author: PER CURIAM. SAWAYA, C.J.,

text:
    Roderick HAZLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3098.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2003.
    Rehearing Denied Dec. 11, 2003.

      Roderick Hazley, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s rule 3.800(a) motion to correct an illegal sentence pursuant to Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). We certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA), review granted, Franklin v. State, Nos. SC03-413, SC03-532, 854 So.2d 659 (Fla. Sept. 19, 2003) (consolidating the appeals in Green and State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), to review interdistrict conflict).

AFFIRMED; CONFLICT CERTIFIED.

SHARP, W: and PLEUS, JJ., concur.

SAWAYA, C.J., concurs and concurs specially, with opinion.

SAWAYA, C.J.,

concurring and concurring specially.

I have previously expressed the reasons why I believe Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), and its progeny are wrongly decided and why I believe the decision in Green v. State, 839 So.2d 748 (Fla. 2d DCA), review granted, Franklin v. State, Nos. SC03-413, SC03-532, 854 So.2d 659 (Fla. Sept. 19, 2003) (consolidating the appeals in Green and State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003), to review interdistrict conflict), is the correct statement of the law. Pena v. State, 853 So.2d 1120 (Fla. 5th DCA 2003) (Sawaya, C.J., concurring and concurring specially); Fillyaw v. State, 853 So.2d 590 (Fla. 5th DCA 2003) (Sawaya, C.J., concurring specially). Because Hersey is binding precedent in this district, I must concur in the majority opinion, albeit very reluctantly.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jimmy Lee ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1543.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.
    Jimmy Lee Ross, Belle Glade, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Judy Hyman, Assistant Attorney General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

This case is before the court on remand from the Supreme Court of Florida in State v. Ross, 863 So.2d 137, 2003 WL 22019506 (Fla. Aug. 28, 2003), which quashed this court’s opinion in Ross v. State, 804 So.2d 359 (Fla. 4th DCA 2001), and remanded for reconsideration in light of its decision in State v. Lemon, 825 So.2d 927 (Fla.2002).

Applying Lemon, we affirm the trial court’s order denying appellant’s rule 3.800(a) motion to correct illegal sentence, as the record shows that the statutory factors relied on by the trial court in this case for appellant’s guidelines departure could have been imposed under the 1994 guidelines. As such, appellant was not adversely affected by application of the 1995 guidelines so as to be entitled to resentencing under Heggs v. State, 759 So.2d 620 (Fla.2000). We affirm the trial court’s summary denial of appellant’s other challenges raised in his rule 3.800(a) motion without further discussion.

AFFIRMED.

FARMER, C.J, STEVENSON and TAYLOR, JJ., concur.


author: BENTON, J.

text:
    Paul D'ALTO, Trustee, Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee.
    No. 1D02-4579.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.
    Rehearing Denied Dec. 11, 2003.
    Robert D. Fingar, Esquire of Huey, Guilday, Tucker, Schwartz & Williams, P.A., Tallahassee, for Appellant.
    Teri L. Donaldson, General Counsel; Martha Nebelsiek Hertzberg, Assistant General Counsel, Tallahassee, for Appel-lee.
   BENTON, J.

A landowner appeals the final agency-order denying his application to participate in the Petroleum Cleanup Participation Program (PCPP). See § 376.3071(13), Fla. Stat. (2002). We have jurisdiction. See Art. V, § 4(b)(2), Fla. Const.; § 120.68(1), Fla. Stat. (2002). After an informal hearing, the Department of Environmental Protection (DEP) denied the application on the ground that the Early Detection Incentive Program Notification Application he had filed did not contain sufficient information to qualify as a “discharge reporting form” within the meaning of section 376.3071(13)(a)(l), Florida Statutes (2002). We reverse and remand for further proceedings.

In 1986, the Legislature enacted the State Underground Petroleum Environmental Response Act, which created the Inland Protection Trust Fund for assessment and cleanup of discharges of petroleum and petroleum products. Ch. 86-159, § 15, at 675, Laws of Fla. (codified at § 376.3071, Fla. Stat. (Supp.1986)). Designed to “enable the department to respond without delay to incidents of inland contamination related to the storage of petroleum and petroleum products in order to protect the public health, safety, and welfare and [to] minimize environmental damage,” ch. 86-159, § 15, at 676, Laws of Fla. (current version at § 376.3071(2)(a), Fla. Stat. (2002)), the Fund financed expedited cleanup of petroleum contamination sites as part of DEP’s Early Detection Incentive (EDI) Program. After Mr. D’Alto filed an Early Detection Incentive Program Notification Application on December 30, 1988, one of DEP’s inspectors went to the site but did not confirm the presence of petroleum contamination there.

Because there was not enough money to clean up all of the sites identified under the EDI and successor programs, the Legislature created the Petroleum Cleanup Participation Program, a new cost-sharing cleanup program funded in part by a pollutant excise tax on production and importation of petroleum products. See ch. 96-277, § 5, at 1149, Laws of Fla. (codified at § 376.3071(13), Fla. Stat. (Supp.1996)); Fla. S. Comm. on Ways & Means, CS/CS for SB 648 (1996) Staff Analysis 2-3 (April 29, 1996) (on file with Florida State Archives). “To encourage detection, reporting, and cleanup of contamination caused by discharges of petroleum or petroleum products,” DEP was directed to “implement a cost-sharing cleanup program to provide rehabilitation funding assistance for all property contaminated by discharges of petroleum or petroleum products occurring before January 1, 1995.” Ch. 96-277, § 5, at 1149, Laws of Fla. (codified at § 376.3071(13), Fla. Stat. (Supp.1996)).

Rather than requiring owners of previously reported sites of contamination to file new or separate applications for the PCPP, the Legislature provided that “[t]he department shall accept any discharge re porting form received prior to January 1, 1995, as an application for [participation in the PCPP], and the facility owner or operator need not reapply.” § 376.3071(13)(a)(l), Fla. Stat. (2002) (Emphasis supplied.). The question we are asked to decide on appeal is whether the EDI Program Notification Application that Mr. D’Alto filed with DEP on December 30, 1988, qualifies as a “discharge reporting form.”

This is a pure question of law, although we do not write on a blank slate. “Even if somehow problematic, ‘an agency’s interpretation of a statute it is charged with enforcing is entitled to great deference.’ Ameristeel Corp. v. Clark, 691 So.2d 473, 477 (Fla.1997).” Morris v. Div. of Ret., 696 So.2d 380, 384 (Fla. 1st DCA 1997). On the other hand, “judicial adherence to the agency’s view is not demanded when it is contrary to the statute’s plain meaning.” PAC for Equal. v. Dep’t of State, Fla. Elections Comm’n, 542 So.2d 459, 460 (Fla. 2d DCA 1989). See also § 376.315, Fla. Stat. (2002) (“Sections 376.30-376.319, being necessary for the general welfare and the public health and safety of the state and its inhabitants, shall be liberally construed to effect the purposes set forth under ss. 376.30-376.319....”).

DEP concedes that a blank Early Detection Incentive Program Notification Application form, which is practically identical to the later adopted “Discharge Reporting Form” in use when the statute was enacted, is a form of the type the statute contemplates. But DEP complains that Mr. D’Alto failed to specify the cause of the leak and the type of petroleum product discharged, and to give an estimate of the number of gallons lost: While not ignoring any question, he answered “unknown” to five of the twelve questions the form asked by selecting “unknown” from a preprinted list of response options.

The form does, however, identify what was surely the source of the contamination- — an abandoned Texaco filling station on the property — and the information on the form was enough to trigger a site visit by a departmental inspector. Even though technical problems kept the inspector from verifying that there was petroleum contamination on that visit, the contamination has since been independently verified; and the parties have stipulated that the contamination occurred prior to January 1, 1995, by which time the gasoline tanks had been excavated and removed. At oral argument, DEP could not suggest any way in which any lack of information on the form had prejudiced it. DEP is, of course, free to demand any additional information the statute and rules contemplate.

Whether Mr. D’Alto will ultimately be determined eligible to participate in the PCPP is not before us and is for DEP to determine on remand in the course of further proceedings, whether “free form” or otherwise. But we reverse DEP’s decision to deny Mr. D’Alto’s application on the ground that his Early Detection Incentive Program Notification Application form did not contain enough information to constitute a discharge reporting form within the meaning of section 376.3071(13)(a)(l), Florida Statutes (2002).

Reversed and remanded.

ALLEN and DAVIS, JJ., CONCUR.

      . Mr. D'Alto did not contest DEP's later denial of his application to participate in the EDI program, but contends here that the filing of the form "notification application” renders him eligible for consideration for participation in the PCPP.

      . The EDI program was limited to sites contaminated by leaking petroleum storage systems reported to the department between July 1, 1986, and midnight on December 31, 1988. See § 376.3071(9), Fla. Stat. (2002). The Fund has also financed subsequent cleanup programs. See, e.g., Florida Petroleum Liability and Restoration Insurance Program, ch. 89-188, § 5, at 779, Laws of Fla. (codified at § 376.3072, Fla. Stat. (1989)); Abandoned Tank Restoration Program, ch. 90-98, § 12, at 252, Laws of Fla. (current version at § 376.305(6), Fla. Stat. (2002)).


author: PLEUS, J.

text:
    Epifanio ORTIZ, Petitioner, v. STATE of Florida, Respondent.
    No. 5D03-1615.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2003.
    Rehearing Denied Dec. 12, 2003.
    Epifánio Ortiz, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. MeCravy, Assistant Attorney General, Daytona Beach, for Respondent.
   PLEUS, J.

Petitioner, Epifanio Ortiz, alleges ineffective assistance of appellate counsel. See generally Fla. R.App. P. 9.141(c). This proceeding was abated on June 25, 2003, because of a pending post-conviction motion in the circuit court that was filed in January, 2003. A recent status report showed that the post-conviction motion remains pending in the circuit court, and there is no indication as to when the court will likely issue a final ruling. We therefore lift the order of abatement and proceed to consider the petition on the merits.

Ortiz alleges that appellate counsel was ineffective for not having the voir dire jury selection proceedings transcribed for appellate review. Ortiz, however, makes only the conclusory statement that several of the jurors were biased and should have been removed from the panel. Ortiz does not specifically explain how these jurors evinced their bias. To show ineffective assistance of appellate counsel, a petitioner must show a specific error or omission that-falls outside the range of acceptable performance, and demonstrate that the deficiency compromised the appellate process so as to undermine confidence in the correctness of the result. See Lawrence v. State, 831 So.2d 121 (Fla.2002). Ortiz has not met this burden by relying on an incomplete record and conclusory allegations. As Ortiz has failed to show prejudice, the petition is denied.

PETITION DENIED.

THOMPSON and ORFINGER, JJ„ concur.


text:
    Ernest L. BASS, Appellant, v. SERVPRO INDUSTRIES, INC., Appellee.
    No. 1D02-977.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2003.
    Rehearing Denied Dec. 16, 2003.
   PER CURIAM.

Appellant Ernest Bass instituted a civil action against appellee Servpro Industries, Incorporated, asserting various claims arising from a franchise relationship between the two parties. The trial court granted final judgment in favor of Servpro after ruling for it on various motions to dismiss and motions for summary judgment. On appeal, Bass challenges many of these rulings. We affirm without further comment except in regard to the following claims.

First, the trial court erred in dismissing the claims in counts IV, VIII, and IX of the second amended complaint and counts III and V of the third amended complaint because Bass sufficiently alleged facts that, if true, would entitle him to relief. See W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 800 (Fla. 1st DCA 1999). The trial court also erred in dismissing count I, paragraph 13Q of the fourth amended complaint because “a stay, not a dismissal or abatement, was the proper remedy in this case.” Corcoran v. Fed Land Bank of Columbia, 478 So.2d 1161, 1163 (Fla. 1st DCA 1985). We reverse the trial court’s orders as to these claims.

Second, the trial court erred in granting summary judgment on the claims in count I, paragraphs 13B, 13L, 17A(ii), 17D, 17E, 17F, and 17G of the third amended complaint because Servpro did not meet its burden of presenting competent evidence that proved the nonexistance of any genuine issue of material fact and that it was entitled to judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla.2000). Accordingly, we reverse the trial court’s orders as to these claims.

AFFIRMED in part, REVERSED IN PART, and REMANDED.

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


author: SHARP, W., J.

text:
    Jay Vernon MOSS, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1566.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2003.
    Rehearing Denied Dec. 19, 2003.

      Jay Vernon Moss, Lowell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Moss appeals from the summary denial of his motion filed pursuant to Florida Rule of Procedure 3.850. He seeks to challenge his convictions and sentences in 1985 for kidnapping, two counts of armed robbery, and first degree murder.

In this motion, Moss alleges a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and/or a newly discovered evidence claim, based on the state’s failure to disclose reports of an internal FBI investigation and an investigation of the Office of Inspector General (OIG) of the United States Department of Justice, which found that the FBI Crime Laboratory in Washington D.C. used shoddy practices, and that some of its agents had testified falsely, committed errors in testing and issued flawed scientific reports. Three FBI agents from the FBI Crime Laboratory, Michael Malone, William Mclnnis and Robert Hallet, who worked at the Laboratory at the time involved in the investigation, testified for the state in Moss’ case. We conclude Moss is entitled to either an evidentiary hearing or a more comprehensive consideration of the entire record by the trial court.

The OIG report was published on April 15, 1997. It was the result of an eighteen-month investigation into allegations of wrongdoings and improprieties within three units of the FBI Laboratory: the Explosives Unit, the Materials Unit and the Chemistry-Toxicology Unit. The report was highly critical of the laboratory and the agents working there. The FBI also conducted an independent investigation with similar conclusions. See Trepal v. State, 846 So.2d 405 (Fla.2003); Davis v. State, 736 So.2d 1156 (Fla.1999).

Moss alleged that the OIG and FBI reports were disclosed to the State Attorney who prosecuted his case on December 22, 1997, but he directed that the reports not be shared with Moss. Moss claims he only discovered the existence of the reports when his case was referenced in articles appearing in the St. Petersburg Times, on March 4 and 5 of 2001.

Moss argues that all of the testimony given at his trial by the three FBI agents is tainted, that confidence in the verdict is undermined by the investigation and report, and that he is entitled to a new trial. He also alleges that the remaining evidence against him was impeached or questionable, and that there is a reasonable probability that the outcome of the trial would have been different had he or counsel known of the reports and the facts underlying them.

The trial court, in considering this motion, correctly stated that in order to determine whether a Brady claim warrants relief, a defendant must establish: 1) that the Government possessed evidence favorable to the defendant (including impeachment evidence); 2) that the defendant does not possess the evidence nor could he obtain it himself with reasonable diligence; 3) that the prosecution suppressed favorable evidence; and 4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different. See Jones v. State, 709 So.2d 512 (Fla.1998).

The court did not directly address the first three prongs of the test. Rather, it concluded that Moss was not entitled to relief because he had not shown that there was a reasonable probability that the outcome of the proceedings would have been different had the investigations of the FBI Crime Laboratory and agents been disclosed. In so concluding, the trial court reviewed the trial testimony and attached various parts of it favorable to the state only, and found it was ample to support Moss’ convictions, exclusive of the testimony of the FBI agents.

Rule 3.850 expressly allows an untimely motion to be filed challenging a criminal conviction, based on newly discovered evidence. See Owen v. Crosby, 854 So.2d 182 (Fla.2003). As explained in Wright v. State, 857 So.2d 861 (Fla.2003), newly discovered evidence is evidence that existed at the time of the trial but was unknown by the trial court, by the party or by counsel at that time, and it must further appear that neither the defendant nor defense counsel could have known of the evidence by the exercise of due diligence. If that is established, as it clearly is in this case, then the additional test is whether or not the newly discovered evidence is of such a nature as to probably produce an acquittal on retrial. Id.

Whether the FBI investigation and the OIG report are deemed Brady material or newly discovered evidence, they are sufficient to require the lower court to determine whether the impeachment of the three federal agents at trial would have probably produced an acquittal. This determination normally requires an evidentiary hearing unless the motion, file and records conclusively show the defendant is entitled to no relief. McLin v. State, 827 So.2d 948 (Fla.2002). If a motion is denied without an evidentiary hearing, a defendant’s factual allegations must be accepted as true to the extent they are not refuted by the record. McLin; Floyd v. State, 808 So.2d 175 (Fla.2002). At the evidentiary hearing in such a case, the trial judge must evaluate the weight of the newly discovered evidence and the evidence which was introduced at trial, so that the appellate court can fully evaluate the quality of the newly discovered evidence in the context of the entire case. See Sireci v. State, 773 So.2d 34 (Fla.2000); Jones v. State, 709 So.2d 512 (Fla.1998).

In this case, the trial court did not summarize the evidence presented at trial which was favorable to the defendant, or the allegations impeaching the state’s evidence as set forth in Moss’ motion. Those allegations must be accepted as true unless refuted by the record. They are sufficient to require an evidentiary hearing, or further consideration of the whole of the record.

For example, Moss alleged that Agent Malone, who testified at trial, was tied to improprieties in the FBI Crime Laboratory and cited in both reports as knowingly giving false or misleading testimony, preparing flawed reports, and destroying or misplacing exculpatory evidence. Malone presented evidence in this case that white cotton fibers found on the knife in Moss’ truck (the alleged murder weapon) matched the fibers in the victim’s blouse. But the material examined had been destroyed or misplaced, preventing an independent examination. Malone also testified he found a hair in Moss’ truck consistent with the victim’s hair, but he failed to isolate the hair, circumventing any independent examination.

The second FBI agent who testified at the trial, Mclnnes, was not specifically identified as being under investigation, but he worked in the FBI Laboratory during the time period covered by the investigation. He testified concerning blood found on Moss’ knife, truck, clothes and hand. Moss’ blood, type was O, the co-defendant’s was B, and the victim’s was A. Mclnnes was unable to type the blood on Moss’ hand or the knife. He found type A blood on Moss’ clothing and a truck seat belt, but testified it was too small to analyze further and the samples were either destroyed or too small to retest.

FBI Agent Hallet testified concerning the tire tread of Moss’ truck matching the tire tracks found at the scene where the victim’s body was found. He also worked at the FBI Laboratory during the investigated time period. He admitted the clarity of the castings was minimal. Another FBI agent tested soil samples from the crime scene, and testified that the residue in the tire cast appeared to be sandy soil, not like the vegetation found where the victim’s body and tire tracks were located.

In his motion, Moss also casts doubt on other evidence presented at the trial stemming from the fact that no eyewitness was able to identify him as participating in either of the two robberies, or the kidnapping and murder of the victim from one of the robbery scenes. There were discrepancies between the time when the store was robbed (9:26 p.m.), the location of Moss and the co-defendant at a pub established by persons at the pub (10:00 p.m. to 11:00 p.m.), and the medical examiner’s estimate of the victim’s time of death (12:00 p.m. to 2:00 a.m.). There were also questions concerning why the victim’s wedding rings were not found in Moss’ truck when it was first searched and how they suddenly later appeared there, and whether or not the victim wore rings on her finger.

Moss fingerprints were not found on the bait bill taken from the store where the kidnapping occurred, and it was not found in his possession or his co-defendant’s possession upon their arrest. Yet it was inexplicably found later at the jail. Fingerprints also failed to link Moss and his co-defendant to other crime evidence; such as a wallet (the product of the first robbery); the cash register at the store, the knife and sheath, two cigarette filters found near the victim’s body, and the victim’s fingerprints were not found in or on Moss’ truck allegedly used in the kidnapping.

In sum, it appears that the trial court failed to consider the totality of the evidence at trial in determining that the outcome would not have been different if the newly discovered evidence had been available at trial. Indeed, it appears only to have weighed the evidence favorable to the state. Based on the allegations in Moss’ motion and the OIG and FBI investigations, the impeachment evidence could have been used to challenge the government witnesses’ testimony in this case and that testimony appears to have been the strongest evidence linking Moss and his truck to these crimes. We conclude that this merits a review by the trial court of the new evidence in the context of all the evidence at trial. On remand, the trial court should hold an evidentiary hearing, or if possible, reconsider all of the evidence presented at trial and either deny the motion in an order evaluating the weight of both the newly discovered evidence and all of the evidence presented at trial or grant the motion.

REVERSED and REMANDED.

ORFINGER and MONACO, JJ., concur.

      . His convictions and sentences were affirmed on appeal, but the three year minimum mandatory terms were reversed. Moss v. State, 495 So.2d 234 (Fla. 5th DCA 1986), rev. dismissed, 503 So.2d 327 (Fla.1987). He also filed numerous post-conviction motions. See Moss v. State, 761 So.2d 1128 (Fla. 5th DCA 2000) (3.800(a)); Moss v. State, 744 So.2d 1012 (Fla. 5th DCA 1999) (3.800(a)); Moss v. State, 596 So.2d 1076 (Fla. 5th DCA 1992) (3.850 summary); Moss v. State, 5D92-877 (habeas corpus); Moss v. State, 5D90-2471 (habeas corpus).

      . See Buenoano v. State, 708 So.2d 941 (Fla.1998).


text:
    Linda M. SVADBIK, Appellant, v. John K. SVADBIK, and Anton Svadbik, Appellees.
    No. 3D02-3114.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Silverio & Hall, and Brian M. Silverio, Naples, for appellant.
    Ricardo R. Corona, for appellees.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See § 61.16, Fla. Stat. (2003); Sierra v. Sierra, 505 So.2d 432 (Fla.1987).


author: COPE, J.

text:
    REWARDS HOTEL MANAGEMENT COMPANY, LLC., Appellant, v. ELITE GENERAL CONTRACTORS, INC., and Yizi Weingarten, National Hotel Renovation Corp., d/b/a NHRC and Ken Shriber, Appellees.
    No. 3D03-1523.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.

      Campbell & Malafy, P.A., and John Campbell, for appellant.
    Leiby, Taylor, Stearns, Linkhorst and Roberts, P.A., and Larry Leiby, Plantation, for appellees.
    Before COPE, GODERICH and SHEVIN, JJ.
   COPE, J.

Rewards Hotel Management, LLC appeals an order enforcing an arbitration clause. We affirm.

I.

Rewards Hotel Management operates a Ramada Inn in Marathon, Florida. Rewards contracted with appellee National Hotel Renovation Corp. (NHRC) to remodel the hotel. The contract contained an arbitration clause.

Work began in July 2002 and disputes arose by the end of the year. In February 2003, Rewards Hotel Management filed suit against NHRC and three other defendants. NHRC timely moved to compel arbitration and the other three defendants joined the motion.

Rewards Hotel Management moved to strike the demand, arguing that the eon-struction contract was unenforceable. Rewards Hotel Management contended that NHRC had violated section 489.128, Florida Statutes (2002), which provides:

489.128. Contracts performed by unlicensed contractors unenforceable
As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity.

§ 489.128, Fla. Stat. (2002).

Rewards Hotel Management argued that NHRC did not hold a Florida general contractors license at the time it signed the construction contract, nor during construction. Rewards argued that the issue of whether a party has violated section 489.128 is an issue for the court, not for the arbitrators. Rewards maintained that the trial court must conduct a hearing regarding the claimed violation of section 489.128 and, should the violation be shown to exist, the contract and its arbitration clause would fail.

NHRC contended that the alleged violation of section 489.128 was an issue to be decided by the arbitrators, not an issue for the court. Relying on John B. Goodman Limited P’ship v. THF Construction, Inc., 321 F.3d 1094 (11th Cir.2003), the trial court granted the motion to compel arbitration. Rewards Hotel Management has appealed.

II.

The first issue is whether the Federal Arbitration Act applies here, or the Florida Arbitration Code. NHRC argues that the Federal Act applies because the contract involves commerce within the meaning of the Federal Act and the cases construing it. Rewards Hotel Management argues that the Florida Act applies because the contract contains a choice of law provision specifying Florida law. NHRC is correct.

The Federal Arbitration Act provides for the enforceability of “[a] written provision in .... a contract evidencing a transaction involving commerce.... ” 9 U.S.C. § 2. The federal language “signals an intent to exercise Congress’ commerce power to the full.” Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 277, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995). Thus, the Federal Act applies if the transaction involves “interstate commerce, even if the parties did not contemplate an interstate commerce connection.” Id. at 281, 115 S.Ct. 834; see also Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 123 S.Ct. 2037, 156 L.Ed.2d 46 (2003); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).

In this case a portion of the transaction included the importation of furniture from Hong Kong, which necessarily means shipment of goods in foreign and interstate commerce. It follows that this contract fits the federal definition as a “transaction involving commerce.... ” 9 U.S.C. § 2. Thus, the Federal Arbitration Act applies, id., and controls to the extent of any inconsistency with Florida law. See Trojan Horse, Inc. v. Lakeside Games, 526 So.2d 194 (Fla. 3d DCA 1988).

Turning now to the substantive analysis, we entirely agree with Judge Jones that the decision in John B. Goodman Limited Partnership v. THF Construction, Inc., 321 F.3d 1094 (11th Cir. 2003), is squarely on point. The Eleventh Circuit held that “under the Federal Arbitration Act (FAA) and the Florida Arbitration Code, once the [trial] court is satisfied that the parties actually agreed to arbitrate the dispute, it is for the arbitration panel, not the [trial] court, to determine whether the underlying contracts in general are enforceable under § 489.128.” See id. at 1095-98. We agree with the Goodman court on the analysis of the Federal Arbitration Act. See also Buckeye Check Cashing, Inc. v. Cardegna, 824 So.2d 228 (Fla. 4th DCA 2002), review granted, 844 So.2d 645 (Fla.2003). We are inclined to agree with Goodman regarding the Florida Arbitration Code as well, but need not reach that issue now, because the analysis under the Federal Act is dispositive.

Affirmed.

      . Defendant Kenneth Shriberg is president of NHRC; defendant Elite General Contractors, Inc. is a general contractor affiliated with NHRC; and defendant Yizi Weingarten is a principal of Elite.

      . The 2002 version of the statute was in effect when the parties executed the contract. In 2003, during the pendency of this appeal, the legislature amended section 489.128, with the amendment to be effective retroactively. Ch.2003-257, §§ 1,8, Laws of Fla. The parties have not addressed this amendment. So far as we can determine, the amendment does not have any impact on the arbitration issue now before us.

      . NHRC denied that there was any violation which would render the contract unenforceable under section 489.128. NHRC stated that the permit was pulled, and all work was performed, by properly licensed persons.

      . As to the Florida Arbitration Code, compare Goodman, 321 F.3d at 1097-98, Ronbeck Constr. Co., Inc. v. Savanna Club Corp., 592 So.2d 344 (Fla. 4th DCA 1992), and Post Tensioned Eng'g Corp. v. Fairways Plaza Assocs., 412 So.2d 871 (Fla. 3d DCA 1982), with Micronair, Inc. v. City of Winter Haven, 800 So.2d 622 (Fla. 2d DCA 2001) (apparently construing Florida Arbitration Code), review denied, 821 So.2d 293 (Fla.2002), Riverwalk Apartments, L.P. v. RTM General Contractors, Inc., 779 So.2d 537 (Fla. 2d DCA 2000) (apparently construing Florida Arbitration Code), and Island House Developers, Inc. v. AMAC Constr., Inc., 686 So.2d 1377 (Fla. 1st DCA 1997).


author: SCHWARTZ, Chief Judge,

text:
    Louis Steven ROBLES, Appellant, v. Ruth Ann ROBLES, Appellee.
    No. 3D03-848.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.

      Greenberg Traurig, P.A., and Elliot H. Scherker, Alan T. Diraond and Elliot B. Kula, Miami, for appellant.
    Leinoff & Lemos; Cynthia L. Greene, Miami, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   SCHWARTZ, Chief Judge,

The former husband appeals from an order impressing an equitable lien on his homestead for past due alimony payments owed his former wife. We reverse.

In a final judgment of dissolution which incorporated a financial settlement agreement between the parties, their tangible assets, worth several million dollars, were equitably distributed between the parties, with the husband awarded the marital home, where he continued to reside after the dissolution. Among other things, the husband was also ordered to make large monthly rehabilitative alimony payments— to the melody of $50,000 a month for eighty-five months. Although he did so for a short time thereafter, he soon became financially unable to continue because of the demise of his previously lucrative law practice. In this post-judgment proceeding, the former wife sought and obtained an “equitable lien” on the home for the unpaid amounts. This was error.

It is a constitutional given that homestead property may not ordinarily be subjected to the imposition of a lien of this kind. See Article X, Section 4, Florida Constitution (“There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a hen thereon, ... the following property owned by a natural person: (1) a homestead .... ”). This is true even as to unpaid alimony unless, as in such cases as Radin v. Radin, 593 So.2d 1231 (Fla. 3d DCA 1992), review denied, 605 So.2d 1265 (Fla.1992) and Gepfrich v. Gepfrich, 582 So.2d 743 (Fla. 4th DCA 1991), the payor is shown to have been guilty of affirmative fraudulent or reprehensible conduct which improperly interfered with the spouse’s ability to recover the award. See Pegram v. Pegram, 821 So.2d 1264 (Fla. 2d DCA 2002); Dyer v. Beverly & Tittle, P.A., 777 So.2d 1055 (Fla. 4th DCA 2001), review denied, 796 So.2d 536 (Fla.2001); Partridge v. Partridge, 790 So.2d 1280 (Fla. 4th DCA 2001); Smith v. Smith, 761 So.2d 370 (Fla. 5th DCA 2000). See also Callava v. Feinberg, — So.2d -, 2003 WL 22336421 (Fla. 3d DCA Case no. 3D02-1206, opinion filed, Oct. 15, 2003)[28 FLW D2361](no lien on wife’s homestead for attorney’s fees owed her own lawyer).

No such showing was made in this case. Robles simply lost his previous financial ability to make the agreed payments from his non-exempt resources. While he apparently transferred property to a personal trust entity in Colorado, the nominal transfer had no effect upon the wife’s ability to recover those assets; indeed, as we are told, she actually did so, reducing the outstanding alimony obligation to that extent. Thus, Robles committed no act which adversely affected whatever rights to recover her alimony payments his ex-wife possessed at the time of the dissolution. Compare Radin, 593 So.2d at 1231 (equitable lien affirmed where husband engaged in pattern of egregious conduct, had been found in contempt multiple times and would only pay alimony when subject to incarceration) and Gepfrich, 582 So.2d at 743 (court ordered sale of husband’s homestead property permitted where husband purchased home subsequent to dissolution, lived with and supported girlfriend). Hence, the order on review cannot be permitted to stand. See Pegram, 821 So.2d at 1264 (equitable lien for past due alimony and attorney’s fees not available as to real property owned by former husband); Dyer, 111 So.2d at 1055 (no forced sale of homestead property without evidence of fraudulent or egregious conduct); Partridge, 790 So.2d at 1280 (failure to demonstrate egregious, fraudulent, or reprehensible conduct precludes foreclosure of equitable lien); Smith, 761 So.2d at 370 (sale of homestead to enforce equitable hen error absent evidence that former husband’s conduct was egregious, fraudulent, or reprehensible).

For these reasons, the order under review is reversed with directions to vacate the lien.

Reversed.

      . The amounts involved seem to call for a more serious word than "tune.”

      . See The Florida Bar v. Robles, 846 So.2d 1150 (Fla.2003)(table).

      . As Article X, Section 4, specifically provides, it applies alike to invalidate both a "forced sale," and, as here, the simple imposition of a “lien” on homestead property. See Demura v. County of Volusia, 618 So.2d 754 (Fla. 5th DCA 1993)(lien against homestead invalid whether or not forced sale is involved); Cannon v. Cannon, 254 B.R. 773 (Bankr.S.D.Fla.2000)(same); Prieto v. Eastern Nat. Bank, 719 So.2d 1264 (Fla. 3d DCA 1998)(same); Miskin v. City of Fort Lauderdale, 661 So.2d 415 (Fla. 4th DCA 1995)(same).


text:
    Mohamad IBRAHIM and Outpatient Care Center, Inc., Appellants, v. PREMIER ADVISORY SERVICES, INC. and Jonathan Huttner, Appellees.
    No. 3D03-732.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Berman Rennert Vogel and Mandler and Neil Berman, Miami, for appellants.
    Hall, David and Joseph and Christopher M. David, Miami, and Justin Arnold, for appellees.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

The defendants, Mohamad Ibrahim and Outpatient Care Center, Inc., appeal from an adverse final summary judgment. The defendants’ contentions wholly lack merit. First, the plaintiffs’ motion for summary judgment and Huttner’s supporting affidavit were properly served in accordance with the trial court’s order and Florida Rule of Civil Procedure 1.080(b), (f). Next, the body of the motion for summary judgment requested the relief awarded. Impact Computers & Elecs. v. Bank of Am., 852 So.2d 946 (Fla. 3d DCA 2003). Further, the trial court properly struck Ibrahim’s affidavit in opposition to the motion for summary judgment where it was not timely served and filed in bad faith. Fla. R. Civ. P. 1.510(c), (g). Lastly, the defendants failed to raise Ibrahim’s earlier filed affidavit to the trial court. See Florida High School Activities, Inc. v. Latimer, 750 So.2d 762 (Fla. 3d DCA 2000). Because there were no genuine issues of material fact remaining, the trial court properly entered final summary judgment in favor of the plaintiffs.

Affirmed.


text:
    Roy Lee SINGLETON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-436.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for Appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Roy Lee Singleton appeals an order revoking his probation. We affirm.

At the outset of the probation revocation hearing, the court was advised that there had been a plea offer made, which the defendant had rejected. The trial court placed the defendant under oath and engaged in a colloquy to verify (a) that the defendant understood the maximum penalties in the two cases in which the plea offer had been made, (b) the terms of the State’s plea offer, (c) that the defendant understood the offer, and (d) that the defendant had decided to reject it.

At the conclusion of the hearing the court found that the defendant had violated his probation and sentenced him to a twenty-year term with a ten-year mandatory minimum sentence as a habitual violent felony offender (“HVFO”). This sentence was in excess of the State’s offer, which had been ten years as an HVFO in the probation revocation case plus another pending substantive case.

We conclude that the colloquy with the defendant was squarely within the bounds established by this court’s decision in Snow v. Crosby, 851 So.2d 222 (Fla. 3d DCA 2008). Accordingly, we reject the defendant’s claim of vindictive sentencing.

Affirmed.

       This is the second appearance of the appeal in this court. The initial appeal from the revocation order raised other grounds and was affirmed but remanded for correction of an error in the written order of revocation of probation. Singleton v. State, 820 So.2d 404, 405 (Fla. 3d DCA 2002). Subsequently defendant-appellant Singleton filed a petition alleging ineffective assistance of appellate counsel for failure to raise the issue of vindictive sentencing. This court granted a belated appeal on that issue, see Fla. R.App. P. 9.141(c), which has been ably briefed by appellate counsel.


text:
    Vanessa LLOSA f/k/a Barbara Llosa, Appellant, v. CITIBANK MORTGAGE CORP., and Harbor Group Management Corp., Appellees.
    No. 3D03-71.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Vanessa Llosa, in proper person.
    Charles M.P. George, Clearwater, and Clinton D. Flagg, Coral Gables, for Appel-lees.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

Vanessa Llosa appeals an order dismissing her complaint with prejudice. As the facts of the case are similar to Long v. Swofford, 805 So.2d 882 (Fla. 3d DCA 2001); see also O'Vahey v. Miller, 644 So.2d 550 (Fla. 3d DCA 1994), we conclude that the trial court acted within its discretion in dismissing the case.

Affirmed.


text:
    S.C., a juvenile, Petitioner, v. The STATE of Florida, and George Laflam, Superintendent Miami-Dade Juvenile Detention Center, Respondents.
    No. 3D03-3018.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Bennett H. Brummer, Public Defender and Carlos Gonzalez, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General and Steven R. Berger, Assistant Attorney General, for respondents.
    Before SCHWARTZ, C.J., and LEVY and SHEVIN, JJ.
   PER CURIAM.

In accordance with the state’s agreement and our examination of the record, we conclude that the November 14, 2003 order finding the juvenile petitioner guilty of indirect contempt for violating curfew and sentencing him to two days of secure detention is invalid as violative of Florida Rule of Juvenile Procedure 8.285(b)(6), with respect to the contempt finding, and 8.285(b)(7), with respect to the sentence. Hence, the application for Ha-beas Corpus is granted and the petitioner is released from custody.

Habeas corpus granted.

      . By order of this court, S.C. was released from custody later the same day.


text:
    Habby Pierre KHAWLY, Appellant, v. MIAMI-DADE POLICE DEPT., Appellee.
    No. 3D03-959.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Ronald S. Lowy, Miami Beach, for appellant.
    Roberto E. Fiallo and Robert Knabe, for appellee.
    Before COPE, LEVY, and SHEVIN, JJ.
   PER CURIAM.

The finding of the trial court that Petitioner, Habby Pierre Khawly, lacked standing, was made without a full, eviden-tiary hearing on the issue of standing. See Office of the State Attorney v. Jimenez, 845 So.2d 914 (Fla. 3d DCA 2003)(“The inquiry on standing is simply to determine whether the claimant has shown an ownership interest such that he is entitled to be heard in the forfeiture proceeding.”); Vasquez v. State, 777 So.2d 1200, 1202 (Fla. 3d DCA 2001)(A .claimant should not have to prove her or his case to establish standing to contest a forfeiture.). Accordingly, we reverse the matter and remand to the trial court for further proceedings.

Reversed and remanded.


text:
    OVERNIGHT SUCCESS CONSTRUCTION, INC., Appellant, v. The FIRST NATIONAL BANK OF HOMESTEAD, etc., Appellee.
    No. 3D03-1177.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2003.
    Pepe & Nemire, and Thomas F. Pepe, Coral Gables, for appellant.
    Weller & Losner, and Thomas R. Weller, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   PER CURIAM.

The trial court’s finding that the plaintiff did not willfully exaggerate its claim of Men was supported by competent, substantial evidence. Delta Painting, Inc. v. Baumann, 710 So.2d 663, 664 (Fla. 3d DCA 1998). Therefore, we affirm the order under review.

Affirmed.


author: GRIFFIN, J.

text:
    Leon M. O'QUINN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-406.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Leon M. O’Quinn, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Appellant, Leon M. O’Quinn [“O’Quinn”], appeals the trial court’s order denying his 3.850 motion. O’Quinn raises two primary issues. First, O’Quinn argues that the trial court erred in failing to appoint counsel to assist him in his motion. Second, O’Quinn contends that the trial court erred in finding that counsel was not ineffective. As to the former, we find no error. As to the latter, we conclude that trial counsel did render ineffective assistance in advising O’Quinn concerning his plea to felony driving while license suspended.

On September 22, 2000, the State charged O’Quinn by information with one count of driving under the influence resulting in serious bodily injury to another, section 316.193(1) & (3)(a), (b) & (c)2, Florida Statutes (2000) (count I), and one count of felony driving while license suspended, revoked, or canceled, section 322.34(2)(c), Florida Statutes (2000) (count II). O’Quinn plead nolo contendere to the charges in September 2001. On November 6, 2001, the trial court sentenced him to 82.2-months’ imprisonment (count II) and to five-years’ probation (count I), with the sentences to be served consecutive to each other.

O’Quinn filed a timely Florida Rule of Criminal Procedure 3.850 motion on July 12, 2002, alleging ineffective assistance of trial counsel. We find merit in only one claim of ineffective assistance of counsel. O’Quinn argued that his trial counsel failed to investigate and prepare a proper defense against count II, driving while license suspended/revoked, because his counsel faded to discover and failed to advise him that he did not qualify for a felony charge on this count. Relying on Huss v. State, 771 So.2d 591 (Fla. 1st DCA 2000), O’Quinn maintained that the State improperly used his prior convictions to reclassify his sentence as a third-degree felony. O’Quinn claimed that his convictions had all occurred prior to 1997 when the legislature amended section 322.34 to include a “knowing” element. Under Huss, pre-1997 convictions cannot be used to reclassify the charge to a third-degree felony, and he was prejudiced by receiving a sentence for a third-degree felony.

The trial court entered an interim order on O’Quinn’s motion granting the Rule 3.850 motion in part and denying in part. Regarding Issue I, the trial court found it did have jurisdiction over the driving while license suspended or revoked charge because circuit courts have jurisdiction over all misdemeanors arising out of the same circumstances as the felony on which it was charged. The trial court set the remainder of this issue for an evidentiary hearing to determine the voluntariness of his plea.

O’Quinn’s trial counsel testified that O’Quinn was arraigned in December of 2000. Trial counsel admitted that he had not informed O’Quinn of the Huss decision, which was issued on November 9, 2000, because he was not aware of it. Trial counsel stated that he had looked up O’Quinn’s criminal history record and his driving record and advised O’Quinn that, based on these records, O’Quinn was going to do prison time. Moreover, trial counsel testified that there was very damaging evidence in the case, including the testimony of April Morse who had been a passenger in O’Quinn’s car. Morse would have testified that O’Quinn switched places with her and tried to get her to say she was driving because he did not have a license. Also, O’Quinn’s blood sample indicated that he had a variety of drugs in his system, including cocaine.

After the hearing, the trial court found as fact that O’Quinn was aware that his license was suspended at the time of the accident in 2000, and denied the motion. The court did not address the prior convictions issue, nor does the State on appeal. O’Quinn is correct that, under Huss, the State could not have utilized his prior convictions for driving while his license was revoked to reclassify the charge as a third-degree felony. In 1997, the legislature amended section 322.34(2)(c) to require a “knowing” element. In Huss v. State, the court concluded that convictions prior to 1997 could not be used to reclassify the charge to a third-degree felony. He contends he would not have entered a plea had he known this charge was a misdemeanor, not a felony. An examination of O’Quinn’s driving record establishes that his prior convictions did occur prior to 1997.

Although this Court has never explicitly adopted the holding of Huss, Huss was the controlling law in Florida when O’Quinn pled and was sentenced. See e.g., State v. Craycraft, 817 So.2d 864, 864-65 (Fla. 1st DCA 2002). Since O’Quinn pled guilty to a felony when the offense could not be classified as a felony, we are bound to conclude that trial counsel was ineffective in failing to be aware of Huss and to counsel his client about it. O’Quinn seeks to be allowed to withdraw his plea because of this error. He is entitled to do so.

AFFIRMED in part, REVERSED in part, and REMANDED.

SHARP, W., and PETERSON, JJ., concur.

      . There are arguments against Huss. Huss arguably contravenes legislative intent because it essentially grants defendants amnesty for convictions obtained under the pre-amendment version of 322.34(1). Thus, despite having prior convictions which are valid, and despite the express legislative intent of more severely punishing repeat offenders, a defendant with a prior conviction under the pre-amendment statute will only be subject to misdemeanor charges. Thompson v. State, 808 So.2d 284 (Fla. 5th DCA 2002), review granted, 826 so.2d 994 (Fla.2002).


author: GRIFFIN, J. ORFINGER, J.,

text:
    Sandra LEMAY, etc., Appellant, v. Michael KONDRK and Taylor Douglas, etc., Appellee.
    No. 5D02-1468.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Michael W. Woodward of Keyser & Woodward, P. A., Interlachen, for Appellant.
    William R. Waters, Jr. and Gayle Smith Swedmark, and John W. Jolly, Jr., of Jolly, Peterson & Waters, P. A., Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

GRIFFIN, J.

We grant appellee’s motion for rehearing, withdraw our prior opinion and issue the following opinion in its place:

Sandra Lemay [“Lemay”], as Personal Representative of the Estate of Roy Ault, appeals the dismissal of her wrongful death claim against Michael Kondrk [“Kondrk”], a Putnam County Deputy Sheriff. We reverse.

In deciding whether the complaint states a cause of action, the trial court must confine its review to the four corners of the complaint, draw all inferences in favor of the pleader and accept as true all well-pleaded allegations. We must review such orders de novo. On review, we conclude that the complaint contains sufficient allegations to state a claim that meets the threshold for personal liability set forth in section 768.28(9)(a), Florida Statutes (1998).

REVERSED and REMANDED.

SHARP, W., J., concurs.

ORFINGER, J., dissents, with opinion.

ORFINGER, J.,

dissents.

I respectfully dissent. I believe the trial court correctly concluded that the amended complaint failed to allege any act on Kondrk’s part that could be found to have been in bad faith or with malicious purpose or done in a manner exhibiting wanton and willful disregard of human rights, safety or property, as is required to avoid the qualified immunity afforded Kondrk pursuant to section 768.28(9)(a), Florida Statutes (1998). Lemay’s amended complaint alleged that at about midnight on November 1, 1997, Ault drove to a Fast Track convenience store in rural Putnam County, purchased two twelve packs of beer and drove away. At approximately 3:00 a.m., Ault returned to the convenience store on foot, because his car had broken down. Ault, who was obviously intoxicated, purchased food and another beer, and then went to the store’s outside pay phone to call for a ride.

Shortly thereafter, the store clerk called 911, seeking assistance. As Ault was trying to call family members for assistance, Deputy Kondrk arrived. Because it was dark, the exterior of the convenience store and its parking lot were lit. Ault was staggering, was obviously intoxicated, and had urinated in his pants, but had broken no laws. The store clerk had not asked Ault to leave the premises or requested that Kondrk order Ault to leave. Nonetheless, Kondrk ordered Ault and his companion to leave the parking lot. Ault, who was wearing dark clothing, complied, and left the parking lot, walking down Highway 20, a two-lane unlit highway with no sidewalks or paved shoulders. A short time later, Ault returned to the Fast Track parking lot. Kondrk again ordered him to leave, and Ault again walked away down the dark highway. About forty minutes later, Ault was struck and fatally injured by a pickup truck, as he was walking in the traffic lane of Highway 20. Postmortem tests showed that Ault had a blood alcohol level of 0.158.

Lemay instituted a wrongful death complaint against Kondrk individually. The complaint alleged that Kondrk’s actions demonstrated a wanton and willful disregard for Ault’s rights and safety. Lemay alleged that Kondrk owed a duty not to place Ault in greater peril than he found him, not to create a substantial zone of risk, and not to subject Ault to an unreasonable risk of harm by creating and placing Ault in a dangerous and life threatening situation. On Kondrk’s motion, the trial court dismissed the complaint, finding that it “fail[ed] to identify any action or conduct of Michael Kondrk which could be said to have been in bad faith and with malicious purpose or in a manner exhibiting wanton and willful disregard of Mr. Ault’s rights.”

As an employee of a state subdivision, Kondrk enjoys qualified immunity from suit and liability, except in certain limited circumstances. The scope of that immunity, and the exceptions thereto, are found in section 768.28(9)(a), which, in pertinent part, provides:

No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function, unless such officer, employee, or agent acted in bad faith.or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

The purpose of the qualified immunity granted to state actors in section 768.28(9) is to “immunize public employees from liability for ordinary negligence, while providing injured claimants a remedy against governmental entities though the waiver of sovereign immunity. This ... promote[s] vigorous performance of duties by government employees, free from the fear of negligence actions, while at the same time providing redress through governmental assumption of liability to persons injured by the ordinary negligence of government employees.” Rupp v. Bryant, 417 So.2d 658, 671 (Fla.1982) (Boyd, J., dissenting). Granting public employees qualified immunity serves the public interest by allowing those employees to act with independence and without fear of consequences. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Those consequences include both liability for money damages, and “the general cost of subjecting officials to the risks of trial, distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Id. at 816, 102 S.Ct. 2727. Even pretrial matters, such as discovery, are to be avoided, if possible, as “[inquiries of this kind can be peculiarly disruptive of effective government.” Id. at 817, 102 S.Ct. 2727.

Harlow recognized an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains could reasonably be said to fall outside the parameters of the employee’s qualified immunity. The entitlement is an immunity from suit rather than a mere defense to liability; and like absolute immunity, is effectively lost if a case is erroneously permitted to go forward. Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Adopting that reasoning, section 768.28(9) offers qualified immunity both from suit and liability, except in limited circumstances.

In her amended complaint, Lemay contends that Kondrk’s actions exhibited a wanton and willful disregard for Ault’s rights and safety, not that Kondrk acted in bad faith or with malicious purpose or outside the scope of his employment. While Lemay does not contend that Kondrk intended Ault to be harmed when he ordered Ault to leave the convenience store parking lot, she does contend that a jury could find the risk to Ault’s safety (and that of passing motorists) was obvious and foreseeable to any reasonable person, particularly a trained law enforcement officer, and that despite that obvious risk, Kondrk forced Ault out into the darkness, disregarding the consequences of doing so.

Because the sufficiency of the complaint is a matter of law, we review the matter de novo. On a review of a motion to dismiss, we must accept the well-pled allegations of the complaint as true. Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001). We must, therefore, determine whether Lemay’s factual allegations, assumed to be true, could be reasonably found to constitute conduct “exhibiting wanton and willful disregard of human rights, safety or property.” An analysis of the problem requires an understanding of how “wanton and willful” conduct differs from other forms of negligence. That is necessary because Kondrk loses his immunity from suit only if his actions could reasonably be found to cross this high threshold.

In Ingram v. Pettit, 340 So.2d 922, 924 (Fla.1976), the Florida Supreme Court explained the difficulty in dividing negligence into degrees:

Our jurisprudence has a history of difficulty in dividing negligence into degrees. The distinctions articulated in labeling particular conduct as ‘simple negligence,’ ‘gross negligence,’ and ‘willful and wanton misconduct’ are best viewed as statements of public policy. These semantic refinements also serve a useful purpose in advising jurors of the factors to be considered in those situations where the lines are indistinct. We would deceive ourselves, however, if we viewed these distinctions as finite legal categories and permitted the characterization alone to cloud the policies they were created to foster.

As Ingram recognized, the concept of dividing negligence into degrees (or perhaps, more appropriately, kinds) has been problematic. Courts have encountered great difficulty in attempting to draw clear and distinct lines between the various grades of negligence, concluding that “[p]erhaps no rule can ever be devised which will definitively separate one from the other.” Carraway v. Revell, 116 So.2d 16, 19 (Fla.1959). Different degrees of negligence are easier to demonstrate than to define. “The same conduct, in different settings, could and does result in different degrees of liability.” Id. One commentator observed that “attempting to distinguish the degrees of negligence is analogous to separating different hues of gray as opposed to differentiating black from white.” Thomas D. Sawaya, Florida Personal Injury and Wrongful Death Actions, § 2.12 (2001-2002 ed.).

Negligence and intentional misconduct describe points on a range of conduct that is potentially negligent; what lies between negligence and intentional misconduct constitutes the degree of negligence. 57A Am.Jur.2d Negligence § 233 (2002). Wanton conduct, or willful and wanton conduct, have been described as lying somewhere between ordinary negligence and intentional conduct. Id. Willful and wanton conduct is generally something more than ordinary negligence but less than deliberate conduct. 57A Am.Jur.2d Negligence § 263 (2002). Most definitions of willful or wanton conduct require that it appear that the defendant had knowledge of existing conditions, was conscious from such knowledge that injury would likely or probably result from his conduct, and with reckless indifference to the consequences consciously and intentionally does some wrongful act or omits to discharge some duty which produces the injurious result. Id. For conduct to be willful and wanton, it must be shown that the defendant knew, or reasonably should have known in light of the surrounding circumstances, that his conduct would naturally or probably result in injury and, with such knowledge, disregarded the foreseeable injurious consequences. 57A Am.Jur.2d Negligence § 264 (2002).

Prosser and Keeton defined willful and wanton conduct thusly:

Willful, Wanton and Reckless. A different approach, at least in theory, looks to the actor’s real or supposed state of mind. Lying between intent to do harm, which, as we have seen, includes proceeding with knowledge that the harm is substantially certain to occur, and the mere unreasonable risk of harm to another involved in ordinary negligence, there is a penumbra of what has been called “quasi-intent.” To this area the words “willful,” “wanton,” or “reckless,” are customarily applied; and sometimes, in a single sentence, all three. Although efforts have been made to distinguish them, in practice such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit. They have been grouped together as an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care.... They apply to conduct which is still, at essence, negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if it were so intended....
The usual meaning assigned to “willful,” “wanton,” or “reckless,” according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Since, however, it is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied. The “willful” requirement, therefore, breaks down and receives at best lip service, where it is clear from the facts that the defendant, whatever his state of mind, has proceeded in disregard of a high and excessive degree of danger, either known to him or apparent to a reasonable person in his position.
The result is that “willful,” “wanton,” or “reckless” conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.... It is at least clear, however, that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention ... except in those cases where a reasonable person in the actor’s place would have been aware of great danger, and proceeding in the face of it is so entirely unreasonable as to amount to aggravated negligence.

W. Page Keeton, et al., Prosser & Keeton Handbook of the Law of Torts § 34, at 212-14 (5th ed.1984) (internal footnotes omitted).

In the final analysis, we must weigh the factual allegations of the complaint against Kondrk’s qualified immunity from suit and liability. A court must find no liability as a matter of law if either (a) no duty of care existed, or (b) the doctrine of governmental immunity bars the claim. Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989). We believe that individual claims against state actors should be the exception rather than the rule, particularly given the policy considerations in favor of immunizing state actors, although not necessarily state agencies.

Perhaps with the clarity of hindsight, Kondrk’s decision to order Ault off the premises was an error in judgment, but to me, it seems to fall far short of the degree of wanton and willful misconduct necessary to overcome Kondrk’s qualified immunity from suit and liability. I would affirm the trial court’s order.

      . Although immunity is an affirmative defense, where the complaint contains allegations that demonstrate the existence of the defense, it can be considered on a motion to dismiss. See Vaswani v. Ganobsek, 402 So.2d 1350, 1351 (Fla. 4th DCA 1981).

      . We have similarly struggled to differentiate willful and wanton conduct from other degrees of negligence. In Williams v. City of Minneola, 619 So.2d 983, 986 (Fla. 5th DCA 1993), we said that "reckless conduct is the equivalent of willful and wanton conduct” and that the terms reckless and wanton conduct are interchangeable. In Richardson v. City of Pompano Beach, 511 So.2d 1121, 1123 (Fla. 4th DCA 1987), the court said "the phrase “wanton and willful disregard” connotes conduct much more reprehensible and unacceptable than mere intentional conduct” while in Dyals v. Hodges, 659 So.2d 482, 484 (Fla. 1st DCA 1995), the court equated wanton and willful misconduct with reckless conduct as described in section 500 of the Restatement (Second) of Torts:
      The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.


author: THOMPSON, J.

text:
    Walter W. LEIPUNER, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC), Appellee.
    No. 5D02-3282.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.
    Patrick M. Magill, Orlando, for Appellant.
    Aaron R. Wolfe of Doran, Wolfe, Rost & Ansay, Daytona Beach, for Appellee.
   THOMPSON, J.

Walter W. Leipuner appeals an order denying his motion to vacate a judgment. We affirm.

In 1986, a final money judgment was entered against Leipuner. In June 2002, Leipuner moved for vacation of the judgment on the ground that it was void because the court had lacked personal jurisdiction over Leipuner. The record contains a return of service of process showing that Leipuner was served at an address on Atlantic Avenue in New Smyrna Beach, Florida on 31 October 1985. In his affidavit in support of the motion, Leipuner stated that although the record contained a return of service, he was residing in Costa Rica in 1985 and 1986, so he could not have been served in Florida. He also stated that he had been informed that an attorney named William Henderson entered an appearance on his behalf, but that Leipuner did “not recall retaining said attorney for that purpose.”

A judgment entered without due service of process is void. Carter v. Lil’ Joe Records, Inc., 829 So.2d 953 (Fla. 4th DCA 2002). An evidentiary hearing is required where the allegations of an affidavit in support of a motion for relief from judgment, if proven, would establish that the judgment is void. See Monsour v. Balk, 705 So.2d 968 (Fla. 2d DCA 1998) (ordering trial court to hold evidentiary hearing to determine if allegations of affidavit were true). In the instant case, Leipuner has not established a basis for relief because even if the allegations in his affidavit were true, they would not establish that the judgment is void. First, he does not deny that he was served process; the fact that he may have resided in Costa Rica during the relevant period does not mean that on 31 October 1985 he was not at the address on Atlantic Avenue cited in the return of service. Furthermore, the affidavit does not refute the record showing that an attorney appeared for him and that therefore any defect in or lack of service was waived. Participation in the proceedings amounts to a general appearance, and thereby constitutes a waiver of any alleged defects in service or in jurisdiction. Martin v. Ullman, 555 So.2d 1232 (Fla. 3d DCA 1989).

AFFIRMED.

PLEUS and TORPY, JJ., concur.


text:
    William R. HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2292.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

William R. Hamilton appeals an order denying his motion for post conviction relief. Several of Hamilton’s claims of ineffective assistance of counsel were properly denied and do not merit discussion. However, we conclude that certain claims of ineffective assistance were facially sufficient and reverse with respect to those claims.

Hamilton was convicted of first degree premeditated murder, robbery with a firearm, armed burglary, attempted first degree murder, and causing injury during the perpetration of a felony. Hamilton was sentenced to two consecutive life terms in prison, and his convictions were affirmed without opinion by this court. Hamilton v. State, 781 So.2d 377 (Fla. 5th DCA 2001). Subsequently, Hamilton filed a motion for post conviction relief, alleging 24 claims of ineffective assistance of. counsel. The trial court denied relief on all grounds.

On appeal, Hamilton contends that the trial court erred in summarily denying several claims of ineffective assistance that he raised concerning counsel’s failure to make objections, to introduce certain evidence, and to call and impeach certain witnesses. In summarily denying Hamilton’s claims, the trial court stated that these grounds involved trial strategy and stated that, “[tjhis court on inquiry into effectiveness of counsel, whether tactical or strategic, will not review specific discretionary or judgmental acts of trial counsel in a criminal prosecution.” We disagree with this reasoning.

In Murphy v. State, 638 So.2d 975 (Fla. 1st DCA 1994), the trial court summarily denied the defendant’s allegations concerning ineffective assistance and stated that even if the court found the defendant’s allegations to be true, the defendant could not prevail because defendant’s allegations involved judgment and strategy on the part of defense counsel. Id. at 976. The district court reversed the order denying relief and held that although defense counsel is entitled to broad deference regarding trial strategy, when the court is confronted with a claim of ineffective assistance, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing. Id.; see also Griggs v. State, 744 So.2d 1145, 1145 (Fla. 4th DCA 1999). Furthermore, in Ford v. State, 825 So.2d 358 (Fla.2002), the Florida Supreme Court held that without an evi-dentiary hearing or any record attachments refuting a petitioner’s claim that his attorney failed to investigate defenses, a trial court is bound to assume that the allegations in the 3.850 motion are true. See also Davis v. State, 648 So.2d 1249 (Fla. 4th DCA 1995) (while the failure to object based on reasonable trial strategy may refute a claim of ineffective assistance, without an adequate record, the reviewing court is in no position to make such a fact-based determination). In the instant case, we find that the trial court erred in concluding that counsel’s actions or inactions were tactical without conducting an evidentiary hearing or providing attachments conclusively refuting Hamilton’s claims. Hamilton also contends that the trial court erred in summarily denying his claims that counsel was ineffective for failing to call available exculpatory witnesses. We agree. The trial court did not immediately deny Hamilton’s claims that he had available exculpatory witnesses, but instead ordered the state to respond to Hamilton’s claims. Pursuant to the order, the state filed a response contending that Hamilton’s motion should be stricken because he failed to comply with Rule 3.030(a), Florida Rules of Criminal Procedure, by failing to serve the state a copy of his motion. However, the state also noted that, “[i]f and when the defendant timely complies with the above-noted rule, his Ground 5 and lk allegations, relating to claims of failure to investigate and present alibi witnesses raise colorable claims that likely will necessitate an evidentiary hearing.” (emphasis added).

The trial court summarily denied Hamilton’s claims, stating:

Contrary to the State’s position [that Hamilton’s claims would likely necessitate an evidentiary hearing], the record refutes the Defendant’s allegations relating to trial counsel’s failure to investigate and present alibi witnesses. Upon the request of the State Attorney,[] the trial judge specifically asked the Defendant “Is there anything else, Mr. Hamilton, that you believe needs to be presented to the jury?” The Defendant responded, “No, sir.” If the Defendant wanted to present any other witnesses, evidence or was unhappy with the trial counsel’s investigative procedures he had the opportunity to inform the Court at that time.

We disagree that Hamilton’s statement at trial conclusively refuted his claims. Our review of the record shows that when Hamilton replied, “No, sir,” Hamilton asked the court if he could confer with his attorneys first. The trial court replied, “Yeah. No matter what the answer, we’re leaving.”

In Law v. State, 847 So.2d 599 (Fla. 5th DCA 2003), this court reversed an order denying post conviction relief where the appellant claimed that his counsel was ineffective for failing to call two alibi witnesses. Id. at 600. The trial court denied the motion by pointing out that when the trial court questioned the defendant, the defendant indicated that the court should let defense counsel do his job, “in the best way he can,” and that the defendant could have complained at the time of counsel’s failure to call witnesses. Id. Although we concluded based on the record that the defendant made those comments in connection with his decision to testify rather than his right to call witnesses, we noted that “[the defendant’s] statement indicating satisfaction, made after the state had rested, may have been made based on his belief that it was too late to call witnesses.” Id.

In the instant case, although Hamilton initially replied that he did not wish to call any more witnesses or provide further evidence, he then asked if he could confer with his attorneys. In response to Hamilton’s request, the trial court stated that no matter what the answer, they were leaving. If Hamilton felt that it was too late to call additional witnesses, the trial court confirmed it by stating that they were leaving no matter what Hamilton’s answer was. Therefore, we find that Hamilton’s claim regarding counsel’s failure to call certain exculpatory witnesses is not conclusively refuted by the record.

Accordingly, the order denying post conviction relief is reversed with respect to grounds 5, 6, 10, 11,12, 13, and 14, and the cause is remanded for an evidentiary hearing or for attachments showing that Hamilton is not entitled to relief. In all other respects, the order is affirmed.

AFFIRMED in part; REVERSED in part, and REMANDED.

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

      . Rule 3.030(a), Florida Rules of Criminal Procedure, provides:
      Every pleading subsequent to the initial indictment or information on which a defendant is to be tried unless the court otherwise orders, and every order not entered in open court, every written motion unless it is one about which a hearing ex parte is authorized, and every written notice, demand, and similar paper shall be served on each party....

      . The state attorney told the court, "I just request that you inquire of him if there’s anymore witnesses or anymore evidence that he wants the jury to hear.”


text:
    SOUTHLAND CONSTRUCTION, INC., Appellant, v. GREATER ORLANDO AVIATION, et al., Appellees.
    No. 5D02-3389.
    District Court of Appeal of Florida, Fifth District.
    Dec. 5, 2003.

      Mary Ann Stiles and Rayford H. Taylor, of Stiles, Taylor & Grace, P.A., Tallahassee, for Appellant.
    Timothy C. Conley, and David W. McCreadie, of Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, for Appellee, Peoples Gas System.
    No Appearance for Appellee Greater Orlando Aviation.
   GRIFFIN, J.

This is the appeal of an order dismissing the claim of Southland Construction, Inc. [“Southland”] to recover attorney’s fees and increases in its workers’ compensation insurance premiums, which Southland claims resulted from the death of a South-land employee due to the negligence of Peoples Gas System [“Peoples Gas”] in failing to mark a gas line.

Southland sued the defendants below, the Greater Orlando Aviation Authority [“GOAA”] and Peoples Gas on a theory of negligence. The complaint alleged that GOAA and Southland entered into a contract on February 2, 2000, for the construction of drainage modifications and access roads at the Orlando International Airport. On May 9, 2000, a Southland employee breached an unmarked Peoples Gas line with construction equipment, causing a fire that resulted in the death of one Southland employee and the injury of another. Southland alleged it had transmitted an underground utility locate request to GOAA and Peoples Gas prior to the accident and had received an “all clear” from each company. Southland alleged that Peoples Gas owed Southland a duty to notify it of the location of underground utility lines in the area and that Peoples Gas was negligent in failing to do so. Southland claimed that, as a result of the accident, its workers’ compensation carrier had to pay substantial benefits to the families of the workers which, in turn, caused Southland’s workers’ compensation insurance premiums to increase. It further alleged it incurred $6,752.00 in attorneys’ fees for the successful defense of an OSHA citation arising out of the accident.

Peoples Gas moved for dismissal of the amended complaint, asserting that, as a matter of law, the claim for increased workers’ compensation insurance premiums and attorney’s fees were not recoverable because such damages were too remote and unforeseeable. Peoples Gas also asserted that an employer’s rights to recover damages under Florida’s Workers’ Compensation Law is limited to that which is contained in Chapter 440. Finally, as to the OSHA citation claim, they asserted that fees were not compensable because there was no contract or statute authorizing recovery of attorneys’ fees. After a hearing on the motion to dismiss, the court dismissed both the claim for attorneys’ fees and the claim for the increase in insurance premiums. The trial court explained during the hearing that the damages were too remote as a matter of law to be recoverable by Southland. Southland urges on appeal that the trial court erred. We affirm.

Although there is no Florida case on the issue, courts in other jurisdictions uniformly have found no such entitlement to recovery of workers’ compensation insurance premium increases as a matter of law, based on the remoteness and the lack of legal foreseeability of such claims. Fischl v. Paller & Goldstein, 231 Cal.App.3d 1299, 282 Cal.Rptr. 802 (1991); RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 650 A.2d 153, 157 (1994); Unique Paint Co. v. Wm. F. Newman Co., 201 Ga.App. 463, 411 S.E.2d 352, 353 (1991); Anderson Plasterers v. Meinecke, 543 N.W.2d 612-14 (Iowa 1996); Pro-Staffers, Inc. v. Premier Mfg. Support Servs., Inc., 252 Mich.App. 318, 651 N.W.2d 811 (2002); Northern States Contracting Co. v. Oakes, 191 Minn. 88, 253 N.W. 371, 372 (1934); Whirley Indus., Inc. v. Segel, 316 Pa.Super. 75, 462 A.2d 800, 804 (1983); Canada Dry Bottling Co. v. Mertz, 264 Pa.Super. 480, 400 A.2d 186 (1979); Higbie Roth Constr. Co. v. Houston Shell & Concrete, 1 S.W.3d 808, 812 (Tex.App.1999).

The Court of Appeals of Texas recently addressed this issue in Higbie Roth Construction Co. v. Houston Shell & Concrete, 1 S.W.3d 808. The Texas court found no negligence cause of action existed, explaining:

To recover for increased workers’ compensation premiums from Houston Shell ..., Higbie must show a duty to prevent that increase. Duty under a set of facts is a question of law for the court. In determining whether to impose a duty, courts consider the risk, foreseeability, and likelihood of injury to the plaintiff, and weigh those factors against the social utility of the defendant’s conduct, the magnitude of guarding against the injury, and the consequences of placing that burden on the defendant. Foreseeability of harm is a primary factor in evaluating whether a duty is owed. Higbie’s pleadings, when construed broadly and after indulging all inferences in Higbie’s favor, do not support a claim against Houston Shell ... for-wrongful increase in workers’ compensation insurance premiums arising out of their allegedly negligent injury of Ramos. The negligence cause of action fails because the injuries for which Hig-bie seeks recovery ... were not foreseeable by Houston Shell ... as a matter of law.

Id. at 812-813 (citations omitted).

The Higbie court relied in part on the Pennsylvania case of Whirley Industries, Inc. v. Segel, 462 A.2d 800:

In Whirley Industries, the Pennsylvania Superior Court concluded that third parties whose negligence may have caused injury to a worker did not owe a duty to the worker’s employer to foresee that increased insurance premiums would result from compensating the worker for the third parties’ negligence. 316 Pa.Super. at 82, 462 A.2d at 804. The Pennsylvania Superior Court concluded that a third party cannot reasonably foresee that its conduct would cause increased premiums because premium rates result from many concurring factors, many of which are entirely unrelated to the third party’s alleged negligence in injuring a particular worker. Id. These factors include the employer’s prior loss experience and the internal financial practices of the particular insurance carrier. Id.

Id. at 812-813. See also Canada Dry Bottling Co. v. Mertz, 400 A.2d 186. South-land has cited to no case in the United States that has allowed recovery of workers’ compensation premium increases in such a context. We agree with the weight of authority and conclude that the claimed damages are not recoverable because they are too remote. Third-party negligence may be the proximate cause of the employee’s iñjury but, at best, it is only a remote cause of an employer’s premium increase.

Peoples Gas also urges that section 440.39, Florida Statutes, contained in the workers’ compensation statute, precludes Southland from asserting a claim against it for any increase in its workers’ compensation insurance premiums. Section 440.39 of the Florida Workers’ Compensation Law provides for compensation to employees when third persons are liable for injuries to employees. Subsection (2) of this statute says:

If the employee or his or her dependents accept compensation or other benefits under this law or begin proceedings therefor, the employer or, in the event the employer is insured against liability hereunder, the insurer shall be subro-gated, to the rights of the employee or his or her dependents against such third-party tortfeasor, to the extent of the amount of compensation benefits paid or to be paid as provided by subsection (3).

§ 440.39(2), Fla. Stat. (emphasis added).

Subsection (3)(a) provides:

In all claims or actions at law against a third-party tortfeasor, the employee, or his or her dependents or those entitled by law to sue in the event he or she is deceased, shall sue for the employee individually and for the use and benefit of the employer, if a self-insurer, or employer’s insurance carrier, in the event compensation benefits are claimed or paid; ... Upon suit being filed, the employer or the insurance carrier, as the case may be, may file in the suit a notice of payment of compensation and medical benefits to the employee or his or her dependents, which notice shall constitute a lien upon any judgment or settlement recovered to the extent that the. court may determine to be their pro rata share for compensation and medical benefits paid or to be paid under the provisions of this law, less their pro rata share of all court costs expended by the plaintiff in the prosecution of the suit including reasonable attorney’s fees for the plaintiffs attorney.

§ 440.39(3)(a), Fla. Stat. (2002). This provision establishes a device by which the employer can recover compensation and medical benefits through subrogation or lien. Florida courts have not said whether the workers’ compensation statute is an exclusive remedy for an employer, but courts of other jurisdictions have addressed the issue.

In Multiplex Concrete Co. v. Besser Co., 153 N.J.Super. 531, 380 A.2d 708 (App.Div.1977), certification denied, 75 N.J. 607, 384 A.2d 837 (1978), an employer filed a negligence cause of action against third parties for the death of an employee, seeking to recover for an increase in workers’ compensation insurance premiums. The appellate court affirmed the trial court’s dismissal for failure to state a claim. The court found the New Jersey workers’ compensation statute was the exclusive remedy for employers and held:

We do not regard the cause of action asserted here to be one which ... an employer would be “free to maintain.” It is not a primary cause of action which an employer has directly in its own right; rather it seeks damages directly related to the compensation payments made pursuant to the Workers’ Compensation Act. While the employer is not directly suing to recover on its employee’s rights, it is pursuing a cause of action arising out of its obligation established by law for the benefit of the employee.

Id. at 534-535, 380 A.2d 708 (citing United States Cas. Co. v. Hercules Powder Co., 4 N.J. 157, 72 A.2d 190 (1950)).

Erie Castings Co. v. Grinding Supply, Inc., 736 F.2d 99 (3d Cir.1984), also addressed this issue and the court found Pennsylvania’s workers’ compensation statute provided an exclusive remedy for employers to recover for damages incurred as a result of an employee’s injury. The language of Pennsylvania’s statute is similar to Florida’s:

Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of employee, ... against such third party to the extent of the compensation payable under this article by the employer; ...

Pa. Stat. Ann., tit. 77, § 671 (Purdon Supp. 1983); Erie Castings at 102. The court noted that both this statute and the New Jersey statute in Multiplex limited an employer’s rights to those possessed by the employee, and found the employer’s increases in insurance premiums to be unrecoverable.

Finally, in Pro-Staffers, Inc. v. Premier Manufacturing Support Services, Inc., 651 N.W.2d 811, in which an employer sought to recover the costs of increased workers’ compensation insurance premiums from a third-party tortfeasor, the court held that the Michigan workers’ compensation statute contained the employer’s exclusive remedies. The court explained:

We also hold that because [the workers’ compensation statute] provides a detailed procedure that, if utilized by the employer or carrier, will result in full reimbursement of the benefits paid to the injured employee, no additional remedies can be inferred. Indeed, if the employer or insurance carrier avails itself of the statutory procedure set forth ... it should not suffer any increased worker’s compensation premiums, as the payor of the benefits will recoup the monies paid to the employee. Thus, because the Legislature has created a* remedy for employers and carriers to recoup the worker’s compensation benefits paid to injured employees, and because we do not find this remedy to be “plainly inadequate,” the remedy provided in the subrogation provision of [the worker’s compensation statute] is exclusive. Had the Legislature intended for employers to recover damages in the form of increased premiums and lost profits, it would have enumerated such a remedy....

Id. at 816-817 (citations omitted).

We agree with Peoples Gas that the workers’ compensation subrogation device is an additional reason why Southland has no claim under ordinary negligence principles. The workers’ compensation statute offers employers a limited device for recovery of monies paid to the worker. To the extent that Southland’s claim is not in the nature of subrogation to recover benefits paid out, however, we agree with Southland that there is no good reason why the Workers’ Compensation Act would prevent Southland’s assertion of its own statutory claim for its own statutory damages.

Southland urges on appeal that its suit is distinguishable from all the authorities in other jurisdictions we have cited because of Florida’s Underground Facility Damage Prevention and Safety Act [“the Act”]. § 556.101 et seq. This statute essentially creates a not-for-profit corporation whose purpose is to create a sort of clearing house through which underground facilities operators and excavators can communicate about facility locations in order to prevent “injury to persons or property and the interruption of services ...”. § 556.101(3)(a), Fla. Stat. (2002). Section 556.106(3), Florida Statutes, states:

If, after receiving proper notice, a member operator fails to discharge a duty imposed by the provisions of this act and an underground facility of such member operator is damaged by an excavator who has complied with the provisions of this act, as a proximate result of the member operator’s failure to discharge such duty, such excavator shall not be liable for such damage and the member operator, if found liable, shall be liable to such person for the total cost of any loss or injury to any person or damage to equipment resulting from the member operator’s failure to comply with this act.

We agree with Southland that section 556.106(3), Florida Statutes, could be the source of a statutorily created duty owed by Peoples’ Gas to Southland to correctly mark the location of its underground facilities and it could be the basis for Southland to recover its own damages if the facilities are not correctly marked and a statutorily specified injury or damage results. South-land contends that because the legislature has imposed liability under the Act on those who violate this act for the total cost of any loss incurred, such “total cost” should include insurance premiums. Unfortunately, Southland did not allege the applicability of the Act or violations of the Act in its complaint, or refer to it in any way in the complaint. Thus, there is simply no basis in the pleadings to find a claim under the Act.

Instead of asserting a claim under the Act, Southland asserts, relying on DeJesus v. Seaboard Coast Line Railroad, 281 So.2d 198 (Fla.1973), that a violation of the Act constitutes negligence per se. This argument does not take Southland very far for several reasons. First, its pleading makes no reference to this claim either. Second, for purposes of appeal, we do not question whether Peoples Gas was negligent; the issue is to whom Peoples Gas owed the duty. Finally, the statute does not impose a duty on Peoples Gas to prevent an increase in insurance premiums.

In support of its entitlement to recover the insurance premium increase and attorney’s fees under the Act, Southland relies on A & L Underground, Inc. v. City of Port Richey, 732 So.2d 480 (Fla. 2d DCA 1999) in which the Second District interpreted section 556.106(3) of the Act to allow an excavator to recover purely economic losses, including delay damages, that it suffered as a result of a member operator’s failure to accurately mark its underground utilities. In A & L, the Second District Court held that an excavator is entitled to recovery of delay and repair costs in an action for violations of the Act. The A & L court based its decision on the “for the total cost of any loss” language in the statute. Id., 732 So.2d at 481.

We begin by expressing some doubt about the expansive reading of the statute employed in A & L. The statute speaks of “any loss or injury to any person or damage to equipment.” This statutory language seems at most to contemplate personal injury damages, out-of-pocket losses and economic losses that are confined to damage to equipment. This reading seems most consistent with the expression of legislative intent to:

Aid the public by preventing injury to persons or property and the interruption of services resulting from damage to an underground facility caused by excavation or demolition operations.

556.101(3)(a), Fla. Stat. (2002). Even if the statute were intended to be as broad as the A & L court suggests, however, this still would not reach a remote and indirect insurance premium increase claim or attorney’s fees incurred to defend an OSHA claim.

AFFIRMED.

THOMPSON, J., and PARSONS, W.A., Associate Judge, concur.

      . Greater Orlando Aviation Authority is not involved in this appeal.

      . See also Ireland Elect. Corp. v. Georgia Highway Express, Inc., 166 Ga.App. 150, 303 S.E.2d 497 (1983)(employer may not recover for loss of employee services from third-party tortfeasor); Castle v. Williams, 338 Ill.App.3d 708, 273 Ill.Dec. 112, 788 N.E.2d 421 (2003)(employer may not recover for loss of employee services from third-party tortfea-sor); Morton v. Merrillville Toyota, Inc., 562 N.E.2d 781 (Ind.Ct.App.1990)(employer may not recover for loss of employee services or for loss of profit from third-party tortfeasor).

      . A "member operator” is "any person who furnishes or transports materials or services by means of an underground facility.” Since Peoples Gas furnishes underground gas lines, it would appear to fall into the definition of member operator for purposes of the Act. § 556.102(8), Fla. Stat. (2002).

      . Southland alternatively relies on the "wrongful act doctrine” to support its fee claim. See State Farm Fire & Cas. Co. v. Pritcher, 546 So.2d 1060, 1061 (Fla. 3d DCA 1989). The wrongful act doctrine does not create a separate cause of action, however. It is simply an additional element of damage available where liability already exists. Furthermore, this theory of liability has not been pleaded and there is no basis on which to assume it has any application.