author: COBB, Judge.

text:
    Anwar Yasin CAMERON v. STATE of Alabama.
    CR-01-1845.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.
    Rehearing Denied April 25, 2003.

      Gary L. Blume, Tuscaloosa, for appellant.
    William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.
   COBB, Judge.

I. Statement of the Case

On May 18, 2001, Anwar Yasin Cameron was indicted for trafficking in marijuana, a violation of § 13A-12-231(1), Ala.Code 1975. On October 2, 2001, Cameron filed a motion to suppress the marijuana. On November 11, 2001, the trial court conducted a hearing. On February 28, 2002, the trial court denied Cameron’s motion to suppress.

On May 31, 2002, pursuant to a negotiated plea agreement, Cameron pleaded guilty to trafficking in marijuana, but expressly reserved his right to appeal the trial court’s denial of his motion to suppress the marijuana. The trial court noted Cameron’s reservation of the right to appeal the denial of the motion to suppress and sentenced him to 10 years in prison. The trial court also fined him $25,000 pursuant to § 13A-12-231(l)(a), Ala.Code 1975, fined him $1,000 pursuant to the Demand Reduction Assessment Act, see § 13A-12-281(a), Ala.Code 1975, and fined him $100 for the Alabama Forensic Sciences Trust Fund, see § 36-18-7(a), Ala. Code 1975. This appeal followed.

II. Statement of the Facts

On March 20, 2001, Officer Lee Watkins was on routine patrol when he noticed a vehicle parked on the lawn of a housing project. Officer Watkins testified that the vehicle was “backed up to the front porch ... just about to the building.” (R. 9.) Officer Watkins testified that he stopped at the apartment where the vehicle was parked because law enforcement officers had been advised by the Tuscaloosa Housing Authority to ask the owner of a vehicle parked on the lawn to move the vehicle. Officer Watkins got out of his patrol car and approached the door of the unit closest to the vehicle to determine whether the tenant of the unit owned the illegally parked vehicle, and, if so, to ask the tenant to move the vehicle.

When Officer Watkins knocked on the door, Cameron answered. Officer Watkins testified that he “could smell a strong smell of marijuana,” that it was “overwhelming,” and that he could see “real[ly] heavy smoke ... in the apartment.” (R. 11.) Officer Watkins testified that he had smelled marijuana before the date in question and that he was capable of recognizing the smell of marijuana. Officer Watkins asked to speak to the tenant. Officer Watkins testified that Cameron then turned and ran to the kitchen. Officer Watkins testified that, at that point, he entered the apartment without a search warrant. Officer Watkins saw Cameron “taking objects from the table that was in the kitchen and put[ting them] in a drawer in the kitchen.” (R. 13.) Officer Watkins testified that, in his experience, when someone has marijuana in his possession and he sees the police, that person will “try to flush it, hide it, [or] get rid of it.” (R. 30.)

Officer Watkins asked Cameron to sit down at the kitchen table, where another black male was already seated. Officer Watkins testified that, at that point, he could hear someone else walking down the hallway behind him. Officer Watkins testified that he called for backup because the rest of the apartment was dark, and he could not ascertain how many other people were in the apartment or where those other people were.

The tenant emerged from the hallway and began moving items around on the kitchen table. When Officer Watkins saw her put something from the table into an empty fast-food box, Officer Watkins asked her to sit down at the table with the other two men. While waiting for backup to arrive, Officer Watkins asked the three people for their identification and wrote down the information. Backup arrived shortly thereafter, and Officer Watkins looked through the apartment to determine whether there were other people in the back of the apartment.

While Officer Watkins was looking through the apartment for other people, Officer Richard Mason talked with the tenant, who consented to the search of her apartment. The officers found a digital scale and approximately 2.4 pounds of marijuana, the majority of which was found in brick form in the tenant’s bedroom.

Cameron testified that he did not run when Officer Watkins asked for the tenant. He testified that he turned and merely walked to the kitchen and that running would have been impossible because only four or five feet of space separated the front door and the kitchen. Cameron testified that, when he entered the kitchen, he discovered that Officer Watkins had entered the apartment and followed him into the kitchen. Cameron also testified that, when he and Officer Watkins entered the kitchen, the tenant was already present at the kitchen table and that she did not emerge from the hallway behind Officer Watkins, as Officer Watkins had testified. Cameron testified that Officer Watkins’s initial search was not the search for other people in the apartment; he maintained that, while waiting for backup to arrive, Officer Watkins searched through the garbage can and searched the drawer in the kitchen.

III. Analysis

“[A] trial court’s ruling based upon conflicting evidence given at a suppression hearing is binding on this Court ... and is not to be reversed absent a clear abuse of discretion.” Jackson v. State, 589 So.2d 781, 784 (Ala.Crim.App.1991).

“It is well settled that warrantless entries to and searches of a residence are presumptively unreasonable and that the burden is on the government to demonstrate exigent circumstances justifying a warrantless entry and search. Welsh v. Wisconsin, 466 U.S. 740 (1984); Payton v. New York, 445 U.S. 573 (1980); Landreth v. State, 600 So.2d 440 (Ala.Cr.App.1992). To justify a warrantless entry and search, the state needs to show both the existence of probable cause and exigent circumstances. United States v. Rodgers, 924 F.2d 219 (11th Cir.1991), cert. denied, 501 U.S. 1221, 111 S.Ct. 2834, 115 L.Ed.2d 1003 (1991), appeal after remand, 981 F.2d 497 (11th Cir.1993); Etheridge v. State, 414 So.2d 157 (Ala.Cr.App.1982).”

A.A.G. v. State, 668 So.2d 122, 126 (Ala.Crim.App.1995) (some internal citations altered). “The establishment of probable cause requires only that facts available to the officer at the moment of [entry] would warrant a person of reasonable caution to believe that the action taken by the officer was appropriate.” A.A.G., 668 So.2d at 127.

A. Probable Cause

The first part of the inquiry requires us to determine whether the odor of marijuana emanating from the residence was sufficient to provide probable cause to believe that there was contraband in the residence. Although we have so held in the case of an automobile, see Smith v. State, 606 So.2d 174 (Ala.Crim.App.1992); Key v. State, 566 So.2d 251 (Ala.Crim.App.1990); and Sterling v. State, 421 So.2d 1375 (Ala.Crim.App.1982), we have yet to reach the question as it concerns a citizen’s residence.

In Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), police officers had received information from a confidential informant that someone was smoking opium in the Europe Hotel. Upon arrival, the narcotics officers, all of whom

“were experienced in narcotic work[,] recognized at once a strong odor of burning opium which to them was distinctive and unmistakable. The odor led to Room 1. The officers did not know who was occupying that room. They knocked and a voice inside asked who was there. ‘Lieutenant Belland,’ was the reply. There was a slight delay, some ‘shuffling or noise’ in the room and then the defendant opened the door. The officer said, T want to talk to you a little bit.’ She then, as he describes it, ‘stepped back acquiescently and admitted us.’ He said, T want to talk to you about this opium smell in the room here.’ She denied that there was such a smell. Then he said, T want you to consider yourself under arrest because we are going to search the room.’ The search turned up incriminating opium and smoking apparatus, the latter being warm, apparently from recent use. This evidence the District Court refused to suppress before trial and admitted over defendant’s objection at the trial. Conviction resulted and the Circuit Court of Appeals- affirmed.”

333 U.S. at 12, 68 S.Ct. 367 (footnote omitted). Although the Court eventually found the warrantless entry and search to be unconstitutional because there were no “exceptional circumstances” to excuse the officers’ dispensation with a warrant, it also commented on whether the smell of the opium could constitute probable cause for issuing a warrant:

“At the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant. We cannot sustain defendant’s contention, erroneously made, on the strength of Taylor v. United States, 286 U.S. 1 [(1932)], that odors cannot be evidence sufficient to constitute probable grounds for any search. That decision held only that odors alone do not authorize a search without [a] warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.”

333 U.S. at 13, 68 S.Ct. 367. See Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (“Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause.”). See also United States v. McSween, 53 F.3d 684 (5th Cir.1995); United States v. Nicholson, 17 F.8d 1294 (10th Cir.1994); United States v. Reed, 882 F.2d 147 (5th Cir.1989); United States v. Haley, 669 F.2d 201 (4th Cir.1982); United States v. Garcia-Rodriguez, 558 F.2d 956 (9th Cir.1977); United States v. Curran, 498 F.2d 30 (9th Cir.1974); State v. Longo, 243 Conn. 732, 708 A.2d 1354 (1998); State v. Dorson, 62 Haw. 377, 615 P.2d 740 (1980).

Officer Watkins testified that, when Cameron opened the door to the residence, a strong and overwhelming odor of marijuana emanated from the apartment. He also testified that he saw a large amount of smoke in thé house. He testified that he recognized the smell as marijuana based on his experience and training as a police officer and based on the fact that he had previously encountered the smell. This testimony was uncontroverted. Additionally, Officer Watkins also testified that, upon seeing a police officer at the front door, Cameron ran from the room and from Officer Watkins.

We hold that the strong and overwhelming smell of marijuana emanating from the house, combined with Officer Watkins’s testimony regarding his ability to identify the distinctive odor of marijuana, established the existence of Officer Watkins’s probable cause to believe that contraband was present inside the residence.

B. Exigent Circumstances

The burden rests on the State to prove the existence of an exigent circumstance to overcome the presumption of unreasonableness that attaches to warrant-less residential entries and searches. McCammon v. State, 499 So.2d 811 (Ala.Crim.App.1986) (citing Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)). See also Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970) (“The burden rests on the State to show the existence of such an exceptional situation.”).

“ ‘[N]o exigency is created simply because there is probable cause to believe that a serious crime has been committed.’ Welsh [v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984)]; Mincey [v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978)]. ‘[T]he mere presence of narcotics, without more, is not such an exigent circumstance as would permit entry into private premises without a proper warrant.’ People v. Lee, 83 A.D.2d 311, 444 N.Y.S.2d 100, 102-103 (1981), cert. denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 798 (1983). See also People v. Ouellette, 78 Ill.2d 511, 36 Ill.Dec. 666, 669-70, 401 N.E.2d 507, 510-11 (1979). ‘The presence of contraband without more does not give rise to exigent circumstances.’ United States v. Torres, 705 F.2d 1287, 1297 (11th Cir.1983).
“There have been various attempts to formulate an all encompassing definition of exigent circumstances. See Har-baugh and Faust, ‘Knock on Any Door’ — Home Arrests After Payton and Steagald, 86 Dick.L.Rev. 191 (1982); Donnino and Gírese, Exigent Circumstances For A Warrantless Home Arrest, 45 Alb.L.Rev. 90 (1980); Comment, Warrantless Arrests: Justification By Exigent Circumstances, 6 Hamline L.Rev. 191 (1983); W. LaFave, 2 Search and Seizure § 6.5 (1978). However, ‘[t]he exigent circumstances doctrine applies only when the inevitable delay incident to obtaining a warrant must give way to an urgent need for immediate action.’ United States v. Satterfield, 743 F.2d [827, 844 (11th Cir.1984)]. The possibility that evidence will be destroyed is an exigent circumstance widely recognized by the courts. Note, Exigent Circumstances for Warrantless Home Arrests, 23 Ariz. L.Rev. 1171, 1177 (1981). ‘[W]hen police officers have probable cause to search a residence for evidence, and they reasonably believe that such evidence is threatened with loss from any source, they may make a warrantless search of the premises in order to preserve and protect that evidence.’ Case note, Residential Searches to Prevent the Destruction of Evidence: An Emerging Exception to the Warrant Requirement, 47 U.Colo. L.Rev. 517, 532 (1976); Comment, Residential Searches to Prevent Destruction of Evidence: A Need for Strict Standards, 70 J.Crim. L. & Crim. 255 (1979); 2 Search § 6.5(b).
“In finding the existence of exigent circumstances due to the threatened destruction of evidence, the courts have applied such broad tests as the ‘ “great likelihood that the evidence will be destroyed or removed before a warrant can be obtained,” that the evidence is “threatened with imminent removal or destruction,” or that the police “reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant.” ’ 2 Search at p. 438, § 6.5(b).
“ ‘When Government agents, however, have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrant-less search is justified. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of uígeney involved and the amount of time necessary to obtain a warrant, ...; (2) reasonable belief that the contrabandos about to be removed, ...; (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant-is sought, (4) information indicating the possessors of the contraband are aware that the police are on their trail, and (5) the ready destructibility of the contraband and the knowledge “that efforts to dispose of-narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.”... ’ United States v. Rubin, 474 F.2d 262, 268-69 (3rd Cir.1973) (citations omitted). See also 2 Search at pp. 439-450.”

Youtz v. State, 494 So.2d 189, 193-94 (Ala.Crim.App.1986).

In this case, as discussed above, Officer Watkins had probable cause to believe that there was marijuana in the residence. ■ Officer Watkins testified that, upon seeing a policeman at the door asking for the tenant, Cameron ran from the front door back into the house to the kitchen. Officer Watkins testified that, upon reaching the kitchen, Cameron immediately began to hide things in the kitchen that had, until that point, been in plain view. Officer Watkins also testified that, in his experience, if a person in possession of illegal drugs becomes aware that a police officer is in the vicinity, that person will destroy the contraband at the first opportunity. Taking all of this into consideration, Officer Watkins could have reasonably concluded from Cameron’s suspicious actions that he would likely destroy or remove some portion of the marijuana. Therefore, there existed an exigent circumstance that, when coupled with probable cause, justified Officer Watkins’s warrantless entry of the premises. See, e.g., United States v. Tobin, 923 F.2d 1506 (11th Cir.1991) (holding that agents could reasonably conclude from the defendants’ hurried actions and furtive looks that the defendants were either aware or afraid that someone was watching them; destruction or removal of some portion of the narcotics was therefore a possibility). See also United States v. Mirdvalles, 280 F.3d 1328 (11th Cir.2002) (holding that a reasonable belief that relevant evidence in the apartment, including paper cigar labels, was in imminent danger of destruction and, therefore, exigent circumstances existed).

For the reasons stated above, we hold that, under the limited circumstances of this case, that is, in a case where an officer approaches a - residence for a legitimate and uncontrived reason and encounters the strong smell of marijuana and marijuana smoke emanating from the residence, coupled with the exigent circumstance of the potential destruction of contraband as evidenced by someone inside the residence running from the officer and attempting to hide or destroy contraband, a warrantless search is justified.

Therefore, the trial court did not abuse its discretion by denying Cameron’s motion to suppress, and its judgment is affirmed.

AFFIRMED.

McMILLAN, PM., and BASCHAB, SHAW, and WISE, JJ., concur.

      . The Court also found that the warrantless entry and search were not justified as being incident to a lawful arrest. Johnson, 333 U.S. at 16, 68 S.Ct. 367.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Anthony J. PAWLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2177.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2003.
   WHATLEY, Judge.

Anthony Pawle challenges the order of the trial court summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand the case to the trial court for an evidentiary hearing.

Pawle seeks to withdraw his plea because he alleges that counsel misadvised him regarding his jail credit award during the plea and sentencing phases of his case. Contrary to the trial court’s conclusion, the plea colloquy does not refute the allegation of affirmative misadvice about the amount of jail credit that Pawle would receive because jail credit was never discussed during the plea colloquy. As we stated in Johnson v. State, 736 So.2d 713, 715 (Fla. 2d DCA 1999), and again in Dow v. State, 823 So.2d 830, 831 (Fla. 2d DCA 2002), “In order to adequately refute a claim like this from the record, the discussion with the court must explore the specific issue upon which the defendant asserts he was misad-vised.” Because his allegation is not refuted by the record, we must reverse the order of the trial court and remand for an evidentiary hearing.

Reversed and remanded.

FULMER and KELLY, JJ., Concur.


author: SALCINES, Judge.

text:
    Neil TOOT, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2172.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2003.
   SALCINES, Judge.

Neil Toot appeals the summary denial of his motion for jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Toot claimed that he is entitled to additional jail credit for time he spent in jail prior to sentencing. By our calculations, Toot is entitled to 203 days of jail credit, rather than the 200 days awarded by the trial court. Accordingly, we reverse the trial court’s order of denial, and we remand for the trial court to award Toot an additional three days of jail credit.

Reversed and remanded.

COVINGTON and VILLANTI, JJ., Concur.


author: COVINGTON, Judge. FULMER, Judge,

text:
    Haitham Saleh SULEIMAN, a/k/a Haitham Saleh Suleinam, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1863.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2003.
    M.D. Purcell, Jr., of Law Offices of M.D. Purcell, Jr., Tampa, for Appellant.
   COVINGTON, Judge.

Haitham Saleh Suleiman, a/k/a Haitham Saleh Suleinam, appeals the summary denial of his motion for postconviction relief. The trial court summarily denied Suleiman’s motion without any explanation or record attachments. Accordingly, we reverse and remand for reconsideration of Suleiman’s. motion. See Fla. R.Crim. P. 3.850(d); Crawford v. State, 823 So.2d 832 (Fla. 2d DCA 2002); Terry v. State, 787 So.2d 33 (Fla. 2d DCA 2001). If the trial court again summarily denies the motion, it must set forth its rationale and attach any relevant portions of the record which support the denial.

Reversed and remanded.

KELLY, J., concurs.

FULMER, J., concurs specially with an opinion in which KELLY, J., concurs.

FULMER, Judge,

Specially concurring.

I concur with the decision to reverse because the trial court erred by summarily denying Suleiman’s motion without any explanation or record attachments. I write to further observe another deficiency in the trial court’s order. The trial judge denied Suleiman’s motion by simply writing “denied” on the face of the motion and affixing-his signature and the date, after which it appears the motion was forwarded to the clerk of the circuit court for filing. While this procedure produced an order that we can consider “rendered” under Florida Rule of Appellate Procedure 9.020(h), it violates Florida Rule of Criminal Procedure 3.850(g) because it neither informs the movant of the right to appeal within thirty days nor indicates that a copy of the “order” was served on the movant. This order is akin to the rubber-stamp orders we have previously disapproved for use in postconviction proceedings on numerous occasions. See Hutchins v. State, 750 So.2d 119 (Fla. 2d DCA 1999); Sills v. State, 718 So.2d 305 (Fla. 2d DCA 1998); Hardwick v. State, 702 So.2d 542 (Fla. 2d DCA 1997); Turner v. State, 667 So.2d 882 (Fla. 2d DCA 1996); Gibson v. State, 642 So.2d 43 (Fla. 2d DCA 1994); State v. Sullivan, 640 So.2d 77 (Fla. 2d DCA 1994); Parnell v. State, 642 So.2d 1092 (Fla. 2d DCA 1994). On remand, I would encourage the trial judge to review our prior opinions and enter a written order that fully complies with the rules of court.


author: ALTENBERND, Chief Judge.

text:
    In the Interest of M.C., Minor child. A.N., father, Appellant, v. Department Of Children And Family Services, Appellee.
    No. 2D03-1508.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2003.
    Heather M. Gray, Riverview, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, for Appellee.
   ALTENBERND, Chief Judge.

This is another case in which an order adjudicating a child dependent was entered based upon a “default.” In this case, the father was “defaulted” because he was thirty minutes late for a hearing under circumstances in which it was undisputed that the elevator to the courtroom had malfunctioned. The record indicates various parties and lawyers had been unable to reach the courtroom on time. The trial court denied a motion to set aside the default. For the same reasons that we reversed in G.A. v. Department of Children & Family Services, 857 So.2d 310, 28 Fla. L. Weekly D2329 (Fla. 2d DCA Oct.10, 2003), and S.B. v. Department of Children & Family Services, No. 2D03-66, 858 So.2d 1184, 2003 WL 22518060 (Fla. 2d DCA Nov.7, 2003), we reverse in this case. This opinion does not require the trial court to alter custody or current -visitation rights, but the trial court must review these issues and make a lawful decision as soon as possible following issuance of our mandate.

Reversed and remanded.

WHATLEY and CANADY, JJ., concur.


text:
    Richard L. LEWIS, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1317.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2003.
    James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Richard L. Lewis, Sr., was convicted of five counts of grand theft, five counts of communication fraud, and one count of scheming to defraud. He argues that convicting and sentencing him on both the scheming to defraud and the grand theft charges constituted double jeopardy. See Kipping v. State, 702 So.2d 578 (Fla. 2d DCA 1997); Cherry v. State, 592 So.2d 292 (Fla. 2d DCA 1991). The State admits that the five grand theft charges formed the basis of the scheming to defraud charge and were incorporated into the allegations of that charge. We therefore vacate Mr. Lewis’s convictions and sentences for grand theft. We affirm the remaining convictions. Because Mr. Lewis has finished a two-year term of imprisonment for scheming to defraud, and our opinion does not alter the legal basis for his remaining sentences of probation, we do not require resentencing on remand. We also affirm his convictions and sentences of probation for communication fraud.

Affirmed in part and reversed in part.

SILBERMAN and KELLY, JJ., concur.

      . See § 812.014(2)(c)(l), Fla. Stat. (1999).

      . See § 817.034(4)(b)(l), Fla. Stat. (1999).

        .See § 817.034(4)(a)(3), Fla. Stat. (1999).


author: POLEN, J.

text:
    HELMET HOUSE CORPORATION, Appellant, v. William H. STODDARD, Kathryn S. Stoddard, his wife, Jan S. Jelmby, Peter Jelmby, Packard Roofing Co., Inc., and Packard Waterproofing, Inc., Appellees.
    No. 4D02-2530.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 22, 2004.
    Ira C. Hatch of Hatch & Doty, P.A., Vero Beach, for Appellant/Cross-Appellee.
    Michael B. Davis of Paxton & Smith, P.A., West Palm Beach, for Appellee William H. Stoddard.
    Michael C. .Mattson and Warren B. Kwavnick of Cooney, Mattson,- Lance, Blackburn, Richards & O’Connor, P.A., Fort Lauderdale, for Appellee/Cross-Ap-pellant Packard Roofing Co., Inc.
   POLEN, J.

This appeal arises from the entry of a final judgment entered after a jury found in favor of the homeowner in a breach of contract, breach of warranty action against the contractor and sub-contractor that built the home. Although we affirm the ultimate conclusion reached below in favor of the homeowner, we find error in the trial court’s denial of the sub-contractor Packard’s motion for directed verdict and for judgment notwithstanding the verdict on Helmet’s contribution claim.

In April 1994, William and Kathryn Stoddard purchased a vacant lot with the intent of having a residence built on it. They hired an architect to design their home; then hired Helmet House to construct the home. Subsequently, Helmet sub-contracted with Packard Roofing Inc. to construct the roof. The Stoddards moved into the property in August 1995.

In October 1999, the Stoddards discovered that the home had suffered damage due to a leaky roof. Both Helmet and Packard refused to repair the roof. The Stoddards then hired Terry Kellagher to evaluate the roof and advise them on what needed to be done. Kellagher inspected the roof in April of 2000. He concluded that they needed a new roof.

The Stoddards filed a complaint alleging breach of implied warranty, breach of express warranty, and breach of contract. Helmet then filed a third party complaint against Packard for contribution, subrogation and common law indemnification. The subrogation claim was dropped prior to trial. In addition, also prior to trial, the court entered a partial summary judgment in favor of all defendants on the implied warranty counts.

The case went to a jury. At the start of trial, the court granted the Stoddard’s motion for a directed verdict on Helmet’s statute of limitations and expiration of the warranty defenses and denied Helmet’s motion for a directed verdict on the same. The majority of these rulings are challenged by Helmet House in this appeal. After the plaintiffs rested, Packard moved for a directed verdict on Helmet’s contribution claim. The motion was denied and is the subject of the cross appeal and this opinion.

Ultimately the jury returned a verdict finding that Helmet breached its contract with the Stoddards and breached the express warranty that was in the contract. Helmet was found to be 70% “negligent” and Packard 30%. Helmet’s motion for new trial, remittitur, and judgment notwithstanding the verdict were denied. The court then entered a judgment for costs and fees in favor of the Stoddards. This appeal timely follows.

We are unpersuaded by the numerous arguments Helmet raises on appeal and write only to address the issue raised on cross appeal in an effort to provide guidance in an area relatively unaddressed by Florida case law. On cross appeal, Packard claims the trial court erred in denying its motion for a directed verdict and motion for judgment notwithstanding the verdict on Helmet’s contribution claim. We agree.

Both parties agree that Uniform Contribution Among Tortfeasors Act (“UCATA”) does not apply because the parties were sued under a contract theory. As a result, Helmet sought relief against Packard under a common obligation theory. Helmet contends the contribution claim was properly submitted to the jury because of the existence of a common obligation between Helmet and Packard. In response, Packard initially argues, and the record demonstrates, that the theory of equitable contribution was never pled or tried below.

In Michael H. Bloom, P.A. v. Dorta-Duque, 743 So.2d 1202 (Fla. 3d DCA 1999), the third district held that “[i]t is well settled that a defendant cannot be found liable under a theory that was not specifically pled.” Id. at 1203 (citing Arky, Freed, Steams, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corp., 537 So.2d 561 (Fla.1988)). Therefore, Helmet should have been barred from recovering under a common obligation theory by its failure to specifically plead.

In the alternative, Packard contends, and we also agree, that the theory of common obligation does not apply as a matter of law. Packard cites to Hartford Accident & Indemnity Co. v. Scarlett Harbor Associates, 109 Md.App. 217, 674 A.2d 106 (1996), a case out of a Maryland court that is on point. In Hartford, condominium unit owners brought suit alleging defective design and construction against a developer and its present and former general partners. Defendants then filed third-party claims, including a contribution claim, against the masonry subcontractor as well as the framing subcontractor and its surety-

Maryland, like Florida, has adopted the Uniform Contribution Among Tortfeasors Act. In Hartford, the Maryland court commented that contribution is not limited to tort cases, but may also be applied to cases involving joint contractual obligations as well. This is the same theory used in Florida cases and the same theory upon which Helmet based its claim. See e.g., Desrosiers v. Russell, 660 So.2d 396 (Fla. 2d DCA 1995). The Maryland court clarified that parties share a common liability if they are either coobligors or joint tortfea-sors, and parties are co-obligors if they are jointly liable or jointly and severally liable on an obligation. The Maryland court summarized that whether the Defendants were ultimately entitled to contribution from the sub-contractor hinged on whether then- respective liabilities were in tort or in warranty. Hartford Acc. & Indem. Co., 109 Md.App. 217, 674 A.2d 106. The court held that if the liability of the defendant was based only on a contract theory rather than in tort, the defendant would have no right of contribution from the sub-contractor because the sub-contractor was not a co-obligor on the Defendants’ warranty. Id.

Although we find no Florida case that discusses the common obligation theory in as much detail as Hartford, the Florida cases lead to the same conclusion.

In Desrosiers, the court held that “when a person pays more than his share of a common obligation, the law gives him the remedy of contribution to obtain from the other obligors payment of their respective shares of the obligation.” Desrosiers, 660 So.2d at 397.

Although the Desrosiers court did not define what amounts to a common obligation, the basis of the court finding that the parties had a common obligation was that they both guaranteed the same bank loan. Similarly, in Schrank v. Pearlman, 683 So.2d 559 (Fla. 3d DCA 1996), the court relied upon a theory of common obligation to hold parties liable when the parties all had executed a personal guaranty of a loan. See also Fletcher v. Anderson, 616 So.2d 1201 (Fla. 2d DCA 1993) (Petitioner and respondent were guarantors on a promissory note and guaranty agreement entered.); Curtis v. Cichon, 462 So.2d 104 (Fla. 2d DCA 1985)(Guarantors of promissory note were equally liable on the note.) In Schrank, the court quoted a very early Florida Supreme Court opinion as follows:

The principal of contribution does not seem to have sprung from contract, but is based on a principle of justice and equity, that one person should not be singled out by the creator to pay the whole, demand; and where this occurs, the law intervenes and places sureties relatively to each other in a state of equality as to the amount paid, and gives the party paying a remedy by action for contribution. This right of action grows out of an implied agreement, that if one surety shall be compelled to pay the whole, or a disproportionate part of the debt, the other shall pay such a sum as shall render their common burden equal.

Id. at 561-62 (quoting Love v. Gibson, 2 Fla. 598, 618-19 (1849)).

In this case, Packard and Helmet did not share a common obligation. Therefore, Packard is correct that the common obligation theory is inapplicable as a matter of law. In light of the parties’ acknowledgment that the claim did not stem from tort liability, it follows that there was no reasonable evidence upon which a jury could have legally entered a verdict in favor of Helmet, and the trial court should have granted Packard’s motion for directed verdict. On remand we instruct the trial court to enter an order in favor of Packard and assess Helmet as 100% liable to the Stoddards.

AFFIRMED IN PART; REVERSED IN PART.

STEVENSON and SHAHOOD, JJ., concur.


text:
    Lacene ORVIS, Appellant, v. CAULKINS INDIANTOWN CITRUS CO., a Florida corporation, and Via Tropical Fruits, Inc., a Delaware corporation, Appellees.
    No. 4D02-3271.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2003.
    Rehearing Denied Jan. 22, 2004.
    Jack Scarola of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appellant.

      Eugene E. Stearns and Mark P. Dike-man of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Miami, for ap-pellees.
   POLEN, J.

The underlying facts of this case are not new to this court. In Caulkins Indiantown Citrus Co., v. Nevins Fruit Co., 831 So.2d 727 (Fla. 4th DCA 2002), this court significantly, detailed underlying facts which set the stage for the parties to this lawsuit. Lacene Orvis was an employee of Caulkins Indiantown Citrus Co. After her termination, she filed a one count complaint seeking damages under the Florida Private Whistleblowers’ Protection Act. After a two week jury trial, the jury found in favor of the defendant and the plaintiff filed this appeal. For the reasons outlined below, we reverse that judgment and remand the case for a new trial.

After she left Caulkins, Orvis entered into consultation agreements with other citrus growers for consulting services, including “expert witness services,” regarding their potential legal claims against Caulkins. Orvis was to be paid the lesser of $250,000 per year or ten percent of any recovery against Caulkins. Caulkins had moved to exclude her testimony in cases in which other growers had made claims against Caulkins on the ground that these agreements provided for a contingent fee for either factual or expert testimony, in violation of rule 4-3.4(b), Rules Regulating The Florida Bar. The trial court indicated that it considered the agreements to be illegal and unenforceable.

Prior to trial, plaintiffs counsel made a motion in limine seeking to preclude any evidence or questions regarding the alleged impropriety of the contracts entered into between Orvis and the growers, or the alleged impropriety in the solicitation of growers to file claims against Caulkins. In addition, the motion sought to preclude any mention that plaintiffs attorney and his firm, Searcy, Denny, et al., engaged in any wrongdoing in their involvement with drafting the contract between Orvis and the growers. The trial court granted plaintiffs motions.

In violation of the order in limine, on cross examination, defense counsel asked Orvis, “now, Mrs. Orvis, at some point, you learned that this agreement is illegal, did you not?” After refreshing his memory of the order in limine, Defense counsel acknowledged that the question was improper.

Orvis first contends a new trial is necessary due to defense counsel’s admitted violation of the order in limine. Caul-kins responds that the violation was inadvertent and that the improper question, in light of the facts of this case, did not result in an unfair trial. ■

The trial court’s ruling on a motion for a new trial is within the broad discretion of the trial judge, and an order on such a motion should not be disturbed on appeal absent a showing of a clear abuse of discretion. Baptist Mem’l Hosp., Inc. v. Bell, 384 So.2d 145, 146 (Fla.1980). If reasonable persons could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable arid there can be no finding of an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Not every violation of a pretrial order in limine automatically results in a new trial. Leyva v. Samess, 732 So.2d 1118 (Fla. 4th DCA 1999).

In Fischman v. Suen, 672 So.2d 644 (Fla. 4th DCA 1996), this court reversed a trial court’s denial of a motion for a new trial based on a violation of an order in limine. Fischman involved two doctors that joined practice together and signed a restrictive covenant. The cause of action arose when one of the doctors left and sought damages based on unpaid wages and sought recision of the restrictive covenant. The other doctor filed a counterclaim seeking damages pursuant to the covenant. The plaintiff contended that the other doctor wanted him to engage in Medicare fraud. Before trial the defendant moved in limine to preclude the other doctor from mentioning anything about Medicare fraud. That motion was granted. However, while the plaintiff was on the stand, he mentioned that one of the reasons he wanted to leave was the other doctor wanted him to commit Medicare fraud. A timely objection was made. The trial court instructed the jury to disregard everything about Medicare fraud and denied the defendant’s motion for mistrial, acknowledging that the issue was close. The jury ultimately returned a verdict in favor of the plaintiff. Id. at 645.

In reversing the trial court’s ruling in Fischman, this court pointed out that courts have reversed for violations of orders in limine involving subsequent remedial measures and disclosure of a traffic homicide investigator’s conclusions. Id. (citing Walt Disney World Co. v. Blalock, 640 So.2d 1156, 1158-59 (Fla. 5th DCA 1994); Ratley v. Batchelor, 599 So.2d 1298, 1301-02 (Fla. 1st DCA 1991)). However the opinion comments that those types of in limine violations are less flagrant than the one in Fischman, because the violation in Fischman involved “an accusation of criminal conduct difficult for a jury to ignore.” Id. at 645. The opinion goes on to say that “[wjhile a curative instruction might alleviate a more benign evidentiary gaffe, the instruction in this case may have amplified the prejudice to Fischman. This was a close case. The credibility of the two doctors was central to the contract issues presented to the jury.” Id. at 646.

This court distinguished and discussed Fischman in Leyva. In Leyva, this court reversed a trial court’s order granting a new trial based on a violation of an order in limine. Leyva was a case resulting from a motor vehicle accident. The defendant was a doctor. Prior to trial, defendant’s attorney moved in limine to prevent the plaintiffs attorney from referring to the defendant as Dr. Samess because he thought it would give the jury the impression he had a lot of money. The trial court ruled that the defendant could be referred to as a doctor during voir dire, but not during trial. In fact, he was referred to as a doctor during voir dire. Id. at 1120. However, in violation of the order in li-mine, plaintiffs counsel also referred to the defendant as Dr. Samess during closing argument. The trial court held, citing Fischman, that due to the egregious violation of an order in limine, a new trial was warranted. On appeal, this court disagreed, explaining as follows:

In Fischman, the defense violated an order in limine, which prohibited witnesses from making any mention of medicare fraud. Our court explained that “[t]he unsubstantiated allegation of medicare fraud is precisely the type of inflammatory matter which should be extinguished by an order in limine.” See id. at 645. (emphasis supplied). Because a defense witness’s testimony that the plaintiff told him to “basically to commit medicare fraud” constituted an accusation of criminal conduct in a trial where the credibility of the two parties was central to the issues, our court felt that the violation of the pretrial order was egregious enough to warrant a new trial. Our characterization of the violation as “egregious” was a comment on the nature of the testimony as it related to the facts of the case, and not an observation concerning whether the violation of the order was intentional.

Id. at 1121.

Like Fischman, the improper question in this case involved “an accusation of criminal conduct difficult for a jury to ignore.” Moreover, also like Fischman, the curative instruction given by the judge here may have amplified the prejudice to Orvis. Not only, as Orvis accurately points out, was the question the culmination of a long line of questions involving the consultation agreements, the question came at the end of this lengthy trial. Finally, where in Fischman the credibility of the two doctors was central to the issues presented to the jury, in this case, the credibility of Orvis was critical to the issue sent to the jury. In fact, the answer brief submitted by Caulkins emphasizes the import of Orvis’s credibility at trial. Caul-kins argues, inter alia, the following:

First, except for her own self-serving characterizations, there was no evidence that the manner in which Caulkins accounted for its pool returns was criminal
Second, other than Orvis’s self-serving testimony regarding supposed objections made to her management behind closed doors every objective fact and document establishes that not only did Orvis not object, she pro-actively endorsed and praised the manner in which Caulkins’ accounted for pool return over the seven years in issue....

Although these arguments were made in support of Caulkins’s assertion that Orvis received a fair trial because she had no cognizable claim to begin with, the argument demonstrates that Orvis’s credibility was a key factor in this case. Thus, we find Fischman persuasive and hold that the trial court abused its discretion in failing to grant the motion for a new trial.

Orvis’s second argument on appeal is that the trial court erred in limiting its ability to show the economic impact of Caulkins’s behavior as it related to the way Caulkins calculated the pool returns. Orvis sought to have Soneet Kapila, a forensic accountant who had .previously worked on the related Nevins case, testify as to the financial gain Caulkins recognized as a result of the change in the way Caulkins calculated pool returns. Plaintiffs counsel claimed this testimony was necessary in light of the Defendant’s attempt to categorize this case as a $54,000 claim based on the jury verdict in Nevins. There was evidence of a two million dollar settlement payment made by Caulkins. However, Plaintiff claimed that Kapila’s testimony would demonstrate that Caul-kins behavior resulted in, and was motivated by, more than a six million dollar benefit to Caulkins.

During trial, Plaintiffs counsel sought to ask Kapila what percentage of the overall pool he was trying to figure out when he was doing the analysis on the Nevins case. Plaintiffs counsel explained that what he was trying to elicit was that the amount at issue in Nevins was a small piece of the overall pie.. Defense counsel objected and argued that the information was irrelevant. After hearing argument on the matter, the trial court agreed that the jury was entitled to hear that there was more than a $54,000 benefit to Caulkins as a result of the pool calculation changes.. However, the court ruled that the jury should not be given a number that included growers who were not involved with Caulkins prior to the change in calculations. The court reasoned that those parties “weren’t damaged by the change because they came in without the historical basis of it.” It is this ruling that Orvis now contends was erroneous. We agree.

We recognize that at the time of the trial court’s ruling, the Nevins opinion had not yet been issued. However, in Nevins, this court held that those growers who entered into the contract with Caulkins even after the method of calculations changed, had a potential claim. It follows, we think, that Caulkins was arguably motivated by the financial benefits from those growers as well. The trial court’s ruling in this evidentiary matter is inconsistent with Nevins. As a result, we find the trial court’s preclusion of evidence on this basis erroneous.

REVERSED AND REMANDED for a new trial consistent with this opinion.

KLEIN and STEVENSON, JJ., concur.


author: PETERSON, J.

text:
    Ruth Hester MEYER, Appellant/Cross-Appellee, v. James A. HUTCHINSON and Clara F. Hutchinson, Appellees/Cross-Appellants.
    Nos. 5D02-3044, 5D03-144.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Rehearing Denied Jan. 9, 2004.

      Dennis E. Dabroski of Boydstun, Dabro-ski, Lyle & Wood, P.A., St. Petersburg, for Appellant/Cross-Appellee.
    R. Wayne Miller and Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa, for Appellees/Cross-Appellants.
   PETERSON, J.

Ruth Hester Meyer (“Meyer”) timely appeals a jury verdict and judgment in an auto negligence case in favor of James A. Hutchinson (“James”) and Clara F. Hutchinson (“Clara”) (together the “Hutchin-sons”).

This appeal involves two issues: I. Whether the contractual provisions of Meyer’s Michigan automobile insurance policy provided the coverage required by Florida’s no-fault financial responsibility law; and II. Whether two proposals for settlement from the Hutchinsons to Meyer were valid.

I. CONTRACTUAL PROVISIONS

Meyer admitted liability for the accident in which her automobile rear-ended the Hutchinsons’ automobile at a low rate of speed in heavy traffic on Interstate 75. The trial was limited to the issue of damages for injuries that each of the Hutchin-sons claimed to have received as a result of the collision. Meyer had raised the affirmative defense that the Hutchinsons had not sustained the threshold injuries which would entitle them to recover for pain, suffering, mental anguish and inconvenience under section 627.737(2), Florida Statutes (1999). She contends entitlement to the threshold defense because at the time of the accident she was covered by a Michigan Farm Bureau Insurance policy that complies with the Florida no-fault law requirements. The trial court granted the Hutchinsons’ motion in limine to deny a threshold injury instruction finding that the Michigan policy did not extend personal injury protection (PIP) within the state of Florida and therefore, the permanency threshold requirement was not applicable. The trial court determined that the language in Meyer’s Michigan automobile insurance policy was ambiguous and did not specifically indicate that PIP coverage is provided in states other than Michigan.

Meyer’s Michigan automobile policy contains the following language:

It is agreed that Part I — Liability is amended by the addition of the following language:
Out-of-State Coverage
If an insured is in another state or Canada and, as a non-resident, becomes subject to its motor vehicle compulsory insurance, financial responsibility, or similar law.
(a) this policy will be interpreted to give the coverage required by the law and (b) the coverage given replaces any coverage in this policy to the extent required by the law for the insured’s operation, maintenance, or use of an owned automobile, a temporary substitute automobile, or a non-owned automobile.
Any coverage so extended shall be reduced to the extent other coverage applies to the accident. In no event shall anyone collect more than once.

The trial court’s construction of an insurance policy to determine coverage as a matter of law is subject to de novo review. E.g., Hartford Ins. Co. v. BellSouth Communications, Inc., 824 So.2d 234 (Fla. 4th DCA 2002).

Section 627.737, Florida Statutes, is the authority for a “threshold defense” under which Meyer contends her Michigan insurance policy provides. ' The pertinent parts of section 627.737 include:

(1) Every owner, registrant, ‘operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, and every person or organization legally responsible for his acts or omissions is hereby exempted from tort liability for damages because of bodily injury, sickness, or disease arising out of the ownership, operation, maintenance or use of such motor vehicle in this state....
(2) In any action of tort brought against the owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405, or against any person or organization legally responsible for his acts or omissions, a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience because of bodily injury, sickness or disease arising out of the ownership, maintenance, operation or use of such motor vehicle only in the event that the injury or disease consists in whole or in part of:
(a) significant and permanent loss of an important bodily function.
(b) permanent injury within a reasonable degree of medical probability other than scarring or ■ disfigurement.
(c) significant and permanent scarring or disfigurement. ' 1
(d) death.

Before a claimant can recover the non-economic damages, described in section 627.737(2), the claimant must establish a threshold injury as described in section 627.737(2)(a)-(d). E.g., Sweitzer v. Thomas, 834 So.2d 283, (Fla. 5th DCA 2002); see also Giles v. Luckie, 816 So.2d 248 (Fla. 1st DCA 2002). Meyer contends that the trial court erred by refusing to require the Hutchinsons to prove a threshold injm ry necessary to recover for non-economic damages.

In Spence v. Hughes, 500 So.2d 538 (Fla.1987), the Florida Supreme Court adopted this court’s decision in Spence v. Hughes, 485 So.2d 903 (Fla. 5th DCA 1986), in which non-residents of Florida who voluntarily obtain PIP coverage conforming to Florida’s no-fault law were held to be exempt from tort liability under section 627.737 to the same extent as Florida residents who had obtained the required statutory coverage. In Spence, the plaintiff sued a non-resident for injuries sustained in an automobile accident in Florida. The non-resident had PIP coverage from another state which met the requirements of the Florida no-fault statute. Although the plaintiff did not suffer a threshold injury, she argued that she was entitled to pain and suffering. Spence held that the exemption applies not only to those individuals required by Florida statute to provide PIP coverage, but to everyone, whether a resident or a non-resident, who actually provides PIP coverage which conforms to the no-fault law.

Meyer contends, and we agree, that her policy specifically provides coverage required under any state’s financial responsibility laws when the insured vehicle is being operated in that state. The trial court concluded that the Michigan insurance policy does not provide coverage under the PIP statute because of the “location” of the insuring language in the policy. The policy includes a “Michigan No-Fault Insurance Endorsement,” the terms of which were obviously intended to comply with Chapter 31 of the Michigan Insurance Code, and no other jurisdiction. The location in the policy of the provision in issue is an endorsement that applies to Part I of the policy entitled “Liability” that extends coverage for personal injury and property damage to third persons. We conclude that the location of the endorsement and limitation of its applicability to the liability section of the policy does not limit the intent of the provision to extend coverage to the insured while in another state in such a manner as to comply with that state’s “motor vehicle compulsory insurance, financial responsibility or similar law....” The broad language employed by Michigan Farm Bureau incorporates by reference those laws of foreign jurisdictions and eliminates a voluminous inclusion of the details of laws of all of the other jurisdictions. The endorsement simply provides that whatever Florida requires as compulsory insurance or financial responsibility when Meyer operates, maintains or uses her automobile in Florida, that coverage is provided by the policy.

Florida courts have long held that insurance contract provisions are not to be construed as meaningless. See, e.g., Premier Ins. Co. v. Adams, 632 So.2d 1054 (Fla. 5th DCA 1994). “Where the terms of an insurance policy are susceptible to two interpretations, that interpretation which sustains a claim for indemnity will be adopted. Any ambiguity in an insurance policy must be resolved against the insurer.” Howard v. American Servs. Mutual Ins. Co., 151 So.2d 682, 686 (Fla. 3rd DCA 1963). Florida courts have also long held that ambiguities in insurance coverage are resolved in favor of the insured. See, e.g., Deni Assocs. of Fla., Inc. v. State Farm Ins., 711 So.2d 1135, 1138 (Fla.1998); Excelsior Ins. Co. v. Pomona Park Bar & Package Store, 369 So.2d 938, 942 (Fla.1979); Jefferson Ins. Co. v. Sea World, 586 So.2d 95, 97 (Fla. 5th DCA 1991); Saha v. Aetna, 427 So.2d 316 (Fla. 5th DCA 1983). The courts of Michigan also follow that policy. See, e.g., Port Huron Educ. Assoc, v. Port Huron Area School District, 550 N.W.2d 228 (Mich.1996); Rednour v. Hastings Mutual Ins. Co., 245 Mich.App. 419, 628 N.W.2d 116 (2001).

If we agreed with the trial court that the pertinent language of Meyer’s Michigan automobile insurance policy was ambiguous, the insurance policy still must be read in favor of coverage for Meyer in order to resolve the ambiguity in her favor. Under either analysis, Meyer had the requisite no-fault coverage while operating her car in Florida and the threshold injury defense should apply.

II. PROPOSALS FOR SETTLEMENT

Both Clara and James made joint proposals for settlement to Meyer for their respective injury claims combined with the consortium claim of the other. Neither of the two proposals for settlement apportioned the amounts attributable to the personal injury and consortium claims.

The trial court awarded attorney’s fees pursuant to section 768.79, Florida Statutes (2002), based on this court’s holding in Spruce Creek Development Co. of Ocala v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999). Spruce Creek held that the lack of apportionment in an offeror’s proposal for settlement did not render the proposal invalid. Meyer contends that the joint proposals for settlement served in this case are invalid for failing to apportion the settlement amount between the two parties and therefore the award of attorney’s fees below is in error.

Florida Rule of Civil Procedure 1.442(c)(3) requires that a proposal for settlement “shall” state the amount and terms attributable to each party:

(3) A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.

“The provision which requires that a joint proposal state the amount and terms attributable to each party is in order to conform with Fabre v. Marin, 623 So.2d 1182 (Fla.1993).” Rule 1.442 Committee Note, 1996 Amendment. The Florida Supreme Court in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 279 (Fla.2003), held that rule 1.442(c)(3) “must be strictly construed because the offer of judgment statute [section 768.79] is in derogation of the common law rule that each party pay its own fees.”

As noted, the trial court found the Hutchinsons’ proposal to be valid based on Spruce Creek. This court in Matetzschk v. Lamb, 849 So.2d 1141 (Fla. 5th DCA 2003), has previously acknowledged that the Florida Supreme Court expressly disapproved of Spruce Creek in Willis Shaw Express, Inc., finding unapportioned proposals of settlement void under rule 1.442(c)(3) and section 768.79, Florida Statutes. Complying with Willis Shaw Express, Inc., we must find that the two Hutchinson proposals for settlement were void for clearly failing to apportion the proposal amount between the parties to whom they were directed.

The Hutchinsons could have avoided having their proposals declared void by simply including in each proposal for settlement that portion of the total amount of their settlement proposal attributable to each of the two parties as is required by section 768.79, Florida Statutes, rule 1.442(c)(3), and Willis Shaw Express, Inc.

We vacate the judgments and remand for a new trial allowing Meyer’s threshold defense. We also reverse the trial court’s finding that the proposals for settlement were valid.

REVERSED AND REMANDED.

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


author: PLEUS, J.

text:
    Wayne R. SLEDGE, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D03-455.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Rehearing Denied Jan. 9, 2004.

      Wayne R. Sledge, Inverness, pro se.
    Ralph J. McMurphy, Wildwood, for Ap-pellee.
   PLEUS, J.

Sledge was disqualified from employment as a home health aide due to a 1992 conviction for importing cocaine. He filed this pro se appeal of a Department of Children and Family Services (DCFS) final order denying his request for an exemption under section 435.07, Florida Statutes. He argues that DCFS erred in rejecting the administrative law judge’s (ALJ) recommended order, which concluded that DCFS lacked jurisdiction to disqualify Sledge for a 1992 conviction under Chapter 435 because that statute became effective on October 1, 1995, and only applied to “offenses committed on or after that date.” We disagree and affirm.

The determinative issue in this appeal is whether a person may be disqualified from sensitive employment under Chapter 435 for convictions occurring before October 1,1995.

Section 400.512, Florida Statutes, requires all home health agency personnel to undergo “level 1” background screening pursuant to Chapter 435. Chapter 435 creates an administrative process for handling all background screening for employment required by law. § 435.01, Fla. Stat. (2002). Section 435.03, entitled, “Level 1 screening standards,” states in subsection (2)(cc):

Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following provisions of the Florida Statutes or under any similar statute of another jurisdiction:
(cc) Chapter 893, relating to drug abuse prevention and control, only if the offense was a felony or. if any other person involved in the offense was a minor.

Section 435.06(1) states:

When an employer or licensing agency has reasonable cause to believe that grounds exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards in this section. It shall be the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification shall be proof of mistaken identity.

(Emphasis added). Section 435.06(2) requires the employer to either fire the disqualified employee or move him into a position for which background screening is not required.

Section 435.07 provides for exemptions from disqualification. It states, in- pertinent parts:

(1) The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:
(a) Felonies committed more than 3 years prior to the date of disqualification;
(3) In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should not be disqualified from employment.' Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the employee since the incident, or any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120.

(Emphasis added).

Applicability of Chapter 435

It is undisputed that Sledge’s conviction for importing cocaine is a disqualifying offense under section 435.03(2)(cc). However, the ALJ concluded that Chapter 435 could not disqualify Sledge for a 1992 conviction because its enacting law, Chapter 95-228, section 64 of the Laws of Florida, stated that, “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date.” In support of his conclusion, he cited to Guest v. Department of Juvenile Justice, 786 So.2d 677 (Fla. 1st DCA 2001), in which the appellant was apparently disqualified from employment for a 1985 conviction. He challenged the constitutionality of Chapter 435, but the appellate court declined to reach the merits of his challenge, stating:

As to the facial constitutional challenge, we conclude that the appellant does not have standing. Florida Law chapter 95-228 created Chapter 435, Florida Statutes, on employment screening. In section 64 of the act, the legislature stated that “this act shall take effect October 1, 1995, and shall apply to offenses committed on or after that date.” Ch. 95-228, s 64, at 2076, Laws of Fla. In as much as the appellant allegedly committed his offenses in 1985, the appellant does not have standing to raise any facial constitutionality issues concerning Chapter 435.

Id.

In its Final Order, DCFS rejected the ALJ’s conclusions of law, as it is authorized to do under section 120.57(l)ffl, Florida Statutes, which states, in pertinent part:

The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.

DCFS pointed out that Chapter 95-228, Laws of Florida, did more than create Chapter 435. It also created new crimes, including the offense of “luring or enticing a child” (section 787.025), and substantially amended Chapters 39, 400, 402 and 415 of the Florida Statutes. Given the breadth of Chapter 95-228, DCFS concluded that the enacting language, “shall apply to offenses committed on or after that date,” applied to the newly-created offenses, not the “pre-existing disqualifiers” related to employment screening. To conclude otherwise, it found, would lead to a “dangerous and absurd result.” In effect, under the ALJ’s interpretation, anyone with a disqualifying conviction occurring before October 1, 1995, could not be disqualified.

DCFS also noted that the ALJ’s interpretation resulted in internal inconsistency in the statute because one of the disqualify offenses listed was “prohibited acts of persons in familial authority” in violation of section 794.041, which was repealed in 1993. Thus, DCFS pondered, “How, then, could 794.041 ever be a disqualifying offense if it only applied to offenses committed on or after October 1, 1995?” Similarly, DCFS noted that section 435.04(3)(c), as amended in 2001, states in pertinent part:

The Department of Juvenile Justice may not remove a disqualification from employment or grant an exemption to any person who is disqualified under this section for any offense disposed of during the most recent 7-year period.

Both of these provisions would be nullified by the ALJ’s interpretation of the enacting language.

The final order also challenges the ALJ’s reliance on Guest, noting that if given the meaning the ALJ ascribes to it, Guest would conflict with two other cases. In both Heburn v. Department of Children and Families, 772 So.2d 561 (Fla. 1st DCA 2000) and Phillips v. Department of Juvenile Justice, 736 So.2d 118 (Fla. 4th DCA 1999), appellate courts affirmed final orders denying exemptions under Chapter 435 for offenses committed prior to October 1, 1995. The ALJ’s interpretation of Guest would mean that Hebum and Phillips were not correctly decided.

In addition to the reasons for rejecting the ALJ’s interpretation given in the final order, DCFS’ arguments in its exceptions below and in its answer brief on appeal point out two other deficiencies in the ALJ’s interpretation of Chapter 435. First, if the ALJ’s conclusion that DCFS had no jurisdiction to act under Chapter 435 was correct, then the ALJ would not have jurisdiction either because his jurisdiction is also granted by Chapter 435. See § 435.07(3), Fla. Stat. Second, the ALJ erroneously concluded that “the agency bears the burden to prove the disqualifying offense.” This statement misstates the law established in Chapter 435. Disqualification occurs when an employer (not DCFS) has reasonable cause to believe that grounds for termination exist based on background screening. § 435.06(1). DCFS has no burden to prove disqualification. On the contrary, “It shall be the responsibility of the affected employee to contest his or her disqualification or to request an exemption from disqualification.” Even if DCFS did have some burden to prove disqualification, that burden surely would have been established when Sledge admitted he was convicted of the disqualifying offense.

It should also be noted that the ALJ made these errors sua sponte. Sledge never raised the issues of burden of proof or jurisdiction. In fact, he did not even contest his disqualification. He merely applied for an exemption, which is discretionary under section 435.07(1).

Finally, DCFS argues persuasively that even if the ALJ were correct that Chapter 435 only applied to disqualifying offenses committed on or after October 1, 1995, Sledge would still be disqualified from employment under an earlier statute. Section 400.491(2)(a)4, Florida Statutes (1991), would disqualify Sledge based on his 1992 conviction.

For the above reasons, we find that DCFS’s interpretation was more reasonable than the ALJ’s interpretation. We defer to DCFS’s interpretation because it is not clearly erroneous. Williams v. Dep’t of Mgmt. Serv., Div. of Ret., 678 So.2d 1282 (Fla.1996).

AFFIRMED.

THOMPSON and PALMER, JJ., concur.

      . In Hebum, the disqualifying offenses occurred in 1986 and 1991. In Phillips, the disqualifying offenses occurred in 1989 and 1993.

      . That subsection states:
      (a) Such minimum standards for screening shall ensure that ... home health agency personnel who, at any time, enter the home of a patient in the capacity of their employment have not been found guilty of, any of the following offenses:
      (4) A felony violation of Chapter 893, relating to drug abuse prevention and control.

      . Sledge also argues that the ALJ improperly admitted into evidence his criminal history record. This argument lacks merit because Sledge (1) failed to contest his disqualification below; (2) failed to object to the admission of this record below; and (3) admitted he was convicted of the disqualifying offense.

      .We note that an interpretation of the statute was made explicit in Chapter 2003-57, section 17, Laws of Florida, which states:
      Notwithstanding the provisions of section 64 of chapter 95-228, Laws of Florida, the provisions of chapter 435, Florida Statutes, as created therein and as subsequently amended, and any reference thereto, shall apply to all offenses regardless of the date on which offenses referenced in chapter 435, Florida Statutes, were committed, unless specifically provided otherwise in a provision other than section 64 of chapter 95-228, Laws of Florida.


author: PER CURIAM.

text:
    Thomas Bernard DEAN, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 2D02-933, 2D02-935.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Thomas Bernard Dean, Jr., pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Dean may have to file a facially sufficient motion for postconvietion relief under Florida Rule of Criminal Procedure 3.850.

CASANUEVA, STRINGER, and WALLACE, JJ., Concur.


author: STRINGER, Judge.

text:
    Roderick CHILDERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-863.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2003.
    John D. Middleton and R. Mitchell Prugh of Middleton & Prugh, P.A., Mel-rose, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Roderick Childers seeks' review of the thirty-year habitual violent felony offender sentence which was imposed pursuant to a resentencing under State v. Thompson, 750 So.2d 643 (Fla.1999). Childers argues that the trial court erred when it refused to consider mitigation evidence and indicated that it would not substitute its judgment for the prior sentencing court on remand. When a defendant is’ resentenced under Thompson, the resentencing shall be conducted de novo, and the court is required to consider mitigation evidence. Webb v. State, 805 So.2d 856, 857 (Fla. 2d DCA 2001). Thus, we reverse and remand for the court to conduct a de novo sentencing hearing in this case.

Reversed and remanded.

SALCINES and WALLACE, JJ., Concur.

      . In Thompson, the Florida Supreme Court held that chapter 95-182, Laws of Florida, which created the statute under which Child-ers was originally sentenced, was unconstitutional. State v. Thompson, 750 So.2d 643, 646 (Fla.1999).