author: SHEVIN, Judge.

text:
    The PAUL REVERE LIFE INSURANCE COMPANY, Appellant, v. DAMUS, ECKER, ROSENTHAL AND MARSHALL, M.D., d/b/a Emergency Room Medical Associates, Inc., Appellee.
    No. 3D02-3434.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Rehearing and Rehearing En Banc Denied Jan. 30, 2004.

      Adorno & Yoss and Jack R. Reiter and Natalie J. Carlos, Miami, for appellant.
    Ver Ploeg & Lumpkin and R. Hugh Lumpkin and Jason S. Mazer, Miami, for appellee.
    Before LEVY, SHEVIN and WELLS, JJ.
   SHEVIN, Judge.

The Paul Revere Life Insurance Company appeals a final summary judgment in favor of Emergency Room Medical Associates, Inc. [“ERMA”], finding coverage under a disability insurance policy. We reverse.

Paul Revere issued a “Disability Policy for Business Buyout Expense” to ERMA to cover losses it would incur if its shareholder, Dr. Steven N. Ecker, became disabled and ERMA was required to buy his shares in the practice. Paul Revere also issued Dr. Ecker an individual disability policy. Three years later, Dr. Ecker and ERMA filed total disability claims, asserting that Dr. Ecker’s lifelong degenerative eye disease, keratoconus, rendered him unable to work. Dr. Ecker had been receiving treatment for keratoconus since he was 14 years old. Paul Revere denied the claims asserting that the illness was not a covered “sickness” under the policy because it manifested itself before the policy was issued. Dr. Ecker sued Paul Revere in federal court to recover under his disability policy. The court awarded Paul Revere a summary judgment finding that the condition was not covered under the policy because it manifested itself before the policy’s issue date. Ecker v. The Paul Revere Life Ins. Co., No. 96-0553 (S.D.Fla. Mar. 16, 1998)(order granting partial summary judgment).

ERMA filed an action against Paul Revere in Miami-Dade County Circuit Court for breach of contract. ERMA argued that Paul Revere could not deny coverage under the policy’s incontestability clause, pursuant to section 627.607, Florida Statutes (2002), because the policy had been in force for over two years when it filed the disability claim. Paul Revere answered that no benefits were due under the policy because Dr. Ecker’s condition manifested itself prior to the issuance of the policy and is not a covered “sickness,” as defined in the policy. Both parties filed motions for summary judgment. The court granted ERMA’s motion finding that the incontestability clause precluded Paul Revere from denying coverage, and finding that the policy was ambiguous, contravening section 627.607. Paul Revere appeals.

The issue in this case is whether an insurer can deny disability coverage for a condition that manifested itself before the disability policy was issued, or whether the claim must be paid because it was submitted beyond the policy’s two-year incontestability period. We hold that the incontestability clause does not apply to this claim as it falls outside the policy’s scope of coverage.

Incontestability clauses place a time limit on an insurer’s ability to contest a policy based on misrepresentations or other conditions of coverage. 17 Couch on Insurance § 240:1, at 240-8 (3d ed.2000). The incontestability clause “safeguards an insured from excessive litigation many years after a policy has already been in force .... ” Massachusetts Cas. Ins. Co. v. Forman, 516 F.2d 425, 428 (5th Cir.1975); Prudential Ins. Co. v. Prescott, 130 Fla. 11, 176 So. 875 (1937). However, “an incontestability] clause in a disability policy does not deprive the insurer from defending on the ground that the particular disability was never within the policy coverage.” Forman, 516 F.2d at 428. “The provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage the policy shall stand, unaffected by any defense that it was invalid in its inception .... ” Forman, 516 F.2d at 428-29 (citing United States v. Kaminsky, 64 F.2d 735 (5th Cir.l933)(Cardozo, C.J.)).

Where loss is claimed by reason of disability covered by the policy, it is necessary, under the average policy, that the cause of such disability arise within the policy terms and after the insurance has been effected. This is a condition of liability, a condition of the insurance, .... The incontestable clause does not apply under those circumstances, and there can be no recovery unless the cause of disability arose within the time designated.

1A Appleman, Insurance Law and Practice § 333 at 390 (1981).

The threshold question in a case involving application of an incontestability clause is “whether the claim of the insurer relates to the validity of the policy or whether it relates to limitations of coverage. If it relates to the former it is barred; if to the latter it is not.” Home Life Ins. Co. v. Regueira, 313 So.2d 438, 439 (Fla. 2d DCA 1975), cert. denied, 328 So.2d 844 (Fla.1976); Preferred Risk Life Ins. Co. v. Sande, 421 So.2d 566 (Fla. 5th DCA 1982). ERMA’s case falls under the latter scenario. This case involves a denial of coverage based on a coverage limitation: The Paul Revere disability policy definition of “sickness” excludes diseases that manifest themselves before the policy issues. See supra n. 1.

It is undisputed that Dr. Ecker’s condition manifested itself many years before the policy was issued. The fact that the illness did not become disabling until after the policy was in force is not the determinative factor. This fact does not automatically bring the claim under the protection of the policy’s incontestability clause.

This case is governed by this court’s decision in North Miami General Hospital v. Central National Life Insurance Co., 419 So.2d 800 (Fla. 3d DCA 1982). North Miami General Hospital involves an identical issue: A denial of coverage for a claim filed beyond the two-year incontestability period for a disease that had been diagnosed before the policy was issued. To determine whether the incontestability clause controlled, the court focused on the date the loss was incurred — the date the insured was first treated for the condition. Id. at 802. In the case before us, the loss was incurred when Dr. Ecker began receiving treatment for keratoconus. Under the reasoning in North Miami General Hospital, no benefits are available to ERMA.

Moreover, if we were to adopt the argument that the loss occurs on the date the claim is filed, an argument rejected in North Miami General Hospital, then “an insured could always avoid contestability merely by waiting until the two-year period had expired before filing a claim. We cannot adopt an interpretation which would render the legislatively-created two-year provision ineffective and purposeless.” Id. Here, the incontestability clause does not work to create coverage. See also Barnes v. Lincoln Nat’l Life Ins. Co., 338 So.2d 898 (Fla. 1st DCA 1976)(incon-testable clause ineffective to overcome restriction-of-benefits endorsement).

In addition, the three cases the trial court relied on in granting summary judgment, Kaufman v. Mutual of Omaha Insurance Co., 681 So.2d 747 (Fla. 3d DCA 1996), Lubin v. Provident Life & Accident Insurance Co., 681 So.2d 753 (Fla. 3d DCA 1996), and DiFranco v. National Foundation Life Insurance Co., 551 So.2d 535 (Fla. 3d DCA 1989), do not require an affirmance. These cases are not disposi-tive of the issue before us.

In Kaufman, the court held that an insurer could not attack the validity of an insurance contract after the two-year incontestability period had expired. Significantly, the Kaufman court emphasized that there was no evidence that the insured’s condition, for which benefits were being claimed, had been diagnosed or treated before issuance of the policy. Kaufman, 681 So.2d at 751 n. 7. Here, there is no dispute that Dr. Ecker’s condition was diagnosed and treated before the policy was issued.

Lubin reversed a final judgment based on Kaufman. Lubin is inapplicable to our case because it held that a policy could not be rescinded based on misrepresentations in the insurance application after the two-year incontestability period had expired. We are not addressing that issue.

DiFranco is also inapplicable. It addresses ambiguous insurance policy clauses regarding covered illnesses. Based on the ambiguities, the court interpreted the policy in the light most favorable to the insured. There are no such ambiguities here.

Forman addressed the scenario we have before us: An insured seeking disability benefits based on an illness for which he was diagnosed and treated before the disability policy was issued. Like the Paul Revere policy, the Forman policy provided benefits for any “[s]ickness which first manifests itself during the terms of this policy.” Forman, 516 F.2d at 427. Forman recognized that the insurer was not entitled to rescind or cancel the policy after the incontestability period. However, there could be no coverage for a condition that manifested itself before the policy was issued. As Paul Revere suggests, incontestability clauses cannot be used to extend coverage where none is provided by the policy terms. N. Miami Gen. Hosp., 419 So.2d at 802 n. 3 (citing Forman, 516 F.2d 425 (5th Cir.1975)). Here, as in Forman, Ecker’s illness is not within the scope of policy coverage and Paul Revere properly denied ERMA’s claim.

Based on the foregoing, we reverse the summary judgment and remand with instructions to enter summary judgment in Paul Revere’s favor on the issue of coverage.

Reversed and remanded.

      . Paragraph 1.7 of the policy states: " ‘Sickness’ means sickness or disease that first manifests itself after the Date of Issue while Your Policy is in force.”

      . The policy’s incontestability clause follows the language of section 627.607, Florida Statutes (2002). The clause provides:
      ¶ 7.1 INCONTESTABLE
      a. After Your Policy has been in force for two years, excluding any period during which the Insured is disabled, We cannot contest the statements in the Application.
      b. No claim for loss incurred or disability beginning after two years from the Date of Issue will be reduced or denied because a sickness or physical condition (not excluded by name or specific description) had existed before the Date of Issue.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert PIERSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4239.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.
    Rehearing Denied Feb. 3, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of October 14, 2003, the appeal is hereby dismissed as untimely.

LEWIS, POLSTON and HAWKES, JJ., concur.


text:
    The RUSHING COMPANY, INC. and Veranda Owners’ Association, Inc., Appellants, v. ASSURANCE COMPANY OF AMERICA, INC., Appellee.
    No. 1D02-4024.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2003.
    Rehearing Denied Jan. 29, 2004.
    Michael H. Crew of Crew & Crew, P.A., Ft. Walton Beach, and Loren E. Levy of The Levy Law Firm, Tallahassee, for Appellant Veranda Owners’ Association, Inc.
    Harold R. Mardenborough, Jr. and Ginger L. Barry of McFarlain & Cassedy, P.A., Tallahassee, for Amicus Curiae Florida Home Builders Association, Inc.; John R. Hamilton of Foley & Lardner, Orlando, for Amicus Curiae Florida Associated General Contractors Council, Inc.
    Scott M. Seaman of Meckler Bulger & Tilson, Chicago, and Michael T. Bill of Young, Bill, Fugett & Roumbos, P.A., Pensacola, for Appellee, and Steven D. Pearson, Illinois, co-counsel for Appellee.

      Laura A. Foggan, John C. Yang and Ian A. Ossakow of Wiley Rein & Fielding LLP, Washington, DC, and P. Scott Mitchell of Fuller, Johnson & Farrell, P.A., Tallahassee, for Amicus Curiae Complex Insurance Claims Litigation Association.
   PER CURIAM.

AFFIRMED. LaMarche v. Shelby Mutual Ins. Co., 390 So.2d 325 (1980); Aetna Casualty and Surety Co. v. Deluxe Systems, Inc., 711 So.2d 1293 (Fla. 4th DCA 1998); Lassiter Const. Co., v. American States Ins. Co., 699 So.2d 768 (Fla. 4th DCA 1997).

BARFIELD, ALLEN and DAVIS, JJ., concur.


text:
    Jerome L. ADAMS, Appellant, v. Brian J. STROBL, d/b/a Casework Specialist, Appellee.
    No. 5D02-3215.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2003.
    Rehearing Denied Jan. 27, 2004.
    James Sweeting III, of James Sweeting III, P.A., Orlando, for Appellant.
    Haylee O’Dowd of Broad and Cassel, Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See HZJ, Inc. v. Wysocki, 511 So.2d 1088 (Fla. 3d DCA 1987); Johnson v. Allstate Ins. Co., 410 So.2d 978 (Fla. 5th DCA 1982).

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


text:
    E & A PRODUCE CORPORATION, Appellant, v. Nilda OLMO, Appellee.
    No. 3D03-1005.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Rehearing Denied Jan. 30, 2004.

      James H. Greason, Miami, for appellant.
    Schatzman & Schatzman, and Arnold Schatzman, for appellee.
    Before COPE, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Appellant E & A Produce Corporation filed a civil action against appellee Nilda Olmo, her brother Silfredo Trujillo and the company they own and operate, Superior Garlic Corporation. We affirm.

Olmo is the vice-president of Superior Garlic. E & A asserted various claims against Olmo, Trujillo, and Superior Garlic. The claims against Olmo, individually, included civil theft, conversion and malicious destruction of property, in connection with the removal of a control panel from a garlic peeling machine that was the subject of a failed joint venture between the parties.

On appeal, E & A challenges the trial court’s Summary Final Judgment entered in favor of Olmo. Officers of a corporation are not liable for corporate acts simply by reason of the officer’s relation to the corporation. See Checkers Drive-In Rests., Inc. v. Tampa Checkmate Food Servs., Inc., 805 So.2d 941, 944 (Fla. 2d DCA 2001). It is true that individual officers and agents of a corporation may be held personally liable for their tortious acts, even if such acts were committed within the scope of their employment or as corporate officers. See Orlovsky v. Solid Surf, Inc., 405 So.2d 1363, 1364 (Fla. 4th DCA 1981).

A careful review of the record in this case, however, indicates that E & A did not present any competent evidence to demonstrate that Olmo was involved in any of the acts E & A alleges in its Second Amended Complaint. The record thus reflects no genuine issues of material fact in dispute. Therefor, in the absence of any competent evidence of wrongdoing on Olmo’s part that would make her personally or individually liable, the trial court was correct to enter Final Summary Judgment in Olmo’s favor. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Affirmed.


author: RAMIREZ, J.

text:
    E & A PRODUCE CORPORATION, Appellant, v. SUPERIOR GARLIC INT’L, INC., et al., Appellees.
    No. 3D02-1185.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Rehearing Denied Jan. 30, 2004.
    James H. Greason, Miami, for appellant.

      Schatzman & Schatzman, and Jeffrey N. Schatzman, for appellee.
    Before LEVY, GODERICH, and RAMIREZ, JJ.
   RAMIREZ, J.

E & A Produce Corporation (“E & A”) appeals the award of attorney’s fees to appellees Superior Garlic Int’l, Inc., Silfre-do Trujillo, and Nilda Olmo (collectively, Superior Garlic). We conclude that Superior Garlic is entitled to attorney’s fees. Thus, we affirm the attorney’s fee award, as well as the amount of the award.

Superior Garlic, a small corporation owned and operated by Trujillo (Superior Garlic’s president) and his sister, Olmo (Superior Garlic’s vice-president), peels, packages and sells peeled garlic. E & A sells vegetables and other produce, including raw garlic, but does not peel garlic nor does it sell peeled garlic. The parties discussed incorporating a new mechanized garlic-peeling business, after which Superi- or Garlic moved their garlic processing enterprise to a warehouse owned by E & A and began paying E & A monthly rent.

E & A then purchased a garlic processing machine which was installed on those same premises. Superior Garlic purchased the control panel for the machine, as well as the wire and electrical work necessary to connect the control panel to the garlic peeling machine.

The parties could not agree on the terms of their proposed joint venture so negotiations terminated. E & A attempted to terminate Superior Garlic’s rental agreement. Superior Garlic paid the rent until August 15, 2000, after which they involuntarily surrendered the premises.

While removing all of Superior Garlic’s property from the premises, Trujillo attempted to remove the control panel of the processing machine. One of E & A’s employees tried to intervene and a fight followed. Olmo and the police then arrived. Olmo showed the police their invoice and canceled checks for the control panel’s purchase, and the police ordered E & A’s employee to allow Trujillo to remove the panel. Superior Garlic denied causing any damage to E & A’s garlic peeling machine.

E & A filed a five-count complaint against Superior Garlic, which included a count for civil theft of the control panel. Superior Garlic moved to dismiss all counts for failure to state a cause of action. With respect to the civil theft of a trade secret count, Superior Garlic requested an award of attorney’s fees pursuant to section 772.11, Florida Statutes (2000). The trial court granted the motion to dismiss.

E & A then filed an amended complaint alleging the same causes of action with more specificity. Superior Garlic again moved to dismiss all counts for failure to state a cause of action and specially set their motion for hearing on July 23, 2001.

Three days before this hearing, on July 20, 2001, E & A served a second amended complaint, dropping the count for civil theft of the control panel as a trade secret. On August 14, 2001, Superior Garlic responded with its answer and counterclaims.

On October 4, 2001, Superior Garlic filed its motion for entitlement to attorney’s fees as the prevailing party on the civil theft of trade secret count, under section 772.11, Florida Statutes (2000), as well as under section 57.105, Florida Statutes (2000). E & A did not oppose or respond to the motion. On December 20, 2001, the trial court conducted a hearing on Superi- or Garlic’s entitlement to attorney’s fees. There is no transcript of this hearing. The trial court entered a written order on December 21, 2001, granting Superior Gar-lie’s motion for entitlement to attorneys’ fees.

Thereafter, Superior Garlic filed a motion for an award of reasonable attorney fees. At the evidentiary hearing, Superior Garlic presented live testimony and testimony by affidavit. E & A offered no testimony. The trial court entered an order of judgment for $7,623.75 in attorney’s fees and $1,500 in expert witness fees.

E & A contends on appeal that the trial court erred as a matter of law in entering the final judgment for attorney’s fees and costs because Superior Garlic failed to timely request attorney’s fees and costs and thus waived entitlement to such. We disagree.

An order granting or denying attorney’s fees and costs is reviewed on the abuse of discretion standard. See Thomas v. Perkins, 723 So.2d 293 (Fla. 3d DCA 1998). Under the facts of this case, we cannot say that the trial court abused its discretion in awarding attorney’s fees and costs to Superior Garlic.

Florida Rule of Civil Procedure 1.525, “Motions for Costs and Attorneys’ Fees,” states the following:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

Rule 1.525 became effective January 1, 2001, before the complaint in the case below was filed on April 27, 2001 (the amended complaint was filed on July 3, 2001). See In re Amendments to Fla. Rules of Civil Procedure, 773 So.2d 1098 (Fla.2000). This rule was “designed to establish a bright line to resolve any uncertainty concerning the timing of post-trial motions and to bring them to a timely conclusion.” See Wentworth v. Johnson, 845 So.2d 296, 298 (Fla. 5th DCA 2003). Prior to the adoption of Rule 1.525, Florida case law permitted motions for attorney’s fees to be filed within a reasonable time of the plaintiffs abandonment of the claim or within a reasonable time after final judgment is entered. See Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991); Folta v. Bolton, 493 So.2d 440, 444 (Fla.1986); Finkelstein v. North Broward Hosp. Dist., 484 So.2d 1241 (Fla.1986).

Rule 1.525 specifically states that the motion for attorney’s fees shall be served within thirty days after the filing of the judgment or the service of a notice of voluntary dismissal. However, under the facts before us, there was no judgment of dismissal entered below, nor did E & A serve a notice of voluntary dismissal. E & A simply dropped one of the counts. As such, we find that rule 1.525 is inapplicable under this set of circumstances. We believe that in this case, the standard to be applied is that Superior Garlic was required to file its motion for attorney’s fees within a reasonable time of E & A’s abandonment of its civil theft of a trade secret claim.

The record reflects that E & A dropped its civil theft of a trade secret claim on July 20, 2001, the day it served its Second Amended Complaint. Approximately six weeks later, on October 5, 2001, Superior Garlic filed its motion for entitlement to attorney’s fees. Less than two months is a reasonable amount of time within which to file a motion for attorney’s fees. See Folta, 493 So.2d at 444.

E & A further claims that none of the orders on appeal state the requisite findings for an award of attorney’s fees, and because no statute was cited in the orders or judgment, it is unclear whether the trial court awarded attorney’s fees pursuant to sections 772.11 or 57.105. We are unable, however, to determine under what grounds the attorneys’ fees here were awarded and whether or not the trial court made the requisite findings because there is no transcript of the hearing on the entitlement to attorney’s fees. Without a transcript, the record is inadequate for us to review E & A’s contention, and we cannot find that the trial court abused its discretion in making the award. The trial court’s orders and judgment must therefore stand. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); Thomas, 723 So.2d at 293.

We thus conclude that Superior Garlic was entitled to an award of attorney’s fees. Accordingly, we affirm 1) the trial court’s “Order Granting Defendants’ Motion for Entitlement of Attorney’s Fees Against Plaintiff,” 2) the “Judgment for Attorney’s Fees and Costs,” and 3) the “Order on Plaintiffs Motion for Stay of Order Awarding Attorney Fees and Costs; Motion for New Trial or Rehearing of Order and Judgment Awarding Attorney’s Fees and Costs; and Plaintiffs and Counter-defendant’s Motion to Dismiss Defendant, Superior Garlic International, Inc.’s Counterclaim.” We decline to discuss E & A’s remaining issues on appeal because we find them to be meritless.

Affirmed.

      . This issue becomes relevant only if Superior Garlic seeks to collect its fees against E & A's counsel, an issue which should be resolved in the first instance by the circuit judge. We thus express no view on this matter.


text:
    Thomas OSBORNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3736.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2003.
    Rehearing Denied Feb. 3, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General and Elizabeth Fletcher Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from a final order denying a postconviction motion under rule 3.850 of the Florida Rules of Criminal Procedure, following an evidentiary hearing. The motion raised substantive claims of misadvice as to the possible sentences and ineffective assistance of counsel for failure to investigate alibi witnesses. The defendant, Thomas Osborne, filed a timely and facially sufficient motion for appointment of counsel several weeks before the evidentiary hearing, and the trial court denied the request. We conclude that the trial court abused its discretion in denying the motion for appointment of counsel.

We are unable to find any significant difference between the present case and Williams v. State, 472 So.2d 738 (Fla.1985) or Rogers v. State, 702 So.2d 607 (Fla. 1st DCA 1997), review denied, 717 So.2d 538 (Fla.1998). Although counsel need not be appointed every time an evidentiary hearing is held, any doubt as to the need for counsel must be resolved in favor of the defendant. See Williams, 472 So.2d at 740. The record demonstrates that there was abundant doubt about the need for counsel in the present case, and therefore the trial court should have granted the motion for appointment of counsel below.

The defendant’s substantive claims of misadvice as to the possible sentences and ineffective assistance of counsel for failure to investigate alibi witness Bertha Osborne are facially sufficient. The claim as to the remaining alibi witnesses from the defendant’s church, however, is facially insufficient. The motion claims that these witnesses could testify to the defendant’s whereabouts on a night other than the night of the crimes. As such, the attorney’s performance cannot be considered ineffective for failure to investigate these witnesses.

Accordingly, we affirm the order as to the claim of ineffective assistance as it relates to the church alibi witnesses. We reverse and remand for appointment of counsel and a new evidentiary hearing on the defendant’s remaining claims of misad-vice as to the possible sentences and ineffective assistance of counsel for failure to investigate alibi witness Bertha Osborne. See Jones v. State, 770 So.2d 216 (Fla. 1st DCA 2000).

Affirmed in part, reversed in part, and remanded.

VAN NORTWICK, PADOVANO and HAWKES, JJ., Concur.


text:
    Samuel L. FREDERICK, Sr., Appellant, v. FLORIDA UNEMPLOYMENT APPEALS etc., et al., Appellees.
    No. 3D03-1726.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Rehearing Denied Jan. 30, 2004.
    Samuel L. Frederick, Sr., in proper person.
    John D. Maher (Tallahassee), for Florida Unemployment Appeals Commission]
    Before SCHWARTZ, C.J., and LEVY and SHEVIN, JJ.
   PER CURIAM.

Because evidence in the record supports the result below, we must affirm the denial of unemployment compensation benefits to the appellant.


text:
    DEPARTMENT OF REVENUE, Petitioner, v. SHERATON BAL HARBOUR ASSOCIATION, LTD., Respondent.
    No. 1D03-3933.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Rehearing Denied Jan. 29, 2004.
    Charlie Crist, Attorney General, and Martha F. Barrera, Assistant Attorney General, Tallahassee, for petitioner.
    Rex D. Ware and Elizabeth C. Daley of Steel, Hector & Davis, LLP, Tallahassee, for respondent.
   PER CURIAM.

The Department of Revenue seeks a writ of prohibition to prevent the Division of Administrative Hearings (“DOAH”) from proceeding with Sheraton’s rule challenge to a repealed rule. The Department contends that section 120.56, Florida Statutes does not authorize a rule challenge to a rule that is no longer in existence, and therefore, DOAH is acting in excess of its jurisdiction. We agree and grant the petition. Because the court is confident that DOAH will promptly comply with this opinion, the court withholds formal issuance of the writ.

BARFIELD, ALLEN and DAVIS, JJ., concur.


author: PALMER, J. PETERSON, J.,

text:
    Milo THOMAS, Appellant, v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Appellee.
    No. 5D02-3319.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2003.
    Rehearing Denied Jan. 30, 2004.
    Jacob D. Varn of Fowler White Boggs Banker, P.A., Tallahassee, for Appellant.
    William S. Bilenky, General Counsel and Margaret L. Lytle, Assistant General Counsel of the Southwest Florida Water Management District, Brooksville, for Ap-pellee.
    . Peter M. Dunbar and Cynthia S. Tunni-cliff of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, and Donald D. Conn, Clearwater, Amicus Curiae for Tampa Bay Water.
   PALMER, J.

Milo Thomas appeals the final order entered by the Southwest Florida Water Management District (SFWMD) denying his application for a water use permit. Finding no error, we affirm.

In 1985, Thomas acquired a water use permit from SFWMD authorizing him to use 345,000 gallons of water per day. The water was used to irrigate Thomas’ property. In 1997, Thomas acquired an additional 234 acres of pasture land. He thereafter filed a request with SFWMD for a modification of his water use permit, seeking permission to increase his water usage to 970,000 gallons per day. SFWMD denied Thomas’s request.

Upon receiving notice of the denial, Thomas petitioned SFWMD for an informal hearing. The petition was granted. Both parties agreed to the fact that Thomas’ modification request was denied based on SFWMD’s concern regarding the availability of water to meet the needs of water users outside of Pasco County. The parties’ pre-hearing stipulation provided:

Although the District (SFWMD) did not specifically review Thomas’s permit application without consideration of the impacts associated with the permitted regional wellfield withdrawals within the Northern Tampa Bay Water Resource Assessment Project area, it is the opinion of District staff that absent such impacts the Petitioner’s application for additional water withdrawals would have provided reasonable assurances that the increased withdrawals met all the criteria for issuance of a water use permit.

At the conclusion of the hearing, the hearing officer issued a recommended order suggesting that Thomas’ application for a modification of his water use permit be denied. The hearing officer’s recommended order was adopted in toto as the final order of SFWMD. This appeal followed.

Thomas argues that his application for an increase in his water use should have been granted because, as a property owner in Pasco County, he possessed a superior right to the water drawn from that county and therefore SFWMD’s concern for the availability of water for use outside of Pas-co County was an inappropriate basis upon which to deny his application. To support this claim, Thomas cites to section 373.1961(l)(e) of the Florida Statutes (1999) which provides as follows:

373.1961. Water production
(1) In the performance of, and in conjunction with, its other powers and duties, the governing board of a water management district existing pursuant to this chapter:
* :|: *
(e) Shall not deprive, directly or indirectly, any county wherein water is withdrawn of the prior right to the reasonable and beneficial use of water which is required to supply adequately the reasonable and beneficial needs of the county or any of the inhabitants or property owners therein.

§ 373.1961(l)(e), Fla. Stat. (1999). Additionally, Thomas cites to the evidence which he introduced below which included the transcript of a legislative debate from 1974, and the affidavits of four individuals who were involved with water management issues during the formation of the SFWMD in the 1970s. This evidence supported Thomas’ position that it was the Legislature’s intent at the time the Florida Water Act was passed in 1974 to preserve the water rights of the residents of Pasco County. We conclude that SFWMD properly rejected this claim because Thomas’ argument fails to recognize the controlling authority of the Legislature’s subsequent enactment of Part II of Chapter 373, in particular section 373.217.

Section 373.217 of the Florida Statutes (1999) sets forth the supremacy and exclusivity of SFWMD’s permitting authority. That section expressly preempts other statutes, including those in Part I of Chapter 373, that attempt to limit or qualify the SFWMD’s permitting authority:

373.217. Superseded laws and regulations
(1) It is the intent of the Legislature to provide a means whereby reasonable programs for the issuance of permits authorizing the consumptive use of particular quantities of water may be authorized by the Department of Environmental Protection, subject to judicial review and also subject to review by the Governor and Cabinet, sitting as the Land and Water Adjudicatory Commission as provided in s. 373.114.
(2) It is the further intent of the Legislature that Part II of the Florida Water Resources Act of 1972, as amended, as set forth in ss. 373.203-373.249, shall provide the exclusive authority for requiring permits for the consumptive use of water and for authorizing transportation thereof pursuant to s. 373.223(2).
(3) If any provision of Part II of the Florida Water Resources Act of 1972, as amended, as set forth in ss. 373.203 373.249, is in conflict with any other provision, limitation, or restriction which is now in effect under any law or ordinance of this state or any political subdivision or municipality, or any rule or regulation promulgated thereunder, Part II shall govern and control, and such other law or ordinance or rule or regulation promulgated thereunder shall be deemed superseded for the purpose of regulating the consumptive use of water. However, this section shall not be construed to supersede the provisions of the Florida Electrical Power Plant Siting Act.
(4) Other than as provided in subsection (3) of this section, Part II of the Florida Water Resources Act of 1972, as amended, preempts the regulation of the consumptive use of water as defined in this act.

§ 373.217, Fla. Stat. (1999)(emphasis added). Notably, no exception was created in Part II for section 373.1961. As the hearing officer stated in its final order:

If Thomas’ interpretation were adopted, there would be no certainty with respect to the users of the water provided by the regional supply authority. Those users, under Thomas’ interpretation, would lose the right to have some or all [of the] water a Pasco resident desired at any time, for any purpose. This interpretation would render meaningless the statutory scheme requiring water use permitting and so to the protections afforded thereunder.

A court must avoid statutory constructions which lead to absurd or unreasonable results. Yeste v. Miami Herald Pub. Co., a div. of Knight Ridder Newspapers, Inc., 451 So.2d 491 (Fla. 3d DCA 1984). In ascertaining legislative intent, a court must consider the plain language of the statute, give effect to all statutory provisions, and construe related provisions in harmony with one another. Hechtman v. Nations Title Ins. of New York, 840 So.2d 993 (Fla.2003). When two statutes are in conflict, the more recently enacted statute controls the older statute; more recently enacted provision may be viewed as the clearest and most recent expression of legislative intent. Palm Beach County Canvassing Bd. v. Harris, 772 So.2d 1273 (Fla.2000). Applying these principles to the instant facts we conclude that SFWMD properly found the provisions of section 373.217 to be controlling.

AFFIRMED.

TORPY, J., concurs.

PETERSON, J., concurs specially, with opinion.

PETERSON, J.,

concurring specially.

I write only to note that the record reflects the Southwest Florida Water Management District board members’ concern about Milo Thomas’ need for water. The majority opinion, with which I concur, reflects the present statutory scheme that left no alternative to the board but to deny Mr. Thomas’ request.

The reason for the denial was simple— there were no more water resources available for allocation to Mr. Thomas. Apparently, water allocations are made on a first come-flrst served basis and when the available allocations have been exhausted, no more water resources are available. The concerns that the 1974 legislature had when it enacted section 373.1961, Florida Statutes (1999), have been realized by Mr. Thomas. That is, the small water-rich agricultural counties will be denied water resources in order to supply the larger-populated water-poor counties with an inexpensive water supply. The board members recognized that some remedies are available, such as returning recycled water for agricultural purposes and seem eager to pursue that action; but that action requires the cooperation and capital outlay of those who already enjoy an allocation and that may be difficult or impossible to obtain.


author: ALLEN, J.

text:
    Carolyn DAVIS, Appellant, v. Horace Edwin DAVIS, Appellee.
    No. 1D02-3366.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2003.
    Rehearing Denied Feb. 4, 2004.
    Janet A. Carver, Fernandina Beach, for Appellant.
    Daniel S. Brim, Fernandina Beach, for Appellee.
   ALLEN, J.

This case requires us to decide whether a Florida homestead not located within a municipality and consisting of no more than 160 acres of contiguous land and improvements thereon may include a portion of such land and improvements which is separate from the residence of the owner or the owner’s family. Concluding that the separate portion may be part of the homestead as defined in article X, section 4 of the Florida Constitution, we reverse the trial court’s ruling to the contrary.

The appellant’s husband, Horace Davis, died testate on August 17, 2000. At the time of his death, Mr. Davis and the appellant resided on real property consisting of less than 160 acres of contiguous land owned by Mr. Davis and located in an unincorporated portion of Nassau County. On a portion of the property separate from his residence, Mr. Davis operated a mobile home park.

When administration of Mr. Davis’s estate was subsequently commenced, the appellant petitioned to have the entire tract of land and improvements thereon declared homestead under article X, section 4, thereby precluding devise of the land and improvements under Mr. Davis’s will and requiring that the land and improvements descend in accordance with section 732.401(1), Florida Statutes (2000). The appellee, as personal representative of Mr. Davis’s estate, did not raise any objection to the designation of a portion of the land and improvements as homestead, but he contended that the portion of the land and improvements being utilized to produce rental income as a mobile home park was not homestead property. Relying upon the language of article X, section 4, he contended that only the portion of the property upon which the appellant and Mr. Davis had actually resided could be properly considered homestead property. Apparently agreeing with the appellee’s argument, the trial court entered an order by which the court ruled that the property upon which the mobile home park was located was not homestead property. This appeal is from that order.

Article X, section 4 specifies, in relevant part, that the maximum physical extent of Florida homesteads shall be

if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family....

The appellant argues that the trial court erred by relying upon the concluding clause of the above-quoted passage to limit the homestead in the present case to that portion of the property upon which she and Mr. Davis actually resided, because the clause applies only to a homestead located within a municipality. The appel-lee responds that the language by which a homestead is limited to the actual residence of the owner or the owner’s family applies equally to all homesteads.

Language similar to that found in article X, section 4 of the current constitution has appeared in Florida constitutions for well over a century. Article IX, section 1 of the 1868 constitution provided that the maximum physical extent of exempt homesteads would be

to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, ... The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner.

The provision was renumbered as article X, section 1 in the 1885 constitution, but remained materially unchanged.

When interpreting the 1868 and 1885 homestead provisions, the supreme court consistently concluded that the language limiting the homestead to the “residence and business house of the owner” was inapplicable to homesteads located outside municipalities. Buckels v. Tomer, 78 So.2d 861 (Fla.1955); Armour & Co. v. Hulvey, 73 Fla. 294, 74 So. 212 (1917); McDougall v. Meginniss, 21 Fla. 362 (1885); accord Fort v. Rigdon, 100 Fla. 398, 129 So. 847 (1930). In construing the 1885 constitution, the supreme court found it significant that the framers maintained the same language as contained in the 1868 provision despite the liberal interpretation afforded the prior version by the courts. Armour, 74 So. at 214.

Like the language of the 1885 constitution, the language defining the extent of homesteads under the current constitution contains no substantive change pertinent to the issue presented in the present case. Although a homestead within a municipality is now limited to “the residence of the owner or the owner’s family,” rather than to “the residence and business house of the owner,” this change does not affect our analysis. And even though all of the language defining the extent of homesteads now appears in a single sentence, a semicolon serves to grammatically separate the language expressing the extent of a homestead outside a municipality from the language limiting a homestead within a municipality to the residence of the owner or the owner’s family.

Giving article X, section 4 a plain reading, and also a reading consistent with decisional law under prior constitutions, we hold that the language limiting homesteads within municipalities to the residence of the owner or the owner’s family does not apply to homesteads located outside municipalities. Because the trial court’s ruling in this ease was apparently based upon an erroneous reading of the relevant constitutional language, the order under review is reversed and this case is remanded.

DAVIS and BENTON, JJ., concur.

      . Article X, section 4(c) provides, in relevant part, that ''[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child ...”

      . Section 732.401(1) (2000) provided:
      732.401 Descent of homestead.-
      (1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent's death.


author: BENTON, J.

text:
    Clayton WHISNER, Appellant, v. Michael W. MOORE, Appellee.
    No. 1D00-4462.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2003.
    Rehearing Denied Feb. 4, 2004.

      Appellant, pro se.
    Louis A. Vargas, General Counsel; Carolyn J. Mosley, Assistant General Counsel, Tallahassee, for Appellee.
   BENTON, J.

Clayton Whisner appeals the trial court’s denial of his petition for writ of mandamus, arguing that the Department of Corrections illegally forfeited his overcrowding credits after he escaped from confinement. We affirm.

Overcrowding credits are a species of gain-time. See State v. Lancaster, 687 So.2d 1299 (Fla.1997) (rejecting the argument that “gain time” could not be construed to include overcrowding credits). Prior to Lancaster, the Department of Corrections (DOC) had not treated most types of overcrowding credits as gain-time but, in the words of our supreme court, the Lancaster decision “corrected that misinterpretation and made clear that the Department always had the authority to forfeit [overcrowding] credits.” Mayes v. Moore, 827 So.2d 967, 973 (Fla.2002). The supreme court explained that “the Lancaster decision did not create the statutory authority for the forfeiture of overcrowding gain time upon supervision revocation. That authority has been in effect since 1988, and it has provided for the forfeiture of ‘all gain time’ upon conditional release supervision revocation.” Id.

Pointing out that his offenses were committed before 1988, Mr. Whisner argues that the present case is distinguishable from Mayes v. Moore, 827 So.2d 967 (Fla.2002), on this basis. While the language in section 944.28(1), Florida Statutes, authorizing forfeiture of all gain-time upon the revocation of a prisoner’s conditional release did not take effect until 1988, the language in section 944.28(1) authorizing forfeiture of all gain-time upon a prisoner’s escape has been in effect since 1963. See ch. 63-243, § 2, at 548-49, Laws of Fla. (“When a prisoner escapes ... the director shall, without notice or hearing, declare a forfeiture of all gain time earned ... prior to such escape.”).

Appellant’s offenses occurred long after 1963, when DOC was originally authorized (and at that time required) to forfeit gain-time an escaping prisoner had accrued before the escape. DOC forfeited Mr. Whis-ner’s overcrowding credits because he was convicted of escape, not because his supervision was revoked. See § 944.28(1), Fla. Stat. (1987) (“If a prisoner is convicted of escape ... the department may, without notice or hearing, declare a forfeiture of all gain-time earned ... prior to such escape.”).

Affirmed.

ALLEN and DAVIS, JJ., concur.


author: COPE, J.

text:
    PENA-ALUM GLASS & MIRROR, Appellant, v. NATIONWIDE TERMINALS, INC., Appellee.
    No. 3D03-1642.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Rehearing and/or Reconsideration Denied Jan. 30, 2004.

      Steven M. Rosen, Miami, for appellant.
    Raymond L. Robinson, Coral Gables, for appellee.
    Before COPE, GERSTEN and RAMIREZ, JJ.
   COPE, J.

Pena-Alum Glass & Mirror, Inc. appeals an attorney’s fee judgment in a mechanic’s lien case. We conclude that under the circumstances presented here, the judgment should not have been entered.

Pena-Alum is a subcontractor who provided glass materials and installation on a large construction contract where MC Construction Group, Inc., was the general contractor, and Nationwide Terminals, Inc., was the owner. As required by the construction contract, MC posted a performance bond which was provided by National Union Fire Insurance Co.

At some point the general contractor ceased performing its obligations and failed to pay the subcontractors. Pena-Alum was owed approximately $26,000 and filed a claim of lien. Thereafter, Pena-Alum brought suit against MC (“the general contractor”), and National Union (“the bond company”) for the balance owed. Pena-Alum also sued Nationwide (“the owner”) to foreclose the lien.

Eventually the bond company entered into a settlement with Pena-Alum whereby it paid the full amount of Pena-Alum’s claim plus attorney’s fees. The settlement agreement required Pena-Alum to release and discharge all claims and liens it had against the owner. Pena-Alum did so, filing a satisfaction of the claim of lien, the release document, and a voluntary dismissal of its lawsuit.

The owner sought attorney’s fees against Pena-Alum under section 713.29, Florida Statutes, which provides that “[i]n any action brought to enforce a lien ... under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney....” The owner reasoned that since Pena-Alum had voluntarily dismissed the lawsuit, the owner was the prevailing party and was entitled to attorney’s fees. The trial court agreed and entered a fee award for the owner. Pena-Alum has appealed.

As we view the matter, Pena-Alum is the prevailing party. Under the contract between the owner and the general contractor, the general contractor was required to post a payment bond. When the bond company settled Pena-Alum’s claim, the settlement included the requirement that Pena-Alum terminate all litigation, including the lawsuit and claim of lien against the owner. The bond company’s payment of Pena-Alum’s claim is thus properly viewed as having been made on behalf of the owner, among others.

The owner argues that where there is a voluntary dismissal of a mechanic’s lien action, it follows as a matter of law that the owner becomes the prevailing party. See Boca Airport, Inc. v. Roll-N-Roaster of Boca, Inc., 690 So.2d 640, 641 (Fla. 4th DCA 1997). However, that logic does not hold where the voluntary dismissal by the plaintiff is procured in exchange for payment on behalf of the defending party.

The owner also relies on United Plumbing and Heating. Inc. v. Goldberger, 452 So.2d 591 (Fla. 4th DCA 1984). That case is distinguishable. There the owner’s answer asserted that an unconditional payment bond had been posted under section 713.23, Florida Statutes (1995). The bond company ultimately paid the majority of the plaintiff plumbing contractor’s claim. Thereafter, the trial court awarded attorney’s fees to the owner. This was on the theory that given the existence of an unconditional payment bond under section 713.23, Florida Statutes, the plumbing contractor should have proceeded solely against the bond and not against the owner. 452 So.2d at 593.

We have no quarrel with the logic of United Plumbing, but find it inapplicable here. As we have stated, in the present case the payment by the bond company was made on behalf of the owner, among others. Where that is so, the owner is not properly viewed as being the prevailing party.

For the stated reasons, we reverse the attorney’s fee judgment and remand with directions to enter judgment in favor of Pena-Alum.

Reversed and remanded.

       The bond bore the legend required for a conditional payment bond under section 713.245, Florida Statutes (1999). Although the point was not raised or decided below, the owner argues that the conditions to make this a conditional bond may not have been satisfied. See WMS Construction, Inc. v. Palm Springs Mile Associates, Ltd., 762 So.2d 973 (Fla. 3d DCA 2000); North American Specialty Ins. Co. v. Hughes Supply, Inc., 705 So.2d 616 (Fla. 4th DCA 1998). See generally Daniel R. Vega "A Subcontractor’s and Material Supplier's Guide to Perfecting Construction Lien and Bond Rights Under Florida Law,” Fla. B.J., Oct. 2002, at 26-29; Fred R. Dudley, William A. Buzzett and Deborah Kaveney Kearney, Construction Lien Law Reform: The Equilibrium of Change, 18 Fla. St. U.L.Rev. 257, 288-294 (1991). In view of our disposition, that dispute is immaterial.


text:
    Manuel HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-3064.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Rehearing Denied Jan. 30, 2004.

      Manuel Hernandez, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA)(en banc), review granted, 854 So.2d 659 (Fla. 2003). Conflict certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla. 2002).


text:
    CARIBBEAN RESTAURANTS, LLC., a Delaware corporation, Appellant, v. DON GREENE POULTRY, INC., Appellee.
    No. 3D03-2135.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Rehearing Denied Jan. 30, 2004.
    Zorrilla & Robin, and Juan C. Zorrilla, and Raymond L. Robin, Miami, for appellant.
    Jerome S. Reisman, Coral Gables, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989).


author: WEBSTER, J.

text:
    Otto BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2016.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2003.

      Nancy A. Daniels, Public Defender; Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Barbara J. Yates, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant seeks review of his conviction, following a jury trial, for capital sexual battery pursuant to section 794.011(2)(a), Florida Statutes (2001). Because the trial court abused its discretion when it found the alleged child victim competent to testify without first conducting an adequate competency examination, we are constrained to reverse the conviction, and to remand for a new trial.

In the leading case addressing testimonial competence of a child, our supreme court said that the “test” to be applied by the trial court includes whether the child (1) is capable of “receiving] a just impression of the facts about which he or she is to testify”; (2) is capable of “relat[ing] them correctly”; and (3) “possesses a sense of obligation to tell the truth.” Lloyd v. State, 524 So.2d 396, 400 (Fla.1988). The court drew the third element of the test from its earlier opinion in Bell v. State, 93 So.2d 575, 577 (Fla.1957). Lloyd, 524 So.2d at 400. In Bell, the court explained that by “possessing] a sense of obligation to tell the truth” it meant that the child should possess “the spiritual and moral consciousness that should be the basic inducement to all witnesses to speak the truth.” 93 So.2d at 577.

We followed Lloyd in Griffin v. State, 526 So.2d 752 (Fla. 1st DCA 1988), where, paraphrasing the court’s language in Lloyd, we said:

[W]hen a child’s competency is at issue, the trial court should consider (1) whether the child is capable of observing and recollecting facts, (2) whether the child is capable of narrating those facts to the court or to a jury, and (3) whether the child has a moral sense of the obligation to tell the truth.

Id. at 753. We have consistently applied this test. See, e.g., Wade v. State, 586 So.2d 1200 (Fla. 1st DCA 1991); Seccia v. State, 689 So.2d 354 (Fla. 1st DCA 1997); Delacruz v. State, 734 So.2d 1116 (Fla. 1st DCA 1999); S.C. v. State, 837 So.2d 1159 (Fla. 1st DCA 2003).

In this case, the alleged child victim was 4 years old when the offense was allegedly committed, and 5 when she testified at the trial. Having carefully reviewed the cursory questions asked by the trial court, we conclude that they were insufficient as a matter of law to permit a finding that the child was competent to testify. The few questions asked regarding the child’s ability to observe and recollect facts strongly suggested that she was not. The same was true regarding the child’s ability to narrate facts. Finally, the only question which drew a response which might be said to bear on the child’s “moral sense of the obligation to tell the truth” also suggested that she was not competent to testify. When asked whether it was good or bad to tell a lie, the child responded, “good.” Accordingly, we conclude, further, that the trial court abused its discretion when it found the child competent to testify. Cf. Seccia v. State, 720 So.2d 580, 581 (Fla. 1st DCA 1998) (identifying the child’s responses to questions posed, and concluding that they were sufficient to support the trial court’s determination that the child possessed “a moral sense of the duty to tell the truth”).

The state does not argue that, to the extent any such error occurred in this case, it is harmless. We are, nevertheless, obliged to conduct a harmless error inquiry. See, e.g., § 924.051(3), Fla. Stat. (2003) (“A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred”); § 924.33, Fla. Stat. (2003) (“No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant”). See also Goodwin v. State, 751 So.2d 537, 545 (Fla.1999) (stating that an appellate court must conduct a harmless error analysis “even when the State has not argued that the complained of error was harmless” and citing Heuss v. State, 687 So.2d 823 (Fla.1996)). Having reviewed the entire record, we are unable to “say beyond a reasonable doubt that the error did not affect the verdict.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). See also State v. Lee, 531 So.2d 133, 137 (Fla.1988) (explaining how the harmless error analysis is to be performed, and stating that “the focus of harmless error analysis must be the effect of the error on the trier of fact”). Here, the state commented at some length on the child’s testimony during closing argument, and the jury had considerable difficulty reaching a verdict. Moreover, we are unable to divine what was in the jurors’ minds when they ultimately reached a verdict, or how much weight they attributed to the child’s testimony. For all of these reasons, we are unable to conclude that the error was harmless.

We are not insensitive to the fact that a new trial will place additional stress on the child and her family. This is truly unfortunate. However, the sentence for capital sexual battery is life in prison without the possibility of parole. § 775.082(1), Fla. Stat. (2001). Given this fact, we must be convinced that those in appellant’s position receive a trial free from prejudicial error. While we affirm as to the other issues raised by appellant without discussion, because the trial court abused its discretion when it found the alleged child victim competent to testify without first conducting an adequate competency examination, we are constrained to reverse appellant’s conviction, and to remand for a new trial.

REVERSED and REMANDED, with directions.

KAHN and VAN NORTWICK, JJ., concur.


author: TORPY, J.

text:
    Laverica BURCH, etc., et al., Appellants, v. SUN STATE FORD, INC., Appellee.
    No. 5D02-2807.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.

      Daryl D. Parks and Kendra N. Davis, of Parks & Crump, LLC, Tallahassee, for Appellants.
    Dennis R. O’Connor and Warren B. Kwavnick, of Cooney, Mattson, Lance, Blackburn, Richards & O’Connor, P.A., Ft. Lauderdale, for Appellant, Willie Gene Beauford, Jr.
    Gina Caruso Albanese and Robert K. Tucker, of Hinshaw & Culbertson, Ft. Lauderdale for Appellee, Sun State Ford, Inc.
    Lucinda A. Hofmann, of Holland & Knight LLP, Miami, Amicus Curiae, Attorneys for Florida Defense Lawyers Association, for Appellee, Sun State Ford.
   TORPY, J.

Appellants, as joint personal representatives of Aaryon Miles’ estate, challenge the entry of summary judgment in favor of Appellee, Sun State Ford, Inc., (“Sun State”) in this wrongful death case. The lower court determined that Sun State, as owner of the vehicle driven by Willie Gene Beauford, Jr. (“Beauford”), was not vicariously liable under the dangerous instrumentality doctrine (“the doctrine”) because Beauford’s manner of driving amounted to intentional misconduct. We reverse.

Beauford drove his girlfriend, Teresa Wilson (“Wilson”), and her friend, Bridget Lee (“Lee”), to the Caribbean Club, a nightclub in Orange County. Beauford dropped Wilson and Lee off and went to visit with a Mend. Later, Beauford picked up Wilson and Lee from the Caribbean Club and dropped them off at another club, Hero’s. While Wilson and Lee were in Hero’s, Beauford played cards with a friend, during which time he drank “a couple of beers.” Approximately two hours after dropping Wilson and Lee off at Hero’s, Beauford returned to Hero’s to pick them up. When he arrived, he observed Wilson and Lee getting into a car being driven by the decedent, Aaryon Miles (“Miles”). As the vehicle drove by, Beauford observed Lee and Miles arguing. He began to follow the vehicle, eventually catching up to them at a red light.

At some point Miles stopped his vehicle; Beauford then got out of his vehicle and approached Miles’ vehicle. When Beau-ford approached, Miles drove off. Beau-ford returned to his vehicle and began to chase Miles’ vehicle. During the chase, both vehicles traveled at high rates of speed and committed numerous traffic violations. The chase ended, however, when Miles lost control of his vehicle, and hit a tree. The collision resulted in the death of Miles and severe injuries to Wilson and Lee. Beauford denied that he had intended to harm any of the occupants of the vehicle. He stated that he followed them because it looked like they were arguing and he was curious and concerned for the safety of Wilson and Lee.

The vehicle Beauford was driving belonged to Sun State. Sun State had rented the vehicle to Beauford’s sister who, in turn, had loaned it to Beauford. As a result of the incident, Beauford was convicted of willful or wanton reckless driving. Based upon Beauford’s conviction, the court concluded that no material dispute existed as to the fact that Beauford had engaged in intentional misconduct and that summary judgment was compelled by the First District’s decision in Caetano v. Bridges, 502 So.2d 51 (Fla. 1st DCA 1987). We disagree that Caetano requires this conclusion, but to the extent that it does, we decline to follow Caetano.

In Caetano, the defendant borrowed her father’s car and drove to Pensacola Beach to look for her boyfriend. When she found her boyfriend, he was in a local drinking establishment in the company of two other women. She waited for him in the parking lot, observed him walking hand-in-hand with the two women, became angry and tried to run him over. Although her boyfriend escaped injury, she injured one of the women (the plaintiff) in his company. The facts were in dispute, however, as to whether she intended to injure the plaintiff or run over her disloyal boyfriend.

The trial court granted summary judgment for the owner of the vehicle, finding that the doctrine did not apply. The First District reversed, holding that, because the evidence was in dispute as to whether the defendant intended .to injure the plaintiff, summary judgment was not appropriate. In articulating the legal premise upon which it based its holding, the Caetano court stated, without explanation, that the doctrine does not apply when an “operator is involved in intentional misconduct which is not foreseeable.” Id. at 53. What the court meant by “intentional misconduct,” however, is not clear because the phrase is susceptible of more than one interpretation. This explains the fact that both Appellants and Sun State cite Caetano as authority for their conflicting positions.

Appellants urge that “intentional misconduct,” as used by Caetano, means the type of conduct that occurred there— the use of a motor vehicle in a weapon-like manner.with the specific intent to injure the plaintiff. Sun State, on the other hand, asks that we construe Caetano’s “intentional misconduct” language very literally to exclude from the doctrine’s application any type of intentional misuse of a vehicle, including reckless driving. Although such a construction seems contrary to the result reached in Caetano, one district court has cited Caetano for the proposition espoused by Sun State. See Sun Chevrolet, Inc. v. Crespo, 613 So.2d 105 (Fla. 3d DCA 1993) (doctrine only applies to negligent operation of vehicle, citing Caetano). While we do not fully agree with either party’s position, we reject Sun State’s position because we disagree with its interpretation of Caetano Alternatively, to the extent that Caetano may be read to stand for the proposition that any type of intentional misuse of a vehicle results in the severance of liability under the doctrine, we decline to follow it. We conclude that such a proposition is inconsistent with the Florida Supreme Court’s decisions that created and refined the doctrine, the established tort precepts upon which the doctrine was based, and the policies underlying the doctrine.

The dangerous instrumentality doctrine was adopted by the Florida Supreme Court in 1920. Southern Cotton Oil Co. v. Anderson, [80 Fla. 441,] 86 So. 629 (Fla.1920). It is premised on the belief that a vehicle, when used for its designed purpose, is likely to cause serious injury to others. Id. at 634. Although originally only applicable in the master-servant context, the doctrine was later extended to bailments, including lessor-lessee relationships. Lynch v. Walker, [159 Fla. 188,] 31 So.2d 268 (Fla.1947). The doctrine imposes strict liability upon the owner of a motor vehicle by requiring that an owner who “gives authority to another to operate the owner’s vehicle, by either express or implied consent, has a nondelegable obligation to ensure that the vehicle is operated safely.” Aurbach v. Gallina, 753 So.2d 60, 62 (Fla.2000). The doctrine is intended to foster greater financial responsibility to pay for injuries caused by motor vehicles because the owner is in the best position to ensure that there are adequate resources to pay for damages caused by its misuse. Id. at 62. The doctrine also serves to deter vehicle owners from entrusting their vehicles to drivers who are not responsible by making the owners strictly liable for any resulting loss.

The only state to have adopted the doctrine by judicial decision, Florida’s doctrine is unique and has few exceptions. Aurbach, 753 So.2d at 62. Hertz Corp. v. Jackson, 617 So.2d 1051 (Fla.1993). It borrows characteristics from both concepts of strict liability based upon ultra-hazardous activity and vicarious liability under master-servant law. Anderson, 86 So. at 630-32. Liability of the owner is said to be “strict” because a plaintiff need not prove that an owner negligently entrusted the vehicle to its operator for liability to attach. However, the doctrine is distinguished from strict liability for ultra-hazardous activity, because the plaintiff must prove some fault, albeit on the part of the operator, which is then imputed to the owner under vicarious liability principles. Id. Although under master-servant law, the master is vicariously liable for the acts of the servant when the servant acts within the scope of his employment, the doctrine imputes liability to an owner even when the operator disobeys restrictions on the use of the vehicle, unless the disobedience rises to the level of theft or conversion. Jackson, 617 So.2d at 1054; Susco Car Rental Sys. of Fla. v. Leonard, 112 So.2d 832, 836 (Fla.1959). As stated in Leonard:

Where dangerous instrumentalities are utilized then, contrary to ordinary master-servant law, with practical unanimity, the courts hold the master liable for damages caused thereby, even though the servant, who has the sole custody and control thereof, is at the time acting willfully, wantonly, and in disobedience to his master’s order ... the public safety demands that he shall be answerable for the exercise of his servant’s judgment. This underlying theory is equally applicable to the field of bailment. If the owner of such a vehicle cannot, in the performance of his primary duty to the public to see that it is used in a safe and proper manner, substitute or delegate such duty to a servant, then neither can he by contract substitute a bailee, except, of course, as between the parties to such contract.

Id. at 836. (emphasis supplied).

Because an owner’s liability is “strict” and his obligation is to “ensure that the vehicle is operated safely,” without regard to whether the operator is disobedient, it follows logically that the manner of an operator’s bad driving should not generally affect the owner’s liability. Moreover, a distinction based on the manner of driving contravenes the policies that underlie the doctrine: to provide greater financial responsibility to pay for injuries and to encourage owners to entrust their vehicles to responsible drivers, thereby reducing the risk of injuries to others. Absent any countervailing policy for allowing an owner to escape liability when, instead of entrusting his car to a negligent driver, he entrusts it to a reckless one, we fail to see why the doctrine should be limited in the fashion urged by Sun State.

Rather than advancing policy considerations in support of its position, Sun State simply relies upon the holding in Anderson, that liability is imputed to an owner for the negligent operation of a vehicle, which Sun State argues should be interpreted as a manifestation of intent by the court to limit the doctrine’s application to negligence cases. We do not agree, however, that the Anderson court intended that liability be imposed only for negligence but not for more egregious forms of bad driving.

Anderson was a negligence case. See, Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917). In articulating its holding, therefore, the supreme court did so only in the context of the facts there at issue. Moreover, Anderson, like all the early doctrine cases, involved a master-servant relationship. Under master-servant principles, the nature of the servant’s misconduct, whether negligent, reckless, intentional, or even criminal, is irrelevant. Rather, the sole issue is whether the misdeed is committed within the scope of the servant’s employment. Stinson v. Prevatt, 84 Fla. 416, 94 So. 656 (1922). The issue in Anderson was whether a master could be held liable even though the servant was using the vehicle for an unauthorized frolic. In announcing its holding, therefore, the supreme court had no reason to be particular about the nature of misconduct that can be imputed to an owner under the doctrine, because under master-servant law it makes no difference.

Since Anderson, although the issue has never been expressly addressed by our high court, other discussions of the doctrine by the court illustrate that it has yet to emphasize any particular limitation on the manner of misuse that can be imputed to an owner. See e.g., Leonard, 112 So.2d at 836 (owner liable when vehicle is “misused”); Orefice v. Albert, 237 So.2d 142, 144 (Fla.1970) (owner liable for “misuse”); Meister v. Fisher, 462 So.2d 1071, 1072 (Fla.1984) (owner liable for “misuse”).

We conclude, therefore, that the doctrine is not limited to negligent operation of a vehicle and that reckless driving or other intentional misconduct by an operator does not terminate liability under the doctrine. Having so concluded, we declare conflict with Sun Chevrolet, Inc. v. Crespo, 613 So.2d 105 (Fla. 3d DCA 1993), to the extent that its holding is to the contrary.

We are left to consider whether any manner of improper driving will cut off an owner’s liability under the doctrine. On this issue, we conclude that, when a vehicle is used in a weapon-like manner with the intent to inflict physical injury, imputed liability under the doctrine ends.

We start our analysis of this issue by noting that the parties agree that improper driving by an operator can cut off liability under the doctrine. The point of disagreement is one of degree. Again, we address this issue without benefit of any express guidance by the supreme court. However, we believe that our conclusion finds support in established tort theory, such as principles of strict liability, from which the doctrine is derived, and the tort precept of transferred intent.

The doctrine is a derivative of the common law tort of strict liability for ultra-hazardous activity. Anderson, 86 So. at 631. This common law doctrine is premised on the notion that one who exposes other persons to injury by undertaking extraordinary risk, should bear responsibility when harm results. Liability is never imposed under the strict liability doctrine, however, when an implement or machine is used for a purpose different than that for which it is designed, such as when a hammer is used as a deadly weapon. Anderson, 86 So. at 634. Operation of a vehicle falls within the strict liability doctrine because a vehicle is dangerous to others when used for its “designed purpose.” Id. The liability undertaken by the owner of a vehicle, therefore, relates to the potential for injury when it is used as a conveyance. This is the liability for which an owner should be expected to provide insurance. When a vehicle causes harm because it is used like a weapon, a purpose for which it is not designed, however, the doctrine does not impose liability, unless its use in this manner is reasonably foreseeable. We think that the longstanding policies behind the doctrine are adequately served without extending the doctrine’s applicability to such an unforeseen use. We note that our conclusion is in agreement with the position espoused in the Restatement (Third) of Torts, § 24 (Tentative Draft No. 1, 2001), addressing strict liability for abnormally dangerous activities. To the extent that Caetano can be read to stand for this proposition, we are in agreement.

To the extent, however, that Caeta-no stands for the proposition that an operator must have the specific intent to injure the plaintiff before liability under the doctrine will terminate, we disagree. Because intent can be transferred under the doctrine of transferred intent, we do not agree that an operator’s intent to injure must be directed at the injured plaintiff before imputed liability under the doctrine will terminate. City of Winter Haven v. Allen, 541 So.2d 128, 137 (Fla. 2d DCA 1989). We certify conflict with Caetano on this issue.

In sum, we hold that the doctrine applies even when an operator is involved in intentional misconduct, unless the operator makes weapon-like use of the vehicle with the intent to cause physical harm. However, if the weapon-like use of the vehicle is reasonably foreseeable to the owner, liability will be imputed nevertheless. Because this analysis involves the operator’s state of mind, it will ordinarily be a question of fact for the jury. In this case, summary judgment was improper. Beauford’s intent in following and then chasing Miles is unclear. On this record, a jury could certainly conclude that Beau-ford did not intend to use his vehicle to cause physical injury.

REVERSED and REMANDED.

GRIFFIN and PALMER, JJ., concur.

      . In fact, a truly literal interpretation of the phrase could include any traffic infraction such as speeding, running a stop sign or going the wrong way on a one-way street, if done intentionally.

      . Comment, Sarah E. Williams, Florida’s Dangerous Instrumentality Doctrine, 25 Stetson L.Rev. 177, 179 (1995).

      . The Anderson case was before the supreme court on two occasions. The underlying facts are set forth in the 1917 opinion, Anderson v. Southern Cotton Oil Co., 73 Fla. 432, 74 So. 975 (1917). The dangerous instrumentality doctrine was addressed in the 1920 opinion after remand, Southern Cotton Oil v. Anderson, 80 Fla. 441, 86 So. 629 (1920).

      . As an alternative theoiy for our conclusion, we determine that the use of a vehicle for the purpose of intentionally inflicting injury, is an intervening act that cuts off liability under the doctrine. See Comment, Restatement (Third) of Torts, § 24 (Tentative Draft No.l, 2001).

      . Restatement (Third) of Torts, § 24 (Tentative Draft No. 1, 2001), addressing strict liability for abnormally dangerous activities provides in part:
      (a) Strict liability [for abnormally dangerous activity] is limited to physical harms that are characteristic of the risks posed by the abnormally dangerous activities ....
      (b) Strict liability [for abnormally dangerous activity] does not apply if the physical harm brought about by the defendant’s abnormally dangerous activity ... is due to the act of a third party in intentionally depriving the defendant of control over ... the activity or in intentionally causing the physical harm.

        See also, Restatement (Second) of Torts, § 522 (strict liability extends to unforeseeable, reckless acts of third party, but the American Law Institute had no - view if harm is intended).

      . The operator's state of mind, of course, may be proven by circumstantial evidence.


author: PETERSON, J.

text:
    The CITY OF OCALA, Appellant/Cross-Appellee, v. Belinda Sweet GRAHAM, Appellee/Cross-Appellant.
    No. 5D02-3208.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.

      Eric P. Gifford and Patrick G. Gilligan, of Gilligan, King & Gooding, P.A., Ocala, for Appellant/Cross-Appellee.
    L. Edward McClellan, Jr. of McClellan & Batsel, P.A., Ocala, for-Appellee/Cross-Appellant.
   PETERSON, J.

The City of Ocala (City) appeals an order denying its motions for directed verdict and judgment notwithstanding the verdict after a jury found in favor of Belinda Sweet Graham. Graham alleged that because an Ocala police officer failed to “talk” to her former husband about his threat to her life, she was shot by her husband two days later.

That threat was made when Graham’s estranged husband, Nathaniel Sweet, telephoned Graham’s sister at her home in Anthony, Florida, telling her that she should inform Graham that he saw her friend and son riding together and that when he caught up with them he was going to kill them. Graham’s sister interpreted this as a threat directed at her sister, her sister’s boyfriend, and her sister’s two older sons. Upon learning of the threat, Graham immediately called the Ocala Police Department (OPD).

Christopher Smith, an officer with the OPD, responded to Graham’s call. Some of the details of the discussion that followed are in dispute, but we relate those that are most favorable to Graham. According to Graham and her daughter-in-law, who was allegedly present during the discussion, Officer Smith specifically stated that he was going to go speak to Sweet or would send someone to speak to him. Graham acknowledges that Officer Smith advised her to tell her sister to call the Marion County Sheriffs Office because the phone call originated and was received beyond the OPD’s jurisdiction. Officer Smith wrote a report of the incident, at Graham’s insistence, because she believed it would assist her later in obtaining a restraining order. She also believed that a police officer’s contact with Sweet would have had a deterring effect because several past domestic disputes between Graham and Sweet had been defused by such contacts. Officer Smith filed the report detailing the meeting with Graham noting that he had told Graham that her sister, in Anthony, was the victim of the harassing phone call, that her sister needed to notify the Marion County Sheriffs office to make the report and that Graham, herself, wanted a report from the OPD because she was attempting to obtain a restraining order against Sweet. The report ended with “no further action taken.”

Two days after Graham’s discussion with Officer Smith, Sweet had three different telephone conversations during the course of a single day with Graham at Graham’s sister’s home in Anthony. According to Graham’s testimony, the first thing Sweet said to her was, “Did you get my message?” Graham answered yes, she had received his message, and that he needed to leave her alone. The conversations then concerned their five year old son and whether he needed a haircut and his toys. Graham told Sweet not to bring the toys, allowed him to talk with their son and thought that she had dissuaded him from a visit. She testified that she did not call any enforcement agency, although she recognized that no one from the OPD had contacted Sweet, because that fact would have crept into the phone conversations.

Ignoring Graham’s attempt to discourage the visit, Sweet drove to Graham’s sister’s house and as he was nearing the house, passed Graham’s departing adult son, William Calloway. Calloway believed that Sweet gave him a “mean look,” and having heard about the earlier alleged threat, turned his car around and returned to the house. Calloway found Sweet talking with Graham and their son outside by Sweet’s truck that contained their son’s toys. Calloway initiated a discussion with Sweet about the earlier threatening phone call. According to Calloway, Sweet mumbled a response, then in an outraged manner stated, “I’m going to end this right now,” and proceeded to walk towards his truck. As Sweet passed, Calloway pushed Sweet and a fist fight ensued during which Calloway broke Sweet’s collarbone. Sweet was also severely bruised, and bleeding from the mouth, nose and ears as a result of the fight. When the two separated, Sweet ran to his truck. Suspecting that Sweet was going to retrieve some sort of weapon, Calloway began running for the woods. Sweet retrieved a handgun from his truck and shot it in Calloway’s direction. One shot struck Graham in the face causing severe and permanent injuries.

Graham sued the City of Ocala alleging negligence for the alleged failure of the OPD to prevent Sweet’s actions that led to her injuries. She contends that Officer Smith’s failure to locate and talk to her estranged husband was the proximate cause of her injuries. The jury found the City fifteen percent negligent and Graham eighty-five percent negligent. The City’s motion for judgment notwithstanding the verdict was denied and this appeal ensued.

The Florida Supreme Court in Trianon Park Condominium v. City of Hialeah, 468 So.2d 912 (Fla.1985), described five basic principles regarding governmental tort liability:

First, for there to be governmental tort liability, there must be either an underlying common law or statutory duty of care with respect to the alleged negligent conduct. For certain basic judgmental or discretionary governmental functions, there has never been an applicable duty of care. Commercial Carrier [v. Indian River County, 371 So.2d 1010 (Fla.1979)]. Further, legislative enactments for the benefit of the general public do not automatically create an independent duty to either individual citizens or a specific class of citizens. Restatement (Second) of Torts § 288 comment b (1964).
Second, it is important to recognize that the enactment of the statute waiving sovereign immunity did not establish any new duty of care for governmental entities. The statute’s sole purpose was to waive that immunity which prevented recovery for breaches of existing common law duties of care....
Third, there is not now, nor has there ever been, any common law duty for either a private person or a governmental entity to enforce the law for the benefit of an individual or a specific group of individuals. In addition, there is no common law duty to prevent the misconduct of third persons. See Restatement (Second) of Torts § 315 (1964).
Fourth, under the constitutional doctrine of separation of powers, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights. See Commercial Carrier; Askew v. Schuster, 331 So.2d 297 (Fla.1976); art. II, § 3, Fla. Const. Judicial intervention through private tort suits ... would violate the separation of powers doctrine.
Fifth, certain discretionary functions of government are inherent in the act of governing and are immune from suit. Commercial Carrier. It is “the nature of the conduct, rather than the status of the actor,” that determines whether the function is the type of discretionary function which is, by its nature, immune from tort liability. Varig Airlines [United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).] (emphasis added).

Trianon Park also divided governmental functions into categories for tort liability purposes. We are concerned in the instant case with category II, the enforcement of laws and the protection of the public safety. That category does not have a common law duty of care, but sovereign immunity may disappear and liability may be imposed when a special relationship exists between the government actor and the tort victim. Id. at 921; see also Everton v. Willard, 468 So.2d 936 (Fla.1985); Laskey v. Martin Co. Sheriff’s Department, 708 So.2d 1013 (Fla. 4th DCA 1998).

In Pierre v. Jenne, 795 So.2d 1062 (Fla. 4th DCA 2001), the Fourth District Court of Appeal discussed the elements necessary to establish a special relationship between law enforcement and a tort victim:

1) an express promise or assurance of assistance;
2) justifiable reliance on the promise of assistance; and
3) harm suffered because of the reliance upon the express promise or assurance of assistance.

Id. at 1064. When we accept Graham’s version of what happened, as we must, the first element is established by the express promise or assurance that Officer Smith would talk to Sweet. The facts of this case, taken in the light most favorable to Graham, however, do not establish the second element of justifiable reliance on the promise of assistance. Graham could not have justifiably relied upon any promise by Officer Smith to “talk” with Sweet or that the talk would accomplish any degree of deterrent when she concluded on the first of three telephone conversations during the course of that fateful day that Officer Smith had not contacted Sweet. Although Graham had the opportunity to contact the Marion County Sheriffs Department, who had jurisdiction where the telephone conversations and subsequent tragic actions took place, she did not do so because she testified that she was not concerned about Sweet causing harm to her at the time of those telephone conversations. Cf. Brown v. City of Delray Beach, 652 So.2d 1150 (Fla. 4th DCA 1995); St. George v. City of Deerfield Beach, 568 So.2d 931 (Fla. 4th DCA 1990); Hartley v. Floyd, 512 So.2d 1022 (Fla. 1st DCA 1987). Further, the third element was not established in this case because the harm suffered was not because of Graham’s alleged reliance upon Officer Smith’s commitment to talk with Sweet; the harm resulted from Graham’s failure to contact the proper law enforcement official for protection combined with Calloway’s hostile action directed toward Sweet.

Moreover, we find that as a matter of law, Officer Smith’s actions, or more precisely, inaction, was not the proximate cause of Graham’s injuries. The determination of proximate cause is normally conducted by the fact finder, in this case, the jury. McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992), explains the duties of the jury and court in determining whether a specific fact situation is the proximate cause of the harm:

In the past, we have said that harm is “proximate” in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question. In other words, human experience teaches that the same harm can be expected to recur if the same act or omission is repeated in a similar context. Cone v. Inter County Tel. & Tel. Co., 40 So.2d 148, 149 (Fla.1949). However, as the Restatement (Second) of Torts has noted, it is immaterial that the defendant could not foresee the precise manner in which the injury occurred or its exact extent. Restatement (Second) of Torts § 435 (1965). In such instances, the true extent of the liability would remain questions for the jury to decide.
On the other hand, an injury caused by a freakish and improbable chain of events would not be “proximate” precisely because it is unquestionably unforeseeable, even where the injury may have arisen from a zone of risk. The law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience. Thus, as the Restatement (Second) of Torts has noted, a trial court has discretion to remove the issue from the jury if, “after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that [the conduct] should have brought about the harm.” Restatement (Second) of Torts § 435(2) (1965).
Unlike in the “duty” context the question of foreseeability as it relates to proximate causation generally must be left to the fact-finder to resolve. Thus, where reasonable persons could differ as to whether the facts establish proximate causation — i.e., whether the specific injury was genuinely foreseeable or merely an improbable freak — then the resolution of the issue must be left to the fact-finder. Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 56 (Fla.1977); Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911 (1938). The judge is free to take this matter from the fact-finder only where the facts are unequivocal, such as where the evidence supports no more than a single reasonable inference. Tatom v. Seaboard Air Line Ry. Co., 93 Fla. 1046, 113 So. 671 (1927).

Id. at 504 (footnote omitted).

It is with the guidance supplied by McCain that we must determine whether the trial court properly submitted to the jury the question: “Whether but for Officer Smith’s failure to talk with Sweet, Graham would not have been harmed.” A reasonable person could not answer that question affirmatively unless sheer speculation was enlisted when one reviews the facts of this case cast in a light most favorable to Graham.

Officer Smith explained to Graham that no arrest was possible by the OPD because Sweet’s threats were not made within the jurisdiction of the OPD, no crime had been committed and Graham’s sister was the proper complainant. Graham knew that the OPD could not take Sweet into custody, that the Marion County Sheriffs Department was the appropriate authority and the most that Officer Smith could do was talk with Sweet. Graham’s speculation that Sweet’s disposition would change as it had after law enforcement officers had talked to him in the past appears to be the primary factor relied upon by Graham in establishing an issue for jury determination. Whether a discussion between Sweet and a police officer would have caused the dissipation of Sweet’s predisposition to carry out the threat is an unanswerable question. We also note that Graham’s speculation was not a logical or reliable conclusion in view of the repeated disturbances and arrests that occurred subsequent to “talks” that took place in the past during the couple’s stormy marriage.

Graham realized that the OPD had made no contact with Sweet two days after she met with Officer Smith. The absence of contact became clear to her during the first of three separate phone conversations with Sweet during which she discussed matters about their son and allowed Sweet to talk with their son on the phone. Graham did not feel threatened in her telephone conversations with Sweet and made no attempt to call the Marion County Sheriffs Department when Sweet told her that he wanted to visit with and bring toys to their son. Sweet’s later arrival with their son’s toys and his conversation with Graham did not indicate any life-threatening hostility. It was not until Calloway returned, initiated conversation about the alleged earlier threat and physically attacked Sweet that the catalyst was supplied for the events resulting in the terrible injuries to Graham. It is our view that a reasonable person looking back from the event that injured Graham must conclude that Officer Smith’s failure to talk with Sweet did not bring about the harm in question. Additionally, Calloway’s physical attacks upon Sweet served as superseding and intervening causes of the injuries inflicted upon Graham. See, e.g., Levy v. Florida Power & Light Company, 798 So.2d 778 (Fla. 4th DCA 2001); Metropolitan Dade County v. Tribble, 616 So.2d 59 (Fla. 3rd DCA), review denied, 626 So.2d 210 (Fla.1993); Derrer v. Georgia Electric Company, 537 So.2d 593 (Fla. 3rd DCA 1988), review denied, 545 So.2d 1366 (Fla.1989); Metropolitan Dade County v. Colina, 456 So.2d 1233 (Fla. 3rd DCA 1984).

We reverse the trial court’s denial of the directed verdict and judgment notwithstanding the verdict and remand for entry of judgment for the City.

REVERSED.

PALMER and TORPY, JJ., concur.