author: GUNTHER, J.

text:
    Tyra AMOS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D00-3800, 4D01-4372.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2002.
    Rehearing Denied Jan. 16, 2003.
    Maria Lorts Sachs of Sachs, White, Aug-spurger & Associates, Boca Raton, and Julie Prag Vianale of the Law Office of Julie Prag Vianale, Boca Raton, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   GUNTHER, J.

Defendant Tyra Amos (“Amos”) appeals her conviction for aggravated battery with a firearm and the denial of her Rule 3.800 motion to correct an illegal sentence. The State charged Amos by information with attempted first-degree murder “by shooting JOHN MILLION [“Million”] with a firearm.” Amos admitted she shot Million, but claimed self-defense. She and Million had been romantically involved, and the record reveals a history of physical violence between them.

The jury returned a verdict of “[g]uilty of Aggravated Battery with a Firearm, a lesser included offense, as contained in the Information.” The jury answered yes to the sole special interrogatory ‘We find the defendant actually possessed a firearm?’

Amos’s conviction yielded a sentencing range of 51.15 months at minimum and fifteen years at maximum. Relying on section 775.087(2)(a)3, Florida Statutes, however, the trial court enhanced Amos’s sentence to the minimum twenty-five-year sentence for discharge of a firearm causing great bodily harm.

Amos claims her sentence is illegal because the jury did not make specific findings that 1) she discharged a weapon, and 2) such discharge caused great bodily harm, which findings are necessary to trigger an enhancement under section 775.087(2)(a)3. Although her argument regarding the discharge of a weapon lacks merit, we agree that her enhanced sentence violates her due process rights because the enhancing factor of great bodily harm was not found beyond a reasonable doubt by the jury. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Under Apprendi, when a fact other than a prior conviction is used to enhance a defendant’s sentence beyond the statutory maximum for the crime of which he is convicted, that fact must have been submitted to the jury and found beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

As to the fact of discharging a firearm, the record in this case indicates that this fact was submitted to the jury, and the jury found beyond a reasonable doubt that Amos discharged a firearm. The jury convicted Amos of “[alggravated Battery with a Firearm, a lesser included offense, as contained in the Information.” Because the information accused Amos of “shooting JOHN MILLION with a firearm” and the verdict specifically refers to the information, and because Amos was convicted of aggravated battery with a firearm, the finding that Amos discharged a weapon is inherent in the jury’s verdict. Cameron v. State, 804 So.2d 338, 344 n. 11 (Fla. 4th DCA 2001) (rejecting Apprendi challenge for lack of a specific finding of death or injury when such finding was inherent in the conviction for manslaughter) (citing Tucker v. State, 726 So.2d 768 (Fla.1999) (holding that jury verdict of ‘guilty of attempted first-degree murder with a firearm’ supported enhanced sentence for use of a firearm)).

Even if the question of Amos’s discharge of a firearm were not submitted to and found by the jury, Amos did not deny shooting Million, but claimed it was in self-defense. In a sworn statement to police she admitted shooting Million in the back, and in closing argument her attorney told the jury that whether Amos shot Million was not an issue in the case, because she “is not, nor has she ever denied that she shot John Million.” Thus, Amos cannot now challenge whether the fact that she discharged a firearm was found beyond a reasonable doubt by the jury. See Hindenach v. State, 807 So.2d 739, 743 (Fla. 4th DCA (2002) (defendant who pled nolo con-tendere to DUI charges admitted the fact of causing serious bodily injury, and Ap-prendi does not require a jury to find beyond a reasonable doubt, for the purpose of sentencing, such admitted facts).

The remaining question, then, is whether the fact that the discharge caused great bodily harm was submitted to the jury and found beyond a reasonable doubt. This issue was addressed in Henly v. State, 812 So.2d 549 (Fla. 5th DCA 2002). Henly was charged as the result of a shooting rampage in a bar in which he shot several people, including himself. Henly, 812 So.2d at 550. Henly’s sentence was enhanced, just as Amos’s was, under section 775.087(2)(a)3. Id. Citing Apprendi, Henly challenged the enhancement, on the ground that the jury did not make specific findings that he discharged a firearm causing great bodily harm. Id.

The Henly court rejected the State’s argument that the jury’s finding of aggravated battery with a firearm was also a finding of great bodily harm. Id. In holding that Henly’s sentence violated Appren-di, the court relied on two facts: the information did not allege great bodily harm, and aggravated battery can be proved either by showing great bodily harm or by showing the use of a deadly weapon. Id. Because there was nothing in the information or verdict to indicate which basis the jury actually convicted upon, great bodily harm was not necessarily found by the jury. Id.

We agree with our sister court’s reasoning and apply the same. The record in this case does not persuade us that the question of great bodily harm was even submitted to the jury, much less found beyond a reasonable doubt. There was no special interrogatory addressing great bodily harm, and both the information and verdict form are silent as to that fact. Therefore, there can be no inference that Amos’s conviction rests upon a finding of great bodily harm. In fact, the verdict form’s reference to the information, which states that Amos shot Million, strongly supports the inference that the aggravated battery conviction rests solely upon the jury’s finding of the use of a firearm.

Because we conclude that the jury did not find that the shooting caused great bodily harm, the enhancement of Amos’s sentence beyond the statutory maximum for aggravated battery violates Apprendi. Accordingly, we reverse Amos’s sentence and remand for resentencing.

Because we find Amos’s remaining points with regard to her conviction to be without merit, we affirm her conviction without prejudice to pursue her ineffectiveness of counsel claim through a Rule 3.850 motion.

AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.

POLEN, C.J., and MAY, J., concur.

      . "Any person who is convicted of a felony or an attempt to commit a felony listed in sub-paragraphs(a)l.l.-q., regardless of whether lite use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a "firearm” or "destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." § 775.087(2)(a)3, Fla. Slat. (2000).


source: Caselaw Access Project

author: GROSS, J. KLEIN, J.,

license: Public Domain

text:
    TARGET STORES, a division of Dayton Hudson Corporation, Appellant, v. Corinne DETJE, Appellee.
    No. 4D02-139.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2002.
    Rehearing Denied Jan. 16, 2003.
    Kathryn L. Shanley of Peterson, Bernard, Vandenberg, Zei, Geisler & Martin, Fort Lauderdale, for appellant.

      Bambi G. Blum of Bambi G. Blum, P.A., Miami, and Simon & Nelson, P.A., Miami, for appellee.
   GROSS, J.

After a jury trial, appellee Corinne Detje recovered a judgment against appellant Target Stores arising from a slip and fall incident. Detje fell over a red-painted wooden cart stopper outside of the store.

We affirm and address Target’s complaints about the plaintiffs closing argument. Although Detje’s lawyer made two improper comments during his closing argument, the errors were harmless. After an examination of the entire case, it does not appear that the comments “resulted in a miscarriage of justice.” § 59.041, Fla. Stat. (2001).

The parties stipulated that “any violations of the building code will need not be determined.” The parties agreed not to produce experts on building code violations. Nonetheless, appellee argued in closing: “What makes this an exacerbating form of negligence is not only the fact that the condition existed, but they created it based on the evidence in this case without the permission, consent of any authority.” There was no evidence that the placement of the cart stopper violated any building code or that Target needed the permission of any “authority” to install the cart stopper. Although counsel’s comments were not in derogation of the stipulations, the argument suggested that the jury base its decision on matters outside the evidence.

Detje also argued in closing that she had opened up her whole life, while Target’s witnesses each forgot to tell the jury something. Appellee’s counsel said that Target employee Christine Duke “admitted that there were at least four photos attached to the incident report. What do they put into evidence? One out of three. One out of four is not bad. I wonder what the other three look like.” We agree with Target that this argument was improper because counsel had seen the other three photos in discovery and knew that they were cumulative to the photograph in evidence.

Detje relies on Fino v. Nodine, 646 So.2d 746, 751-52 (Fla. 4th DCA 1994), but that case does not compel a different conclusion. Fino recognized the general rule that in a civil case a party may urge the jury to draw an unfavorable inference from a party’s failure to testify. Id. at 751. However, Fino recognized the limitation on that rule that the “unfavorable inference which may be drawn from the failure of a party to testify is not warranted tuhen there has been a sufficient explanation for such absence or failure to testify.” Id. (quoting Geiger v. Mather of Lakeland, Inc., 217 So.2d 897, 898 (Fla. 4th DCA 1968)) (emphasis in original).

A similar rule applies to Target’s failure to introduce the photographs in this ease. It was improper for appellee’s counsel to draw an adverse inference, since he had seen the photos and knew that they were merely cumulative of the photograph in evidence.

Target objects to several references to Target as a “big corporation.” We find no error. Taken in context, the comments were not an invitation to decide the case on the improper basis of the financial status of the parties.

We find the two errors to be harmless. They were not the focus of the argument. During closing argument, defense counsel effectively rebutted the reference to the photographs by pointing out that Target could not be hiding anything because the plaintiffs lawyer had seen the photographs. The case was straightforward and short, so the importance of the closing argument in the result was minimal.

As to Target’s remaining complaints about Detje’s closing argument, we find no error.

AFFIRMED.

TAYLOR, J., concurs.

KLEIN, J., dissents with opinion.

KLEIN, J.,

dissenting.

I respectfully dissent because in my opinion the arguments of counsel, Ronald M. Simon, were clearly improper and unethical. Because the trial court erroneously overruled defense counsel’s objections, the jury could have been deceived as to the evidence and issues.

Although the following remark is not raised on appeal, I have included it because it demonstrates to me that counsel was deliberately engaging in a pattern of what he had to know was highly improper argument:

Julies will do justice. Your verdicts will, perhaps right or wrong, prevent other wrongs. Without the jury system, without jury verdicts, there would be many products that would—
MR. SALERNO: Objection, your Honor, this is improper reference. Sidebar.
MR. SIMON: I’ll move on.

Suggesting that this verdict could prevent other wrongs and the reference to products is highly improper. Bellsouth Human Resources Admin. v. Colatarci, 641 So.2d 427 (Fla. 4th DCA 1994).

After stipulating that “any violations of the building code will need not be determined,” and there having been no such evidence, counsel argued:

What makes this an exacerbating form of negligence is not only the fact that that condition existed, but they created it based on the evidence in this case without the permission, consent of any authority. You heard the evidence from their own witness that that piece of wood was placed there after the store was designed.
MR. SALERNO: Objection. This is in violation of the stipulation we entered into before.
THE COURT: I’ll overrule the objection. Go ahead, sir.
If you’re going to spend some money, Target, spend some money on putting the carts inside the store where they were designed to go, where they belong. You don’t want to do that because that takes up more display and more sales space, so you stick it outside. That would be okay if you applied for it and you designed it and placed it there and you made it like this that’s in evidence, the red gate like all the other ones are there, so that people when the carts aren’t there might see something there.

This argument, about not applying for or having the consent of any authority, not only violates the parties’ stipulation, but also violates Rule Regulating Florida Bar 4 — 3.4(e) which prohibits lawyers from arguing facts that are not in evidence. It also violates rule 4-8.5(a) which prohibits lawyers from seeking to influence jurors except as permitted by law or the rules of court.

The improper argument regarding photographs, which had been ruled inadmissible, was combined with an improper reference to the lack of an incident report. The incident report had not been produced because the court had ruled that it was privileged as work product. The argument was as follows:

Where is the incident report? They didn’t file one. Where are the prior incident reports when she blurted out we’ve never had a problem? Show it to us. Where is your proof? If you bring it in here, maybe this jury would have believed you. Photos. They admitted they took four photos. Remember that. She admitted there were at least four photos attached to the incident report. What do they put into evidence? One out of three. One out of four is not bad. I wonder what the other three look like.
MR. SALERNO: Objection. That’s a misrepresentation. He’s seen all of those photos.
THE COURT: I’ll overrule the objection. It’s part of closing argument. You can respond if you care to.
MR. SIMON: The yellow slicker. Do you remember the yellow slicker? They hid that under the rug too. Oh, that’s not our employee. Wait a second. Who else would be running around the parking lot but the cart guy with a yellow slicker? Where is the man with the yellow slicker? Where are those photos? I guess he wasn’t a loyal employee for Target. He’s not working there any more.

It would be one thing if the trial court had sustained defendant’s objections and instructed the jury to disregard these obviously improper comments. But the court inexplicably failed to do so. This could have led the jury to erroneously conclude that the defendant had been guilty of violating a building code as well as hiding evidence.

There are three reasons why I am unwilling to find this argument harmless. First, the jury awarded substantial damages and found no comparative negligence in a difficult liability case with ample evidence of comparative negligence. Second, the argument in this case is not merely improper, but is also unethical. Third, it happened too many times to be anything more than a deliberate attempt to improperly influence this jury. I would grant a new trial.


author: SCHWARTZ, Chief Judge. COPE, J.,

text:
    Montgomery Blair SIBLEY, Appellant, v. Barbara SIBLEY, Appellee.
    No. 3D02-3171.
    District Court of Appeal of Florida, Third District.
    Dec. 23, 2002.

      Billbrough & Marks and G. Bart Billb-rough, for appellant.
    Jay M. Levy; Bette E. Quiat, Miami, for appellee.
    Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.
   SCHWARTZ, Chief Judge.

The primary point of the appellant, who is incarcerated for indirect contempt because he failed to discharge an obligation for a large amount of admittedly past due child support — of which he has paid not a single cent — is that the record does not support the express finding below that he has the present ability to pay the purge amount of $100,000.00. We disagree.

We do so because, as the record demonstrates Sibley may command, simply by asking, the payment of the purge amount through his very wealthy father —who has in effect given many hundreds of thousands of dollars to Mr. Sibley for any and every purpose except the discharge of this particular obligation. Among these are the payment of $250,000.00 cash for a business which nominally supports him, $200,000.00 in the “forgiveness” of a “loan” from the father, and large sums directly for the support of the appellant’s present wife and his other child. We are convinced that they include also very substantial sums in legal fees and costs in order to avoid payment, as well as the maintenance of the present expensive proceeding to secure his release from prison without having to meet his adjudicated duty to support these children, even in the smallest part. His failure to do so stems, as the record again shows, and as the trial judge observed, only from a stubborn, self-immolating hatred of and vendetta against his ex-wife, who also happens to be the mother of their children, and not from any “inability to pay.” In these circumstances, which demonstrate the very epitome of a wilful, contemptuous refusal to obey a binding order of court, the rule that all sums from whatever source available to the contemnor-obligor must be considered to determine his “ability to pay” is peculiarly relevant. Koll v. Koll, 812 So.2d 529 (Fla. 4th DCA 2002); Mallardi v. Jenne, 721 So.2d 380 (Fla. 4th DCA 1998); Pompey v. Cochran, 685 So.2d 1007 (Fla. 4th DCA 1997); Rose v. Ford, 831 So.2d 763,(Fla. 4th DCA 2002)(dictum); see also Klein v. Klein, 122 So.2d 205 (Fla. 3d DCA 1960); Silvers v. Silvers, 274 So.2d 555 (Fla. 3d DCA 1973); Silberman v. Silberman, 670 So.2d 1109 (Fla. 3d DCA 1996). Its application compels the rejection of the appellant’s argument that, on the merits, he should not be in jail for civil contempt. In our judgment, he is in the right place for the right reason.

Affirmed.

GODERICH, J., concurs.

COPE, J.,

(dissenting).

The incarceration order was entered on the theory that the former husband, Montgomery Blair Sibley, has sufficient personal property to sell so as to obtain the $100,000 purge amount. As the record does not adequately support that proposition, we should remand to set a proper purge condition.

I.

The parties divorced in 1994. The former husband was the primary residential parent. Both parents lived in the Miami area.

It was agreed by the parties that if the former husband moved away, the three children of the marriage would remain in the Miami area with Barbara Sibley, the former wife. In that event, the former husband was to pay child support of $4,000 per month.

The former husband is a member of The Florida Bar who practiced law in Miami. Subsequent to the divorce, the former husband remarried. In 2000, the former husband moved to Maryland. This triggered the obligation to pay $4,000 per month in child support.

The former husband never paid any of the child support. After protracted enforcement proceedings in the trial court in which the former husband represented himself, the trial court entered a civil contempt order providing for the incarceration of the husband. The purge amount was set at $100,000.

The former husband has appealed. By unpublished order, this court ruled that the former husband could obtain a stay of the order pending appeal by posting a $100,000 bond. The former husband has not posted the bond and is incarcerated.

II.

It seems to me that in footnote two of the majority opinion, the majority concedes the point which requires reversal. Footnote two states that the former husband has “substantial assets, although admittedly not in the purge amount, in his own name.” Majority opinion at 848 n. 2 (emphasis added).

The incarceration order in this case was entered precisely on the theory that the former husband does have $100,000 in assets in his personal possession with which to satisfy the purge amount. The majority opinion concedes that the record does not adequately support the trial court’s view of the matter.

The former wife testified that the former husband received in the dissolution of marriage various items of silver and artwork. She placed a value of $10,000 on one silver tray, but the record contains no valuation of any of the other items, and there is a dispute about the former husband’s continuing ownership of some of the items.

Under Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), the court must determine whether the contemnor possesses the ability to pay the purge amount. Id. at 1279. In making this determination, “the trial court is not limited to the amount of cash immediately available to the contemnor; rather the court may look to all assets from which the amount might be obtained.” Id. (emphasis in original).

In the present situation, the trial court has at least two alternatives. One is to obtain reasonable estimates of value of the items which remain in the former husband’s possession. Because the property is in Maryland, the distance and expense of appraisal may make this an unattractive alternative.

The speedier alternative would be to modify the purge condition to allow release of the former husband upon turnover of the assets to a proper agent for the wife in Maryland. The wife would then be required to sell those items of personal property in a commercially reasonable manner. This approach would avoid the delay and expense of appraisal.

While the trial court’s order does not say in so many words that the $100,000 purge amount was supposed to come from the personal property of the former husband,, that is the only reasonable interpretation of the order. Further, in her brief in this court, the former wife has defended the order on the theory that the former husband has sufficient assets to pay the purge amount. The former wife makes reference to the assets of the former husband’s father — Harper Sibley, Jr. — only in passing in a footnote. Appellee’s brief at 20 n. 12.

We should reverse the incarceration order and remand for the trial court to enter a revised purge condition, which the former husband would have the present ability to satisfy.

III.

The majority opinion takes the position that the former husband should obtain the purge amount from his father, Harper Sib-ley, Jr. This was not the basis of the trial court’s ruling. In ruling as it has, the majority opinion relies on the “tipsy coachman” doctrine, or “right for the wrong reason” rule.

The Florida Supreme Court has said:

[Respondent] attempts to invoke the “tipsy coachman” doctrine, which permits a reviewing court to affirm a decision from a lower tribunal that reaches the right result for the wrong reasons so long as “there is any basis which would support the judgment in the record.” Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999).
As this Court recently reiterated in Robertson v. State, 829 So.2d 901 (Fla.2002), the key to applying the tipsy coachman doctrine is that the record before the trial court must support the alternative theory or principle of law. See Robertson v. State, 829 So.2d 901, 907; see also State Dept. of Revenue ex rel. Rochell v. Morris, 736 So.2d 41, 42 (Fla. 1st DCA 1999). On that basis, the doctrine cannot be applied in this case because the record does not provide an adequate basis for us to reach such materiality conclusion as a pure matter of law.

State Farm Fire and Cas. Co. v. Levine, No. SC01-2085, at 4-5, - So.2d —, 2002 WL 31833886 (Fla. Dec. 19, 2002).

In the present case the trial court heard testimony from the former husband’s father, Harper Sibley, Jr., in July 2002. The trial court limited the inquiry to two specific issues: the fact that Mr. Sibley had stopped paying the tuition for the grandchildren (the children of this marriage), and what gifts or property he had given to the former husband.

It is telling that the trial court itself restricted the amount of inquiry which could be made of Mr. Sibley, and after hearing the testimony, did not base the purge amount on Mr. Sibley’s ability to pay. The trial court fashioned the contempt order and purge amount based on the trial court’s conclusions regarding the former husband’s ability to pay.

If there is a theory on which Mr. Sibley can be considered a source of funds to satisfy the purge condition, then proper procedure requires that issue to be first addressed in the trial court.

With regard to the merits, there is no question but that over the years, the former husband, the former wife, and the children of the marriage all enjoyed large gifts from Mr. Sibley. As a general proposition, however, this court has rejected the idea that the availability of loans or gifts from wealthy relatives translates into the present ability to pay a purge amount.

The former husband relies on Perez v. Perez, 599 So.2d 682 (Fla. 3d DCA 1992), which said:

The purpose of a civil contempt proceeding is to obtain compliance on the part of a person subject to an order of the court. Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985). Where incarceration is under consideration as a possible remedy for a civil contempt, there must be “a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order.” Id. at 1279. While making that determination, the court may look to all of the contemnor’s assets from which the amount might be obtained. Id. See Russell v. Russell, 559 So.2d 675 (Fla. 3d DCA 1990).

In the present case, it appears the trial court based its finding of present ability to pay, and the finding of contempt, on the general master’s outrageous theory that Perez could obtain a loan from his relatives. The findings of the general master, upon whose report the trial court relied, stated in part:

The General Master finds that the Respondent/Husband has the superior ability to pay the Petitioner/Wife’s attorney’s fees and costs as the testimony showed that he can readily borrow the funds from relatives.
It is clear that under Bowen, the instant inquiry must be directed to the contemnor’s own assets, not those of his relatives. Thus, there must be a new hearing. Russell, 559 So.2d at 676. As noted in Russell, the Bowen case envisions a two-stage inquiry in civil contempt proceedings: first, a determination of whether the respondent has willfully violated the court order, id. at 1278-79; second, the decision as to what remedy is appropriate. Id. at 1279.

Perez, 599 So.2d at 683; see also Sol v. Sol, 656 So.2d 206 (Fla. 3d DCA 1995).

Up to a point, the former husband’s reliance on Perez is well taken. The mere fact that Mr. Sibley has in the past made large gifts to the former husband and family members is not (without more) sufficient to allow consideration of Mr. Sibley’s-assets in setting a purge amount for the former husband. In this case, however, there are other circumstances to be considered.

We are dealing with child support in this case. The court’s orders must be respected, and the court cannot allow child support orders to be interfered with.

In the present case Mr. Sibley and the former husband are in business together. Mr. Sibley purchased a business for $250,000 which is operated by the former husband. The business manufactures custom carrying cases for computers and other sensitive equipment. There are three employees besides the former husband.

The former husband’s net salary is $2,500 per month. The business pays another $2,500 per month for the rental of a house owned by Mr. Sibley, in which the former husband resides. The record reasonably supports the conclusion that the business also pays a great deal of the former husband’s personal expenses.

The business currently operates at a loss. When additional working capital is needed, Mr. Sibley provides it. Of course, $2,500 per month routinely goes back to Mr. Sibley in the form of rent, so part of the working capital merely travels in a circle.

Although the point has not been raised below or argued here, it seems to me that we should treat as a civil wrong, or contempt, the structuring of employment arrangements so as to conceal income which would otherwise be available to satisfy an outstanding child support award. Where a third party participates in a scheme to conceal such income, then that should be a basis for imposition of liability on the third person, as well as the obligor. And the interweaving of the business affairs of the obligor and the third person distinguish such a case from Perez.

While the circumstances suggest that such collusion occurred in this case, that issue has not been asserted or tried in the trial court. We should allow the issue to be explored on remand.

IV.

The present record certainly supports the proposition that the former husband is intentionally underemployed and has divested himself of assets which could have been used to pay his child support obligation. For such conduct the remedy is indirect criminal contempt, not civil contempt. As we have stated:

An intentional divestiture of assets with intent to avoid the payment obligation can be a ground for civil contempt. ... Where there has been a divestiture of assets incarceration cannot be selected as the remedy because the contemnor does not have the present ability to purge himself. If the court concludes that the respondent has willfully divested himself of the ability to pay, then that conduct may be punished by incarceration or otherwise in a criminal contempt proceeding with the attendant due process safeguards.

Russell v. Russell, 559 So.2d at 677.

V.

In sum, the present record and established precedent do not support the proposition that the former husband has the present ability to pay the $100,000 purge amount. The order now before us should be reversed and the cause remanded to set an appropriate purge amount or purge condition.

      . The presence of such a finding is indispensable to the validity of the order. See Bowen v. Bowen, 471 So.2d 1274 (Fla.1985).

      ., Notwithstanding that the appellant has adamantly refused to reveal many of his financial records — which in itself raises a strong presumption against him, City of Miami v. Rantanen, 645 So.2d 4 (Fla. 1st DCA 1994)—the record shows substantial assets, although admittedly not in the purge amount, in his own name.

      . The senior Sibley purchased a three-bedroom, three-stoiy town home in Maryland in which the son, his new wife, and child lived and where he now lives alone. Although there is no record either that such a payment was ever made or what the source of such a payment may have been, see supra note 2, the rent supposedly due the father is $2500.00 per month.

      . The following is only a partial recounting of the litigation he has unsuccessfully generated to achieve that end:

        Sibley v. Sibley, 823 So.2d 785 (Fla. 3d DCA 2002)(table); Sibley v. Sibley, 816 So.2d 136 (Fla. 3d DCA 2002); Sibley v. Sibley, 815 So.2d 673 (Fla. 3d DCA 2002), review denied, No. SC02-1309, 833 So.2d 774 (Fla. Nov.22, 2002)(table); Sibley v. Sibley, 814 So.2d 1054 (Fla. 3d DCA 2002)(table); Sibley v. Sibley, 793 So.2d 959 (Fla. 3d DCA 2001)(table); Sibley v. Sibley, 803 So.2d 738 (Fla. 3d DCA 2001)(table); Sibley v. Sibley, 795 So.2d 71 (Fla. 3d DCA 2001)(table); Sibley v. Sibley, 791 So.2d 481 (Fla. 3d DCA 2001)(table); Sibley v. Sibley, 771 So.2d 1175 (Fla. 3d DCA 2000)(table); Sibley v. Sibley, 751 So.2d 586 (Fla. 3d DCA 2000)(table); Sibley v. Sibley, 733 So.2d 529 (Fla. 3d DCA 1999)(table); Sibley v. Sibley, 732 So.2d 1079 (Fla. 3d DCA 1999)(table); Sibley v. Sibley, 725 So.2d 1273 (Fla. 3d DCA 1999); Sibley v. Sibley, 710 So.2d 1017 (Fla. 3d DCA 1998); Sibley v. Sibley, 34 Fed.Appx. 969 (11th Cir.2002)(table).

      .In the light of this conclusion, we consider that the appellant’s other point, which claims defects in the orders below, see Fla.Fam. L.R.P. 12.615 (2002), does not present harmful error.

        Gonzalez v. Gonzalez, 834 So.2d 291 (Fla. 3d DCA 2002); Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001).

      . There was also an agreement regarding the payment of tuition for the children at private schools and college. Those issues are not involved in the present appeal.

      . It appears the first time the former husband hired counsel was for this appeal.

      . Under Family Law Rule 12.615(e), the incarceration order should specify the intended source of the purge amount:
      (e) Purge. If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the con-temnor’s present ability to comply. The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.
      (Emphasis added).

      . Perhaps in this case or an appropriate case we should revisit Perez. By statute, Texas requires an obligor in a child support case to attempt to borrow the funds to pay the child support, or arrearage, from any appropriate available source, including relatives. See Tex. Fam.Code Ann. § 157.008(c)(3), (4) (Vernon 2002); Ex parte Bregenzer, 802 S.W.2d 884 (Tex.App.1991). The Texas approach appears reasonable.

      . Where, as here, a business pays the former husband not only a salary, but his living expenses, it would appear to me that an income deduction order can be imposed, either on the husband’s stated salary or on the gross income of the business. While that may be a tool to resolve the payment of child support on an ongoing basis, there is no showing anywhere that the business has the assets or income to supply the $100,000 purge amount.


author: COPE, J.

text:
    James NOLAN, Appellant, v. VIRGINIA INVESTMENT FUND LIMITED PARTNERSHIP and James River Capital Corp., Appellees.
    No. 3D00-2731.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.

      Hall, David and Joseph and Christopher M. David, Miami, and Michael L. Cotzen, for appellant.
    Sullivan & Rivero, Sidley & Austin and Thomas K Cauley, Jr., Chicago, IL, for appellees.
    Before SCHWARTZ, C.J., and JORGENSON and COPE, JJ.
   COPE, J.

Appellant James Nolan appeals the dismissal of his claims against a limited partnership in which he invested. We affirm.

Appellee Virginia Investment Fund Limited Partnership (the “Fund”) is a Delaware private commodity pool organized as a limited partnership. Appellee James River Capital Corporation is the general partner of the limited partnership. In 1996 Nolan obtained a copy of a Private Placement Memorandum pursuant to which the Fund offered limited partnership interest to investors. After reviewing the Memorandum Nolan decided to purchase a $250,000 limited partnership interest. In connection with his investment, Nolan represented that he had reviewed the Private Placement Memorandum, that he was an experienced investor and that he had a net worth in excess of $1 million.

The Private Placement Memorandum states, “THE INTERESTS ARE SPECULATIVE AND INVOLVE A HIGH DEGREE OF RISK.” (R. 245) (emphasis in original). The. Memorandum explains elsewhere that the limited partnership interests “ARE SUITABLE ONLY FOR INVESTORS WHO CAN AFFORD TO LOSE THEIR ENTIRE INVESTMENT.” (R. 255) (emphasis in original).

The Memorandum reviewed by Nolan contains a page entitled “Conflicts of Interest” which states, among other things:

The General Partner and its principals have a conflict of interest between retaining Trading Advisors which will generate a high level of brokerage commissions (to the benefit of the General Partner) or which have marketing agreements or other ongoing business dealings with the General Partner, and retaining Trading Advisors which will achieve the best results for the Partnership. All of the current Trading Advisors have ongoing business relationships (including in certain cases marketing agreements) with the General Partner, and the General Partner anticipates that most Trading Advisors which it selects in the future will also have such relationships.
The General Partner and its principals have a conflict of interest between investing Partnership assets in other commodity pools operated by the General Partner and investing such assets in the best interests of the Partnership, because on the General Partner’s own pools it will receive administrative charges, brokerage commissions, interest income and other benefits in respect of such investments.
The General Partner operates commodity pools other than the Partnership and may have financial and other incentives to favor certain of such pools over the Partnership.

(R. 252) (emphasis added).

Eventually Nolan suffered a significant loss on his investment and filed this action against both the Fund and its general partner. Nolan’s Second Amended Complaint alleged claims of (1) breach of fiduciary duty for failure to maintain promised diversity in the commodity pool; (2) breach of fiduciary duty by virtue of a conflict of interest; and (3) negligence by changing of the mix of trading advisors utilized by the pool.

The trial court granted the defendant’s motion to dismiss the Second Amended Complaint finding that the Memorandum’s disclosures negated Nolan’s claims.

On appeal Nolan first argues that this court should not enforce the choice of law provision contained in the Subscription Agreement he signed when he purchased his limited partnership interest. The Agreement provides that Delaware law governs the parties’ relationship.

We affirm on this issue. There is no indication that it was ever raised in the trial court. The parties’ contractual choice of law will be enforced.

Under the Delaware Revised Uniform Limited Partnership Act (“DRULPA”):

“To the extent that, at law or in equity, a partner or other person has duties (including fiduciary duties) and liabilities relating thereto to a limited partnership or to another partner ... (2) the partner’s or other person’s duties and liabilities may be expanded or restricted by provisions in the partnership agreement.”

6Del. Ch. § IT — 1101(d) (emphasis added).

The Delaware Supreme Court has addressed this part of the statute:

As the Vice Chancellor noted at summary judgment, a general partner owes the traditional fiduciary duties of loyalty and care to the limited partnership and its partners, but DRULPA § 17-1101(d)(2) “expressly authorizes the ... modification, or enhancement of these fiduciary duties in the written agreement governing the limited partnership.” Indeed, we have recognized that, by statute, the parties to a Delaware limited partnership have the power and discretion to form and operate a limited partnership “in an environment of private ordering” according to the provisions in the limited partnership agreement. We have noted that DRULPA embodies “the policy of freedom of contract” and “maximum flexibility.” DRULPA’s “basic approach is to permit partners to have the broadest possible discretion in drafting their partnership agreements and to furnish answers only in situations where the partners have not expressly made provisions in their partnership agreement” or “where the agreement is inconsistent with mandatory statutory provisions.” In those situations, a court will “look for guidance from the statutory default rules, traditional notions of fiduciary duties, or other extrinsic evidence.” But, if the limited partnership agreement unambiguously provides for fiduciary duties, any claim of a breach of a fiduciary duty must be analyzed generally in terms of the partnership agreement.

Gotham Partners, L.P. v. Hallwood Realty Partners, L.P., No. 372, 2001, — A.2d —, 2002 WL 31303135 (Del. Oct.11, 2002) (footnotes omitted).

Under the Delaware statute, “[p]rinciples of contract preempt fiduciary principles where the parties to a limited partnership have made their intentions to do so plain.” Sonet v. Timber Co., L.P., 722 A.2d 319, 322 (Del.Ch.1998).

It is our view that the plaintiffs claims in the present case are all negated by the explicit terms of the Private Placement Memorandum. In count two, the plaintiff alleges that the defendants breached their fiduciary duty through conflict of interest. The complaint alleges that it was a conflict of interest for James River to retain trading advisors who invest in other commodity pools operated by James River or who have other business relationships with James River. These exact relationships were clearly disclosed in the portion of the Private Placement Memorandum entitled Conflicts of Interest.

At bottom, the plaintiff argues that this type of conflict of interest is impermissible as a matter of law and cannot be waived. As we interpret the Delaware statute, however, this type of business arrangement is permissible where disclosed. See id. at 322 (“This flexibility is precisely the reason why many choose the limited partnership form in Delaware.”); see also Gotham Partners, L.P.; Gelfman v. Weeden Investors, L.P., 792 A.2d 977, 984-92 (Del.Ch.2001). There can be no doubt that the trading arrangements and conflict of interest were squarely disclosed in the Memorandum.

In count one, the plaintiff alleges a breach of fiduciary duty by the defendants by failing to diversify the investment approaches as promised in the Private Placement Memorandum. However, the actual claim made in count one is simply another version of count two. What the plaintiff claims the defendants did wrong was “allowing trading advisors to become heavily skewed towards investing in funds in which defendant [James River] was the General Partner.” (R. 148). As already stated, there clearly was disclosure that the Trading Advisors were allowed to invest in other funds operated by James River.

The Private Placement Memorandum does contain a discussion of the Fund’s desire to obtain diversification of trading methods and markets, but this area of the Memorandum had to do with the use of different Trading Advisors who used different approaches to trading in commodities. (R. 249, 253-54.) This portion of the Memorandum did not relate to the issue the plaintiff now seeks to raise: the claim that the Fund should not have invested (or invested so heavily) in commodity pools operated by James River.

In count three, the plaintiff claims that the defendants were negligent in changing the mix of Trading Advisors. The Memorandum disclosed, however, that “prospective investors should anticipate substantial turnover in the Trading Advisors which act on behalf of the Partnership.” (R. 254). The plaintiff maintains that as a result of this turnover and a failure to monitor the Advisors, the defendants allowed the Ad-visors’ investments to become heavily skewed toward investing in funds in which James River was the General Partner. This is simply a reiteration of the claim that the Fund should not have invested (or invested so heavily) in James River commodity pools. As already stated, investment in other funds of James River was specifically contemplated and authorized by the Private Placement Memorandum.

For the stated reasons, the dismissal of the action is correct and is affirmed.


author: PER CURIAM.

text:
    The STATE of Florida, FLORIDA HIGHWAY PATROL, Appellant, v. James CHANCELOR; [In re: The Forfeiture of: Twenty Nine Thousand Nine Hundred and Eighty ($29,980.00) in U.S. Currency], Appellee.
    No. 3D02-1211.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Richard E. Doran, Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellant.
    Stanley Jay Bartel, Miami, for appellee.
    Before LEVY, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Wackenhut Protective Sys., Inc. v. Key Biscayne Commodore Club Condo. I, Inc., 350 So.2d 1150, 1151 (Fla. 3d DCA 1977)(“Florida case law applies a test of prejudice to the defendant as the primary consideration in determining whether the plaintiffs motion to amend should be granted or denied.”). See also San Martin v. Dadeland Dodge, Inc., 508 So.2d 497 (Fla. 3d DCA 1987).


author: ALTENBERND, Judge.

text:
    FLEETWOOD HOMES OF FLORIDA, INC., Marvin Miller, and Mickie Oliver, Appellants, v. Allison Gae REEVES, as Personal Representative of the Estate of Dennis Mitchell Reeves, deceased, Appellee.
    No. 2D01-5308.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 2002.

      John W. Frost, II, and Peter W. Van den Boom of Frost Tamayo Sessums & Aranda, P.A., Bartow, for Appellants.
    Robin Gibson and Kevin A. Ashley of Gibson, Valenti & Ashley, Lake Wales; and John Hugh Shannon of John Hugh Shannon, P.A., Lakeland, for Appellee.
   ALTENBERND, Judge.

Fleetwood Homes of Florida (Fleet-wood) and its employees, Marvin Miller and Mickie Oliver, appeal a nonfinal order that denies, as a matter of law, their motions for summary judgment on the issue of workers’ compensation immunity. Fleetwood and its employees requested this ruling in a wrongful death action filed by Allison Gae Reeves, as the personal representative of the Estate of Dennis Mitchell Reeves. We conclude that we have jurisdiction to review this order and further conclude that Fleetwood and its employees are entitled to a summary judgment on the issue of workers’ compensation immunity. Accordingly, we reverse the trial court’s order. Because we are uncertain whether our exercise of jurisdiction and our resolution of these important immunity issues are faithful to the holdings in Hastings v. Demming, 694 So.2d 718 (Fla.1997), and Turner v. PCR, Inc., 754 So.2d 683, 686 (Fla.2000), we certify two questions of great public importance to the Supreme Court of Florida.

I. THE ACCIDENT

Dennis Reeves was an employee of Fleetwood, which manufactures homes in a factory. Although he normally had another job assignment, on April 1,1991, he was assigned to work at a table inside the factory. The table was adjacent to an aisle used by the forklift operators to move supplies into the factory. A structural column that supported the roof of the factory was across the aisle from this table. A pipe ran up the aisle side of this column. Because of the layout of the factory near this column, for a distance of about 25 feet, the aisle was narrower at ground level than the width of some of the supplies that were transported by the forklifts. As a result, the forklift operators had been instructed to raise wide loads to approximately 14 feet in the air.

A common wide load that was transported by the forklifts was sheet metal used as roofing material for the manufactured homes. This sheet metal came in rolls that weighed about 600 pounds and were about 12-feet wide. The forklifts transported three rolls per trip. The roofing material was not strapped onto the forklifts. When the roofing material was raised 14 feet in the air, the forklift operators did not have a clear view of the column and had only a few inches of clearance. They relied upon a painted stripe on the floor to properly position their forklifts to negotiate this narrow location.

When a forklift entered the factory, the operator honked its horn. This was a signal for nearby workers to move out of the way. Affected workers were instructed to heed the warning provided by the horn, but workers did not always respond to the horn. The management at Fleetwood had instructed the forklift operators to continue transporting their loads even if another worker did not move. They were expected to report such a problem to management at a later time. Because Mr. Reeves had never worked at this table prior to the day of the accident, it is unclear whether he had been instructed to heed the horn.

On the day of this accident, Marvin Miller was the forklift operator. He sounded the forklift’s horn as he entered this area with rolls of sheet metal. He did not know Mr. Reeves. He observed that Mr. Reeves was not leaving the table. He continued to transport the roofing material. As he was negotiating the narrow location by the column and the pipe, he was watching the painted marking on the floor for proper positioning. For some reason, the roofing material hit the pipe. The load was knocked off balance and a roll of the sheet metal slid off the driver’s left side of the forklift, striking Mr. Reeves. He sustained severe injuries and died shortly after this accident.

The management at Fleetwood knew that forklift operators had occasionally bumped this pipe when transporting wide loads. Mr. Miller’s foreman, Mickie Oliver, also knew that forklift operators had struck this pipe. There is no evidence, however, that a roll of roofing or any other wide load had ever previously fallen from a forklift or that any worker had ever been injured as a result of this procedure. Mr. Miller was a very experienced forklift operator. He had performed this maneuver on many occasions in the past. There is no evidence that he had any prior history of accidents, that he was driving too fast or recklessly at the time of this accident, or that he was under the influence of any unlawful substance. He simply misjudged the location of the pipe or the position of his load, and the accident happened.

OSHA investigated this accident. It declined to treat the accident as a willful violation of safety regulations. OSHA fined Fleetwood $7000 and ordered certain corrective action. Fleetwood is still allowed to raise wide loads into the air, but it now secures these elevated loads. It requires the forklift operators to clear employees from this area before transporting such loads. Fleetwood is taking greater steps to make certain that all employees are aware of this danger. Although it apparently was not required by OSHA, Fleetwood has moved the table away from the location of this accident.

II. THE LAWSUIT

Allison Reeves, as Mr. Reeves’ personal representative, filed this wrongful death action in 1993. The parties engaged in extensive discovery. Thus, although this is an appeal from a nonfinal order, our record contains detailed evidence about the circumstances surrounding this accident.

The second amended complaint contained six counts and described the factual allegations in considerable detail. The first count contained allegations against Old Republic Insurance Company that are not relevant to this appeal. The second and third counts attempted to allege simple negligence against Mr. Miller, Mr. Oliver, and Fleetwood. All three of these counts have been dismissed and are not at issue in this appeal.

The fourth count attempted to allege gross negligence as to the conduct of Mr. Miller. It alleged that (1) he knew, prior to this accident, that other workers had not been getting out of his way when he drove the elevated loads; (2) he knew Mr. Reeves did not respond to his warning and remained in an area of danger at the time of this accident; (3) he knew he had poor visibility and a small margin of error in which to maneuver this elevated load; (4) he knew the load was not secured; and (5) he knew these procedures were dangerous and a violation of safety policies. This count included an allegation that Mr. Miller had engaged in a course of conduct that a reasonably prudent person would know was probably and most likely to result in injury to persons.

The fifth count attempted to allege gross negligence against the foreman, Mr. Oliver. It realleged the risks described in the count against Mr. Miller and explained that Mr. Oliver was an experienced forklift operator who worked essentially as a foreman with the responsibility to supervise Mr. Miller’s work and to assure that it was performed safely. The complaint concluded that he too should have known that these circumstances were probably and most likely to result in injury to persons.

The sixth count attempted to allege an unspecified intentional tort against Fleet-wood. It realleged the conduct of Mr. Miller and Mr. Oliver. It alleged that management at Fleetwood had knowledge of these circumstances. It alleged that Fleetwood pressured its workers to maintain a high degree of productivity and did not provide adequate safety training or properly respond to the known safety issues created by the forklifts. It concluded that the “course of conduct” of the Fleet-wood employees was such that a reasonably prudent person would know that it was “substantially certain to result in injury or death.”

After this action had been pending for several years, Fleetwood and its employees moved for summary judgment. The parties apparently have never disputed that Mr. Reeves was an employee and that Fleetwood was a statutory employer who had provided workers’ compensation benefits. Thus, the dispositive issue for purposes of summary judgment was whether workers’ compensation benefits were the exclusive remedy in this case under section 440.11, Florida Statutes (Supp.1990), or, alternatively stated, whether Fleetwood and its employees could be sued in tort despite the availability of the statutory remedy.

The trial court conducted a lengthy hearing on this motion, which was transcribed. The trial court indicated at the hearing that it expected the issues would be appealed to this court. It carefully prepared an order denying summary judgment concerning the gross negligence claims against Mr. Miller and Mr. Oliver. In its order, the court expressly noted that the maneuver that resulted in this accident had been accomplished thousands of times by Mr. Miller and other forklift operators in the ten years preceding this accident “with no displacement of materials being carried on the forklifts.” The court also noted that Mr. Miller performed this maneuver at the time of the accident consistent with the manner in which he had performed it on hundreds of previous occasions, but that, on this occasion, one of the rolls of metal became dislodged and struck Mr. Reeves. The trial court concluded that

the acts complained of in the instant case were not as egregious as those present in [case law] in which recovery was allowed. Nevertheless, the Court finds that the occurrence of the subject incident was inevitable, given the violations alleged by plaintiff (which are disputed by defendant but, which must be accepted as true on a Motion for Summary Judgment).

Accordingly, the trial court ruled: “As to these Counts, as a matter of law, the defendant’s Motion should be DENIED.”

As to the count alleging an intentional tort against Fleetwood, the trial court concluded that Mr. Oliver’s knowledge of these dangers was chargeable to Fleet-wood. It repeated the above-quoted conclusion that, although the acts are not as egregious as those in other case law, this accident was “inevitable” in light of the ongoing safety violations associated with this maneuver. The trial court denied the motion for summary judgment on this count stating:

The Court finds that Oliver committed intentional acts ... or [acts] that were substantially certain to result in injury or death to [Reeves.] See Eller v. Shova, 630 So.2d 537, 539 (Fla.1993).

Fleetwood, Mr. Oliver, and Mr. Miller have timely appealed this nonfinal order.

III. JURISDICTION

This court has struggled with the question of whether it has jurisdiction in this case. Appellate jurisdiction over interlocutory orders in Florida is established by rules adopted by the supreme court. See art. V, § 4(b)(1), Fla. Const. Those rules limit the type of nonfinal orders that district courts can review. See Fla. R.App. P. 9.130. Moreover, by virtue of the nature of such nonfinal appeals, the district court’s scope of review is restricted to the specific issue resolved in the interlocutory order. Rule 9.130(a)(3)(C)(v) grants a district court jurisdiction to review a nonfinal order that “determines that, as a matter of law, a party is not entitled to workers’ compensation immunity.” The phrase “as a matter of law” was relocated within this rule in 1996. The committee notes to the rule explain that the change was made to clarify that this rule “was not intended to grant a right of nonfinal review if the lower tribunal denies a motion for summary judgment based on the existence of a material fact dispute.” Fla. R.App. P. 9.130(a)(3)(C)(v) committee notes (1996 amend.).

In Hastings v. Demming, 694 So.2d 718 (Fla.1997), the supreme court stated:

We changed the phrasing of the subject rule in order to settle the inconsistency between the district courts. Nonfinal orders denying summary judgment on a claim of workers’ compensation immunity are not appealable unless the trial court order specifically states that, as a matter of law, such a defense is not available to a party. In those limited cases, the party is precluded from having a jury decide whether a plaintiffs remedy is limited to workers’ compensation benefits and, therefore, an appeal is proper. Otherwise, the denial of the summary judgment may be based on a factual dispute and the party is still likely able to present an immunity defense to the jury. In those cases, the new rule makes clear that the district courts have no jurisdiction to hear an appeal of the nonfinal order.

Id. at 720.

Each party argues persuasively that this court either does or does not have jurisdiction. The appellants argue that the trial court obeyed Hastings and has specifically stated that the defense of workers’ compensation immunity is not available “as a matter of law.” As a result, Fleetwood and its employees will not be entitled to present an “immunity defense to the jury” if this case proceeds to trial. Ms. Reeves responds that the trial court clearly found unresolved questions of fact, thus leaving issues for a jury to decide.

Our jurisdictional dilemma is predicated on the fact that workers’ compensation immunity is not usually a defense at trial. This immunity is somewhat different from the affirmative defense of qualified immunity in a civil rights case, which is given comparable nonfinal appeal status. See Fla.R.App. P. 9.130(3)(c)(vii); Montague v. Cooley, 735 So.2d 511, 512 (Fla. 2d DCA 1999) (reversing denial of summary judgment on nonfinal appeal); see also Stephens v. Geoghegan, 702 So.2d 517 (Fla. 2d DCA 1997) (discussing nonfinal jurisdiction but using certiorari to grant relief); Vermette v. Ludwig, 707 So.2d 742, 744 (Fla. 2d DCA 1997) (same); Bd. of Regents v. Snyder, 826 So.2d 382 (Fla. 2d DCA 2002) (same).

In a civil rights case, qualified immunity is a separate and distinct question from the plaintiffs theory of liability. See, e.g., Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). While a plaintiff in such a case seeks' to prove a violation of his or her civil rights, the defendant argues that even if the act is a violation, the act was done “in good faith.” See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, a defendant must prove this affirmative defense, and the jury usually makes a separate finding on the verdict addressing this defense when it is a factual issue submitted to the jury.

In a workers’ compensation immunity case, the employer and fellow employees are generally entitled to invoke the exclusiveness of workers’ compensation liability under section 440.11 so long as the employer has provided the benefits required under section 440.10, Florida Statutes (Supp.1990). Rarely does a lawsuit involve a dispute over whether a defendant was the employer or whether the benefits under section 440.10 were provided. Instead, a plaintiff seeking damages in tort admits the fact that the benefits are available and then attempts to plead and prove the type of claim that avoids the exclusive liability restrictions of section 440.11.

It is important to understand the legal framework involved in such a lawsuit. In general, an employee may sue an employer for injuries arising from an intentional tort even if the employer provides workers’ compensation benefits. See Turner, 754 So.2d at 686. An employee may also sue a managerial employee or supervisor, if that person’s conduct rises to the level of culpable negligence, or a fellow worker, if that coworker’s conduct rises to the level of gross negligence or willful and wanton conduct. See § 440.11, Fla. Stat. (Supp.1990); Eller, 680 So.2d at 539. In such a lawsuit, if the plaintiff can prove the heightened level of misconduct, which is well above simple negligence, the defendant has no “defense” of workers’ compensation immunity. The defendant does not present evidence on some affirmative defense of immunity. The defendant simply argues that, under the particular standard of care, the jury should not impose liability on the defendant.

As a result of this legal framework, if a trial court decides to deny an employer’s or a fellow employee’s motion for summary judgment, the court will rarely state that it is deciding an issue “as a matter of law.” Instead, the trial judge will usually conclude that a disputed issue of fact exists as to whether the employer or the fellow employee was liable under the applicable lower standard of care. For example, the truth may be that the trial court in this case actually decided that Fleetwood and its employees were entitled to workers’ compensation immunity, but that immunity did not prevent this suit from going to trial on allegations of gross negligence or intentional tort. If the supreme court intends to prohibit appellate review of orders denying summary judgment in all cases where the trial court intends to allow the plaintiff to proceed to trial on an intentional tort or a claim of gross negligence or culpable negligence, then it might be simpler to eliminate rule 9.130(a)(3)(C)(v) because the rule would then have virtually no application to any order that a defendant would wish to appeal.

The history of the workers’ compensation system demonstrates that the legislature intended to give coworkers and employers immunity from suit except in extraordinary situations. Such immunity not only limits the expense of doing business in Florida over and above the admittedly significant expenses of the workers’ compensation no-fault system, but also helps maintain a better work environment in which coworkers are not constantly in fear of being sued by their fellow employees. The legislature has thus created an exclusive, administrative, no-fault remedy that is unaffected by comparative negligence in exchange for broad immunity from lawsuits for employers and coworkers. The goal of this policy is to avoid lawsuits at the outset, not simply to prevent adverse verdicts against employers and coworkers at the end of lengthy litigation. If the trial courts are to foster these legislative policies, they must serve as gatekeepers at the initial stages of litigation. If the appellate courts are to monitor compliance with these legislative policies, the review must take place at the time the nonfinal order is entered, and not after lengthy and expensive litigation. Cf. Tucker v. Resha, 648 So.2d 1187, 1189 (Fla.1994) (nonfinal appeal necessary to achieve immunity from suit).

We are convinced the supreme court understands these policy distinctions and intends for the district courts to have jurisdiction to review cases similar to this case. In this case, there are undoubtedly factual questions in dispute. However, because the standards of care applicable to gross negligence, culpable negligence, and intentional tort are very limited, the disputed facts in this case do not actually create disputes concerning the material issues. In other words, the facts in the light most favorable to the plaintiff are so “crystallized” that a court can determine, as a matter of law, that these facts do not rise to the heights of gross negligence, culpable negligence, or intentional tort. See Hastings, 694 So.2d at 719. Thus, rule 9.130(a)(3)(C)(v) should restrict us from examining cases where the record is not factually well-developed on the issue of workers’ compensation immunity, -but it should not prevent us from enforcing the legislative policy of immunity when we can review a well-developed record to conclude that the plaintiff cannot present prima fa-cie evidence to establish the exceptional case of gross negligence, culpable negligence, or intentional tort in this context.

The trial court in this case expressly included within its order the language mandated by Hastings to give this court jurisdiction. It reviewed a well-developed record. We conclude that the trial court was correct in concluding that its order was appealable under rule 9.130(a)(3)(C)(v).

Even if we had no jurisdiction of this proceeding as an appeal from a nonfinal order, we believe we could review this matter under our certiorari jurisdiction. This court has previously exercised certio-rari jurisdiction to review issues related to sovereign immunity. See Stephens, 702 So.2d 517; Snyder, 826 So.2d 382 (reviewing by certiorari nonfinal orders denying defense of sovereign immunity). As explained in the next section, the trial court’s concept of an “inevitable” accident as a method to establish gross negligence or an intentional tort is a departure from the essential requirements of the law that deprives the defendants of a statutory right to claim an immunity from suit. We cannot adequately remedy on direct appeal a legal error that denies an immunity created by the legislature to avoid trial in the first place. See, e.g., Pearlstein v. Malunney, 500 So.2d 585, 587-88 (Fla. 2d DCA 1986) (holding certiorari appropriate remedy to enforce presuit requirements in medical malpractice context).

IV. EMPLOYEES’ LIABILITY FOR GROSS NEGLIGENCE

There is no question that Fleet-wood could have devised a safer method to transport this roofing material. If the issue in this case were simple negligence, there would be enough negligence for all the parties to share. The issue in this case as it relates to the claim against the fellow employees, however, is whether a jury could permissibly find the conduct of the two coworkers so irresponsible that it fell to the level of gross negligence.

It is worth emphasizing that we address the issue of gross negligence in the context of workers’ compensation immunity under section 440.11. Gross negligence has been a useful tool for both the common law and the legislature. It has been employed in many different contexts. It is doubtful that “gross negligence” has precisely the same meaning in each context. Justice England stated in Ingram v. Pettit, 340 So.2d 922 (Fla.1976):

Our jurisprudence reflects a history of difficulty in dividing negligence into degrees. The distinctions articulated in labeling particular conduct as “simple negligence,” “culpable 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. Our guide is not to be found in the grammar, but rather in the policy of the state in regard to highway accidents.

Id. at 924 (footnotes omitted). For example, a significant portion of our case law addressing and defining gross negligence has been written in the context of the much-maligned guest passenger statute. See, e.g., Glaab v. Caudill, 236 So.2d 180 (Fla. 2d DCA 1970). Other cases rely on this term to decide whether “gross negligence” is sufficient for punitive damages. See W.R. Grace & Co. v. Waters, 638 So.2d 502 (Fla.1994). Thus, even when the definition of “gross negligence” remains constant, there is reason for concern that the standard of care created for one purpose may not be justified for use in another.

Perhaps the leading case defining “gross negligence” for purposes of the guest passenger statute was one of the last guest passenger cases. In Glaab, 236 So.2d 180, Judge McNulty stated:

At the outset, we recognize that articulating the concept of gross negligence has always been difficult; and we submit that the root of the difficulty is the fact that, prior to Carraway v. Revell [116 So.2d 16 (Fla.1959) ], gross negligence was apparently fully equated with “wilful and wanton” negligence. The bench and bar have therefore been oriented to that equation. Since Carraway, however, it is clear that there is a difference between the two; but the semantic divorce separating them, it seems, has never quite been finalized. We hope our discussion here of gross negligence will at least discourage re-cohabitation.
By definition, it is now rudimentary that gross negligence is that act or omission which a reasonable, prudent man “would know would probably and most likely,” result in an injury to another; and, from a standpoint of degree, it is clear that gross negligence lies between simple negligence and the “wilful and wanton” conduct sufficient, if death results, to constitute “culpable negligence” within the crime of manslaughter. But we would agree that such “ * * * delimitation of ‘gross’ or ‘wanton’ negligence from other forms of negligence is neither conceptually satisfactory nor practically simple * * * ”; so this case affords us an opportunity to suggest what we perceive to be a workable set of criteria to assist in the determination of prima facie gross negligence vel non in automobile guest-passenger cases.

Glaab, 236 So.2d at 182-83 (footnotes omitted).

Judge McNulty suggested three prongs to the usual analysis of gross negligence: (1) the existence of a composite of circumstances which, together, constitute an imminent or clear and present danger; (2) chargeable knowledge of the danger; and (3) an act or omission, evincing a conscious disregard of consequences that is more than simple carelessness. Glaab, 236 So.2d at 183. As to this last factor, Glaab suggested that the probability that the consequences will result in injury must be “more than a real possibility, though not necessarily better than a 50-50 probability.” Glaab, 236 So.2d at 184.

By comparison, current statutes authorize an award of punitive damages based on clear and convincing evidence of gross negligence. See § 768.72(2), Fla. Stat. (2000), amended by ch. 99-225, § 22, Laws of Fla. This statute defines “gross negligence” to include “conduct [that] was so reckless or wanting in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.” Id. This definition is arguably a little narrower than the common law definition and somewhat closer to the usual definition of “culpable negligence,” which is reckless indifference or grossly careless disregard of human life. See Eller, 630 So.2d at 541 n. 3. This development suggests that most, if not all, cases against coworkers that are entitled to be presented to juries will now include a claim for punitive damages against the coworker. Again, we believe that the legislature intends such claims to be an exceptional event.

The procedure for transporting sheet metal that was devised by Fleetwood and implemented by Mr. Oliver and Mr. Miller may have been more dangerous than another method. On the other hand, it was a procedure that had been successfully performed on many occasions over many years. By the time of this accident, from the perspective of Mr. Oliver and Mr. Miller, this procedure was a standard, proven method for moving the sheet metal through the narrow section of the aisle. In hindsight, there were safer ways to perform this task, but at the moment Mr. Miller was transporting the fatal load on April 1, 1991, it was not a procedure that an ordinarily prudent person, in light of the composite of circumstances, would regard as creating a clear and present danger. Likewise, after years of successfully performing this task, these men cannot be regarded as acting in conscious disregard for the safety of a coworker whose workplace was on the opposite side of the aisle from the pipe.

We disapprove the method by which the trial judge measured the degree of risk. The trial court concluded that this method of transport involved a level of risk to the workers and that if it were performed often enough or long enough, eventually it was “inevitable” that someone would be hurt or killed. However, any modestly dangerous activity at a workplace that is repeated often enough or long enough will eventually result in an accident. Although the concept of “gross negligence” examines the combination of circumstances to evaluate the relevant risk, it does not add together or cumulate the individual probabilities of an accident on each occasion to reach a conclusion that an accident is inevitable or that a risk is inordinately high. The tortfeasor’s conduct must be evaluated in the context of the particular occurrence. In this case, if anything, the numerous successful performances of the challenged procedure show that a risk of accident on April 1, 1991, was far from imminent. This is not a case in which the employer continued to use the procedure after earlier mishaps or after it received warnings from other governmental or nongovernmental entities. Cf. EAC USA, Inc. v. Kawa, 805 So.2d 1 (Fla. 2d DCA 2001) (holding complaint stated claim for contribution from employer).

Accordingly, we reverse the trial court’s order and require that final summary judgment be entered in favor of Mr. Miller and Mr. Oliver on remand.

V. FLEETWOOD’S LIABILITY FOR AN INTENTIONAL TORT

The wrongful death claim against Fleetwood is premised on an intentional tort theory. The pleadings are designed to meet the rule announced in Turner, 754 So.2d 683 at 686, by alleging that Fleet-wood “intentionally created a situation where injury or death was a substantial certainty.” Turner, 754 So.2d at 688. This is an objective test rather than a subjective one. The issue is whether a reasonable person in like circumstances to those of the employer would understand that the employer’s conduct was substantially certain to result in injury or death. As the supreme court explained in Turner, this liability is permitted despite the exclusiveness of the workers’ compensation remedy because the likelihood of injury is so high that the event cannot be regarded as an accident. Turner, 754 So.2d at 689.

The trial court denied summary judgment on this theory relying on reasoning comparable to its reasoning on gross negligence. It concluded that if this method of transport were used long enough, an accident would be inevitable. Again, we do not believe that the supreme court in Turner intended to allow a plaintiff to add together small risks of injury in order to reach a combined total where the likelihood of injury to some employee sometime was substantially certain. If that were the case, then many injuries that occur while roofing or while performing any other moderately dangerous, repetitive job would be classified as the result of intentional torts.

We conclude that the undisputed evidence in the light most favorable to the plaintiff simply does not create a genuine issue of material fact under the high threshold required to establish an intentional tort in this context. Accordingly, we reverse and remand for entry of judgment in favor of Fleetwood.

Because these issues affect business throughout Florida and affect our jurisdiction over trial court orders deciding issues of workers’ compensation immunity, we certify the following questions as questions of great public importance:

MAY A DISTRICT COURT REVIEW A NONFINAL ORDER DENYING, “AS A MATTER OF LAW,” A MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF WORKERS’ COMPENSATION IMMUNITY IF IT IS CLEAR THAT THE TRIAL COURT INTENDS TO SUBMIT THE ISSUE OF GROSS NEGLIGENCE OR INTENTIONAL TORT TO THE JURY AS A QUESTION OF FACT?
IF AN EMPLOYER ALLOWS ITS EMPLOYEES TO PERFORM A NEGLIGENT PROCEDURE REPEATEDLY AND FOR A LONG PERIOD, MAY THE FIRST INCIDENT IN WHICH THE PROCEDURE RESULTS IN INJURY OR DEATH BE TREATED AS AN INTENTIONAL TORT UNDER TURNER V. PCR, INC., 754 So.2d 683 (Fla.2000).

Reversed and remanded.

GREEN and WHATLEY, JJ., concur.

      . The actual second amended complaint is thirty-two pages in length and describes the facts in great detail. The summary in this opinion, however, should provide the reader with a satisfactory understanding of the lengthy allegations.

      . Formerly, this provision read "that a party is not entitled to workers' compensation immunity as a matter of law.”

      . At best, it is plausible that a jury in such a trial might be allowed to understand that the defendant gets the benefit of a lower standard of care because workers' compensation benefits were provided by the employer and because the workers’ compensation system is intended to be the exclusive remedy for most work-related injuries.

      . Under this interpretation, this jurisdictional rule would allow review only in the very rare case where the trial court determined, as a matter of law, that the undisputed facts established that the defendant was not the statutory employer or a coworker. So interpreted, the rule would allow for appeal only when the trial court was planning to proceed to trial on the issue of the defendant's simple negligence because the trial court had rejected, as a matter of law, tire claim that the defendant was an employer or fellow employee.

      . See, e.g., Jacobs v. Seminole Canvassing Bd., 773 So.2d 519, 523 (Fla.2000) (applying gross negligence standard to misconduct for election officials); § 161.054, Fla. Stat. (2001) (violators of certain coastal environmental regulations); § 373.333, Fla. Stat. (2001) (water-well contractors), § 457.109, Fla. Stat. (2001) (acupuncture instructors); § 539.001(6)(a)(4), Fla. Stat. (2001) (pawnbrokers); § 686.402(10)(a), Fla. Stat. (2001) (individuals in franchise relationships who commit fraudulent misrepresentation).
      “Gross negligence” by a government entity waives sovereign immunity in many contexts. See § 252.51, Fla. Stat. (2001) (conducts mock emergencies to train emergency personnel); § 316.0085, Fla. Stat. (2001) (when government provides skateboarding, inline skating, and freestyle bicycling facilities); 373.1395, Fla. Stat. (2001) (opens water district areas to public for free).
      "Gross negligence” is also the applicable standard of care in many private contexts. See § 265.565, Fla. Stat. (2001) (duty owed by museums that accept certain items on loan); § 320.8249(9)(f), Fla. Stat. (2001) (defendants who install mobile homes); § 376.09(4), Fla. Stat. (2001) (remove cargo ship pollution); § 418.302, Fla. Stat. (2001) (certain activities at mobile home parks); 627.728, Fla. Stat. (2001) (duty owed by insurance companies that disclose false information in cancellation letter); § 713.3l(2)(a), Fla. Stat. (2001) (liability for improper construction lien); § 725.06(l)(c), Fla. Stat. (2001) (prohibition for indemnity for such conduct in construction contracts); § 768.075(1), Fla. Stat. (2001) (duty owed by property owner to intoxicated trespasser); § 768.1325(4)(a), Fla. Stat. (2001) (use portable defibrillators to revive heart attack victims); § 768.136(2), Fla. Stat. (2001) (distribute food for free).
      "Gross negligence” is a standard of legal malice in a claim of malicious prosecution, Durkin v. Davis, 814 So.2d 1246, 1248 (Fla. 2d DCA 2002), and false imprisonment, City of Hollywood v. Coley, 258 So.2d 828 (Fla. 4th DCA 1971).
      "Gross negligence” can violate professional or legal duties. See Fla. Bar v. Mason, 826 So.2d 985 (Fla.2002) (holding that an attorney was guilty of gross negligence by violating Rule Regulating Florida Bar 4-8.4(c) for improperly maintaining funds in a trust account).

      . The guest passenger statute, § 320.58, Fla. Stat. (1971), was repealed in 1972. Ch. 72-1, Laws of Fla.

      . This statute apparently overruled earlier case law that prohibited punitive damages based on gross negligence. See Como Oil Co. v. O'Loughlin, 466 So.2d 1061, 1062 (Fla.1985).

      . On appeal, Mr. Oliver has made an argument that he is a supervisor entitled to be judged by the culpable negligence standard. Because we conclude that he is not liable under the gross negligence standard, which is a higher standard, we do not reach this issue.

      . We note that the pleading does not identify the relevant intentional tort. We assume that the relevant intentional tort in both Turner and this case is battery.


text:
    Joseph GONNELLA, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D01-2220, 4D02-188.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Carey Haughwout, Public Defender, Margaret Good-Earnest, and Jose Castan-dea, Assistant Public Defenders, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Dale v. State, 703 So.2d 1045 (Fla.1997).

POLEN, C.J., SHAHOOD and GROSS, JJ., concur.


text:
    Edith RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4201.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.140(b)(2)(A)(ii); Robinson v. State, 373 So.2d 898 (Fla.1979).

WARNER, SHAHOOD and MAY, JJ„ concur.


text:
    Chavis JEAN-MARIE, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D01-3240, 4D01-3578.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals his revocation of probation in two separate case numbers. We affirm one and reverse the other.

The trial court placed the defendant on probation in 1999 in two eases, lower case numbers 99-8348 and 99-8820. Each case number had a separate order of supervision of probation. The probation officer filed an affidavit of violation listing only case number 99-8348. The subsequent arrest warrant in the record listed only case number 99-8348.

At the revocation hearing, the State pursued revocation in both case numbers, and the defendant contested the merits of the violations but did not object to the additional violation count. When pronouncing sentence, the trial court examined the warrant and then revoked probation in both cases.

On the record before us, both the affidavit and the warrant alleged violation in case number 99-8348 only. We hold that it was fundamental error to revoke probation in case number 99-8820 where neither the affidavit of violation nor the warrant alleged a violation in that case. The trial court did not have jurisdiction to enter revocation in that case without a charging document. Therefore, we affirm the revocation in case number 99-8348 but reverse the revocation in case number 99-8820. Upon remand, the trial court may reconsider entering revocation if the State files the proper affidavit and warrant.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

GUNTHER, FARMER, JJ„ and STREITFELD, JEFFREY E., Associate Judge, concur.


text:
    Stuart CITRIN, Appellant, v. Thomas Edward DE VENNY and De Venny, Inc., a Florida corporation, Appellees.
    No. 4D01-5003.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Harry E. Geissinger, III, Palm Beach, for appellant.
    Frances F. Guasch of Luis E. Ordonez & Associates, Miami, for appellees.
   PER CURIAM.

This is an appeal from an Order Denying Plaintiffs Second Emergency Motion for Continuance and Final Order of Dismissal of an action for personal injuries allegedly suffered by Mr. Citrin on September 17, 1996, when struck while riding his bicycle by Defendants’ motor vehicle.

Without reciting the tortured history of the trial court’s diligent attempts to bring this case to trial, for our purposes it is sufficient to state that Mr. Citrin filed his first Complaint in 1997, obtained multiple continuances, discharged or suffered the withdrawal of several attorneys, dismissed his action in 1999 on the eve of trial, and generally would have strained the patience of the trial judge even if her name was Mrs. Job.

However, on August 31, 2001, when Mr. Citrin’s refiled case was about to go to trial, he filed an Emergency Motion for Continuance because his ninety-year-old mother had just been admitted to the intensive care unit at Broward General Medical Center; she was on life support and needed emergency surgery. Mr. Citrin was solely responsible for his mother, had been caring for her for several years, and needed to be by her side to care for her and to make medical decisions on her behalf. The defendants objected. The understandably skeptical trial judge verified the truthfulness of Mr. Citrin’s statements by contacting the hospital.

Instead of granting the continuance, the trial court placed the case on day to day status, and recalled the case for trial two weeks later. Mr. Citrin then filed his Second Emergency Motion for Continuance, alleging that his mother’s first surgery was unsuccessful, that she remained in intensive care and that he was needed by her bedside. Mr. Citrin further asserted that he was unable to focus on anything other than his mother’s health and welfare and could not concentrate on his trial, his testimony, or assisting his attorney. The defendants again objected, and urged the trial court to condition any further continuance on payment of the costs incurred in twice coming to trial.

The trial court gave Mr. Citrin two options: 1) go to trial and be given frequent breaks to travel to the hospital (which is only ten minutes away from the courthouse), or 2) reimburse defendants for the costs of two trial preparations, which included expert witness fees incurred, in the total sum of $6,000. The payment would have to be made in cleared funds prior to the reset trial date, November 19, 2001.

Mr. Citrin responded that he could not function under the circumstances of his mother’s critical condition and hospitalization, and could not pay the sum ordered prior to the next date set for trial. Plaintiffs counsel asked the trial court to tax these costs “should the Defendant win.” When Mr. Citrin refused to accept either of the offered options, the trial court dismissed the action with prejudice.

Once the trial judge determined that the grounds for continuance were well-founded, granting a continuance upon the condition of paying the costs of the opposing party constitutes an abuse of discretion. Speight v. City of Fort Walton Beach, 180 So.2d 385 (Fla. 1st DCA 1965).

Given the circumstances of Mr. Citrin’s mental condition, denial of a continuance constituted an abuse of discretion. SSJ Mercy Health Sys., Inc. v. Posey, 7506 So.2d 177 (Fla. 4th DCA 2000). In this instance, the cause of the request for continuance was unforeseeable and was not the result of dilatory practices. The prejudice to the Defendants was monetary, and could have been cured by taxing the costs created by the delays at the conclusion of the case. Fleming v. Fleming, 710 So.2d 601 (Fla. 4th DCA 1998).

For these reasons, the Final Order of Dismissal is reversed and remanded for trial.

GUNTHER, FARMER, JJ., and STREITFELD, JEFFREY E„ Associate Judge, concur.


text:
    CARTAN TOURS, INC., a Delaware corporation, Appellant, v. ESA SERVICES, INC., a Delaware corporation, Appellee.
    No. 4D02-874.
    District Court of Appeal of Florida, Fourth District.
    Jan. 2, 2003.
    Kenneth B. Robinson and Noam J. Cohen of Rice, Pugatch, Robinson & Schiller, P.A., Miami, and Jesse H. Diner of Atkinson, Diner, Stone, Mankuta & Ploucha, P.A., Hollywood, for appellant.
    Richard Lydeeker and Peter Hooger-woerd of Lydeeker & Associates, P.A., Miami, for appellee.
   PER CURIAM.

Plaintiff Cartan Tours, Inc. (“Cartan”) filed suit seeking declaratory judgment as to its rights and obligations under a contract with Defendant ESA Services, Inc. (“ESA”), and the return of its payments made under the agreement. ESA moved for judgment on the pleadings, and Cartan appeals the final judgment in favor of ESA. We reverse the trial court’s order with instructions to reinstate Cartan’s complaint.

Cartan set forth the following facts in its complaint. Cartan and ESA are both Delaware corporations, and ESA’s principal place of business is in Fort Lauderdale, Florida. ESA manages and operates hotels and motels under the name of ‘Extended Stay America’ Cartan managed corporate Olympic programs for the 2002 Salt Lake City Winter Olympic Games, and in that capacity entered into the Salt Lake City Olympic Games Hotel Agreement (“Hotel Agreement”) with ESA. Under the Hotel Agreement, Cartan was to pay $2,452,800.00 in exchange for the license of 372 rooms at three sites in Salt Lake City during the Olympics. Cartan has paid the full $2,452,800.00 to ESA.

The Hotel Agreement contains a force majeure clause as follows:

In the event of material acts, including without limitation, civil disorder, strikes, government actions, terrorism, or other material acts beyond the reasonable control of either party to this Agreement, and affecting the ability of the Olympic Games to be held, the Hotel shall refund to Cartan all RLC payments made by Cartan pursuant hereto ....

(emphasis added).

The complaint goes on to describe the acts of terrorism that took place on September 11, 2001, the delivery of anthrax-contaminated letters in Florida, New York, and Washington D.C., the war against terrorism including hostilities in Afghanistan, and the public perception that the Olympics are a likely target of terrorists. These circumstances, Cartan alleged, “have drastically affected the ability of the Olympic Games to be held in a manner reasonably contemplated by the parties at the time they entered into the Hotel Agreement.”

ESA filed a motion for judgment on the pleadings, arguing that the events described in the complaint did not affect “the ability of the Olympic Games to be held,” and that “the complaint is hopelessly riddled with pure speculations concerning why Cartan feels the general public is not purchasing Cartan’s tour packages to Salt Lake City ....” ESA argued that because the Olympics were going forward, as conceded in the complaint, the facts Cartan set forth were not sufficient to trigger the force majeure clause.

One of the points Cartan raises on appeal is that the phrase “affecting the ability of the Olympic Games to be held” is ambiguous, requiring the court to look to extrinsic materials to determine the intent of the parties. See Dinallo v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 768 So.2d 468, 471 (Fla. 4th DCA 2000) (in construing ambiguous contract term, ruling as to parties’ intent will be sustained if supported by competent, substantial evidence); Elmore v. Enter. Developers, Inc., 418 So.2d 1078, 1080 (Fla. 4th DCA 1982) (court may look to extrinsic evidence to determine parties’ intent in construing ambiguous terms of agreement). Because construction of the ambiguous language requires that the court look beyond the pleadings, and judgment on the pleadings is limited strictly to the pleadings, it was error for the trial court to grant ESA’s motion. See Krieger v. Ocean Props., Ltd., 387 So.2d 1012, 1013 (Fla. 4th DCA 1980) (citing McAbee v. Edwards, 340 So.2d 1167 (Fla. 4th DCA 1976) (judgment on the pleadings is limited wholly to the pleadings)). We agree.

In considering a motion for judgment on the pleadings, courts must take the well-pleaded allegations of the party opposing the motion as true, and the allegations of the moving party that have been denied as false. Windle v. W.W. Windle Co., 731 So.2d 36, 37 (Fla. 4th DCA 1999); Gen. GMC Truck Sales and Serv. Inc. v. J.D. Simm, 430 So.2d 998, 999 (Fla. 4th DCA 1983). Motions for judgment on the pleadings must be decided wholly on the pleadings, without the aid of outside matters. Krieger, 387 So.2d at 1013.

Because the phrase “affecting the ability of the Olympic Games to be held” could reasonably mean preventing the games altogether as ESA contends, or simply affecting them as Cartan urges, it is ambiguous. Yardum v. Scalese, 799 So.2d 382, 383 (Fla. 4th DCA 2001) (“Where a written instrument lends itself to more than one reasonable interpretation, it is ambiguous and therefore summary judgment is improper for either party.”). As such, relief on the pleadings was improper because the ambiguity requires the court to look beyond the pleadings to interpret the language of the contract. Krieger, 387 So.2d at 1013; Dinallo, 768 So.2d at 471.

Accordingly, we reverse the order granting ESA’s motion for judgment on the pleadings, with instructions to reinstate Cartan’s complaint.

REVERSED AND REMANDED.

POLEN, C.J., GUNTHER and HAZOURI, JJ., concur.


author: DAVIS, Judge.

text:
    Michael J. MARTEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2869.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2003.
    James Marion Moorman, Public Defender, and Deborah Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Michael J. Martel pleaded nolo conten-dere to driving with license suspended or revoked and armed trafficking in methamphetamine, reserving his right to appeal the trial court’s denial of his motion to suppress. Martel was stopped and arrested solely on information provided by a confidential informant.

After reviewing this record, we conclude that, based on the totality of the circumstances test as discussed in State v. Butler, 655 So.2d 1123 (Fla.1995), the State failed to show that law enforcement had probable cause to justify the arrest and subsequent search of Martel. Accordingly, the trial court erred in denying the motion to suppress.

Reversed.

BLUE, C.J., and KELLY, J., Concur.


author: WHATLEY, Judge.

text:
    William WHITMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4207.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 2003.
    Cassandra Gorton, Sarasota, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

We affirm William Whitman’s sentence without prejudice to any right he may have to file a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a).

COVINGTON and KELLY, JJ., Concur.


author: BLUE, Chief Judge.

text:
    Danny TORO, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-4387.
    District Court of Appeal of Florida, Second District.
    Jan. 8, 2003.
    Danny Toro, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Michele Taylor, Assistant Attorney General, Tampa, for Appellee.
   BLUE, Chief Judge.

Danny Toro appeals the denial of his postconviction relief motion alleging ineffective assistance of trial counsel. We affirm the summary denial of five of the six claims presented in Toro’s motion. The remaining claim was denied following an evidentiary hearing. Because counsel should have been appointed to represent Toro at the evidentiary hearing, we reverse the order denying the claim presented in ground three and remand for appointment of counsel and a new eviden-tiary hearing. See Lee v. State, 801 So.2d 1022 (Fla. 2d DCA 2001).

Affirmed in part, reversed in part, and remanded with directions.

SALCINES and DAVIS, JJ., Concur.


text:
    S.W.W., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-820.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2003.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Andrea D. England (Ft.Lauderdale), Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., SHEVIN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

S.W.W., a juvenile, appeals an adjudication of delinquency finding him guilty of willfully interrupting or disturbing a school in violation of section 877.13, Fla. Stat. (2001). We reverse the adjudication. The state did not establish that the juvenile “deliberately acted to create a disturbance.” S.H.B. v. State, 355 So.2d 1176, 1179 (Fla.1977). The record does not support a finding that the juvenile acted “with the intention that his behavior impede the successful functioning” of the school or that he acted “with reckless disregard of the effect of his behavior.” Id.

Reversed and remanded with instructions to enter a judgment of acquittal for violation of section 877.13.