author: PATTERSON, Retired Appellate Judge.

text:
    Brent David KABAT v. STATE of Alabama.
    CR-01-1076.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.

      Vader A1 Pennington, Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and Cedric B. Colvin, asst. atty. gen., for appel-lee.
   PATTERSON, Retired Appellate Judge.

The Mobile County grand jury returned two separate indictments (case no. CC-00-3419 and case no. CC-00-3420) against the appellant, Brent David Rabat, on November 14, 2000, charging him with murder made capital because it was committed during a first-degree robbery (case no. CC-00-3419), a violation of § 13A-5-40(a)(2), Ala.Code 1975, and murder made capital because it was committed during a first-degree kidnapping (case no. CC-00-3420), a violation of § 13A-5-40(a)(l). After the trial court denied his application for treatment as a youthful offender pursuant to §§ 15-19-1 through 15-19-7, Ala. Code 1975, the appellant waived arraignment and entered pleas of not guilty. The indictments were consolidated for trial, and on December 14, 2001, a jury found him guilty as charged in both indictments. After a sentencing hearing before the jury in accordance with §§ 13A-5-45 and -46, Ala.Code 1975, the jury recommended sentences of life imprisonment without the possibility of parole. After another sentencing hearing before the trial court on February 1, 2002, in accordance with §§ 13A-5-49 through -52, the trial court accepted the jury’s recommendations and sentenced the appellant to life imprisonment without the possibility of parole in each case. The appellant appeals, raising two issues.

The State’s evidence tended to show the following. The appellant and an accomplice, Jeremy Shawn Bentley, abducted Jamie Tolbert at some point after they had gotten into Tolbert’s vehicle with him in a nightclub parking lot in Biloxi, Mississippi, in the early morning hours of January 1, 2000. They transported him in his automobile to a rural area of Mobile County, Alabama, where they strangled and beat him to death and dumped his body in a wooded area a short distance from a secondary road; they took Tolbert’s billfold, his money, his credit cards, and his automobile and returned to their home state of North Carolina. They used Tolbert’s bank credit card several times in North Carolina and traveled across the United States to California, leaving a trail by their frequent use of Tolbert’s bank credit card. They were arrested by the California Highway Patrol on January 15, 2000, while driving Tolbert’s vehicle. When they were arrested, they were in possession of Tolbert’s bank credit card and were heavily armed.

The appellant did not testify and called only one witness, a jailer, in an apparently unsuccessful effort to cast doubt upon testimony of an inmate who had testified for the State that the appellant had told him that he and another person had killed Tol-bert.

I.

The appellant first contends that the trial court committed reversible error by denying his motion to suppress the evidence derived from his allegedly unlawfully obtained inculpatory statements.

Shortly after the appellant and Bentley were apprehended in California, Investigator Dale Kohn of the Mobile County Sheriffs Department went to California to question them regarding the whereabouts of Tolbert, who at that time, was considered only as missing. Kohn questioned the appellant first, beginning at 12:01 p.m. and ending at 1:00 p.m. on June 16, 2000. The appellant gave him a detailed oral statement, telling how he and Bentley kidnapped, robbed, and murdered Tolbert and disposed of his body. He described in general terms the area where Tolbert’s body could be found. Kohn immediately called the Mobile investigators and gave them the information that the appellant had furnished. After some difficulty, the investigators found Tolbert’s body. The next day, Kohn obtained a recorded statement from the appellant, which was substantially the same as his oral statement.

Two hours after first questioning the appellant, Kohn questioned Bentley. Bentley’s account of how he and the appellant had committed the offenses was similar to the appellant’s. However, he gave a more detailed and accurate account of the location of the body and the crime scene. He, unlike the appellant, had been in the area before and was familiar with it.

At a pretrial hearing, the trial court ruled that the appellant’s statements were to be suppressed at trial. It appears from the record that the trial court found them to have been involuntarily induced by promises and threats by Kohn during the interrogations. The appellant subsequently moved the trial court to suppress the evidence of Tolbert’s body and all evidence relating to it because, he argued, that evidence was discovered as a result of his first illegally obtained statement and should be excluded from use at trial pursuant to the “fruit of the poisonous tree” doctrine, citing Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). After an evidentiary hearing, the trial court denied the motion without comment. The evidence of the body and all related evidence, including evidence of the crime scene, was admitted into evidence at the trial.

“ ‘The exclusionary rule requires that evidence obtained directly or indirectly through government violations of the Fourth, Fifth, or Sixth Amendments may not be introduced by the prosecution at trial, at least for the purpose of providing direct proof of the defendant’s guilt. When a court improperly admits evidence in violation of the exclusionary rule, reversal is required unless the error was harmless beyond a reasonable doubt.’
“Miles Clark, Project, Thirty-first Annual Review of Criminal Procedure, The Exclusionary Rule, 90 Geo. L.J. 1087, 1264 (2002) (footnotes omitted).
“ ‘As an adjunct of the exclusionary rule, the “fruit of the poisonous tree” doctrine holds that the use of derivative evidence can be barred if the evidence is discovered by the exploitation of a prior police illegality, if the primary taint has not been purged by some intervening act or event.’
“1 John Wesley Hall, Jr., Search and Seizure § 7.1 (3d ed.2000).
“ ‘The roots of the doctrine requiring courts to suppress evidence as the tainted “fruit” of unlawful governmental conduct can be traced to Silverthorne Lumber Co. v. United States, 251 U.S. 385 ... (1920). In that case, the Supreme Court extended the exclusionary rule to apply not only to evidence obtained as a result of illegal conduct, but also to other incriminating evidence derived from the primary evidence. See -id. at 892 ... (“The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”) (emphasis added). The Court recast this holding in its more enduring form, the “fruit of the poisonous tree” doctrine, in Wong Sun v. United States, 371 U.S. 471 ... (1963). There, the Court explained that when examining the admissibility of evidence obtained subsequent to illegal government conduct, courts must examine “whether, granting establishment of the primary illegality” (i.e., the “poisonous tree”), the evidence has been discovered “by exploitation of that illegality” (i.e., the “fruit” of the tree), or instead “by means sufficiently distinguishable to be purged of the primary taint.” Id. at 488 ... (citation omitted). If evidence is found to be the “fruit of the poisonous tree” it must be suppressed. See id.’
“United States v. Orso, 266 F.3d 1030, 1034 n. 2 (9th Cir.2001), cert, denied, 537 U.S. 828, 123 S.Ct. 125 (2002).
“ ‘The exclusionary rule is not a personal constitutional right, but rather a judicially created remedy to deter government violations of the Constitution. Because the goal of deterrence will not always be advanced by excluding relevant, though illegally obtained, evidence, the Supreme Court has identified several exceptions to the exclusionary rule.... ’
“Clark, supra, 90 Geo. L.J. at 1264 (footnotes omitted).”

Foldi v. State, 861 So.2d 414, 419-20 (Ala. Crim.App.2002).

Two exceptions to the exclusionary rule are the independent-source exception and the inevitable-discovery exception.

“Independent Source Exception. Even if police engage in illegal investigatory activity, evidence will be admissible if it is discovered through a source independent of the illegality. The independent source doctrine reflects the idea that although the government ought not profit from its misconduct, it also should not be made worse off than it would have been had the misconduct not occurred.
“Inevitable Discovery Exception. The inevitable discovery exception to the exclusionary rule is closely related to the independent source doctrine. Under this exception, a court may admit illegally obtained evidence if the evidence inevitably would have been discovered through independent, lawful means. For example, in Nix v. Williams, [467 U.S. 431 (1984),] the Supreme Court held that evidence concerning the location and condition of a murder victim’s body was admissible even though the police obtained this information in violation of the defendant’s Sixth Amendment right to counsel. The Court reasoned that a comprehensive search already under way at the time of the police illegality would have inevitably resulted in the discovery of the body.”

Miles Clark, Project, Thirty-first Annual Review of Criminal Procedure, The Exclusionary Rule, 90 Geo. L.J. 1264, 1274-76 (2002) (footnotes omitted). See, e.g., Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (noting that inevitable discovery is actually an extrapolation from the independent-source doctrine: because the tainted evidence would be admissible if in fact it was discovered through an independent source, it should be admissible if it inevitably would have been discovered).

The State contends that the trial court properly denied the appellant’s motion to suppress any evidence derived from the appellant’s first illegally obtained confession because, it argues, the challenged evidence was admissible under the inevitable-discovery exception to the exclusionary rule. The State also contends, in the alternative, that if we find that the trial court erroneously admitted the derivative evidence, we should find that the error was harmless beyond a reasonable doubt, citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), and Rule 45, Ala. R.App. P.

Under the first exception — the independent-source doctrine — the prosecution must show that the challenged evidence was derived from a lawful source independent of the illegal conduct by the police. United States v. Terzado-Madruga, 897 F.2d 1099, 1115 (11th Cir.1990). See Peoples v. State, 510 So.2d 554, 569 (Ala.Crim.App.1986), aff’d, 510 So.2d 574, 577 (Ala.1987). Under the inevitable-discovery exception, the prosecutor has the burden of demonstrating (1) that there is a reasonable probability that the evidence in question would have been discovered by lawful means but for the police misconduct; (2) that the leads making the discovery inevitable were possessed by the police at the time of the misconduct; and (3) that the police, before the misconduct, were actively pursuing the alternative line of investigation. United States v. Cherry, 759 F.2d 1196 (5th Cir.1985); United States v. Brookins, 614 F.2d 1037, 1043 (5th Cir.1980).

After examining the evidence introduced in the suppression hearings, we conclude that the State established the necessary elements of the inevitable-discovery exception to the exclusionary rule. When the initial illegality occurred, i.e., the violation of the appellant’s constitutional rights in the taking of his first confession, the police had Bentley in custody for questioning, and there was a reasonable probability that the challenged evidence would have been discovered from the information Bentley disclosed. Kohn went to California to question both the appellant and Bentley about Tolbert’s disappearance. Bentley was under arrest and awaiting questioning, while the appellant was being questioned the first time. Perhaps for some undisclosed reason or perhaps by happenstance, Kohn chose to question the appellant first; however, in any event, he intended also to question Bentley. Thus, the alternate avenue of inquiry was, in effect, being pursued before the initial misconduct. The evidence would have inevitably been discovered through questioning Bentley.

Moreover, the alternate avenue of inquiry, i.e., the questioning of Bentley, was truly independent because it did not rely on any information derived from the appellant; it was inevitable that Kohn would have questioned Bentley; and the results of that questioning are a matter of historical fact. Within two hours of the appellant’s first statement, Bentley independently gave the police more accurate information than the appellant had given them. We find that the evidence was also admissible under the indepen-denUsource exception to the exclusionary rule.

Accordingly, regardless of the illegality of the appellant’s first statement, we find that the evidence of Tolbert’s body and the crime scene and all related evidence were admissible under the inevitable-discovery exception and the independent-source exception to the exclusionary rule. Therefore, we hold that the trial court did not abuse its discretion in denying the appellant’s motion to suppress the testimony of the witnesses concerning the discovery of and matters relating to Tolbert’s body and the demonstrative evidence related thereto. Although not necessary for our holding, we further note that we agree with the State’s assertion that, had the trial court erred in denying the appellant’s motion to suppress the derivative evidence, its ruling would have been harmless beyond a reasonable doubt under the facts of this case.

II.

The appellant contends that the State’s evidence was insufficient to support his convictions for the capital offenses charged in the indictments. In his brief, he appears to concede that the State’s evidence was sufficient, when viewed in the light most favorable to the prosecution, to establish a prima facie case of murder, but he asserts that the evidence was insufficient to establish a prima facie case that the murder was committed during a robbery or during a kidnapping, §§ 13A-5-40(a)(2) and (a)(1), respectively.

In addition to the State’s evidence set out supra, the State’s evidence also tended to show that the appellant, Bentley, and Tolbert were seen getting into Tolbert’s vehicle in the parking lot of a nightclub in Biloxi in the early morning hours of January 1, 2000; that Tolbert, who was dressed in a tuxedo, was to meet some friends at a nearby nightclub, but that he never arrived; and that, 16 days after his disappearance, his body was found in a rural area near Grand Bay, Alabama. The evidence further showed that Tolbert had been beaten and strangled; that, near his head, officers collected four of his teeth, which had apparently been knocked out by a blunt instrument; that, a short distance from his body, the officers saw signs of a struggle in the grass and weeds and found Tolbert’s black bow tie; and that they also found an automobile jack handle, which matched the one missing from Tolbert’s vehicle, in some bushes near where the body was discovered.

The State’s evidence further established that the appellant and Bentley began using Tolbert’s bank credit card in North Carolina shortly after the three were last seen in Biloxi; that security cameras in various locations across the United States corroborated this use of the credit card by the appellant and Bentley; that a forensic examination of Tolbert’s vehicle, which the appellant and Bentley had driven to California and which was seized when they were arrested in California, revealed human blood on the backseat and on the rear floor mat, and subsequent tests of that blood showed that it was not the appellant’s or Bentley’s; and that the jack handle was missing from Tolbert’s vehicle.

Finally, the State elicited the testimony of Rayford Mitchell, a prisoner in the Mobile County jail, that the appellant, who was also incarcerated in the jail awaiting trial, told him that he and another person killed Tolbert. Mitchell testified, as follows, during direct examination:

“A. ... [Rabat] told me that him and ... another young man went to Mississippi near the gambling boats and picked up a homosexual. They drove him back down to Grand Bay and they killed him and I’m not talking about one of them killed him, both of them killed him.
“Q. ... Did he tell you anything beyond that?
“A. ■ Just that ... they were high on drugs, sir, and they wanted to see how it felt to kill somebody.
“Q. ... Did you have to ask him about it or did he volunteer it?
“A. No. He’d talk about it. He’d talk about how crazy his friend was and how they did it. One of them ... was beating the guy, he couldn’t kill him so [Rabat] finished it off....”

In deciding whether there .is sufficient evidence to support the verdict of the jury and the judgment of the trial court, an appellate court must review the evidence in the light most favorable to the prosecution; conflicting evidence presents a jury question not subject to review on appeal, provided the State’s evidence established a prima facie case. ’Williams v. State, 710 So.2d 1276, 1337 (Ala.Crim.App.1996), aff'd, 710 So.2d 1350 (Ala.1997); Cumbo v. State, 368 So.2d 871 (Ala.Crim.App.1978). The action of the trial court in denying a motion for a judgment of acquittal or a motion for a new trial must be reviewed by determining whether there existed legal evidence before the jury, at the time the motions were made, from which the jury by fair inference could have found the defendant guilty beyond a reasonable doubt. Williams v. State, 710 So.2d at 1337; Willis v. State, 447 So.2d 199 (Ala. Crim.App.1983). When the evidence raised questions of fact for the jury and that evidence,- if believed, was sufficient to sustain a conviction, the denial of a motion for a judgment of acquittal or of the alternate prayer for relief in a motion for a new trial on the ground of insufficiency of the evidence does not constitute error. Williams v. State.

A defendant’s guilt may be established by circumstantial evidence as well as by direct evidence, and so long as the circumstantial evidence points to the guilt of the accused, it will support a conviction as strongly as direct evidence. Agee v. State, 470 So.2d 1331 (Ala.Crim.App.1985). In reviewing a conviction based on circumstantial evidence, “[t]he test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.” Cumbo v. State, 368 So.2d at 874. See also Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990).

The appellant, relying on the testimony of the prisoner Mitchell, suggests that the motive for the killing was to experience what it felt like to kill someone and that the taking of Tolbert’s property was an afterthought. He relies on Connolly v. State, 500 So.2d 57 (Ala.Crim.App.1985), aff'd, 500 So.2d 68 (Ala.1986), which holds that an accused is not guilty of the capital offense of robbery-murder where the intent to rob was formed only after the victim was killed.

Before he disappeared, Tolbert was “out on the town” in formal wear, celebrating New Year’s Eve, with plans to meet friends at a specific place. While the appellant told Mitchell that he and Bentley had picked up and killed Tolbert, there was no evidence in the record indicating that Tolbert was a homosexual. Rather, there was evidence to the contrary. It is possible that, for some reason, Tolbert voluntarily permitted the appellant and Bentley to enter his automobile in Biloxi, but it is reasonable to conclude from the evidence, especially the evidence of the blood in the backseat of Tolbert’s vehicle, that Tolbert did not go voluntarily with them to Grand Bay. The blood on the backseat and floor of Tolbert’s automobile, which was undoubtedly his, supports reasonable inferences that at some point he was abducted, injured before he got out or was taken out of the car, carried to the spot where his bloody bow tie was found, beaten and strangled to death, and robbed of his belongings. The appellant’s suggestions that this was a “thrill” killing, that the taking of Tolbert’s property was an afterthought, and that Tolbert had not been abducted fly in the face of the facts, which strongly suggest otherwise. The evidence against the appellant, albeit largely circumstantial, was strong.

After applying the above standards of review to the State’s evidence, which was both direct and circumstantial, we find that there existed legal evidence before the jury, at the time of the motion for judgments of acquittal at the conclusion of the State’s case-in-chief, from which the jury by fair inference, could have excluded every reasonable hypothesis except that of guilt of the capital crimes charged. Thus, the charges were properly submitted to the jury.

The appellant also challenges the weight of the evidence supporting his convictions. We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial and that the credibility of witnesses and the weight and probative force of testimony are for the jury to judge and determine. Williams v. State, 710 So.2d at 1338.

Accordingly, we hold that the trial court did not abuse its discretion in denying the appellant’s motions for judgments of acquittal and the alternative prayer for relief within his motion for a new trial.

For the above reasons, the judgments of the trial court are affirmed.

The foregoing opinion was prepared by Retired Appellate Judge John Patterson while serving on active duty status as a judge of this court under the provisions of § 12 — 18—10(e), Ala. Code 1975.

AFFIRMED.

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

      . On November 7, 2002, Jeremy Shawn Bentley was convicted of the same two capital-murder offenses and was sentenced, for each conviction, to life imprisonment without the possibility of parole. He has appealed those convictions to this court (case no. CR-02-0263), but the complete transcript has yet to be filed with this court.

      . The Federal Circuit Courts of Appeals are divided as to whether the inevitable-discovery exception requires a showing that the police were actively pursuing an alternative method of investigation at the time the constitutional violation occurred. Clark, The Exclusionary Rule, 90 Geo. L.J. at 1276 n. 622. The rule in the Court of Appeals for the Eleventh Circuit is that, "to establish inevitable discovery the prosecution, must show that the police possessed and were actively pursuing the lawful avenue of discovery when the illegality occurred." United States v. Khoury, 901 F.2d 948, 960 (11th Cir.1990). See also United States v. Drosten, 819 F.2d 1067, 1069 (11th Cir.1987); United States v. Satterfield, 743 F.2d 827, 847 (11th Cir.1984).

      . The appellant preserved this issue for review by motions for judgments of acquittal, which were made at the conclusion of the State's case-in-chief and at the conclusion of the presentation of all of the evidence, and as an alternative prayer for relief within his motion for a new trial.

      . "To sustain a conviction under § 13A-5-40(a)(2), the State must prove beyond reasonable doubt (1) a ‘robbery in the first degree or an attempt thereof,' as defined by § 13A-8-41; (2) a murder as defined by § 13A-6-2(a)(l); and (3) that the murder was committed 'during' the robbery or attempted robbery, i.e., that the murder was committed 'in the course of or in connection with the commission of, or in the immediate flight from the commission of' the robbery or attempted robbery in the first degree. § 13A-5-39(2); Hallford. v. State, 548 So.2d 526 (Ala.Cr.App.1988), affirmed, 548 So.2d 547 (Ala.), cert. denied, 493 U.S. 945 ... (1989). The intentional killing must take place during the course of the robbery in question; however, the taking of the property of the victim need not occur before the killing. Hallford. ... The fact that the murder victim was dead when the property was taken would not prevent a finding of robbery, if the murder and the taking of property formed a continuous chain of logically related events. Hallford. The question whether the defendant had the intent to kill at the time of the taking is usually a jury issue, and the jury may infer from the facts and circumstances that a robbery began when the accused attacked the victim and that the capital offense was consummated when the accused took the robbery victim's property and fled. Hallford."

        Ex parte Johnson, 620 So.2d 709, 713-14 (Ala.1993).

      . "[T]o support a capital conviction under
      § 13A-5-40(a)(l), Ala.Code 1975, the state must prove that an intentional murder occurred during a kidnapping, as defined in § 13A-6-43(a), Ala.Code 1975.
      "In order to prove kidnapping in the first degree, we have held as follows:
      '[T]he State must prove two intents: The first deriving from the abduction element and the second from the statutory subdivisions of § 13A-6-43(a)(l)-(6) [i.e., in this case, intent to accomplish or aid the commission of first-degree robbery or flight therefrom, § 13A-6-43(a)(3) ]. The abduction element of kidnapping in the first degree is defined at § 13A-6-40(2), [Ala.Code 1975], as follows:

        " ' "(2) Abduct. To restrain a person with intent to prevent his liberation by either:
      " ' "(a) Secreting or holding him in a place where he is not likely to be found, or
      " ' "(b) Using or threatening to use deadly physical force."

      " 'Proof of intent, necessary to convict under § 13A-6-43, "must be found by the jury and may be inferred from the facts and circumstances attending the whole transaction.” Doss v. State, 23 Ala.App. 168, 180, 123 So. 237, 248 (1929)....’

        “Owens v. State, 531 So.2d 2, 13-14 (Ala.Cr. App.1986)."

        Broadnax v. State, 825 So.2d 134, 203 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001).

      . Because of the advanced decomposition of Tolbert’s body, the forensic examiners were not able to obtain a blood sample for a comparison with the blood from Tolbert’s vehicle, and they did not pursue a DNA analysis.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Hugh David OWEN II v. STATE of Alabama.
    CR-02-1085.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.

      Patricia Granger, Gadsden, for appellant.
    William H. Pryor, Jr., atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   COBB, Judge.

In April 2002, pursuant to a negotiated plea agreement, Hugh David Owen II enrolled in a deferred prosecution program (“drug court”). In return, the State agreed to defer his prosecution for possession of a controlled substance (crystal methamphetamine). However, in August 2002, Owen failed to comply with the requirements of that program. Owen was subsequently adjudicated guilty by the trial court and, on January 8, 2003, was sentenced to three years in prison. The trial court also fined him $1,000 pursuant to the Drug Demand Reduction Assessment Act and $100 to be deposited in the Alabama Forensic Sciences Trust Fund. See §§ 18A-12-281 , and 36-18-7(a), Ala. Code 1975.

On appeal, Owen, through newly appointed counsel, argues that his conviction should be “set aside due to the trial court’s failure to submit a complete record on appeal.” (Owen’s brief, p. 4.) Specifically, he complains that the audiotape of the sentencing proceedings is inaudible and that it therefore cannot be transcribed. The trial court entered the following order:

“Pursuant to the Order of the Court of Criminal Appeals dated March' 12 2003,[] this Court certifies that a sentencing hearing was conducted on January 8, 2003, at which the defendant was present together with his then appointed counsel ... and an Assistant District Attorney representing the State of Alabama, and said proceeding was tape-recorded, but the quality of such tape renders it incapable of being transcribed. Therefore, there is not an adequate record of said January 8th hearing. Previously appointed counsel, Willis Clay, has now withdrawn from .■representing the Appellant. There does not appear to the trial court to be any evidence that the Appellant executed a valid and enforceable waiver of his right to appeal.... ”

(C. 30.)

'

“In Ingram v. State, 779 So.2d 1225, 1280-81 (Ala.Crim.App.1999), this court explained the rules to be applied when the record is incomplete:
“ Where the transcript or' record is incomplete, two rules have evolved. The first applies to the situation where the appellant is represented on appeal by the same counsel that represented him at trial. In that case, the failure to supply a complete record is not error per se and will not work a reversal absent a specific showing of prejudice. In other words, in such a case, the appellant must show that failure to record and preserve the specific portion of the trial proceedings complained of visits a hardship upon him and prejudices his appeal. The second applies to the situation where the appellant is represented by new counsel on appeal. When he is represented on appeal by counsel other than the attorney at trial, the absence of a substantial and significant portion of the record, even absent any showing of prejudice or error, is sufficient to warrant reversal.’ ”

Spratt v. State, 833 So.2d 662, 666 (Ala.Crim.App.2002).

Owen takes issue with only the sentencing portion of the proceedings. Additionally, the transcript of the plea colloquy is contained in the record before us. In this case, rather than reversing the entire judgment, including the sentence, we affirm the conviction and reverse only the sentence.

Therefore, we reverse the sentence in this case and remand this cause for the trial court to conduct a new sentencing hearing, which is to be recorded. After such proceedings, Owen is to be allowed 42 days from the date of sentencing to appeal his sentence with a full record submitted oh appeal.

AFFIRMED AS TO CONVICTION; REVERSED AS TO SENTENCE; AND REMANDED.

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

      . On March 12, 2003, this Court issued an order directing the circuit court to determine whether Owen had waived his right to appeal and to respond within 14 days.


author: PER CURIAM.

text:
    STANDARD JURY INSTRUCTIONS—CIVIL CASES (NO. 03-02).
    No. SC03-1541.
    Supreme Court of Florida.
    Feb. 19, 2004.
    Honorable Chris W. Altenbernd, Chair, Supreme Court Committee on Standard Jury Instructions (Civil), Second District Court of Appeal, Tampa, FL; and Tracy Raffles Gunn, Chair, Supreme Court Reporting Committee, of Fowler, White, Boggs, Banker, P.A., Tampa, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) petitions this Court to consider amendments to the Florida Standard Jury Instructions in Civil Cases. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On August 29, 2003, the Committee filed a Supplemental Report (No. 03-02), proposing changes to current civil jury instruction PD Punitive Damages. Prior to submitting this report to the Court, the Committee published its proposal in the June 1, 2003 edition of The Florida Bar News. The Committee received and considered one comment prior to submitting its proposal to the Court.

The proposed revision is intended to address a deficiency in the current punitive damages instruction noted by the Fourth District Court of Appeal in Wransky v. Dalfo, 801 So.2d 239 (Fla. 4th DCA 2001). The following sentence is added to the instruction where appropriate: “[However, you may not award an amount that would financially destroy (defendant).]” Additionally, the Committee has proposed an accompanying note on use and several other minor revisions to this instruction.

Upon consideration of the Committee’s report, we hereby authorize the publication and use of the revised instruction as set forth in the appendix attached to this opinion. In doing so, we express no opinion on the correctness of the instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction. We further caution all interested parties that the notes and comments associated with the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instruction as set forth in the appendix shall be effective when this opinion becomes final. New language is indicated by underlining, and deletions are indicated by struck-through type.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

PD

PUNITIVE DAMAGES

PD 1 Punitive Damages — Bifurcated Procedure:

a. First stage of bifurcated punitive damages procedure:

[Text omitted — no changes to PD la are proposed]

b. Second stage of bifurcated punitive damage procedure:

(1) Opening instruction second stage:

The parties may now present additional evidence related to whether punitive damages should be assessed and, if so, in

what amount. You should consider this additional evidence along with the evidence already presented, and you should decide any disputed factual issues by the greater weight of the evidence.

(2) Punitive damages-determination of amount:

(a) Causes of action arising prior to October 1, 1999

You will now determine the amount of punitive damages, if any, to be assessed as punishment and as a deterrent to others. This amount would be in addition to the compensatory damages you have previously awarded. In making this determination, you should consider the following:

(1) the nature, extent and degree of misconduct and the related circumstances; [and]
[ (2) [the] [each] defendant’s financial resources; and]*
*Refer to Note on Use 4
[ (3) (identify any other circumstance which that the .jury may affect consider in determining the amount of punitive damages.) ]*
*Refer to Note on Use -4- 10
[However, you may not award an amount that would financially destroy (defendant).]*
*Refer to Note on Use 11
You may in your discretion decline to assess punitive damages. [You may assess punitive damages against one defendant and not the other[s] or against more than one defendant. Punitive damages may be assessed against different defendants in different amounts.]
(b) Causes of action arising on or after October 1, 1999

You will now determine the amount of punitive damages, if any, to be assessed as punishment and as a deterrent to others. This amount would be in addition to the compensatory damages you have previously awarded. In making this determination, you should consider the following:

(1) the nature, extent and degree of misconduct and the related circumstances, including the following:
• whether the wrongful conduct was motivated solely by unreasonable financial gain;
• whether the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by [defendant] [the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant];
• whether, at the time of [loss] [injury] [or] [damage], [defendant] [the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant] had a specific intent to harm (claimant) and the conduct of [defendant] [the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant] did in fact harm (claimant), [and]
[ (2) [the] [each] defendant’s financial resources; and]*
*Refer to Note on Use 4
[ (3) (identify any other circumstance which that the jury may affect consider in determining the amount of punitive damages.) ]*

*Refer to Note on Use -4- 10

[However, you may not award an amount that would financially destroy (defendant).]*

*Refer to Note on Use 11

You may in your discretion decline to assess punitive damages. [You may assess punitive damages against one defendant and not the other[s] or against more than one defendant. Punitive damages may be assessed against different defendants in different amounts.]

(S) Closing instruction second stage:

Your verdict on the issues raised by the punitive damages claim of (claimant) against (defendant) must be based on the evidence that has been received during the trial of the first phase of this case and on the evidence that has been received in these proceedings and the law on which I have instructed you. In reaching your verdict, you are not to be swayed from the performance of your duty by prejudice or sympathy for or against any party.

Your verdict must be unanimous, that is, your verdict must be agreed to by each of you.

You will be given a form of verdict, which I shall now read to you:

When you have agreed on your verdict, the foreman or forewoman, acting for the jury, should date and sign the verdict. You may now retire to consider your verdict.

NOTES ON USE TO PD 1

1.Upon timely motion, a demand for punitive damages, and determination of the issues raised by such a demand, must be submitted to the jury under the bifurcated procedure established in W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla.1994). The instructions found under PD 1 are intended to comply with the required bifurcated procedure. Absent a timely motion, punitive damage issues are to be decided under a non-bifurcated procedure, with the instructions found under PD 2.

2. PD la(l) and (2) are to be given in all cases. When the demand for punitive damages is based on the doctrines of either vicarious or direct liability, see, e.g., Schropp v. Crown Eurocars, Inc., 654 So.2d 1158 (Fla.1995), PD la(l) and (2) should be given first if the person whose conduct may warrant punitive damages is a defendant from whom punitive damages are sought. That person should be named in PD la(l) and (2) where indicated. Then PD la(3) or PD la(4) should be given in reference to the direct or vicarious liability of a corporate or partnership defendant. If the person whose conduct may warrant punitive damages is not a. defendant, or punitive damages are not sought from that person, the order and content of the charge should be modified to give the substance of PD la(3) or PD la(4) first followed by PD la(l) and (2). In appropriate cases a corporate policy can provide the basis for punitive damages against a corporation even though the particular officers or agents of the corporation responsible for the policy are not discovered or identified. See, e.g., Schropp v. Crown Euro-cars, Inc., 654 So.2d 1158 (Fla.1995) (Wells, J., concurring). In those cases PD la(3) will need to be modified accordingly.

3. PD la(2) and PD lb(2) are designed for use in most common law tort cases. However, certain types of intentional torts may require a punitive damage charge appropriate to the particular tort. See, e.g., First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla.1987); Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla.1985). The same may be true where punitive damages are authorized by statute. See, e.g., Home Insur ance Co. v. Owens, 573 So.2d 343, 346 (Fla. 4th DCA 1990).

4. Subparagraph (2) in PD lb(2) should only be used when evidence of a defendant’s financial worth is introduced. Sufe-paragraph (3)-in-PB lb(2)-shouId only-be used after the court has made-a-preliminary determination that the relevant-evidence includes some additional circumstance which may-affect the amount of the punitive-damage award. Subparagraph (3) in PD lb(2) recognizes the jury’s right-to consider — seme—additional—circumstance which-may affect-the amount of the punitive ■damage award, — One such circumstance -is- the assessment of punitive-damages-ag-ainst the defendant in prior-eases^ W.R-.- Grace & Co. v. Waters, 638 So:2d-5Q2 (Fla.l994); — Pending further developments in the law, the Committee-takes no-position on- the relevance of other circum-stancesr

5. PD la(3) should be used when direct liability for punitive damages is based on the acts of a managing agent, primary owner, or another whose acts may be deemed the acts of the defendant. See Schropp v. Crown Eurocars, Inc., 654 So.2d 1158 (Fla.1995); Bankers Multiple Line Ins. Co. v. Farish, 464 So.2d 530 (Fla.1985); Winn-Dixie Stores, Inc. v. Robinson, 472 So.2d 722, 724 (Fla.1985); and Taylor v. Gunter Trucking Co., Inc., 520 So.2d 624 (Fla. 1st DCA 1988).

6. PD la(4) should be used in other cases, where a defendant’s vicarious liability for punitive damages requires additional proof of “some [independent] fault” by the principal. See Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, 548-49 (Fla. 1981).

7. PD lb(l) is to be given as the preliminary instruction in the second stage of a bifurcated trial. PD lb(2) and (3) are to be given after presentation of evidence and closing argument in the second stage. If PD la(3) or (4) has previously been given in the first stage of the trial, the trial judge may elect to repeat, with modifications as necessary, portions of PD la(3) or (4) for the sake of clarity.

8. Depending upon the length of time between the first and second stages, the trial court may wish to precede these instructions with general instructions 2.1, 2.2, and 3.9.

9. The purpose of the instructions is not to allow parties to relitigate in the second stage of the bifurcated proceeding, by new evidence or by argument, the underlying question decided in the first stage of the proceeding of whether an award of punitive damages is warranted. Rather, the purpose of the instructions is to advise the jury that in the second stage of the proceeding, evidence may be presented and argued which will allow the jury in its discretion to determine the amount of an award of punitive damages, and that the amount which the jury determines appropriate could be zero.

10. Subparagraph (3) should be used only after the court has determined that the evidence includes some additional circumstance that may affect the amount of punitive damages. See, e.g., Owens-Coming Fiberglas Cory, v. Ballard, 749 So.2d 483 (Fla.1999)(listing various such factors). See generally BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). One such circumstance is the assessment of punitive damages against the defendant in prior cases. See W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla.1994).

11. This instruction is to be given when requested by the defendant. See Wransky v. Dalfo, 801 So.2d 239 (Fla. 4th DCA 2001). It appears that this instruction can only be used when evidence of the defendant’s net worth has been introduced. See Bould v. Touchette, 349 So.2d 1181 (Fla-1977); Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975). This instruction is not intended to supplant the court’s function in determining whether a verdict is constitutional. See BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). The Committee notes that many reported decisions have used alternative terms such as “bankrupt” or “economically castigate” to describe this limitation, instead of or in addition to the term “financially destroy.” See, e.g., Lehman v. Spencer Ladd’s Inc., 182 So.2d 402 (Fla.1966); Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). The Committee has selected the term “financially destroy” for its simplicity, but does not intend to foreclose the use of other legally valid terms where appropriate under the facts of the particular case.

COMMENT

PD la(4) is based on Schropp v. Crown Eurocars, Inc., 654 So.2d 1158 (Fla.1995). There may be situations other than employer-employee relationships where vicarious liability for punitive damages may be imposed. See, e.g., Knepper v. Genstar Corp., 537 So.2d 619 (Fla. 3d DCA 1988) (joint venture); Soden v. Starkman, 218 So.2d 763 (Fla. 3d DCA 1969) (partnership).

PD 2 Punitive Damages — Non Bifurcated Procedure:

a. Punitive damages generally:
[Text omitted — no changes to PD 2a are proposed]
b. Direct liability for acts of managing agent, primary owner, or certain others:
[Text omitted — no changes to PD 2b are proposed]
c. Vicarious liability for acts of employee or agent:
[Text omitted — no changes to PD 2c are proposed]
d. Punitive damages — determination of amount:
(1) Causes of action arising prior to October 1, 1999

In determining the amount of punitive damages, if any, to be assessed as punishment and as a deterrent to others, you should decide any disputed factual issues by the greater weight of the evidence. “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case. You should consider the following:

(1) the nature, extent and degree of misconduct and the related circumstances;
[ (2) [the] [each] defendant’s financial resources; and]*
*Refer to Note On Use 3
[ (3) (identify any other circumstance which that the jury may affect consider in determining the amount of punitive damages.) ]*
*Refer to Note on Use 3 7

[However, you may not award an amount that would financially destroy (defendant).]*

*Refer to Note on Use 8

Any punitive damages you assess would be in addition to any compensatory damages you award. You may in your discretion decline to assess punitive damages. [You may assess punitive damages against one defendant and not the other[s] or against more than one defendant. Punitive damages may be assessed against different defendants in different amounts.]

(2) Causes of action arising on or after October 1, 1999

In determining the amount of punitive damages, if any, to be assessed as punishment and as a deterrent to others, you should decide any disputed factual issues by the greater weight of the evidence. “Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case. You should consider the following:

(1) the nature, extent and degree of misconduct and the related circumstances, including the following:
• whether the wrongful conduct was motivated solely by unreasonable financial gain;
• whether the unreasonably dangerous nature of the conduct, together with the high likelihood of injury resulting from the conduct, was actually known by [defendant] [the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant];
• whether, at the time of [loss] [injury] [or] [damage], [defendant] [the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant] had a specific intent to harm (claimant) and the conduct of [defendant] [the managing agent, director, officer, or other person responsible for making policy decisions on behalf of the defendant] did in fact harm (claimant), [and]
[ (2) [the] [each] defendant’s financial resources; and]*
*Refer to Note on Use 3
[ (3) (identify any other circumstance which that the jury may affect consider in determining the amount of punitive damages.) ]*

*Refer to Note on Use 3 7

[However, you may not award an amount that would financially destroy (defendant).]*

*Refer to Note on Use 8

Any punitive damages you assess would be in addition to any compensatory damages you award. You may in your discretion decline to assess punitive damages. [You may assess punitive damages against one defendant and not the otherfs] or against more than one defendant. Punitive damages may be assessed against different defendants in different amounts.]

NOTES ON USE TO PD 2

1. When the demand for punitive damages is based on the doctrines of either vicarious or direct liability, see, e.g., Schropp v. Crown Eurocars, Inc., 654 So.2d 1158 (Fla.1995), PD 2a should be given first if the person whose conduct may warrant punitive damages is a defendant from whom punitive damages are sought. That person should be named in PD 2a where indicated. Then PD 2b or 2c should be given in reference to the direct or vicarious liability of a corporate or partnership defendant. If the person whose conduct may warrant punitive damages is not a defendant, or punitive damages are not sought from that person, the order and content of the charge should be modified to give the substance of PD 2b or PD 2c first followed by PD 2a. In appropriate cases a corporate policy can provide the basis for punitive damages against a corporation even though the particular officers or agents of the corporation responsible for the policy are not discovered or identified. See, e.g., Schropp v. Crown Eurocars, Inc., 654 So.2d 1158 (Fla.1995) (Wells, J., concurring). In those cases, PD 2b will need to be modified accordingly.

2. PD 2a is designed for use in most common law tort cases. However, certain types of intentional torts may require a punitive damage charge appropriate to the particular tort. See, e.g., First Interstate Development Corp. v. Ablanedo, 511 So.2d 536 (Fla.1987); Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla.1985). The same may be true where punitive damages are authorized by statute. See, e.g., Home Insurance Co. v. Owens, 573 So.2d 343, 346 (Fla. 4th DCA 1991).

3. Subparagraph (2) in PD 2d should only be used when evidence of a defendant’s financial worth is introduced. Sub-paragraph (3) in PD 2d should only be used after the court has made a preliminary determination that the relevant evidence includes some additional circumstance which may affect the amount of the punitive damage award. Subparagraph (3) in PD 2d recognizes the jury’s right to consider some additional circumstance which may affect the amount of the punitive damage award. One such circumstance is the assessment of punitive damages against the defendant in prior cases. W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla.1994). Pending further developments in the law, the Committee takes no position on the relevance of other circumstances.

4. PD 2b should be used when direct liability for punitive damages is based on the acts of a managing agent, primary owner, or another whose acts may be deemed the acts of the defendant. See Schropp v. Crown Eurocars, Inc., 654 So.2d 1158 (Fla.1995); Bankers Multiple Line Ins. Co. v. Farish, 464 So.2d 530 (Fla.1985); Winn-Dixie Stores, Inc. v. Robinson, 472 So.2d 722, 724 (Fla.1985); Taylor v. Gunter Trucking Co., Inc., 520 So.2d 624 (Fla. 1st DCA 1988).

5. PD 2c should be used in other cases, where a defendant’s vicarious liability for punitive damages requires additional proof of “some independent fault” by the principal. See Mercury Motors Express, Inc. v. Smith, 393 So.2d 545, 548-49 (Fla.1981).

6. PD 2d should be given after the last of instructions PD 2a, 2b, or 2c that is given.

7. Subparagraph (3) should be used only after the court has determined that the evidence includes some additional circumstance that may affect the amount of punitive damages. See, e.g., Owens-Coming Fiberglas Corp. v. Ballard, 749 So.2d 483 (Fla.1999)(listing various such factors). See generally BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). One such circumstance is the assessment of punitive damages against the defendant in prior cases. See W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla.1994).

8. This instruction is to be given when requested by the defendant. See Wransky v. Dalfo, 801 So.2d 239 (Fla. 4th DCA 2001). It appears that this instruction can only be used when evidence of the defendant’s net worth has been introduced. See Bould v. Touchette, 349 So.2d 1181 (Fla.1977); Rinaldi v. Aaron, 314 So.2d 762 (Fla.1975). This instruction is not intended- to supplant the court’s function in determining whether a verdict is constitutional. See BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991). The Committee notes that many reported decisions have used alternative terms such as “bankrupt” or “economically castigate” to describe this limitation, instead of or in addition to the term “financially destroy” See, e.g., Lehman v. Spencer Ladd’s Inc., 182 So.2d 402 (Fla.1966); Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). The Committee has selected the term “financially destroy” for its simplicity, but does not intend to foreclose the use of other legally valid terms where appropriate under the facts of the particular case.

COMMENT

PD 2c is based on Schropp v. Crown Eurocars, Inc., 654 So.2d 1158 (Fla.1995). There may be situations other than employer-employee relationships where vicarious liability for punitive damages may be imposed. See, e.g., Knepper v. Genstar Corp., 537 So.2d 619 (Fla. 3d DCA 1988) (joint venture); Soden v. Starkman, 218 So.2d 763 (Fla. 3d DCA 1969) (partnership).


text:
    DR. PHILLIPS, INC., Appellant, v. CITY OF ORLANDO, Appellee.
    No. 5D03-1186.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2004.
    Rehearing Denied March 10, 2004.
    Catherine Brown, Orlando, for Appellant.
    W. Scott Gabrielson of Mateer & Har-bert, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Taylor v. Cooper, 60 So.2d 534 (Fla.1952).

SAWAYA, C.J., GRIFFIN and MONACO, JJ., concur.


author: STEVENSON, J.

text:
    Edward WERNER, Appellant, v. Michelle SCHARLOP, Appellee.
    No. 4D03-1829.
    District Court of Appeal of Florida, Fourth District.
    Feb. 18, 2004.
    Rehearing Denied April 12, 2004.

      Edward Werner, Surfside, pro se.
    Beverly B. Parker of Daugherty & Parker, Fort Lauderdale, for appellee.
   STEVENSON, J.

Edward Werner appeals a final judgment of injunction for protection against repeat violence, challenging the sufficiency of the evidence and the trial court’s limitation of his cross-examination. We affirm.

Briefly summarized, the evidence showed that after a single date with the victim, despite her repeatedly telling Werner that she wanted no further contact with him and the passage of more than one year, Werner continued to call, write letters and send e-mails to the victim. The victim provided no encouragement to these repeated contacts. In addition, Werner downloaded information about bachelorette parties from a pornographic web site and sent it to the victim at her place of employment, an elementary school, and repeatedly tried to contact her at school, even after being told by the school resource officer not to call or visit there. We find that the evidence adequately supported the trial court’s determination that Werner’s actions caused or created “substantial emotional distress,” which is all that is required when the injunction is predicated upon repeated acts of stalking. See §§ 784.046(l)(b), 784.048(l)(a), 784.048(2), Fla. Stat. (2002); McMath v. Biemacki, 776 So.2d 1039, 1040 (Fla. 1st DCA 2001)(holding that objective, reasonable person standard must be applied in determining whether conduct created “substantial emotional distress”). Thus, Werner’s argument that the evidence was insufficient to support the trial court’s ruling because the victim was not threatened and had no reason to fear imminent violence is without merit.

Further, we find no error in the trial court’s limitation of Werner’s cross-examination of the victim. Werner’s cross-examination was reasonably extensive and trial judges are afforded broad discretion in controlling the scope of cross-examination, see, e.g., D.W.G. v. Department of Children & Families, 833 So.2d 238, 242 (Fla. 4th DCA 2002); we find no abuse of that discretion here.

AFFIRMED.

STONE and WARNER, JJ., concur.


text:
    Victor SANCHEZ, Appellant, v. WOERNER MANAGEMENT, INC. & Atlantic Mutual Co., Appellees.
    No. 1D03-1093.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2004.

      David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appellant.
    Gerald K. McKim and Robert L. Teitler of Walton, Lantaff, Schroeder & Carson, LLP, Miami, for Appellees.
   PER CURIAM.

Claimant, Victor Sanchez, challenges the reasonableness of an attorney fee awarded him in a workers’ compensation case in which the judge of compensation claims (JCC) reduced by nearly half the hours that claimant’s counsel represented he reasonably expended in securing benefits on behalf of his client. Because we conclude the order is utterly lacking any competent, substantial evidence in support of the reduction, we reverse the attorney fee ordered and remand the case with directions for the JCC to enter a fee in the requested amount of 137.1 hours times the hourly rate of $225.

The most telling deficiency in the fee awarded is that no evidence was submitted in behalf of the numerous itemized reductions. Appellee, the employer/carrier, made no effort to cross-examine claimant’s lawyer regarding the reasonableness of the fee he submitted for approval. The decreases appear to rest entirely upon the JCC’s subjective belief and personal experience of what to him seemed reasonable for the amount of time represented by counsel in serving his client. Such an analysis makes informed appellate review impossible. See, e.g., Feinberg v. Miami-Dade County, 788 So.2d 417 (Fla. 1st DCA 2001) (reversing the JCC’s finding that 76.7 of the claimant’s attorney’s hours were “excessive and unrelated to the benefits obtained,” because the finding was unsupported by the record); Smith v. U.S. Sugar Corp., 624 So.2d 315 (Fla. 1st DCA 1993) (reversing the JCC’s conclusion that $150 was the hourly rate claimants’ attorneys usually commanded in his district, because the only evidence was testimony that $200 was a reasonable rate, and the JCC is bound to resolve conflicts based upon evidence of record); G & A Bldg. Maint. v. Makuski, 510 So.2d 1074 (Fla. 1st DCA 1987) (reversing the JCC’s reduction of the hours expended by claimant’s counsel from 43.9 hours to 35 hours, because there was no record support for the reduction).

The employer/carrier attempts to justify the fee awarded by pointing out it submitted a memorandum of law into evidence contesting certain of the billing items supporting the fee petition. We agree with appellant that the unsworn memorandum had no evidentiary value, and therefore should not have been admitted as an exhibit. It is in the nature of a pleading and not an evidentiary document.

REVERSED and REMANDED for further consistent proceedings.

ERVIN, BARFIELD and POLSTON, JJ., CONCUR.

      . Claimant does not dispute the amount of the hourly fee.

      . See Florida Rule of Workers’ Compensation Procedure 4.144(c), which states: "Within 20 days after the verified petition is served, the opposing party or parties shall respond to the petition and shall include a recitation of all matters controverted in the verified petition which are in dispute.” The consequence of a party’s failure to file a timely response to the petition can result in the acceptance of the allegations in the petition as true. See rule 4.144(d), and Florida Administrative Code rule 60Q-6.124(3)(b).


text:
    Stephen MADDRIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-273.
    District Court of Appeal of Florida, Fourth District.
    Feb. 25, 2004.
    Rehearing Denied April 8, 2004.
    Stephen Maddrie, Malone, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Hemandez-Molina v. State, 860 So.2d 483 (Fla. 4th DCA 2003). We again certify conflict with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), rev. dismissed, 821 So.2d 302 (Fla.2002).

FARMER, C.J., KLEIN and MAY, JJ., concur.


author: SHARP, W., J.

text:
    Christopher J. LUMBERT, Appellant, v. ESTATE OF Molly Joy Gay CARTER, Appellee.
    No. 5D03-772.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2004.
    Rehearing Denied March 26, 2004.

      Charles D. Hood, Jr., and K. Judith Lane, Smith, Hood, Perkins, Loucks, Stout & Orfinger, P.A., Daytona Beach, for Appellant.
    Donald E. Hawkins and David A. Burt of Hawkins, Hawkins & Burt, LLP., Day-tona Beach, for Appellee.
   SHARP, W., J.

Christopher Lumbert appeals from an order of the probate court which ruled that the proper beneficiaries under Molly Joy Carter’s testamentary trust, which was established in her will, were Carter’s brothers and sister rather than Carter’s deceased daughter’s (Lisa Lumbert) estate, of which he was the beneficiary. The trial court reasoned that because Lisa died without children surviving her or having exercised a power of appointment given her by the testamentary trust, that the undistributed assets of the trust should be distributed to Carter’s brothers and sister, the named persons to inherit in the event Lisa died before attaining certain ages specified in the trust, and if she did not exercise her power of appointment. We reverse.

Both parties agree that there are no disputed issues of fact involved in this case. They also agree the wording of the trust is clear and unambiguous. However, they disagree in their interpretation of the language of the trust. Our review of this case is de novo.

■ Carter executed her will on February 23, 1994. She contemplated that Lisa, her only child, would be her sole beneficiary, as well as her personal representative. The will set up a testamentary trust to distribute the assets of Carter’s estate. Lisa was to receive distributions of the corpus of the trust in three stages, as she attained benchmark ages: one-third at age 35; one-half of the balance at age 40; and the remainder at age 45. In the event that Lisa did not survive to those ages, and if she did not exercise a power of appointment given to her under the trust (which she did not), the balance of the trust was to be distributed per stirpes to her lineal descendants and failing that to Carter’s brothers and sister.

Lisa married Lumbert. Subsequently, Carter died and her will was admitted to probate on August 30, 2000. Lisa was appointed to serve as Carter’s personal representative. But she survived her mother for only fourteen months. On October 15, 2001, she died at the age of forty-one.

At that time, due to a delay in the administration of the estate, Lisa had only received a $30,000.00 distribution from the trust. It had only been funded to the extent of $100,000.00. The balance of the approximately 1.5 million dollar Carter estate was in the process of being administered.

The trial court determined that Article IV E. of Carter’s will was controlling, as to Carter’s intent regarding distributions to Lisa, under these circumstances. It provided in part:

If my daughter shall die, after this trust has been established for her benefit and before the entire principal of her fund has been distributed to her in fee, then in such event the Trustee shall distribute this trust fund (or the remainder thereof then held in trust) in such proportions and in such manner, outright or in trust or otherwise, to or for the benefit of any one or more persons, or corporations as my daughter may appoint by specific reference thereto in her Will admitted to probate; provided however that my daughter shall have no power to appoint the principal of this trust or any part thereof to herself or to her estate, or to her creditors, or to the creditors of her estate.... [If Lisa fails to appoint] then such part of the principal ... shall be distributed in fee, equally, unto her lineal descendants, per stirpes, or if none, unto my brothers and sister ...

However, reliance on that provision alone defeats two prior provisions of the will. Article TV C. provides:

When my daughter shall attain the age of 35 years, the Trustee shall distribute one-third of the trust corpus to her in fee and free of trust. Upon her attaining the age of 40 years, the Trustee shall distribute one-half of the then remaining trust corpus to my daughter in fee and free of trust. Upon her attaining the age of 45 years, this trust shall terminate and the Trustee shall distribute the balance of the then remaining trust corpus to my daughter in fee and free of trust.

Article IV D. provides:

If my daughter shall have attained any of such respective ages at the time when such trust fund is directed to be set aside for her, the Trustee shall distribute to my daughter such part of or parts or all, as the case may be, of such trust fund (instead of holding same in trust) as are directed to be distributed to her upon attaining such respective ages.

These provisions clearly mandate that Lisa’s proportional shares of the trust corpus vested instantly, upon her attaining the designated ages. The Trustee was directed to distribute to Lisa her designated shares, “in fee and free of trust,” upon her attaining the benchmark ages. Distribution of the corpus was merely a ministerial act. In fact, had Lisa attained the age of 45 prior to her death, no trust should have been established.

Article IV E. must be read in a more limited manner than it was interpreted by the probate court, in order to provide meaning or context for Article IV C. and D. Article IV E. was intended to deal with the situation in which Lisa died before attaining all the benchmark ages specified and there were assets then remaining in the trust to which she was not entitled to receive in fee and free of trust. Since at the time Lisa died she was not yet 45, the remaining approximately one-third of the trust assets to which Lisa was not entitled to have distributed “in fee and free of trust,” should be distributed pursuant to Article IV E., to the default beneficiaries, Carter’s brothers and sister. But the approximate two-thirds of the corpus to which Lisa had a vested right prior to her death must pass to her estate.

The third district resolved a similar fact situation in a similar manner. In that case, a beneficiary died before a trust was established. In re Bowen’s Will, 240 So.2d 318 (Fla. 3d DCA 1970). The testator, Bowen, died on January 25, 1967 leaving a will which set up a residuary trust. The trust provided for payments to Bowen’s two brothers, Cecil and William. Cecil died approximately 20 days before the trust was funded. The trial court ruled that the trust had not become an effective legal entity until it was actually funded, and that the trustee was only authorized to pay the beneficiaries who were living at the time the trust was funded. The appellate court reversed. It held that then section 731.21, Florida Statutes (1967) mandated that the right to benefits under a testamentary trust vests upon the death of the testator, and that the establishment or funding of the trust, or lack thereof, was not determinative. See also Estate of Miller v. Commissioner of Internal Revenue, 58 T.C. 699, 1972 WL 2515 (1972).

Section 731.21 provided:

Vesting of legacies or devises.- — The death of the testator is the event which vests the right to legacies or devises unless the testator in his will has provided that some other event must happen before a legacy or devise shall vest.

The current applicable statute, section 732.514, Florida Statutes (2000), has not been substantially changed, but it has been renumbered. It provides:

Vesting of devises. — The death of the testator is the event that vests the right to devises unless the testator in his or her will has provided that some other event must happen before a devise shall vest, (emphasis added)

The law favors the early vesting of estates. Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925). There is a presumption that a legacy or bequest is intended to be vested, and it applies more forcefully where the beneficiary is the testator’s child. Sorrels. Similarly, in Rice v. Greenberg, 406 So.2d 469, 473 (Fla. 3d DCA 1981), the court commented that it was committed to the doctrine that remainders vest at the death of the testator, or at the earliest possible date, unless there is a clear intention expressed to postpone the time of vesting. In cases of doubt as to whether an interest is vested or contingent, the doubt should be resolved in favor of vesting. Rice.

In this case, the only event or conditions precedent required for vesting was Lisa’s attainment of any of the benchmark ages as to her proportional share. There is no requirement in the will or trust that the funds to which she was entitled had to be actually distributed to her before her right vested, or that the trust had to be fully funded. Such an., interpretation would place too much power in a trustee or personal representative to alter rights of beneficiaries simply by delaying testamentary trust distributions, or funding of testamentary trusts.

We conclude that Articles IV C. and TV D. of the will, and section 732.514, vested in Lisa her proportional shares when she attained the ages of 35 and 40, in fee and free of trust. See Sorrels; Rice; Bowen. The actual distribution of these shares was merely a ministerial act. However, the assets remaining in the corpus at the time of Lisa’s death, and which had not yet vested in her due to her failure to attain the last benchmark age, should be distributed pursuant to Article IV E. of the will.

REVERSED AND REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . See Ware Else, Inc. v. Ofstein, 856 So.2d 1079, 1081 (Fla. 5th DCA 2003) (and cases cited therein); NCP Lake Power, Inc. v. Florida Power Corp., 781 So.2d 531, 536 (Fla. 5th DCA 2001) (and cases cited therein). See also Meier v. Denver National Bank, 164 Colo. 25, 431 P.2d 1019 (1967); Kelly v. Estate of Johnson, 788 N.E.2d 933 (Ind.App.2003); King v. Snohomish County, 146 Wash.2d 420, 47 P.3d 563 (2002); Massachusetts Co. v. Evans, 924 P.2d 1119 (Colo.App.1996).

      . Lisa left no lineal descendants.

      . The computations required on remand may not be simple. It will be necessary to compute and pro-rate growth or loss in the value of the assets, ordinary realized capital gains or losses, reasonable expenses, and unrealized capital gains or losses.


author: HOROWITZ, ALFRED J., Associate Judge.

text:
    COLLINS MOVING & STORAGE CORPORATION OF SOUTH CAROLINA, d/b/a Collins Moving & Storage, Appellant, v. Ira Michael KIRKELL and Sandra Kirkell, Appellees.
    Nos. 4D02-4806, 4D03-996.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.
    Rehearing Denied March 30, 2004.

      Bard D. Rockenbach of Sellars, Marion & Bachi, P.A., West Palm Beach, for appellant.
    Donna M. Greenspan of Edwards & An-gelí, LLP, West Palm Beach, for appellees.
   HOROWITZ, ALFRED J., Associate Judge.

The Defendant Collins Moving & Storage of South Carolina (Collins) appeals judgments awarding the Kirkells pre- and post-judgment interest calculated according to Florida law and further awarding them attorney’s fees. We affirm in part and reverse in part.

. The Kirkells claimed that certain household goods shipped through Collins were damaged and others were missing. They sought damages pursuant to a strict liability claim brought under the Carmack Amendment to the Interstate Commerce Act (Carmack). The jury found Kirkells’ damages pursuant to the Carmack Claim were $64,031.

The Kirkells then filed a motion for final judgment in accordance with the verdict in which they asked the trial court to award pre- and post-judgment interest at the rate set by section 55.03, Florida Statutes (2002). They also asserted that because Collins had not disclosed that they had a right to seek arbitration, and a decision resolving the dispute had not been rendered through arbitration, the trial court should award attorney’s fees pursuant to 49 U.S.C. § 14708. The trial court entered final judgment for $64,031 plus $14,004 in pre-judgment interest calculated at the Florida statutory rate. It also awarded the Kirkells attorney’s fees in the amount of $120,000.

This case was brought under the Carmack Amendment to the Interstate Commerce Act which governs the liability of inland common carriers for losses, damages, or injuries to goods during shipment. King Ocean Cent. Am., S.A. v. Precision Cutting Servs., Inc., 717 So.2d 507, 511 (Fla.1998).

That the (Carmack Amendment) supersedes all the regulations and policies of a particular state upon the same subject results from its general character. It embraces the subject of the liability of the carrier under a bill of lading which he must issue, and limits his power to exempt himself by rule, regulation, or contract. Almost every detail of the subject is covered so completely that there, can be no rational doubt but that Congress intended to take possession of the subject, and supersede all state regulation with reference to it. Adams Express Co. v. Croninger, 226 U.S. 491, 505-506, 33 S.Ct. 148, 57 L.Ed. 314 (1913).

Collins argues that, because the Carmack Amendment preempts state law, the trial court was required to utilize the federal interest rate set in 28 U.S.C. § 1961 when calculating the pre- and post-judgment interest rather than the Florida interest rate set in section 55.03, Florida Statutes. This court reviews the trial court’s choice of law determination de novo. Henry v. Windjammer Barefoot Cruises, 851 So.2d 731, 734 (Fla. 3d DCA 2003).

Collins acknowledges that the Carmack Amendment does not expressly address the issue of pre- and post-judgment interest. It argues, however, that federal law has preempted state law on the issue of pre- and post-judgment interest, because the Carmack Amendment has preempted state law regarding “all damages resulting from any failure to discharge a carrier’s duty.” Southeastern Express Co. v. Pastime Amusement Co., 299 U.S. 28, 29, 57 S.Ct. 73, 81 L.Ed. 20 (1936). Collins reasons that because prejudgment interest is an element of damages in Florida, the assessment of same should be pursuant to federal law.

Regarding post-judgment interest, Collins relies on Fine Foliage of Florida, Inc. v. Bowman Transportation, Inc., 698 F.Supp. 1566, 1571 (M.D.Fla.1988), in which the district court reasoned that applying the uniform federal rate established in 28 U.S.C. § 1961, rather than the Florida rate, complied with the goal of the Carmack Amendment to establish consistent federal law in the commerce area. We disagree with that decision. 28 U.S.C. § 1961, provides in pertinent part as follows:

(a) Interest shall be allowed on any money judgment in a civil case recovered in a district court. Execution therefor may be levied by the marshal, in any case where, by the law of the State in which such court is held, execution may be levied for interest on judgments recovered in the courts of the State. Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 1 year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding [.] the date of the judgment....
* * :|:
(c) (4) This section shall not be construed to affect the interest on judgment of any court not specified in this section.

Section 1961 does not control the issue of post-judgment interest when a case is tried in state court. First, it limits its application to “any money judgment in a civil case recovered in a district court” and does not apply to “any judgment of any court not specified in the section.” Second, the statute acknowledges the partial preeminence of state law on the issue, by limiting the award of post-judgment interest to district courts in states where interest is allowed by state law.

The award of pre-judgment interest is within the sound decision of the trial court and not addressed in 28 U.S.C. § 1961. See Jones v. UNUM Life Ins. Co. of Am., 223 F.3d 130 (2d Cir.2000); See Sec. Ins. Co. v. Old Dominion Freight Line, Inc., 2003 WL 22416139, *1, 2003 U.S. Dist. Lexis 18922, 3-4 (S.D.N.Y.2003).

Collins argues that applying state interest laws defeats one purpose of the Car-mack Amendment which is to provide a uniform measure of damages in interstate commerce, and that the use of state interest rates for pre- and post-judgment interest creates a potential disparity between states that encourages forum shopping. The specific statutory scheme created by Congress, however, has been in existence almost 100 years, and Congress has had ample opportunity to amend it to make it clear that it intended to preempt state legislation on interest. The only arguable reference to state interest rates in the legislation relevant to this case is in 28 U.S.C. § 1961, and it limits the award of post-judgment interest to states where state law provides for such recovery. This is an acknowledgment of the states’ rights to control the issue of interest awards rather than a preemption of such right.

We therefore find no error in awarding pre- and post-judgment interest under state law, on a claim brought under the Carmack Amendment.

Collins next contends that the trial court erred by awarding the appellee attorney’s fees pursuant to 49 U.S.C. § 14708. This provides in pertinent part as follows:

(a) Offering shippers arbitration. As a condition of registration under section 13902 or 13903, a carrier ... must agree to offer in accordance with this section to shippers of household goods arbitration as a means of settling disputes between such carriers and shippers of household goods concerning damage or loss to the household goods transported.
(b) Arbitration requirements.
* * *
(2) Notice of arbitration procedure. The carrier must provide the shipper an adequate notice of the availability of neutral arbitration, including a concise easy-to-read, accurate summary of the arbitration procedure, any applicable costs, and disclosure of the legal effects of election to utilize arbitration. Such notice must be given to persons for whom household goods are to be transported by the carrier before such goods are tendered to the carrier for transportation.
* * *
(d) Attorney’s fees to shippers. In any court action to resolve a dispute between a shipper of household goods and a carrier providing transportation or service ... concerning the transportation of household goods by such carrier, the shipper shall be awarded reasonable attorney’s fees if—
(1) the shipper submits a claim to the carrier within 120 days after the date the shipment is delivered or the date the delivery is scheduled, whichever is later;
(2) the shipper prevails in such court action; and
(3) (A) a decision resolving the dispute was not rendered through arbitration under this section within the period provided under subsection (b)(8) of this section or an extension of such period under such subsection; or
'(B) The court proceeding is to enforce a decision rendered through arbitration under this section and is instituted after the period for performance under such decision has elapsed.

The award of fees requires an interpretation of the federal statute which is reviewed de novo. Racetrac Petroleum, Inc. v. Delco Oil, Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998).

Under the Carmack Amendment, § 14706, there is no provision for attorney fees. The Kirkells contend that because Collins failed to give notice of the availability of neutral arbitration Collins is liable for attorney fees under § 14708. It is undisputed that Collins did not give notice and that the Kirkells brought their claim in a timely manner and prevailed. The Kirkells contend that, since the matter was not submitted to arbitration,- a “decision resolving the dispute was not rendered through arbitration ...” 49 U.S.C. § 14708(d)(3)(A) and therefore attorney fees should be awarded.

Clearly the Kirkells knew of the availability of arbitration as an alternate dispute resolution option, notwithstanding Collins’s failure to give notice of same. They sought attorney’s fees in their complaint under 49 U.S.C. § 14708. There is no showing of prejudice to the Kirkells by Collins’ failure to give notice.

We disagree with the Kirkells’ contention that, since a decision regarding this claim was not rendered through arbitration, they have satisfied the requirements of 49 U.S.C. § 14708(d)(3)(A). Section 14708 is a separate statutory provision entitled “Dispute settlement program for household goods carriers.” The provision authorizing . an award of attorney’s fees under section 14708 would come into play only in a case in which a party has invoked the alternative dispute resolution provisions of section 14708. In this case neither of the parties did so and accordingly section 14708 is not applicable.'

The Kirkells rely on Ward v. Allied Van Lines, 231 F.3d 135 (4th Cir.2000). In Ward, the court found that the shipper, Ward, 'had no knowledge of the arbitration procedure and the carrier failed to give required notice. The decision in Ward was controlled by the fact that the shipper was without knowledge of the arbitration option. Here the Kirkells acknowledged the arbitration option, but sought attorney’s fees under the federal statute without submitting a claim through the arbitration procedure. Their position is contrary to the terms and intent of 49 U.S.C. § 14708, and unsupported by any authority-

Accordingly, we affirm the award of post-judgment interest, but reverse the award of attorney’s fees.

KLEIN and MAY, JJ., concur.


author: HAZOURI, J.

text:
    MEBA MEDICAL & BENEFITS PLAN and Allen Szymczak, Appellants, v. Tracey LAGO, Appellee.
    No. 4D03-1571.
    District Court of Appeal of Florida, Fourth District.
    March 3, 2004.

      Christine Williams and Robert H. Ingle, III, of Gordon, Feinblatt, Rothman, Hoff-berger & Hollander, LLC, Baltimore, Maryland, Marie Tomassi and Edward C. La-rose of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Peters-burg, for appellants.
    Ted P. Galatis, Jr., of Andrews & Gala-tis, Fort Lauderdale, for appellee.
   HAZOURI, J.

MEBA Medical and Benefits Plan and Allen Szymczak, as administrator of the Plan (hereinafter collectively referred to as MEBA), appeal from the trial court’s final judgment of dismissal of MEBA’s claim against Tracey Lago.

In this opinion, we consider whether the Federal Employees Retirement Income Security Act of 1974 (ERISA)(29 U.S.C. § 1001 et seq.) pre-empts a common law cause of action by an ERISA fiduciary against an ERISA plan beneficiary for breach of a reimbursement agreement concerning the reimbursement of medical benefits paid by the fiduciary. We conclude that it does and affirm.

On April 15, 2002, MEBA filed a complaint seeking reimbursement for medical benefits paid to Lago. The Plan is a multi employer-employee welfare benefit plan. Lago, the wife of a participant in the Plan, was injured in an automobile accident on November 12, 1996, and as a result, she incurred substantial medical expenses. MEBA paid medical expenses on behalf of Lago in excess of $70,000. Within the Plan documents there is a subrogation reimbursement clause contained in Article XVII-A of the Rules and Regulations of the Plan which states:

In the event any benefit is paid by the Plan on behalf of an Eligible Employee (or his Dependent), the Plan shall be subrogated and succeed to the claimant’s rights of recovery therefor against any person or organization except against insurers on policies of insurance issued to and in the name of the claimant. The claimant shall execute and deliver such instrument and take such action as the Plan may require to secure such rights. The claimant shall do nothing to prejudice the rights given the Plan by this Article XVII-A without its written consent.

On December 21, 1996, the Plan, Lago and Lago’s husband executed a Subrogation and Reimbursement Agreement which provided in pertinent part:

I(We) understand that in accordance with the Regulations of the MEBA Medical and Benefits Plan (“Plan”), if payments are made thereunder for any treatment, services, or disability because of injury to or sickness of myself or my eligible dependent as to which I or my eligible dependent may have a lawful claim, demand or right against a third party or parties (excluding insurers on policies of insurance issued to and in the name of my eligible dependent) for indemnification, damages or other payment with respect to such injury or sickness, that I am or my eligible dependent is required to subrogate such claim, demand or right to the Plan to the extent of payments made under the Plan.

Lago filed suit in Georgia against Kermit Sutton for damages sustained in the accident. Lago settled her lawsuit on April 30, 1999, and was paid a substantial lump-sum amount. She did not inform the Plan of the settlement or obtain its written consent. Despite the language of the sub-rogation and reimbursement clause of Article XVII-A and the execution of the sub-rogation and reimbursement agreement, Lago refused to reimburse, and MEBA filed this suit based on the reimbursement agreement.

Lago filed a motion to dismiss the complaint arguing that MEBA’s causes of action were pre-empted and superseded by ERISA and, therefore, MEBA had failed to state a cause of action. MEBA responded by arguing that its breach of contract claim does not relate to an employee benefit plan and therefore is not pre-empt-ed by ERISA. The trial court dismissed the complaint with prejudice.

The standard of review of orders granting motions to dismiss with prejudice is de novo. See, e.g., Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078 (Fla. 2d DCA 2002). In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. In assessing the adequacy of the pleading of a claim, the court must accept the facts alleged therein as true and all inferences that reasonably can be drawn from those facts must be drawn in favor of the pleader. See Taylor v. City of Riviera Beach, 801 So.2d 259 (Fla. 4th DCA 2001).

The Plan is an employee benefit plan pursuant to ERISA. 29 U.S.C. § 1003. ERISA provides for certain civil actions by fiduciaries such as MEBA. Section 502(a)(3) authorizes a civil action:

by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or (B) to obtain other appropriate equitable relief (I) to redress such violations or (ii) to enforce any provisions of this subchapter or the terms of the plan.

29 U.S.C. § 1132(a)(3). Subsection (e)(1) of 29 U.S.C. § 1132 provides for jurisdiction:

Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by the Secretary or by a participant, beneficiary, fiduciary, or any person referred to in section 1021(f)(1) of this title. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under paragraphs (1)(B) and (7) of subsection (a) of this section.

Finally, 29 U.S.C. § 1144 provides in pertinent part:

(a) Supersedure; effective date
Except as provided in subsection (b) of this section, the provisions of this subchapter and subchapter III of this chapter shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1,1975.
(c) Definitions
For purposes of this section:
(1) The term “State law” includes all laws, decisions, rules, regulations, or other State action having the effect of law, of any State. A law of the United States applicable only to the District of Columbia shall be treated as a State law rather than a law of the United States.

As set forth above, ERISA’s preemption clause provides that ERISA will “supersede any and all State laws” to the extent that those laws “relate to” any employee benefit plan that is subject to ERISA. For purposes of pre-emption, “state law” includes not only statutes but state common law tort and contract actions. See Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 48, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987) (“Unless these common law causes of action fall under an exception to § 514(a)[29 U.S.C. § 1144], therefore, they are expressly pre-empted.”). The Supreme Court has interpreted ERISA’s pre-emption provision broadly. A state law relates to an employee benefit plan “if it has a connection with or reference to a plan.” Shaio v. Delta Air Lines, Inc., 463 U.S. 85, 97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983).

MEBA acknowledges that the weight of authority is that ERISA preempts state common law causes of action including breach of contract claims but argues that we should adopt the rationale in Carpenters Health & Welfare Trust Fund for California v. McCracken, 83 Cal. App.4th 1365, 100 Cal.Rptr.2d 473 (2000). We find McCracken distinguishable. In McCracken, Rodney McCracken’s daughter was injured in a pedestrian/motor vehicle accident. She sued the tortfeasor and, in the interim, the plan paid her medical expenses. Following the accident, McCracken and his daughter signed a reimbursement agreement acknowledging their obligation to reimburse the plan if they recovered. A partial settlement was made and the plan demanded reimbursement. The McCrackens refused and the plan sued McCracken in federal court for restitution. That suit for restitution was settled and the McCrackens agreed to pay part of the amount due and then to pay “up to 50% of proceeds received by way of ‘judgment, arbitration award, settlement or otherwise’ up to a total of $51,763.42 in connection with the McCrackens’ remaining claim against the City of Modesto.... ” Id. at 1368, 100 Cal.Rptr.2d 473. Thereafter, the McCrackens settled with the city without telling the plan and then refused to pay, contending that the plan had no recourse under ERISA in either federal or state court. The plan sued in state court for common law breach of contract. The trial court dismissed for lack of subject matter jurisdiction and the plan appealed.

The issue before the appellate court was whether the plan’s common law cause of action against the McCrackens for breach of the settlement agreement was preempted by ERISA. As stated above, the pre-emption provision at 29 U.S.C. § 1144(a) pre-empts “any and all State laws insofar as they ... relate to any employee benefit plan” governed by ERISA. The court did not have to decide whether the original action related to an employee benefit plan, only whether the subsequent (one step removed) breach of the settlement agreement related to the employee benefit plan. In finding that it did not, the court stated:

Accordingly, in determining the breadth of ERISA preemption, courts “must go beyond the unhelpful text and the frustrating difficulty of defining its key term, and look instead to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive.” (Travelers, supra, 514 U.S. at p. 656, 115 S.Ct. 1671.) “ERISA was passed by Congress in 1974 to safeguard employees from the abuse and mismanagement of funds that had been accumulated to finance various types of employee benefits. [Citation.]” (Massachusetts v. Morash (1989) 490 U.S. 107, 112-113, 109 S.Ct. 1668, 104 L.Ed.2d 98.) “The focus of the statute thus is on the administrative integrity of benefits plans— which presumes that some type of administrative activity is taking place. [Citations.] [¶] The foregoing makes clear .,. why ERISA is concerned with regulating benefit ‘plans’.... ” (Fort Halifax Packing Co. v. Coyne (1987) 482 U.S. 1, 15-16, 107 S.Ct. 2211, 96 L.Ed.2d 1; see also id. at p. 7, 107 S.Ct. 2211 [“ERISA’s pre-emption provision does not refer to state laws relating to ‘employee benefits,’ but to state laws relating to ‘employee benefit plans ’ ... ”].) In this case, although the" settlement agreement between [the plan] and the McCrackens relates to employee benefits, it does not relate to an employee benefit plan.

McCracken, 83 Cal.App.4th at 1372, 100 Cal.Rptr.2d 473.

In the instant case, we have a claim for breach of the initial subrogation and reimbursement agreement, not a breach of the settlement agreement as in McCracken. Unlike the settlement agreement in McCracken, which resolved a pending lawsuit, the Reimbursement and Subrogation Agreement executed by Lago and MEBA directly arises from Article XVII-A of the MEBA Plan. At oral argument, counsel for MEBA conceded that without the provisions of Article XVII-A, MEBA would not be entitled to any reimbursement and it would be unable to require Lago to execute the Subrogation and Reimbursement Agreement.

MEBA asserts that the recent decision by the United States Supreme Court in Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (2002), has changed the legal landscape of pre-emption. We disagree.

In Knudson, the Supreme Court considered a case with facts similar to those in the.instant case but which was originally filed in federal court. The case arose out of an automobile accident which rendered Knudson a quadriplegic. Knudson was covered by a health and welfare plan through her husband’s employer. The plan covered $411,157.11 in medical expenses of which Greah-West paid all but $75,000. The plan had a reimbursement provision which gave it the right to any recovery paid to the beneficiary by a third party, not to exceed the amount of benefits paid by the plan. The reimbursement provision further imposed personal liability on the beneficiary if she were to recover from a third party and failed to reimburse the plan. The plan assigned to Greah-West all its rights under the reimbursement provision.

In 1993, Knudson filed a lawsuit in California state court against several parties, including the car manufacturer, for her injuries. It was settled and portions of the settlement were designated to different accounts. For Knudson’s medical care, $256,745.30 was put in a Special Needs Trust account. The defendants put $373,426 in an account for attorney’s fees and costs, $5,000 to reimburse the MediCal program, and $13,828.70 to satisfy Great-West’s claim under the reimbursement provision. The state court approved the settlement and ordered the defendant to pay the amount allocated to the Special Needs Trust account directly into that account and the remainder to be paid to Knudson’s attorney who was directed to disperse the above-stated amounts to Medi-Cal and Great-West.

Great-West filed a federal court action under ERISA seeking injunctive and declaratory relief, arguing it was entitled to $411,157.11 of the proceeds of the settlement as provided by the reimbursement provision of the plan. The district court granted Knudson summary judgment, finding the settlement limited Great-West’s right to reimbursement under the plan to $13,828.70. Great-West appealed. The Ninth Circuit affirmed on other grounds, finding “judicially decreed reimbursement for payments made to a beneficiary of an insurance plan by a third party is not ‘equitable relief and is therefore not authorized by § 502(a)(3).” Id. at 209, 122 S.Ct. 708 (citing Great-West Life & Annuity Ins. Co. v. Knudson, 208 F.3d 221 (9th Cir.2000)(unpublished)). The Supreme Court granted certiorari on the issue of whether the relief Great West sought was equitable relief available under § 502(a)(3) or legal relief which is not. Id. The Supreme Court found that Greafi-West sought “legal relief — the imposition of personal liability on [Knudson] for a contractual obligation to pay money” which was not available under § 502(a)(3). Id. at 221, 122 S.Ct. 708.

In arriving at its conclusion, the Supreme Court stated:

In the end, petitioners ask us to interpret § 502(a)(3) so as to prevent them “from being deprived of any remedy under circumstances where such a result clearly would be inconsistent with a primary purpose of ERISA,” namely, the enforcement of the terms of a plan.
See Brief for Petitioners 30-31. We note, though it is not necessary to our decision, that there may have been other means for petitioners to obtain the essentially legal relief that they seek. We express no opinion as to whether petitioners could have intervened in the state-court tort action brought by respondents or whether a direct action by petitioners against respondents asserting state-law claims such as breach of contract would have been pre-empt-ed by ERISA. Nor do we decide whether petitioners could have obtained equitable relief against respondents’ attorney and the trustee of the Special Needs Trust, since petitioners did not appeal the District Court’s denial of their motion to amend their complaint to add these individuals as codefendants.

Id. at 220, 122 S.Ct. 708 (emphasis added).

MEBA relies upon dicta in Knudson, in claiming there must be a state remedy if there is not one under ERISA. We do not read this dicta as a mandate that state courts provide an ERISA Plan with a remedy; to the contrary, the Supreme Court was careful to state that it expressed “no opinion” as to whether there is a state law remedy.

We recognize that the holding in Knud-son, combined with the pre-emption of state law places MEBA in a “catch-22” situation with no apparent remedy and creates a legal conundrum. However, we are guided by Justice Scalia’s cautionary observation in Knudson:

We have observed repeatedly that ERISA is a “ ‘comprehensive and reticulated statute,’ the product of a decade of congressional study of the Nation’s private employee benefit system.” Mertens v. Hewitt Associates, 508 U.S. 248, 251, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993) (quoting Nachman Corp. v. Pension Benefit Guaranty Corporation, 446 U.S. 359, 361, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980)). We have therefore been especially “reluctant to tamper with [the] enforcement scheme” embodied in the statute by extending remedies not specifically authorized by its text. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 147, 105 S.Ct. 3085, 87 L.Ed.2d 96 (1985). Indeed, we have noted that ERISA’s “carefully crafted and detailed enforcement scheme provides ‘strong evidence that Congress did not intend to authorize other remedies that it simply forgot to incorporate expressly.’ ” Mertens, supra, at 254, 113 S.Ct. 2063 (quoting Russell, supra, at 146-147, 105 S.Ct. 3085).

Knudson, 534 U.S. at 209.

We too are reluctant to tamper with the enforcement scheme embodied in the statute by extending remedies not specifically authorized by its text or creating a remedy based upon the dicta expressed in Knud-son. We, therefore, affirm.

AFFIRMED.

POLEN and KLEIN, JJ., concur.

      . N.Y. State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995).