author: WEBSTER, J.

text:
    Gregory HENDERSON, et al., Appellants, v. James V. CROSBY, etc., et al., Appellees.
    No. 1D03-2367.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.
    Rehearing Denied Sept. 30, 2004.

      Susan L. Kelsey, Holland & Knight LLP, Tallahassee; Stephen F. Hanlon and Robin L. Rosenberg, Holland & Knight LLP, St. Petersburg, for Appellants.
    Charlie Crist, Attorney General; Joe Belitzky, Senior Assistant Attorney General, Sean F. Callaghan, Assistant Attorney General, Tallahassee, for Appellees.
    Mary M. Gundrum and Rebecca Sharp-less, Florida Immigrant Advocacy Center, Miami, for Amicus Curiae Florida Immigrant Advocacy Center; James T. Miller, Chair, Amicus Curiae Committee, Jacksonville, for Amicus Curiae Florida Association of Criminal Defense Lawyers; Hubert A. Grissom, General Counsel, Advocacy Center for Persons with Disabilities, Inc., Tampa, and Isaías Ortiz, Advocacy Center for Persons with Disabilities, Inc., Ft. Lauderdale, for Amicus Curiae The Advocacy Center for Persons with Disabilities, Inc.; Peter M. Siegel and Randall C. Berg, Jr., Florida Justice Institute, Inc., Miami, for Amici Curiae, The Volunteer Lawyers’ Project for the Southern District of Florida and The Florida Justice Institute, Inc., in support of Appellants.
   WEBSTER, J.

In this case of first impression, we are called upon to determine to what extent article I, section 21, of the Florida Constitution (the “aecess-to-courts” provision) requires the Florida Department of Corrections to provide more affirmative assistance to inmates in the preparation and filing of litigation papers than does the federal constitution. We conclude that the trial court applied the wrong test to determine that appellants were not entitled to any relief. Nevertheless, we affirm because we conclude, further, that, as a matter of law, either individually or collectively, the actions complained of by appellants do not constitute significant impediments to appellants’ right of access to Florida courts.

I.

The pertinent facts are not in disphte. More than 30 years ago, Florida inmates challenged in federal court the adequacy of Florida prison law .libraries pursuant to federal constitutional law. That litigation ultimately terminated in December 2000, when, applying United States Supreme Court precedent, the United States District Court for the Middle District of Florida entered an order approving the Department of Corrections’ law library plan (including the titles to be included in the library collections). Hooks v. Moore, Case Nos. 71-144-CIV-J-21B & 71-1011-CIV-J-21B (M.D.Fla.). Beginning in 1996, based on its understanding of the most recent United States Supreme Court decision addressing the issue, the Department of Corrections had removed certain texts from its law libraries. Following the decision in Hooks, the Department instituted other policy changes, including the removal of word processing equipment from those law libraries that had such equipment.

Shortly after implementation of the policy regarding word processors, appellants filed an action against the Department’s Secretary and Director of Program Services, seeking to represent “[a]ll persons who, now, or in. the future, will be incarcerated as inmates in a facility run by the Florida Department of Corrections who have legal needs and no means by which to purchase legal advice or assistance.” They ultimately claimed (among other things) that they had been deprived of their right of access to courts pursuant to article I, section 21, of the Florida Constitution as a result of the following actions of the Department: (1) removal of reference books and form pleadings from the state’s prison law libraries; (2) limitation of access to legal materials through inter-library "loans; (3) restriction on the hours and means of access to prison law libraries and restrictions on the use of those libraries for drafting legal pleadings and legal mail; (4) elimination of access to 'computers, word processors and typéwriters for preparation of legal pleadings and legal mail; (5) reduction in the availability of inmate research aides to assist prisoners; (6) undue interference with inmates attempting to assist other inmates with their legal proceedings; (7) limitation on the storage of legal materials within an institution; and (8) improper review of prisoner legal mail and legal documents designated for copying. Appellants’ complaint sought declaratory and injunctive relief. The trial court granted appellants’ motion for class certification.

The parties eventually filed cross-motions for summary judgment and memo-randa of law, in which they argued that there were no disputed issues as to material facts, and that they were entitled to judgment in their favor as a matter of law. They also filed an extensive “joint stipulation of facts.” Following a hearing, the trial court entered its order concluding that, based upon the stipulated facts, the challenged actions of the Department did not violate article I, section 21, of the Florida Constitution; granting appellees’ motion for summary judgment; denying appellants’ motion for summary judgment; and entering a final declaratory judgment consistent therewith. In its order, the trial court stated:

The [appellants] correctly point out that the fact that Florida’s constitution contains a specific provision for access to courts differentiates the analysis of whether access to courts is infringed under Federal law from that analysis under Florida law. Under Florida law, if the challenged regulation or policy “obstructs or infringes that right to any significant degree,” Florida’s article I, section 21 guarantee that “justice shall be administered without sale, denial, or delay” is violated. See Mitchell v. Moore, 786 So.2d at 527.

However, it appears that the trial court then applied the federal test to analyze the Department’s actions.

This appeal follows. Because the sole issue before us is whether, based upon the stipulated facts, the Department’s actions (either individually or collectively) violate article I, section 21, as a matter of law, the applicable standard of review is de novo. See, e.g., Spears v. Albertson’s, Inc., 848 So.2d 1176, 1177 (Fla. 1st DCA 2003) (“The standard of review applicable to a grant of summary judgment is de novo”) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)).

II.

The United States Constitution does not include any provision similar to article I, section 21, of the Florida Constitution, expressly recognizing a right of access to the courts. Nevertheless, the United States Supreme Court has held that prisoners have a “fundamental constitutional right of access to the courts” implied from the federal constitution. Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). In Bounds, the Court said, “[i]t is indisputable that indigent inmates must be provided at state expense with paper and pen to draft legal documents!,] with notarial services to authenticate them, and with stamps to mail them.” Id. at 824-25, 97 S.Ct. 1491. Moreover, the Court held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” Id. at 828, 97 S.Ct. 1491. Later, in Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), the Supreme Court clarified its holding in Bounds, stating that “Bounds did not create an abstract, freestanding right to a law library or legal assistance,” and that an inmate alleging a Bounds violation must show actual injury by demonstrating “that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim.” Id. at 351, 116 S.Ct. 2174. The Court further observed that:

Bounds does not guarantee inmates the wherewithal to transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims. The tools it requires to be provided are those that the inmates need in order to attack then-sentences, directly or collaterally, and in order to challenge the conditions of their confinement. Impairment of any other litigating capacity is simply one-of the incidental (and perfectly constitutional) consequences of conviction and incarceration.

Id. at 355, 116 S.Ct. 2174. Finally, the Court noted that a prison regulation impinging on an inmate’s constitutional right of access to the courts would be upheld if it was “ ‘reasonably related to legitimate penological interests,’ ” explaining that “ ‘[subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration.’ ” Id. at 361, 116 S.Ct. 2174 (quoting from Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). Although appellants did not raise a federal constitutional claim, it appears that the trial court analyzed appellants’ complaints by applying the test outlined in Bounds and Lewis.

Appellants appear to concede that, pursuant to the federal test, the Department’s actions (individually and collectively) would not constitute a violation of that right of access to courts implied from the federal constitution. However, they argue that article I, section 21, of the Florida Constitution affords them more rights than does that implied from the federal constitution. The gist of appellees’ argument, on the other hand, is that the Florida aecess-to-eourts provision affords appellants no more rights than does the right of access implied from the federal constitution and that, therefore, the Department is required to - provide only such affirmative assistance. as may be necessary to permit inmates to prepare and file challenges (direct and collateral) to their convictions and sentences and the conditions of their confinement, and claims seeking to vindicate fundamental'constitutional rights. As we shall explain, we are persuaded that appellants’ position is the correct one on this point.

III.

A.

Article I, section 21, of the Florida Constitution states that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” It is generally recognized that, like similar provisions contained in the constitutions of other states, our access-to-courts provision has its roots in chapter 40 (later recodified as chapter 29) of the Magna Carta. See, e.g., G.B.B. Invs., Inc. v. Hinterkopf, 343 So.2d 899, 901 (Fla. 3d DCA 1977); Talbot D’Alemberte, The Florida Constitution 32 (1991); Judith Anne Bass, Note, Article I, Section 21: Access to Courts in Florida, 5 Fla. St. U.L.Rev. 871, 873-74 (1977). See generally Jonathan M. Hoffman, By the Course of the Law: The Origins of the Open Courts Clause of State Constitutions, 1A Or. L.Rev. 1279,1281, 1295 n. 104 (1995). Translated from its original Latin, chapter 40 provides, “ ‘To no one will we sell, to no one will we refuse or delay, right or justice.’ ” Hoffman, supra, at 1285 n. 38 (quoting from William S. McKechnie, Magna Carta: A Commentary on the Great Charter of King John 395 (2d ed.1914)). According to one commentator, although “[t]he constitutions of thirty-nine states contain ‘open courts’ or ‘remedies’ clauses,” “[t]he courts are in total disarray over how to interpret” such clauses. Hoffman, supra, at 1279, 1282. That same commentator provides convincing historical support for the proposition that chapter 40 of the Magna Carta was intended, “at a time when courts were still considered a political arm of the Crown,” “as a guarantee of freedom of the judiciary from corrupt influence and improper meddling” (id. at 1287); and “to restore the integrity of the courts by curtailing the selling of writs.” Id. at 1286. According to this commentator, the same types of considerations motivated the initial adoption of similar provisions in state constitutions during, or shortly after, the American Revolution. Id. at 1296-1311. Those states (like Florida) that later adopted similar provisions appear simply to have borrowed from the constitutions of other states, without any meaningful discussion. Id. at 1284-85.

Some version of the access-to-courts provision has been a part of every Florida constitution except that of 1868. Psychiatric Assocs. v. Siegel, 610 So.2d 419, 424 (Fla.1992), receded from on other grounds in Agency for Health Care Admin. v. Associated Indus, of Fla., Inc., 678 So.2d 1239 (Fla.1996). Florida courts have addressed the scope of the access-to-courts provision found in the Florida Constitution on many occasions. See, e.g., Nationwide Mut. Fire Ins. Co. v. Pinnacle Med., Inc., 753 So.2d 55 (Fla.2000); Psychiatric Assocs. v. Siegel, 610 So.2d 419 (Fla.1992); Smith v. Dep’t of Ins., 507 So.2d 1080 (Fla.1987); Carter v. Sparkman, 335 So.2d 802 (Fla.1976), receded from on other grounds in Aldana v. Holub, 381 So.2d 231 (Fla.1980); Kluger v. White, 281 So.2d 1 (Fla.1973); Lloyd v. Farkash, 476 So.2d 305 (Fla. 1st DCA 1985). However, most such cases have construed the provision in the factual context of claims that laws enacted by the legislature have restricted the right of access to the courts, often by abolishing a particular remedy. In Psychiatric Associates, the court said (referring to article I, section 21), “The right to go to court to resolve our disputes is one of our fundamental rights.” 610 So.2d at 424. In Kluger, the court held:

that where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

281 So.2d at 4. Notwithstanding the relative abundance of cases addressing the access-to-courts provision, however, neither the parties nor we have discovered any Florida decision directly bearing on the issue presented by this appeal. Here, there is no issue of legislative restriction of the right of access. In fact, properly viewed, there is no issue of “restriction” of access at all. Rather, the issue is to what extent article I, section 21, requires the Department to provide more “affirmative” assistance to inmates in the preparation and filing of litigation papers than does the federal constitution.

B.

Appellants argue that, while not directly on point, the decision in Mitchell v. Moore, 786 So.2d 521 (Fla.2001), provides an analytical framework by which one might arrive at an answer regarding the scope of their rights pursuant to article I, section 21. We agree.

In Mitchell, an inmate challenged a Florida statute that required certain inmates seeking to file civil actions without prepayment of filing fees to submit copies of complaints or other initial pleadings filed in the preceding five years. Id. at 524. He claimed that the statute violated the state and federal constitutions for a number of reasons. The court chose to address only the access-to-courts argument. Id. It noted that “[t]here are two sources of the right to access the courts”— that implied from the federal constitution and that expressly provided in article I, section 21, of the Florida Constitution. Id. at 525. After discussing the federal right, as delineated in Bounds and Lewis (id.), the court turned in somewhat greater detail to the scope of the right afforded by the Florida provision. Id. at 526-28. Discussing Kluger at some length (id. at 526), the court noted that, unlike Kluger, the case before it was not one in which the legislature had abolished “any asserted right to seek redress from the court for any particular injury”-, rather, it was one in which the legislature had “infringed [on] the right to seek redress for any type of injury or complaint of any kind in any civil case....” Id. at 526-27. According to the court, the latter “type of abolition is far greater than the right taken in Kluger, or any of th[e] Court’s previous access to court cases.” Id. at 527. The court then said:

[T]o find that a right [of access] has been violated it is not necessary for the statute to produce a procedural hurdle which is absolutely impossible to surmount, only one which is significantly difficult. This is so because the Florida Constitution provides that “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” ... This “openness” and necessity that access be provided “without delay” clearly indicate that a violation occurs if the statute obstructs or infringes that right to any significant degree.

Id. Because it concluded that the requirements of the statute “ha[d] become a door to the Court that some inmates simply cannot open” (id. at 525), the court further concluded that the statute created a “significantly difficult” procedural hurdle. Id. at 527.

Having found that the statute created a “significantly difficult” impediment to access, the court next addressed the test to be applied to determine whether the state’s justification for the statute was sufficient to pass constitutional muster. Id. at 527-28. After noting that “[t]he right to access ... specifically mentioned in Florida’s constitution ... deserves more protection than those rights found only by implication” (id. at 527) (citing Lloyd v. Farkash, 476 So.2d 305, 307 (Fla. 1st DCA 1985)), the court concluded that a strict-scrutiny, rather than a rational-basis, analysis was appropriate because a “fundamental interest” was being taken. Id. at 527-28. Applying strict scrutiny, the court concluded that the state’s justification was not sufficiently narrowly tailored to remedy only the compelling interest identified and, accordingly, held that the statute was unconstitutional. Id. at 528.

It seems to us relatively clear from a careful reading of Mitchell that the court was of the opinion that the Florida access-to-courts provision applies to all types of claims that might be filed by inmates in Florida’s courts, not just to claims challenging their convictions or sentences or the conditions of their confinement, or seeking to vindicate a fundamental constitutional right. We glean such an intent principally from the court’s statement that “the right which ha[d] been infringed [wa]s the right [of the petitioning inmate] to seek redress for any type of injury or complaint of any kind in any civil case.... ” Id. at 527. Such a conclusion finds further support in our prior decision in Lloyd v. Farkash, 476 So.2d 305 (Fla. 1st DCA 1985) (cited in Mitchell, with apparent approval, 786 So.2d at 528). In Lloyd, a Florida inmate sought to bring a malpractice action against his former lawyer. 476 So.2d at 306. The trial court dismissed the action on the authority of section 944.292, Florida Statutes (1983), which suspended all civil rights of anyone convicted of a felony until those rights were restored by pardon or other affirmative action. Id. On appeal, we reversed, holding that section 944.292 was an unconstitutional violation of the access-to-courts provision to the extent that “it purported] to deprive convicted felons of their right to bring civil actions in state courts....” Id. at 308.

C.

Clearly, the pertinent facts in Mitchell are different in several respects from those here. In the first place, we do not have a situation where the legislature has sought to limit access to the courts. Moreover, properly viewed, we are not faced with an attempt to restrict access at all. Rather, we must determine to what extent the Florida access-to-courts provision requires the Department to provide more affirmative assistance to inmates than does the federal constitution. Despite these differences, however, we are relatively confident that our supreme court would apply the two-step test announced in Mitchell to this case.

Because it appears that the trial court applied the narrower federal test, rather than the broader article I, section 21, test announced in Mitchell, we conclude that the trial court erred. The parties agree that the sole issue is whether, as a matter of law, the Department’s actions violated the Florida provision. Accordingly, to determine whether the error was harmful, thereby requiring reversal, we must analyze the actions complained of by appellants according to the Mitchell test. See, e.g., Brookridge Cmty. Prop. Owners, Inc. v. Brookridge, Inc., 573 So.2d 972, 975 (Fla. 5th DCA 1991) (applying the “tipsy coachman” rule to affirm a summary judgment where, although the trial court’s reasoning was erroneous, it reached the correct result because no material facts were in dispute and appellees were entitled to judgment as a matter of law). As we read the court’s opinion, we need not determine whether the justifications put forward by appellees in support of the Department’s actions stand up to strict scrutiny unless we first conclude that those actions (either individually or collectively) create a “significantly difficult” impediment to appellants’ right of access.

IV.

The first question we must resolve in attempting to apply the two-step Mitchell test is what, precisely, the court meant when it said that the right of access must be “significantly obstructed.” 786 So.2d at 527. In its opinion, the court did not explain what magnitude an impediment would have to attain to be found to be “significant.” (Perhaps it felt it was unnecessary to do so because it had apparently concluded that, in some instances at least, the hurdle imposed by the statute amounted to an insurmountable obstacle.) However, the most commonly understood meanings of the adjective “significant” would appear to be “important” and “of consequence.” See, e.g., The Random House Dictionary of the English Lan guage 1779 (2d ed. unabridged 1987). Absent any indication from the opinion that a different meaning was intended, we presume that the court intended the adverb “significantly” to be so read.

A.

Appellants first complain that the Department’s removal of reference books and inmate-created form pleadings from prison law libraries, and its decision to limit access to legal materials through inter-library loans, violated the access-to-courts provision. They argue that the access-to-courts provision must be read as intended to ensure access to all state and federal courts. Because the prison law library collections do not include materials directly relevant to the law of other states, or to a number of federal legal matters including immigration, racial discrimination, disabilities and veterans’ benefits, they contend that the libraries are constitutionally inadequate. Appellees, on the other hand, maintain that the provision is intended to ensure access only to Florida courts. We agree with appellees. We find it inconceivable that the access-to-courts provision was included in our state constitution with the intent that it would ensure for Florida residents access to all courts in this country, state and federal. While we have concluded in part III.B. of this opinion that the provision must be read as requiring the state to assist inmates to file any type of action cognizable in Florida courts, we do not believe that it may be read as requiring the state to assist inmates to file any type of action they might desire in federal courts or the courts of other states, as well. See generally Kinney Sys., Inc. v. Continental Ins. Co., 674 So.2d 86, 92 (Fla.1996) (Article I, section 21 “guarantees every person access to our courts for redress of injuries”); Traylor v. State, 596 So.2d 957, 985 (Fla.1992) (Ko-gan, J., concurring in part and dissenting in part) (Under article I, section 21, “all persons are guaranteed meaningful access to the courts of this state for the administration of justice”); Hoffman v. Ouellette, 798 So.2d 42, 45 (Fla. 4th DCA 2001) (“Florida courts shall be open to every person for redress of any injury. Art. 1, § 21, Fla. Const.”); U.S.B. Acquisition Co. v. U.S. Block Corp., 564 So.2d 221, 222 (Fla. 4th DCA 1990) (“[T]he right of access to.our courts is constitutionally protected and should be denied only under extreme circumstances. Art..I, § 21, Fla. Const.”).

Major collection prison law libraries currently maintain some 45 titles, including the Federal Reporters, Federal Practice Digest, Florida Cases, Florida Law Weekly, Florida Digest, Florida Jurisprudence, Florida Statutes (official and West’s annotated), Florida Court Rules, Shepard’s Federal and Florida Citations, Florida Session Laws, and numerous secondary sources on civil and criminal practice and procedure, evidence, corrections and prisoners’ rights, legal forms, and legal research. As we have said, the state does have an obligation to maintain libraries sufficient to permit inmates to perform research and prepare legal papers so that they might file any type of claim cognizable in Florida courts. However, the only specific complaint made by appellants regarding the availability of Florida materials is that some secondary materials relating to family law have been removed. Given the materials available in the major collections, we cannot conceive of any claim cognizable in a Florida court (including those based on federal law) that could not be researched and adequately addressed. The fact that other titles have been removed certainly does not significantly obstruct inmates’ ability to prepare and file meaningful legal papers. Accordingly, we conclude that the law library collections do not violate the Florida access-to-eourts provision.

Appellants also complain about the Department’s decision to remove from the libraries inmate-created forms and sample pleadings. They concede that the libraries do include forms prepared or approved by the courts and other legal bodies (such as The Florida Bar), as well as reference form-books (such as Matthew Bender). We fail to see how the removal of inmate-created forms and pleadings constitutes a significant impediment to inmates’ access to courts.

The Department limits access to legal materials by means of inter-library loans with libraries outside the prison system, and requires inmates to provide the reason for the materials requested and other information. In almost all cases, such requests involve either federal or out-of-state materials, or secondary treatises. Because we have concluded that the materials available in the major collections appear to be adequate to permit research for, and preparation of, any claim cognizable in a Florida court (including those based on federal law), we conclude, further, that the decision to limit access to materials by means of inter-library loans with libraries outside the prison system does not constitute a significant impediment to inmates’ access to courts.

B.

Appellants next complain about the fact that many prison libraries are not open 25 hours each week, as required by departmental rules; rules that prescribe which inmates may use the library, and when; the reduction in the number of inmate research aides; and rules that restrict inmates’ ability to avail themselves of the assistance of other inmates, known as “writ writers.” According to the parties’ stipulation, all law libraries were open at least 21 hours each week. We have reviewed the rules complained of, and find them all to be reasonably related to institutional security. Appellants’ arguments fail to convince us that these actions (either individually or collectively) create a significant obstacle to their access to courts. See generally Johnson v. Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969) (holding that a state may impose reasonable restrictions on assistance by inmates, such as limitations on the time and location of such activities); Walker v. Mintzes, 771 F.2d 920, 932 (6th Cir.1985) (holding that restricted library access does not necessarily amount to a denial of access to courts, and that prison regulations reasonably limiting the times, places and manner in which inmates may engage in legal research and preparation of legal papers are permissible as long as the regulations do not frustrate access to the courts); Shango v. Jurich, 965 F.2d 289, 292 (7th Cir.1992) (holding that “[ljibrary access may be restricted by time, place and manner regulations that are ‘justified in light of legitimate security considerations’ ”).

C.

Appellants further claim that the Department deprived inmates of access to the courts by eliminating access to computers, word processors, and typewriters for preparation of legal pleadings or legal mail and removing word processing equipment from all prisons that had such equipment. Appellees concede that it takes longer to prepare handwritten pleadings, and that the removal of such equipment has lengthened the backlog of inmate research aides. However, appellants have failed to identify a single inmate whose right of access to the courts was significantly impeded by these actions (and we note, anecdotally, that we have experienced no perceptible decline in the number of inmate filings since such equipment was removed). We cannot conceive that the access-to-eourts provision was intended to require the state to provide inmates with mechanical equipment to facilitate their research and preparation of legal papers. See generally Twyman v. Crisp, 584 F.2d 352, 358 (10th Cir.1978) (“Access to the courts does not include a federally protected right to use a typewriter or to have one’s pleadings typed ... [because] pro se prisoners’ causes are not prejudiced by the filing of handwritten briefs”). While removing such equipment may make the courts’ work more difficult (to the extent that handwritten papers are sometimes more difficult to read), we conclude that removing such equipment did not significantly impede inmates’ access to the courts.

Appellants also complain on appeal about a lack of adequate paper, pens and envelopes. Clearly, a consistent failure to provide adequate paper, pens and envelopes would run afoul of both the Florida and the federal right of access, and appel-lees have conceded as much. However, the stipulation identifies only sporadic shortages of relatively brief duration, which were soon remedied. On the state of this record, we are not prepared to say that such shortages are sufficient to demonstrate a deficiency of constitutional magnitude. See generally Sowell v. Vose, 941 F.2d 32, 34 (1st Cir.1991) (“[I]n cases involving ... the availability of supplies (such as paper, pens and pencils), the deprivation ‘may affect merely comfort or convenience without depriving a prisoner of access to the courts. A court cannot make the assumption that any alleged administrative deficiency or less than optimal clerical arrangement actually impedes a prisoner’s ability to file meaningful legal papers.’ ”).

D.

Finally, appellants complain that the Department deprived them of access to the courts by subjecting all legal mail to visual inspection for contraband in the inmate’s presence; refusing to grant “legal mail” status to “legal materials” sent to, and received from, nonlawyers, thereby permitting departmental personnel to read pleadings and legal correspondence sent to nonlawyers for typing; and precluding inmates from receiving more than five typed pages in a single envelope without obtaining prior written permission from the warden. A departmental rule provides that only the signature and letterhead of legal mail may be read, to ensure it is not contraband. This rule is clearly reasonably related to institutional security. Moreover, it does not, in our opinion, constitute a significant obstacle to inmate access to courts.

As for the rules relating to “legal materials” sent to, or received from, nonlawyers for typing, we have already concluded (in part IV.C.) that inmates have no protected right to typed legal papers. Moreover, it is clear that no right of confidentiality exists as to documents or communications voluntarily provided to third parties. These rules, as well, are reasonably related to institutional security, and do not create a significant impediment to inmates’ access to the courts.

E.

We conclude, further, that the challenged actions do not collectively violate the Florida access-to-courts provision. Certainly, their combined effect will make it somewhat more difficult and time-consuming for inmates to prepare and file legal papers. However, we do not believe that the record carries appellants’ burden of demonstrating that, together, those actions will pose a significant obstacle preventing access to the courts. Accepting appellants’ arguments would be to “guarantee [to] inmates the wherewithal to transform themselves into litigating engines .... ” Lewis v. Casey, 518 U.S. at 355, 116 S.Ct. 2174. We do not believe the Florida access-to-courts provision includes any such guarantee.

V.

In summary, we conclude that article I, section 21, of the Florida Constitution (the “access-to-courts” provision) does require the Department to provide more affirmative assistance to inmates in the preparation and filing of litigation papers than does the federal constitution. It requires that the Department provide affirmative assistance as to all types of claims that might be filed in Florida’s courts (including those based on federal law), rather than merely as to claims challenging convictions, sentences or conditions of confinement, or seeking to vindicate a fundamental constitutional right; and that the Department’s justification for its action or inaction satisfy the strict-scrutiny test when such action or inaction results in a significant impediment to inmates’ access to the courts. We also conclude that the trial court applied the wrong test to determine that appellants were not entitled to relief. Nevertheless, we affirm because we conclude, further, that, as a matter of law, either individually or collectively, the actions complained of by appellants do not constitute significant impediments to their right of access to Florida courts.

AFFIRMED.

BOOTH and DAVIS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Thomas A. SABA, Petitioner, v. Jeb BUSH, Governor, State of Florida, Sprint PCS and Federal Express, Respondents.
    No. 1D04-3251.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    Rehearing Denied Sept. 30, 2004.
    Thomas A. Saba, pro se, petitioner.
    No appearance for respondents.
   PER CURIAM.

By petition for writ of mandamus, Thomas A. Saba challenges an order of the Circuit Court for Walton County which denied his request to be certified as indigent for appeal. For the reasons set forth below, we deny the petition.

Saba’s complaint in circuit court seeks monetary damages and injunctive relief. He was found not to be indigent and was ordered to pay the circuit court’s filing fee. He appealed that order to this court in case number 1D02-5287 but he was ordered to pay the filing fee for the appeal when the circuit court again found him not to be indigent. His motion for review of that order was facially insufficient and was denied. Ultimately, the appeal was dismissed for this reason.

Saba then filed the instant petition for writ of mandamus in the Supreme Court of Florida, which transferred it to this court for consideration. According to petitioner, he seeks relief because the trial judge has attempted to “illegally seal the plaintiffs fate by denying indigent status for appellate purposes.” Because the trial court has rendered a ruling, whether correct or not, mandamus will not lie. Kramp v. Fagan, 568 So.2d 479 (Fla. 1st DCA 1990). Instead, Saba has an adequate remedy by appeal. If he is unable to pay the applicable fee, his circuit court action will be dismissed and he may appeal that final order. If he is also found not to be indigent for the appeal, his remedy is a motion for review in accordance with Florida Rule of Appellate Procedure 9.430. Thus, if the circuit court is incorrect in concluding that Saba is not indigent, the matter will eventually be resolved in his favor. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000). This mandamus petition, however, is not the appropriate vehicle for Saba to obtain relief if he is correct in his challenge to the circuit court rulings on indi-gency.

PETITION DENIED.

WOLF, C.J., ERVIN and LEWIS, JJ., concur.

      . It is unlikely that this court would have found it had jurisdiction to review the circuit court’s order by appeal or by writ of certiorari. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000). The filing fee is a threshold matter which must be first resolved before the appealability of the order is reviewed. In case number 1D02-5287, the proceeding never moved beyond the issue of this court’s filing fee.


author: WOLF, C.J.

text:
    SCOTTY’S HARDWARE, INC. and United Self Insured Services, Inc., Appellants, v. Benjamin NORTHCUTT, Appellee.
    No. 1D03-4659.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.
    Rehearing Denied Oct. 7, 2004.

      Susan Sapoznikoff Foltz, of The Foltz Law Firm, P.A., Tallahassee, for appellants.
    William K. Thames, II, of Lozier, Thames & Frazier, P.A., Pensacola, for appellee.
   WOLF, C.J.

Appellants, Scotty’s Hardware, Inc. and United Self Insured Services, Inc. (E/C), appeal from a final workers’ compensation order granting retroactive attendant care benefits to appellee, Benjamin Northcutt (claimant). Because the Judge of Compensation Claims (JCC) erred as a matter of law, we reverse.

Claimant was injured in a compensable accident in February 2000. He filed numerous requests for disability and medical benefits which were resolved either prior to or at mediation in January 2003. The parties agreed that the mediation resolved all pending issues except for attorneys’ fees and costs.

On May 7, 2003, for the first time claimant petitioned for retroactive payment for nonprofessional attendant care by his wife, for twelve hours per day from February 7, 2001, to the present. The E/C responded that attendant care was never requested by claimant or his treating physician and that claimant was barred from raising an attendant care claim when he had failed to raise it in prior proceedings. Despite finding that the attendant care claims were ripe at the time of the previous proceedings, the JCC declined to bar the attendant care claim based on this court’s opinion in Honeycutt v. R.G. Butlers Dairy, 525 So.2d 984 (Fla. 1st DCA 1988). Because Honeycutt is factually and legally distinguishable, we hold that the JCC erred in awarding retroactive attendant care benefits.

A workers’ compensation claimant is barred by the doctrine of res judicata from raising a claim that he was entitled to a benefit, where he could have but failed to litigate the issue of his right to that benefit in prior proceedings. See City Of Miami v. Arostegui, 864 So.2d 508 (Fla. 1st DCA 2004) (reversing award of permanent total disability supplemental benefits where claimant failed to litigate the issue of his right to those benefits in the prior proceeding, and thus, waived the claim); City of West Palm Beach v. Lewis, 779 So.2d 646 (Fla. 1st DCA 2001) (reversing award of temporary partial disability benefits because the claim was not raised at the prior hearing even though ripe for adjudication at that time); McLymont v. A Temporary Solution, 738 So.2d 447 (Fla. 1st DCA 1999) (affirming denial of claim for dental care where claim was ripe for hearing at time claimant dismissed other claims).

However, in Honeycutt, this court held that a claim for attendant care was not barred despite the fact that claimant had failed to raise that issue in two previous merits hearings. Id. at 985. In Honeycutt this court essentially excused the claimant’s failure because the employer reasonably should have known that the claimant required attendant care. Id. at 986. Here the JCC made no finding that the E/C should have known of claimant’s need for attendant care, nor is there competent substantial evidence that the E/C should have known of this need. As such it was improper under the facts of this case for the JCC to rely on Honeycutt. We, therefore, reverse the award of retroactive attendant care benefits.

KAHN and LEWIS, JJ., concur.

      . We also note that an attendant care award is subject to the requirements of the statute in effect at the time the care was provided. See Socolow v. Flanigans Enters., 877 So.2d 742 (Fla. 1st DCA 2004) (reh'g denied July 28, 2004); Walt Disney World Co. v. McCrea, 754 So.2d 196, 197 (Fla. 1st DCA 2000). Honeycutt involved the 1985 version of section 440.13(2)(b), which required employers to provide attendant care benefits, even if such benefits were not requested if the nature of the injury required it. Honeycutt, 525 So.2d at 986; see also § 440.13(2)(b), Fla. Stat. (1985). In contrast, the language of the 2000 version of the statute requires that attendant care benefits be awarded only if performed "at the direction and control of a physician when such care is medically necessary.” § 440.13(2)(b), Fla. Stat. (2000). Even if appellant had not waived the issue by failing to raise it in prior hearings, there was no competent substantial evidence that the attendant care was "performed only at the direction and control of a physician,” as required by statute.


author: HAWKES, J.

text:
    Jarvon NEELEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2074.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.

      Nancy A. Daniels, Public Defender and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General and Karen M. Holland, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

The trial court erred in admitting into evidence a hospital record that contained the following statement: “32 BM shot multiple times ?able .22 from arrested assailant @ range of ‘right up on me.’ C/o of pain in chest and face.” We reverse.

Identity an issue

The victim, driving with his girlfriend next to him and Appellant in the back seat, was intending to obtain change so that his girlfriend could purchase drugs from Appellant. Shots were fired, the victim suffered multiple wounds, including one to the head, and the vehicle crashed into another vehicle. These facts are undisputed.

The dispute exists as to who shot the victim. The victim, due to his injuries, has no recall of these events. Both the girlfriend and Appellant deny shooting the victim. Both had blood on their clothing. Testimony from crime scene technicians indicated the blood on Appellant’s clothing matched that of the victim. However, the blood found on the girlfriend’s shirt was never tested. They both initially fled the scene. Appellant admitted to lying about his identity when he was apprehended. Testing failed to reveal gunshot residue on either one. Neither saw the other shoot the victim. The treating physician testified it was possible, although not certain, that one of the shots was fired from behind the victim.

Harmless Error Analysis

Appellant’s first claim of error deals with the admission of the statement contained in the medical report. The treating physician testified that, though she did not prepare the medical report herself or record the statement, it was one made in the regular course of hospital business, and would have been made at the time of the victim’s arrival. The records and inevitably, the statement, were admitted into evidence over the defense’s objection that the statement: was covered by a motion in limine regarding hearsay testimony; was not taken by the physician who authenticated the record; and constituted hearsay on hearsay. After cross-examination, defense counsel renewed his objection, which was overruled.

Appellant contested the phrase: “from arrested assailant,” which was included in the medical record. The phrase is clearly hearsay. There are two grounds upon which the trial court may have based its admission of the contested phrase. The first is the business records exception. See § 90.803(6)(a), Fla. Stat. (2001). The second is the exception for statements relevant to medical diagnosis or treatment. See § 90.803(4), Fla. Stat. (2001). Neither is appropriate.

While the medical record itself could qualify under the business record exception, it is clear the contested phrase contained therein could not because the resident who took the statement had no personal knowledge of the facts, and the victim was under no business duty to transmit the statement. See Van Zant v. State, 372 So.2d 502, 503 (Fla. 1st DCA 1979) (holding “when a business record contains a hearsay statement, the admissibility of the record depends on whether the hearsay statement in the record would itself be admissible under some exception to the hearsay rule.”).

Neither does the contested phrase qualify under the medical treatment exception, because it was not relevant to medical diagnosis or treatment. See Torres-Arboledo v. State, 524 So.2d 403, 407 (Fla.1988) (noting victim’s statement that he was shot admissible because relevant to medical diagnosis or treatment; remainder of statement, that it occurred while black people tried to steal his medal, inadmissible because not relevant to medical diagnosis or treatment). While the portion of the statement that he was shot multiple times qualifies as relevant to medical diagnosis or treatment, the portion that reads “from arrested assailant” does not.

While conceding the phrase was admitted in error, the state first argues the issue was not preserved. We disagree. When a party makes a hearsay objection, a trial court must consider all possible hearsay violations, exceptions, and exclusions. See Richardson v. State, 875 So.2d 673, 676 (Fla. 1st DCA 2004) (general hearsay objection is sufficient to preserve for appellate review the failure of the proponent to lay a proper predicate).

The state next urges us to find the error was harmless. We decline. The case centered on the credibility of the girlfriend and Appellant, because the victim was unable to testify. Though the contested phrase did not mention Appellant by name, it referred to the “arrested assailant,” and Appellant was the only person arrested.

It is the state’s burden to prove the error did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986) (it is the state’s burden to prove beyond a reasonable doubt that the error did not contribute to the verdict). However, without the contested phrase, we are unable to conclude that the blood evidence, Appellant’s flight upon seeing the police, or his initial untruthfulness regarding his identity would be sufficient to convince a jury Appellant was guilty beyond and to the exclusion of every reasonable doubt. Even considering the treating physician’s testimony, regarding the location from where the shots might have been fired, would not allow us to reach such a conclusion.

Significantly, during closing arguments, the state recited the contested phrase verbatim, and argued that inferences from the contested phrase supported a conclusion that Appellant was guilty. For example, the state argued the jury could infer the victim knew his girlfriend’s name and would have used her name had she been the shooter, but, conversely, he did not know Appellant’s name, and thus, simply referred to him as the “arrested assailant.” Hearsay evidence indicating the accused is guilty of the crime is “far more egregious and harmful than the admission of material directed to an unrelated collateral wrong.” Keen v. State, 775 So.2d 263, 275 (Fla.2000).

Without this hearsay evidence, jurors might have had a reasonable doubt as to the shooter’s identity. Because the state failed to prove beyond a reasonable doubt that the statement did not contribute to the verdict, we cannot conclude its admission was harmless.

Because the hearsay issue is dispositive, it is unnecessary to address Appellant’s second claim regarding improper judicial comments.

REVERSED and REMANDED for a new trial.

WOLF, C.J., and BROWNING, J., concur.

      . See also Conley v. State, 620 So.2d 180, 183-84 (Fla.1993) (holding rape victim's statement that she was raped admissible, but statement that it occurred at gunpoint inadmissible because it was not necessary for medical treatment).


author: ALLEN, J.

text:
    STATE of Florida, Appellant, v. Richard SELWACH, Appellee.
    No. 1D03-1212.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.

      Charles J. Crist, Jr., Attorney General, and Karen Armstrong, Assistant Attorney General, Tallahassee, for Appellant.
    John D. Middleton, Melrose, for Appel-lee.
   ALLEN, J.

The appellant challenges an order by which the trial court granted the appellee’s Florida Rule of Criminal Procedure 3.190(c)(4) motions to dismiss an amended information charging him under section 812.019(1), Florida Statutes, with twenty-eight counts of dealing in stolen property. Because the appellant has presented no argument that counts twenty-six through twenty-eight of the amended information were improperly dismissed, we affirm the order as to those counts. But we otherwise reverse the order because the undisputed material facts, as set forth in the appellee’s sworn motions, establish a pri-ma facie case of dealing in stolen property.

Counts one through twenty-five of the amended information stem from a series of twenty-five separate transactions in which the appellee, a pawn broker, purchased items from the same individual, a maintenance man named Wiek, over the course of eleven weeks. Wiek, who had authority to buy equipment related to his employment, purchased items on his employer’s account at various home improvement stores, sold them soon afterward to the appellee, and kept the money he received. Almost all of the items sold to the appellee were power tools and other maintenance-related equipment being sold new, in the original boxes, with warranty information, operating manuals, and other paperwork associated with a new product, but with no receipt or other proof of sale. The appellee purchased most of the items for approximately twenty percent of their retail purchase prices.

The trial court granted the appellee’s motions to dismiss on three bases: (1) the purchase of new items in a box is not prohibited by the Florida Pawnbroking Act and therefore does not constitute dealing in stolen property; (2) nothing about the underlying transactions suggested that the appellee knew or should have known that the items being sold were stolen; and (3) the items purchased by the appellee did not constitute “stolen property.” All three bases for the trial court’s order must be rejected.

First, compliance with the Florida Pawnbroking Act does not relieve the ap-pellee of criminal liability under section 812.019(1). Nothing in either of these statutory provisions or in any other cited authority suggests otherwise.

Second, based on the undisputed facts as alleged in the appellee’s sworn motions to dismiss, we conclude that there is sufficient evidence in this case, construed in the light most favorable to the appellant, upon which a reasonable jury could find the appellee guilty of dealing in stolen property. See State v. Ortiz, 766 So.2d 1137 (Fla. 3d DCA 2000) (detailing the applicable standard to be applied by a trial court when reviewing a sworn motion pursuant to Florida Rule of Criminal Procedure 3.190(c)(4)).

And third, although it is doubtful that the items purchased by the appellee had to be stolen in order to'support the state’s charges in this case, see Capaldo v. State, 679 So.2d 717 (Fla.1996), there are sufficient facts involved here to support a finding that a theft occurred at least by the time Wiek sold the items for his own personal benefit and without authority from his employer. The case relied upon by the trial court, Hutcheson v. State, 409 So.2d 207 (Fla. 5th DCA 1982), is distinguishable from the present case because the defendant in that case, unlike the ap-pellee here, had authority from his employer to sell the subject property.

The order under review is affirmed as to the ruling on counts twenty-six through twenty-eight, it is reversed as to the ruling on counts one through twenty-five, and this case is remanded.

PADOVANO and LEWIS, JJ., concur.

      . The appellee filed numerous motions to dismiss throughout the course of this case, each adopting and incorporating by reference all allegations raised in all prior motions. Accordingly, although the order under review involves only the two most recent motions to dismiss, the allegations from his prior motions are properly considered.


text:
    David A. DAVIDSON, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D04-1833.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2004.

      David A. Davidson, pro se, appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

David Davidson petitioned the Circuit Court for Leon County for a writ of mandamus, challenging a disciplinary action taken against him by the Florida Department of Corrections. The circuit court concluded that it was not the proper forum and dismissed the petition without prejudice to Davidson’s right to file a complaint or petition in the sentencing court. On rehearing, the court adhered to its conclusion regarding the forum but transferred the petition, rather than dismissing without prejudice. Davidson appeals and we have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(A). We reverse.

This court squarely held in Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004) that the Circuit Court for Leon County has subject matter jurisdiction over claims of this nature and that Leon County is the proper venue. The circuit court, in the order here on appeal, expressed concern that the matter was still in doubt after Burgess in light of certain language in Schmidt v. Crusoe, 878 So.2d 361 (2003). In Burgess, however, this court explained that the Supreme Court’s holding in Schmidt was limited to the question of the applicability of section 57.085, Florida Statutes, in determining a complainant’s indigency in this type of case. The Supreme Court has denied rehearing in Schmidt and, despite the certification of a question of great importance by this court in Burgess, no further review was sought by either of the parties to that decision. Contrary to the circuit court’s disposition in this case, the matter is not in doubt, but is controlled by this court’s decision in Burgess. We therefore reverse the order on appeal and remand with directions to the circuit court to take jurisdiction over Davidson’s petition and proceed to a disposition on the merits.

REVERSED.

WOLF, C.J., ERVIN and LEWIS, JJ., concur.


author: COPE, J.

text:
    CHRISTOPHER ADVERTISING GROUP, INC., Appellant, v. R & B HOLDING COMPANY, INC., a Florida Corporation d/b/a Kendall Toyota, Appellee.
    No. 3D02-3166.
    District Court of Appeal of Florida, Third District.
    Sept. 9, 2004.
    Rehearing Denied Oct. 20, 2004.

      Norman Malinski, Aventura; Lauri Waldman Ross, Miami, for appellant.
    Ruden, McClosky, Smith, Schuster Russell and John H. Pelzer, Fort Lauderdale, and Peter L. Wechsler, Miami, and Jacqueline F. Howe, Fort Lauderdale, and Peter J. Frommer and John P. Moore, Jr., Miami, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   COPE, J.

This appeal presents the question of how to measure damages in a conversion case, where the property converted has great value to the owner, but little or no value to anyone else. We agree with the trial court that the evidence was legally insufficient to support the jury’s verdict, but conclude that there must be a new trial.

I.

Christopher Advertising Group, Inc. (“Christopher Advertising” or “the agency”) is an advertising agency which specializes in advertising for automobile dealerships. The agency was formed in New Jersey in the 1980s and later relocated to Florida.

In 1990, the agency was hired by Kendall Toyota, a large Toyota dealership located in Miami-Dade County. The agency soon was spending half its time on Kendall Toyota’s work for which it received a monthly retainer of $19,800.

In addition to more conventional forms of advertising, the agency created a late night television show, the “Kendall Toyota Show,” which eventually became the “Miami Tonight Show,” which was very successful. The host and star of the show was Mark Jacobson, the general manager of Kendall Toyota. Kendall Toyota built its own television studio which it used for filming the show and for production of television commercials.

In 1994, the agency and Kendall Toyota agreed that the agency would move into Kendall Toyota’s offices. The agency would continue to devote half its time to Kendall Toyota’s advertising and half to other clients. The agency’s owner, Paul Christopher, and the agency employees became employees of Kendall Toyota. There were no written agreements, so Paul Christopher and his employees had the status of employees at will.

In 1996, there was a business dispute between the parties. Mark Jacobson abruptly terminated the business relationship. He locked Paul Christopher and the agency employees out of the Kendall Toyota premises, which had a sophisticated security system. Viewing the facts in the light favorable to the jury verdict, Kendall Toyota refused to allow the agency to retrieve its computers, business equipment, and advertising materials that it used for its business.

Christopher testified that it took months for the agency to re-create its advertising materials so that it could resume business. Kendall Toyota continued to use plaintiffs computer for a year and a half. Kendall Toyota put the business records in storage. These consist of approximately fifty boxes of materials which were returned to Christopher in February of 1997.

The agency sued Kendall Toyota for conversion and civil theft. The case proceeded to trial during which the jury was shown the materials which had been withheld. Paul Christopher explained how the withheld advertising materials served as the database on which the agency did business. He testified that in his opinion the advertising materials were worth $1 million. No expert valuation was presented.

The jury returned a verdict of $1 million on the conversion claim and, when trebled, a verdict of $3 million on the civil theft claim. On post-trial motions, the court set the verdict aside.

During trial, the court had kept the defense motions for directed verdict under advisement. After trial, the court granted those motions in part. The court agreed with Kendall Toyota that the $1 million verdict was not sufficiently supported by the evidence. The court reduced the conversion award to $57,777.40 which represented the value of tangible personal property (the computers and office equipment) which Kendall Toyota had withheld, plus a $7,500 commission which the agency lost because of the lockout. The court also granted Kendall Toyota’s motion for directed verdict on the civil theft claim, finding that the civil theft notice was insufficient.

The agency has appealed.

II.

A.

The main issue in the present case is how to value property which has been the subject of conversion, where the property has great value to the owner but little or no value to anyone else.

As a general proposition, the owner of property which has been converted is entitled to fair value at the time and place of the conversion, with interest. See Restatement (Second) of Torts § 927 (1979). How to calculate fair value depends on the circumstances of the case. See id. §§ 911, 927.

“ ‘[V]alue’ includes market value and value to the owner. A person tor-tiously deprived of property is entitled to damages based upon its special value to him if that is greater than its market value.” Id. § 927 cmt. c.

In many cases, the value of property will be what the Restatement refers to as the “exchange value” which “is the amount of money for which the subject matter could be exchanged or procured if there is a market continually resorted to by traders, or if no market exists, the amount that could be obtained in the usual course of finding a purchaser or hirer of similar property or services.” Id. § 911(2).

For ordinary used goods, the measure of damages is the used value at the time of conversion, not the original cost or the replacement cost. See Lilly v. Bronson, 129 Fla. 675, 177 So. 218, 219 (1937) (measure of damages for used fishing boat and net was reasonable value at time of seizure).

The damage rules must be flexibly applied so as to provide fair compensation under the circumstances of the specific case. Writing in the context of valuing household articles, antiques, and heirlooms destroyed in a fire, the Florida Supreme Court said:

It is often impossible to place what is a current market value on such articles but the law does not contemplate that this be done with mathematical exactness. The law guarantees every person a remedy when he has been wronged. If the damage is to personal property as in this case, it may be impossible to show that all of it had a market value. In fact it may be very valuable so far as the owner is concerned but have no value so far as the public is concerned. It would be manifestly unfair to apply the test of market value in such cases.
When the wrong is shown it becomes the duty of court and jury to apply a test that will reasonably compensate the person wronged rather than one that makes it impossible to do so. The principle of res ipsa loquitur may be used to aid the result even though not technically applicable.

Florida Public Utilities Co. v. Wester, 150 Fla. 378, 7 So.2d 788, 790 (1942) (emphasis added).

B.

Special rules apply where the property converted has great value to the owner but little or no value to anyone else. The Restatement has addressed the issue as follows:

e. Peculiar value to the owner. The phrase “value to the owner” denotes the existence of factors apart from those entering into exchange value that cause the article to be more desirable to the owner than to others.
Some things may have no exchange value but may be valuable to the owner; other things may have a comparatively small exchange value but have a special and greater value to the owner. The absence or inadequacy of the exchange value may result from the fact that others could not or would not use the thing for any purpose, or would employ it only in a less useful manner. Thus a personal record or manuscript, an artificial eye or a dog trained to obey only one master, will have substantially no value to others than the owner....
Even when the subject matter has its chief value in its value for use by the injured person, if the thing is replaceable, the damages for its loss are limited to replacement value, less an amount for depreciation.

Restatement (Second) of Torts § 911 cmt. e (emphasis added); see also W.E. Shipley, Annotation, Measure of Damages for Conversion or Loss of, or Damage to, Personal Property Having No Market Value, § 5, 12 A.L.R.2d 902 (1950); Emerson v. Empire Fire & Marine Ins. Co., 393 So.2d 691 (La.1981); Veeco Instruments, Inc. v. Candido, 70 Misc.2d 333, 334 N.Y.S.2d 321 (Sup.Ct.1972).

Although our reasoning differs from that of the trial court we agree with the court’s decision to set aside the $1 million verdict. In this case the correct measure of damages would be the cost of re-creating the database. The $1 million figure testified to by Mr. Christopher did not represent the cost of re-creating the database, but instead represented his attempt to place a value on the database as an income-producing asset.

Kendall Toyota acknowledges that the cost of re-creating the database is a correct measure of damages. Kendall Toyota argues, however, that the agency failed to bring out such evidence at trial, and therefore should not have a new trial. We reject that argument. At trial the agency attempted to ask witnesses about the cost of re-creating the database. This was excluded by the court because of an order in limine, obtained by Kendall Toyota, precluding evidence of consequential damages. The court interpreted the order to exclude evidence of the cost of re-creating the database, and precluded any such testimony. The point is sufficiently preserved and the agency is entitled to a new trial.

Kendall Toyota argues alternatively that since it eventually returned the database and equipment to the agency, it follows that the agency cannot recover anything for the cost of re-creating database. Kendall says that to do so would amount to a double recovery. According to Kendall Toyota, the agency is entitled at most to damages for loss of use of the database but not to damages for re-creating it. See Restatement (Second) of Torts § 927 cmt. o; see also id. § 922 & cmt. h.

That argument is unavailable to Kendall Toyota under the circumstances of this case. The database and equipment were withheld for so long that the agency had to re-create the database in order to continue to do business. That is a compensable cost. See id. § 927(1), (2).

C.

When cost of replacement is the appropriate measure of damages, there should be a deduction for depreciation if applicable under the circumstances of the case.

As quoted above, the Restatement indicates that “[e]ven when the subject matter has its chief value in its value for use by the injured person, if the thing is replaceable, the damages for its loss are limited to replacement value, less an amount for depreciation.” Restatement (Second) of Torts § 911 cmt. e (citing id. § 928).

In the present case the property being re-created is an advertising database, which is intellectual property. It does not appear that a depreciation analysis would be applicable here, but if it is, the parties may address that issue on remand.

III.

The agency argues that the trial court erred by excluding evidence of consequential damages. The agency sought to show that upon being locked out and deprived of its database, it was temporarily out of business and lost profits until it was able to reconstruct the database. The trial court granted Kendall Toyota’s motion in limine on this issue, and excluded proof of consequential damages, including lost profits. The agency had retained an expert who had performed a lost profits calculation, but as a result of the court’s ruling, the expert was unable to testify.

Under the Restatement, in addition to the value of the item converted, damages also may include “the amount of any further pecuniary loss of which the deprivation has been a legal cause ... and ... compensation for the loss of use not otherwise compensated.” Restatement (Second) of Torts § 927(2)(b), (d). In a proper case lost profits may be recovered. Id. § 927 cmt. m. The plaintiff must demonstrate with sufficient certainty the extent of the loss and that the conversion was the legal cause thereof. See id. § 927 cmt. m (citing id. §§ 912, 917).

Pertinent here, “[a]nother type of case is that in which the plaintiff is unable promptly to find a replacement for the chattel on the market and is deprived of use during the period of delay. The loss of that use is not made good by a subsequent purchase and it is therefore compen-sable.” Id. § 927 cmt. o.

Assume a hypothetical case in which the defendant wrongfully converts custom-made manufacturing equipment from plaintiffs manufacturing plant. The result is that the manufacturing plant must close down for a month until a new piece of manufacturing equipment can be made and installed. In that situation, compensating the plaintiff for the value of the converted custom-made equipment covers only a part of the loss. Under the Restatement rule, lost profits would be recoverable provided they are proven with sufficient certainty.

In the present case, the database was the basis on which the advertising agency did its business. After the lockout, the advertising agency could not do business until such time as it had re-created the database. The agency should have been allowed to offer evidence of its lost profits.

Kendall Toyota argues that In re Corbin’s Estate, 391 So.2d 731 (Fla. 3d DCA 1980), precludes lost profits and other special damages in conversion cases. While that was the ruling under the circumstance of that particular case, Corbin’s Estate does not announce such a categorical rule.

In Corbin’s Estate, the decedent had operated a business. His wife was the personal representative. The personal representative wrongfully kept the business for herself instead of treating it as a probate asset. She operated the business for a period of time, sold it to a third party, and reacquired it when the buyer defaulted. She then sold the business again.

The decedent’s daughter obtained a surcharge judgment against the personal representative for conversion. On appeal, the daughter maintained that the estate was entitled to receive not only the fair value of the business, but also the profits, depreciation benefits, and compensation the personal representative had received prior to the time that she sold the business.

On those facts, this court said:

The proper measure of damages for conversion in Florida is the ... reasonable market value, measured as of the time and place of conversion.
Although argument might well be made that lost profits and other special damages should be awarded in conversion cases, see Dobbs, Remedies, 408-11 (1973), we perceive such special damages to be reflected in an appropriate award of interest upon the general damage verdict.

Id. at 733 (emphasis added).

Under the circumstances of that case, the stated rule provided fair compensation and eliminated double recovery. The business was valued as a profit-making entity. The court concluded that the estate would be fully compensated by receiving the fair value of the business as of the date of the conversion, plus interest. Under the facts presented, Corbin’s Estate results in proper compensation.

Unlike Corbin’s Estate, the present case involves an additional loss not otherwise compensated: the conversion of the agency’s database, which forced the agency temporarily out of business until such time as the database could be re-created. Cor-bin’s Estate did not involve any such issue.

Kendall Toyota reads Gillette v. Stapleton, 336 So.2d 1226 (Fla. 2d DCA 1976) to say that consequential damages are not recoverable in a conversion case, but that is not so. In Gillette, the defendant agreed to repair the plaintiffs damaged automobile. He did not repair it and refused to return it to the plaintiff when demanded a year later. The car had been left in the open and exposure to the elements reduced its value to between fifty dollars and one hundred dollars. The jury was instructed that if the defendant had converted the vehicle, then the plaintiff would be entitled to the “reasonable value of a comparable replacement unit.” Id. at 1227. There was also testimony that the average rental cost for a similar automobile was fourteen dollars per day. The court concluded that the $8,808 verdict was based largely on rental cost.

Reversing for a new trial, the Second District explained that damages for conversion are based on the “reasonable value of the property when converted and are not to be based on the replacement value.” Id. at 1227. The relevant date for valuation would be the date the plaintiff demanded return of car, not the date that the car was initially delivered to the repair shop. The Gillette case does not discuss any issue regarding consequential damages, nor did the case involve any claim that the property converted was equipment used by plaintiff for his livelihood.

Kendall Toyota also relies on Florida Farm Bureau, Casualty Insurance Co. v. Patterson, 611 So.2d 558 (Fla. 1st DCA 1992). In that case the plaintiff was in an auto accident and his car was a total loss. Prior to reaching a settlement with his insurance company, the insurer without his permission took the car and sold it for scrap. The insurer eventually paid the plaintiff the fair market value of the car less a $250 deductible.

The plaintiff brought a conversion action against the insurer in which the insurer conceded that the plaintiff was entitled to the salvage value of the auto and the return of his insurance deductible. Id. at 559. The First District ruled that the plaintiff “is not entitled to recover in a conversion action for the loss of use of his auto or the loss of use of the money that he continued to pay on his auto loan.” Id. at 560. The ruling is correct, for the car was a total loss as a result of the accident and the plaintiff had been made whole through payment of the salvage value. The case did not involve conversion of equipment with which the plaintiff earned his livelihood.

We conclude that the Restatement fairly states Florida law. On remand Christopher Advertising will be allowed to assert a claim for lost profits, but with the proviso that they must be shown with certainty and causation must be demonstrated.

IV.

After trial the court granted Kendall Toyota a directed verdict on the civil theft claim. The court ruled that the agency had filed its civil theft claim prematurely, in violation of the applicable statute. We reverse on this point, as the passage of time cured the problem, and Kendall Toyota did not suffer any harm from the premature filing.

Under the civil theft statute, “Before filing an action for damages under this section, the person claiming injury must make a written demand for ... the treble damage amount....” § 772.11, Fla. Stat. (1995). If the recipient of the demand complies with it within thirty days after receiving the demand, then the recipient is released from further civil liability. Id.

In this case, counsel for the agency sent a written demand letter to Kendall Toyota on December 13, 1996. The letter demanded payment of a treble damage sum of $3,069,000 under section 772.11, Florida Statutes. The letter was sent certified mail, return receipt requested.

Under the statute, the agency should have waited thirty days from the date the letter was delivered to Kendall Toyota before filing suit. Instead, the agency filed its lawsuit the same day — December 13, 1996. The agency attached the demand letter as an exhibit to its complaint. Kendall Toyota moved to dismiss, arguing that the civil theft count had been filed prematurely. By the time of the hearing (heard by a predecessor judge), the thirty-day waiting period had expired. The predecessor judge denied the motion to dismiss, presumably on the theory that the prematurity had been cured by the passage of time. Kendall Toyota subsequently included the issue as one of its affirmative defenses, and raised the issue by motion for directed verdict at trial which, as already stated, the successor judge eventually granted.

We find ourselves in agreement with the predecessor judge on this issue. The agency jumped the gun by filing the civil theft count without waiting the required thirty-day period. However, the waiting period was to allow Kendall Toyota a thirty-day interval in which to comply with the agency’s demand for $8,069,000. Kendall Toyota never paid the treble damage amount and had no intention of doing so. There has been no showing that Kendall Toyota was prejudiced by the premature filing. Had the predecessor judge granted the motion to dismiss, the agency would have been entitled to re-plead immediately because the thirty days had expired. Dismissal in this situation appears to be needless wheel-spinning. We conclude that the directed verdict should not have been granted.

The cases relied on by Kendall Toyota are factually different from the present one. In one of the cases, the record was clear that the plaintiff never sent any written demand at all. See Korman v. Iglesias, 736 F.Supp. 261, 267 (S.D.Fla.1990). In the other cases, the pleadings or summary judgment record failed to establish one way or the other whether the required written demand had ever been sent. See Nerbonne, N.V. v. Lake Bryan Int’l Properties, 689 So.2d 322, 326 (Fla. 5th DCA 1997) (counterclaim); Seymour v. Adams, 638 So.2d 1044, 1048 (Fla. 5th DCA 1994) (summary judgment).

The trial court also granted the motion for directed verdict on the ground that the proof of damages was insufficient, for the same reasons that the court granted the directed verdict related to the conversion count. Consistent with our disposition of the conversion count, we reverse the directed verdict and remand for a new trial on damages for civil theft as well.

Kendall Toyota also argues that the proof of the substantive elements of civil theft was legally insufficient. The trial court did not grant a directed verdict on that ground and we agree with the trial court that a jury question was presented.

V.

For the stated reasons, we reverse the final judgment and remand for a new trial on damages for conversion and civil theft.

Reversed and remanded for further proceedings consistent herewith.

      . The corporate entity is R & B Holding Company, Inc. which does business as Kendall Toyota.

      . The agency also sued for $58,103.38 on open account for unpaid bills. The jury award of that amount is not an issue on this appeal.

      . The agency had prepared advertising for the Maxon Group which was ready to be transmitted but was never sent because the agency was locked out of the premises.

      . The trial court took the view, with which we also agree, that while Mr. Christopher was qualified to express an opinion on value (since he was the owner of the business), the opinion nonetheless had to be based on some objective measurable standard. In this case Mr. Christopher's $1 million figure was entirely speculative and subjective. See Trailer Ranch, Inc. v. Levine, 523 So.2d 629, 632 (Fla. 4th DCA 1988); Salvage & Surplus, Inc. v. Weintraub, 131 So.2d 515, 516 (Fla. 3d DCA 1961).

      . The daughter also recovered for breach of fiduciary duty. This court ruled that there could be a recovery for conversion, or breach of fiduciary duty, but not both, in the circumstances of that case. Id. at 732.

      . The date of the conversion would be the date at which the personal representative began operating the business for her own benefit, not the later sale date. The claim for profits and depreciation taken by the personal representative necessarily would be items taken by the personal representative after the date of the conversion. The same logic would apply to compensation taken by the personal representative after the date of the conversion.

      . In view of this ruling we need not reach the agency's alternative argument regarding amendment of the pleadings.

      . The court had reserved ruling on this motion for directed verdict during trial.


author: SHAHOOD, J.

text:
    Lorenzo DUNNAWAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-108.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2004.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Appellant, Lorenzo Dunnaway, was originally charged with second degree murder and was found guilty as charged. The court thereafter granted appellant’s motion for new trial, which was affirmed on appeal. See State v. Dunnaway, 778 So.2d 378 (Fla. 4th DCA 2001). Thereafter, the state filed an amended information, charging appellant again with second degree murder. Appellant’s defense to the charge was that he acted in self defense.

A jury trial was held and appellant was found guilty of the lesser included offense of aggravated battery. He now appeals the second conviction and sentence, raising two issues on appeal. As his first issue, appellant argues that fundamental error occurred when the trial court instructed the jury upon the justifiable use of both deadly and non-deadly force in such a manner so as to negate his defense. We agree with appellant’s position, and reverse and remand for a new trial.

In this case, the trial court, without objection from appellant, gave the following instruction to the jury with regard to justifiable use of deadly force:

An issue in this case is whether the Defendant acted in self-defense. It is a defense to the offense which Lorenzo Dunnaway is charged if [the death of] Elizabeth Miller, also known as Elizabeth Ferguson resulted from the justifiable use of force likely to cause death or great bodily harm.
The use of force likely to cause death or great bodily harm is justifiable only if the Defendant reasonably believed that the force is necessary to prevent imminent death or great bodily harm to himself while resisting another’s attempt to murder him or any attempt to commit aggravated battery upon him.
A person is justified in using force likely to cause death or great bodily harm if he or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself, herself or another, the imminent commission of aggravated battery against himself, or another.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find that Lorenzo Dunnaway was attempting to commit, was committing or escaping after the commission of aggravated battery or Lorenzo Dunnaway initially provoked the use of force against himself unless one of two things is the case:
A: The force asserted towards the Defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger other than using force likely to cause death or great bodily harm to Ms. Miller also known as Ms. Ferguson.
... and in good faith the Defendant withdrew from physical contact with [the victim], and indicated clearly to [the victim] that he wanted to withdraw and stop the use of force likely to cause death or great bodily harm, but [the victim] continued or resumed the use of force.

The court also gave a similar instruction on the charge of justifiable use of force not likely to cause death or great bodily harm, as follows:

The use of force likely to cause death or great bodily harm is not justifiable if you find:
First, that Lorenzo Dunnaway was attempting to commit, committing or escaping after the commission of aggravated battery.

Appellant argues that the instructions were misleading and confusing, negated his defense of self-defense, and warrant reversal even though he did not object. We agree.

In Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002), this court held that the same language used by the trial court in this case was misleading and confusing in an aggravated battery trial where the defendant’s defense was self defense. The language at issue is based on section 776.041(1), Florida Statutes, which states that use of force by an aggressor is not justified if the person is “attempting to commit, committing, or escaping after the commission of, a forcible felony.” Id. at 1265. In Giles, we held that this section is applicable only in situations in which the person claiming self defense is, at that time, committing another forcible felony. Id. Typically, as this court explained, the instruction is given “in situations where the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.” Id. The Giles court held:

[T]the proper test for determining the applicability of the instruction is not whether the self-defense act itself could qualify as a forcible felony, but whether, at the time of the self-defense, the accused was engaged in a separate forcible felonious act.... Here, Giles was not engaged in a separate felonious act at the time of the alleged aggravated battery and so the instruction was inapplicable. At the very least, the instruction given was circular and confusing to the jury such that it basically negated Giles’ defense.... Although the state asserts that Giles was not entitled to a self-defense instruction based on the facts, the appropriateness of the self-defense instruction is not an issue on appeal. In any event, as there was evidence supporting Giles’ theory of defense, he is entitled to have the jury instructed on the law applicable to that theory of defense.

Id. at 1266 (citations omitted).

Thereafter, in Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003), this court held that the error discussed in Giles was fundamental error, explaining:

Although appellant did not object to this instruction, we hold that it is fundamental error. “An incorrect jury instruction on the defense of justifiable use of deadly and non-deadly force constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction.” Thomas v. State, 831 So.2d 253, 253 (Fla. 3d DCA 2002) (citations omitted). We determined in Giles that this instruction was misleading, and it was reasonably possible that it contributed to Giles’ conviction under circumstances similar to this case. 831 So.2d at 1266. In addition, we have held that fundamental error results where an inaccurate and misleading instruction negates a defendant’s only defense. See Davis v. State, 804 So.2d 400, 404 (Fla. 4th DCA 2001).

Id. at 1210-11.

Accordingly, based on Giles and Rich, we reverse and remand for a new trial holding that the instructions given in this case were misleading, confusing, and negated appellant’s defense of self defense. In that we are reversing for a new trial on appellant’s first issue raised, we decline to discuss appellant’s second issue.

REVERSED AND REMANDED.

WARNER, J., and GATES, MICHAEL L., Associate Judge, concur.


author: GROSS, J.

text:
    Marcine HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2081.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2004.

      Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Marcine Howard appeals an order revoking his probation. We reverse and remand to the circuit court to conduct further proceedings directed at locating an amended affidavit of violation of probation referred to in testimony but not included in the record on appeal.

After a hearing, the trial court found that Howard had violated his probation by committing a robbery by sudden snatch on July 10, 2002. The only affidavit of violation of probation that appears in the record references an aggravated battery and armed robbery that occurred on August 13, 2002.

It is a due process violation and fundamental error to revoke probation for violations not alleged in the affidavit of violation of probation. See Baker v. State, 760 So.2d 1115, 1116 (Fla. 4th DCA 2000) (holding that trial court erred in revoking community control where “affidavit and warrant appearing in the record do not charge the substantive violation” for which defendant’s probation was revoked); Nagel v. State, 758 So.2d 1206, 1208 (Fla. 4th DCA 2000). A violation of probation proceeding is “set in motion” when an arrest warrant issues based upon an affidavit alleging a violation of probation. State v. Boyd, 717 So.2d 524, 526 (Fla.1998). The filing of the affidavit and issuance of the warrant toll the probationary period “until the court enters a ruling on the violation.” § 948.06(1), Fla. Stat. (2002). A violation of probation warrant issues “at the time it is signed by the magistrate.” § 901.02(1), Fla. Stat. (2002).

The transcript of the April 25, 2003 hearing reveals a possibility that an amended affidavit of violation of probation was filed before the hearing. On cross-examination by Howard’s attorney, the probation officer referred to the robbery by sudden snatching as the “amended charge.” A later question by the defense attorney mentioned an “amended warrant.” The defense did not express surprise at or otherwise object to the use of the July 10 incident, and not the August 13 robbery, as the basis for the revocation. As we did in Baker, where there was “the possible existence of an amended affidavit charging the substantive violation,” we remand to the trial court with instructions to conduct further proceedings to determine the existence of the amended affidavit. 760 So.2d at 1117.

WARNER and SHAHOOD, JJ., concur.

      . State v. Boyd, 717 So.2d 524 (Fla.1998), effectively overruled this court's statement in McGrawv. State, 700 So.2d 183 (Fla. 4th DCA 1997), that a violation of probation proceeding commences with "either the filing of the affidavit of violation of probation with the clerk or the trial court's issuance of the arrest warrant.” Id. at 184.