author: FULMER, Judge.

text:
    Nestor GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-529.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      Nicholas M. Matassini .of the Matassini Law Firm, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Nestor Garcia pleaded no contest to the charges of possession of cocaine, delivery of cocaine, trafficking in cocaine, and possession of cannabis, reserving the right to appeal the denial of his motion to suppress evidence. The motion to suppress was based on a challenge to the search warrant that authorized search of Garcia’s residence for cocaine. Because we agree with Garcia that the affidavit on which the search warrant was based lacked sufficient probable cause to indicate that cocaine was located within the home, we reverse with directions to grant the motion to suppress.

In relevant part, the affidavit states:

5. During the week of 7/15/01 your affi-ant met with a confidential informant (Cl) who told police about a white male by the name of Nestor Garcia, who was distributing powder cocaine in the Tampa Bay' Area. The Cl has known the suspect for approximately eight months and has purchased cocaine from the suspect for four months. The Cl typically purchases one ounce of cocaine per week and paid $800-$825 per ounce. The Cl has been told that the suspect has a safe inside of the home and possibly has co-conspirators who maintain a “stash house.”
6. During the week of 8/5/01 your affi-ant met with a confidential informant and established a controlled meeting. The Cl met. with the suspect, Nestor Garcia, and discussed future narcotics transactions. During the meeting, the suspect gave the Cl one ounce of cocaine on consignment. Your affiant and Detective Ford identified the suspect vehicle as a 2000 Chevrolet pickup truck and located it at the suspect residence.
7. Following the meeting your affiant met with the Cl and conducted debriefing. The Cl gave your affiant one ounce of powder cocaine. The cocaine was later- narco tested positive and is now housed in the Tampa Police property section. The Cl told your affiant that the suspect has never “fronted” cocaine in the past and this situation was unexpected. The suspect agreed to sell as much cocaine as the Cl could afford and they agreed to meet for a second purchase and to make repayment within the next few days.
8. During the week of 8/5/01 your affi-ant established a controlled buy operation. Your affiant met with a CI and gave the CI instructions to repay the suspect, Nestor Garcia, $750.00 for the one ounce delivered on consignment and purchase a second ounce for an additional $750.00. The CI was provided with funds from the Tampa Police Narcotics Fund. The CI was searched before and after the operation for additional currency and/or illegal contraband with negative effects. Constant and continuous surveillance was maintained during the entire purchase. Before the operation began police established a fixed surveillance at 4328 Honey Vista Circle [Garcia’s residence]. The CI contacted the suspect by telephone and the two agreed to meet at the Kash and Karry Parking Lot at North Dale Mabry and West Northdale. The call was consensually monitored and recorded by your affiant. Police observed the suspect leave from 4328 Honey Vista Circle and then police observed him arriving to the meeting with the CI. The CI and suspect met for approximately three minutes and then both parties went in separate directions. The meeting was monitored by police and recorded. Police then detained and arrested the suspect in the parking lot of the Kash and Karry before he drove back to 4328 Honey Vista Circle. During the purchase police recorded a conversation where the suspect made the transaction and negotiated the sale of three ounces of cocaine per week to the CI.
9. Following the purchase your affiant met with the CI and took possession of one ounce of cocaine. The cocaine was later narco tested and placed into Tampa Police property room. Your affiant debriefed the CI. The CI told your affi-ant that the suspect had the one ounce on his person and charged $1450.00 for the one ounce delivered and the ounce previously delivered on consignment. The suspect told the CI that he would deliver three ounces to the CI on every Monday and collect the profits on the following Friday.
10. Following the arrest of the suspect, police located misdemeanor amounts of marijuana in his vehicle. Sergeant Mor-man conducted a post Miranda interview. The defendant told police that he had marijuana and firearms inside of his home.
11. The affiant believes that the information provided by the confidential informant during the conduct of this investigation is true, accurate, and reliable based on the following:
(a) There has been no occasion known to your affiant when the informant has been untruthful or deceptive in regards to information provided to law enforcement.
(b) In the past, the informant has provided information that has led to the identification, arrest, and conviction of drug traffickers.
12. Based on the forgoing totality of the circumstances, the affiants have reason to believe and [do] believe that there are currently quantities of the controlled substance, Cocaine ... being kept, stored and/or maintained at or within the premises[ ] described in this Affidavit. ...

A hearing was held on Garcia’s motion to suppress at which the following additional relevant facts were shown. First, the affidavit fails to mention that the CI was working for the affiant, Detective Massucci, “in lieu of charges” and that the detective had only used the CI on one previous occasion. When the detective was asked “Don’t you think that an informant that is working off charges or in lieu of charges is someone that is apt to be less reliable than someone who’s doing this because they’re a good citizen?” the detective responded, “I’ve never had a good citizen work as an informant.” Also omitted from the affidavit is the fact that when the Cl first told the detective about Garcia, during the week of July 15, 2001, it had been two months since the Cl had purchased any cocaine from Garcia. More important, the Cl had never beén inside Garcia’s residence and had never seen any narcotics there.

Facts alleged in the affidavit pertaining to the two purchases were also controverted during the hearing. The meeting referenced in paragraph 6 between the Cl and Garcia during the week of August 5, 2001, was not, in fact, a controlled meeting, as stated in the affidavit. And, no officer witnessed the meeting or witnessed Garcia at the meeting. In paragraph 8, the affidavit states that the Cl contacted the suspect by telephone; in fact, the Cl contacted Garcia by paging him. Pertaining to the transaction at the Kash and Karry parking lot, “constant and continuous” visual surveillance was not maintained on Garcia from the time he left his house. According to one of the officers, Garcia was inside the grocery store out of the officers’ sight at some point before he met with the CL

In reviewing the trial court’s denial of the motion to suppress, we are bound by the trial court’s factual findings if they are supported by competent, substantial evidence; however, the determination of the legal issue of probable cause is subject to de novo review. Pagan v. State, 830 So.2d 792, 806 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003). “In determining whether probable cause exists to justify a search, the trial court must make a judgment, based on the totality of the circumstances, as to whether from the information contained in the warrant there is a reasonable probability that contraband will be found at a particular place and time.” Id. at 806 (citing Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). The duty of the reviewing court is to ensure that the magistrate had a substantial basis for concluding that probable cause existed, and this determination must be made by examining the four corners of the affidavit. Id. In Pagan, the court discussed an affidavit based on hearsay from a CI:

The affidavit must state that the affiant has personal knowledge of the confidential informant’s veracity or the affidavit must contain sufficient independent corroborating evidence. As this Court said in State v. Peterson, 739 So.2d 561 (Fla.1999):
Hearsay information provided by a confidential informant can be sufficient to support a search warrant, see State v. Wolff, 310 So.2d 729, 733 (Fla.1975), provided the affidavit satisfies the Gates test. See State v. Butler, 655 So.2d 1123, 1126-30 (Fla.1995). “Veracity” and “basis of knowledge” are among the factors to be considered in assessing the reliability of an informant’s information. See Vasquez v. State, 491 So.2d 297, 299 (Fla. 3d DCA 1986).
739 So.2d at 564.

830 So.2d at 806-07.

The court in Pagan also discussed the procedure to be followed when an affidavit omits relevant facts or contains false statements:

When properly challenged, the affidavit must also be examined for omissions made with intent to deceive or with reckless disregard of whether such information should have been revealed to the magistrate. See Johnson v. State, 660 So.2d 648 (Fla.1995). The reviewing court must determine whether the omitted facts, if added to the affidavit, would have defeated probable cause and whether the omission resulted from intentional or reckless police conduct that amounts to deception. See State v. Van Pieterson, 550 So.2d 1162 (Fla. 1st DCA 1989). The inclusion of statements by-innocent mistake is insufficient to defeat the authenticity of an affidavit. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Even where a court finds the police acted deceptively, it must excise the erroneous material and determine whether the remaining allegations in the affidavit support probable cause. If the remaining statements are sufficient to establish probable cause, the false statement will not invalidate the resulting search warrant. See Terry v. State, 668 So.2d 954 (Fla.1996). If, however, the false statement is necessary to establish probable cause, the search warrant must be voided, and the evidence seized as a result of the search must be excluded. See id. (citing Franks, 438 U.S. at 156, 98 S.Ct. 2674, 57 L.Ed.2d 667); see also Thorp v. State, 777 So.2d 385 (Fla.2000).

830 So.2d at 807.

The affidavit in this case fails to establish a nexus between the object of the search, cocaine, and Garcia’s residence. Even if we overlook the omissions and errors within the affidavit, the determination that cocaine was located within the residence was necessarily based on speculation, rather than a fair probability. See Burnett v. State, 848 So.2d 1170, 1173-74 (Fla. 2d DCA 2003) (concluding that warrant application failed because the affidavit failed to set forth crime-specific facts establishing likelihood that evidence of defendant’s possession of child pornography would be found at the places to be searched). We conclude that the factual deficiencies in the affidavit render the warrant invalid for lack of probable cause.

The State argues that the search can be upheld on the good faith exception to the exclusionary rule recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We disagree. Where, as here, the supporting affidavit fails to establish probable cause to justify a search, Florida courts refuse to apply the good faith exception. Getreu v. State, 578 So.2d 412 (Fla. 2d DCA 1991); Bonilla v. State, 579 So.2d 802 (Fla. 5th DCA 1991).

Our reversal will not affect the convictions for all charges. However, Garcia’s written plea agreement specifies that if he is successful on appeal, he will be resen-tenced on counts three and four. Accordingly, we reverse and remand for the trial court to grant the motion to suppress and to conduct further proceedings consistent with this opinion and Garcia’s plea agreement.

Reversed and remanded with directions.

CASANUEVA, and SALCINES, JJ., Concur.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Todd A. VAN LOAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1854.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Todd A. Van Loan appeals the denial, after an evidentiary hearing, of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although Van Loan raised several grounds in support of his motion, only one ground merits discussion. Van Loan argues that his defense counsel rendered ineffective assistance by failing to make an appropriate objection to the trial court’s submission of written instructions to the jury for only a portion of the charges. We agree and, accordingly, reverse and remand for a new trial.

During the jury deliberations at Van Loan’s trial, the jury asked to see a closing argument exhibit prepared by the State that set forth the legal elements of proof for the pending charges. Instead of sending the exhibit back to the jury room, the trial court proposed that the jury be given a written copy of the jury instructions, including instructions on aggravated battery and battery. In response, defense counsel requested that “every bit of it go back,” including instructions on excusable and justifiable homicide. Defense counsel then stated, “I’m going to object to anything else being given to them at this point.” Ultimately, the' trial court gave the jury an incomplete set of written instructions. Van Loan was convicted of attempted second-degree murder.

On his direct appeal, Van Loan challenged his conviction based on the procedure the trial court used to reinstruct the jury on the elements of the crime charged and of the lesser-included offenses. Van Loan v. State, 779 So.2d 497 (Fla. 2d DCA 2000). In Van Loan, this court observed, “From our review of the record, it appears that defense cpunsel’s goal was to insure that the lesser-included crimes as well as the definitions of excusable and justifiable homicide were again placed before the jury.” Id. at 499. After finding that defense counsel did not cite to a rule or request that all of the instructions be given to the jury, this court concluded that defense counsel’s objection was not based upon Florida Rule of Criminal Procedure 3.400(a)(3) and thus was not sufficiently precise to preserve the matter for appellate review. Id. The court affirmed Van Loan’s conviction, Id.

In his motion for postconviction relief, Van Loan argued that his trial counsel’s performance was deficient because she failed to make a proper objection and preserve for review the issue of incomplete jury instructions. At the evidentiary hearing, defense counsel explained that she wanted the jury to get either a full set of instructions or none at all. However, defense counsel conceded that her objection as stated did not clearly reflect her intentions.

After an evidentiary hearing, the court found defense counsel’s performance deficient because she failed to present a clear and concise objection to the incomplete set of written jury instructions. However, after comparing the entire set of jury instructions to the partial set of instructions provided to the jury, the court concluded that there was no reasonable probability that the jury would have rendered a not guilty verdict or a verdict for a lesser-included offense if the omitted jury instructions had been provided. Because the court determined that Van Loan had not proven that counsel’s deficient performance was prejudicial, the court denied Van Loan’s claim of ineffective assistance.

To succeed on a claim for ineffective assistance of counsel, a defendant must satisfy the two-prong test described in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must identify particular acts or omissions of the lawyer that were outside the broad range of reasonably competent performance under prevailing professional standards. Second, the defendant must show that the lawyer’s deficient performance prejudiced the defense, so affecting the fairness and reliability of the proceedings that confidence in the outcome is undermined. Maxwell v. Wainwright, 490 So.2d 927, 932 (Fla.1986). The issues of deficient performance and prejudice each present mixed questions of law and fact. See Stephens v. State, 748 So.2d 1028, 1033 (Fla.1999). Therefore, we must defer to the trial court’s factual findings when they are supported by competent, substantial evidence but independently review the trial court’s legal conclusions. See id. at 1034.

Based upon defense counsel’s concession that her objection did not clearly reflect that she wanted either a full set of instructions sent back to the jury or none at all, we conclude that the trial court properly determined that defense counsel’s performance was deficient. Nevertheless, the trial court incorrectly determined that counsel’s deficient performance was not prejudicial. Prior cases interpreting rule 3.400 have required trial courts to comply strictly with the requirement of subsection (a)(3) that if any instructions are sent back to the jury room during deliberations then all instructions must be sent. See, e.g, Wilson v. State, 746 So.2d 1209, 1210 (Fla. 5th DCA 1999) (stating that “anything less than literal compliance with rule 3.400 requires reversal”). In the present case, if defense counsel had properly objected to the incomplete jury instructions, the issue would have been preserved for appellate review and a reversal would have resulted. See Van Loan, 779 So.2d at 499; Pettit v. State, 612 So.2d 1381, 1383 (Fla. 2d DCA 1992). Defense counsel’s failure to preserve for appeal an error that would have resulted in reversal constituted ineffective assistance of counsel. Because Van Loan’s counsel provided ineffective assistance, Van Loan is entitled to relief in the form of a new trial.

Reversed and remanded for a new trial.

SALCINES and COVINGTON, JJ., Concur.


author: CASANUEVA, Judge.

text:
    AMERICAN INTERNATIONAL GROUP, INC., and AI Credit Corp., Appellants, v. CORNERSTONE BUSINESSES, INC., Cornerstone Team, Inc., Cornerstone of North Florida, Inc., Cornerstone Leasing, Inc., Stahl & Associates Insurance, Inc., and Patrick H. Mazza, Appellees.
    No. 2D03-3532.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.

      Robert E. Biasotti, John R. Blue, and Rachel A. Ramsey of Carlton Fields, P.A., St. Petersburg, for Appellants.
    John W. Frost, II, and Peter W. Van den Boom of Frost Tamayo Sessums & Aranda, P.A., Bartow, for Cornerstone Businesses, Inc., Cornerstone Team, Inc., Cornerstone of North Florida, Inc., and Cornerstone Leasing, Inc., Appellees.
    No appearance for Appellees Stahl & Associates Insurance, Inc., and Patrick H. Mazza.
   CASANUEVA, Judge.

This is an appeal from a nonfinal order that determined entitlement to arbitration. Appellants are affiliated with corporations that are currently in dispute with certain Appellees. Appellants contend that the circuit court erred in finding that they have waived the right to arbitration. We agree and reverse.

Background Facts

The genesis of this case is two contracts: the first involved cancelled insurance coverage sought by Appellees, the Cornerstone entities (Cornerstone); the second, a failed arrangement for financing the premium payment required to acquire the insurance coverage. Appellant American International Group, Inc. (AIG) is the parent corporation of Appellant AI Credit Corp. (AICC) and of several other corporations, including National Union Fire Insurance Co. of Pittsburgh, PA and Commerce & Industry Insurance Co. (National Union), which are not parties to this lawsuit. Cornerstone and National Union executed a payment agreement in connection with Cornerstone’s purchase of general liability, automobile, and worker’s compensation insurance coverage from National Union.

The payment agreement required that the total premium amount, approximately $1.2 million, be paid by a date certain and that it was not contingent on any financing arrangement Cornerstone might subsequently make; it also contained an arbitration clause covering disagreements concerning the amount of the insured’s payment obligation. Cornerstone began negotiations for a separate financing agreement with AICC for the money it required to pay the premium soon due to National Union. Appellee Patrick H. Mazza, an employee of Appellee Stahl and Associates Insurance, Inc. (Stahl), was the insurance agent who brokered Cornerstone’s agreement with National Union for insurance coverage and with AICC for financing the premium.

Cornerstone paid Stahl approximately $300,000 as a down payment for its insurance policies, but, ultimately, Cornerstone and AICC could not agree on financing terms. When National Union did not receive all the consideration to which it was entitled under the payment agreement, it cancelled Cornerstone’s insurance for nonpayment of premium. Cornerstone demanded that Stahl calculate the premium it owed for the time when the policies were in force to determine if there was any money remaining from its deposit. When Stahl failed to return any money, to Cornerstone, Cornerstone filed a complaint against Mazza, Stahl, AICC, and AIG on various contractual, statutory, and tort bases.

AICC and AIG filed a joint answer and affirmative defenses to Cornerstone’s complaint. Their answer did not assert National Union’s contractual right to arbitration under the payment agreement because neither AIG nor AICC were parties to that contract. Thereafter, the parties entered into a lengthy period of settlement negotiations, but they could reach no accord. Shortly after the settlement negotiations' collapsed, National Union served a demand for arbitration on Cornerstone pursuant to the payment agreement. National Union did not file a copy of that demand in this case as it is not a party here and, in fact, has never appeared in this case.

After National Union served its arbitration demand on Cornerstone, AIG and AICC filed a motion to stay the proceedings pending arbitration of the claims between Cornerstone and National Union. They argued that the issues in this litigation were inextricably intertwined with the issue of how much money was owed between Cornerstone and National Union, which they claimed was clearly subject to arbitration under the payment agreement. Cornerstone then filed a motion in response, objecting to any stay of the proceedings, and a few days later filed another motion styled “Emergency Motion To Dismiss And/Or Stay Defendant American International Group, Inc.’s Demand For Arbitration.” In a footnote in this emergency motion, Cornerstone acknowledged that the demand was, in fact, filed by National Union, noting that National Union had filed its demand as a “wholly owned subsidiary of AIG, on behalf of itself and each related insurer that provided coverage to Cornerstone,” and concluding that National Union “for all intents and purposes is the same as AIG.” Cornerstone argued that AIG had waived its right to arbitration by filing an answer and that there was no right to arbitrate in the first instance because no contract was ever created.

After a hearing on the motions, the circuit court denied National Union’s demand for arbitration, denied AIG’s and AICC’s motion to stay pending arbitration, and granted Cornerstone’s motion to dismiss AIG’s demand for arbitration. This nonfi-nal appeal followed.

The Demand for Arbitration and Waiver

We begin first by noting that National Union served its demand for arbitration on Cornerstone pursuant to the payment agreement and did not file its demand for arbitration in this case. We emphasize that although National Union is a wholly owned subsidiary of AIG, the arbitration clause was contained within the payment agreement between Cornerstone and National Union, not AIG. Cornerstone argues that AIG is the same entity as National Union, or at least an agent, because of several factors. For example, an “AIG Risk Management” logo appeared at the top of the payment agreement’s first page; the instructions specified that the payments under the agreement were to be remitted to AIG in New Jersey; and the signature box on the final page was signed by the authorized representative of National Union under a rubric that proclaimed, “For us, National Union Fire Insurance Company of Pittsburgh Pa, on behalf of itself and other members of American International Group, Inc., first listed above.” Furthermore, Cornerstone points out, one of the cancellation notices National Union sent to it carried an AIG logo. We agree with AIG that on this record the logos do nothing more than denote the affiliated relationship of these companies. Florida law is clear that the use of a logo or trademark symbol alone cannot create an apparent agency. Mobil Oil Corp. v. Bransford, 648 So.2d 119, 120 (Fla.1995); Ilgen v. Henderson Props., Inc., 683 So.2d 513, 514 (Fla. 2d DCA 1996). Here, even though the payment agreement bears AIG’s logo, the text of the agreement makes clear that the agreement is between Cornerstone and National Union. On its face, AIG is not a party to that agreement. The same holds true for the AIG logo on one of the four cancellation notices. It merely announces an affiliated relationship and does not establish a principal/agent relationship.

Furthermore, even though National Union is a wholly-owned subsidiary of AIG, this does not make the two corporations interchangeáble for purposes of bringing or defending a lawsuit. A parent corporation and its wholly-owned subsidiary are separate and distinct legal entities. Gladding Corp. v. Register, 293 So.2d 729, 732 (Fla. 3d DCA 1974). As a separate legal entity, á parent corporation is not hable for torts committed by its subsidiary and cannot exercise the rights of its subsidiary. Unijax, Inc. v. Factory Ins. Ass’n, 328 So.2d 448, 453-54 (Fla. 1st DCA 1976). Similarly, a parent corporation is not bound by an arbitration clause in an agreement entered into by its subsidiary, Federated Title Ins., Inc. v. Ward, 538 So.2d 890, 891 (Fla. 4th DCA 1989), and a parent corporation cannot compel arbitration pursuant to an agreement between a subsidiary and the opposing party, Coastal Health Care Group, Inc. v. Schlosser, 673 So.2d 62, 65 (Fla. 4th DCA 1996).

The Fourth District’s opinion in Federated Title succinctly explains the parameters of the relationship between parent and subsidiary that are relevant to this litigation:

Arbitration provisions are personal covenants, usually binding only upon the parties to the covenant. For instance, in a contract where one party is a corporation, its successor in interest is not usually bound to its terms. Karlen v. Gulf and Western Industries, 336 So.2d 461 (Fla. 3d DCA 1976). Similarly, a parent corporation which is not a signatory party to an agreement is not bound by its arbitration provision. Steinberg/W.F.I. Foods, Inc. v. D.C.M. and Associates, 522 So.2d 512 (Fla. 4th DCA 1988). Claims of various entities, even though interrelated, must ordinarily be treated separately. A parent corporation will not be held liable for the actions of its subsidiary unless the subsidiary is deemed to be a mere instrumentality of the parent. Unijax Inc. v. Factory Insurance Association, 328 So.2d 448 (Fla. 1st DCA 1976). For a subsidiary to be considered a mere instrumentality of a parent corporation, there must be: (1) control of the parent over the subsidiary “to the degree that it is a mere instrumentality.” (2) parent committed fraud or wrongdoing through its subsidiary. (3) unjust loss or injury to a claimant, such as when the subsidiary is insolvent. Id. at 454. A mere instrumentality finding is rare. Id.

Federated Title, 538 So.2d at 891. The circuit court made no finding, and there has been no evidence presented to support such finding, that AIG and National Union fit into any of the three categories in Federated Title to deem National Union a “mere instrumentality” of AIG or an entity interchangeable with AIG.

Also, even though the premium payments under the agreement were to be remitted to AIG in New Jersey, that fact is insufficient to sustain Cornerstone’s argument that the parent and subsidiary are one and the same. See Nat’l Indem. Co. of the South v. Consol. Ins. Servs., 778 So.2d 404, 408 (Fla. 4th DCA 2001) (holding plaintiffs payment of a renewal premium to the alleged agent did not establish an apparent agency). We further agree with AIG’s reasoning that, on this record, the requirement to remit payments to AIG, if anything, would make AIG an agent of National Union for payment purposes only; it would not make AIG a principal for purposes of litigation.

As AIG, under the facts of this record, could not bind National Union or compel Cornerstone to arbitrate pursuant to the arbitration clause in the contract between Cornerstone and National Union, neither could it have waived National Union’s rights to arbitration pursuant to that clause. See, e.g., Post Tensioned Eng’g Corp. v. Fairways Plaza Assocs., 412 So.2d 871, 874 (Fla. 3d DCA 1982) (holding that “[f]or an act to be inconsistent with the right to arbitrate and thus constitute a waiver of that right, it must repudiate the right of the party who does the act”). The circuit court erred, therefore, in deeming National Union’s right to arbitration waived by AIG’s actions in filing an answer and affirmative defenses in this lawsuit without raising the right to arbitration.

In addition to AIG’s inability to waive arbitration pursuant to a clause in a contract to which it was not a party, as a matter of law and constitutional due process the circuit court’s order denying National Union’s request for arbitration is void. Chastain v. Uiterwyk, 462 So.2d 1212, 1213 (Fla. 2d DCA 1985) (“It is well settled in American jurisprudence that no court can make a decree which will bind anyone but a party.”); see also Alger v. Peters, 88 So.2d 903, 906 (Fla.1956) (“It is so fundamental to our concept of justice that a citation of supporting authorities is unnecessary to hold that the rights of an individual cannot be adjudicated in a judicial proceeding to which he has not been made a party and from which he has literally been excluded by the failure of the moving party to bring him properly into court.”). Although the circuit court properly recognized in its nonfinal order that it was denying National Union’s demand for arbitration, and not AIG’s, it erred in so doing. National Union and AIG are not interchangeable and the demand was not filed in the circuit court; thus, the court was without jurisdiction to grant or deny the demand. Therefore, National Union’s demand for arbitration remains viable as between it and Cornerstone.

Staying These Proceedings Pending Arbitration

Next, we find that the circuit court also erred by denying AIG’s motion to stay this action pending arbitration of the dispute between Cornerstone and National Union. We agree with AIG and AICC that although the arbitration clause is found in a contract between Cornerstone and National Union, they are nonetheless entitled to a stay of this lawsuit pending resolution by arbitration of issues involved in the other dispute because those issues form the basis of this suit. Where the claims involving a third party are “based on the same operative facts and are inherently inseparable” from the claims subject to arbitration, Harvey v. Joyce, 199 F.3d 790, 795 (5th Cir.2000), the third party is entitled to a stay of proceedings pending arbitration even though it is not a signatory to the arbitration agreement and has no right to compel arbitration. The claims against AIG and AICC reasonably and logically derive from Cornerstone’s ostensibly arbitrable claim about how much it owes for the insurance coverage it enjoyed before the cancellation occasioned by AICC’s and Cornerstone’s failure to come to terms on the financing agreement for the premium for that coverage. We cannot say “that the resolution of the arbitra-ble claims will have no effect on the claims pending in court.” Okeelanta Corp. v. United States Sugar Corp., 712 So.2d 814, 815 (Fla. 2d DCA 1998). Moreover, courts are required to indulge every reasonable presumption in favor of arbitration, recognizing it as a favored means of dispute resolution. Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also K.P. Meiring Constr., Inc. v. Northbay I & E, Inc., 761 So.2d 1221 (Fla. 2d DCA 2000); Roe v. Amica Mut. Ins. Co., 533 So.2d 279 (Fla.1988).

Disposition

We recognize the plight that Cornerstone finds itself in, having paid what it claims is too much money for the short time that National Union provided insurance coverage, and we sympathize with its so far unsuccessful efforts to secure the return of any unused deposit, or even a calculation of the amount owed. However, as AIG correctly points out, Cornerstone was the master of its complaint and did not join its own insurers, the entities directly involved in its alleged loss, and we cannot now ignore that substantive defect on this record.

Because we conclude that the circuit court erred in denying AIG’s and AICC’s motion for stay pending arbitration, that its denial of National Union’s demand for arbitration was a nullity, and that it erred in granting Cornerstone’s emergency motion to dismiss AIG’s motion for stay pending arbitration, we reverse the nonfinal order and remand for further proceedings in accordance with this opinion.

SALCINES and DAVIS, JJ., Concur.

      . The various theories advanced against Maz-za, Stahl, AICC, and AIG were fraudulent and negligent misrepresentation, conversion, breach of fiduciary duty, violation of various insurance statutes in chapter 627, Florida Statutes (2002), and deceptive and unfair trade practices under chapter 501, Florida Statutes (2002). Cornerstone also sued Maz-za, Stahl, and AICC for breach of contract.

      . Because National Union is not a party to this lawsuit the propriety of subjecting the National Union/Cornerstone dispute to arbitration, per se, is not before us, and we cannot say with certitude that the claim Cornerstone has against National Union for return of unearned premiums is an arbitrable claim. It appears, prima facie, to be so, based on the wording of the arbitration clause in the payment agreement between them. Nevertheless, we make no judgment on the arbitrability of the claim.


author: CANADY, Judge.

text:
    Stanley THOMAS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 2D03-3936.
    District Court of Appeal of Florida, Second District.
    April 14, 2004.
    Stanley Thomas, pro se.
    Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   CANADY, Judge.

Stanley Thomas, whose conditional release was revoked by the Parole Commission, seeks certiorari review of the circuit court’s order denying his petition for writ of habeas corpus. For the reasons set forth below, we conclude that Thomas is entitled to relief.

Thomas properly challenged the revocation of his conditional release by seeking a writ of habeas corpus in the circuit court. See Mabrey v. Fla. Parole Comm’n, 858 So.2d 1176, 1181 (Fla. 2d DCA 2003). And he now properly seeks certiorari review of the circuit court’s denial of his habeas petition. See id. Thomas is entitled to relief only if he can show that the circuit court “did not afford procedural due process or departed from the essential requirements of law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). There is a departure from the essential requirements of law “only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id.; see also Mabrey, 858 So.2d at 1181.

Thomas’s conditional release was revoked solely because he did not complete payment for drug treatment that he voluntarily entered. Although the conditional release order did allow his control release officer (CRO) to order Thomas into drug treatment, the record documents, including the summary of the revocation hearing, do not indicate that Thomas was in fact-ordered into drug treatment.

Thomas’s conditional release cannot legally be revoked for his failure to complete a condition that was neither ordered by the court nor properly delegated to and ordered by his CRO. See Narvaez v. State, 674 So.2d 868 (Fla. 2d DCA 1996) (holding that it was fundamental error to revoke defendant’s probation because he violated a condition with which he was never ordered to comply). This principle of law governing revocation of probation is equally applicable to revocation of conditional release. In not following Narvaez, the trial court “violated a clearly established principle of law,” and a “miscarriage of justice” was the result. Kaklamanos, 843 So.2d at 889.

Accordingly, we grant the petition for writ of certiorari. We quash the circuit court’s order and remand with directions that Thomas’s petition for habeas corpus be granted and his conditional release reinstated.

Petition granted; remanded with directions.

STRINGER and SILBERMAN, JJ., concur.


text:
    Mickey A. PALMIERI, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4842.
    District Court of Appeal of Florida, Second District.
    April 16, 2004.
    Mickey A. Palmieri, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Mickey A. Palmieri appeals the trial court’s order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Palmieri alleged that his five concurrent fifteen-year mandatory terms of imprisonment for five burglaries committed during 1998 imposed pursuant to the Prison Releasee Reoffender Punishment Act were illegal under Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). Taylor held that chapter 99-188, Laws of Florida, is unconstitutional because it violates the single subject rule of the Florida Constitution. Id. at 550. In denying Palmieri’s motion, the trial court found that “[a]s of April 29, 2002, the Florida Legislature cured the single subject rule violation by reenacting the provisions originally contained in Chapter 99-188. In doing so, the Florida Legislature provided for the retroactive application of each reenactment to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA), review granted, Franklin v. State, 854 So.2d 659 (Fla.2003), this court held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

The effective date of the Prison Releas-ee Reoffender Punishment Act, chapter 97-239, Laws of Florida, was May 30, 1997. Jefferson v. State, 111 So.2d 1082 (Fla. 2d DCA 2001). Chapter 99-188, containing certain amendments to the Act, did not become effective until July 1, 1999. Therefore, Taylor is inapplicable to the sentences imposed for Palmieri’s offenses that were committed in 1998. Palmieri does not allege that he could not have been sentenced as a prison releasee reoffender pursuant to the statute in effect on the dates of his offenses. Thus Palmieri is not entitled to relief.

We therefore affirm the trial court’s order denying Palmieri’s motion to correct illegal sentence on the basis that Palmieri’s sentence is not subject to challenge under Taylor.

Affirmed.

CASANUEVA and STRINGER, JJ., Concur.


author: KELLY, Judge.

text:
    Gregory EVERETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-405.
    District Court of Appeal of Florida, Second District.
    April 16, 2004.
    John Cullaro of the Cullaro Law Firm, Tampa, and Christopher J. Dale, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Gregory Everett appeals from his judgment and life sentence for lewd and lascivious acts. He argues that the trial court committed reversible error by allowing the prosecution to cross-examine him about taking a polygraph examination. Although the mention of a polygraph examination may in some cases induce a mistrial or require a new trial, see Olivera v. State, 813 So.2d 996, 997-99 (Fla. 4th DCA 2002), reversal is not required in this case be-

cause Everett opened the door to questioning about the polygraph examination during his case-in-chief. See La Rocca v. State, 401 So.2d 866, 868 (Fla. 3d DCA 1981) (holding that the mention of a polygraph examination does not compel reversal where the evidence was introduced by the defendant). In addition, the results of the examination were never mentioned. Cf. McFadden v. State, 540 So.2d 844 (Fla. 3d DCA 1989) (stating that the mention of the results of a polygraph examination requires a mistrial). Finally, the trial court cured any possible error by giving a curative instruction to the jury explaining that the results of a polygraph examination are inadmissible.

We find no merit to Everett’s additional points on appeal. Accordingly, we affirm Everett’s judgment and sentence.

Affirmed.

CANADY, J., and THREADGILL, EDWARD F., Senior Judge, concur.


author: ALTENBERND, Chief Judge.

text:
    John Earl HUBBARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3402.
    District Court of Appeal of Florida, Second District.
    April 16, 2004.
    John Earl Hubbard, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

John Earl Hubbard appeals the denial of his motion to correct an illegal sentence. He was sentenced as a habitual violent felony offender to consecutive terms of thirty years’ imprisonment for a burglary and ten years’ imprisonment for an attempted sexual battery, both of which occurred on May 15, 1989. He did not file a motion to correct any sentencing error within two years of the supreme court’s opinion in Hale v. State, 630 So.2d 521 (Fla.1993). Prior to Burgess v. State, 831 So.2d 137 (Fla.2002), this court held that Mr. Hubbard’s claim must be pursued under Florida Rule of Criminal Procedure 3.850 and not rule 3.800(a). See Hubbard v. State, 773 So.2d 87 (Fla. 2d DCA 2000); see also Downs v. State, 870 So.2d 46 (Fla. 2d DCA 2003). Following the supreme court’s opinion in Burgess, which permits some Hale issues to be resolved under rule 3.800(a), Mr. Hubbard again challenged his consecutive sentences as illegal on the face of the record.

This court asked the State to respond to his new petition. To the State’s credit, it reviewed the record and has concluded that Mr. Hubbard is entitled to relief because the consecutive sentences arise out of a single criminal episode. Accordingly, we reverse the order denying the motion and remand to the trial court to enter concurrent sentences for these two offenses.

Reversed and remanded.

CASANUEVA and SILBERMAN, JJ., Concur.


author: PER CURIAM.

text:
    D. G., Petitioner, v. Adonis MILES, Detention Superintendent, Respondent.
    No. 2D04-508.
    District Court of Appeal of Florida, Second District.
    April 16, 2004.
    Julianne M. Holt, Public Defender, Tampa, and Kay S. Murray, Assistant Public Defender, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, for Respondent.
   PER CURIAM.

D.G., a juvenile, filed an emergency petition for writ of habeas corpus challenging his placement in secure detention, asserting that the trial court erred in scoring his probationary status twice under subsection III of his risk assessment instrument (RAI). We previously determined that D.G. was entitled to be released from secure detention and granted the petition by unpublished order, stating an opinion would follow. We now issue this opinion to explain our reasons for granting the petition.

D.G. was charged with possession of cocaine with intent to sell or deliver, possession of marijuana, and possession of drug paraphernalia. At his detention hearing, the trial court determined there was insufficient probable cause to sustain the charge of possession of cocaine with intent to sell or deliver and reduced the charge to possession of cocaine, a third-degree felony. The possession of cocaine offense, as the most serious current offense, resulted in a RAI score of seven points. For one previous offense with adjudication withheld, D.G. received a RAI score of one point. For legal status scoring on the RAI, one point was scored because D.G. had an active probation case in which adjudication was withheld more than ninety days previously. Thus, D.G.’s total RAI score should have been ten points. A RAI score of seven to eleven points requires nonsecure or home detention.

Here, the trial court scored the ten points, and then stated: “I’m going to aggravate him two points then to twelve ... because he’s on probation. He shouldn’t have been where he was.... ” D.G’s counsel objected because the fact that D.G. was on probation had been taken into account on the RAI; thus, the probationary status should not have been used again as an aggravating factor. But the court added two more points to the RAI, bringing D.G.’s total score to twelve. The court ordered D.G. held in secure detention, which the RAI allows when the score is twelve or more points.

“The power to place those charged with, or found to have committed, a delinquent act in detention is entirely statutory in nature.” S.W. v. Woolsey, 673 So.2d 152, 154 (Fla. 1st DCA 1996). Section 985.213(2)(a), Florida Statutes (2003), mandates that except in circumstances not relevant to this case, “[a]ll determinations and court orders regarding placement of a child into detention care shall comply with all requirements and criteria provided in this part and shall be based on a risk assessment of the child.”

Double scoring for circumstances already taken into account by the RAI is impermissible. N.W., 673 So.2d at 155; P.A.J. v. Gnat, 684 So.2d 310, 311 (Fla. 1st DCA 1996) (“[R]isk assessment cannot be aggravated based on factors already accounted for and quantified in the RAI.”).

Accordingly, we granted D.G.’s petition and ordered his immediate release from secure detention.

Petition for writ of habeas corpus granted.

FULMER, SILBERMAN, and COVINGTON, JJ., Concur.


author: DAVIS, Judge. COVINGTON, Judge,

text:
    Jane LASCHKE and Rudolph Laschke, Appellants, v. R.J. REYNOLDS TOBACCO CO., a foreign corporation; Lorillard Tobacco Co., a foreign corporation; Brown & Williamson Tobacco Corp., individually and as successor by merger to The American Tobacco Co., a foreign corporation; and Liggett Group, Inc., a foreign corporation, Appellees.
    No. 2D02-1804.
    District Court of Appeal of Florida, Second District.
    April 16, 2004.

      Howard M. Acosta, St. Petersburg; Kent G. Whittemore and Bruce H. Denson of Whittemore, Denson, P.A., St. Peters-burg; and Charles P. Schropp of Schropp, Buell & Elligett, P.A., Tampa, for Appellants.
    Stephanie E. Parker of Jones, Day, Reavis & Pogue, Atlanta, Georgia; and Benjamin H. Hill, III, and Troy A. Fuhr-man of Hill, Ward & Henderson, P.A., Tampa, for Appellee R.J. Reynolds Tobacco Co.
    Kenneth J. Reilly of Shook, Hardy & Bacon, L.L.P., Miami; and C. Lawrence Stagg and Margaret D. Mathews of Aker-man, Senterfitt & Eidson, P.A., Tampa, for Appellee Lorillard Tobacco Co.
    William A. Gillen, Jr., of Gray, Harris, Robinson, Shackleford, Farrior, P.A., Tampa, for Appellee Brown & Williamson Tobacco Co.
    Wayne Lee Thomas, Tampa, for Appel-lee Liggett Group, Inc.
   DAVIS, Judge.

Jane Laschke and her husband, Rudolph Laschke, challenge the trial court order dismissing with prejudice their product liability suit against R.J. Reynolds Tobacco Company; Lorillard Tobacco Company; Brown & Williamson Tobacco Corporation, individually and as successor by merger to the American Tobacco Company; and Lig-gett Group, Inc. (collectively “the tobacco companies”). In dismissing the Laschkes’ action with prejudice, the trial court found that actions taken by Mrs. Laschke amounted to a fraud on the court. Because we conclude that dismissal with prejudice was too harsh a sanction, we reverse and remand for further proceedings.

In 1996, the Laschkes filed suit against the tobacco companies for damages' Mrs. Laschke sustained as the result of laryngeal cancer. The suit alleged that Mrs. Laschke had smoked cigarettes manufactured by the tobacco companies from 1956 to 1995 and that in 1995 Mrs. Laschke was diagnosed with cancer. The complaint further alleged that the cancer was the result of her cigarette smoking.

During the discovery phase of the proceedings, Mrs. Laschke apparently telephoned her oncologist’s office and requested that he make a note on her medical records that her cancer was the result of cigarette smoking. She made this request of the doctor’s nurse, who in turn talked to the doctor. Through his nurse, the doctor informed Mrs. Laschke that he did not retroactively change charts. However, he did state that he would testify on her behalf at trial. The nurse memorialized Mrs. Laschke’s request and the doctor’s response on a “sticky note” and placed the note in the file with the medical records.

After obtaining a complete copy of Mrs. Laschke’s medical records from the doctor, the tobacco companies found the note. The appellees took Mrs. Laschke’s deposition three years after the date of the telephone call. During that deposition, Mrs. Laschke denied asking anyone to change the medical records in any way and denied asking that something be added to the records to show that her cigarette smoking was the cause of her cancer.

The tobacco companies then moved to dismiss the Laschkes’ suit alleging that Mrs. Laschke had committed fraud on the court by attempting to have her medical records “altered, defaced or falsified.” To support the request for dismissal as a sanction for the alleged misconduct, the tobacco companies submitted portions of the depositions of Mrs. Laschke and the oncologist’s nurse.

Because it concluded that the inappropriate request to change the medical records, together with Mrs. Laschke’s untruthful. denial of the request made while under oath, constituted fraud on the court, the trial court granted the tobacco companies’ request to dismiss the complaint with prejudice. The Laschkes now appeal the final judgment entered based on this ruling.

On appeal, the Laschkes argue that the facts of this case as presented in their motion for reconsideration do not support the finding of fraud and ask this court to reverse the trial court’s ruling. We note that, due to some procedural issues not addressed herein, most of these facts were not before the trial court at the time of its ruling. It is not necessary, however, for us to address the Laschkes’ argument as to the disputed facts because we conclude that, accepting the facts as found by the trial court, it was error to grant the dismissal with prejudice.

Although the trial court entered a detailed order and closely examined the case law regarding this issue, subsequent to the dismissal of the Laschkes’ suit below, this court adopted a stringent standard as to what level of misconduct will justify the extreme sanction of dismissal. In Jacob v. Henderson, 840 So.2d 1167 (Fla. 2d DCA 2003), this court followed the test set forth in Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998):

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989).... Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994).

Application of this test to the facts as found by the trial court here suggests that dismissal was too harsh a sanction. The facts, as found by the trial court, do not clearly and convincingly show that Mrs. Laschke’s attempt was one that, if she had been successful, would have interfered with the trier of fact’s ability to impartially adjudicate the issues between the parties nor would it have unfairly “hampered” the appellees’ presentation of their defense. Accordingly, the trial court, having decided this matter without the benefit of Jacob, erred in granting the dismissal with prejudice.

Reversed and remanded for further proceedings.

SALCINES, J., Concurs.

COVINGTON, J., Dissents with opinion.

COVINGTON, Judge,

Dissenting.

I respectfully dissent.

There are two parts to the trial court’s consideration of a motion to dismiss a plaintiffs action for fraud upon the court: (1) whether the plaintiff committed fraud and (2) whether such fraud justifies dismissal of the case with prejudice.

Fraud Upon the Court

The trial court must first decide if the facts clearly and convincingly show that the plaintiff set in motion a conscious scheme calculated to improperly influence the trier of fact. Jacob, 840 So.2d at 1169 (citing Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998)). The clear and convincing evidence standard is “an intermediate level of proof’ that requires the evidence to be clear, credible, and “of sufficient weight to convince the trier of fact without hesitancy.” In re the Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995). In reviewing a civil case in which the burden is clear and convincing evidence, the appellate court may not overturn the trial court’s finding unless it is unsupported by record evidence, or if, as a matter of law, no one reasonably could find such evidence to be clear and convincing. McKesson Drug Co. v. Williams, 706 So.2d 352, 353 (Fla. 1st DCA 1998) (citing In re the Adoption of Baby E.A.W, 658 So.2d at 967). Under this standard, I cannot say the trial court erred in finding the evidence to be clear and convincing that Mrs. Laschke attempted to improperly influence the trier of fact.

After Mrs. Laschke filed suit against the tobacco companies, she asked Dr. Miller to add a note on his medical records that cigarette smoking caused the cancer. Dr. Miller’s nurse testified later in deposition that Mrs. Laschke said her attorney advised that her case would be stronger if the records reflected that smoking caused the cancer. The nurse posted a “sticky note” on a page of Mrs. Laschke’s records that read: “Jane Laschke asked that chart records should say her disease is a direct result of cigarettes for lawsuit.” Dr. Miller replied that he could not retroactively change Mrs. Laschke’s chart but that he would testify on her behalf. In Mrs. Laschke’s own subsequent deposition, the tobacco companies’ counsel asked, “Have you ever asked anybody to change any of [Dr. Miller’s] medical records in any way ... [o]r to put anything in them about cigarette smoking, or cigarette smoking as a cause of your láryngeal cancer?” Mrs. Laschke answered, “No.”

In my view, the fact that Dr. Miller was willing to testify for her at trial, even though he refused to add to the records, is not, as the majority concludes, evidence that Mrs. Laschke was not attempting to mislead the trier of fact. The relevant question is not whether her doctor thought all along that smoking caused her cancer. He indeed may have thought that and even told her that. The fraud-related question, however, is whether that opinion was already in Mrs. Laschke’s records before the suit.

Mrs. Laschke’s telephone call to her doctor perhaps might have been excused as the actions of one not experienced with the importance of maintaining the integrity of medical records. Unfortunately, that is not all that happened here. Mrs. Lasch-ke was specifically asked in her deposition, in three or four different ways, if she had contacted Dr. Miller’s office and asked that her medical records be altered. Although initially Mrs. Laschke said in her deposition that she did not recall talking to anyone, she at least three times specifically and directly denied making such a contact or request. It is the combination of these two events — contacting her doctor’s office and then not being truthful about it in her deposition — that caused the trial court to find that Mrs. Laschke had attempted to perpetrate a fraud upon the court.

The majority reasons that even if Mrs. Laschke’s attempt to add to her records had been successful, it would not have interfered with the impartial adjudication of the issues or hampered the tobacco companies’ defense. However, the nurse’s deposition testimony that Mrs. Laschke requested the notation in the chart to make her case stronger is evidence that Mrs. Laschke thought it would make a difference. The standard for fraud upon the court does not turn on whether Mrs. Laschke’s attempt to add to her records was successful. See Cox, 706 So.2d at 46.

In Cox, the plaintiff provided false and misleading information in her legal malpractice action. Id. at 44. The trial court dismissed the action for fraud upon the court. Id. Cox argued on appeal that her conduct did not constitute fraud upon the court because it did not in fact hamper the defendants’ ability to defend the claim. Id. at 46. The Fifth District affirmed the trial court’s dismissal of Cox’s suit and pointed out “the irony of [Cox’s] argument that Cox should not be punished because she failed to deceive.... ” Id.; see also Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1120 (1st Cir.1989) (holding “bogus agreement clearly had the capacity to influence the adjudication” and “failure of a party’s corrupt plan does not immunize the defrauder from the consequences of his misconduct”).

The standard for fraud upon the court is, rather, whether the facts clearly and convincingly show the plaintiff set in motion a conscious scheme calculated to improperly influence the trier of fact. See Jacob, 840 So.2d at 1169 (citing Cox, 706 So.2d at 46). In this case, the trial court was not unreasonable in concluding that when Mrs. Laschke made the telephone call asking Dr. Miller to add to her records information that supported her case against the tobacco companies, she set in motion a conscious scheme calculated to improperly influence the trier of fact. Just as the failure of the Cox plaintiffs misleading information to hamper the defendants’ discovery did not expunge her fraudulent conduct, Mrs. Laschke’s failure here to improperly influence the trier of fact by getting the doctor to add to her records does not expunge her fraudulent conduct in attempting to alter the records and then being dishonest about it under oath.

In my opinion, nothing in Mrs. Lasch-ke’s motion for reconsideration changes the trial court’s ruling. The motion for reconsideration included an affidavit from Dr. Miller stating he told Mrs. Laschke when he examined her that smoking was a probable cause of her cancer and that although his office does not retroactively change records, her request was, in his opinion, “merely asking for clarification.” The motion also points to the nurse’s deposition testimony that Mrs. Laschke’s request was “[n]ot to physically strike something out but to clarify.... [C]ould we make her record any clearer that smoking was a direct cause of the cancer.” The motion notes the nurse’s deposition statement that when she telephoned Mrs. Laschke to tell her the doctor could not change the records but would testify for her, Mrs. Laschke responded that she understood and certainly did not want to ask Dr. Miller to do anything “illegal or ... unethical or anything like that.” The trial court denied the motion for reconsideration.

In my opinion, a trial court reasonably could find the evidence in this case, including that presented in the motion for reconsideration, to be clear and convincing proof of fraud upon the court. Thus, I would hold the trial court here did not err in ruling that Mrs. Laschke’s conduct met that standard.

Dismissal With Prejudice

The second part of the trial court’s determination, once it concludes the evidence clearly and convincingly shows fraud upon the court, is its decision whether to impose a sanction as severe as dismissal with prejudice. Jacob, 840 So.2d at 1168. The trial court has discretion to dismiss the action where, in the trial court’s opinion, the plaintiffs misconduct rises to a level of egregiousness that justifies dismissal. Jacob, 840 So.2d at 1169; Cox, 706 So.2d at 46. This court in Morgan v. Campbell, 816 So.2d 251 (Fla. 2d DCA 2002), set forth the following standard for reviewing a trial court’s imposition of sanctions under an abuse of discretion standard: “If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Id. at 253 (quoting Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983)).

The majority relies on this court’s recent decision in Jacob, 840 So.2d 1167, in holding that Mrs. Laschke’s conduct, which the trial court found to be fraud upon the court, did not justify the extreme sanction of dismissal. In Jacob, the plaintiff alleged she suffered continuing pain and partial loss of function in her arm and hand after the side mirror of a deputy sheriffs patrol car struck her in the arm. Id. at 1168. She testified in deposition that she could no longer perform certain tasks, but a surveillance video showed her performing those same tasks. Id. The trial court dismissed her case with prejudice after viewing the video. Id. This court reversed, holding the trial court abused its discretion in dismissing the case where there was no clear and convincing evidence that Mrs. Jacob had knowingly perpetrated a fraud, but rather had exaggerated her injuries or had believed her injuries were more severe than they really were, as shown by the video. Id.

The facts in this case are distinguishable from those in Jacob. This court’s reversal in Jacob rests on our determination that dismissal was too harsh a sanction in the absence of clear and convincing evidence that Mrs. Jacob intentionally was dishonest in her deposition, thus knowingly perpetrating a fraud. There is no corresponding absence of clear and convincing evidence in this case. Rather, the record here supports the trial court’s finding that Mrs. Laschke knowingly tried to fabricate evidence to make her case stronger and then was dishonest in deposition when she specifically denied asking the doctor to change her records or put anything in them about cigarette smoking causing her cancer.

In granting the motion to dismiss, the trial court stated that this was a “very, very serious matter.” The trial court’s order specifically found that it was “clear” that Mrs. Laschke “requested the change in her medical records to ‘make a stronger case’ for her lawsuit.” Then the trial court wrote:

In addition to the serious nature of the inappropriate request to change medical records and Plaintiffs’ counsel’s involvement in the improper request, it. is equally unrefuted in the record that when defense counsel asked Mrs. Lasch-ke in her deposition if she had ever requested that her medical records be changed, she repeatedly, under oath, untruthfully denied having taken such action.
Based on these findings, the Court determines that the record is clearly and unequivocally replete with fraud and untrue statements, all of which go to the heart of Plaintiffs case, specifically causation.

I believe the trial court’s finding is reasonable, even under our standard in Jacob, 840 So.2d 1167. Therefore, I would hold the trial court did not abuse its discretion in finding Mrs. Laschke’s conduct serious enough to dismiss the action, and accordingly doing so.

      . See also Donald A. Blackwell, The "Big Lie” — Contrary to What You May Have Heard on the Evening News, False and Misleading Testimony by a Civil Litigant Can and Does Have Serious Consequences, 73 Fla. B.J. 20, 22-26 (1999) (citing multiple cases, including Cox, 706 So.2d 43, and Aoude, 892 F.2d at 1118, that send a compelling message to litigants who intend to try to deceive their adversaries or the courts to "[p]roceed at your own risk, because if you are found out there is a strong probability that, at a minimum, you will forfeit your claim for relief or, in the case of deceptive defendants, your right to assert a defense”).


text:
    Columbus ASHLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1367.
    District Court of Appeal of Florida, First District.
    April 19, 2004.
    Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

This is an appeal of a re-sentencing following the Florida Supreme Court’s reversal of appellant’s sentence in Ashley v. State, 850 So.2d 1265 (Fla.2003). We reverse and remand for resentencing.

In July 1999, the trial court orally sentenced appellant to 25 years in prison as a habitual felony offender for possession of a firearm by a convicted felon. The trial court, however, entered a written judgment of sentence as a habitual violent felony offender (HVFO) without a minimum mandatory term. Three days later, the trial court orally resentenced appellant to 25 years as an HVFO with a 10-year minimum mandatory term. The Florida Supreme Court reversed the sentence, stating that the oral pronouncement prevailed over the written judgment. Although the trial court’s failure to state during its oral pronouncement of sentence that it was sentencing appellant as an HVFO may have been a simple mistake, the trial court “resentenced [appellant] to a more onerous sentence after he had begun serving the original sentence.” Id. at 1267.

After remand, the trial court resen-tenced appellant to 25 years in prison as an HVFO without a minimum mandatory term. The trial court read the supreme court’s opinion as stating that appellant’s sentence could not be increased after he had begun serving his sentence, not that appellant could not be sentenced as an HVFO. The trial court further noted that, absent the minimum mandatory term, the designation as an HVFO rather than a habitual offender mattered not. It was the sentence and not the designation that constituted the more onerous sentence.

The supreme court’s decision is the law of the case. The supreme court did not merely direct the trial court to eliminate the minimum mandatory term but to change appellant’s HVFO status as well. This is evident from the Court’s approval of the Fourth District’s decision in Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996).

In Evans, the defendant was sentenced to probation for three years pursuant to a plea agreement. The defendant agreed that he qualified as a habitual offender and that if he violated his probation that he would be sentenced as a habitual offender. Subsequently, the defendant violated his probation. The trial court did not orally pronounce that the defendant’s sentence was as a habitual offender. Upon the state’s motion to clarify sentence, the trial court entered an order reflecting a habitual offender sentence. The Fourth District reversed and remanded for the trial court to delete the defendant’s habitual offender status. Although it appeared that the trial court’s failure to state that it was sentencing the defendant as a habitual offender was merely an oversight, the appellate court held that the written sentence must conform to the oral pronouncement.

Therefore, the supreme court directed that the appellant in the present case be sentenced in accordance with the original oral pronouncement: 25 years as a habitual felony offender. Accordingly, we reverse the appellant’s sentence and remand this case for further proceedings in accordance with this opinion.

REVERSED and REMANDED.

ALLEN, PADOVANO and HAWKES, JJ., concur.


text:
    Earl Cornelius OATES, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1624.
    District Court of Appeal of Florida, Second District.
    April 21, 2004.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Earl Cornelius Oates appeals the trial court’s order revoking his probation for aggravated assault and imposing a sentence of 58.5 months’ imprisonment. The trial court found that Oates willfully and substantially violated four conditions of his probation. We conclude that the State proved only two of the four violations found by the trial court. Because we are unable to conclude that the trial court would have revoked Oates’ probation on account of the two violations actually proven, we reverse the order revoking probation and remand this case to the trial court for further proceedings.

In order to support the revocation of probation, the State must prove that the defendant’s violations were willful and substantial. Hanania v. State, 855 So.2d 92, 94 (Fla. 2d DCA 2003). The trial court must determine whether the violations were willful and substantial and supported by the greater weight of the evidence or, stated differently, whether the defendant made reasonable efforts to comply with the terms and conditions of probation. See State v. Carter, 835 So.2d 259, 261 (Fla.2002); Davis v. State, 867 So.2d 608, 610 (Fla. 2d DCA 2004). The trial court has broad discretion to determine whether there has been a willful and substantial violation, and our review of the trial court’s determination is for abuse of discretion. Hanania, 855 So.2d at 94.

With commendable candor, the State concedes that it failed to prove willful and substantial violations of conditions 2 and 30. We agree. Condition 2 required Oates to pay $40 per month as the cost of supervision. However, there was no evidencé that Oates was able to pay this cost. See Stephens v. State, 630 So.2d 1090, 1091 (Fla.1994). Condition 30 required Oates to complete domestic violence treatment. However, the State’s inability to prove a willful and substantial violation of this condition was due in large part to the omission in condition 30 of a specified date by which Oates was required to complete the task and the fact that Oates was not at the end of his probationary period. See Lynom v. State, 816 So.2d 1218, 1220 (Fla. 2d DCA 2002); Haynes v. State, 571 So.2d 1380, 1381 (Fla. 2d DCA 1990). As this court has recently observed, “the better practice is for the sentencing court to specify all performance conditions.” Davis v. State, 862 So.2d 931, 935 (Fla. 2d DCA 2004) (Casanueva, J., concurring).

Condition 1 stated: “Each month you will make a full and truthful report to your officer on the -form provided for that purpose as instructed by your officer:” In addition to the failure to file reports, the State alleged and submitted evidence of extraneous matters to establish a violation of this condition. For purposes of our review, we disregard these extraneous matters as beyond the scope of this condition. Thus the allegation of a violation of condition 1 contained in the affidavit for violation of probation must be limited to the following: “[A]s of 10/18/02, [Oates’] written monthly reports for the months of August 2002, and September 2002, due in September 2002, and October 2002, respectively, have not been received by probation officer James Steere.”

Competent evidence established that Oates left the reports at the Corrections office on October 23, 2002. Oates admits that both reports were “submitted late,” but he argues that the affidavit did not allege this misconduct. Nevertheless, the State proved the literal language of the affidavit that the reports were not received as of October 18, 2002. This was a violation of condition 1.

We have previously held that the failure to file monthly reports is a sufficient basis to revoke probation. Robinson v. State, 773 So.2d 566, 567-68 (Fla. 2d DCA 2000). Indeed, the failure to file even a single monthly report may, in certain circumstances, justify probation revocation if such failure is willful and substantial and supported by the greater weight of the evidence. Carter, 835 So.2d at 261. The reason is that “probation reports are not merely technical niceties and the failure to report is a serious violation of the privilege of probation.” Id.

Nevertheless, the trial court must consider the facts of each case with care in determining whether a violation of probation based upon a failure to file reports is willful and substantial. Id. In this case, the facts established that Oates violated condition 1 by failing to timely submit the required reports. However, the State’s pleading and proof of Oates’ violation of condition 1 included extraneous matters not pertinent to the failure to timely submit reports. The trial court did not indicate that it would have found a willful and substantial violation of condition 1 based only upon Oates’ failure to timely submit the reports. Upon remand, the trial court must consider whether it would find a willful and substantial violation of condition 1 based solely upon Oates’ failure to timely submit the reports for August and September 2002.

Condition 9 stated in pertinent part: “[Y]ou will comply with all instructions your officer may give you.” Oates’ probation officer testified that on August 20, 2002, Oates stated that the reason why he was in arrears with the costs of his supervision was because of his child support obligations. The probation officer testified about his response to Oates as follows:

[W]hen I saw [Oates] in September of 2002 I wanted him to bring me documentation that he was making child support payments and asked him when he wanted an appointment in the month of September. He said he could not make an appointment because he was a truck driver out of state. So I instructed him to call me when he was in town during the month of September 2002 to arrange an appointment and come in at that time and bring in the documentation of his child support payments.

The probation officer handed Oates his business card with the following instructions handwritten on the back:

NEXTAPPT
9/02 call PO + bring in records of child support payments, w/payment

Oates contends that he reasonably understood these instructions to mean that he was required to call for an appointment if he was “in town” in September. According to Oates, implicit in the instructions was that he was not required to call for an appointment if he was not “in town” in September because of the demands of his job as a truck driver. However, Oates’ own testimony at the revocation hearing established that because his driver’s license had been revoked, he was not working as a truck driver in September.

A reasonable inference to be drawn from Oates’ testimony at the revocation hearing was that he was “in town” during September 2002. Significantly, Oates did not claim to have been “out of town.” Because Oates was available to meet with his probation officer in September, he 'had no excuse for failing to call the officer in September, even by his own understanding of the officer’s instructions. In light of this fact, we cannot conclude that the trial court abused its discretion in finding that Oates had willfully and substantially violated condition 9.

Despite the State’s urging to the contrary, we cannot determine whether the trial court would have revoked Oates’ probation based solely on his failures to timely submit monthly reports and to obey the instructions of his probation officer. Accordingly, we remand this case to the trial court for its determination whether to revoke Oates’ probation. We have considered the other arguments raised by Oates and find them to be without merit.

Reversed and remanded.

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


author: WARNER, J.

text:
    Dexter GUNN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-971.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Rehearing Denied May 28, 2004.

      Dexter Gunn, Blountstown, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the order denying appellant’s motion for postconviction relief from his 1993 conviction and sentence. He made two claims based upon newly discovered evidence, neither of which warrant relief.

Two requirements must be met in order to set aside a conviction on the basis of newly discovered evidence:

First, in order to be considered newly discovered, the evidence “must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.” Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla.1994).
Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial. Jones [v. State], 591 So.2d 911, 915 [(Fla.1991)]. To reach this conclusion the trial court is required to “consider all newly discovered evidence which would be admissible” at trial and then evaluate the “weight of both the newly discovered evidence and the evidence which was introduced at the trial.” Id. at 916.

Jones v. State, 709 So.2d 512, 521 (Fla.), cert. denied, 523 U.S. 1040, 118 S.Ct. 1350, 140 L.Ed.2d 499 (1998). Neither are shown in this case. Appellant alleges that a testifying detective lied under oath regarding his knowledge of appellant. First, the detective’s knowledge of appellant’s family would have been known to appellant and his relatives, and appellant has not shown that it could not have been discovered by the use of due diligence. Furthermore, even if the detective had more knowledge of appellant prior to the offense than he admitted in his sworn testimony, appellant has not shown how impeaching the detective with this knowledge could have affected the outcome of the trial.

Appellant also contends that he has discovered that his attorney had a conflict of interest in representing him. However, under the facts he alleges, no conflict existed.

Affirmed.

POLEN and MAY, JJ., concur.


author: DAVIS, Judge.

text:
    Clifford THOMPSON and Terri Thompson, Appellants, v. JARED KANE COMPANY, INC., Appellee.
    Nos. 2D02-5821, 2D03-2011, 2D03-3594.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.

      Jon D. Parrish of Parrish, White & La-whon, P.A., Naples, for Appellants.
    Fitzgerald A. Frater and Benjamin C. Iseman of Treiser, Collins & Vernon, Naples, for Appellee.
   DAVIS, Judge.

In these consolidated appeals, Clifford and Terri Thompson appeal three final judgments entered by the trial court in favor of Jared Kane Company, Inc. (“JKC”). JKC sought foreclosure of a construction lien against the Thompsons’ home after disputes arose during the home’s construction. The claim of lien was filed pursuant to section 713.05, Florida Statutes (1997), which allows for the creation of a lien where the lienor is in privity with the owner. JKC’s action to foreclose the lien alleged that the Thompsons had entered into a “construction agreement” with JKC. During the litigation, the Thompsons attempted to amend their answer and counterclaim to allege that they had not contracted with JKC but had contracted with another entity, Kane Communities, Ltd. (“KCL”). The trial court refused their request to amend, found that JKC. had a valid lien against the home, and awarded JKC $178,208.05 in damages. The trial court also entered separate judgments against the Thompsons for attorney’s fees and costs. We reverse all three judgments because we conclude that the trial court’s refusal to allow the Thomp-sons to amend their answer and counterclaim was an abuse of discretion.

On July 3, 1999, the Thompsons entered into a written construction contract with KCL, a Florida limited partnership. Under the contract, KCL agreed to build a home for the Thompsons on the Thomp-sons’ homesite. However, the contract included the following provision concerning what entity would actually perform the work:

Notwithstanding the foregoing, Owner [the Thompsons] acknowledges and agrees that Builder [KCL] will delegate all of its duties hereunder to Kane Development Corp. (or such other affiliate of Builder as Builder may elect upon written notice to Owner) (“General Contractor”). Accordingly, the obligations of Builder under this Agreement may be performed by General Contractor, and Owner shall accept such performance by General Contractor on behalf of Builder. Notwithstanding the foregoing, Owner and General Contractor shall be jointly and severally liable for all of Ovwier’s obligations under this Agreement.

After entering into the contract, the Thompsons received a notice of commencement prepared by Kane Communities LP, a limited partnership, which is apparently not the same entity as KCL, given their different addresses and slightly different names. The .notice of commencement listed JKC, not KCL, as the contractor and gave the same address for JKC that appeared on the original construction contract for KCL. JKC maintains that its designation as the contractor on this notice of commencement is evidence of its claim that the Thompsons did in fact have a construction agreement with JKC.

To further confuse the matter, during the course of the construction, the Thomp-sons received written correspondence on the letterhead of Kane Custom Homes signed by “Leif E-. Metsch, President.” Kane Custom Homes was at that time an unregistered fictitious name, but it is not clear which entity (the partnership or the corporation) was doing business under this name. Subsequent to commencement of this litigation, the corporation registered the name Kane Custom Homes as its business name.

After disputes arose between the Thompsons and JKC, the Thompsons took possession of the nearly completed home without the permission of JKC and refused to pay the remainder of the contract price because of an alleged breach of the construction agreement by JKC. JKC recorded a construction lien against the property and filed an action to foreclose that lien. The complaint identified JKC as the plaintiff and alleged, in addition to the count for foreclosure, counts for breach of contract, unjust enrichment, and quantum meruit. The Thompsons timely filed an answer and counterclaim.

JKC maintains that the following allegation in its complaint, which the Thompsons admitted in their answer, demonstrates that the Thompsons agreed that they had entered into a new oral contract with JKC:

On or about July 3, 1999, Thompson executed a construction agreement with Kane Communities, Ltd., ... Thompson however, subsequently agreed that Kane would perform the work consistent with the terms and conditions of Exhibit A (the construction agreement) and in connection therewith, they executed the Notices [of] Commencement....

Throughout the remainder of the complaint, the plaintiff was simply identified as “Kane.” In addition to the Thompsons’ admission to the above paragraph, the Thompsons alleged the following in their counterclaim: “On or about July 3, 1999, the Owners and the Contractor entered into a construction agreement whereby Contractor was to construct a single family residence upon the above-referenced property.” JKC argues that the Thompsons thus admitted to having contracted directly with JKC for the construction of their home.

However, during discovery, the Thomp-sons realized that JKC was relying on the Thompsons’ admission to JKC’s allegation and the above allegation in their counterclaim to establish that the Thompsons had entered into a new contract with JKC. Therefore, thirteen months after the complaint was filed, and about two months before trial was scheduled to begin, the Thompsons moved for permission to amend their answer and counterclaim so as to name KCL, not JKC, as the party with whom they had contracted. Although the Thompsons acknowledged that they had admitted JKC’s allegation in their answer and repeated the error in their counterclaim, they asserted that their admission was due to mistake. They, accordingly, asked the trial court for permission to amend their answer to deny this allegation and to modify their counterclaim to allege the proper party with whom they had contracted, KCL.

Naming the proper party to the contract was critical to the construction lien litigation. If the contract was determined to be with KCL, then the failure to comply with certain notice requirements under .the construction lien statute, chapter 713, Florida Statutes (1997), would be fatal to JKC’s lien foreclosure action. If, however, there was a new contract between the Thomp-sons and JKC, as JKC argued and the trial court apparently found, the notice requirements would not apply and JKC would prevail. Thus, the existence of this alleged new contract would have been the key legal issue in the lien litigation.

JKC objected to the Thompsons’ request to amend their answer and counterclaim, arguing that its complaint was not vague or ambiguous, that the matter had been pending for more than a year and JKC would be prejudiced by this late amendment with trial scheduled to begin in two months, and that the amendment was futile. The trial court denied the Thomp-sons’ motion to amend their answer and counterclaim without making any factual findings, and the matter proceeded to trial.

At the nonjury trial, JKC did not present any evidence to demonstrate that a new contract had been entered because the same was deemed to have been admitted by the pleadings. Although the Thomp-sons did put on evidence to contradict the existence of the alleged new contract, the trial court found for JKC. By denying the amendments, the trial court removed from trial any consideration of the Thompsons’ argument that no new contract had been created between JKC and the Thompsons. This was an abuse of discretion.

The Florida Rules of Civil Procedure reflect a clear policy that, absent exceptional circumstances, requests for leave to amend pleadings should be granted. Craig v. E. Pacso Med. Ctr., Inc., 650 So.2d 179, 180 (Fla. 2d DCA 1995). Granting leave to amend rests within the discretion of the trial court; however, all doubts should be resolved in favor of allowing amendment. Adams v. Knabb Turpentine Co., 435 So.2d 944 (Fla. 1st DCA 1983). In fact, “refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991) (citing New River Yachting Ctr., Inc. v. Bacchiocchi, 407 So.2d 607 (Fla. 4th DCA 1981)).

First, JKC’s argument that it would be prejudiced by the amendment due to the close proximity of the trial date is without merit. In Florida Sunshine Coast Development Co. v. McClung, 352 So.2d 154 (Fla. 2d DCA 1977), this court found there was no prejudice where a party amended a mistaken admission after the plaintiff had rested its case. Granted, had the Thompsons been allowed to amend their answers and counterclaim, the theory and strategy of the case would have changed and rather than relying on the Thompsons’ procedural admission, JKC would have had to actually prove that a new contract had been entered. However, requiring a plaintiff to prove its allegations is not prejudice to the plaintiff; it merely offers due process to the defendants. If, in fact, JKC could not complete its trial preparation in the two months remaining before trial, it would have been more appropriate for the matter to have been continued than to foreclose the Thompsons’ right to litigate the issues critical to a proper disposition of the case.

Additionally, there is no suggestion in this record that the privilege to amend was abused here; this was the first request by either party to amend the pleadings.

Finally, JKC argues that the amendment would be futile. JKC insists that even if the existence of a new contract had become an issue, the fact that the Thompsons signed the notice of commencement, which listed JKC as the contractor, proved the existence of a new contract. We disagree.

Even if the parties had entered into a new contract, it could not have been legally substituted for the old contract unless there had been a novation. “A novation is a mutual agreement between the parties for the discharge of a valid existing obligation by the substitution of a new valid obligation.” Jakobi v. Kings Creek Vill. Townhouse Ass’n, 665 So.2d 325, 327 (Fla. 3d DCA 1995) (citing Ades v. Bank of Montreal, 542 So.2d 1013 (Fla. 3d DCA 1989)). To prove the substitution of the new contract for the old, four elements must be shown: (1) the existence of a previously valid contract; (2) the agreement of the parties to cancel the first contract; (3) the agreement of the parties that the second contract replace the first; and (4) the validity of the second contract. Id. Whether a novation takes place is dependent upon the intention of the parties. Pinnacle Holding, Inc. v. Biologies, Inc., 643 So.2d 642 (Fla. 2d DCA 1994). Consent of the parties to substitute the new contract for the old may be implied from the circumstances. Sans Souci v. Div. of Fla. Land Sales & Condos., 448 So.2d 1116 (Fla. 1st DCA 1984). “Yet, this is not to say that mere knowledge of the assignment by the obligee and acquiescence therein, alone, is sufficient to release the original obligor and create a novation.” Id. at 1121.

JKC’s complaint does not allege the above elements of a novation. The complaint, after alleging the existence of the original written contract, merely alleges that the parties agreed that JKC would “perform the work” in accordance with the terms of the written contract. Whether this amounted to an allegation that the parties consented to a new contract or an allegation that JKC agreed to perform the work pursuant to the delegation provision of the original contract is not clear. Similarly, it is not clear whether the Thomp-sons’ signatures on the notice of commencement evidenced an intention to enter a new contract, was mere acquiescence to KCL’s assignment of the contract to JKC, or was their acknowledgment that KCL, as the party to the contract, was delegating its responsibilities to the general contractor, JKC, as the contract specified it could do. Given the ambiguity of this allegation, we do not believe that the amendment would have been futile. If the Thompsons had been allowed, by amendment, to deny the existence of a contract with JKC, JKC would have been required to present sufficient evidence to prove that the parties intended to form a new contract. If JKC failed to present such evidence, the trial court would have had to conclude that JKC was not in privity of contract, the statutory lien requirements had not been met, the construction lien was invalid, and the foreclosure of the lien was improper.

Because the record reveals no prejudice to JKC, no abuse of the amendment privilege, and no evidence that the proposed amendment would be futile, we conclude that the trial court abused its discretion in denying the Thompsons’ motion to amend the answer and counterclaim. We thus reverse the final judgment validating the lien and awarding damages. Additionally, we reverse the final judgments awarding attorney’s fees and costs, as they were based on the final judgment foreclosing the lien. On remand, the trial court shall allow the Thompsons to amend their answer and counterclaim and the matter shall be set for trial on the amended pleadings.

Reversed and remanded.

ALTENBERND, C.J., and SILBERMAN, J., Concur.


author: STRINGER, Judge.

text:
    JRBL DEVELOPMENT, INC., Appellant, v. Donna MAIELLO; Wells Fargo Home Mortgage, Inc. f/k/a Norwest Mortgage, Inc.; Julie Maiello; Villas of Beacon Groves Homeowners’ Ass’n, Inc.; Sears, Roebuck & Co.; and General Electric Capital Corp., Appellees.
    No. 2D03-3770.
    District Court of Appeal of Florida, Second District.
    April 23, 2004.
    Timothy W. Weber of Battaglia, Ross, Dicus & Wein, P.A., St. Petersburg, for Appellant.
    No appearance for Appellees.
   STRINGER, Judge.

JRBL Development, Inc., as the purchaser at a foreclosure sale, seeks review of the trial court’s order extending Donna Maiello’s right of redemption in the property. JRBL argues that the trial court was without the authority to extend the right of redemption after the certificate of sale had been filed. We agree and reverse.

Wells Fargo sued Maiello and the other defendants to foreclose a mortgage on real property. The court subsequently rendered a final summary judgment of mortgage foreclosure against all defendants. On June 9, 2003, the clerk held a public foreclosure sale after proper notice, and JRBL was the highest bidder for cash. That same day, the clerk filed the certificate of sale.

Maiello sent a letter to the trial court objecting to the sale on June 17, 2003. The court treated the letter as a motion to set aside the sale and held a hearing on the motion. At the hearing, Maiello provided evidence that she sent the arrearage amount of $5500 to Wells Fargo on June 9, 2003, pursuant to an agreement with Wells Fargo. However, Maiello acknowledged that her agreement with Wells Fargo was that she would pay the arrearage amount prior to the foreclosure sale and that her payment was not transmitted prior to the sale.

Instead of setting aside the foreclosure sale, which the trial court had broad discretion to do, the court denied Maiello’s motion to set aside the sale and extended Maiello’s right of redemption for two weeks. Maiello subsequently exercised that right, and JRBL appealed. On appeal, JRBL correctly argues that the trial court was without the authority to extend the right of redemption past the time specified by the legislature. Maiello has not appealed the trial court’s denial of her motion to set aside the judicial sale.

Section 45.0315, Florida Statutes (2003), provides:

At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney’s fees of the creditor. Otherwise, there is no right of redemption.

Thus, the right of redemption extends until the later of the filing of a certificate of sale by the clerk or the time specified in the final judgment. The final judgment in this case specifies that the right of redemption extends until the clerk files the certificate of sale, as provided in section 45.0315. The certificate of sale was filed by the clerk on June 9, 2003. Thus, Maiello’s right of redemption expired on June 9, 2003. At that point, the only way for Maiello to have her redemption rights revested was to get the judicial sale set aside.

After the certificate of sale is filed, a party has ten days in which to file an objection to the sale. § 45.031(4), Fla. Stat. (2003). If a party files an objection to the foreclosure sale and the court determines there is a valid basis for the objection, the property is readvertised and resale begins anew. Blatchley v. Boatman’s Nat’l Mortgage, Inc., 706 So.2d 317, 318 (Fla. 5th DCA 1997); Emanuel v. Bankers Trust Co., 655 So.2d 247, 249-50 (Fla. 3d DCA 1995). Upon the readvertisement and resale, a mortgagor’s lost redemptive rights temporarily revest. Blatchley, 706 So.2d at 318; Emanuel, 655 So.2d at 250. In this case, the trial court did not find a valid basis for Maiello’s objection and declined to set aside the judicial sale. Thus, Maiello’s redemptive rights, which expired on June 9, 2003, did not revest.

Although the court declined to set aside the judicial sale in this case, it extended the equity of redemption for two weeks. However, under the plain language of section 45.0315, the trial court was without the authority to extend the right of redemption after the time for redemption had expired. Emanuel, 655 So.2d at 250. While we certainly understand the court’s desire to afford Maiello another opportunity to save her home, without a valid basis to set aside the judicial sale it was precluded from extending the right of redemption.

Reversed.

NORTHCUTT and KELLY, JJ„ Concur.

      . See Ingorvaia v. Horton, 816 So.2d 1256, 1259 (Fla. 2d DCA 2002).