition for writ of prohibition is denied.

COPE, J., concurs.

SCHWARTZ, Chief Judge

(specially concurring).

I believe that the issue in this case is controlled by Southern Records and Tape Service v. Goldman, 458 So.2d 325 (Fla. 3d DCA 1984), approved, 502 So.2d 413 (Fla.1986). Although my own preference is for the directly contrary view expressed by the Fourth District in Winn-Dixie Stores, Inc. v. Ferris, 408 So.2d 650 (Fla. 4th DCA 1981), review denied, 419 So.2d 1197 (Fla.1982), and by Judge Barkdull’s dissent in Southern Records, I am bound to concur on the authority of the majority decision in Southern Records.

      . By section 1.01A(20), Miami-Dade County Home Rule Charter, the Board of County Commissioners has been empowered to:
      "Make investigations of county affairs ... and for these purposes ... subpoena witnesses ... and require the production of records."
      By section 2~1076(c)(3), Miami-Dade County Code, the Board of County Commissioners delegated subpoena power and production power to the Inspector General. See Sirgany Intenat’l, Inc. v. Miami-Dade County, 845 So.2d 1017 (Fla. 3d DCA 2003).

      . The Inspector General filed suit in the form of a sworn petition to show cause. Whatever its label, it is a civil action. See Rule 1.040, Fla.R.Civ.P.

      . Hooker also holds that the enforcement of an ordinance does not require the presence of a nuisance in order for injunctive relief to be available.

      . Because nobody has written on either a clean or dirty slate for several decades now, I do not employ that particular cliché.

      .In its review of Southern Records the Supreme Court did not resolve the conflict between that decision and Winn-Dixie, 408 So.2d at 650.