author: KLEIN, J.

text:
    VIRGINIA FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant, v. Thomas Albert DUNFORD and Rachel Peery, Appellees.
    No. 4D03-2317.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2004.
    Rehearing Denied Aug. 4, 2004.
    Susan S. Lerner of Josephs, Jack & Miranda, P.A., Miami, for appellant.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., and Michael S. Smith of Slawson Cunningham Whalen & Smith, P.L., Palm Beach Gardens, for ap-pellees.
   KLEIN, J.

The insurer, which does not issue policies in Florida, insured a Virginia vehicle which was involved in an accident in Florida. The estate of a person killed in the accident obtained a judgment for more than the policy limits against the insureds, and the insureds filed this bad faith action against the insurer. The insurer asserts on this appeal that it is not subject to long-arm jurisdiction in Florida, but we disagree and affirm.

The insurer issued a policy to a Virginia resident insuring a car which was involved in an accident in Florida, resulting in a death. The estate of the decedent offered to settle for the policy limits, without success, and a lawsuit resulted in a judgment over the policy limits. The named insured and the driver, against whom judgments were entered, then filed this suit against the insurer alleging a bad faith failure to settle. The insurer moved to dismiss for lack of personal jurisdiction under the Florida long-arm statute and the due process clause of the Federal Constitution. The trial court denied the motion, and the insurer appeals.

The insurer first argues that jurisdiction under the Florida long-arm statute is controlled by section 48.193(l)(d), Florida Statutes (2002) which provides jurisdiction for acts arising out of “contracting to insure any person, property, or risk located within this state at the time of contracting.” We agree with the insurer that it did not contract to insure a risk located within this state at the time of contracting under section 48.193(1)(d). Meyer v. Auto Club Ins. Ass’n, 492 So.2d 1314 (Fla.1986).

The insureds, however, have at all times contended that there is jurisdiction under section 48.193(l)(g), which provides: (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:

* * *

(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

An action against the insurer for bad faith in failing to settle, resulting in an excess judgment against the insured, is “an action ex contractu.” Nationwide Mut Ins. Co. v. McNulty, 229 So.2d 585, 586 (Fla.1969). As our supreme court explained in McNulty:

The contractual duty of the insured [sic] to defend justifies an implication that the insurer will exercise ordinary care and good faith in so proceeding. Accordingly, when an insurer under such a policy contract undertakes to defend an action against the insured and becomes involved in negotiations for settlement, the law imposes the duty that it act therein in good faith. It follows that the cause of action for an ‘excess,’ where one arises from bad faith, is bottomed on the contract, and that the nature of an action thereon is ex contractu rather than in tort.

N. Am. Van Lines, Inc. v. Lexington Ins. Co., 678 So.2d 1325, 1330 (Fla. 4th DCA 1996) (bad faith failure to settle is breach of contractual obligation).

The insurer’s failure to exercise good faith is accordingly a breach of contract. And, because the policy covered accidents in all states, it was a contractual obligation to be performed in Florida in this case. The insurer is accordingly subject to personal jurisdiction under section 48.193(l)(g).

We next address whether allowing this suit to proceed in Florida offends federal due process under International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). The insurer relies primarily on Meyer, 492 So.2d at 1315 (Fla.1986), in which a Michigan resident had obtained auto insurance from a Michigan insurer which did not issue policies in Florida. While visiting Florida the insured was in an accident. The insured then moved to Florida and sued the insurer in Florida for PIP benefits. The court concluded that the fact that the insured had been in an accident in Florida, and eventually moved to Florida, were “mere unilateral acts” by the insured, which “in and of themselves” were insufficient to satisfy the minimum contacts required by due process.

Meyer is distinguishable from the present case in that in Meyer the insured sued under the policy for PIP benefits, a claim which did not arise out of any activity of the insurer in Florida. In the present case, the insurer, as it was required to do under the policy, undertook the defense of a claim brought against the insured in Florida, and breached its duty of good faith. The insurer has not cited a single case from Florida or any other jurisdiction holding that it would violate due process to allow a suit to proceed in the state where the insurer was guilty of a bad faith refusal to settle a claim against the insured.

In Dollar Systems, Inc. v. Elvia, 863 So.2d 378 (Fla. 4th DCA 2003), the issue was whether a Swiss insurer, which sold travel insurance to German citizens traveling in the United States, was subject to personal jurisdiction in Florida, in a suit involving priority of coverage for a Florida accident. We held that the suit did not offend due process based on Eli Lilly & Co. v. Home Insurance Co., 794 F.2d 710 (D.C.Cir.1986). In Eli Lilly excess insurers contended they were not subject to personal jurisdiction in the District of Columbia, in a products liability case against their insured. The product was a drug manufactured by Eli Lilly and distributed nationally. The court explained:

The touchstone of our due process inquiry is whether it would have been “foreseeable” that the excess insurers would be “haled into court” in the District of Columbia. Given the specific relationship between appellants and ap-pellee in this case, we have little difficulty finding that such a result was in fact quite foreseeable.
Appellants knew that their insured, Lilly, distributed its products nationwide. They therefore were aware that Lilly was likely to be sued in any jurisdiction in the nation, including the District of Columbia. Moreover, as Lilly’s insurers, appellants were aware that if Lilly was sued it was likely to attempt to implead appellants if a dispute arose over their duty to indemnify or defend. In such an eventuality it would be completely foreseeable that the insured would successfully hale the insurance company into court.

794 F.2d at 720 (citations omitted).

In this case the insurer agreed to exercise good faith in defending claims against the insured throughout the United States. It should have foreseen that a breach of that duty in Florida, resulting in a Florida judgment, would subject it to being haled into a Florida court. The maintenance of this suit accordingly does not violate due process under International Shoe. Affirmed.

GUNTHER and TAYLOR, JJ., concur.

      . The insurer cites Davis v. American Family Mutual, 861 F.2d 1159 (9th Cir.1988); however, in that case the plaintiff injured in the accident, who had an assignment of the bad faith claim against the insurer, was attempting to sue the insurer in Montana, even though the policy had been issued in North Dakota, the accident had occurred in North Dakota, and the excess judgment had been entered in North Dakota. That case is distinguishable because the insurer was not being haled into court in the state where the bad faith resulting in the excess judgment had occurred. Marsh v. Farm Bureau Mutual Insurance Co., 179 Wis.2d 42, 505 N.W.2d 162 (1993) and Batton v. Tennessee Farmers Mutual Insurance Co., 153 Ariz. 268, 736 P.2d 2 (1987) are both distinguishable because neither involved excess judgments resulting from bad faith occurring in the state in which the suit against the insurer was filed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ana L. CABEZA, Appellant, v. HOFFMAN SOOTIN & ERRO DDS PA and Florida Unemployment Appeals Commission, Appellee.
    No. 3D03-2726.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Rehearing Denied July 14, 2004.
    Ana L. Cabeza, in proper person.
    John D. Maher, Tallahassee, for appel-lee.
    Before GREEN, SHEVIN, and WELLS, JJ.
   PER CURIAM.

Because the record evidence supports the finding that the appellant/claimant was disqualified from receiving benefits because she voluntarily left her employment without good cause attributable to her employer, we affirm. See § 443.101(l)(a), Fla. Stat. (2001); Sollecito v. Hollywood Lincoln Mercury, Inc., 450 So.2d 928 (Fla. 4th DCA 1984); Perez v. Dep’t of Labor & Employment Sec., 377 So.2d 806 (Fla. 3d DCA 1979); Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So.2d 827 (Fla. 4th DCA 1973).

Affirmed.


author: TORPY, J.

text:
    Alejandro YANES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2479.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Rehearing Denied July 23, 2004.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

After his Motion to Suppress was denied, Appellant pled guilty to trafficking in the cocaine found in his vehicle. He contends that a deputy sheriff improperly stopped his vehicle, improperly detained him after the stop, and that the ensuing search of his vehicle was tainted by the improper stop and detention. We disagree and affirm.

The deputy sheriff, while patrolling the Florida Turnpike, observed Appellant cross the “fog line” on three occasions within a mile. Each time, the vehicle crossed the line by approximately one-half of its width. Believing that the operator might be impaired, sick or tired, the deputy stopped Appellant’s vehicle. He observed that Appellant had the odor of alcohol on his breath and appeared nervous. Thereafter, the deputy summoned a drug-sniffing dog. The dog detected that drugs were in the vehicle. A subsequent search of the vehicle revealed cocaine.

Appellant challenges both the initial stop and his subsequent detention. He alleges that the initial stop was improper because crossing the fog line three times, without endangering anyone, neither violates the single lane statute nor otherwise provides reasonable suspicion to justify a police stop. Appellant further contends that, after the initial stop, the deputy delayed the detention for an unreasonable length of time to give the drug-sniffing dog time to arrive and sniff Appellant’s car.

In support of his first contention, Appellant relies on Jordan v. State, 831 So.2d 1241 (Fla. 5th DCA 2002), and Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998). However, Jordan and Crooks are distinguished. The relevant statute relating to the operation of a vehicle within a lane states in pertinent part as follows:

A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

§ 316.089(1), Fla. Stat. (2002) (emphasis supplied). Unlike Jordan and Crooks, here there was evidence that Appellant deviated from his lane by more than what was practicable. To do so is a violation of the statute, irrespective of whether anyone is endangered. Furthermore, unlike Jordan and Crooks, here evidence was adduced that Appellant’s abnormal driving caused the deputy to suspect that Appellant was impaired or otherwise unfit to drive. We think his suspicion was well-founded, thereby justifying the stop, even in the absence of a traffic violation. See Esteen v. State, 503 So.2d 356 (Fla. 5th DCA 1987) (weaving within lane and driving slower than posted speed justified stop based on reasonable suspicion of impairment, unfitness or vehicle defects, even absent a traffic violation); State v. Carrillo, 506 So.2d 495 (Fla. 5th DCA 1987) (weaving within lane five times within one-quarter mile sufficient to establish reasonable suspicion of impairment); Roberts v. State, 732 So.2d 1127 (Fla. 4th DCA 1999) (weaving several times sufficient to justify stop); State v. Davidson, 744 So.2d 1180 (Fla. 2d DCA 1999) (evidence of abnormal driving, albeit not amounting to a traffic violation, justified stop based on reasonable suspicion of impairment); State v. DeShong, 603 So.2d 1349 (Fla. 2d DCA 1992) (using lane as “marker” to position vehicle and slowing to 30 miles per hour sufficient to justify stop based on suspicion of impairment or defects in vehicle).

As to Appellant’s' second point, we conclude that Appellant has failed to demonstrate that the trial judge abused his discretion in determining that the stop was not extended for an unreasonable length of time. See Maxwell v. State, 785 So.2d 1277 (Fla. 5th DCA 2001).

AFFIRMED.

THOMPSON and ORFINGER, JJ„ concur.

      . The white line on the right-hand side of the road.


author: CANADY, Judge.

text:
    Lee WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4313.
    District Court of Appeal of Florida, Second District.
    May 28, 2004.
   CANADY, Judge.

Lee Wilson appeals the summary denial of his motion to correct an error on the face of the scoresheet, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand.

Wilson pleaded guilty to one count of robbery. He was subsequently sentenced as a habitual felony offender (HFO) to ninety-five months in prison. Wilson’s sentence was suspended and ordered to be served on two years of community control as a HFO. On December 17, 1997, Wilson pleaded guilty to violating his community control and he was sentenced as a HFO to ninety-five months in prison. On February 6, 2003, the trial court set aside the judgment and sentence issued on December 17, 1997, and resentenced Wilson to ninety-five months in prison, without the HFO designation.

Wilson claims his scoresheet was improperly calculated because it incorrectly scored his primary offense as a level nine offense when it should have been scored as a level eight offense. Wilson pleaded guilty to a violation of section 812.13(2)(b), Florida Statutes (1996). On the resentenc-ing scoresheet, Wilson’s primary offense was erroneously listed as a violation of section 812.13(2)(a) and erroneously scored as a level nine offense. Wilson’s primary offense — a violation of section 812.13(2)(b) — should have been scored as a level eight offense. See § 921.0012, Fla. Stat. (1996). There is nothing in the record to conclusively demonstrate that Wilson would have received a sentence of ninety-five months under the corrected sentencing scoresheet. Therefore, Wilson is entitled to be resentenced using an accurate scoresheet. See Marty v. State, 865 So.2d 656 (Fla. 2d DCA 2004); Anderson v. State, 865 So.2d 640 (Fla. 2d DCA 2004); Walker v. State, 807 So.2d 177 (Fla. 2d DCA 2002).

Accordingly, we reverse and remand for the trial court to resentence Wilson under a corrected scoresheet. As we did in Anderson, we certify direct conflict with Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001).

Reversed and remanded.

FULMER and KELLY, JJ., Concur.


text:
    Malvin Eugene ANTHONY, Appellant, v. The STATE of Florida.
    No. 3D03-2753.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.
    Rehearing Denied July 14, 2004.

      Malvin Eugene Anthony, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

This is an appeal from the following order, which we find correctly states and resolves the issues presented:

ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION FOR POST-CONVICTION RELIEF:
* * *
Case No. 00-25930A
On January 7, 2002, entered a plea in Case No. 00-25930A and was sentenced to forty-one months in state prison with a three year minimum mandatory sentence due to the firearm enhancement. At the time of sentencing, the judge specifically stated that the sentence would run concurrent with the sentence he was serving in the federal case. (See transcript of plea colloquy, Case No. 00-25930A, p. 8-11). However, the judge specifically warned the Defendant at the time of his sentencing:
THE COURT: Mr. Anthony will continue to stay in state custody until he is released from here to go to federal prison. So he may not begin getting his credit for the federal sentence. I don’t have anything to do with that, but he is getting full credit for the 41 months here, and once — if he is ever released from here to go to federal prison, if he still has time to serve on his 41 months, then he will do it. Got it?
THE DEFENDANT: Yes sir.
(See transcript of plea colloquy, p. 11)
Case No. 00-39718
On March 1, 2002, the Defendant entered a plea in Case No. 00-39718 and was sentenced to forty-six months in state prison. The judge specifically advised the Defendant that the sentence would run “concurrent and coterminous with the federal sentence” of forty-six months which had already been imposed in 01-137-CR-Graham (see transcript of plea colloquy, Case No. 00-39718, p. 4) The judge made it clear that the intent of the sentence was that the Defendant would not serve more time on the federal sentence than on the state sentence (see transcript of plea colloquy, Case No. 00-39718, p. 6,19).
Case No. 00-39710E
On July 10, 2002, the Defendant was sentenced to four years in state prison followed by one year of probation. The judge ordered the sentence to run concurrent with his forty-six month sentence in 00-39718 and “with whatever federal sentence you were sentenced to” (see transcript of plea colloquy, Case No. 00-39710E, p. 6). However, the judge made it very clear that the sentence in this case was not to run coterminous with his federal sentence:
THE COURT: Okay. Do you have any other questions that you want to ask me that have not been answered as of this time?
THE DEFENDANT: Yes, sir.
THE COURT: What?
THE DEFENDANT: I want coterminous, concurrent.
THE COURT: Your sentence runs concurrent and coterminous — concurrent but not coterminous with the other two cases that I told you, the other state case and the federal case. You understand that?
THE DEFENDANT: Uh-huh. Yes sir.
(See transcript of plea colloquy, p. 10-11)
$ ‡ ‡
THE COURT: Any other questions you want to ask me?
THE DEFENDANT: Yes sir.
THE COURT: What?
THE DEFENDANT: I want to go back to the federal. I want them to notify the marshal.
THE COURT: I don’t have any responsibility for doing anything other than sentencing you today. I have no jurisdiction to tell the federal government when to pick you up, how to pick you up, when to take you.
You need to understand the following thing: Your contacts with the federal government are between you and the federal government. They are not between me and the federal government. I cannot order the federal government to do anything.
And the fact that I am telling you this case will run concurrent and coterminous with the federal case or concurrent with the federal case but not coterminous with the federal does not necessarily mean that the federal government has to agree to that.
If the federal government has not previously agreed to run your federal case concurrent with the state court case, you have a problem that I have no jurisdiction over.
In other words, you could finish serving your two state sentences and then the federal government could pick you up and take you into federal custody.
Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And with that in mind, you still want to enter this plea?
THE DEFENDANT: Yes sir.
(See transcript of plea colloquy, pps. 12-14)

In Hutchinson v. State, 845 So.2d 1019 (Fla. 3d DCA 2003), the defendant accepted a plea for a state prison sentence to run concurrently with his federal sentence. In that case, it was clearly contemplated that upon the pronouncement of his state court sentence, he was to be returned to federal prison to resume serving his federal sentence. Because this did not happen, the Third District found that he was entitled to specific performance of the Florida plea agreement and remanded the case with directions to resentence the defendant to credit for time served, then to be returned to federal custody to complete his sentence. This same analysis would apply to the Defendant’s sentence in Case No. 00-39718, since the judge stated that it was his intention that the Defendant serve no more time on his state sentence than his federal sentence. However, the analysis would not apply in Case Nos. 00-25930A and 00-39710E, since the judge specifically warned the Defendant that he could not control what the federal authorities did, and that the Defendant could very well serve his entire state sentence before being transferred to federal custody to serve that sentence. The Defendant accepted the pleas in both cases knowing the possible consequences with regards to the federal sentence.

For reasons stated herein, it is hereby

ORDERED AND ADJUDGED that the Defendant’s Motion for Postconviction Relief as to Case No. 00-39718 is GRANTED, and the Defendant’s sentence of forty-six months in prison entered in that case is vacated, and he is resentenced as a Habitual Offender to credit for the time he has served in custody on this case since December 15, 2000; it is further

ORDERED that the Defendant’s Motion for PosNConviction Relief as to Case Nos. 00-25930A and 00-39710E is DENIED.

Affirmed.


author: PER CURIAM. SHEPHERD, J.,

text:
    Justo NUNEZ, Appellant, v. G.F. CAR CENTER, INC., d/b/a Exxon Gas Station, Appellee.
    No. 3D03-1001.
    District Court of Appeal of Florida, Third District.
    June 2, 2004.
    Rehearing Denied July 14, 2004.
    Dunn, Johnson, Dunn & Rose, and Neil Rose, Miami, and J.H. Zidell, for appellant.
    Perez, Goran & Rodriguez, and Luis N. Perez, Miami, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Justo Nunez appeals from a summary judgment granted in favor of appellee G.F. Car Center, Inc., on his claim for a slip and fall on the premises of G.F. Car Center. Because there are genuine issues of material fact, we reverse.

Nunez had a slip and fall that resulted in a fracture of his leg and knee. He claims that either grease, water, or some form of liquid on the five-inch raised sidewalk outside the store had remained there for an unreasonable amount of time so as to create a dangerous condition. Although Nunez could not identify what made him fall, his wife observed a grease spot on the right seat of his blue jeans and on the bottom of his right sneaker. Because Nunez had been taken directly to the hospital after his fall, and the grease stains where discovered while he was still hospitalized, it is a reasonable inference that Nunez had fallen as a result of grease accumulating in that area. This was sufficient to create a general issue of material fact sufficient to preclude the entry of summary judgment. See Giussani v. Sculptors of Space, LLC., 843 So.2d 360 (Fla. 3d DCA 2003).

Reversed and remanded.

FLETCHER and RAMIREZ, JJ., concur.

SHEPHERD, J.,

dissenting.

I respectfully disagree with the majority opinion and would affirm the summary judgment below.

Nunez alleges that the appellee-defen-dant gas station was negligent in allowing a dangerous condition to exist for an unreasonable length of time on a raised sidewalk from which he fell. However, there is no direct evidence that there was a substance of any type at the spot where Nunez said he fell. Indeed, the direct evidence is to the contrary. Nunez testified that prior to the accident, he traversed the path where he fell on his way to the bathroom and did not see anything on the raised sidewalk. Moments later, after his fall on his return trip from the bathroom, he still could not identify what may have caused him to slip and fall. The gas station attendant who came out to help Nunez likewise stated that she saw no foreign substance in the area where Nunez fell, and that a routine inspection of the premises earlier that morning also revealed no foreign matter or debris.

Having no direct evidence upon which to proceed, the plaintiff seeks to rely upon circumstantial evidence to prove his case, namely the testimony of his wife, who, though not having witnessed the slip and fall, claims that she observed a greasy substance on his pant seat bottom and sneakers when she received these items from the hospital several days later. Surprisingly, she has since thrown away these items. Based on her testimony, the majority concludes that there exists a “reasonable inference that Nunez [fell] as a result of grease accumulating in that area.” I disagree.

Negligence may not be inferred from the mere happening of an accident. Winn Dixie v. White, 675 So.2d 702 (Fla. 4th DCA 1996). Circumstantial evidence “will not support a jury inference if the evidence is purely speculative and, therefore, inadequate to produce an inference that outweighs all contrary inferences.” Food Fair Stores, Inc. v. Trusell, 131 So.2d 730, 733 (Fla. 1961). In order to find the defendant liable in this case, the jury would necessarily have to infer (1) that the purported greasy substance existed in the area where plaintiff lost his footing, (2) that the plaintiff slipped and fell as a result of directly stepping on the assumed substance, and (3) that the defendant either caused the assumed substance to be on the sidewalk or had actual or constructive notice of such assumed dangerous condition. Such stacking of inferences is impermissible from the evidence adduced.

The courts of this State have long held that in order to sustain a prima facie showing of negligence, a party can rely on circumstantial evidence, however the initial inference must be established to the exclusion of any other reasonable theory or inference. Hurst v. Astudillo, 631 So.2d 380 (Fla. 3d DCA 1994). “The established rule of evidence is that we cannot construct a conclusion upon an inference which has been superimposed upon an initial inference supported by circumstantial evidence unless the initial inference can be elevated to the dignity of an established fact because of the presence of no reasonable inference to the contrary.” Commercial Credit Corporation v. Vam, 108 So.2d 638, 640 (Fla. 1st DCA 1959). This statement essentially means that the initial inference be established to the exclusion of any other reasonable theory or inference. Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977, 978 (Fla. 4th DCA 1987) (“cannot construct a further inference upon the initial inference in order to establish a further fact unless it can be found that the original, basic inference was established to the exclusion of all other reasonable inferences”). Otherwise, summary judgment dismissal for the defendant is proper.

In this case, the parties agree that there is no direct evidence of a foreign substance being on the ground at or near the spot where Nunez fell. However, the majority believes that we must infer that either “grease, water, or some form of liquid” existed on the raised sidewalk “for an unreasonable amount of time” based on the wife’s testimony that some kind of greasy substance was on the missing clothing that she received from the hospital a few days after the accident. This inference cannot “be elevated to the dignity of an established fact” in this case. Commercial Credit, 108 So.2d at 640. For example, it cannot be excluded that Nunez tracked the greasy substance from some other location prior to the fall, or that the hospital or ambulance service rubbed a greasy substance on the clothing in the removal process or in administering aid. These alternative explanations, i.e. contrary reasonable inferences, preclude the elevation -of the initial inference concerning grease at the exact spot where Nunez stepped “to the dignity of an established fact.” Commercial Credit, 108 So.2d at 640. Florida case law, in very similar factual circumstances, has not allowed such a loose inference to be drawn and raised to the level of an established fact. See Hamideh v. K-Mart Corp., 648 So.2d 824, 825 (Fla. 3d DCA 1995) (even though plaintiff described a “clear liquid” on the floor and on her shoe, the court affirmed summary judgment since an employee stocking shampoo “is insufficient, without more, to create an inference that ... the shampoo-like substance [was] on the floor”); Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977, 978 (Fla. 4th DCA 1987) (though plaintiff did not know what caused her to slip near the deli counter, and noticed grease on her skirt at the hospital, the court ruled against the plaintiff, finding that she “failed to show how the [dangerous] condition, if any, was created”).

Secondly, even assuming the existence of a foreign substance in the vicinity of where Nunez fell, it would be purely speculative for a jury to then conclude that the accident occurred as a result of Nunez stepping on a foreign substance, as opposed to, for example, a misstep. See Winn Dixie Stores, Inc. v. White, 675 So.2d 702, 703 (Fla. 4th DCA 1996) (customer could not identify what caused her to slip and fall, and an employee with a buffer nearby -was insufficient to establish negligence since the inference “could only be drawn through speculation and conjee-ture”); Hurst v. Astudillo, 631 So.2d 380 (Fla. 3d DCA 1994) (court could not infer negligence by inferring that a defective or inadequate ladder was provided, and then further inferring that such negligence was the proximate cause of plaintiffs fall, when the first climb up the ladder proved successful, and plaintiff did not know if the ladder slipped, or what caused it to slip on the second ascent). The wife’s testimony of the alleged stains on the vanished apparel, even assuming their truthfulness in favor of the plaintiff, is insufficient to infer negligence to the exclusion of any other reasonable theory, such as tracking grease from some other location, application of grease by the hospital or ambulance staff, collecting grease on impact, or an unfortunate misstep and fall, irrespective of the assumed grease.

Because the first inference, as well as the second, are shaky, the last inference of adequate notice is essentially a moot point. Nevertheless, here also, Florida case law would demand a summary judgment for the defendant premises owner. See Publix Super Markets, Inc. v. Schmidt, 509 So.2d 977, 978 (Fla. 4th DCA 1987) (court ruled against plaintiff with grease on her skirt, finding that she “failed to show how the [dangerous] condition, if any, was created, who caused it, how long it existed, or that the store was responsible”); Hamideh v. K-Mart Corp., 648 So.2d 824, 825 (Fla. 3d DCA 1995) (even though plaintiff described a “clear liquid” on the floor and on her shoe, court affirmed summary judgment since an employee stocking shampoo “is insufficient, without more, to create an inference that the [Defendant] caused the shampoo-like substance to be on the floor or that store owner had either actual or constructive notice of dangerous condition”). Nunez, himself, testified that he saw nothing on the raised sidewalk on his walk to the facility’s restroom. Only moments later he crossed the same platform before his fall, and he still did not know what caused him to fall, and could not identify any substance in the vicinity. The gas station employee concurred that she saw nothing post-fall, and her earlier inspection revealed no dangerous condition. It would now be pure guesswork to believe that plaintiff fell as a direct result of stepping on an assumed greasy substance, and then to assume the defendant had adequate notice of this “possible” substance.

In sum, the plaintiffs effort to launch a premises liability case based upon his wife’s circumstantial testimonial evidence must fail as a matter of law. Any verdict bottomed thereon in this case would be “purely speculative.” Trusell, 131 So.2d at 733. I would affirm the summary judgment below.


author: LEWIS, J. ALLEN, J,

text:
    14TH & HEINBERG, L.L.C., Appellant, v. HENRICKSEN & CO., INC., et al., Appellees.
    No. 1D03-1729.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    Rehearing Denied July 21, 2004.

      William H. Stafford, Esq. of Clark, Part-ington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellant.
    John B. Trawick, Esq. of Shell, Fleming, Davis & Menge, Pensacola, for Henricksen & Co. Inc.
    J. Nixon Daniel, III, Esq. and William H. Mitchem, Esq. of Beggs & Lane, Pensacola, for Terhaar & Cronley General Contractors, Inc.
    David A. Sapp, Esq. of David A. Sapp, P.A., Pensacola, for Envision Design, P.L.L.C., for Appellees.
   LEWIS, J.

Appellant, 14th & Heinberg, L.L.C., seeks review of the trial court’s three final judgments in which the court found that appellees, Henricksen & Co., Inc. (“Hen-ricksen”), Terhaar and Cronley General Contractors, Inc. (“Terhaar”), and Envision Design, P.L.L.C. (“Envision”), three companies who made improvements to the premises owned by appellant and leased to Montgomery Ward, held valid construction liens on appellant’s property and directed appellant to satisfy the liens. We find no merit in appellant’s first argument that the trial court improperly expanded section 713.10, Florida Statutes, by requiring that a short form of a lease that is recorded in the clerk’s office contain a lessor’s disclaimer of any mechanics’ liens arising out of improvements made by a lessee on the leased premises. However, we agree with appellant’s contention that its interest cannot be subject to mechanics’ liens arising out of the improvements at issue because the lease with Montgomery Ward and the amendment to the lease did not require that the improvements be made, nor did the improvements constitute the pith of the lease. We, therefore, reverse and remand.

On November 20, 1970, appellant’s predecessor-in-interest, Nancy Realty Company (“Nancy Realty”), as lessor, entered into a lease agreement (the “Lease”) with Montgomery Ward, as lessee, for premises located in Pensacola. Per the Lease, Montgomery Ward was not to “permit any liens to stand against the premises for any labor or material furnished to [it] in connection with any work performed by [it] or at [its] direction.... ” The Lease also provided that Montgomery Ward “from time to time may make any alterations, additions, or improvements to the premises,” but that it was not to make “any structural alterations, additions or improvements to the premises without first securing [the lessor’s] written consent....” Nancy Realty subsequently filed a Memorandum of Lease with the Clerk of the Circuit Court for Escambia County. This document contained a description of the leased premises, the commencement and length of the Lease, and the parties’ options to extend the Lease. It made no mention of the Lease’s lien provision.

On August 14, 2000, appellant, as Nancy Realty’s successor-in-interest, and Montgomery Ward executed an Amendment to Lease (the “Amendment”), which provided:

WHEREAS, Tenant is desirous of modifying the Premises, including certain alterations, additions or improvements; and
WHEREAS, Landlord and Tenant are desirous of amending the Lease to the limited extent set forth hereinbelow; NOW, THEREFORE, for good and valuable consideration, it is agreed as follows:
1. Tenant shall be permitted to perform the work set forth on the redevelopment plans on Project # 99034.00 dated May 8, 2000 prepared by Mark Baughman, Architect and transmitted to Landlord on June 12, 2000 attached hereto as Exhibit A. These alterations, and any other alterations or improvements made by or for Tenant (“Alterations”), shall be performed in accordance with the following....

(emphasis added). The “following” addressed applicable building codes, necessary permits, an insurance extension, and the necessity of constructing the alterations in a good and workmanlike manner. The Amendment also provided that “[tenant shall not have any right to subject Landlord’s interest in the Premises to any mechanic’s lien or any other lien whatsoever.”

Subsequently, Montgomery Ward contracted with appellees for certain construction and architectural services that were to be rendered on the leased premises. Ap-pellees later filed suit against appellant as the lessor, alleging, inter alia, that they had furnished certain services on the leased premises and seeking to establish and foreclose a Claim of Lien pursuant to chapter 713, Florida Statutes.

Thereafter, appellant filed a motion for summary judgment, arguing, among other grounds, that its interest could not be subject to liens arising out of the improvements at issue because neither the Lease nor the Amendment required Montgomery Ward to construct the improvements at issue, because the improvements did not constitute the pith of the parties’ Lease, and because Nancy Realty recorded a Memorandum of Lease in the clerk’s office. Terhaar then filed a motion for summary judgment in which it asserted that it was entitled to a lien on the leased premises because the Amendment contemplated specific improvements and because the short form of the Lease that was recorded in the clerk’s office did not contain the necessary disclaimer. Following a hearing on the two motions, the trial court denied appellant’s motion and granted Terhaar’s motion, finding that Terhaar held a valid construction lien. Envision and Henrick-sen, making the same arguments as Terh-aar made in its summary judgment motion, subsequently filed motions for summary judgment, which the trial court granted. The trial court also entered three final judgments, finding that Terhaar was entitled to $219,803.29, that Envision was entitled to $25,709.99, and that Henricksen was entitled to $110,966.43, with each amount including both the Claim of Lien and interest. On April 7, 2003, the trial court entered an order consolidating the three cases nunc pro tunc to November 16, 2001. Appellant subsequently moved to stay the proceedings pending an appeal, a request which the trial court granted. This appeal followed.

Appellant first contends that the trial court improperly expanded section 713.10(1), Florida Statutes (2001), by imposing a requirement that a short form of a lease that is recorded in the clerk’s office contain a disclaimer that the lessor’s interest will not be subject to mechanics’ liens. It is well-established that the construction of a statute or a contract is a question of law reviewable de novo. Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000). In construing a statute, the plain meaning of the statute is this Court’s first consideration. See Fla. Dep’t of Educ. v. Cooper, 858 So.2d 394, 395 (Fla. 1st DCA 2003); Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 328-39 (Fla. 1st DCA 2002). It is well-settled that legislative intent is the polestar that guides this Court’s statutory construction analysis. See State v. J.M., 824 So.2d 105, 110 (Fla.2002) (citation omitted). Legislative intent is determined primarily from the language of a statute. State v. Rife, 789 So.2d 288, 292 (Fla.2001) (citations omitted). We are also mindful of the doctrine of noscitur a sociis, under which a court examines the other words within a string of concepts to derive the Legislature’s overall intent. Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 205 (Fla.2003); see also WFTV, Inc. v. Wilken, 675 So.2d 674, 678-79 (Fla. 4th DCA 1996) (noting that a statutory term should not be read in isolation but rather in context).

Section 713.10, which is entitled, “Extent of liens,” provides:

Except as provided in s. 713.12, a lien under this part shall extend to, and only to, the right, title, and interest of the person who contracts for the improvement as such right, title, and interest exists at the commencement of the improvement or is thereafter acquired in the real property. When an improvement is made by a lessee in accordance with an agreement between,such lessee and her or his lessor, the lien shall extend also to the interest of such lessor. When the lease expressly provides that the interest of the lessor shall not be subject to liens for. improvements made by the lessee, the lessee shall notify the contractor making such improvements of such provision or provisions in the lease, and the knowing or willful failure of the lessee to provide such notice to the contractor shall render the contract between- the lessee and the contractor voidable at the option of the contractor. The interest of the lessor shall not he subject to liens for improvements made by the lessee when:
(1) The lease or a short form thereof is recorded in the clerk’s office and the terms of the lease expressly prohibit such liability; or
(2) All of the leases entered into by a lessor for the rental of premises on a parcel of land prohibit such liability and a notice which sets forth the following is recorded by the lessor in the public records of the county in which the parcel of land is located:
(a) The name of the lessor.
(b) The legal description of the parcel of land to which the notice applies.
(c) The specific language contained in the various leases prohibiting such liability.
(d) A statement that all leases entered into for premises on the parcel of land contain the language identified in paragraph (c).
(3)The lessee is a mobile home owner who is leasing a mobile home lot in a mobile home park from the lessor.

(emphasis added). Notably, prior to 1985, section 713.10 provided that a lessor’s interest would not be subject to liens for improvements on its property “when the lease is recorded in the clerk’s office and the terms of the lease expressly prohibit such liability.” See § 713.10, Florida Statutes (1983). In amending this statute, the Legislature obviously sought to provide a simplified and less costly manner in which lessors may provide notice to prospective contractors of their disclaimer of liability for improvements made by a lessee.

We interpret section 713.10(1) as serving to protect not only lessors but also those who contract with lessees to perform services on the leased premises. By filing either a lease containing a disclaimer or a short form of a lease containing a disclaimer, a lessor essentially places any interested-party on notice that its interest will not be subject to any mechanics’ liens arising out of the lessee’s failure to satisfy its financial obligations for services rendered on the leased premises. If, as appellant argues, a lessor could avoid liability simply by disclaiming liability in the lease without including such a disclaimer in the recorded short form, the purpose behind section 713.10(1) would be frustrated. Furthermore, section 713.10(2), which mandates that a notice regarding multiple leases on a parcel of land include the specific language contained in the various leases prohibiting a lessor’s liability, supports our interpretation of section 713.10(1). In other words, if a lessor desires to protect its interest from mechanics’ liens arising out of improvements made by a lessee, the document that is recorded in the clerk’s office, be it the actual lease, a short form of the lease, or the notice as prescribed in section 713.10(2), must contain a provision expressly prohibiting such liability. As such, we find no merit in appellant’s first argument.

In its second issue on appeal, appellant contends that its interest cannot be subject to the liens at issue because neither the Lease nor the Amendment required Montgomery Ward’s desired improvements and because such improvements did not constitute the pith or essence of the parties’ Lease. With respect to this issue, the-pertinent provision found in section 713.10 sets forth that “[w]hen an improvement is made by a lessee in accordance with an agreement between such lessee and her or his lessor, the lien shall extend also to the interest of such lessor.”

It has long been established in Florida that in order for a lessor’s interest to be subject to mechanics’ liens arising from improvements made on its property pursuant to section 713.10 or its predecessor, section 84.03(2), Florida Statutes, the lease agreement must require the lessee to make certain improvements or the improvements must constitute the pith of the lease. See Anderson v. Sokolik, 88 So.2d 511, 514 (Fla.1956) (holding that the lessors’ interest in the leased property was subject to liens because it was perfectly obvious that the parties knew that the improvements at issue were the pith of the lease and that, except for them, the lease would not have been executed and because the improvements were essential to the purpose of the lease); Brenner v. Smullian, 84 So.2d 44, 45-46 (Fla.1955) (noting that the court had previously construed section 84.03(2) to make the lessor’s interest in the leased property liable for any construction work done by a lessee “only if the lease agreement required the lessee to make the alterations or to effect the improvements involved”); Miracle Ctr. Dev. Corp. v. M.A.D. Constr., Inc., 662 So.2d 1288, 1289 (Fla. 3d DCA 1995) (holding that a lessor’s interest can only be subject to liens arising from improvements performed on the leased property if the lease required the improvements or if, under judicial interpretation, the improvements were the pith of the lease); Van D. Costas, Inc. v. Rosenberg, 432 So.2d 656, 658 (Fla. 2d DCA 1983) (holding that the appellant contractor failed to prove' the existence of a lease provision requiring the lessee to make the improvements at issue which could have the effect of subjecting the lessor’s property to a lien); Budget Elec. Co. v. Strauss, 417 So.2d 1143, 1145 (Fla. 5th DCA 1982) (holding that the mere fact that the parties to a lease- may contemplate that the lessee will make improvements to the property is insufficient to subject the lessor’s interests to mechanics’ liens and that the lease must instead expressly or impliedly require the requirements to be made); Davidson Lumber Co. v. Sullivan, 403 So.2d 560,-561 (Fla. 3d DCA 1981) (noting that Florida law has consistently required that in order for a contractor to be entitled to a lien on improved realty as against the owner -when work is done by the lessee, the lease terms must require the work to be done or its terms must make it obvious that the improvements were the pith of the lease); Jones v. Wright, 391 So.2d 313, 314 (Fla. 2d DCA 1980) (holding that the lease provision granting the lessee the option of constructing improvements did not make the construction the pith of the lease); Edward L. Nezelek, Inc. v. Food Fair Props. Agency, Inc., 309 So.2d 219, 220 (Fla. 3d DCA 1975) (holding that the lease at issue, which set forth that the tenant “may” at its own expense make alterations and improvements, did not require the lessee to make the improvements and that the alterations and improvements did not constitute the pith of the lease); Tom Joyce Realty Corp. v. Popkin, 111 So.2d 707, 708 (Fla. 3d DCA 1959) (noting that the supreme court’s decisions have uniformly held that for a contractor to be entitled to a lien on the improved realty, it must be made to appear that the original lease by its terms required the work to be done or that the lease by its terms made it obvious that the improvements were the pith of the lease); J.R. Dills v. Tomoka Land Co., 108 So.2d 896, 897 (Fla. 1st DCA 1959) (noting that there was no doubt that a lessor’s property may be charged with a mechanic’s lien when the lease requires the lessee to make a designated improvement or when both parties knew that the improvements constituted the pith of the lease and that, except for them, the lease would not have been executed).

Appellees essentially concede, and we conclude, that neither the Lease nor the Amendment required Montgomery Ward to make its desired improvements to the leased premises. Rather, Montgomery Ward was simply permitted to make such improvements. Nor do we find that the improvements constituted the pith or essence of the Lease as neither the Lease nor the Amendment indicates that the improvements were vital to the Lease’s perpetually. Appellees instead rely on our previous opinion in AN. Drew, Inc. v. Frenchy’s World Famous Cajun Cafe, Inc., 517 So.2d 766 (Fla. 1st DCA 1988), in support of their argument that appellant’s interest is subject to the liens because it and Montgomery Ward contemplated that the improvements would be made. However, we reject appellees’ broad construction of that opinion.

In A.N. Drew, Inc., we reviewed the trial court’s dismissal of three counts of the appellant’s amended complaint for failing to state a cause of action. 517 So.2d at 767. We affirmed the dismissal of two counts but reversed as to the count in which the appellant sought to foreclose a mechanic’s lien on property owned by the appellees. Id. The appellees had leased a parcel of land to the lessee, who subsequently contracted with the appellant for improvements. Id. We explained that the appellant had alleged that “[t]he renovations and improvements contemplated by the parties at the inception of the lease constituted the pith of the lease.” Id. In disagreeing with the trial court that the pleading was insufficient, we noted that, although it would have been preferable for the appellant to have pled the pertinent language of section 713.10, the language used was “all that [was] necessary to plead this cause of action.” Id. With regard to the appellant’s allegation that “[the lessee] agreed to lease the premises from [the appellees] if, and only if, major renovations to the existing premises could be made to transform it into a Cajun-style seafood restaurant,” we held that such an .allegation was sufficient as it alleged that the renovations were to be undertaken in accordance with the lease. Id. at 767-68. In determining the sufficiency of this latter allegation, we concluded that it does not matter for which party’s benefit the improvements are made as long as the improvements are made in accordance with the terms of the lease. Id. We also noted that where the terms of the lease indicate that either the lessee or the lessor contemplated the improvements being made, the lessor’s interest will be subject to mechanics’ liens unless the lessor records the necessary disclaimer. Id.

We find appellees’ reliance upon our previous decision in AN. Drew, Inc. misplaced given the different posture of the instant case. Unlike the issue of the sufficiency of the allegations contained in a complaint which was presented in AN. Drew, Inc., this appeal asks us to review the trial court’s ruling addressing the merits of the case. Furthermore, contrary to appellees’ contention, AN. Drew, Inc. is consistent with established precedent that a lessor’s interest may only be subject to mechanics’ liens arising out of improvements made to its property by a lessee if the lease agreement required the lessee to make certain improvements or if the improvements constituted the pith of the lease. AN. Drew, Inc. stands for the proposition that, if the terms of a lease indicate that either the lessee or the lessor contemplated certain improvements by agreeing to enter into the lease on the condition that the improvements would be made, i.e., the improvements constitute the pith of the lease, then a lessor’s interest will be subject to mechanics’ liens unless the lessor records the necessary disclaimer.

For the reasons stated above, we hold that appellant’s interest cannot be subject to mechanics’ liens arising out of the improvements at issue because neither the Lease nor the Amendment required Montgomery Ward to make the improvements and because the improvements did not constitute the pith of the Lease. Accordingly, the final judgments are REVERSED and the case is REMANDED with directions that the trial court enter judgment in favor of appellant on appel-lees’ statutory lien claims.

PADOVANO, J., CONCURS; ALLEN, J., CONCURS IN PART AND DISSENTS IN PART WITH WRITTEN OPINION.

ALLEN, J,

concurring in part and dissenting in part.

I agree that the final judgments based upon incorrect rulings on the appellees’ motions for summary judgment must be reversed. However, we are not required in this appeal to finally decide the merits of the appellees’ statutory hen claims, and I would not do so. I would reverse the order under review and remand for further proceedings on the appellees’ complaints.

      . We find it noteworthy that the Florida Bar’s Continuing Legal Education materials regarding complex transactions in real property cases include a template of a short form of a lease which contains the disclaimer "[l]essor's interest in the premises and the underlying fee is not subject to any lien for improvements to the premises undertaken by Lessee whether or not the improvements are made with the consent of the lessor.” See Arthur 1. Menor, Leases § 10.103 (Fla. Bar CLE 2000).


text:
    Carlus L. HAYNES, Appellant, v. Myra E. BELK, n/k/a, Myra E. Maleckar, Appellee.
    No. 1D04-0584.
    District Court of Appeal of Florida, First District.
    June 3, 2004.
    Rehearing Denied July 15, 2004.
    Carlus L. Haynes, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. See Fla. R.App. P. 9.110(b). Appellant’s pending motion to stay proceedings of lower tribunal pending appeal, filed March 16, 2004, is denied as moot.

DISMISSED.

BOOTH, POLSTON and HAWKES, JJ., concur.


author: SAWAYA, C.J.

text:
    Mary L. BARLEY, Individually and as Personal Representative, etc., Appellant, v. Steven L. BARCUS, Appellee.
    No. 5D03-1498.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    Rehearing Denied July 23, 2004.
    Robert D. Gatton and Kimberly Doud of Broad and Cassel, and Joseph A. Frein of Joseph A. Frein, P.A., Orlando, for Appellant.
    T.G. Lagrone of T.G. Lagrone, P.A., Lake Mary, Bradley J. Davis and Loan B. Kennedy of Swann & Hadley, P.A., Winter Park and Lawrence M. Burrell, Jr. of Lawrence M. Burrell, Jr., P.A., Jupiter, for Appellee.
   SAWAYA, C.J.

Mary Barley, individually and as personal representative of the estate of her deceased husband, George Barley, Jr., appeals the dismissal of her motion to appoint a corporate trustee for the residuary trust created under the decedent’s Last Will and Testament. She also appeals the order that appointed a substitute individual trustee for that trust.

When he died, the decedent left a substantial estate. In accordance with the decedent’s Last Will and Testament, Mary Barley was appointed the personal representative. The will established a marital trust, which received ninety percent of the estate assets, excluding the decedent’s personal property. After payment of costs and expenses associated with the administration of the estate, the remainder of the assets were to be placed in a residuary trust for the benefit of the decedent’s three adult children from another marriage. The will directed that the assets placed into the residuary trust be divided into three equal shares, with each equal share to be placed into a separate trust for each child. The will appointed Mary Barley and Bessemer Trust Company [Bessemer] as co-trustees for all trusts and provided for the appointment of successor trustees in the event either was unwilling or unable to serve.

Mary Barley and Bessemer declined to serve as co-trustees of the residuary trust because it was not funded. The three adult children petitioned the probate court to appoint Brenden Hurley, the husband of one of the children, as trustee of the residuary trust. A hearing was held and Hurley was appointed without objection from Mary Barley. Approximately four years later, when it became apparent that the estate would receive a significant amount of funds from the settlement of a lawsuit and that the residuary trust would now receive funds from the estate, the three adult children, as beneficiaries of the trust, filed a motion to substitute Steven Bareus as-trustee for the residuary trust. Mary Barley, individually and as personal representative, filed a motion for appointment of a corporate trustee alleging that the will “requires the appointment of a bank or trust company having trust powers to serve as trustee.”

The probate court dismissed Mary Barley’s motion because it found she did not have standing, either individually or as personal representative of the decedent’s estate, to file the motion. The probate court granted the children’s motion and entered an order appointing Bareus as the trustee of the residuary trust. We reverse because Mary Barley, in her individual and representative capacity, is an interested person in the residuary trust and because the will requires appointment of a corporate trustee.

An “interested person” is defined as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed an interested person.” § 731.201(21), Fla. Stat. (2002). Mary Barley, in her individual capacity, is an “interested person” in the residuary trust because the will provides that if the decedent’s children and their children predecease Mary Barley, she and Harvard University are to take equally the remaining assets in the residuary trust. Therefore, as a contingent remainder beneficiary of that trust, she is an interested person and thus has standing to challenge the appointment of the trustee of that trust. See Richardson v. Richardson, 524 So.2d 1126 (Fla. 5th DCA 1988). Moreover, Mary Barley, in her capacity as personal representative, is also an interested person in the residuary trust because that trust was created under the decedent’s will and the funding for that trust must come from a portion of the assets of the estate. Accordingly, the probate court erred when it dismissed her petition for lack of standing. We next determine whether the probate court erred when it appointed an individual rather than a corporate trustee as required under the provisions of the will.

We must analyze the terms of the will relating to the appointment of a successor trustee in order to determine whether the probate court erred in appointing Barcus as the trustee. The will provides in pertinent part:

The individual Co-Trustee at any time serving in that capacity may remove the corporate Co-Trustee then serving and appoint any bank or trust company having trust powers to serve as its successor.
In the event the corporate Co-Trustee or Trustee is not willing or able to serve as my Co-Trustee or Trustee, the individual Co-Trustee, if any, who is then serving in such capacity shall appoint any bank or trust company having trust powers to serve as successor corporate Co-Trustee. In the event there is no individual Co-Trustee then serving in that capacity, a majority of the adult income beneficiaries of any trusts created herein who are then receiving income from a trust shall appoint any bank or trust company having trust powers to serve as successor corporate Trustee.

We analyze this portion of the decedent’s will with certain basic legal principles in mind. If the provisions of the will are clear and unambiguous, we need not engage in judicial construction; rather, we apply the provisions according to their plain and ordinary meaning. See Kemk-amp v. Bolthouse, 714 So.2d 655, 656 (Fla. 5th DCA 1998) (citing First Nat’l Bank of Fla. v. Moffett, 479 So.2d 312 (Fla. 5th DCA 1985)). Equally important, we must strive to discern the intent of the testator and give effect to his or her wishes. Mof-fett. We do not believe that the quoted provisions are unclear or ambiguous. To the contrary, we believe that they clearly convey the intent of the decedent at the time he executed the will.

According to the pertinent provision quoted above, if Bessemer, as the corporate trustee, is unable or unwilling to serve, the individual trustee “who is then serving in such capacity” shall appoint a corporate trustee. This quoted language clearly means that an individual trustee would have the authority to appoint a successor trustee only if he or she was serving as individual trustee of the residuary trust at the time Bessemer declined to serve. The record shows that no one was serving as individual trustee for the residuary trust at the time Bessemer declined to serve as corporate trustee of that trust. Therefore, according to the will, “a majority of the adult income beneficiaries of any trusts created herein who are then receiving income from a trust shall appoint any bank or trust company having trust powers to serve as successor corporate trustee.” Because the residuary trust was not funded at the time Bessemer declined to serve, there were no income beneficiaries receiving income from that trust. The only other trust created by the will was the marital trust. Mary Barley was the only beneficiary receiving income from that trust, thereby making her the only person with the authority to appoint a corporate successor trustee of the residuary trust.

We conclude from the plain and unambiguous provisions of the decedent’s will that he intended to have a corporate trustee for all of the trusts created by his will. Because the residuary trust was not funded and Mary Barley and Bessemer declined to serve as trustees for that reason, Hurley was appointed as trustee and that appointment is not a contested issue in this appeal. However, once Hurley decided to step down and the probate court was asked to appoint a successor trustee, the court’s order appointing Barcus rather than a corporate trustee was error and contrary to the intent of the decedent.

Abiding by the fundamental rule that requires us to give effect to the testator’s clearly expressed intent, we must reverse the order dismissing Mary Barley’s petition and the order appointing Barcus as an individual trustee of the residuary trust and remand this case to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ORFINGER and MONACO, JJ., concur.

      . Apparently no estate assets remained after the costs and expenses associated with administration of the estate were paid.


text:
    John E. THOMAS, Appellant, v. PEOPLEASE CORP., and Florida Unemployment Appeals Commission, Appellees.
    No. 3D04-606.
    District Court of Appeal of Florida, Third District. .
    June 9, 2004.

      Marcia Cypen and Jose Fons, Miami, for appellant.
    John D. Maher (Tallahassee), for appel-lee, Unemployment Appeals Commission.
    Before, COPE, FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

John E. Thomas appeals an order denying unemployment compensation benefits. We reverse.

The Appeals Referee’s findings included the following:

The claimant [John E. Thomas] started working for the employer [Peoplease Corporation], a trucking transportation company, on June 6, 2002, as a truck driver....
In May of 2003, the claimant received a ticket in the State of Georgia. The claimant was scheduled to go to court sometime on or about July of 2003 regarding the ticket. The claimant advised the dispatcher of his court date. The claimant wanted the dispatcher to give him a route that would take him through Georgia during the time he was scheduled to be at court. The dispatcher did not do so, and the claimant missed his court date. The claimant was able to reschedule the court date for August of 2003. In August of 2003, the claimant once again advised the dispatcher that he had to go to court, and tried to have his schedule take him there. The claimant was initially scheduled to be in Georgia at the time that he would be at his court appointment. At the last minute the dispatcher changed his route, and the claimant had to go to Jacksonville, Florida. When the claimant returned, he waited at the facility to speak with the owner. After waiting four days, the claimant took his things and left.

The Referee concluded that Thomas had voluntarily left his employment without good cause attributable to the employer, and held that he was not entitled to unemployment benefits.

We conclude that the Referee misapprehended the legal standard.

Whether an employee’s resignation is both voluntary and without good cause attributable to the employer must be examined from the standard of the “average, able-bodied, qualified worker.” In other words, courts focus on whether the average, able-minded, qualified worker would have given up her employment under the same circumstances endured by the departing employee. Courts have defined good cause as “a reason which would be deemed by reasonable men and women valid and not indicative of an unwillingness to work.”

Grossman v. Jewish Community Center of Greater Fort Lauderdale, Inc., 704 So.2d 714, 716 (Fla. 4th DCA 1998) (citations omitted).

In the present case, Mr. Thomas was a truck driver for the truck driving firm. While working, he had received a traffic ticket which he wished to contest. If convicted of the infraction, this would affect the claimant’s driving record, a matter of legitimate concern to someone who earns a living as a driver.

According to the facts found by the Referee, the company twice frustrated the claimant’s request to be given a route which would allow him to appear in court. After the second such refusal, the claimant waited four days to meet with the owner about this, but the owner would not see him.

As a matter of public policy, employers have an obligation of reasonable cooperation where an employee’s appearance in the court system is required. While the two failures to accommodate the claimant may or may not have béen enough standing alone, there clearly was good cause for resignation once the owner refused for four days to meet with the claimant to try to resolve ■ the situation.

We conclude that the claimant’s resignation was with good cause attributable to the employer.

For the stated reasons, we reverse the order now before us and remand with directions to grant the unemployment benefits.


author: GUNTHER, J.

text:
    MR. SIGN SIGN STUDIOS, INC. d/b/a The Sign Studio, Appellant, v. Alfred J. MIGUEL, Appellee.
    Nos. 4D03-2415, 4D03-3748.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    Richard F. Hussey of Richard F. Hus-sey, P.A., Fort Lauderdale, for appellant.

      Alfred J. Miguel, Fort Lauderdale, pro se.
   GUNTHER, J.

Appellant, Mr. Sign Sign Studios Inc. (“Sign Studios”), timely appeals the trial court’s final order granting Appellee, Alfred Miguel’s, motion for summary judgment. Sign Studios sued Miguel to enforce an option to purchase land contained in a lease agreement. The trial court granted the motion for summary judgment finding that the option in the lease was unenforceable as it was an unreasonable restraint on alienation. Because we find that the option in the lease was not an unreasonable restraint on alienation, we reverse.

Sign Studios and Miguel entered into a written lease agreement on March 1, 1999. Under the lease agreement, Sign Studios rented the real property located at 4760 S.W. 24th Avenue in Dania Beach from Miguel. The lease contained a handwritten paragraph which stated:

Other terms: Lesee [sic] has a buyout of 1 months rent & an option to purchase for $89,000. 65% of rent rent [sic] paid shall go against the purchase price,

(emphasis in original). Sign Studios alleges that in the summer and fall of 2000, a representative of Sign Studios attempted to exercise the option to buy the property in the lease. However, Miguel refused to sell the property for the price stated in the lease. In January 2002, Sign Studios filed a complaint seeking specific performance of the option provision in the lease. When Sign Studios filed its complaint, it also filed a notice of lis pendens on the property at issue. Miguel then filed a motion for summary judgment, arguing that the option to purchase the property was either an unreasonable restraint on alienation or it violated the rule against perpetuities.

The trial court held a hearing on the motion for summary judgment. At the end of the hearing, the trial court found that the option was independent of the lease agreement because it could continue after the termination of the lease. Thus, the trial court found that the option provision was an unreasonable restraint on alienation, rendering the option provision void ab initio. In addition, the trial court noted it was not ruling on the rule against perpe-tuities issue. A final order was entered on Miguel’s motion for summary judgment, dismissing Sign Studios’s claims against Miguel with prejudice and dissolving Sign Studios’s notice of lis pendens. Sign Studios now appeals.

The standard of review for an order granting summary judgment is de novo. The Florida Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Here, Miguel was not entitled to judgment as a matter of law because the option to purchase the land in the lease agreement was not an unreasonable restraint on alienation.

“The rule against unreasonable restraints on the use of property concerns restraints of such duration that they prevent the free alienation of property.” Iglehart v. Phillips, 383 So.2d 610, 614 (Fla. 1980). The concern with restraints on alienation is their “long-term effect on the improvement and marketability of the property.” Id. The Florida Supreme Court has stated that “[t]he test which should be applied with respect to restraints on alienation is the test of reasonableness.” Id.

Here, the option in the lease was for the fixed price of $89,000. “It is the generally accepted rule that a fixed price repurchase option of unlimited duration, independent of ... [a] lease, is an unreasonable restraint.” Id. at 615. However, a dependent option for a fixed price within a lease “is reasonable because it encourages improvements by the optionee-pos-sessor, as they would inure to him at no increase in price upon the exercise of the option.” Id. In this case, the fixed-price option was reasonable as it was dependent on the lease.

This court has previously stated that “[i]n construing a contract, the legal effect of its provisions should be determined from the words of the entire contract.” Sugar Cane Growers Coop, of Fla., Inc. v. Pinnock, 735 So.2d 530, 535 (Fla. 4th DCA 1999). In line with this principle of contract law, the Indiana Court of Appeals has stated that:

“[t]he usual test of the severability of a contract is the entirety or divisibility of the consideration; and whether a contract is entire or divisible is controlled by the intention of the parties as it is disclosed by the terms of the contract. It is well established that the parties to a contract intend that it be entire and indivisible when by its terms, nature and purposes it contemplates and intends that each and all of its parts, material provisions and the consideration, are common each to the other and interdependent, or whether it could be completed in part only....”

Tippmann Refrigeration Constr. v. Erie-Haven, Inc., 459 N.E.2d 407, 410 (Ind.Ct. App.1984) (quoting Stoneburner v. Fletcher, 408 N.E.2d 545, 549 (Ind.Ct.App.1980)); see also Reserve Life Ins. Co. v. Lomolino, 474 So.2d 1210, 1211 (Fla. 4th DCA 1985). The Florida Supreme Court has similarly stated in another context that an option to purchase in a lease is not “collateral, especially where ... there is no showing that an independent consideration was paid therefor.” Sisco v. Rotenberg, 104 So.2d 365, 374 (Fla.1958). The court also stated that “this ... [was] consistent with [its] ... holding that covenants are always considered dependent unless a contrary intention appears.” Id.

In this case, there is no evidence in the lease that the parties intended the option to survive the lease or that any other consideration was offered for the option in the lease other than the rent paid under the lease. Furthermore, provision twenty-one of the lease states:

Binding effect. The covenants and conditions herein contained shall apply to and bind the heirs, legal representatives, and assigns of the parties hereto, and all covenants are to be construed as conditions of this lease.

(second emphasis added). This provision makes it clear that all the provisions including the provision concerning the option were conditions or part of the lease. Here the option provision was dependent on the lease and would have terminated when the lease terminated. Detwiler v. Capone, 357 Pa. 495, 55 A.2d 380, 384 (1947) (stating “ ‘[a]n option in a lease to purchase the land demised is a continuing obligation on the part of the lessor which the lessee may accept at any time * * * within the period of the tenancy if no time for exercise of the option is otherwise prescribed.’ ” (quoting 35 Corpus Juris 1043, section 188)). As the option provision terminated with the lease, it was not for an unlimited duration and was not an unreasonable restraint on alienation. See Vandervalk v. Brewer, 436 So.2d 1083, 1084 (Fla. 3d DCA 1983) (“From our reading of the lease in its entirety, we hold, as [a] matter of law, that the option agreement was a dependent covenant that expired with the lease.”).

Thus, the trial court erred in granting summary judgment. Accordingly, we reverse and remand for proceedings consistent with this opinion, including the reinstatement of the lis pendens on the property. See Vonmitschke-Collande v. Kramer, 841 So.2d 481, 482 (Fla. 3d DCA 2002).

REVERSED and REMANDED.

STEVENSON and TAYLOR, JJ., concur.

      . Sign Studios also appeals the trial court’s denial of its Motion for Stay Pending Review and Amended Motion for Order Authorizing Recordation and Maintenance of Notice of Lis Pendens, which involved the lis pendens on the property at issue. Because we reverse as to the summary judgment issue, we decline to address-the other issues presented on appeal as the lis pendens will be reinstated. See Vonmitschke-Collande v. Kramer, 841 So.2d 481, 482 (Fla. 3d DCA 2002) (stating that "the Florida Supreme Court made it abundantly clear that when an underlying case's dismissal is reversed, the accompanying lis pendens is reinstated”) (citing Crown Corp. v. Robinson, 128 Fla. 249, 174 So. 737 (1937)).

      . These statements were made when the court was considering whether or not an option to purchase land in a lease extended into a new lease period after an option to renew had been exercised. Sisco v. Rotenberg, 104 So.2d 365, 366 (Fla.1958).


text:
    Peter WARBURTON, Appellant, v. Thomas McKEAN and John W. McKean, as Co-Personal Representatives of the Estate of Henry Pratt McKean, II, Appellees.
    No. 4D03-1954.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.

      Troy B. Hafner and Brian J. Connelly of Gould, Cooksey, Fennell, O’Neill, Marine, Carter & Hafner, P.A., Vero Beach, for appellant.
    Bruce D. Barkett of Collins, Brown, Caldwell, Barkett & Garavaglia, Chartered, Vero Beach, for appellees.
   ON MOTIONS FOR CLARIFICATION, REHEARING, REHEARING EN BANC, AND CERTIFICATION

GUNTHER, J.

We grant the Appellees’ Motion for Certification and the Appellant’s Motion for Clarification and deny the Motions for Rehearing and Rehearing En Banc. We withdraw the opinion issued on January 7, 2004 and substitute the following opinion.

Henry Pratt McKean, II, died testate. His personal representatives filed a Petition to Determine Homestead Status of Real Property. The trial court found that the real property in question was homestead property and that the four beneficiaries of the residuary clause were entitled to the property. Warburton, another beneficiary, timely appeals the trial court’s decision to award the homestead to the beneficiaries of the residuary clause, arguing that the real property should have first gone to satisfy the pre-residuary devises. We agree, and reverse and remand.

The decedent was not survived by a spouse or any minor children. At his death, the only assets owned by the decedent were his condominium which was sold for $141,000, and other nominal assets valued at $10,000. The estate has also incurred liabilities.

The decedent’s will provides for two cash bequests. The first cash bequest was to the decedent’s friend, Russell Cappelen, Jr. in the amount of $20,000. The second cash bequest was to the decedent’s nephew, Peter Warburton, in the amount of $150,000. Other specific bequests of particular assets, which are not at issue in this case, also were made in the will. The decedent then left “all the rest, residue and remainder” of his property to his four half-brothers, Thomas McKean, John W. McKean, Robert McKean, and David McKean, in equal shares. It is undisputed that there are not enough assets in the estate to satisfy either the estate’s liabilities or the cash bequests.

In the Personal Representative’s Petition to Determine Homestead Status of Real Property, the personal representatives, Thomas McKean and John McKean, who are also beneficiaries, under the residuary clause, asked the trial court to declare the condominium to be homestead property. The petition also stated that this condominium was validly devised to the decedent’s'four half-brothers through the residuary clause of the decedent’s will. The trial court held a hearing in this matter and entered an uncontested order finding that the decedent’s condominium was homestead property and that it was validly devised in the will. The trial court also ordered the homestead property to be sold and placed in a separate escrow account. The only issue left for the court to determine was who was entitled to receive the homestead property.

The trial court considered this issue in another hearing. After this hearing, the trial court issued an order in which it determined that the four half-brothers, as beneficiaries of the residuary clause, were now the owners of this homestead. The trial court found that because the will did “not direct the homestead to be sold to satisfy specific gifts in the event the assets of the probate estate are insufficient to pay those gifts,” the homestead was not a part of the probate estate and was not subject to division. Therefore, the trial court stated that “the homestead vests, by operation of law, at the time of the decedent’s death, in the names of the beneficiaries who are devised the homestead.” In this case, the court found these beneficiaries were the four half-brothers as the beneficiaries of the residuary clause.

The Florida Constitution protects homesteads in this state in “three distinct ways.” Snyder v. Davis, 699 So.2d 999, 1001 (Fla.1997). One protection, not at issue in this case, is that homesteads are partially exempt from taxes. Id. (citing Art. VII, § 6, Fla. Const.). Homesteads are also protected from forced sale by creditors and restrictions are placed on the homestead owner when he or she attempts to “alienate or devise the homestead property.” Id. at 1001-02. (citing Art. X, § 4(a)-(c), Fla. Const.). However, when there is not a surviving spouse or a minor child, as in this case, the decedent’s homestead may be devised without limitation. Art. X, § 4(c), Fla. Const (2002); § 732.401(1), Fla. Stat. (2002); City Nat’l Bank of Fla. v. Tescher, 578 So.2d 701, 703 (Fla.1991).

We reject the Appellees’ position that because the property was homestead property, it must pass outside the probate estate and through the residuary clause. The Appellees rely on Snyder v. Davis, 699 So.2d 999 (Fla.1997), for this proposition. However, it is not controlling on this issue. While Snyder might have involved some similar facts, “[t]he sole issue [in Snyder was] ... whether Kelli Snyder, as the granddaughter [of the decedent], may be properly considered an heir under the homestead provision, qualifying her for protection from the forced sale of the homestead property when her father, the next in line heir under statutory intestate succession is still living.” Id. at 1000-01. Thus, Snyder did not consider the issue on appeal in this case and cannot be considered controlling.

Because the homestead could be freely devised, it was property of the estate subject to division in accordance with the established classifications giving some gifts priority over others. See Tescher, 578 So.2d at 703; In re Estate of Hill, 552 So.2d 1133, 1133-35 (Fla. 3d DCA 1989), receded, from, in part on other grounds, Bartelt v. Bartelt, 579 So.2d 282 (Fla. 3d DCA 1991). In determining in what order gifts made in a will are satisfied by the estate’s assets, the particular gifts in the will must be classified as either specific, general, or residuary. The only bequests at issue in this case are general and residual bequests.

A general legacy is:

one which may be satisfied out of the general assets of the testator’s estate instead of from any specific fund, thing, or things. It does not consist of [a] gift of a particular thing or fund or part of the estate distinguished and set apart from others of its kind and subject to precise identification. A general legacy has a prerequisite of designation by quantity or amount. The gift may be either of money or other personal property.

Park Lake Presbyterian Church v. Estate of Henry, 106 So.2d 215, 217 (Fla. 2d DCA 1958). Here, the $150,000 cash bequest to Warburton is clearly a general bequest as it is to be paid in cash and is not a directed gift of a particular asset.

Residuary legacies are those “wherein fall all the assets of the estate after all other legacies have been satisfied and all charges, debts and costs have been paid.” Id. In this case, the devise of “all the rest, residue, and remainder” of the decedent’s property to the Appellees was a residual bequest.

General bequests are satisfied before residual bequests. § 733.805, Fla. Stat. (2002); In re Estate of Potter, 469 So.2d 957, 959 (Fla. 4th DCA 1985). Because general bequests are satisfied before gifts in the residuary clause, the cash bequest to Warburton should have been satisfied before the Appellees received anything through the residuary clause. Thus, the trial court improperly awarded the homestead property to the Appellees. Accordingly, we reverse and remand for proceedings consistent with this opinion.

In addition, we grant the Appellees’ motion to certify the issue involved in this case as one of great public importance. See Fla. RApp. P. 9.030(a)(2)(B)(i). Accordingly, we certify to the Florida Supreme Court the following question as one of great public importance:

WHERE A DECEDENT IS NOT SURVIVED BY A SPOUSE OR ANY MINOR CHILDREN, DOES DECEDENT’S HOMESTEAD PROPERTY, WHEN NOT SPECIFICALLY DEVISED, PASS TO GENERAL DEVI-SEES BEFORE RESIDUARY DEVI-SEES IN ACCORDANCE WITH SECTION 733.805, FLORIDA STATUTES?

REVERSED and REMANDED.

FARMER, C.J., and KRATHEN, DAVID H., Associate Judge, concur.

      . By stating that the homestead property in this case was property of the estate, we are addressing only the particular situation presented in this case. We are not stating that freely devisable homesteads are subject to the claims of the decedent's creditors or the expenses of administering his or her estate where the homestead passes to a recipient who is within the class of persons regarded as "heirs” under Snyder, 699 So.2d at 1004-05.


author: POLEN, J.

text:
    Judith O’Hara VETRICK, Appellant, v. Jeffrey KEATING, Personal Representative of the Estate of Marjorie J. O’Hara, et al., Appellees.
    No. 4D02-4486.
    District Court of Appeal of Florida, Fourth District.
    June 9, 2004.
    David M. Garten, West Palm Beach, and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for appellant.
    Kerry A. Greenwald of Kerry A. Green-wald & Associates, P.A., Boca Raton, for appellee Jeffrey Keating.
   POLEN, J.

This appeal arises from a final order granting summary judgment in a matter that consolidated three complex probate and trust matters below. Initially there was an action seeking construction of Marjorie O’Hara’s will, an action to terminate a testamentary trust, and an action for the construction of Vincent O’Hara’s trust. All three matters were consolidated. The trial court ultimately concluded that Marjorie O’Hara’s will exceeded a power of appointment. As a remedy, the trial court severed a portion of the disposition and enforced the remaining provisions. This remedy is the subject of this appeal. For the reasons explained below we affirm the order of the trial court.

Marjorie and Vincent O’Hara were married for many years. They had eight children and fourteen grandchildren. In 1992, Vincent created a revocable trust. In the trust, Vincent listed his eight children by name and specified that all references to “my children” in the trust document referred to the named children and no one else. Also within the trust, Vincent gave Marjorie a power of appointment. The power of appointment provided as follows: “My Spouse, Marjorie, shall have the limited power to appoint to my children, all or any part of the trust at the time of my spouse’s death in a valid Will making specific reference to the power of appointment herein conferred upon my spouse.”

Vincent died in 1995. Marjorie died in 2000. Jeffrey Keating, the trustee and personal representative, filed a petition for the administration of Marjorie’s will. In the will, Marjorie exercised her power of appointment as follows:

Upon my death, the remaining net trust assets of said Family Trust shall be divided into separate shares, per stirpes, with respect to my husband’s then living descendants. Such shares shall be administered as follows:
A. The share held for SUSAN, TIMOTHY, MICHAEL, KEVIN, and BRIAN or their then-living descendants per stirpes, shall be distributed outright, free of trust.
B. The share held for JUDITH shall be held in further trust and administered by the trustees hereinafter named as follows:
The trustees shall distribute to JUDITH all of the net income therefrom at least quarterly. In addition, the trustees may distribute all or any part of the trust principal to or for the benefit of JUDITH and her descendants as the trustee considers advisable for her or their health, education, maintenance and support, with no duty to equalize such payments among eligible beneficiaries. Any undistributed income shall be added to the principal.
Any trust principal remaining at JUDITH’S death shall be distributed outright, free of trust, to her then living descendants, per stirpes, or if none to my then living descendant per stirpes; provided, however, that any property thereby distributable to a person who is the income beneficiary or an eligible income beneficiary of a trust under this Agreement shall instead be added to the principal of such trust.
I appoint my financial advisor, JEFFREY KEATING, and my daughter JUDITH as co-trustees of this trust. If JEFFREY is unable to serve for any reason, he shall have the power to appoint a disinterested trustee to serve in his place, or if he does not do so, my brother-in-law, TIMOTHY D. O’Hara of Chicago Illinois shall appoint a disinterested trustee. It is my express intent that at no time shall JUDITH serve as sole trustee of this trust.

Judith O’Hara Vetrick, one of the O’Hara children, filed a complaint challenging the validity of the testamentary trust on the basis that it failed to comply with the power of appointment created in the Vincent Trust. More specifically, Judith argued that by giving a remainder interest to her children, the testamentary trust failed to comply with the Vincent Trust and the power of appointment therein.

Judith argued that Marjorie did not comply with the power of appointment when she appointed successor donees to administer Judith’s share and improperly broadened the class of beneficiaries by giving remainder shares to her children. The trial court concluded that Marjorie had improperly expanded the group of beneficiaries. The trial court found that Marjorie’s creation of a trust for the benefit of Judith was proper, but that she exceeded the power of appointment by including Judith’s children as beneficiaries. The trial court also determined that the inclusion of Judith’s children was not an essential factor in Marjorie’s scheme of disposition and could easily be severed and the scheme of disposition would best be maintained by severing the interests that were given to Judith’s children. The trial court ordered that the appointment to Judith’s children be severed and any remaining interest upon Judith’s death, revert back to the Vincent Trust. Judith raises four arguments in this appeal. We are unpersuaded by any of them.

Judith first contends Marjorie’s delegation of power over her trust to Keat-ing was not a proper exercise of Marjorie’s rights under the power of appointment. Rather Judith contends the assets should have been distributed to her outright not through a trust. Judith contends the power of appointment was specifically given to Marjorie. As such, according to Judith, Marjorie was the only person authorized to exercise the power, not a subsequent trustee. We disagree. “A summary judgment based on a review of documents, such as in this case, is reviewable by an appellate court de novo.” Rollins v. Alvarez, 792 So.2d 695 (Fla. 5th DCA 2001) (review of summary judgment order based on trust documents).

Under the language of the power of appointment, there is nothing prohibiting Marjorie from giving a child assets from the Vincent trust via a new trust.

Judith also contends the trial court erred in concluding that Marjorie’s intent could best be satisfied by giving effect to the Judith trust and severing the portion of the trust directed at Judith’s children. Again, we disagree.

Section 23.1 of the Restatement (Second) of Properties, and the applicable comments, provide as follows:

If one part of an appointment is ineffective and another part, if standing alone, would be effective, the effective part is given effect, except to the extent the donee’s scheme of disposition is more closely approximated by allowing some or all of the effective part to pass in default of appointment.
Comment:
a. Rationale. Whenever part of a dis-positive scheme fails, there always arises the question whether that part is so essential to the whole that its failure causes the failure of some or all of the remaining parts, of themselves effective. The answer to this question depends upon whether the general dispositive scheme disclosed in the instrument is more nearly approximated by treating as effective some or all of the remaining parts or by allowing some or all of the remaining parts to pass to those persons who would receive it if no disposition had been attempted; for it is assumed that the person making the disposition desires that some or all of the remaining parts stand only if thereby the purposes of the original disposition are advanced.
This general rule is applicable in cases where the donee of a power has made an appointment which is partially ineffective. The ineffective part will necessarily pass in default of appointment. If the general scheme of appointment shown in the donee’s instrument would be better carried out by allowing some or all of the effective part of the appointment also to pass in default of appointment, some or all of the effective part of the appointment will pass in default of appointment.
d. Ascertaining the general scheme of the donee. The normal evidentiary rules apply in ascertaining the general scheme of the donee. This means that the entire language of the instrument of appointment must be considered along with the circumstances existing at the time the instrument of appointment was executed. The fact that the instrument of appointment describes the takers in default as taking “in default of appointment” or as taking “to the extent the appointive assets are not effectively appointed” is of no evidentiary value in ascertaining whether the general scheme of the donee is more clearly approximated by defeating all or some part of an otherwise effective appointment.

Restatement (Second) of Property § 23.1 cmt. a, d (1986).

The trial court properly relied on the above cited portions of the Restatement in reaching its conclusion.

Judith contends the trial court incorrectly determined how Marjorie and Vincent’s intent could be best satisfied. Judith contended, at the trial court and in this appeal, that the scheme of disposition would be most satisfied if the entire power of appointment were to pass through the default provision of the Vincent trust.

The court concluded that Marjorie’s general scheme of disposition, by giving assets in trust assets to three of the eight children, clearly intended to protect three of her children with the creation of protective trusts. This conclusion is supported by the record. On this basis, the court sought to protect Marjorie’s intentions and solve the problem of the overextension of beneficiaries in the least disruptive way possible. This was clearly the appropriate analysis under the restatement.

The Restatement summarized, inter alia, Old Colony Trust Co. v. Richardson, 297 Mass. 147, 7 N.E.2d 432 (1937) as an example of a case where a partially invalid appointment was severed so that only the invalid portion failed and the rest was given full effect.

In Old Colony Trust Co. v. Richardson, 297 Mass. 147, 7 N.E.2d 432 (1937), the donor had given his wife a power of appointment over his estate, with the stipulation that she must appoint at least half the property in fee simple absolute to their adopted daughter Josephine. In default of appointment, Josephine was to receive all the property. Under this power, the wife appointed in trust, directing that the income be divided equally between Josephine and a granddaughter. While the appointment to the granddaughter was effective, the appointment to Josephine fell short of the fee simple absolute stipulated by the donor. As a result, Josephine claimed that the entire estate should pass to her in default. The court denied this request, noting that “the valid and invalid elements of the exercise of the power are not so interwoven that they cannot properly be separated.” Id. at 152, 7 N.E.2d at 435. As the donee intended for the granddaughter to receive half the property in trust, her intentions could be closely approximated by maintaining this appointment, and by allowing only half the property, comprising the ineffective part of the donee’s appointment, to pass to Josephine in default.

Restatement (Second) of Property § 23.1, reporters note (1986).

In the case at bar, the trial court found that the portion of the disposition that gave trust assets to Judith’s children was easily divisible from the portion of the disposition creating a trust for the benefit of Judith. The situation in the case at bar is akin to Richardson in that the apparent goal of the parties can be achieved by invalidating that portion of the trust that passed to Judith’s children.

Further, it seems apparent that in severing the provisions, as the trial court did, the underlying goal of the Vincent trust and the power of appointment are realized. The assets would be divided among the eight children.

Judith also contends the trial court erred in holding that any remaining assets in the Judith trust at the time of Judith’s death shall pass through the Vincent trust and be divided among the eight children. Her position is that if funds remain in the Judith trust at the time of her death and pass through the Vincent Trust her children would not take their equal share.

“In construing the provisions of a trust, the cardinal rule is to try to give effect to the grantor’s intent, if possible.” Pounds v. Pounds, 703 So.2d 487 (Fla. 5th DCA 1997). It is Judith’s position that the intent of Marjorie and Vincent was to direct a per stirpes distribution of the trust assets to all eight children. However, under the solution the trial court created if there are trust assets left in the Judith trust they would be divided among all eight children, rather than pass directly to Judith’s children.

While a per stirpes distribution is arguably one of the goals of Vincent and Marjorie, as evidenced in the various documents, the record makes clear that Marjorie and Vincent had other intentions as well. Most persuasively, it is clear that Marjorie intended some protections for the three children for whom she left assets in trust. Certainly Marjorie’s decision to leave three of the children’s assets in trust, rather than give them outright distributions, indicated she had the intent to protect those trust assets in some way. In addition, as the trial court noted, it is evident that Judith is motivated to propose options that result in her receiving her distribution free of trust. We find it most compelling that the Vincent trust clearly prioritized that the assets go to his children and nobody else. Likewise, the children, rather than the grandchildren, were the focus of the disposition in Marjorie’s will. As a result, although faced with a daunting task, the trial court appropriately focused on the assets being divided among the children when it ordered that any remaining trust assets in the Judith trust pass through the Vincent trust.

In sum, we agree that the remedy selected by the trial court was the least disruptive and the most effective way to give effect to the grantor’s intent. As a result, we affirm that order.

Judith’s final argument is that the trial court improperly made factual findings in the final order in the absence of an eviden-tiary hearing. The record, and the final order in particular, make clear that the conclusions reached by the trial court, now challenged on appeal, would not be affected in the absence of these factual findings. As a result, this argument has no bearing on the issues resolved in this opinion, or the order of the trial court. We affirm the order of the trial court in all respects.

AFFIRMED.

SHAHOOD and MAY, JJ., concur.