author: VILLANTI, Judge.

text:
    Peggy A. MOOK, Appellant/Cross-Appellee, v. Adolph J. MOOK, Appellee/Cross-Appellant.
    Nos. 2D02-4718, 2D03-1092.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    Rehearing Denied May 4, 2004.

      Robert J. Coleman, Fort Myers, for Appellant/Cross-Appellee.
    Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellee/Cross-Appel-lant.
   VILLANTI, Judge.

Peggy Mook (the Wife) appeals and Adolph Mook (the Husband) cross-appeals from the supplemental final judgment entered in this dissolution case and the subsequent order awarding attorney’s fees. The Wife raised six issues in her appeal, and the Husband raised five issues on cross-appeal. We affirm in part and reverse in part.

SUPPLEMENTAL FINAL JUDGMENT

Both parties raise several issues concerning the propriety of various aspects of the supplemental final judgment. We affirm the supplemental final judgment in all respects except for the erroneous inclusion of a prior settlement payment in the calculation of the amount owed by the Husband under the parties’ prenuptial agreement. On that issue alone, we reverse and remand for recalculation.

The Husband and Wife were married later in life, and because they both owned various assets in their individual names, they entered into a prenuptial agreement. Unlike many prenuptial agreements, this agreement did not address the disposition of all of the parties’ nonmarital assets. Rather, the agreement contained a schedule of specific accounts that each party held in his or her own name. Article 6 of the agreement provided that if the marriage were to terminate, each party would pay to the other a specified percentage of the balance in those specific accounts within ninety days of the date of “divorce, dissolution or separation.” This mutual transfer of payments was intended to “provide for the support, maintenance and enjoyment of the other.”

Shortly before trial, the parties settled a number of issues between them. In a written partial settlement agreement, the Husband agreed to pay the Wife $43,920 to settle her claims to various assets, including her interest in the Husband’s retirement plan. While this retirement plan was included on the schedule of accounts governed by Article 6 of the prenuptial agreement, the partial settlement agreement specifically stated that “[t]he value of the property referenced in this Agreement will not be included in the calculation under Article 6 of the Prenuptial Agreement.” Thus, the partial settlement agreement specifically contemplated that the $43,920 payment would be deducted before the amount due from the Husband under Article 6 of the prenuptial agreement was calculated.

In the supplemental final judgment, the trial court determined that the parties’ accounts would be valued as of the date of dissolution — March 2002 — for purposes of Article 6 of the prenuptial agreement. The trial court then valued both the Husband’s and the Wife’s accounts as of March 2002. However, when calculating the amount actually due from the Husband under Article 6, the trial court did not deduct the $43,920 the Husband paid pursuant to the partial settlement agreement. The Husband contends that this was error.

Based on the plain language of the partial settlement agreement, the trial court should have deducted the $43,920 payment from its valuation of the Husband’s accounts when it calculated the amounts due under Article 6 of the prenuptial agreement. Because the trial court failed to do so, the amount due from the Husband under Article 6 is overstated in the supplemental final judgment. Accordingly, we reverse and remand for a recalculation of the amounts due from the Husband in light of the clear provisions of the partial settlement agreement.

ATTORNEY’S FEE ORDER

Both parties also appeal various aspects of the postjudgment attorney’s fee order. We affirm the award of attorney’s fees and costs to the Wife in all respects. However, we reverse the award of attorney’s fees and costs to the Husband in its entirety because the Husband never pleaded entitlement to attorney’s fees or costs.

The Husband filed his petition for dissolution of marriage in December 2000. This petition did not seek any award of attorney’s fees or costs. The Wife filed a counter-petition in which she specifically sought an award of attorney’s fees and costs pursuant to section 61.16, Florida Statutes (2000). The Husband subsequently filed an amended petition which again did not seek any award of attorney’s fees or costs. During the remainder of the proceedings, the Husband never moved to amend his pleadings and never sought attorney’s fees in any prejudgment pleading.

When the trial court entered the supplemental final judgment on September 13, 2002, it reserved jurisdiction to award fees under section 61.16. On October 15, 2002, the Wife served her motion for attorney’s fees and costs with various supporting documents. Then on December 6, 2002, despite having never filed any pleading seeking any attorney’s fees on any basis, the Husband served a motion seeking attorney’s fees and costs pursuant to Rosen v. Rosen, 696 So.2d 697 (Fla.1997), Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991), and section 57.105, Florida Statutes (2000). The Wife objected to this motion, arguing that the Husband was not entitled to an award of fees in the absence of any pleading seeking fees. Following a hearing on these motions, the trial court awarded the Wife $11,706.75 in attorney’s fees and $1351.25 in costs. The trial court rejected the Husband’s claim for fees under section 57.105 but awarded him $17,700 in attorney’s fees and $280 in costs under Rosen. After offsetting these awards, the trial court entered a judgment in favor of the Husband for $4922 for attorney’s fees and costs.

In this appeal, the Wife contends that the Husband’s motion for attorney’s fees should have been stricken or denied because he never sought fees in any pleading and the issue had not been raised or tried by consent. Thus, the Wife contends that the Husband had waived any right he might have had to seek attorney’s fees and costs. We agree.

[A] claim for attorney’s fees, whether based on statute or contract, must be pled. The fundamental concern is one of notice. Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise. Raising entitlement to attorney’s fees only after judgment fails to serve either of these objectives. The existence or nonexistence of a motion for attorney’s fees may play an important role in decisions affecting the case.... A party should not have to speculate throughout the entire course of an action about what claims ultimately may be alleged against him. Accordingly, we hold that a claim for attorney’s fees, whether based on statute or contract, must be pled.' Failure to do so constitutes a waiver of the claim.

Stockman v. Downs, 573 So.2d 835, 837-38 (Fla.1991) (citations and footnotes omitted). While a party need not plead the specific basis for the fee award, the party must nevertheless plead entitlement before entry of the final judgment. Caufield v. Cantele, 837 So.2d 371, 377-78 (Fla.2002).

Here, the Husband did not plead any entitlement to an award of attorney’s fees until long after the final judgment was entered. Thus, under Stockman, his claim for attorney’s fees and costs was waived. Accordingly, the award of attorney’s fees and costs to him was improper and must be reversed.

In an effort to avoid this result, the Husband contends that this court should extend the pleading exception found in Ganz v. HZJ, Inc., 605 So.2d 871 (Fla.1992), to his claim for fees under Rosen. In Ganz, the supreme court held that a claim for fees pursuant to section 57.105(1) need not be pleaded before judgment because a party cannot know in advance that his opponent will raise nothing but frivolous issues during the entire course of the litigation. Ganz, 605 So.2d at 872. The Husband contends that the same rationale should apply to his claim for fees under Rosen.

The flaw in this argument is that, unlike section 57.105(1), Rosen does not create a right to a fee award based on allegedly frivolous litigation. Instead, Rosen simply delineates the factors the trial court is to consider when determining whether to award a party fees under section 61.16. While one of those factors is whether the action was frivolous or spurious, Rosen does not provide an independent basis for an award of attorney’s fees based on frivolous litigation. Rather, if a party seeks an award of fees under section 61.16, that award may be reduced or denied if that party’s actions were frivolous or spurious. Rosen, 696 So.2d at 701. We decline the Husband’s invitation to extend the holding of Ganz to attorney’s fees sought under section 61.16.

In addition, the Husband’s motion for attorney’s fees should have been stricken or denied because it was untimely under Florida Rule of Civil Procedure 1.525. Rule 1.525, which became effective January 1, 2001, and which applies to all cases pending on that date, see Diaz v. Bowen, 832 So.2d 200, 201 (Fla. 2d DCA 2002), requires a party seeking an award of attorney’s fees or costs to serve the motion for fees within thirty days after judgment is rendered or a voluntary dismissal is filed. Here, the Husband did not serve his motion for attorney’s fees until December 6, 2002, almost three months after the supplemental final judgment was rendered. Thus, the motion was untimely, and the Husband was not entitled to an award of attorney’s fees or costs.

At oral argument, counsel for the Husband questioned whether rule 1.525 applied to family law proceedings. We see no reason why it would not. Florida Family Law Rule of Procedure 12.020 states that the rules of civil procedure are applicable to all family law matters except as otherwise provided in the family law rules. In addition, the family law rules govern when there is a conflict between the civil rules and the family law rules. However, nothing in the family law rules provides a time for filing a motion for attorney’s fees, and nothing in the family law rules conflicts with the time requirement of rule 1.525. While the Husband’s counsel expressed concerns about applying rule 1.525 to family law cases given their “equitable nature,” we can discern no reason why requiring a litigant to file a motion for attorney’s fees within thirty days after rendition of judgment is inequitable. Accordingly, we hold that the provisions of rule 1.525 apply to family law proceedings.

Counsel for the Husband also suggested that the trial court’s reservation of jurisdiction to award attorney’s fees in the supplemental final judgment operated to extend the time for filing a motion for attorney’s fees. Counsel cited this court to Fisher v. John Carter & Associates, Inc., 864 So.2d 493 (Fla. 4th DCA 2004), for this proposition. However, this court has specifically rejected this argument, as has the Fifth District. See Gulf Landings Ass’n v. Hershberger, 845 So.2d 344, 346 (Fla. 2d DCA 2003) (noting that “it is no longer sufficient for a trial court to ‘reserve jurisdiction’ with a final judgment” and that any such reservation “cannot overrule the plain language of rule 1.525” which requires a party seeking fees to file a motion within thirty days); Wentworth v. Johnson, 845 So.2d 296, 299 (Fla. 5th DCA 2003). Moreover, we fail to see how a court could reserve jurisdiction to award attorney’s fees to the Husband when he had not sought fees at the time the supplemental final judgment was rendered.

Because the Husband never pleaded entitlement to an award of attorney’s fees and costs, we reverse the portion of the attorney’s fee award that awarded him attorney’s fees .and costs. In all other respects, the order awarding attorney’s fees and costs is affirmed.

Affirmed in part; reversed in part; and remanded.

WHATLEY and CASANUEVA, JJ., Concur.

      . The order on attorney's fees shows the total award to the Wife as $13,055; however, the actual total of the amounts awarded is $13,058.

      . We note that the issue of timeliness under rule 1.525 was not raised by the parties in their briefs. We commend counsels' ability to discuss this issue raised for the first time by the court at oral argument, and this opinion should not be read as a criticism of their responses to the court's questions.

      . This issue is apparently currently being considered by the Florida Family Law Rules of Procedure Committee. However, it has made no recommendation on this issue as of this date.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Sarah CUEVAS, as Personal Representative of the Estate of Alvarado Kelly, deceased, Appellant, v. William R. KELLY, Sr., Appellee.
    No. 2D03-110.
    District Court of Appeal of Florida, Second District.
    March 26, 2004.
    Rehearing Denied May 4, 2004.

      Barry F. Spivey of Ruden, MeClosky, Smith, Schuster & Russell, P.A., Sarasota, for Appellant.
    George F. Wilsey of Fisher & Wilsey, P.A., St. Petersburg, for Appellee.
   DAVIS, Judge.

In this probate matter, Sarah Cuevas challenges the trial court’s order granting the motion for summary judgment filed by the decedent’s brother, William R. Kelly, Sr., and issuing letters of intestate administration. Because the trial court failed to give the required full faith and credit to a prior Mississippi judgment, we reverse.

On December 2, 1960, the County Court of Hillsborough County, Florida, adjudicated Alvarado Kelly, the decedent, incompetent. He was subsequently admitted to the Florida State Hospital at Chattahoochee, where he resided until September 15, 1961, when he was transferred to the Veterans Administration (VA) Hospital in Biloxi, Mississippi. The county court appointed City Bank and Trust Company of St. Petersburg as the guardian of the decedent’s property on August 8,1962; on May 18, 1963, he was discharged from the veterans’ facility.

Nearly twelve years later, in January 1975, the decedent moved into a housing facility operated by Cuevas in Perkinston, Mississippi, where he resided until his death on November 1, 2000. Upon the decedent’s death, Cuevas petitioned the Chancery Court of Hancock County, Mississippi, to admit to probate what she alleged to be his last will and testament. On November 8, 2000, the chancery court granted her petition, admitted the will, and appointed Cuevas as executrix.

In December 2000, less than a month later, William R. Kelly, Sr., the brother and next of kin of the decedent, petitioned the circuit court in Hillsborough County to open intestate probate proceedings, alleging that although a purported will had been admitted to probate in Mississippi, the Mississippi court did not have jurisdiction over the estate because the decedent’s domicile and his personal property were both located in Florida. Kelly maintained that his brother had been domiciled in Hillsborough County at the time of his death because no court had either restored the decedent’s competency or granted the decedent permission to change his domicile. Cuevas was served with notice of these pleadings by certified mail.

On January 24, 2001, Cuevas petitioned the Mississippi court to probate the purported will in solemn form. Although Kelly was personally served by private process server with a copy of this pleading and a summons on January 31, 2001, he did not respond, and on March 9, 2001, the Chancery Court of Hancock County, Mississippi, entered its judgment finding that the decedent was a resident of Hancock County at the time of his death. The court further found that although Kelly was the decedent’s only surviving heir at law, he had failed to respond to the Mississippi proceedings despite notice of same. The Mississippi court thus admitted the will to probate in solemn form and found, pursuant to the will, that Cuevas was the decedent’s sole devisee and legatee.

Prior to the judgment being entered by the Mississippi court, Cuevas asked the Florida court to dismiss, abate, or stay the Florida proceedings, citing the pending Mississippi proceedings. Both parties also moved for summary judgment in the Florida proceedings. Cuevas argued that she had instituted proceedings in Mississippi where she alleged that the decedent was domiciled, that the Mississippi court had appointed her executrix, and that Florida had no jurisdiction over the matter. Cue-vas subsequently provided the trial court with a verified copy of the March 9, 2001, Mississippi judgment.

In his motion for summary judgment, Kelly argued that since the court in Florida had not approved the decedent’s change of domicile or restored his competency, there were no material facts at issue and that, therefore, as a matter of law, the decedent’s domicile at the time of his death was Florida. Further, Kelly argued that since the sole assets of the estate were in Florida, the Mississippi court was without jurisdiction to open an estate or consider the validity of the will.

On April 12, 2001, the Florida court entered an order finding that the decedent was domiciled in Florida at the time of his death because he had been adjudicated incompetent and no court had approved a change of his domicile. The court determined further that because the decedent’s bank accounts were in Florida, the Florida court had jurisdiction. The trial court denied Cuevas’ motion to dismiss the petition and her motion to stay or abate the proceedings. This order did not address the Mississippi judgment or the decedent’s purported will.

After discovery and further pleadings, Kelly filed his third motion for summary judgment. ’ He recounted that the trial court had previously found that, as a matter of law, the decedent was domiciled in Florida at the time of his death. Kelly further alleged that the purported will was invalid because it had been procured by undue influence. He cited to the facts that had been determined during discovery related to Cuevas providing housing and care for the decedent. Kelly further pointed out that Cuevas had not submitted the will for probate in Florida. Accordingly, Kelly argued that there were no disputed facts to be resolved and that the court should enter summary judgment in his favor, open intestate proceedings, and issue letters of administration to SunTrust Bank (successor to City Bank and Trust Company of St. Petersburg) as personal representative of the estate.

On December 16, 2002, the trial court denied Cuevas’ motion for summary judgment. In the same order, however, the trial court denied in part and granted in part Kelly’s motion for summary judgment. The order recited the trial court’s prior findings that the decedent was domiciled in Florida and that the bank accounts were located in Florida. The court then appointed SunTrust Bank as personal representative of the Estate of Alvarado Kelly and issued letters of administration to the bank. The order appointing the personal representative recites that the estate was opened as an intestate estate. However, the order granting the motion for summary judgment did not address the existence or validity of the purported will, nor did it address the issue of what effect should be given to the Mississippi judgment. Cuevas now appeals.

The ultimate issue that must be resolved is whether the trial court erred in entering the summary judgment and opening the intestate proceedings. It is not clear from its order whether the trial court intentionally found the purported will invalid or whether, because the trial court denied the motion in part, the validity of the will remains to be resolved. However, by issuing letters of administration in an intestate estate, the trial court has impliedly found that the will was invalid. To determine whether the trial court erred in its ruling on the domicile issue and the validity of the will, we must determine the status of the Mississippi judgment.

A Florida court may have jurisdiction over the distribution of a decedent’s estate if Florida was the decedent’s domicile at the time of his death or if the decedent owned property in Florida at the time of his death. See Biederman v. Cheatham, 161 So.2d 538 (Fla. 2d DCA 1964); see also § 733.101, Fla. Stat. (2000). However, such jurisdiction is not necessarily exclusive. If the decedent died a domiciliary of another state but owned personal property in Florida, both states may have jurisdiction over the distribution proceedings. See Loewenthal v. Mandell, 125 Fla. 685, 170 So. 169 (1936). In fact, different state courts may reach differing results as to which state was the decedent’s proper domicile. Id.

Whether two states may exercise simultaneous jurisdiction or one state must defer to the finding of a sister state depends on the facts of the particular case.

The decision of the court of one state to the effect that the testator is domiciled there is not binding, in the courts of other states, upon persons who are not parties to the proceedings in the first state — even under the full faith and credit clause of the Federal Constitution .... On the other hand, one who was a party to the proceedings in the first state is bound by the judgment of such court even upon the question of the testator’s domicile.

Biederman, 161 So.2d at 542. The application of the full faith and credit clause of the United States Constitution “brings to our Union a useful means for ending litigation. Matters once decided between adverse parties in any state or territory are at rest.” Riley v. N.Y. Trust Co., 315 U.S. 343, 348, 62 S.Ct. 608, 86 L.Ed. 885 (1942).

The central issue here is whether the Florida court was required to give full faith and credit to the March 9, 2001, Mississippi judgment. If that judgment was entitled to full faith and credit, then the Florida court lacked jurisdiction to reassess the decedent’s domicile and redetermine the validity of the will. Accordingly, the trial court’s orders would have been in error. However, if the Mississippi judgment was not binding on the Florida court, then the issue became whether the trial court properly granted the summary judgment impliedly determining as a matter of law that the will was invalid.

“[C]ourts in every jurisdiction are required to give judgments entered in sister states the full faith and credit of the law.” In re Estate of O’Keefe, 833 So.2d 157, 160 (Fla. 2d DCA 2002) (citations omitted). However, those sister court judgments are entitled to full faith and credit only as to those individuals who were parties to the sister court’s proceedings or were given notice and an opportunity to be heard in those proceedings. See Loewenthal, 170 So. 169. “Where a party has had notice and opportunity to be heard and the foreign court has satisfied Florida’s jurisdictional and due process requirements their orders will be entitled to comity.” Nahar v. Nahar, 656 So.2d 225, 230 (Fla. 3d DCA 1995) (footnote omitted; citations omitted).

Our focus thus turns to whether Kelly is bound by the determination of the Mississippi court. He maintains that even though he was served with a copy of Cue-vas’ pleading and the summons, he is not bound by the resulting Mississippi judgment because he did not participate in the Mississippi litigation. We disagree because we conclude that Kelly had notice and an opportunity to be heard and that the Mississippi court satisfied Florida’s jurisdictional and due process requirements.

First, we note that in Florida, formal notice is sufficient to acquire jurisdiction over the person who receives the notice to the extent of his interest in the estate. See § 731.301(2), Fla. Stat. (2001). Furthermore, the Florida Probate Rules define formal notice as serving a copy of the pleading along with a notice requiring the person served to serve written defenses within twenty days. Fla. Prob. R. 5.040(a)(1). Service under this rule allows for mailing or personal service.

The record here reveals that Kelly was served with a copy of the complaint asking that the Mississippi court admit the will in solemn form and with a summons that required written defenses be filed within thirty days. Furthermore, the Mississippi judgment specifically found that Kelly was personally served; that service was evidenced by an affidavit of service. We accordingly conclude that the due process requirements of Florida have been met as required by Nahar. Kelly was a party to the Mississippi litigation whether he chose to participate or not and, barring any other deficiency, the Mississippi judgment was entitled to full faith and credit in Florida.

Kelly argues next that the Mississippi court did not have jurisdiction to even commence the probate proceedings. We disagree. If the decedent was domiciled in Mississippi, that court would be the appropriate court to open his estate. See Biedeman, 161 So.2d 538. Since a petition was filed there alleging that the decedent resided in Mississippi and a purported will was submitted reciting that the testator was a resident of Mississippi, the Mississippi court did have jurisdiction to make the determination of domicile. The fact that the decedent’s bank accounts were in Florida did not deprive the Mississippi court of jurisdiction. Personal property will normally be administered by the court of the domiciliary, in this case, Mississippi. See Saunders v. Saunders, 796 So.2d 1253 (Fla. 1st DCA 2001), review denied, 819 So.2d 139 (Fla.2002). As we observed earlier, the existence of jurisdiction in one state does not necessarily negate the existence of jurisdiction in another state. Once the Mississippi chancery court determined that the decedent was domiciled there, it had jurisdiction to consider the validity of the will and the right to determine the distribution of the decedent’s personal property, wherever it is located.

Kelly further suggests that the Mississippi judgment is invalid because it was entered as a result of fraud committed by Cuevas, given the fact that Cuevas admits that she did not advise the Mississippi court that the decedent had been adjudicated incompetent in Florida in 1960. The case cited by Kelly, Grimes v. Estate of Stewart, 506 So.2d 465 (Fla. 5th DCA 1987), does not support his argument, however. While Grimes does discuss the failure to advise the probate court of the decedent’s prior adjudication of incompetency in terms of fraud, that case involved not only the failure to disclose this prior history, but also the failure to advise the court of the beneficiaries of a prior will or the heirs at law.

The extrinsic fraud that must be shown to challenge the validity of the prior judgment has been defined in terms of “preventing] a party from defending in an action, raising issues, or otherwise presenting his or her case.” In re Estate of O’Keefe, 833 So.2d at 161 (citations omitted). Because the Mississippi court was advised that Kelly was the surviving heir at law, and because Kelly was given notice of the proceedings, he was not prevented from defending. Extrinsic fraud has not been shown. Furthermore, the fraud argument was made for the first time on appeal. If Kelly wanted the trial court to deny full faith and credit to the Mississippi judgment based on this ground, he should have raised the issue before that court. His failure to do so precludes him from raising it for the first time on appeal. See Keech v. Yousef, 815 So.2d 718 (Fla. 5th DCA 2002).

We conclude that the Mississippi court had jurisdiction to commence the probate proceedings, that extrinsic fraud did not invalidate the Mississippi judgment, and that the Florida trial court erred in failing to give full faith and credit to the March 9, 2001, Mississippi judgment. We hold therefore that the trial court erred in granting Kelly’s motion for summary judgment.

Reversed.

KELLY and VILLANTI, JJ., Concur.

      . This proceeding is similar to a proceeding under section 733.2123, Florida Statutes (2000), which subjects the issue of the validity of the will to immediate resolution after proper notice. The result is binding on those who were duly noticed and had an opportunity to be heard.

      . The term "residence” is synonymous with the term "domicile." § 731.201(11), Fla. Stat. (2001).


author: PER CURIAM.

text:
    Christy McKEE and Pinter Enterprises, Inc., Appellant, v. CITY OF CASSELBERRY, Florida, Appellee.
    No. 5D03-1744.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2004.
    Rehearing Denied May 5, 2004.

      Steven G. Mason of Steven G. Mason, P.A., Orlando, for Appellant.
    Anthony A. Garganese and Erin J. O’Leary of Brown, Salzman, Weiss & Gar-ganese, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Café 207, Inc. v. St. Johns County, 66 F.3d 272 (11th Cir.1995).

PLEUS, PALMER and ORFINGER, JJ., concur.


text:
    Pauline KOZIARA and Kathleen Derienzo, Appellant, v. SEMINOLE COUNTY, Florida, Appellee.
    No. 5D03-1743.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2004.
    Rehearing Denied May 7, 2004.
    Steven G. Mason of Steven G. Mason, P.A., Orlando, for Appellant.
    Frederick H. Nelson of American Liberties Institute, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Café 207, Inc. v. St. Johns County, 66 F.3d 272 (11th Cir.1995).

PLEUS, PALMER and ORFINGER, JJ., concur.


author: FULMER, Judge.

text:
    Harold GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5796.
    District Court of Appeal of Florida, Second District.
    March 31, 2004.
    Rehearing Denied May 24, 2004.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

Harold Gray appeals his conviction for robbery, challenging the State’s use of collateral crime evidence. We reverse and remand for a new trial because the trial court erred in allowing the State to introduce evidence of collateral crimes that was not relevant to the charged robbery.

At trial, the State argued that a series of collateral crimes was admissible because it was inextricably intertwined with the charged offense. The trial court allowed the evidence under this theory. On appeal, the State asserts that the collateral crime evidence was properly admitted both to show identity of the accused and because it was inextricably intertwined. We reject both theories.

From opening statements, the State portrayed Gray as being involved with an elaborate series of events. The first three witnesses testified about a brutal robbery of Robert Mancini, an elderly man who was attacked by two men while sitting in his vehicle outside the Driftwood Hotel. Gray was identified as being at the scene after the attack, but the State asserted that Gray was not one of the perpetrators of the robbery. Mancini’s wallet was taken from him during the robbery.

Next, a witness testified about a robbery of a 7-Eleven store clerk, where a Visa credit card belonging to Mancini was left at the scene by the perpetrator. Cigarettes and soda were taken, but no one was injured and the robber apparently left on foot. Gray was not identified as the robber; however, he later made statements indicating that he had attempted to use Mancini’s credit card at the 7-Eleven store.

Next, the State presented evidence of the charged offense, a robbery of a clerk, Bakris Damassi, at an Exxon gas station. The robber presented a Mastercard belonging to Mancini and attempted to buy two cartons of Newport cigarettes and beer. When the card was declined, the robber punched Damassi in the face, grabbed the cigarettes and beer, and left in a white van. The crime took seven or eight minutes. No fingerprints were found and the store’s video camera was not working at the time. Damassi turned the credit card over to police, and he picked Gray out of a photopack after the crime. He identified Gray in court as the perpetrator, although the crime occurred three years earlier and Gray’s appearance had changed. Gray’s hair, weight, and the fact that he now wore glasses were different. Damassi also identified Gray from a photograph that was taken days after the crime. An officer who responded to the Exxon robbery also testified for the State.

The next witness, Lisa Haven, testified to being attacked by Gray when she stopped to buy cigarettes at a Mobil gas station. Outside the store, Gray approached her to ask directions, then punched and pushed her, and snatched her purse before driving away in a white van with no tag on it. Another officer then testified to the fact that police located the white van with Lisa Haven’s belongings in it, and a forensic detective testified about processing the van.

Another officer testified to observing two men in the van with no tag at an Amoco gas station. The officer did not know anything about the robberies, but was suspicious because the van had no tag. Gray left the area on foot and did not stop when the officer yelled at him to stop; but the other man with Gray, Craig Fisher, was apprehended. The police used canines to try to locate Gray. The officer did not get a good look at Gray and could not get an identification. In addition to Lisa Haven’s belongings, there was also paraphernalia found in the van and a pack of cigarettes, but no cartons of cigarettes or beer.

Fisher testified that Gray had picked him up at a gas station and they were riding around together for about an hour- and-a-half before the encounter with the officer at the Amoco. They had known each other for twenty-four years. Gray did not tell Fisher anything about any robberies.

Finally, the State presented the testimony of an officer who had interviewed Gray in connection with the Mancini robbery. Gray told the officer that he had witnessed three black males commit the robbery, and he went over to assist the victim after the attack. Gray advised that he found a credit card on the ground, and he tried to pass the card at a 7-Eleven store the next morning, but the card was declined. The defense asserted in closing argument that although Gray admitted attempting to use Mancini’s credit card at the 7-Eleven, a different person had committed the Exxon robbery and Gray was not involved with that.

A trial court’s decision to admit collateral crime or Williams rule evidence is reviewed for an abuse of discretion. Kulling v. State, 827 So.2d 311, 313 (Fla. 2d DCA 2002). A party may introduce collateral crime evidence when it is relevant to prove a material fact in issue like identity; however, collateral crime evidence is inadmissible when the evidence is relevant solely to prove bad character or propensity. § 90.404(2)(a), Fla. Stat. (2002); Kulling, 827 So.2d at 314. In order for the collateral crime evidence to be admissible to show identity, the evidence must meet a strict standard of relevance. Kulling, 827 So.2d at 314. The collateral crime evidence must be strikingly similar and the similarity must have some special character or be so unusual as to point to the defendant. Id.; Sims v. State, 839 So.2d 807, 811 (Fla. 4th DCA 2003). The characteristics of the crimes must be so unique as to constitute fingerprint type evidence. Sims, 839 So.2d at 811. “Similar crime evidence is not admissible simply because it involves the same type of offense.” Kulling, 827 So.2d at 314.

The collateral evidence of the three additional robberies does not meet this strict standard of relevance so as to be admissible in order to prove identity in the Exxon robbery. See, e.g., Bolden v. State, 832 So.2d 153 (Fla. 2d DCA 2002) (reversing burglary conviction where evidence linking the defendant to other burglaries committed around the same time in same area was inadmissible to prove identity); cf. Rogers v. State, 511 So.2d 526, 531 (Fla.1987) (upholding trial court’s admission of similar robberies).

The question remains whether the collateral crime evidence was admissible because it was inextricably intertwined. Evidence that is inextricably intertwined with the crime charged is admissible under section 90.402, Florida Statutes (2002), because it is a relevant and inseparable part of the act which is in issue and it is necessary to admit the evidence to adequately describe the deed. Griffin v. State, 639 So.2d 966, 968 (Fla.1994); Flores v. State, 853 So.2d 566, 569 (Fla. 3d DCA 2003). In Flores, the court rejected the argument that evidence of a subsequent robbery was admissible as inextricably intertwined where property belonging to the subsequent robbery victim was found in the backseat of a car taken from the first robbery victim. Id. at 569; cf. State v. Cohens, 701 So.2d 362 (Fla. 2d DCA 1997) (ruling that evidence of prior attempted robbery was inextricably intertwined because it proved defendant’s specific intent to commit charged robbery).

Here, the other crimes were not so intertwined with the Exxon robbery that it was necessary to describe them in order to accurately describe that deed. Although numerous witnesses testified for the State, only two had any knowledge of the Exxon robbery. While details of the Mancini robbery show how the victim lost possession of the credit card that was used by the perpetrator at the Exxon station, if Gray was not the perpetrator of the Mancini robbery, as the State conceded, then he was not the only person who had access to the credit card after the robbery occurred. And, even if we were to conclude that the Mancini, 7-Eleven, and Exxon robberies were intertwined by the credit cards, the Lisa Haven robbery and the fact that Gray was driving a van with no'tag are collateral crimes that are not inextricably intertwined.

The improper collateral crime evidence was a feature of the trial and cannot be considered harmless error. Generally, when the identification of the defendant as a perpetrator rests on the testimony of a single witness, here Damassi, the erroneous admission of collateral crime evidence has not been considered harmless error. See Kulling, 827 So.2d at 315; Sims v. State, 839 So.2d 807, 812 (Fla. 4th DCA 2003).

Reversed and remanded for a new trial.

STRINGER and SILBERMAN, JJ„ Concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Travis MALCOLM, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-4551.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Rehearing Denied June 10, 2004.
    Travis Malcolm, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Travis Malcolm appeals the denial of his rule 3.800(a) motion to correct an illegal sentence.

Malcolm was convicted of armed robbery and aggravated assault. For armed robbery, he was sentenced to life in prison as a Prison Releasee Reoffender with a ten year mandatory minimum for use of a firearm under section 775.087(2)(a), Florida Statutes (“10-20-life”). For aggravated assault, Malcolm was sentenced to ten years in prison as a habitual offender. The court also imposed a five year minimum mandatory as a Prison Releasee Reoffender and a three year minimum mandatory under the 10-20-life statute.

The mandatory terms under the 10-20-life statute were not greater than the Prison Releasee Reoffender sentences. As a result, Malcolm’s sentences are illegal. See Scott v. State, 842 So.2d 1054 (Fla. 4th DCA 2003)(citing Grant v. State, 770 So.2d 655 (Fla.2000) and Smith v. State, 813 So.2d 1002 (Fla. 4th DCA 2002)).

Accordingly, the circuit court’s order is reversed and the case is remanded for the court to vacate the 10-20-life sentences.

FARMER, C.J., STONE and GROSS, JJ., concur.


author: SHARP, W., J. MONACO, J.,

text:
    Cynthia HADLEY, etc., Appellant, v. John E. TERWILLEGER, M.D., et al., Appellees.
    No. 5D03-1279.
    District Court of Appeal of Florida, Fifth District.
    April 2, 2004.
    Rehearing Denied May 24, 2004.

      Keith M. Carter of Morgan, Colling & Gilbert, P.A., Tampa, for Appellant.
    Rafael E. Martinez and Michelle M. Perez-Sotolongo of McEwan, Martinez & Dukes, P.A., Orlando, for Appellees.
   SHARP, W., J.

Cynthia Hadley appeals from an adverse final judgment and the denial of her motion for a new trial in a medical malpractice case. Hadley filed suit against John E. Terwilleger, M.D., the Estate of M. Vann Parker, M.D. and Sanford Pediatrics Associates, Inc. (Sanford Pediatrics), the doctors’ medical association for negligence in failing to diagnose and treat her minor daughter for tuberculosis meningitis, and the resulting injuries suffered by the child caused by the disease, which were severe and permanent. Hadley argues on appeal that the trial court erred by refusing to instruct the jury on concurring cause, Florida Standard Jury Instruction 5.1(b). We agree and reverse for a new trial.

This court, as well as others, have concluded that where the facts of the ease support the theory of the plaintiffs case, viewed most favorably towards the plaintiff, that when a defendant’s negligence, operating in combination with the negligent act of another, or a natural cause such as a disease or pre-existing condition, results in injury or damage to another, a concurrent cause instruction should be given. Florida Standard Jury Instruction 5.1(a), was the sole instruction given in this case.

Florida Standard Jury Instruction 5.1(a) provides:

Negligence is a legal cause of loss, injury or damage if it directly and in natural and continuous sequence produces or contributes substantially to producing such loss, injury or damage, so that it can reasonably be said that but for the negligence, the loss, injury or damage would not have occurred, (emphasis added)

Florida Standard Jury Instruction 5.1(b) provides:

In order to be regarded as the legal cause of loss, injury or damage, negligence need not be the only cause. Negligence may be a legal cause of loss, injury, or damage even though it operates in combination with the act of another, some natural cause, or some other cause if such other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such loss, injury or damage.

In this trial, Hadley established through her testimony that she took her daughter to Sanford Pediatrics on September 2, 1995, the day after her daughter became ill at school and had to be brought home. She saw Dr. Parker. The child was running a high fever and was vomiting, complaining of a headache and her neck hurting. These conditions continued and grew worse over the next few days. Hadley returned to Sanford Pediatrics on September 5th and 7th with her daughter and saw both Dr. Parker and Dr. Terwilleger. The doctors diagnosed a viral infection, prescribed pain medication and antibiotics, but did not perform a lumbar puncture, which could have led to an earlier diagnosis of meningitis.

After the third visit to Sanford Pediatrics, where (in Hadley’s view) she was receiving no help, on September 9th, Had-ley took her daughter to the emergency room at Volusia Medical Center when the child’s symptoms continued to worsen. The treating doctor also failed to suspect meningitis and discharged her. The disease progressed and on September 12th, Hadley was called at work to come home because her daughter looked like she was dead. She took her to the emergency room where the child began having convulsions. She was immediately admitted on an emergency basis to the Intensive Care Unit of the Arnold Palmer Hospital for Children and Women, in Orlando. She was comatose and having seizures. On the 15th of September, TB meningitis was suspected and specific treatment for it began, but it was not officially diagnosed for more than ten days.

The two expert witnesses for Hadley (Dr. Klein and Dr. Webber) testified that TB meningitis is a rare disease and difficult to diagnose. They both said the defendant doctors should have suspected meningitis and done a lumbar puncture either on September 5th or September 7th. They based their opinions on Hadley’s deposition testimony in which she recounted the child’s high fever, vomiting, headaches, back and neck aches, and the child’s increased weakness from September 2nd to the 7th. The medical records kept by Sanford Pediatrics do not substantiate such severe symptoms, and both doctors agreed that if the Sanford Pediatric medical records were accurate, no deviation from the standard of care (not suspecting meningitis and failing to do a lumbar puncture) occurred. However, Hadley’s deposition testimony is corroborated by the medical histories she gave when her daughter was admitted to the Volusia Medical Center and Arnold Palmer. Dr. Klein said the fact that Hadley brought her sick child in for the same symptoms which she felt were growing worse, alone, should have caught the defendant doctor’s attention, since mothers know their children best. This should have lowered their threshold for suspecting meningitis.

Dr. Weber testified:

[I]t is significant, and, you know, virtually every pediatrician ... if you have an infant or a child coming with fever, even though we know the majority of them are some kind of viral, relatively benign illness, that we always want to rule out — usually by history and physical in pediatrics, occasionally with diagnostic studies, you want to make sure they don’t have a more severe illness. And the one that always jumps to mind is meningitis.

Dr. Klein testified that had a lumbar puncture been performed on September 5th or 7th, it would have revealed meningitis, and treatment could have begun earlier. Although he could not say the child would have avoided all of the resulting injuries from the disease had she been diagnosed a week or so earlier, the longer the child went without treatment, the more tissue was damaged by the disease. Dr. Klein said:

Meningitis is a frequent event as a concern for children in the sense that an organism that colonizes the upper respiratory tract then gets into the blood and, from the blood, reaches the covering of the brain, which is called the meninges. And if there’s inflammation, it’s called meningitis. And there are a lot of different organisms that cause meningitis, the most serious are usually bacteria. There are many episodes of meningitis that are caused by viruses, and some of them can be serious. And so having a low threshold for diagnosis of meningitis is very important because early treatment may prevent severe consequences.

Both doctors testified that had the child been diagnosed in the earlier stages of the disease, she would likely have suffered no permanent injury, and if diagnosed in the second stage, less damage. She was in the third or final (often fatal) stage of the disease when treated at Arnold Palmer, after which permanent damage or death can be expected. However, in their opinions, the child was in the first or second stages when seen by the defendants.

In this case, the credibility of Hadley as to having given the defendant doctors an accurate account of her daughter’s symptoms when she said she did, was a decisive issue, as it formed the basis for Hadley’s expert witness testimony. However, the general verdict in this case does not disclose the basis for the jury’s no negligence verdict on the part of the defendant doctors. Was it their disbelief of Hadley, or their confusion about the necessity for finding the defendant’s negligence was the sole cause (pursuant to the “but for” instruction given to the jury) of the injuries suffered by the child?

The purpose of the concurring cause instruction is to negate the idea that a defendant is excused from the consequences of his or her negligence by reason of some other cause concurring in time and contributing to the same damage. The instruction on legal cause given in this case, (5.1(a)), may have confused or misled the jury. Under these circumstances, we conclude that Hadley is entitled to a new trial, with the jury correctly.instructed as to concurring cause, 5.1(b), because in this case Hadley established the classic concurring cause situation, were her testimony to be accepted by the jury.

REVERSED and REMANDED.

SAWAYA, CJ, concurs.

MONACO, J., dissents with opinion.

MONACO, J.,

dissenting.

I respectfully dissent.

While the issue of when a concurrent cause instruction is appropriate in medical negligence cases is unclear, at best, I believe that the present case is controlled by the Florida Supreme Court’s opinion in Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990), and that the final judgment should, therefore, be affirmed.

I begin with the proposition that concurrent cause is a subset of proximate cause. An analysis of proximate cause addresses whether and to what extent a defendant’s conduct foreseeably and substantially caused the specific injury of which the plaintiff complains. See Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999); see also McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992). Concurrent causes, as defined in Goldschmidt, are “two separate and distinct causes that operate contemporaneously to produce a single injury.” Goldschmidt, 571 So.2d at 424. That is to say, both concurrent causes act proximately to produce the injury and damages.

We have most clearly seen instances of concurrent proximate causes where a plaintiff is injured as a result of two automobile collisions. See, e.g., Morton Roofing, Inc. v. Prather, 864 So.2d 64 (Fla. 5th DCA 2004). There are also numerous cases in which a pre-existing injury is further aggravated by another party’s negligence. See, e.g., Marinelli v. Grace, 608 So.2d 833 (Fla. 4th DCA 1992), review denied, 620 So.2d 761 (Fla.1993). Where it gets muddy, however, is when the facts concern a failure to diagnose in the medical negligence context.

There appears to be no question but that the concurring cause instruction is required where the resulting injury in a malpractice case is caused by both the natural progression of the patient’s disease and the physician’s failure to impede its natural progress. See, e.g., Auster v. Gertrude and Philip Strax Breast Cancer Inst., Inc., 649 So.2d 883, 887 (Fla. 4th DCA 1995); Miller v. Court, 510 So.2d 926 (Fla. 4th DCA 1987), review denied, 523 So.2d 576 (Fla.1988). Goldschmidt, however, seems to carve out an exception. Under that case the failure to give a concurring cause instruction is not reversible error unless there is evidence presented that the pre-existing condition suffered by the plaintiff at the time he or she is treated by the defendant doctor itself causes injury, in combination with the negligence of the doctor in failing to identify, diagnose or properly treat the condition.

Goldschmidt involved a failure to diagnose and treat appendicitis suffered by Taletha Holman, the daughter of the plaintiffs. The purported malpractice occurred over several days, including one in which another physician, Dr. Soud, who was substituting for Dr. Goldschmidt, responded to a call of the plaintiffs, Mr. and Mrs. Holman. The high court concluded that no concurrent cause instruction was necessary, saying:

The thrust of the entire trial centered solely upon whether Goldschmidt was negligent in misdiagnosing Taletha’s appendicitis. At all times Goldschmidt defended on the ground that he was not negligent. No one argued or presented evidence that any other operative cause was present. Neither Goldschmidt nor the Holmans ever asserted that the preexisting appendicitis caused any part of Taletha’s injury. To the contrary, the Holmans’ own expert testified that had Goldschmidt not been negligent, Taletha would have been “operated on and [sent] home in a couple of days completely well.”
Likewise, there was no evidence or argument to the jury that Soud’s alleged negligence was a cause of the injury separate and apart from Goldschmidt’s negligence. While the Holmans’ expert testified that Soud was negligent, no one testified what effect, if any, Soud’s alleged negligence had on Taletha’s injury or how it operated in relation to Gold-schmidt’s alleged negligence.
Because the evidence was insufficient to support a concurring causes instruction on either the preexisting appendicitis or Soud’s alleged negligence, the district court erred in reversing the trial court’s denial of the instruction.

Goldschmidt, 571 So.2d at 425. (Emphasis added).

We have the identical situation in the present case. Here, the defendant doctors defended on the ground that they were not negligent. The experts called by Ms. Had-ley, the plaintiff below, testified that the Stage I TB meningitis “could have been successfully treated without long term residual had the condition been timely diagnosed” by the defendant physicians. Moreover, all experts who testified said that 100% of children diagnosed in Stage I tuberculosis meningitis “have completely normal outcomes.”

As is pointed out in the majority opinion, the standard instruction on causation, Florida Standard Jury Instruction 5.1(a), provides a “but for” test for the jury to consider — but for the negligence, the loss, injury or damage would not have occurred. Here, as in Goldschmidt, had there been a proper diagnosis, there would have been no injury. The parties are in complete agreement that Ms. Hadley’s daughter was in the early stages of her disease when she saw the appellees, and all of the evidence at the trial indicated that the child would have had a complete recovery “but for” the negligence of the appellees in misdiagnosing the disease. The disease had not taken a toll when she was seen by the appel-lees. Thus, the disease could not have been a concurrent cause of the injury suffered by the plaintiffs daughter, and only the standard instruction on causation was required to be given. As there were not two or more separate causes that acted in combination to produce the injury, the concurrent cause instruction was properly rejected by the trial court.

A trial judge is given broad discretion in determining what jury instructions are appropriate in a particular case, and no reversible error will be found unless the jury instructions given were reasonably calculated to mislead the jury, or unless the error complained of resulted in a miscarriage of justice. See Hart v. Stern, 824 So.2d 927, 929 (Fla. 5th DCA 2002), review denied, 842 So.2d 847 (Fla.2003); Reyka v. Halifax Hosp. Dist., 657 So.2d 967 (Fla. 5th DCA 1995). As I believe that the concurring cause instruction was unnecessary in the present case in light of Gold-schmidt, I would affirm.

      . Parker retired at the end of 1996 after working for forty years at Sanford Pediatrics, and died prior to the trial in this case. Had-ley filed an amended complaint substituting the estate as a defendant.

      . Sanford Pediatric Associates, P.A. is an active Florida corporation.

      . The daughter was left with rods in her spine from a twelve level spinal fusion, severe growth abnormalities, emotional/behavioral problems that cannot be handled in a standard public school setting, and abnormal cognitive functioning.

      . See Hart v. Stern, 824 So.2d 927 (Fla. 5th DCA 2002); Zigman v. Cline, 664 So.2d 968 (Fla. 4th DCA 1995); Auster v. Gertrude and Philip Strax Breast Cancer Detection Institute, Inc., 649 So.2d 883 (Fla. 4th DCA 1995); Miller v. Court, 510 So.2d 926 (Fla. 4th DCA 1987). These cases are distinguishable from Goldschmidt v. Holman, 571 So.2d 422 (Fla.1990) because in that case no party argued there was a concurring cause, and in La Petite Academy v. Kamerzel, 751 So.2d 641 (Fla. 5th DCA 1999), the court concluded there was no legitimate concurring cause established by the evidence in the case.

        .Hernandez v. State Farm Fire & Cas. Co., 700 So.2d 451, 453 (Fla. 4Th DCA 1997).

      . Hart v. Stern, 824 So.2d 927, 930 (Fla. 5th DCA 2002);

      . See, e.g., Hart v. Stern, 824 So.2d 927, 930 (Fla. 5th DCA 2002); Auster v. Gertrude and Philip Strax Breast Cancer Detection Institute, 649 So.2d 883, 887 (Fla. 4th DCA 1995); Banks v. Hospital Corporation of America, 566 So.2d 544 (Fla. 4th DCA 1990). See also Miller v. Court, 510 So.2d 926 (Fla. 4th DCA 1987); Tilley v. Broward Hospital District, 458 So.2d 817 (Fla. 4th DCA 1984); Marrero v. Salkind, 433 So.2d 1224 (Fla. 3d DCA 1983).


author: KLEIN, J.

text:
    SPECTRUM MARKETING, INC., Appellant, v. ALTEC LANSING TECHNOLOGIES, INC., Appellee.
    Nos. 4D03-1689, 4D03-928.
    District Court of Appeal of Florida, Fourth District.
    April 7, 2004.
    Rehearing Denied June 7, 2004.

      Richard A. Alayon and Geoffrey D. Ittle-man of Alayon & Associates, P.A., Miami, and Gary S. Brooks of Brooks, Hermelee, Geffin, Miami, for appellant.
    Sherril M. Colombo of Shook, Hardy & Bacon L.L.P., Miami, for appellee.
   KLEIN, J.

Appellant plaintiff was a marketing representative for defendant under a written contract which, as to termination, provided:

This letter is the agreement between your organization and Altec Lancing Technologies. If termination of our agreement is necessary, it will be 30 days after notification in writing by either party.

In this suit, in which plaintiff contended it was improperly terminated, the trial court granted defendant’s motion for summary judgment. Even though the court found the term “is necessary” ambiguous, the court concluded that the evidence as to intent demonstrated that each party intended that the other would have the ability to terminate for any reason on thirty days notice.

The problem with this resolution is that a former officer of the defendant who drafted the language stated in an affidavit that the parties intended that termination could be only for good cause such as failure to meet sales goals. Plaintiffs president submitted an affidavit stating that he interpreted the “is necessary” language to require good cause for termination.

Accordingly, we cannot agree that defendant was entitled to a summary judgment. Reversed.

WARNER and POLEN, JJ., concur.


author: MONACO, J.

text:
    Roy A. JOSEPH, Appellant/Cross-Appellee, v. LIBERTY NATIONAL BANK, Appellee/Cross-Appellant.
    No. 5D03-624.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    Rehearing Denied May 24, 2004.

      G. Robertson Dilg, Alison M. Yurko, and Thomas P. Callan of Thomas P. Callan, P. A., Orlando, for Appellant/Cross-Appellee.
    W. Scott Gabrielson of Mateer & Har-bert, P.A., Orlando, for Appellee/Cross-Appellant.
   MONACO, J.

This case explores some of the legal ramifications of advertising the wrong zoning classification in the sale of real estate.

The real property in question is in Seminole County, and is governed by county zoning ordinances. In 1987, an appraiser for an earlier owner of the property erroneously indicated in its appraisal that the property was zoned C-3. In fact, the property was at all pertinent times zoned A-l, a significantly less valuable classification. Eventually the earlier owner defaulted on his mortgage with the appellee, Liberty National Bank (the “Bank”), and the Bank acquired fee-simple ownership of the property through foreclosure in 1993. . Later that year an employee of the Bank, relying on the 1987 appraisal, offered the property for sale, and placed a sign on the property indicating that it was zoned C-3. Thereafter, the Bank ordered a second appraisal, which once again stated that the property bore a C-3 zoning classification, and listed the property for $175,000. About a year later the Bank obtained a “limited, restricted appraisal,” that did not specifically identify the zoning, but from the highest and best use suggested in the appraisal made it appear that the property was within a C-3 classification. The Bank made no effort beyond the appraisals to verify how the property was zoned.

The appellant, Roy A. Joseph, purchased a 5-acre commercial site near the subject property in 1991, and moved his landscaping business to that location. Mr. Joseph, who was a customer of the Bank, needed a second site on which to locate a mulching operation. When he saw the sign advertising the availability of the property in question, he negotiated with the Bank to purchase it, and eventually bought the property for $130,000 pursuant to a Florida Bar and Florida Association of Realtors standard contract. The only appraisal that Mr. Joseph was shown was the “limited, restricted appraisal,” that bore no indication of zoning.

The contract contained two “as is” provisions, as well as an integration clause, and specifically indicated that the Bank only guaranteed clear title. The first “as is” provision reads, in pertinent part, as follows:

VII. RESTRICTIONS; EASEMENTS; LIMITATIONS: Buyer shall take title subject to: zoning, restrictions, prohibitions and other requirements imposed by governmental authority ... other: Buyer is purchasing property “as is” without representation by Seller; provided, that there exists at closing no violation of the foregoing and none of them prevents the use of Real Property for__purposes.

The blank space in the section was not filled in. In an addendum to the contract the parties also agreed that:

2. The Seller makes no representations as to the condition of the said property and only will guarantee clear title thereto by special Warranty Deed. The Buyer agrees to purchase the property “as is” and “with all defects”.

Finally, the integration clause provided that “No prior or present agreements or representations shall be binding upon Buyer or Seller unless included in this contract.”

The sale was concluded in 1995, and Mr. Joseph spent about $20,000 removing debris and clearing the property for his mulching business. As he was unable to acquire a steady flow of cypress logs, he was forced to close the facility after two years, and decided to sell the land. When Mr. Joseph sought the aid of a realtor, however, he was advised for the first time that the property was actually zoned A-l. After he learned of this surprise, he notified the Bank of the error and demanded damages. The Bank refused and Mr. Joseph brought suit.

When all the pleading smoke cleared, what remained were three counts against the Bank, one for negligent misrepresentation, one for fraudulent misrepresentation, and one for misleading advertising under section 817.41, Florida Statutes (1999). The Bank moved for summary judgment on all counts, but the trial court granted a judgment in favor of the Bank only on the misleading advertising and fraudulent misrepresentation counts. It is noteworthy that the summary judgment on the fraudulent misrepresentation count was based on Mr. Joseph’s agreement to entry of the judgment.

The case went to trial on the count for negligent misrepresentation. At the con-elusion of Mr. Joseph’s case in chief and at the conclusion of all of the evidence, the Bank moved for a directed verdict. Both motions were denied. Prior to jury consideration, both sides objected to certain jury instructions, and moved for a mistrial. At the request of the parties, however, the court reserved ruling on these motions. The jury eventually found the Bank 95% liable to Mr. Joseph for damages of $115,000.

After the jury verdict neither party asked to withdraw the respective motions for mistrial. The Bank, however, filed a written motion for new trial and motion for directed verdict. Prior to the hearing, the trial court issued an order granting the motions of both parties for mistrial, in which he indicated that he was dissatisfied with the jury instructions and was granting the motions. Mr. Joseph then faxed the court a notice of withdrawal of his motion for mistrial, and asked the court to reconsider its order, arguing that the jury verdict had cured any errors with respect to him. The Bank subsequently filed an amended motion for new trial based in part on allegedly improper closing comments by Mr. Joseph’s counsel. Eventually, the trial judge entered an amended order in which it granted the Bank’s amended motion for new trial on a number of grounds, and denied Mr. Joseph’s motion to withdraw his motion for mistrial. Mr. Joseph appeals from the order granting the Bank’s amended motion for mistrial on the negligent misrepresentation count, and from the dismissal of the count for misleading advertising. The Bank seeks reversal of the order denying its motions for directed verdict on the negligent misrepresentation count.

We conclude that the trial court did not abuse its discretion in granting the motion for mistrial on the count for negligent misrepresentation. See Baptist Mem’l Hosp., Inc. v. Bell, 384 So.2d 145 (Fla.1980); Cloud v. Fallis, 110 So.2d 669 (Fla.1959). In addition, we conclude that the court did not err in denying the directed verdict on the negligent misrepresentation cause of action. Finally, we conclude that the trial court erred in granting summary judgment in favor of the Bank with respect to the misleading advertising claim.

An order granting summary judgment is reviewed by an appellate court de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Mivan, Inc. v. Metric Constructors, Inc., 857 So.2d 901 (Fla. 5th DCA 2003). It hardly needs repeating that in order to determine the propriety of a summary judgment, the reviewing court must resolve whether there is any “genuine issue as to any material fact,” and whether the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). In our view summary judgment should not have been granted in the present case, and the count concerning misleading advertising should have been allowed to proceed to trial.

Section 817.40(5), Florida Statutes (1999), describes misleading advertising in the following terms:

The phrase “misleading advertising” includes any statements made, or disseminated, in oral, written, or printed form or otherwise, to or before the public, or any portion thereof, which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading, and which are or were so made or disseminated with the intent or purpose, either directly or indirectly, of selling or disposing of real or personal property, services of any nature whatever, professional or otherwise, or to induce the public to enter into any obligation relating to such property or services.

Section 817.41(1), Florida Statutes (1999), which prohibits misleading advertising, states that:

It shall be unlawful for any person to make or disseminate or cause to be made or disseminated before the general public of the state, or any portion thereof, any misleading advertisement. Such making or dissemination of misleading advertising shall constitute and is hereby declared to be fraudulent and unlawful, designed and intended for obtaining money or property under false pretenses.

Subsection (4) of this statute creates a rebuttable presumption that the person named in or obtaining the benefits of any misleading advertisement is responsible for the misleading advertisement and any unlawful sale associated with it. Subsection (6) contemplates a civil action under this section, and awards costs, including reasonable attorney’s fees, in addition to actual damages and punitive damages. Section 817.45, Florida Statutes (1999), makes violation of section 817.41 a first degree misdemeanor.

Although the statute does not say it, the case law that has devéloped since the adoption of section 817.41(1) requires one seeking to maintain a civil action for violation of the statute to prove each of the elements of common law fraud in the inducement, including reliance and detriment, in order to recover damages. See Smith v. Mellon Bank, 957 F.2d 856 (11th Cir.1992); Burton v. Linotype Co., 556 So.2d 1126 (Fla. 3d DCA 1989), review denied, 564 So.2d 1086 (Fla.1990); Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So.2d 1367 (Fla. 4th DCA 1981). Thus, we must begin our analysis of the issue before us by reviewing the elements of fraud in the inducement.

In Samuels v. King Motor Co. of Ft. Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001), the court held succinctly that in order to state a cause of action for fraud in the inducement a plaintiff must allege that (a) the representor made a misrepresentation of a material fact; (b) the representor knew or should have known of the falsity of the statement; (c) the representor intended that the representation would induce another to rely and act on it; and (d) the plaintiff suffered injury in justifiable reliance on the representation (Emphasis added). See also Hillcrest Pacific Corp. v. Yamamura, 727 So.2d 1053 (Fla. 4th DCA 1999).

The definition of misleading advertising supplied in section 817.41(1) includes the requirement that the representor make or disseminate oral, written or printed statements “which are known, or through the exercise of reasonable care or investigation could or might have been ascertained, to be untrue or misleading.” It appears that the requirement of the statute to use reasonable care or investigation is a refinement of the element of the tort of common law fraud in the inducement requiring proof that the representor knew or should have known of the falsity of the misleading statement.

In the present case there was sufficient evidence of this element to blunt the summary judgment attack. There is affidavit and deposition testimony that the Bank placed the sale sign on the property that specifically advertised that the real estate was zoned C-3 when it was, in fact, zoned A-l, and that the Bank apparently relied for this representation at the time that it erected the sign on a rather dated appraisal made for an earlier owner. Moreover, the Bank’s own experts agreed that reliance on a six-year old appraisal was not reasonable. While it might be perfectly reasonable for a financial institution to rely on its appraisers to ascertain the zoning of property it is selling, there is some evidence in this record that the Bank did not rely on the second appraisal that was produced (which also indicated C-3 zoning), in creating the advertising for the property. Finally, the third appraisal contained no specific reference to zoning.

We note, in addition, that the existence of the “as is” clauses and the integration clause in the contract between the parties might well impact a jury’s determination regarding the reliance element of this tort. As drafted, however, those provisions alone, do not provide a complete defense to the cause of action.

Thus, the issue of whether the Bank knew or “through the exercise of reasonable care or investigation could or might have ... ascertained” the fact that the zoning stated on its sign was incorrect was an issue of material fact that should have precluded summary judgment. The Third District Court of Appeal has held that fraud in the inducement is not ordinarily appropriate for summary disposition, since only after a full explanation of the facts and circumstances can the occurrence of fraud be determined. See Burton, 556 So.2d at 1128. That admonition pointedly applies to the present case.

In conclusion, therefore, we hold that the trial court erred in granting the summary judgment on Mr. Joseph’s cause of action for misleading advertising. We, however, affirm the trial court’s granting of a new trial on the negligent misrepresentation count, and the denial of a directed verdict on that count as well.

AFFIRMED in part, REVERSED in part, and REMANDED.

SAWAYA, C.J., and SHARP, W., J., concur.

      . Instruction MI 8.1 of the Florida Standard Jury Instructions in Civil Cases describes, inter alia, the issues and elements of the tort of negligent misrepresentation. Instruction MI 8.2 describes the tort of False Information Negligently Supplied For The Guidance of Others. In its Comments the committee took no position on whether there are distinct and separate causes of action for negligent misrepresentation and false information negligently supplied, in light of Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334 (Fla.1997). Mr. Joseph argues that the trial court should have given instructions on false infer-mation negligently supplied. As the trial court granted a new trial for a number of reasons, including the inadequacy of the jury instructions that he gave (without relating which instructions in particular he was dissatisfied with), and as this issue is not directly implicated in our decision, we trust that it will be fleshed out more fully below upon retrial.


author: RAMIREZ, J.

text:
    Ismael Grillo PERERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3056.
    District Court of Appeal of Florida, Third District.
    April 14, 2004.
    Rehearing Denied May 19, 2004.

      Bennett H. Brummer, Public Defender, and Louis K. Nicholas, II, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, GREEN and RAMIREZ, JJ.
   RAMIREZ, J.

Ismael Grillo Perera appeals his judgment of conviction and sentence that originated from twenty-nine counts of sexual battery on a minor by an adult and resulted in twenty-two consecutive sentences of life imprisonment, without parole. We affirm because we do not find any abuse of discretion in the admissibility of the statement related to Perera’s prior sexual abuse which he argues constituted irrelevant, immaterial, and improper character evidence. We also reject Perera’s ineffective assistance of counsel claims.

At trial, sisters A.P. and M.A. testified, as well as their brother Enrique Del Vayo. Perera was the former boyfriend of the siblings’ mother who lived with the family throughout most of A.P.’s and M.A.’s early childhood years. A.P. testified that Perera started touching her private parts and molesting her from a very young age. Perera threatened A.P. into silence. After a number of years, A.P. caught Perera performing anal sex on her sister M.A., and she became so upset that she ran downstairs, called her brother Del Vayo, screamed at her mother, and tried to explain to them what had been going on. When A.P. turned thirteen years of age, Perera moved out of the family’s homeland he stopped his sexual molestation of A.P. The two sisters eventually reported Perera’s sexual abuse to the police.

M.A. testified that Perera sexually molested her, and he also performed anal and oral sex on her on numerous occasions. One day when Perera was molesting her, A.P. walked in on them and saw what Perera was doing. She did not tell anyone in her family what was happening because Perera threatened her. She did not tell anyone about the abuse because she thought that if she did not think about it, it would all just go away.

Del Vayo testified that in 1989 or in the early 1990’s, A.P. telephoned him. He described A.P. as upset. When he responded to A.P.’s call, she told him that she was sick of what Perera was doing to her. Del Vayo then confronted Perera. Perera said that he was sorry, that he had been abused by his uncle in Cuba. At this time, the defense objected, and the trial court overruled the objection and requested that defense counsel state the grounds of his objection. Defense counsel again objected, but stated no grounds. The trial court overruled the objection. Del Vayo thereafter testified that Perera lowered his pants and he showed Del Vayo, as well as the siblings’ mother, his private parts. Perera also reiterated that he had been sexually abused as a child in Cuba. The defense objected a third time, this time on the grounds that Del Vayo’s statements constituted hearsay. The trial court overruled the objection, relying upon an exception to the hearsay rule.

During closing arguments, both sides mentioned the confrontation between Del Vayo, the mother, and Perera. The State also stated that Perera’s apology was “his excuse for sexually assaulting [the] two girls.”

Perera’s main point on appeal is that the trial court improperly admitted his statement about his uncle’s abuse of him in Cuba as pedophile profile testimony. This argument is entirely misplaced.

To preserve an issue for appeal, counsel must make a specific objection to the admission of the evidence. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985). See also Filan v. State, 768 So.2d 1100, 1102 (Fla. 4th DCA 2000) (where counsel made a general “lack of foundation” objection and therefore failed to preserve its objection to the admission of certain records into evidence under the business records exception to the hearsay rule). Per-era’s defense counsel twice failed to state the specific grounds for his objections to the introduction of Perera’s statements regarding Perera’s apology and uncle abuse. The grounds were not readily apparent to the trial court and, once enunciated, the hearsay grounds could be easily dismissed as an admission by a party opponent. See § 90.803(18), Fla. Stat. (2002).

Even if counsel had raised the improper pedophile profile testimony objection, it would not necessarily have been sustained. Pedophile profile cases typically involve the presentation of expert witness testimony on the criteria of a pedophile profile evidence, as well as testimony that the defendant’s traits qualify as a pedophile under the illustrated criteria. See Flanagan v. State, 625 So.2d 827, 829-30 (Fla.1993). See also Gay v. State, 607 So.2d 454 (Fla. 1st DCA 1992) (where the court stated that the defendant was linked to the crimes charged through pedophile profile evidence received from an expert witness); Phillips v. State, 589 So.2d 1360, 1361 (Fla. 1st DCA 1991)(where expert testified as to the characteristics of pedophiles and the prosecutor “argued at length” that the defendant met the profile characteristics).

While we recognize that pedophile profile testimony is inadmissible as substantive evidence of a defendant’s guilt, this case is entirely distinguishable from the pedophile profile line of cases. There was .no witness testimony regarding the characteristics of a pedophile, and the State did not attempt to cast Perera into a pedophile profile. Perera’s statement that his uncle abused him in Cuba thus did not qualify as pedophile profile testimony.

Perera’s statements instead constituted an admission of guilt. See § 90.803(18). An admission of fact or circumstance from which guilt may be inferred is admissible as a general admission against the party who made the statement. See State v. Lamar, 538 So.2d 548, 549 (Fla. 3d DCA 1989). See also Pieczynski v. State, 516 So.2d 1048, 1051 (Fla. 3d DCA 1987)(holding that the defendant’s statement that he was sorry and could not help himself was admissible as an admission from which guilt could be inferred). Such a statement is admissible if made freely and voluntarily. See Brown v. State, 111 So.2d 296, 298 (Fla. 2d DCA 1959)(holding that an incriminating admission is admissible if the admission is affirmatively shown to have been made freely and voluntarily).

Perera’s apology and his statement that his uncle abused him in Cuba qualify as statements from which guilt may be inferred. Perera also made the statements freely and voluntarily in direct response to Del Vayo’s inquiry.

Perera also complains on appeal that his defense counsel’s failure to object to the State’s closing argument, during which the prosecutor stated that Perera’s sexual abuse by his uncle in Cuba was Perera’s excuse for his sexual abuse of the victims, rises to the level of fundamental error cognizable on direct appeal. The prosecutor’s argument in this case was fair commeiit on the evidence presented at trial. It certainly did not rise to the level of fundamental error.

We decline to address any other contention Perera raises in this appeal. In light of the foregoing, and the trial court’s wide discretion in its decision to admit evidence which will not be disturbed absent an abuse of discretion, see Rodriguez v. State, 327 So.2d 903, 904 (Fla. 3d DCA 1976), we affirm Perera’s judgment of conviction and sentence.

Affirmed.


author: MAY, J.

text:
    LEVITT-ANSCA TOWNE PARK PARTNERSHIP, Bellagio by Levitt Homes, Inc., Bellagio by Ansca, Inc., a/k/a Bellaggio by Ansca Homes Inc., and Liberty Mutual Insurance Company, Appellants, v. SMITH & COMPANY, INC. and American Home Assurance Company, Appellees.
    No. 4D02-2572.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Rehearing Denied June 8, 2004.

      William R. Scherer and James F. Carroll of Conrad & Scherer, LLP, Fort Lauderdale, for appellants.
    Mary Piccard Vance of Vezina, Lawrence & Piscitelli, Tallahassee, and Joseph W. Lawrence, II, Michael A. Piscitelli of Vezina, Lawrence & Piscitelli, P.A., Fort Lauderdale, for appellee, Smith & Company, Inc., Robert E. Morris and David Scott Knight of Robert E. Morris, P.A., Tampa, for appellee American Home Assurance Company.
   MAY, J.

A contract between a developer and a contractor hired to perform earthwork ran amuck, resulting in litigation. The contractor filed a complaint against the developer and Liberty Mutual Insurance Company. The developer counter-claimed. The jury returned a verdict in favor of the contractor and awarded damages. It is from the Amended Final Judgment entered following post-trial motions that the developer and Liberty Mutual appeal. The developer argues that the trial court erred in denying its motion for new trial. We agree and reverse.

The developer solicited a price from the contractor for earthwork to be performed at the construction site of Bellagio. The contractor initially submitted a proposal of $4,000,000, which contained a 50% credit to the developer for each cubic yard of surplus fill that the contractor removed from the site. The developer rejected the proposal and requested a flat price to perform the work. The contractor submitted a new price of $2,000,000, anticipating that it would also receive 1.6 million cubic yards of surplus fill.

The contract, however, was silent on the quantity of surplus fill. An exhibit attached to the contract included a paragraph which provided that “[a]ll surplus fill that is not needed for the Project is the property of the Contractor.” The contractor intended to use the surplus fill in the reconstruction of U.S. 441 under a contract with the Department of Transportation and other projects. It anticipated selling any remaining surplus fill.

The contractor immediately began hauling fill from the site for use on the U.S. 441 project. According to the developer, the contractor was taking too much fill from the site and not finishing the work on time. According to the contractor, the developer was asking it to perform work not included in the contract price and would not approve change orders submitted by the contractor.

By the time the developer terminated the contractor, a little over 50% of the earthwork had been performed. At that time, the contractor had already removed 571,781 cubic yards of fill from the site with an estimated worth in excess of $1.5 million. The developer paid the contractor $342,859, but invoices totaling $714,903.26 remained outstanding.

Of the many disagreements that arose between the developer and the contractor, the most significant dispute concerned the contractor’s removal of large quantities of fill early in the project. This evolved into another dispute over who was responsible for obtaining special permitting required when more than 10% of the land was excavated. In legal terms, the disputes boiled down to who breached the contract.

The contractor sued the developer and requested the following damages.

Unpaid Invoices $ 714,903.36

Work Performed (w/o payment) $ 352,263.72

Added Bond Premium $ 11,424.00

Idle Equipment $ 654,292.50

Un-funded Equipment Mobilization $ 37,698.84

Anticipated Profit $3,266,077.70

TOTAL $5,036,660.04

The developer claimed that the contractor breached the agreement, no amount of surplus fill had been guaranteed, and the contractor was required to deduct its costs from any anticipated lost profits. The jury found the developer in breach of the contract and awarded the contractor $2,959,638.54 in damages for the breach. This included a $714,903.36 lien for work performed, and $352,263.72 for work performed outside the parameters of the agreement based upon the theory of quantum meruit.

On appeal, the developer argues the damages exceed those permitted by law and are not supported by the evidence. The argument has many sub-parts, including the value of the surplus fill, the contractor’s failure to account for its costs in determining lost profits, and the duplicitous nature of the damage awards. The developer seeks a reversal of the final judgment with directions to the trial court to enter a judgment in its favor. In the alternative, it seeks a new trial on all issues claiming the damages and breach issues are so intertwined they cannot be considered separately.

Although the contractor maintains that the evidence supports the damages awarded, at oral argument, it candidly admitted an inability to account for the jury’s calculation of the precise amount awarded for the breach. We too are unable to justify the damages awarded in this case.

The proper measure of damages for breach of a partially performed construction contract [is] “either quantum meruit or the contractor’s lost profit together with the reasonable cost of labor and materials incurred in good faith in the course of partial performance of the contract.”

Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999) (quoting Nico Indus., Inc. v. Steel Form Contractors, Inc., 625 So.2d 1252, 1252 (Fla. 4th DCA 1993). See also Frenz Enters., Inc. v. Port Everglades, 746 So.2d 498 (Fla. 4th DCA 1999) (discussing burden of proof for lost profits). See also Sampley Enters., Inc. v. Laurilla, 404 So.2d 841 (Fla. 5th DCA 1981)) (reversing damage award because court awarded out of pocket expenses when lost profits was the proper measure of damages).

In this case, however, the contractor sought both damages on the contract and an additional sum for work performed outside the contract under the theory, of quantum meruit. We hold that because the contract provided the method for obtaining payment for additional work, the contractor could not seek equitable relief for additional work at the same time it sought legal relief in the form of lost profits for the breach. Sundie v. Lindsay, 166 So.2d 152 (Fla. 3d DCA 1964) (“It is incorrect for evidence to be introduced as to both methods, the injured party must make an election in regard to which method he seeks to recover, and pursue that method only.”); Ballard v. Krause, 248 So.2d 233, 235 (Fla. 4th DCA 1971) (Quantum meruit “is not available to a contractor if the contractor is suing on the contract.”). See also Corn v. Greco, 694 So.2d 833 (Fla. 2d DCA 1997). Therefore, on remand the contractor must elect between legal damages on the contract and equitable relief under quantum meruit.

We now turn our attention to the jury’s determination of lost profit damages under the contract. Lost profits must be proven “with a reasonable degree of certainty” before they are recoverable. Shadow Lakes, Inc. v. Cudlipp Constr. and Dev. Co., 658 So.2d 116, 117 (Fla. 2d DCA 1995). “The mind of a prudent impartial person should be satisfied that the damages are not the result of speculation or conjecture.” Id. See also Brevard County Fair Ass’n, v. Cocoa Expo, Inc., 832 So.2d 147 (Fla. 5th DCA 2002).

“The general rule is that anticipated profits of a commercial business are too speculative and dependent upon changing circumstances to warrant a judgment for their loss. But the rule is not an inflexible one, and if profits can be established with reasonable certainty, they are allowed.” Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., 415 So.2d 865, 867 (Fla. 1st DCA 1982). See also Fu Sheng Indus. Co., v. T/F Sys., Inc., 690 So.2d 617, 622 (Fla. 4th DCA 1997).

The damage award in this case ran afoul of these well-recognized rules of law. The $2 million dollar contract price consisted of $1,700,000 in cost of performance, a profit of $300,000, and a speculative amount of surplus fill. By the time the developer terminated the contract, it had paid the contractor $342,859 for submitted invoices and the contractor had received over $1.5 million in fill. The jury then awarded the contractor $714,903.35 for the unpaid invoices, another $352,203.72 under the theory of quantum meruit, and $2,959,633.54 in damages. This resulted in a windfall of over $3 million when the contractor had performed slightly more than half of the earthwork.

The contract provided neither a guarantee of the amount of surplus fill that the contractor might expect nor did the developer agree to a specified sum. Indeed, the contract defined surplus fill as that which was “not needed for the Project.” The contractor never completed the project. Thus,' its proof came in the form of an estimation, not reality. Barile Excavating & Pipeline Co., v. Kendall Props., Inc., 462 So.2d 1129 (Fla. 4th DCA 1984). This element of damages was too speculative to have been submitted for jury consideration. See Shidiam Corp. v. M & D Research Corp., 374 So.2d 553 (Fla. 4th DCA 1979); Shadow Lakes, Inc. v. Cudlipp Constr., Inc., 658 So.2d 116 (Fla. 2d DCA 1995).

In addition, the contractor relied on percentages of work performed to determine costs and profits. This it cannot do. Nico Indus., Inc. v. Steel Form Contractors, Inc., 625 So.2d 1252 (Fla. 4th DCA 1993). There must be actual proof of costs incurred and profits lost.

Lastly, the contractor sought additional damages for “costs” it incurred as a result of the developer’s breach, which took the form of idle equipment, an added bond premium, and unfunded equipment mobilization (plus a 15% markup). If these costs were to be recouped, then they were also “costs” that needed to be deducted from the contractor’s claim for lost profits. Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971). Instead, the costs were added as an element of recoverable damages. This constituted error. Id.

These factors considered as a whole lead to but one conclusion — the judgment must be reversed. “A district court of appeal cannot affirm a verdict which rests ‘on a mere probability or guess,’ or a verdict which ‘has no rational predicate in the evidence.’ ” Rakita v. Rose, 547 So.2d 154, 157 (Fla. 3d DCA 1989). In spite of the trial court’s diligent effort to ensure the fairness of the trial, it permitted the jury to consider damages too speculative in nature, causing the jury to render a verdict that cannot be explained by the evidence nor countenanced in the law. And when no reasonable explanation can account for the verdict, we have no choice but to reverse. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.2000). The trial court properly allowed the jury to determine the issue of breach. The remand is therefore limited to a new trial on damages. Ruskin v. Ryan, 859 So.2d 1218 (Fla. 4th DCA 2003).

On remand, the court should limit the damages to either lost profits under the contract or equitable relief under the theory of quantum meruit. In addition, the trial court should ensure that all costs are deducted, not added. Fu Sheng Indus. Co., v. T/F Sys., Inc., 690 So.2d 617 (Fla. 4th DCA 1971). This includes applicable overhead, idle equipment, the added bond premium, and unfunded equipment mobilization. Boca Developers, Inc. v. Fine Decorators, Inc., 862 So.2d 803 (Fla. 4th DCA 2003).

REVERSED AND REMANDED.

STONE and STEVENSON, JJ., concur.

      . The developer continuously objected to the speculative nature of this aspect of the contractor's claim for lost profits throughout the proceedings.


author: POLEN, J.

text:
    B. Martin ATKINS, Appellant, v. TOPP TELECOM, INC., n/k/a Tracfone Wireless, Inc., Topp Comm, Inc., Frederick J. Pollack, and David Topp, Appellees.
    No. 4D03-315.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Rehearing Denied June 3, 2004.

      J. Ken Johnson, George M. Fleming, Andres C. Pereira of Fleming & Associates, L.L.P., Mike O’Brien of Mike O’Brien, P.C., Houston, Texas; E. Cole Fitzgerald, III, and Gregory D. Cook of Fitzgerald, Hawkins, Mayans & Cook, P.A., West Palm Beach; for appellant.
    Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., J. Michael Burman and Gregory W. Coleman of Burman, Critton, Luttier & Coleman, West Palm Beach; for ap-pellees.
   POLEN, J.

This appeal arises from a final order dismissing four counts of an amended complaint with prejudice. For the reasons expressed below, we hold that the dismissal was in error and reverse the final order.

The appellant filed a complaint based on an alleged joint venture that existed between Atkins and Topp Telecom, Inc. After his first two complaints were dismissed, in his third amended complaint, Atkins alleged a joint venture. The third amended complaint included several causes of action. Most of the causes were dismissed by the trial court. The court held that each count was contingent upon the alleged joint venture and since the court found that no joint venture was established all counts were dismissed. The remaining cause of action was voluntarily dismissed by Atkins presumably to allow him to pursue this appeal.

On appeal Atkins contends the trial court erred in dismissing each count of the complaint. “Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, the ruling on a motion to dismiss for failure to state a cause of action is subject to de novo standard of review.” Lost Tree Vill. Corp. v. City of Vero Beach, 838 So.2d 561, 569 (Fla. 4th DCA 2002) (quoting Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001) (citations omitted)). In order to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. A court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true. All reasonable inferences must be drawn in favor of the pleader. Id.

Initially Atkins argues the order ought to be reversed since the trial court utilized the wrong standard of review. Atkins contends the order demonstrates that the trial court treated this motion as one for summary judgment, rather than dismissal.

Atkins points to Barbado v. Green & Murphy, PA., 758 So.2d 1173 (Fla. 4th DCA 2000). In Barbado, this court reversed an order of dismissal where the trial court held “[t]he allegations contained in Plaintiffs Second Amended Complaint are inconsistent with the record of the aforesaid file as well as the exhibits heretofore filed in the instant litigation.” Id. at 1174. The Barbado opinion noted that a motion to dismiss is not a motion for summary judgment and the court may not rely on depositions, affidavits, or other proofs. Id. (citing Mancher v. Seminole Tribe of Fla., Inc., 708 So.2d 327, 327 (Fla. 4th DCA 1998)). Moreover, when a motion to dismiss is before the court, all material allegations are deemed true and “speculation by the court as to whether the allegations will ultimately be proven is not permitted.” Id.

In the case at bar, there were four exhibits attached to the amended complaint. As a result, they are considered part of the complaint and were properly considered by the trial court on the motion to dismiss. Hillcrest Pac. Corp. v. Yamamura, 727 So.2d 1053 (Fla. 4th DCA 1999). Therefore, it was not error for the trial court to consider the attachments to the complaint when ruling on the motion. Furthermore, there is no indication from the order that the trial court considered anything other than the attached exhibits and there is no transcript to demonstrate otherwise.

The trial court specifically stated in the order that because the counts of the complaint were purely dependent on the exhibits, and the exhibits did not demonstrate the existence of a joint venture, the complaint failed to state a cause of action. Nevertheless it appears the trial court improperly speculated as to whether Atkins could eventually prove the allegations of the complaint.

Joint venture agreements are not required to be in writing. De Ribeaux v. Del Valle, 531 So.2d 992 (Fla. 3d DCA 1988).

The essential elements of a joint venture are: (1) a community of interest in the performance of a common purpose, (2) joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a right to share in the profits and (5) a duty to share in any losses which may be sustained. Chase Manhattan Mortg. Corp. v. Scott, Royce, Harris, Bryan, et al., 694 So.2d 827 (Fla. 4th DCA 1997)(citing Kislak v. Kreedian, 95 So.2d 510, 515 (Fla.1957)).

In the complaint, Atkins alleged that he and the appellee agreed to enter a joint venture strategy by creating a new corporate entity. He also alleged that they would both have joint control and joint interest in the acquisition of the business and that they would each share profits and losses in proportion to their respective interests. Atkins also alleged that the parties entered into written agreements that included, but were not limited to, those attached to the complaint. (Emphasis added.)

Accepting the facts alleged in the complaint, and attached exhibits as true, Atkins pled all the essential elements of a joint venture. He specifically pled that they had entered in to agreements other than those attached to the complaint. Furthermore, when presented with the motion to dismiss, the trial court was obligated to draw all reasonable inferences in favor of Atkins. As a result, the trial court erred in dismissing the complaint based on the conclusion that Atkins failed to demonstrate the existence of a joint venture. The speculation by the trial court as to whether the allegations would have ultimately been proven was improper. As a result the order is reversed and the action is remanded to proceed in accordance with this opinion.

REVERSED and REMANDED.

MAY, J., and DAMOORGIAN, DORIAN, K., Associate Judge, concur.