text:
    David HUFFMAN and Beverly Huffman, Appellants, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-812.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Rehearing Denied Nov. 14, 2003.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P. A., Orlando, for Appellant.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P. A., Miami, for Appel-lee.
   PER CURIAM.

David Huffman and Beverly Huffman appeal a final order issued by the Florida Department of Agriculture and Consumer Services, advising them that their citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order on the authority of Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). See also Kirchgessner v. Fla. Dep’t of Agric. & Consumer Servs., 849 So.2d 410 (Fla. 5th DCA 2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. The stay entered by the court is lifted.

AFFIRMED.

PETERSON, PLEUS and ORFINGER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Peter MacPHERSON, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-814.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Rehearing Denied Nov. 14, 2003.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P. A., Orlando, for Appellant.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P. A., Miami, for Appel-lee.
   PER CURIAM.

Peter MacPherson appeals a final order issued by the Florida Department of Agriculture and Consumer Services, advising him that his citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order on the authority of Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). See also Kirchgessner v. Fla. Dep’t of Agric. & Consumer Servs., 849 So.2d 410 (Fla. 5th DCA 2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. The stay entered by the court is lifted.

AFFIRMED.

PETERSON, PLEUS and ORFINGER, JJ., concur.


text:
    Mark and Ana BUTTERFIELD, Appellants, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-823.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Rehearing Denied Nov. 14, 2003.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P. A., Orlando, for Appellant.
    Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P. A., Miami, for Appel-lee.
   PER CURIAM.

Mark and Ana Butterfield appeal a final order issued by the Florida Department of Agriculture and Consumer Services, advising them that their citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order on the authority of Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). See also Kirchgessner v. Fla. Dep’t of Agric. & Consumer Servs., 849 So.2d 410 (Fla. 5th DCA 2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. The stay entered by the court is lifted.

AFFIRMED.

PETERSON, PLEUS and ORFINGER, JJ., concur.


text:
    Ellen PARKER, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellee.
    No. 5D03-800.
    District Court of Appeal of Florida, Fifth District.
    Oct. 24, 2003.
    Rehearing Denied Nov. 14, 2003.
    Michael R. D’Lugo of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P. A., Orlando, for Appellant.

      Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, P. A., Miami, for Appel-lee.
   PER CURIAM.

Ellen Parker appeals a final order issued by the Florida Department of Agriculture and Consumer Services, advising her that her citrus trees would be destroyed because the trees were either infected with citrus canker or were located within 1,900 feet of a canker-infested tree. We affirm the Department’s order on the authority of Florida Department of Agriculture and Consumer Services v. Haire, 836 So.2d 1040 (Fla. 4th DCA), review granted, 842 So.2d 844 (Fla.2003). See also Kirchgessner v. Fla. Dep’t of Agric. & Consumer Servs., 849 So.2d 410 (Fla. 5th DCA 2003). This affirmance is without prejudice to seek just compensation for the destruction of the trees having value, or such other relief as may be appropriate. The stay entered by the court is lifted.

AFFIRMED.

PETERSON, PLEUS and ORFINGER, JJ., concur.


author: SALCINES, Judge.

text:
    Johnnie Lee RADER, Appellant, v. STATE of Florida, Appellee.
    No. 2D99-4668.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2003.
    James Marion Moorman, Public Defender, and Celene Humphries, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Johnnie Lee Rader appeals from the orders denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He also directly appeals from a restitution order. We affirm the orders denying Rader’s motion for postconviction relief without further discussion. We reverse the restitution order.

The restitution order which is the subject of this appeal was entered in October 1999. It ordered restitution in the amount of $23,572.04. The State correctly concedes that the order must be reversed and remanded for a new hearing because insufficient evidence was presented to support the amount of restitution ordered. See Crowley v. State, 710 So.2d 750 (Fla. 4th DCA 1998); see also Smith v. State, 651 So.2d 1218 (Fla. 2d DCA 1995); Williams v. State, 645 So.2d 594 (Fla. 2d DCA 1994); T.W. v. State, 576 So.2d 936 (Fla. 5th DCA 1991).

Additionally, the restitution order was entered as a condition of probation, although probation was not imposed as any part of Rader’s sentence. Thus, on remand, the time and manner of payment of the restitution should be clarified. See § 775.089(3), Fla. Stat. (1989).

Affirmed in part, reversed in part, and remanded for further proceedings.

STRINGER and VILLANTI, JJ., Concur.


author: CANADY, Judge.

text:
    David N. MARKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-913.
    District Court of Appeal of Florida, Second District.
    Oct. 24, 2003.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robert J. Krauss, Chief Assistant Attorney General, Tampa, for Appellee.
   CANADY, Judge.

On this appeal briefed and reviewed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Marker challenges the seventeen-year sentence imposed on his 1993 sexual battery conviction. The sentence was imposed on resentencing after remand from this court’s opinion in Marker v. State, 795 So.2d 1037 (Fla. 2d DCA 2001), which reversed a twenty-two-year sentence imposed for the same sexual battery offense upon the revocation of Marker’s probation. The reversal was predicated on our conclusion that the twenty-two-year sentence was based on a scoresheet that erroneously contained twenty victim injury points relating to a handling and fondling offense for which Marker had already completed his sentence. Id. at 1038. On remand, the scoresheet error was corrected, and Marker was resentenced based on a properly recalculated scoresheet to seventeen years’ imprisonment. This appeal ensued.

Upon review, we conclude that no meritorious grounds exist to support this appeal. We therefore affirm the seventeen-year prison term imposed on Marker’s sexual battery conviction. We note, however, that the sentencing documents rendered in this cause fail to conform to the trial court’s oral pronouncement that Marker is entitled to credit for all prison and jail time previously served with regard to the instant offense. We thus remand this cause to the trial court to conform the sentencing document to the trial court’s oral pronouncement.

Affirmed and remanded.

ALTENBERND, C.J., and WALLACE, J., Concur.


text:
    Michael Lewis JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3297.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2003.
    Michael Lewis Jones, Madison, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Myers v. State, 761 So.2d 485 (Fla. 5th DCA 2000).

SHARP, W., ORFINGER and MONACO, JJ., concur.


text:
    Anthony Sasso SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2877.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2003.
    Anthony Sasso Smith, Clermont, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Gillis v. State, 807 So.2d 204 (Fla. 5th DCA 2002).

SHARP, W„ GRIFFIN and ORFINGER, JJ., concur.


text:
    Daniel CRUZADO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-577.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2003.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Patricia Elaine AYERS, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D03-264.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2003.

      Patricia Elaine Ayers, Sanford, Pro Se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Fink v. Florida Unemployment Appeals Comm’n., 665 So.2d 373 (Fla. 4th DCA 1996).

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


text:
    Gordon HOLCOMB, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-2922.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2003.
    Robert A. Herce of Herce & Herce, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann Pfeiffer Howe, Assistant Attorney General, Tampa, for Appel-lee.
   SALCINES, Judge.

Gordon Holcomb entered a plea of no contest to a charge of scheming to defraud, reserving the right to appeal the denial of his motion to dismiss the charges against him based upon double jeopardy. We affirm.

Holcomb was originally charged by information with engaging in a scheme to defraud his employer, the Sarasota Ale House, involving property with an aggregate value of more than $50,000. The information alleged that the offense was committed between June 1 and August 19, 1999. Subsequently, the State filed a first amended information which charged Holcomb with the same offense but revised the time frame the offense was alleged to have been committed to June 1 through August 19,1998.

A bench trial was commenced on September 15, 2000. The first witness was called by the State and testified about incidents which had occurred after the date she started her employment with the Sarasota Ale House in July 1999. Defense counsel objected because this testimony included incidents alleged to have occurred outside the dates set forth in the first amended information: June 1 through August 19, 1998. At that point, the State informed the trial court that there had been a scrivener’s error and that the first amended information should have alleged the time frame of June 1, 1998, through August 19,1999.

The State moved for leave to amend the information to include the expanded time frame. Defense counsel objected. Despite counsel’s objection, the trial court granted leave for the State to amend the first amended information but continued the trial to April 9, 2001. The State filed the second amended information on October 3, 2000, which alleged that the offense was committed during the time frame of June 1,1998, through August 19,1999, and reduced the charge to allege the offense involved property with an aggregate value of more than $20,000 but less than $50,000.

On February 12, 2001, Holcomb filed a motion to dismiss. In his motion, Holcomb asserted that the filing of a second amended information after the nonjury trial had commenced acted as a nolle prosequi of the amended information. Holcomb argued that he now faced trial on new charges and new criminal acts after jeopardy had attached which was inconsistent •with the principles of double jeopardy. The trial court denied the motion in an order entered on March 30, 2001.

A second continuance was granted on April 5, 2001, and on June 29, 2001, Holcomb entered a no contest plea to the lesser charge of scheme to defraud, less than $20,000, for the dates alleged in the second amended information: June 1, 1998, through August 19, 1999. In so doing, Holcomb reserved his right to appeal the denial of the motion to dismiss on the grounds of double jeopardy. At that time, the State stipulated that the amount taken by Holcomb was $3641, the amount reflected in Holcomb’s signed, handwritten “confession.”

Jeopardy attaches in a nonjury trial when the court begins to hear evidence. State v. T.D., 837 So.2d 551, 552 (Fla. 4th DCA 2003). In the present case, a witness was sworn and began to testify in the prosecution of the first amended information before the trial court granted the continuance. However, in a nonjury trial, double jeopardy protection does not bar resumption of the same proceeding after a continuance, as long as there was no prejudice to the accused. R.M. v. State, 603 So.2d 64, 65 (Fla. 3d DCA 1992). In the present case, Holcomb was not prejudiced.

The offense of scheming to defraud was a crime of a continuing nature. Cf. Young v. Moore, 820 So.2d 901, 902 (Fla.2002) (holding a scheme to defraud in violation of section 817.034(4)(a)l, Florida Statutes (1995), was a true continuing offense for the purposes of gaintime calculations). Holcomb’s acts amounted to one offense. When the State once again amended the information, the time frame in which this single offense was committed was expanded. The second amended information did not add a new charge or change a substantive element of the offense charged. See Rivera v. State, 745 So.2d 343, 345 (Fla. 4th DCA 1999).

However, defense counsel must always be afforded an adequate opportunity to investigate and prepare any applicable defense to avoid prejudice. See Peevey v. State, 820 So.2d 422, 423 (Fla. 4th DCA 2002). The continuance was granted by the trial court on September 15, 2000. The second amended information was filed by the State on October 3, 2000. The trial was scheduled to recommence on April 9, 2001. The continuance period allowed sufficient time for Holcomb to develop his defense to the expanded time frame set forth in the second amended information for this single offense. We affirm the trial court’s determination that Holcomb was not prejudiced by the amendment to the information. Accordingly, the judgment and sentence must be affirmed.

Affirmed.

ALTENBERND, C.J., and KELLY, J., Concur.

      . Section 817.034(4)(a)(l), Fla. Stat. (1999).

      . Apparently, the State intended the first amended information to charge Holcomb with having engaged in a scheme to defraud during the time period of June 1, 1998, through August 19, 1999. Careful proof reading could have avoided this error.


author: NORTHCUTT, Judge.

text:
    FLORIDA RECYCLING SERVICES, INC., Appellant/Cross-Appellee, v. PETERSEN INDUSTRIES, INC., Appellee/Cross-Appellant.
    No. 2D02-5701.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2003.

      Stephanie L. Brennan and Sidney L. Vihlen, III, of Vihlen & Sills, P.A., Alta-monte Springs, for Appellant/Cross-Appel-lee.
    E. Blake Paul of Peterson & Myers, P.A., Lake Wales, for Appellee/Cross-Ap-pellant.
   NORTHCUTT, Judge.

The circuit court found Florida Recycling Services liable to Petersen Industries for breach of contract and entered a final judgment for damages in Petersen’s favor. On appeal, Florida Recycling challenges the finding of liability. We find no error in that decision and affirm it without further discussion. On cross-appeal, Petersen contends that its award was inadequate because it did not include certain incidental damages. We agree and reverse.

Florida Recycling contracted with Petersen to purchase a “Lightning Loader,” a truck-borne device used to pick up and transport large items. The contract price was $35,000, which included the cost of manufacturing the loader, the costs of modifying the loader and Florida Recycling’s truck so that they would work together, and Petersen’s profit. Petersen installed the loader on Florida Recycling’s truck, but Florida Recycling refused to take delivery. Sometime after Florida Recycling breached the contract, Petersen removed the loader from Florida Recycling’s truck and sold it to another purchaser.

Petersen sought damages for $7873.65 in lost profits pursuant to the Uniform Commercial Code, section 672.708(2), Florida Statutes (1999). Also, as provided in section 672.710, Petersen claimed $10,180.35 in incidental damages for the costs of modifying the loader and Florida Recycling’s truck. The balance of the purchase price was the cost of manufacturing the loader, which Petersen did not seek because it was compensated for that expense in the resale. The circuit court awarded Petersen its lost profits, plus interest and litigation costs, but it refused to award the modification costs because they were “included in the purchase price and, presumably; the costs of remodifying the loader for resale was included in that purchase price.” Petersen established at the trial that it incurs modification costs with every sale. When Petersen resold the loader, it had to modify the loader a second time and it had to modify the new purchaser’s truck. The new purchaser compensated Petersen for those modifications, but it did not reimburse Petersen for the modifications it performed pursuant to its earlier contract with Florida Recycling.

A seller is entitled to the full measure of its damages from a breaching buyer. Vagabond Container, Inc. v. City of Miami Beach, 356 So.2d 1266, 1267 (Fla. 3d DCA 1978). This includes lost profits under section 672.708(2) and incidental damages under section 672.710. Section 672.710 defines incidental damages as including “any commercially reasonable charges, expenses or commissions ... resulting from the breach.” The comment to section 672.710 states that its purpose is “[t]o authorize reimbursement of the seller for expenses reasonably incurred by him as a result of the buyer’s breach.” No one disputes that Petersen reasonably incurred the modification expenses. If Florida Recycling had completed the purchase, Petersen would have been reimbursed these costs through payment of the purchase price. Instead, Florida Recycling’s breach left Petersen with a loader that had been modified specifically for Florida Recycling’s purposes and that had to be modified again before it was resold. In order to recover the full measure of its damages, Petersen must be awarded these incidental expenses.

We reverse the damages portion of the judgment and remand with instructions to award Petersen both its lost profits of $7873.65 and its incidental damages of $10,180.35, plus interest and litigation costs.

Appeal affirmed; cross-appeal reversed and remanded.

SALCINES and STRINGER, JJ., concur.

      . Florida Recycling does not challenge the award of lost profits on appeal. Whether a seller should be entitled to recover its lost profits from a breaching buyer even though the seller has resold the goods is a controversial question. Compare Daniel W. Matthews, Should the Doctrine of Lost Volume Seller Be Retained? A Response to Professor Breen, 51 U. Miami L.Rev. 1195 (July 1997), with John M. Breen, The Lost Volume Seller and Lost Profits Under U.C.C. s 2-708(2): A Conceptual and Linguistic Critique, 50 U. Miami L.Rev. 779 (July 1996).


text:
    Morton ABRAMS and Harold J. Abrams, Appellants, v. Royce J. MOORE and Rosa L. Moore, his wife, Appellees.
    No. 3D02-1919.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.

      Heinrich Gordon Hargrove Weihe & James and Carol A. Gart, for appellants.
    Jacqueline A. Salcines, for appellees.
    Before GODERICH and GREEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Originally the Moores purchased an apartment building from Blake Realty subject to a mortgage owned by the Abrams. When the Moores defaulted the Abrams sued for and procured a final judgment of foreclosure in the sum of $76,095.25. On the eve of the foreclosure sale, the Moores sought the haven of Chapter 13 in bankruptcy. Bankruptcy proceedings continued for a number of years during which various payment plans were established.

In 1999, the Moores’ bankruptcy petition was dismissed, as opposed to being discharged. The Moores continued to make payments on the judgment but again defaulted in May of 1999. At that point the Abrams moved to amend the original final judgment to reflect that the adjusted balance due on the foreclosure judgment, with credits for payments made and including statutory interest from the original date of foreclosure, was the sum $55,911.35.

The issue before us is whether, given the circumstances, the Abrams are entitled to statutory interest from the date of the original judgment or whether, as the Moores argue, interest should be calculated only from the date of the second default. The trial court agreed with the Moores. However, we are persuaded by the Abrams that when a bankruptcy is dismissed the prior state court proceedings are reinstated as though the bankruptcy had not intervened. See Union Joint Stock Land Bank of Detroit v. Byerly, 310 U.S. 1, 8, 60 S.Ct. 773, 84 L.Ed. 1041 (1940). As the Eleventh Circuit Court of Appeals recently held in In re Bateman, 331 F.3d 821, 834 (11th Cir. 2003):

[AJlthough the parties are bound to the terms of the Plan, as confirmed, [the mortgageej’s secured claim for arrear-age survives the Plan and it retains its rights under the mortgage until [its] claim is satisfied in full. If that satisfaction is not forthcoming, after the automatic stay is lifted, [the mortgagee] will be entitled to act in accordance with the rights as provided in the mortgage to satisfy its claim.

In sum, the trial court’s order is reversed because the bankruptcy’s dismissal and subsequent default eliminated the Moores’ cure rights and the state court proceedings should have been reinstated as though the bankruptcy had never occurred.

Reversed and remanded.

      . Upon motion, the Moores were permitted to sell the property, the Abrams relinquished any claim of lien against the property, and the Moores were ordered to place a portion of the sale proceeds in escrow sufficient to cover the Abrams’ amended foreclosure demands and attorney's fees.


text:
    Andrew J. STRICKLAND, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2054.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Andrew J. Strickland, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant seeking to vacate his plea in postconviction proceedings. As appellant pled to the offense and did not move to withdraw his plea, he cannot raise those issues on direct appeal. See Fla. R.App. P. 9.140(b)(2) (A) (ii).

GUNTHER, WARNER and MAY, concur.


text:
    Anthony E. RAMOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-454.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.
    Anthony E. Ramos, West Palm Beach, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to refile a petition to expunge in compliance with Florida Statutes and Florida Rules of Criminal Procedure.

STEVENSON, SHAHOOD, JJ., and GEIGER, DWIGHT L., Associate Judge, concur.


text:
    Michael DOW, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2303.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.

      Michael Dow, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm appellant’s sentence. Williams v. State, 825 So.2d 994 (Fla. 4th DCA 2002). However, we remand for the trial court to correct any errors it may find in the scoresheet as to prior felony convictions identified in appellant’s rule 3.800(a) motion. Guion v. State, 828 So.2d 393 (Fla. 4th DCA 2002).

FARMER, C.J., GUNTHER and KLEIN, JJ., concur.


author: DAVIS, Judge.

text:
    PRISON HEALTH SERVICES, INC., Appellant, v. FLORIDA ASSOCIATION OF COUNTIES TRUST, a/s/o Lawrence W. Crow, Jr., Sheriff of Polk County, Appellee.
    Nos. 2D02-1479, 2D02-1489.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2003.
    Robert B. Major of Winderweedle, Haines, Ward & Woodman, P.A., Orlando, for Appellant.

      Robert H. Sturgess of Motes & Carr, P.A., Jacksonville, for Appellee.
   DAVIS, Judge.

Prison Health Services, Inc. (PHS), appeals the final summary judgment requiring it to indemnify Lawrence W. Crow, Jr., Sheriff of Polk County (Sheriff), and the Florida Association of Counties Trust (FACT) for a settlement amount that the Sheriff and FACT paid to the estate of Michael Cullaton. Because genuine issues of material fact remain to be resolved, we reverse the final summary judgment and remand for further proceedings.

On April 17,1994, while an inmate at the Polk County Jail, Cullaton sustained serious head injuries during an incident involving several corrections officers. After being injured, Cullaton was taken to the nurses’ station at the jail, which was staffed by nurses employed by PHS, the provider of medical services at the jail. Not appreciating the extent of his injuries, the nurses kept Cullaton at the jail under observation until he lapsed into a coma. He was then transported to the hospital where he died several weeks later.

The investigation following the incident determined that the corrections officers had used excessive force and that certain officers had made false official reports concerning the event. Two of the officers were charged with and convicted of aggravated battery and making false official statements.

After Cullaton’s death, his estate notified the Sheriff and FACT, as the insurer of the Sheriff, of its intent to sue for the conduct of the Sheriffs employees and notified PHS of its intent to sue for medical malpractice. On November 15, 1994, before any lawsuit was filed, the estate agreed to settle with the Sheriff, FACT, and the four officers who were involved in the incident (including the two who were convicted of aggravated battery charges) for $1 million in return for the estate’s general release of all claims against the Sheriff, FACT, and the four officers, individually and personally. This release did not include PHS. Six days later, again before suit was filed, the estate settled with PHS, its employees, and its insurers for a lump sum of $300,000 and a structured payment plan yielding $3.6 million over time.

Pursuant to an indemnification provision contained in the Health Services Agreement (the Agreement) between PHS and the Sheriff, the Sheriff and FACT, as the subrogee of the Sheriff, separately demanded indemnification from PHS for the settlement paid to the Cullaton estate. The Sheriff claims to have paid $100,000 of the $1 million settlement. The Agreement, by which PHS contracted to provide medical services at the Polk County Jail, contained language requiring PHS to indemnify the Sheriff for claims resulting from the performance of work and services described in the Agreement.

PHS denied that the Cullaton estate claim against the Sheriff was covered by the indemnification clause and refused to pay the Sheriff and FACT. FACT filed suit against PHS to enforce the indemnification clause. When the Sheriffs separate claim against PHS was ultimately settled as part of the subsequent renegotiation of the Agreement, FACT moved for summary judgment against PHS on the basis of the indemnity clause. The trial court determined that the Cullaton claim against the Sheriff was covered by the Agreement and entered final judgment in favor of FACT. PHS challenges that final judgment.

In order to find that PHS was obligated to indemnify the Sheriff and FACT, the trial court had to resolve two issues: (1) whether the claim was subject to indemnification as a matter of public policy; and (2) whether the claim was covered by the indemnification provision of the Agreement. The trial court specifically addressed only the second of these questions. However, the ruling impliedly found that the Cullaton estate’s claim against the Sheriff involved acts that are subject to indemnification as a matter of law.

We address the first question before turning to the trial court’s determination of the second issue. Whether the Cullaton estate’s claim is subject to indemnification as a matter of public policy depends on the nature of the claim. The Cullaton estate had potential claims based on both the intentional acts and the negligent acts of the Sheriff and the officers. Some of those claims include, but are not limited to, the intentional torts of the officers, the Sheriffs negligence in hiring and supervising the officers, the negligent provision of medical services, and the officers’ negligence in transporting Cullaton to PHS for treatment. There is no indication as to the specific nature of the estate’s claim as there was never a lawsuit filed.

If the Cullaton estate’s claim was based on the intentional act of one or more of the officers, we cannot determine whether the claim was subject to indemnification as a matter of law because we cannot determine from the record whether this particular employer, the Sheriff, may be held legally responsible for the intentional acts of his employees. While it is generally contrary to public policy to attempt by contract to avoid responsibility for one’s intentional acts, whether by insurance or by indemnification agreement, Swindal v. Prudential Prop. & Cas. Ins. Co., 599 So.2d 1314 (Fla. 2d DCA 1992), approved, 622 So.2d 467 (Fla.1993), in certain fact-specific circumstances, an employer may be held responsible for the intentional torts of its employees, see M.V. v. Gulf Ridge Council Boy Scouts of Am., Inc., 529 So.2d 1248 (Fla. 2d DCA 1988). However, because such a determination requires a complicated and fact-driven analysis that is not possible given the record before us, we decline to reach that issue. If, on the other hand, the claim was based on the negligence of the Sheriff or his officers, there would be no public policy prohibition to indemnification. Because the nature of the claim or claims is not apparent from the record, genuine issues of material fact remain and the entry of summary judgment was improper. Accordingly, we reverse the final summary judgment and remand for determination of the factual issues.

We now turn to the second question, which is whether the Cullaton estate’s claim, if it was subject to indemnification, was covered by the indemnification provision of the Agreement. In determining whether the Agreement required PHS to indemnify the Sheriff for the Cullaton settlement, the trial court interpreted the following language of the contract:

PHS assumes the entire responsibility for performance of all work and services and duties described in this Agreement. For specific valuable consideration and other benefits accruing to PHS, which have been received or acknowledged by PHS, and which are separate and apart from any and all other consideration for PHS to enter into this Agreement, PHS further expressly agrees to indemnify SHERIFF, his appointees, officers, agents, employees and Polk County, Florida, and agrees to hold them and shall hold all of them harmless from any and all claims or actions for personal injury, death or property damage and from any other losses, and all damages (including but not limited to: compensatory, consequential, and incidental) charges, or expenses, including reasonable attorney’s fees, which arise out of, in connection with or by reason of, the performance of all services, duties and responsibilities described pursuant to this Agreement or which are alleged to have arisen out of, in connection with, or by reason of, the performance of such services, duties and responsibilities. PHS further agrees to undertake at its own expense, the defense of any action which may be brought against the SHERIFF, his appointees, officers, agents, employees, and Polk County, Florida, claiming damages which are alleged to have arisen out of, by reason of, or in connection with, the performance of the services, duties and responsibilities of this Agreement.
Should a Court determine that the basis of a valid claim or action was totally due to the fault of the SHERIFF, then the SHERIFF agrees to indemnify, defend or reimburse PHS for its defense and shall hold harmless PHS, its agents, servants, employees and medical staff from any judgment awarded from such claim or action.

The trial court, citing Department of Transportation v. V.E. Whitehurst & Sons, Inc., 686 So.2d 101 (Fla. 1st DCA 1994), determined that this language required PHS to indemnify the Sheriff for all claims unless the Sheriff was found to be totally liable. Thus, the trial court entered summary judgment requiring PHS to indemnify FACT, as subrogee of the Sheriff.

However, once again, the trial court did not specify the nature of the claim or claims that the Sheriff and FACT were settling. Since the contract limits indemnification to those claims related to or arising out of the performance of the services and duties provided under the Agreement, the Agreement would not support indemnification of a claim for the tortious conduct of the individual officers or the hiring and supervising duties of the Sheriff. On the other hand, the Cullaton estate also had a potential claim for negligent provision of medical services, which would fall within the terms of the contract and would thus be included in the indemnification coverage. Because the nature of the claim that was being settled is a factual determination, genuine issues of material fact remain as to what type of claim was settled and whether that claim was covered by the Agreement. Accordingly, the entry of final summary judgment was improper and must be reversed.

Reversed and remanded.

SALCINES and KELLY, JJ., concur.

      . The trial court originally entered the final judgment on Januaiy 29, 2002, and PHS timely filed its notice of appeal. However, it was later determined that the clerk of court had misplaced the final judgment, and on March 14, 2002, the trial court entered another final judgment "nunc pro tunc January 29, 2002.” PHS also filed a notice of appeal of the March 14, 2002, judgment. These two cases are consolidated on appeal.


author: ALTENBERND, Chief Judge.

text:
    Willie E. CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2246.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2003.

      Willie E. Clark, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Chief Judge.

Willie E. Clark appeals the denial of his motion to award proper credit for time served pursuant to Florida Rule of Criminal Procedure 3.800(a). This case presents an unusual procedural circumstance in which it appears that standard language commonly used to award prison credit was inadequate to instruct the Department of Corrections about the proper method to calculate that credit for Mr. Clark. We reverse the trial court’s order denying relief and order that the trial court revise the language used to award prison credit in Mr. Clark’s sentence for racketeering so that the Department will award Mr. Clark credit for the time he spent in prison during the pendency of the State’s successful appeal.

Mr. Clark was arrested on July 23,1991, for offenses that occurred between 1988 and 1991. He has been in jail or prison at all times since his arrest. The State filed an information charging Mr. Clark with multiple offenses and a jury convicted him as charged. On July 13, 1993, the trial court entered judgment on all convictions except one, entering an acquittal on count II for racketeering. The trial court prepared a guidelines scoresheet following the jury’s verdict. The trial court, however, departed upward from the guidelines and sentenced Mr. Clark to various sentences, all with 723 days of jail credit for the period of incarceration between arrest and sentencing. Both the State and Mr. Clark appealed these judgments and sentences.

In November 1994, this court reversed the judgment of acquittal on count II. We also reversed the upward departure sentences and remanded for resentencing within the guidelines on all charges. Clark v. State, 645 So.2d 575 (Fla. 2d DCA 1994). On remand, the trial court entered a judgment of guilt on count II. It prepared a new scoresheet adding the charge of racketeering to the scoresheet. The trial court resentenced Mr. Clark on February 3, 1995. The new sentences, of course, included a sentence for count II, the racketeering charge. Mr. Clark was given credit for the 723 days in jail prior to his earlier trial, and the trial court checked the prison credit box which stated: “It is further ordered that the defendant be allowed credit for all time previously served on this count in the Department of Corrections prior to resentencing.”

Mr. Clark again appealed, and this court again reversed because the trial court had not resentenced him within the guidelines. Clark v. State, 665 So.2d 302 (Fla. 2d DCA 1995). The case was remanded for sentencing within the guidelines.

On remand, on May 16, 1996, the trial court reentered judgment against Mr. Clark and entered new sentences for the various counts. In total, the trial court rendered sentences for eight convictions. For count I, conspiracy to commit racketeering, Mr. Clark received a sentence Of 27 years’ imprisonment with 723 days of jail credit and with a check in the same prison credit box that had been checked on the 1995 sentence. Count II, racketeering, resulted in an identical, concurrent 27-year sentence with the same check in the prison credit box. Counts III through VIII resulted in concurrent 5-year sentences with comparable ’ jail credit and prison credit.

Because Mr. Clark’s first sentence on count I was entered on July 13, 1993, the Department of Corrections has correctly calculated Mr. Clark’s 27-year sentence for that offense from July 13, 1993. However, because the sentence on count II was delayed until the completion of the first appeal, the Department has calculated that sentence from the entry of the judgment on February 3, 1995. Thus, Mr. Clark is getting no credit on count II for the time he actually spent in prison between July 13,1993 and February 3,1995.

Mr. Clark has filed more than one post-conviction motion challenging the precise calculation of his jail credit and also attempting to explain that he is receiving no prison credit for the gap. See Clark v. State, 707 So.2d 342 (Fla. 2d DCA 1997). The jail credit issue has now been resolved, but Mr. Clark’s valid concern about the gap has either been overlooked or misunderstood.

The motion before us was filed pursuant to rule 3.800(a) seeking resolution of a purely legal issue surrounding the calculation of prison credit. The trial court denied the motion on the theory that there was nothing wrong on the face of the sentence and that prison credit is a matter for the Department. It is undisputed that the Department is reading the prison credit language in the standard judgment literally and has determined that Mr. Clark spent no time in prison on count II prior to the judgment entered on remand in 1995. Essentially, the Department believes that he could not spend time in prison on that count because no conviction existed on that count prior to 1995. Thus, the trial court believes it has entered the appropriate sentence and the Department believes it is obeying the trial court, but meanwhile Mr. Clark is not receiving credit for prison time that he has unquestionably served and which should clearly be applied to this sentence.

These circumstances are admittedly rare, and no statute or case law has been located that directly addresses the problem. Nevertheless, if the State successfully appeals a judgment of acquittal of one, but not all, counts against a defendant and the defendant is in prison at all times during the appeal because of his sentence on the other counts, when a new judgment and sentence are imposed on remand from the appellate court and the newly imposed sentence is concurrent with the earlier sentences, the defendant is entitled to prison credit on the newly imposed sentence for the time he has already spent in prison during the State’s appeal. Perhaps this could be accomplished by a “nunc pro tunc” sentence. Instead of such a fictitious device, it may be better for special language to be inserted into the new sentence following a successful appeal by the State that specifies the defendant is entitled to prison credit on this count for all time already spent in prison on the concurrent sentences that were entered prior to the appeal.

Accordingly, we reverse the trial court’s order and instruct the court on remand to replace the standard prison credit language in the sentence for count II with special language that unequivocally requires the Department to give Mr. Clark credit on count II for the time spent in prison during the pendency of the State’s successful appeal.

Reversed and remanded.

WHATLEY and WALLACE, JJ., Concur.

      . Interestingly, he has been given credit for the jail period between July 23, 1991, and his first sentencing on July 13, 1993. Thus, it is the gap of approximately 520 days between his initial time in jail and the date of his revised sentences for which he has received no credit.

      . Although rule 3.800(a) is most often used to correct illegal sentences, that rule also permits a prisoner to seek relief from facial scoresheet errors and credit errors that appear on the face of the court records. See Fla. R.Crim. P. 3.800(a).

      . We emphasize that this case involves concurrent sentences. A different outcome would result if the new sentence could be imposed consecutively.


author: WALLACE, Judge.

text:
    Erik P. SYVRUD and Carol C. Syvrud, husband and wife, as individuals, Appellants, v. TODAY REAL ESTATE, INC., a Florida corporation, d/b/a Re/Max Today, Appellee.
    No. 2D02-4526.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2003.

      Patrick B. Calcutt and Kathleen M. Cal-cutt of Calcutt & Calcutt, P.A., St. Peters-burg, for Appellants.
    Charles Tyler Cone of Fowler White Boggs Banker, P.A., Tampa, for Appellee.
   WALLACE, Judge.

Paul G. Cummings and Mary P. Cummings (the Sellers) entered into a contract with Erik P. Syvrud and Carol C. Syvrud (the Buyers) for the sale and purchase of a townhouse condominium unit located in the Nature’s Watch development in Pinellas County, Florida. After the Buyers closed and took possession of the property, they brought an action against Today Real Estate, Inc., a Florida corporation, d/b/a Re/ Max Today (the Listing Broker); New York Associates, Inc., a Florida corporation, d/b/a Re/Max Mutual Realty (the Selling Broker); and the Sellers. The Buyers demanded a jury trial, requested rescission of the contract with the Sellers, and asserted claims for damages against the Sellers and both brokers on various theories, including the nondisclosure of hidden defects materially affecting the value of the property pursuant to Johnson v. Davis, 480 So.2d 625 (Fla.1985). The Listing Broker moved to dismiss the claims against it and for judgment on the pleadings on the ground that the provisions of an addendum to the parties’ contract relieved the Sellers and the Listing Broker of any duty of disclosure to the Buyers. The trial court granted both motions and entered final judgment in favor of the Listing Broker and against the Buyers. Because we conclude that the provisions of the addendum to the contract did not relieve the Listing Broker of its duty to the Buyers, we reverse the trial court’s order and final judgment, and we remand for further proceedings.

Facts and Procedural History

The pertinent facts are alleged in the Buyer’s first amended complaint. For purposes of our review, we must assume the factual allegations of the first amended complaint to be true, and we construe them in the light most favorable to the Buyers as the nonmoving party. See Williams v. Howard, 329 So.2d 277, 280 (Fla.1976); Hosp. Constructors Ltd. v. Lefor, 749 So.2d 546, 547 (Fla. 2d DCA 2000).

On May 7, 2001, the Sellers and the Buyers entered into a contract for sale and purchase of the property on a preprinted form approved by the Florida Association of Realtors and The Florida Bar. The form is commonly known as “the FAR/BAR contract.” The Sellers and the Buyers also executed a typewritten addendum and made it a part of the contract. Because the interpretation of some of the provisions of the addendum is critical to the resolution of this appeal, we quote at length from the addendum:

(A)This contract is contingent upon the Buyer’s approval of a home inspection to be done by a [l]ieensed home inspection company [at] Buyer’s expense within 7 days of acceptance. Buyer must, within 3 days from the end of the inspection period, deliver written notice of any items that are not in the condition war-rented [sic] and a copy of the inspector’s report to the seller. In the event buyer does not approve home inspection, Buyer has the right to declare contract null and void and all escrow monies shall be returned to purchaser. If the Buyer approves the contract and decides to go forward, paragraphs “N” & “D” of the contract will prevail. Buyer also retains right to a final walk-through inspection. Buyer(s) acknowledge that the inspection(s) shall focus on warrented [sic] items affecting the habitability and not for the purpose of establishing a list of cosmetic repairs for seller(s) to perform, as defined in paragraph “N” of the contract. Buyer(s) hereby acknowledge that the property being sold is not new and that the seller(s) and broker(s) make no verbal representations, warranties, or guarantees as to the condition of the property and it’s [sic] appurtenances and/or fitness for specific purpose.
(B) Buyer(s) and seller(s) agree that any workman, contractors, inspectors or experts recommended by the listing or selling agents are for [B]uyer(s) or seller(s)[’] convenience only and that such workman, contractors, inspectors or experts should be retained based on [B]uyer(s) and seller(s)[’] research and discretion.
Buyer(s) and seller(s) agree to hold harmless Re/Max Mutual Realty [the Selling Broker] and JIM WORCESTER, P.A., from and responsibility regarding the findings of inspections.
(C) Buyer(s) and seller(s) agree to rely upon themselves and those licensed to give professional advise [sic] regarding compliance with or and [sic] aspect of the property including, but not limited to[,] zoning, use restrictions, lot size, availability of improvment [sic] services, school districts, presence of hazardous materials, square footage or dimensions, radon, flood plain designation, roofing, mechanical, electrical, plumbing, appliances and other appurtenances conveyed with the sale. The Real Estate Agents[’] opinions, if any, have been only in marketing and sales negotiations.
(D) This contract is contingent on [B]uyer’s review and approval of a seller’s property disclosure statement within 7 days of receipt of said statement.

The provisions of the addendum referred specifically to two of the paragraphs contained in the “Standards for Real Estate Transactions,” which form part of the FAR/BAR contract: paragraph “D” relating to “TERMITES/WOOD DESTROYING ORGANISMS” and paragraph “N” relating to “INSPECTION, REPAIR AND MAINTENANCE.” The addendum did not, however, delete or otherwise reference paragraph “W” relating to ‘WARRANTY.” Paragraph “W” of the “Standards for Real Estate Transactions” provides: “Seller warrants that there are no facts known to Seller materially affecting the value of the Property which are not readily observable by Buyer or which have not been disclosed to Buyer.” Paragraph “W” sets forth the Seller’s duty of disclosure in connection with residential real estate transactions as declared by the Supreme Court of Florida in Johnson, 480 So.2d at 629.

Paragraph (D) of the addendum made the contract “contingent on [B]uyer’s review and approval of a seller’s property disclosure statement within 7 days of receipt of said statement.” In order to satisfy this contingency, prior to the closing the Sellers signed and delivered to the Buyers a “Sellers Real Property Disclosure” concerning the property. The Sellers’ disclosures were presented on a preprinted form apparently provided by the Listing Broker. In pertinent part, the Sellers’ disclosure said:

In Florida, a seller is obligated to disclose to a buyer all known facts that materially and adversely affect the value of the property being sold and that are not readily observable. This disclosure statement is designed to assist the seller in complying with the disclosure requirements under Florida law and to assist the purchaser in evaluating the property being considered. The listing real estate agent, the selling real estate agent and their respective agents will also rely upon this information when they evaluate, market and present the seller’s property to prospective buyers.

The Sellers’ disclosure statement did not disclose any of the hidden defects and other conditions affecting the property that the Buyers alleged they discovered after the closing.

The hidden defects that the Buyers claimed had not been disclosed to them by the Sellers and the Listing Broker were not merely cosmetic in nature. On the contrary, these defects included mildew damage, damage from water leaks, structural cracks, and other structural defects. Nor were the alleged defects confined to the unit purchased by the Buyers. A number of buildings in the project had substantial structural defects. The expenses of remedying these defects caused the condominium association to impose on the unit owners extraordinary assessments estimated to be in excess of $20,000 per unit.

The Buyers closed on the purchase of the property on May 31, 2001. In support of their claim that the Sellers and the Listing Broker knew of the alleged hidden defects in the property prior to closing, the Buyers attached as exhibits to their first amended complaint copies of a series of letters addressed to the unit owners from the homeowners’ association and the condominium’s property manager. This correspondence consisted of six letters dated from October 8, 1999, to July 26, 2000, all substantially before the closing date of May 31, 2001. This correspondence detailed serious structural deficiencies in the buildings in the project and announced the hiring of a structural engineer, a roof consultant, a repair contracting firm, an architectural firm, a law firm, and a licensed public adjusting firm to address the multiple problems faced by the project. The correspondence also reported some of the extraordinary assessments imposed on the unit owners. A letter dated June 27, 2000, concluded with this ominous warning: “Unless significant recoveries are received from legal action and/or insurance claims, the special assessments against each unit will be much higher than most owners expect.” The Buyers alleged that the Sellers and both brokers had knowledge of the alleged hidden defects in the property and failed to disclose them to the Buyers prior to closing.

The Buyers’ first amended complaint alleged six counts against the Sellers, the Selling Broker, and the Listing Broker. In this appeal, we are only concerned with Counts Three and Five, the claims against the Listing Broker:

Count Three: Action for damages for failure to disclose hidden defects materially affecting the value of the property.
Count Five: Action for damages for negligence and “real estate malpractice.”

In the order and final judgment under review, the trial court entered judgment on the pleadings against the Buyers on both of their claims against the Listing Broker.

The Standard of Review

The applicable standard of review for a trial court’s decision granting a motion to dismiss is de novo review. Ruiz v. Brink’s Home Sec., Inc., 777 So.2d 1062, 1064 (Fla. 2d DCA 2001); W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 300 (Fla. 1st DCA 1999). The de novo standard of review also applies to a trial court’s decision granting judgment on the pleadings. Williams, 329 So.2d at 280-81. Moreover, the trial court’s decision in this case is based upon the interpretation of the contract between the Buyers and the Sellers. The decision interpreting this contract presents an issue of law subject to review by the de novo standard. See RNK Family Ltd. P’ship v. Alexander-Mitchell Assocs., 788 So.2d 1035, 1036 (Fla. 2d DCA 2001).

The Law

In its leading decision in Johnson v. Davis, the Supreme Court of Florida declared:

Accordingly, we hold that where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. This duty is equally applicable to all forms of real property, new and used.

Johnson, 480 So.2d at 629. The parties agree that the duty of disclosure announced in Johnson v. Davis extends to a seller’s real estate broker. See Revitz v. Terrell, 572 So.2d 996 (Fla. 3d DCA 1990); Rayner v. Wise Realty Co. of Tallahassee, 504 So.2d 1361 (Fla. 1st DCA 1987). A seller’s broker may also be liable to a buyer on the theories of negligence and fraudulent misrepresentation. See Young v. Johnson, 538 So.2d 1387 (Fla. 2d DCA 1989).

Analysis

The last sentence of paragraph (A) of the addendum to the contract states: “Buyer(s) hereby acknowledge that the property being sold is not new and that the seller(s) and broker(s) make no verbal representations, warranties, or guarantees as to the condition of the property and it’s [sic] appurtenances and/or fitness for specific purpose.” This sentence forms the basis for the Listing Broker’s argument that the Buyers waived their claims for nondisclosure of hidden defects and negligence. After a thorough review of the entire contract, we conclude that the quoted provision in the addendum does not have the exculpatory effect claimed for it by the Listing Broker.

The addendum provision in question is divided into two parts. The first part of the provision alerts the Buyers to the obvious fact that the condominium unit is not new construction. An informed purchaser might infer from this declaration that— depending upon the date of completion of construction of the building or improvements — the statutory implied warranties imposed on developers of condominiums and their contractors, subcontractors, and suppliers by section 718.203, Florida Statutes (2000), may be unavailable. The second part of the provision purports to disclaim, on behalf of the Sellers and both brokers, any representations, warranties, or guarantees concerning the condition of the property and its fitness for a specific purpose. Nevertheless, at no point does this provision or any other part of the addendum specifically state that the Buyers waive the Sellers’ duty to disclose hidden defects materially affecting the value of the property as required by Johnson v. Davis. If the provision in question disclaims representations, warranties, and guarantees concerning the property, but does not specifically provide for a waiver of the duty to disclose, how is it to be interpreted?

We think the provision in the addendum is the functional equivalent of an “as is” clause. The description of the property as “not new” and the disclaimer of any representations, warranties, or guarantees concerning it are characteristic of an “as is” transaction. See generally Jeffrey A. Grebe, What Is “As Is” in Florida?, 30 Stetson L.Rev. 875 (2001). An “as is” clause in a contract for the sale of residential real property does not waive the duty imposed by Johnson v. Davis to disclose hidden defects in the property. See Levy v. Creative Constr. Servs. of Broward, Inc., 566 So.2d 347 (Fla. 3d DCA 1990); Rayner, 504 So.2d at 1364. Therefore, the Buyers’ claim against the Listing Broker for nondisclosure of hidden defects under Johnson v. Davis stated a cause of action. The trial court erred in entering a judgment on the pleadings in favor of the Listing Broker on Count Three of the Buyers’ first amended complaint.

We also conclude that the provision in the addendum does not necessarily relieve the Listing Broker of liability on the negligence claim alleged in Count Five of the first amended complaint. The “as is” disclaimer in the-addendum may affect the issue of the extent to which the Listing Broker owed a duty of care to the Buyers. See Knipp v. Weinbaum, 351 So.2d 1081, 1085-86 (Fla. 3d DCA 1977) (discussing the effect of an “as is” term contained in a bill of sale for a motorcycle on an action for negligence). The effect of the disclaimer in the context of an action for negligence, however, is a question of fact subject to the jury’s determination of what was reasonable under the circumstances. Id. at 1086; see generally Grebe, 30 Stetson L.Rev. at 915-20. Therefore, the Buyers’ claim against the Listing Broker for negligence also stated a cause of action. The trial court erred in entering a judgment on the pleadings in favor of the Listing Broker on Count Five of the Buyers’ first amended complaint.

Three additional facts support our decision. First, the addendum does not provide that paragraph “W” of the “Standard for Real Estate Transactions” in the FAR/ BAR contract would not apply. Paragraph “W” provides for an express warranty by the contract seller that “there are no facts known to Seller materially affecting the value of the Property which are not readily observable by Buyer which have not been disclosed to Buyer.” Because the addendum does not provide that paragraph “W” would not apply, it is reasonable to construe the provision in the addendum as an “as is” clause rather than as a disclaimer of the duty of disclosure under Johnson v. Davis. To interpret the addendum provision otherwise would not be in accord with the intent of the parties as expressed in their written contract.

Second, paragraph (D) of the addendum specifically provides: “This contract is contingent on [B]uyer’s review and approval of a seller’s property disclosure statement within 7 days of receipt of said statement.” This paragraph indicates that the parties intended not to dispense with but, rather, to mandate compliance with the Johnson v. Davis requirements.

Third, in compliance with paragraph (D) of the addendum, the Sellers delivered their “Sellers Real Property Disclosures” to the Buyers on a preprinted form apparently provided by the Listing Broker. The language on the form expressly recited the seller’s duty to disclose hidden defects under Johnson v. Davis. In construing a contract, the actions of the parties may be considered as a means of determining the interpretation that they themselves had placed on the contract. See Lalow v. Codomo, 101 So.2d 390, 393 (Fla. 1958); Mesick v. Loeser, 311 So.2d 132, 136 (Fla. 2d DCA 1975). In this case, the Sellers’ delivery to the Buyers of real property disclosures prior to closing in purported compliance with the rule of Johnson v. Davis on a form apparently provided by the Listing Broker is inconsistent with the Listing Broker’s claim that the Sellers were the beneficiaries of a contractual disclaimer of the duty to disclose.

The Listing Broker has called to our attention several decisions that have determined waivers and exculpatory clauses to be valid and enforceable in a variety of contexts. The Listing Broker has cited these decisions in support of the proposition that a purchaser of residential property can make a valid waiver of the duty of disclosure under Johnson v. Davis. We find it unnecessary to address this issue. Our resolution of this appeal turns entirely on the allegations of the Buyers’ first amended complaint and our interpretation of the terms of the parties’ contract. Because we conclude that this contract does not provide for a waiver of the duty of disclosure, we do not reach and expressly do not decide the issue of whether a buyer of residential real property can waive the duty of disclosure under Johnson v. Davis.

For the foregoing reasons, the trial court’s order and final judgment in favor of the Listing Broker must be reversed.

Reversed and remanded for further proceedings consistent with this opinion.

FULMER and COVINGTON, JJ„ concur.

      . The particular version of the form used was the August 1998 revision.

        . See Carrero v. Porterfield, 752 So.2d 699, 699-700 (Fla. 2d DCA 2000) (Altenbernd, A.C.J., dissenting from decision without published opinion) (doubting whether Florida law allows a buyer’s waiver of contractual warranties to operate as a bar to a claim of fraud under Johnson v. Davis). The parties have not cited, and our independent research has not disclosed, a Florida case squarely deciding this issue.


author: FULMER, Judge.

text:
    Errol CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2762.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2003.

      James Marion Moorman, Public Defender, and Frank D.L. Winstead, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Errol Crawford challenges his thirty-year sentence for aggravated battery. Because the trial court erred in utilizing the weapon enhancement in section 775.087(1), Florida Statutes (1997), we reverse and remand for the trial court to resentence Crawford for a second-degree felony.

Section 775.087(1) precludes reclassification if the crime charged requires the use of a weapon as one of its essential elements. The jury was instructed that it could find Crawford guilty of aggravated battery either by finding great bodily harm or use of a deadly weapon. The jury verdict form did not make a distinction between the two types of aggravated battery. Based on the instructions given and the verdict rendered we cannot rule out the possibility that the jury found Crawford guilty of aggravated battery by use of a deadly weapon, in which case the weapon was an essential element of the offense, and enhancement was improper. See Lareau v. State, 573 So.2d 813 (Fla.1991); Bogdanon v. State, 763 So.2d 376 (Fla. 2d DCA 2000). Accordingly, we reverse and remand for resentencing.

Reversed and remanded.

CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


text:
    DOGA CORPORATION, Appellant/Cross-Appellee, v. Federico SARRIA and Maria Del Carmen Sarria, Appellees/Cross-Appellants, v. ROLANDO BARERRO INTERESTS, INC., Cross-Appellee.
    No. 3D02-2306.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.

      Markowitz, Davis, Ringel & Trusty and Joseph I. Davis, for appellant/cross-appel-lee DOGA.
    Burger & Trailor and Alan M. Burger, for appeUees/cross-appellants Sarria.
    De La Cruz & Cutler and H. Jeffrey Cutler, and Albert D. Viener, for cross-appellee Barrero.
    Before SCHWARTZ, C.J., and WELLS, J., and NESBITT, Senior Judge.
   PER CURIAM.

We affirm the trial court’s order vacating the default against Doga Corporation and granting Doga relief from the previously entered final judgment and orders reforming the mortgage, all based on the default. In Simone v. Damare, 595 So.2d 281 (Fla. 3d DCA 1992) this court stated:

The Florida Supreme Court has established a policy of providing relief from defaults and allowing trials on the merits. If there is any reasonable doubt in the matter of vacating a default, it should be resolved in favor of granting the application and allowing the trial upon the merits. Northshore [sic] Hospital, Inc. v. Barber, 143 So.2d 849 (Fla. 1962). Although an abuse of discretion is necessary in order to reverse a trial court’s ruling on a motion to vacate default, appellate courts need not find as great a showing of abuse to reverse a trial court’s denial of a motion to vacate default as they do to reverse a grant of such a motion. Garcia Insurance Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977).

We find no abuse of discretion in the vacating of the default, and the claim against Doga is remanded for further proceedings on the merits.

As to the cross-appeal, having reviewed the record, we believe there are sufficient disputed issues of material fact to preclude summary judgment on issues concerning the circumstances, nature and propriety of the future advances claimed by Barrero and therefore reverse the summary judgment and remand this matter for further proceedings.

Affirmed in part, reversed in part, and remanded for further proceedings.

      . This ruling does not preclude an ultimate determination that the future advances are valid and appropriate and of the same priority as the other sums due under the first mortgage.


text:
    Gloria Holmes TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3397.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We dismiss this appeal for lack of jurisdiction. The motion for reduction of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c), is addressed to the discretion of the trial court. Therefore, this Court has no jurisdiction to review the correctness of the trial court’s disposition of the motion. Daniels v. State, 568 So.2d 68 (Fla. 1st DCA 1990).

DISMISSED.

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


author: THOMPSON, J.

text:
    David LASSITER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2291.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2003.
    James B. Gibson, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

David A. Lassiter appeals his conviction for robbery with a weapon. Lassiter contends that the court erred in denying his motion to exclude evidence concerning the one-person identification procedure through which the victim identified Lassi-ter as the person who committed the robbery. We affirm.

Robert Moore testified that he had been in Melbourne on a business trip and arrived at his hotel after having dinner. As he was exiting his car, he exchanged greetings with two friendly-seeming people who approached him. Moore testified that the two people were black, and that they were wearing dark clothing and baseball hats. Moore testified that after the pair passed in front of him, the person in the lead spun around, pulled out a gun, and asked Moore for his wallet. Moore gave the person his wallet. Next, the person took Moore’s cell phone, gold nugget necklace, and watch. The two people walked away, and Moore walked to the hotel lobby where he reported the robbery. Moore testified that as he was standing in the lobby, he saw a light gray or brown van with a dark stripe on its side leave the parking lot.

Moore went to bed after speaking with police about the robbery, but about an hour and half later, he was awakened by a telephone call from a police officer. The police picked up Moore at the hotel and took him to the place where Lassiter had been arrested. Moore positively identified the van at the scene as the one he saw leaving the hotel parking lot after the robbery. Moore testified that when an officer opened the van door and asked if he could identify anything, Moore identified his necklace and his watch. Moore stated that the police officer took him to a squad car where Moore positively identified the person within as the one who robbed him. In court, Moore identified Lassiter as the person who robbed him. Moore testified that at the time of the incident, he had thought that the two people involved were males, but later realized that one of the persons was a female.

Mary Staley testified that she had known Lassiter for several years and that on the day of the incident, she gave Lassi-ter a ride in a van that she borrowed from her friend, Barbara, whose last name she did not know. Staley stated that she and Lassiter stopped at a gas station for gas, but that they did not drive to the hotel where the robbery occurred. Staley denied robbing Moore and said that she had been intoxicated and did not see the necklace and the watch in the van. Staley did not know how the watch and necklace got in the van because her friend, Barbara, let a lot of people borrow the van.

Lassiter testified that he did not commit the robbery. He testified that he was at his friend’s house prior to the robbery. Lassiter testified that he did not know where exactly he was between 9:00 and 9:15, immediately before the robbery, but that he did not commit the robbery. Las-siter stated that he had not been aware that there was jewelry in the van.

On appeal, Lassiter contends that the trial court erred in admitting evidence of Moore’s out-of-court identification because the procedure was unnecessarily suggestive and made Moore’s identification unreliable. In determining whether to exclude an out-of-court identification, the trial court must determine: 1) whether the police used an unnecessarily suggestive procedure to obtain the identification; and 2) if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Rimmer v. State, 825 So.2d 304, 316 (Fla.2002).

A “show-up” procedure involves the police taking a witness to the location of the suspect to give the witness an opportunity to make an identification. Walker v. State, 776 So.2d 943 (Fla. 4th DCA 2000). Although a show-up is inherently suggestive, it can be valid if the identification is based upon the independent recollection of the witness. Id. at 945. Immediate confrontations allow identification before the suspect has altered his appearance and while the witness’ memory is fresh, and permit the quick release of innocent persons. Johnson v. Dugger, 817 F.2d 726 (11th Cir.1987). However, show-up identifications are invalid if, based on the totality of the circumstances, there was a substantial likelihood of irreparable misidentification. Walker, 776 So.2d at 945. The factors to be considered in evaluating the likelihood of irreparable misidentification include: the opportunity of the witness to view the criminal at the time of the crime; the degree of attention paid by the witness; the accuracy of the prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In the instant case, although the show-up procedure may have been suggestive, based on the totality of the circumstances, the identification was reliable and there was no likelihood of irreparable misidenti-fication. First, Moore had a reasonable opportunity to view Lassiter. Moore observed the gunman during the robbery for one to two minutes after first having exchanged pleasantries with him. Moore’s attention was focused on the pair of assailants as they approached him and as they exchanged greetings. Moore testified that although the robbery occurred in the evening, the hotel parking lot was well-lit. Moore testified that during the robbery, he kept his eyes on Lassiter’s face even when Lassiter was removing Moore’s wallet and cell phone from his pocket. Moore was not accurate when he described the assailants as two black males, but both assailants were wearing baseball caps, and the trial court pointed out at the hearing that Mary Staley could easily be mistaken for a male. Additionally, Moore accurately described the unique van in which the assailants left the hotel parking lot. Regarding the level of certainty of Moore’s identification, there was testimony that Moore positively identified Lassiter and Staley as soon as he was within five feet of them at the show-up. Finally, only three hours elapsed between the crime and the identification.

Lassiter argues that the identification was tainted because Moore saw the van and the stolen items prior to the show-up, but the fact that Lassiter was stopped in the unique van described by Moore and the fact that the stolen items were found in the van indicate that Moore’s identification was reliable. Compare Scott v. State, 629 So.2d 238 (Fla. 3d DCA 1993) (holding that show-up was unduly suggestive where the officer informed the witness that the person in custody was a suspect, had changed clothes after committing crime, and stolen property had been found on person, but holding that trial court did not err in concluding identification was proper given that stolen property was found on defendant’s person); Hackett v. State, 822 So.2d 1078, 1082 (Miss.Ct.App.2002) (holding that although show-up of defendant who was cuffed and seated in police car was highly suggestive, it was not suggestive enough to create a substantial likelihood of irreparable misidentification because defendants matched the description and stolen property was located in car in which defendants were stopped).

AFFIRMED.

ORFINGER and MONACO, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. K.P., Mother of W.G., A Child, Appellee.
    No. 5D02-1854.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2003.
    Charles D. Peters, Department of Children and Families, Orlando, for Appellant.
    Mark H. Hutchison of Law Offices of Mark H. Hutchison, Sanford, for Appellee.
   THOMPSON, J.

We affirm the order dismissing the petition to terminate KP.’s parental rights.

An order dismissing a petition for termination of parental rights is a mixed question of law and fact which will be sustained on review if the court applied the correct law, and its ruling is supported by competent substantial evidence in the record. See In re M.F., 770 So.2d 1189 (Fla.2000) (discussing dependency orders). Section 39.806(l)(e), Florida Statutes, provides that a petition for termination of parental rights may be filed “unless the failure to substantially comply with the ease plan was due either to the lack of financial resources of the parents or to the failure of the department to make reasonable efforts to reunify the parent and child.... ” Here, there was evidence supporting the trial court’s conclusion that the Department of Children and Family Services did not make a reasonable effort to reunify the parent and child in that it failed to see to it that a psychological evaluation was available to the mother. Compare In Interest of G.R.S., 647 So.2d 1025 (Fla. 4th DCA 1994).

AFFIRMED.

SHARP, W. and ORFINGER, JJ„ concur.


text:
    David R. BARTELS, Appellant, v. Janet L. BARTELS, Appellee.
    No. 5D02-2010.
    District Court of Appeal of Florida, Fifth District.
    Nov. 7, 2003.
    Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    Janet L. Bartels, Casselberry, Pro Se.
   PER CURIAM.

Although we affirm this case in all respects, we do so without prejudice to the appellant to seek a modification in alimony on the sole issue of whether income should be imputed to the appellee, given the recent change in child custody agreed to by the parties and implemented by the trial court.

AFFIRMED.

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