author: COPE, J.

text:
    Angel R. RAMOS and Celina R. Ramos, individually and for an on behalf of their son, Angel Ramos, Jr., a minor, Appellants, v. PREFERRED MEDICAL PLAN, INC., Appellee.
    No. 3D02-1392.
    District Court of Appeal of Florida, Third District.
    April 16, 2003.
    Podhurst, Orsek, Josefsberg, Eaton, Meadow, Olin & Perwin and Joel Perwin, Miami,for appellants.
    Carlton Fields and Robert E. Biasotti, St. Petersburg, for appellee.
    Before SCHWARTZ, C.J., and COPE and WELLS, JJ.
   COPE, J.

Angel and Celina Ramos appeal an adverse summary judgment in a medical malpractice case. We conclude that there are disputed issues of material fact on the issue of apparent agency, and remand for further proceedings.

I.

Plaintiffs-appellants Angel and Celina Ramos are members of Preferred Medical Plan, Inc., a health maintenance organization (“HMO”). Preferred enters into contracts with physicians to provide medical services to its members. As between Preferred and contracting physicians, the physicians are independent contractors.

Preferred’s members must obtain medical services from physicians with whom Preferred has contracted. From Preferred’s approved list, the plaintiffs selected Dr. Gregory Fox as their primary care physician.

The plaintiffs consulted Dr. Fox regarding the medical condition of their minor son, who suffered from gynecomastia. Dr. Fox referred the plaintiffs to Dr. Ignacio Fleites, a participating general surgeon, who is the chief of surgery at Westchester General Hospital. Dr. Fleites performed the surgery, and was paid by Preferred for the operation. There was a $400 co-payment for the surgery, which the plaintiffs paid to Preferred.

The plaintiffs brought suit against Dr. Fleites, Preferred, and Westchester General Hospital. They alleged that removal of the excess breast material associated with gynocomastia had been improperly performed, leaving scarring and a depression in the chest area.

So far as pertinent here, the plaintiffs alleged that Dr. Fleites was the apparent agent of Preferred. The trial court entered summary judgment in favor of Preferred, and the plaintiffs have appealed.

II.

While this case was pending on appeal, the Florida Supreme Court announced its decision in Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 2003 WL 1561528 (Fla. March 27, 2003). The trial court did not have the benefit of this decision at the time it entered summary judgment, and the newly announced Villazon opinion requires reversal for further proceedings.

In Villazon, as here, an HMO entered into contracts with independent contractor physicians under which the physicians agreed to provide medical services to HMO members. The Florida Supreme Court ruled that an HMO can be held vicariously liable for the acts of an independent contractor physician if the physician is acting either (a) as the actual agent or (b) as the apparent agent of the HMO. Id. 843 So.2d at 850-51.

The present case involves only a claim of apparent agency, not a claim of actual agency. The plaintiffs assert that Dr. Fleites was the apparent agent of Preferred.

The Illinois Supreme Court has discussed the issue of apparent agency at length in Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill.2d 17, 241 Ill.Dec. 627, 719 N.E.2d 756 (1999). We find the reasoning of that decision helpful here. The Petrovich decision states in part:

Because HMOs may differ in their structures and the cost-containment practices that they employ, a court must discern the nature of the organization before it, where relevant to the issues. As earlier noted, Share is organized as an independent practice association (IPA)-model HMO. IPA-model HMOs are financing entities that arrange and pay for health care by contracting with independent medical groups and practitioners.
This court has never addressed a question of whether an HMO may be held liable for medical malpractice.... Courts ... should not be hesitant to apply well-settled legal theories of liability to HMOs where the facts so warrant and where justice so requires.
As a general rule, no vicarious liability exists for the actions of independent contractors. Vicarious liability may nevertheless be imposed for the actions of independent contractors where an agency relationship is established under either the doctrine of apparent authority or the doctrine of implied authority.
We now hold that the apparent authority doctrine may ... be used to impose vicarious liability on HMOs.... Courts in other jurisdictions have likewise concluded that HMOs are subject to this form of vicarious liability....
To establish apparent authority against an HMO for physician malpractice, the patient must prove (1) that the HMO held itself out as the provider of health care, without informing the patient that the care is given by independent contractors, and (2) that the patient justifiably relied upon the conduct of the HMO by looking to the HMO to provide health care services rather than to a specific physician. Apparent agency is a question of fact.
A. Holding Out
The element of “holding out” means that the HMO, or its agent, acted in a manner that would lead a reasonable person to conclude that the physician who was alleged to be negligent was an agent or employee of the HMO. Where the acts of the agent create the appearance of authority, a plaintiff must also prove that the HMO had knowledge of and acquiesced in those acts. Significantly, the holding-out element does not require the HMO to make an express representation that the physician alleged to be negligent is its agent or employee. Rather, this element is met where the HMO holds itself out as the provider of health care without informing the patient that the care is given by independent contractors. Vicarious liability under the apparent authority doctrine will not attach, however, if the patient knew or should have known that the physician providing treatment is an independent contractor.
A plaintiff must also prove the element of “justifiable reliance” to establish apparent authority against an HMO for physician malpractice. This means that the plaintiff acted in reliance upon the conduct of the HMO or its agent, consistent with ordinary care and prudence.
The element of justifiable reliance is met where the plaintiff relies upon the HMO to provide health care services, and does not rely upon a specific physician. This element is not met if the plaintiff selects his or her own personal physician and merely looks to the HMO as a conduit through which the plaintiff receives medical care.

Id. at 763-68 (emphasis added; citations omitted).

Florida’s law of apparent agency is substantially identical to that expressed in the Illinois decision, except that in Florida the test for apparent agency has been stated as a three-part test where Illinois uses a two-part test. Under Florida law there is

a three-prong test under general agency law in order to determine the existence of apparent agency: first, whether there was a representation by the principal; second, whether a third party relied on that representation; and, finally, whether the third party changed position in reliance upon the representation and suffered detriment.

Almerico v. RLI Ins. Co., 716 So.2d 774, 777 (Fla.1998) (citations omitted); see also Villazon, 843 So.2d at 851-62 (Fla.2003).

III.

We conclude that disputed issues of material fact remain regarding the issue of apparent agency. Under Petrovich, the first question is whether “The HMO holds itself out as the provider of health care without informing the patient that the care is given by independent contractors.” 241 IlLDec. 627, 719 N.E.2d at 766.

Preferred’s own promotional literature indicates that it operates several full-service medical centers. (R. 881). “All of your medical care will be coordinated through the medical center that you originally chose on your application. This procedure will enable your primary physician to maintain a master medical record for you in order to ensure the continuity and quality of care that you should have as a member of Preferred Medical Plan.” (R. 882). The member information includes, “You MUST see your Primary Care Physician in order to be treated. If it is necessary for you to see a specialist, it will be arranged for you. You CANNOT go on your own to a specialist without a written referral from your Primary Care Doctor.” (R. 885).

Consistent with these policies, the plaintiffs consulted the primary care physician, Dr. Fox, who made the referral to Dr. Fleites. Under Preferred’s rules, Dr. Fox could only refer the plaintiffs to a surgeon who was one of Preferred’s participating providers. Preferred paid Dr. Fleites the fee for the surgery. The plaintiffs paid the $400 co-payment to Preferred.

As outlined in the Petrovich decision, the foregoing facts would lead a reasonable person to conclude that Preferred had undertaken to be the provider of health care services and that Dr. Fleites was acting on its behalf.

The Petrovich decision also holds, however, that “[vjicarious liability under the apparent authority doctrine will not attach ... if the patient knew or should have known that the physician providing treatment is an independent contractor.” Petrovich, 241 Ill.Dec. at 637, 719 N.E.2d 756.

The file contains a copy of the Preferred’s Individual Medical and Hospital Services Contract. It provides in part, “The relationship between Health Plan and Participating Providers that are not Health Plan employees is an independent contractor relationship. Such Participating Providers are not agents or employees of Health Plan, nor is Health Plan, or any employee of Health Plan, an agent or employee of any such Participating Provider.” As an initial matter, Preferred markets its services in English and Spanish. The promotional material quoted earlier is made available to subscribers in both languages. The plaintiffs are Spanish speaking. The Individual Medical and Hospital Services Contract is found in this record in the English language only.

Leaving aside the language issue, the contractual provision just quoted is, in any event, not clear enough to dispose of the apparent agency issue. The contract indicates that those persons who are not Health Plan employees are independent contractors. The contractual provision does not advise the subscriber who is an employee and who is not.

Preferred points to the medical consent form signed by Mrs. Ramos prior to the surgery, which was performed at West-chester Hospital. The medical consent form included, “I acknowledge that all physicians and surgeons furnishing services, including all radiologists, pathologists, anesthesiologists and emergency room physicians, are independent contractors and are not employees or agents of the hospital.” Mrs. Ramos is Spanish speaking. She testified that this part of the consent form was not translated for her, while other parts were. Thus, this form is not dispositive of the issue.

Preferred correctly states that the contract between Preferred and Dr. Fleites describes Dr. Fleites as an independent contractor. While that is true, it is not dispositive on the issue of apparent agency. For apparent agency purposes, the question is what the plaintiffs knew or reasonably should have known. There is no indication that the plaintiffs ever saw the contract between Preferred and Dr. Fleites or had any reason to know of its contents.

The next question for purposes of the apparent agency analysis is reliance. As explained in Petrovich, this element is met “where the plaintiff relies on the HMO to provide health care services, and does not rely upon a specific physician. This element is not met if the plaintiff selects his or her own personal physician and merely looks to the HMO as a conduit through which the plaintiff receives medical care.” 241 Ill.Dec. 627, 719 N.E.2d at 768.

The summary judgment record indicates that the plaintiffs met this part of the test. The plaintiffs chose their primary care physician from Preferred’s list. That physician, Dr. Fox, referred the plaintiffs to Dr. Fleites, the surgeon on Preferred’s approved list. As stated in the instructions Preferred gives its patients, “If it is necessary for you to see a specialist, it will be arranged for you.” (R. 885).

The final question is whether there was a change of position and detrimental reliance. Again, this element is met. The operation was performed on the minor child. For purposes of this summary judgment, the plaintiffs’ factual claims of bad result and physical injury are accepted as true.

For the stated reasons, the summary judgment is reversed and the cause remanded for further proceedings.

      . Settlements were reached with the other defendants.


source: Caselaw Access Project

author: JACOBUS, BRUCE W., Associate Judge.

license: Public Domain

text:
    SHORE HOLDINGS, INC., a Florida corporation, Appellant, v. SEAGATE BEACH QUARTERS, INC., a Florida corporation, Appellee.
    Nos. 4D01-3082, 4D02-327.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and C. Brooks Ricca of C. Brooks Ricca & Associates, P.A., West Palm Beach, for appellant.
    Joel S. Perwin of Podhurst, Orseck, Jo-sefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for appellee.
   ON MOTION FOR REHEARING OR CLARIFICATION

JACOBUS, BRUCE W., Associate Judge.

We grant appellant’s motion for rehearing or clarification, withdraw our previous opinion, and substitute the following.

Shore Holdings, Inc. (“Shore”) appeals from a jury verdict and final judgment in favor of Seagate Beach Quarters, Inc. (“Seagate”) and from a final judgment awarding Seagate attorney’s fees. We reverse and remand the case.

This case involves protracted litigation concerning a failed real estate transaction. The real estate at issue consisted of two hotel buildings on the west side of A1A in Delray Beach — the Seagate Hotel (“Hotel”) and the Beach Club (“Beach Club”) located across the street on the ocean. In 1988, the Hotel and Beach Club were conveyed by a clerk’s certificate of title to Rochester Community Savings Bank (“Rochester”). Rochester formed Shore to own and operate the property and hired Hudson Hotels Corporation (“Hudson”) to manage it. Gerald Korn (“Banker Korn”), an officer of Shore, and employee of American Realty Finance Corporation, a division of Rochester, was responsible for finding a buyer for the property. Shore would sell the Hotel and Beach Club only as a package, although it was willing to deed them separately at closing.

Harvey Birdman and his partner, Herb Hirseh, wanted to purchase and develop the Hotel into a resort condominium, and then to sell the individual units. Consequently, Birdman and Hirseh formed Sea-gate and sought out partners interested in buying the Beach Club. On March 29, 1990, Seagate entered into a written contract with Shore to purchase the Hotel and Beach Club for $6,850,000. Seagate was unable to obtain the funds by the date of the closing. Pursuant to the cancellation provision of the March 29, 1990 contract, Seagate terminated the contract and Shore returned Seagate’s deposit with interest, minus a cancellation fee.

On August 16, 1990, Seagate found a new joint venturer, the “Boinis Group” and together they entered into a new written contract (consisting of nineteen pages and thirty-six sections) with Shore to purchase the Hotel and Beach Club for $6.2 million in cash. The closing was originally scheduled for September 21, 1990, which was ultimately extended to October 3, 1990, pursuant to the contract. On October 1, 1990, Seagate informed Shore that it did not have the financial ability to close, but Shore refused to delay the closing. On October 3,1990, Seagate did not attend the closing, contending that it had not received the closing statement three days prior to the closing as required by the contract. Later that same day, Seagate informed Shore that its new joint venturers, the “Nexus Group,” wanted to buy the Beach Club and a meeting between the parties was arranged for that afternoon. At the afternoon meeting, Shore hand-delivered a letter to Seagate informing them that they were in default on the contract and specifying that the meeting on the afternoon of October 3, 1990, was not to be considered an extension of the prior contract.

On October 4-5, 1990, the Nexus Group sent additional financial information to Banker Korn. On October 9, 1990, Shore informed Seagate that the property was being sold to Hudson Hotels. On that same day, Seagate sent a letter to Shore declaring Shore in default of the contract for failing to furnish it with a closing statement and other documents prior to the closings on September 24, 1990, and October 3, 1990. On October 12, 1990, Shore signed a contract with Hudson and the Shore-Hudson real estate transaction closed on December 6,1990.

Seagate thereafter filed suit alleging numerous causes of action, including breach of contract and promissory estoppel. Ultimately, the case proceeded to trial on the theories of breach of contract and promissory estoppel. The jury found that Shore had breached the contract, but the breach was not material; therefore, the jury awarded no damages on this count. Sea-gate’s promissory estoppel cause of action was based upon oral representations allegedly made by Banker Korn assuring Sea-gate that Shore was prepared to convey the property to Seagate and would accept substantial changes in the financial terms of the transaction as well as the timing of the closure. Shore moved for a directed verdict at the close of Seagate’s case, arguing among other grounds, that the statute of frauds prevents oral modification of a written contract. The trial court denied Shore’s motion for directed verdict on this claim, and the jury found that Shore made a promise to Seagate upon which Seagate reasonably relied, suffering $1.5 million in damages as a result.

We find that the trial court erred in failing to direct a verdict in favor of Shore on Seagate’s promissory estoppel claim. After the written contract expired on October 3, 1990, due to Seagate’s failure to timely obtain requisite funding, no written contract existed between Shore and Sea-gate for the sale of the Hotel and Beach Club. The statute of frauds requires a written contract for the sale of real estate. See § 725.01, Fla. Stat. (1994). Therefore, there was no enforceable contract in existence to be modified by the parties.

Furthermore, any representation made by Banker Korn after the closing scheduled for October 3, 1990, was a representation governed by the statute of frauds, which would have required a writing to be enforceable. See Tanenbaum v. Biscayne Osteopathic Hosp., Inc., 190 So.2d 777 (Fla.1966). Consequently, Seagate’s claim for promissory estoppel does not survive the statute of frauds.

Even assuming arguendo that there was somehow a written contract for the sale of the real estate still in existence at the time Banker Korn made the oral representations, the statute of frauds prohibits the oral modification of a contract for the sale of land under the doctrine of promissory estoppel. See Wharfside at Boca Pointe, Inc. v. Superior Bank, 741 So.2d 542, 545 (Fla. 4th DCA 1999) (explaining that “[a]n agreement that is required by the statute of frauds to be in writing cannot be orally modified”). In Tanenbaum, the Florida Supreme Court specifically declined to “adopt by judicial action the doctrine of promissory estoppel as a sort of counteraction to the legislatively created Statute of Frauds.” 190 So.2d at 779. The Florida Supreme Court cited with approval its holding in Yates v. Ball, 132 Fla. 132, 181 So. 341 (1938), that the statute of frauds should be strictly construed, and that great caution should be exercised “in the consideration of the advisability of ingrafting onto the law of this State a provision which may have the effect of nullifying the legislative will of the State as expressed by the inactment [sic] of the Statute of Frauds.” Tanenbaum, 190 So.2d at 778. Additionally, the Florida Supreme Court in W.R. Grace & Co. v. Geodata Services, Inc., 547 So.2d 919 (Fla.1989) expressed concern that the statute of frauds would be substantially changed if it approved the application of promissory es-toppel under the facts of that case, stating that “it would ... become extremely difficult for parties to fully understand or be advised of their rights and obligations under written contracts.” Id. at 925.

Therefore, we find that the trial court erred in failing to enter a directed verdict in favor of Shore on the action for promissory estoppel. While Shore raised numerous issues on appeal, our decision on the promissory estoppel claim is dispositive of the case, making review of the other issues unnecessary.

Reversed and remanded for entry of judgment in favor of Shore and for reconsideration of Shore’s motion for attorney’s fees on the breach of contract claim.

STONE and MAY, JJ., concur.


author: OWEN, WILLIAM C., JR., Senior Judge.

text:
    John C. CARLYLE, Appellant, v. PALM BEACH POLO HOLDINGS, INC., Glenn F. Straub and Christopher Denison, Appellees.
    No. 4D02-3696.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.

      Juan C. Enjamio, Allie Hernandez Pen-nie and Patricia Acosta of Hunton & Williams, Miami, for appellant.
    Craig T. Galle, West Palm Beach, for appellees Palm Beach Polo Holdings, Inc., and Glenn F. Straub.
   OWEN, WILLIAM C., JR., Senior Judge.

Appellant, a nonresident defendant, moved to dismiss for lack of personal jurisdiction. The trial court, relying on the authority of Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002), denied the motion. Because plaintiffs have failed to show a con-nexity between their causes of action and defendant’s communications into Florida, as required by Wendt, we reverse.

This case, the third in a series of somewhat related cases, sought damages for the defendants’ alleged misconduct in connection with one of the two earlier lawsuits. A brief description of those two earlier cases will be helpful.

The first lawsuit was filed in May, 1999 in Palm Beach County (the “Palm Beach County” case) by Palm Beach Polo Holdings, Inc., (“Polo Holdings”) against Franklin A. Denison (“Frank”) and two of his companies (referred to collectively as “Broward Marine”). The complaint alleged defendants had breached the terms of a certain Asset Purchase Agreement between plaintiff and defendants which, among other things, involved a “like-kind” exchange of real property. Plaintiff sought damages and injunctive relief. Frank retained the law firm of Holland & Knight and one of its partners, James Wing, Esq., to represent him and Broward Marine.

The second lawsuit was filed in September, 1999 in Broward County (the “Bro-ward County case”) by Broward Marine and Frank (through the voluntary guardian of his property) against Polo Holdings, Glenn F. Straub, its president, and a broker, Christopher Denison (“Kit”), described as Frank’s step-son. Plaintiffs were represented by James D. Wing, Esq., and Heather Keith, Esq., of the law firm of Holland & Knight, LLP. The complaint alleged that Frank, while on medication in a Michigan hospital recovering from a stroke, had executed the Asset Purchase Agreement and closed the transaction (on behalf of himself and Broward Marine) in reliance upon certain misrepresentations made by the several defendants which they knew to be false and fraudulent. Plaintiffs sought rescission of the Asset Purchase Agreement together with damages, and filed a notice of lis pendens on the real property which had been exchanged.

The present case, the third of the trilogy, was filed in October, 1999 by Polo Holdings, Straub and Kit. Named as defendants were the firm of Holland & Knight, Mr. Wing, Ms. Keith, and three other individuals, one of whom is appellant. The complaint alleged the following: that even though Holland & Knight, Mr. Wing and Ms. Keith were formally retained by Frank, they were retained at the direction of appellant; that the defendants “cooked up” a scheme to put pressure on Polo Holdings, Straub and Kit by filing an unsupported lawsuit against them; that Holland & Knight and its lawyers, at the direction of appellant, filed the Broward County case along with the notice of lis pendens knowing the suit was baseless, all done for the improper purpose of causing the plaintiffs to incur fees and costs and to force a settlement of the Palm Beach County case. The complaint, which sought damages against all defendants, was in three counts: (1) abuse of process (filing the Broward County case); (2) slander of title (the alleged wrongful filing of notice of lis pendens); and (3) tortious interference with contract (causing Frank and Broward Marine to breach the Asset Purchase Agreement).

The complaint also alleged that appellant Carlyle, a resident of Michigan, was subject to personal jurisdiction under Florida’s long-arm statute, section 48.193 Fla. Stat., because he “operates, conducts, and carries on business ventures in the State of Florida and has agents and representatives in this State. Further, Carlyle is engaged in substantial and not isolated activities within the State of Florida, and has committed torts which have caused injury in this State.”

Appellant’s timely motion to dismiss for lack of personal jurisdiction argued he did not engage in any of the acts which would bring him within Florida’s long-arm statute, nor did he have the minimum contacts to satisfy constitutional due process requirements. The motion was supported by his affidavit in which he stated the following: he was an attorney with a firm located in Grand Haven, Michigan; his practice was limited to corporate transactional work and estate planning; he was licensed to practice only in Michigan; he had never been licensed to practice in Florida nor admitted pro hac vice in Florida state or federal courts; he had never owned any property in Florida; he had never been a resident of Florida; he had traveled to Florida for pleasure on four specific occasions; that he traveled to Florida for business on only one occasion, to meet at a former client’s home some time ago; that he had never traveled to Florida to render legal advice there; that his firm did not maintain an office or do business in Florida; that he served as legal counsel to Frank while Frank was in Michigan, but never spoke to Frank while he was in Florida and that he counseled him only on issues relating to Michigan law; that Frank’s secretary contacted him in Michigan to help coordinate Frank’s legal services in connection with the Palm Beach County case; that Frank retained Mr. Wing at Holland & Knight; that appellant’s only involvement was to analyze, in Michigan, a corporate transaction that was the subject of the Florida litigation, but he did not issue a written opinion in Florida; and that he exchanged a few telephone calls with Frank’s Florida counsel regarding Frank’s Michigan estate plan.

The plaintiffs deposed appellant on the jurisdictional issue. By and large, appellant’s deposition testimony did not dispute his affidavit in any material degree: he recalled two occasions, not one, when he had met with clients in Florida; the first had been a long time ago when he went to investigate a business that a client, not related to this litigation, was contemplating purchasing; the second occasion occurred five to ten years previously, when he attended a board of directors meeting of a non-Florida company; he met Frank for the first time in Michigan in the summer of 1999 and did an analysis, after the fact, of the Florida business transaction (in which the Broward Companies and Frank sold assets to Polo Holdings) for the purpose of determining what was sold and what consideration was received; prior to that meeting he had not represented Frank; he met with Frank six or seven more times, always in Michigan; he drafted a durable power of attorney for Frank, giving power of attorney to Thomas Burns, M.D. (another named defendant in this case); he provided a list of Florida law firms to Frank for representation in Frank’s Florida litigation and was aware that Frank had selected Holland & Knight and Wing to represent him in that litigation; he had never personally met with the Florida lawyers although he had talked to Wing and Frank on the telephone together three or four times; his only involvement with Holland & Knight’s representation of Frank, and the only extent to which he assisted Holland & Knight in the Florida litigation, was to analyze the transaction and communicate from Wing or other members of his firm to Frank, and from Frank back to Wing.

At the hearing on appellant’s motion to dismiss, the only evidence was appellant’s affidavit and his deposition. The trial court, without making specific findings other than to find there were sufficient minimum contacts with the State of Florida, stated in its order it was relying on the affidavit, the deposition and Wendt, 822 So.2d at 1252.

In conducting a de novo review of the trial court’s ruling on a motion to dismiss for lack of personal jurisdiction, the reviewing court derives the facts from the affidavits in support of the motion to dismiss, and the transcripts and records submitted in opposition to the motion to dismiss, Wendt at 1254, which in this case consist only of appellant’s affidavit and deposition and the legally sufficient jurisdictional allegations in the complaint that are not rebutted. Our review of those facts reveals insufficient support for plaintiffs’ allegations that appellant was operating, conducting, engaging in or carrying on a business in this state, or that he was engaged in substantial and not isolated activity within the state. Thus, the statutory basis for long-arm personal jurisdiction over appellant, if any, necessarily would have to be under section 48.193(1)(b), i.e., “committing a tortious act within this state.” By the trial court’s announced reliance on Wendt, it apparently came to the same conclusion.

Although appellant clearly was not physically present in Florida when the alleged torts were committed, Wendt held that “committing a tortious act” in Florida under section 48.193(l)(b) can occur through a nonresident defendant’s telephonic, electronic or written communications into Florida, the physical presence of the defendant in Florida not being required. 822 So.2d at 1260. Appellees cited Wendt to the trial court as being dispositive of the jurisdictional issue, apparently on the basis of proof of appellant having made telephonic and written communications to Frank’s Florida lawyers. That argument overlooks, however, the further holding of the Wendt court that “... the cause of action must arise from the communications ... because of the connexity requirement contained in section 48.193(1).”

In the Wendt case, as well as in each of the cases of Carida v. Holy Cross Hospital, Inc., 424 So.2d 849 (Fla. 4th DCA 1982), Silver v. Levinson, 648 So.2d 240 (Fla. 4th DCA 1994), Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716 (Fla. 4th DCA 1998), and Acquadro v. Bergeron, 778 So.2d 1034 (Fla. 4th DCA), rev. granted, 797 So.2d 584 (Fla.2001), a nonresident defendant was alleged to have made telephonic or written communications into Florida which were in and of themselves tortious; viz:, the communications were either defamatory statements or negligent legal advice to a client. In each, the cause of action which was alleged arose out of the communication, that is, the communication itself was alleged to be tor-tious. The instant case is readily distinguishable. Appellees have neither alleged nor shown evidence to establish that the communications were themselves tortious, nor that the several alleged causes of action — abuse of process, slander of title, and tortious interference — arose out of such communications. Rather, those alleged causes of action are asserted by plaintiffs to have arisen, not out of any communication from appellant into this state, but out of the filing of the lawsuit, the filing of the lis pendens, and intentionally causing Frank to breach the Asset Purchase Agreement, respectively. None of the alleged causes of action would depend upon proof of either the existence or the content of any of the communications from appellant into Florida. Appellees having failed to demonstrate that the causes of action alleged arose from the appellant’s communications into Florida, the order denying appellant’s motion to dismiss is reversed.

Appellant has also raised issues as to whether any of the alleged torts are actionable and whether the appellees have met their burden to show appellant had sufficient minimal contacts with Florida to satisfy constitutional due process requirements. Our disposition of this appeal on the connexity issue makes it unnecessary for us to decide these other issues.

REVERSED.

STEVENSON and SHAHOOD, JJ„ concur.

      . Henry Latimer, Esq., had been appointed voluntary guardian of Frank's property subsequent to the filing of the first case.

      . "Cooked up” can mean “concocted” and we have assumed that plaintiffs intend by its use to allege a conspiracy. Appellant's affidavit and deposition testimony, discussed in the body of the opinion, disavow his involvement in the Florida litigation and with Holland & Knight's representation of Frank other than having analyzed the Asset Purchase Agreement and acting as a conduit between the lawyers and Frank. Plaintiffs have not offered factual proof to show that appellant was involved in such a conspiracy.


author: PER CURIAM.

text:
    CHANNEL 68 MARINA, INC., a Florida corporation, Richard Fey and Jodi Fey, Appellants, v. Damien GILLIAMS, and Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, Appellees.
    No. 4D02-2859.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Bard D. Rockenbach of Sellers, Marion & Bachi, P.A., West Palm Beach, for appellants.
    Michael B. Davis of Paxton & Smith, P.A., West Palm Beach, for Appellee-Damien Gilliams.
   PER CURIAM.

In this appeal appellants argue that the trial court erred in modifying the final judgment without a pending motion for relief under Florida Rule of Civil Procedure 1.540. Appellee agrees and concedes error. We therefore reverse and remand this cause for the trial court to order closing on the subject property and determine the amounts of any post-judgment monies for rent, interest, and penalties that may be owed or any credits that should be set-off between the parties.

REVERSED and REMANDED.

WARNER, SHAHOOD and TAYLOR, JJ., concur.


author: THOMPSON, C.J.

text:
    Stephen SANDILLO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2782.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.
    Stephen Sandillo, Arcadia, pro se.
    No Appearance for Appellee.
   THOMPSON, C.J.

Stephen Sandillo (“Sandillo”) appeals the summary denial of his second motion filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm.

Pursuant to a negotiated plea agreement, Sandillo pleaded no contest to a charge of failure to report his address to the Department of Motor Vehicles, a third-degree felony. In exchange for his plea, the state dropped two pending charges of committing a lewd and lascivious act on or in the presence of a child, and Sandillo received a downward departure sentence. After he completed his prison sentence, he was transferred to the custody of the Department of Children and Family Services pursuant to the Jimmy Ryce Act. In his first Rule 3.850 motion, filed on 19 January 2001, Sandillo alleged that his counsel was ineffective. This motion was summarily denied in an order dated 2 May 2001. Sandillo did not appeal the order. He filed his second 3.850 motion on 20 June 2002, and it too was summarily denied. Sandillo appeals the latter order and raises two grounds in support of his appeal;

First, Sandillo argues that his plea was involuntary because the state failed to establish a factual basis for it. He acknowledges that the factual basis for the plea was the police report contained in the court file, but urges that the report was “inadequate.” Sandillo is not entitled to relief on this claim because it is plainly one that could or should have been raised in his first Rule 3.850 motion. Thus, his claim is procedurally barred under Rule 3.850(f), which prohibits successive motions. See also Moore v. State, 820 So.2d 199 (Fla.2002).

Second, Sandillo claims that he is entitled to specific performance of his plea agreement with the state, urging that his plea agreement did not contemplate civil commitment pursuant to the Jimmy Ryce Act. Sandillo relies on Harris v. State, 27 Fla. L. Weekly D946, — So.2d -, 2002 WL 731699 (Fla. 1st DCA Apr.26, 2002). Harris held that a defendant was entitled to specific performance of his plea agreement, i.e., a thirteen-month prison sentence and no civil commitment pursuant to the Jimmy Ryce Act. More recently, however the supreme court held that relief is not available on this theory:

Thus, we conclude that any bargain that a defendant may strike in a plea agreement in a criminal case would have no bearing on the subsequent involuntary civil commitment for control, care, and treatment. Consequently, Murray’s constitutional claim is without merit and he was not entitled to release from detention on this basis.

Murray v. Regier, 27 Fla. L. Weekly S1008, S1010, — So.2d -, -, 2002 WL 31728885 (Fla. Dec. 5, 2002); see also Satz v. Runion, 838 So.2d 689 (Fla. 4th DCA Mar.5, 2003).

AFFIRMED.

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

      . Sandillo had a prior sex offense conviction in Connecticut. As a convicted felon, he was required to register each change of address. See generally §§ 775.21 and 943.0435, Fla. Stat.

      . §§ 394.910-931, Fla. Stat. (1999).


text:
    SCHOOL BOARD OF ORANGE COUNTY, etc., Appellant, v. CYBER HIGH CHARTER SCHOOL INC., etc., Appellee.
    No. 5D02-356.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.

      Carl W. Hartley, Jr. and Todd K. Norman of Hartley, Wall & Norman, P.A., and Robert A. Hannah of Hannah, Estes & Ingram, P.A., Orlando, for Appellant.
    Jennifer Eden Railey and Catherine J. Livingston of Gronek & Latham, L.L.P., Orlando, for Appellee.
   THOMPSON, C.J.

The School Board of Orange County appeals a preliminary injunction. We quash the injunction because we agree with the school board that there was no showing whatsoever that the appellee was likely to prevail on the merits. See, e.g., Yardley v. Albu, 826 So.2d 467 (Fla. 5th DCA 2002).

REVERSED.

GRIFFIN and SAWAYA, JJ., concur.


author: SHARP, W., J.

text:
    David A. MENDOZA, Appellant, v. Barbara A. MENDOZA, Appellee.
    No. 5D02-2911.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.
    Kenneth D. Morse of Kenneth D. Morse, P.A., Orlando, for Appellant.
    N. Lee Sasser, Jr., of Sasser and Weber, P.A., Orlando, for Appellee.
   SHARP, W., J.

David A. Mendoza (the former husband) filed an appeal from two orders. On March 5, 2003, this court issued an order to show cause as to why the appeal should not be dismissed as untimely, giving appellant ten days to respond. Appellant has faded to respond. We dismiss the appeal because this court lacks jurisdiction to consider the issues raised on appeal.

The first order denied the former husband’s petition to transfer primary custody of his children from his former wife to himself. The order was rendered May 21, 2002. In that order, the trial court determined all custodial matters, and it awarded the former wife one hundred percent of her attorney’s fees. It reserved jurisdiction to set the amount of attorneys’ fees, in the event the parties could not agree on the sum due.

On July 30, 2002, the court rendered an order assessing the amount of $24,187.50 in attorneys’ fees and $2,295.15 in costs against Mendoza. The former husband filed a notice of appeal on August 29, 2002 directed to both orders. It was timely with regard to the July 30, 2002 order, but untimely as to the May 21, 2002 order.

After reviewing the issues briefed by the parties, we conclude that none relate to attorney-fee issues. Rather, they relate solely to custody and the conduct of the trial, which culminated in the order rendered May 21, 2002. A trial court’s reservation of jurisdiction to award of attorney’s fees and costs at a later time does not affect the finality of the judgment or order itself for purposes of appeal. Morand, M.D. v. Stoneburner, 516 So.2d 270 (Fla. 5th DCA 1987). However, a subsequent judgment awarding fees and costs is itself a final appealable order. The former husband should have timely appealed the May 21, 2002 order to preserve the issues he seeks to raise in this appeal. Accordingly, we dismiss it for lack of jurisdiction.

DISMISSED.

PALMER and ORFINGER, JJ., concur.

      . See, Casavan v. Land O’Lakes Realty, Inc. of Leesburg, 526 So.2d 215 (Fla. 5th DCA 1988);
        Morand; Janelli v. Pagano, 492 So.2d 796 (Fla. 2d DCA 1986); Miller v. Nassofer, 484 So.2d 619 (Fla. 5th DCA 1986) Altamonte Hitch and Trailer Service, Inc. v. U-Haul Company of Eastern Florida, 483 So.2d 852 (Fla. 5th DCA 1986).


author: MONACO, J.

text:
    Lee SHIPMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3070.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Patrick W. Krechowski, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

Lee Shipman appeals the sentence imposed after he was convicted of possession of cocaine. Mr. Shipman abandoned his objection in the trial court with respect to his claim based on an allegedly erroneous score sheet by failing to obtain a ruling from the court. See State v. Clay, 780 So.2d 269 (Fla. 5th DCA 2001); Latiif v. State, 711 So.2d 241 (Fla. 5th DCA 1998), remanded, 787 So.2d 834 (Fla.2001).

The State concedes that the oral pronouncement and the written sentence are in conflict in that the court orally gave Mr. Shipman credit for 199 days time served, while the written sentence credits Mr. Shipman with 189 days. Accordingly, we reverse and remand for the trial court to correct the written sentence to reflect credit for 199 days time served, and in all other respects affirm the judgment and sentence. See Johnson v. State, 652 So.2d 430 (Fla. 2d DCA 1995).

AFFIRMED, in part, and REVERSED in part.

THOMPSON, C.J., and ORFINGER, J., concur.


text:
    Thelemaque COLEUS, Appellant, v. FLORIDA COMMISSION ON HUMAN RELATIONS, et al., Appellee.
    No. 5D02-2740.
    District Court of Appeal of Florida, Fifth District.
    April 17, 2003.
    Larry H. Colleton of Larry H. Colleton, P.A., Orlando, for Appellant.

      Charles Robinson Fawsett of Shutts & Bowen, LLP, Orlando, for Appellee.
   THOMPSON, C.J.

Thelemaque Coleus appeals an order of the Florida Commission on Human Relations. We affirm.

Coleus does not contest the findings of fact made by the administrative law judge and adopted by the commission, or the legal conclusion that Coleus failed to make a prima facie case of handicap discrimination. Coleus argues that the final order of the commission should be reversed because the denial of his motion for a continuance in order to obtain counsel was a denial of due process. We affirm because nothing in the record suggests that Coleus was denied a fair hearing.

The standard of review of an order denying a continuance is abuse of discretion. See Onett v. Ahola, 780 So.2d 979 (Fla. 5th DCA 2001). Here, Coleus, who had been represented by counsel in a related worker’s compensation case, had ample notice of the hearing date and ample opportunity to obtain counsel before the date of the hearing. There is no abuse of discretion in denying a motion for a continuance to obtain counsel when the motion is made at the hearing. See MCR Funding v. CMG Funding Corp., 771 So.2d 32 (Fla. 4th DCA 2000). Finally, the record shows that the English/Haitian Creole translator was effective.

AFFIRMED.

SAWAYA and MONACO, JJ, concur.

      . See Couch v. Commission on Ethics, 617 So.2d 1119 (Fla. 5th DCA 1993) (failure to file exceptions precludes a party from arguing a version of the facts different from those approved in the final order).


author: WEBSTER, J.

text:
    Robert D. TEDDER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D02-1612.
    District Court of Appeal of Florida, First District.
    April 22, 2003.

      Petitioner pro se.
    William L. Camper, General Counsel; Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   WEBSTER, J.

By a petition for writ of certiorari, Robert Tedder, an inmate of the state correctional system, seeks review of a final order entered by the trial court. That order denied Tedder’s petition for writ of mandamus by which he challenged the Florida Parole Commission’s order revoking his conditional release. Because we conclude that the trial court’s order constituted a departure from the essential requirements of law, we grant the petition, quash the trial court’s order, and remand for further proceedings applying the correct law.

I.

The documents attached to the Parole Commission’s response to our order to show cause reflect the following. On March 26, 1997, Tedder was placed on conditional release for a term of four years and 11 months. One of the conditions of his release was that he not change his residence without securing the permission of his conditional release supervisor.

On August 9, 2001, Tedder’s conditional release supervisor signed a violation report alleging that Tedder had moved without first obtaining her permission. According to the report, the supervisor had visited Tedder’s residence on August 3, 2001. She observed that the curtains were drawn in all but one room, which “was empty.” In addition, there was a note on the door “written to the landlord that stated that all the belongings would be out by Friday.” A warrant was issued, and Tedder was arrested.

On September 28, 2001, Tedder had a hearing on the alleged violation. Following the hearing, the parole examiner found that the evidence failed to prove to her satisfaction that Tedder had, in fact, moved on August 3. Based on that finding, the examiner recommended that Tedder be reinstated to conditional release supervision. Notwithstanding the examiner’s recommendation, the Parole Commission revoked Tedder’s conditional release. It did so after reweighing the same evidence considered by the examiner, and finding that evidence sufficient to establish guilt as to the violation alleged.

Tedder then filed a petition for writ of mandamus in the circuit court. In his petition, he argued that the Parole Commission was not permitted to disregard the finding of the examiner because the finding was based on competent, substantial evidence. The trial court denied the petition, concluding that sufficient evidence had been presented at the revocation hearing to support the Parole Commission’s decision to revoke Tedder’s conditional release.

II.

“Although the Florida Parole Commission is an administrative agency, a special provision of the Administrative Procedure Act [§ 120.81(3)(a), Fla. Stat. (2002)] exempts inmate orders from review by appeal.” Sheley v. Fla. Parole Comm’n, 703 So.2d 1202, 1205 (Fla. 1st DCA 1997) (criminal division en banc), approved 720 So.2d 216 (Fla.1998). In cases such as this, a petition filed in the circuit court, seeking a writ of mandamus, has become the accepted method by which one may obtain review of the Parole Commission’s decision. Id. (citing cases). In such a case, “a petition for writ of mandamus in the circuit court takes the place of an appeal.” Id.

Review of a circuit court’s ruling in such a case may be sought by a petition for writ of certiorari. Id. at 1206. However, “[t]he scope of our review on such a petition for certiorari is limited to determining whether the trial court (1) afforded due process and (2) observed the essential requirements of law.” Randall v. Fla. Dep’t of Law Enforcement, 791 So.2d 1238, 1240 (Fla. 1st DCA 2001) (citing Sheley), review granted, 817 So.2d 849 (Fla.2002). A ruling constitutes a departure from “the essential requirements of law” when it amounts to “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). When considering such a petition for writ of certiorari, the court has only two options — it may either deny the petition or grant it, and quash the order at which the petition is directed. It may not enter judgment on the merits, or direct the lower tribunal to enter any particular order. See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 843-44 (Fla.2001) (citing cases). Assessing the trial court’s order according to these rules, we conclude that it constitutes a departure from the essential requirements of law, and that we are, therefore, obliged to quash it.

III.

In his petition seeking a writ of mandamus in the trial court, Tedder argued that the Parole Commission was not permitted to disregard the finding of the parole examiner that he had not moved on August 3, as alleged in the violation report, because that finding was based on competent, substantial evidence. The trial court failed to address that argument. Instead, it denied the petition based on its conclusion that sufficient evidence had been presented at the revocation hearing to support the Parole Commission’s decision to revoke Tedder’s conditional release. In doing so, the trial court departed from the essential requirements of law.

It is a basic tenet of administrative law (subject to limited exceptions not pertinent here) that an agency may not reject a hearing officer’s finding of fact that is supported by competent, substantial evidence. In what is perhaps the leading case on the topic, we said:

Factual issues susceptible of ordinary methods of proof that are not infused with policy considerations are the prerogative of the hearing officer as the finder of fact.... It is the hearing officer’s function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.... If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer’s role to decide the issue one way or the other. The agency may not reject the hearing officer’s finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.

Heifetz v. Dep’t of Bus. Reg., 475 So.2d 1277, 1281 (Fla. 1st DCA 1985) (citations omitted). Accord Gross v. Dep’t of Health, 819 So.2d 997, 1001 (Fla. 5th DCA 2002) (noting that, “if there is competent substantial evidence to support the findings of fact in the record, the Florida courts ... have consistently held that the agency may not reject them, modify them, substitute its findings, or make new findings”); Asphalt Pavers, Inc. v. State Dep’t of Transp., 602 So.2d 558, 561 (Fla. 1st DCA 1992); Greseth v. Dep’t of Health & Rehab. Servs., 573 So.2d 1004, 1006-07 (Fla. 4th DCA 1991) (noting that, “where reasonable people could differ as to whether the employee was negligent in her duties as charged, [the agency] was bound by the hearing officer’s reasonable inference of non-negligence based on the conflicting inferences arising from the evidence”); United Health, Inc. v. Dep’t of Health & Rehab. Servs., 511 So.2d 684, 685-86 (Fla. 1st DCA 1987); Forehand v. Sch. Bd. of Washington County, 481 So.2d 953, 955-56 (Fla. 1st DCA 1986) (noting that “[t]he law in Florida is well-established that an agency may not reject or modify the findings of fact of the hearing officer unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent, substantial evidence”).

In this case, it is apparent that the Parole Commission merely reweighed the evidence considered by the examiner, finding that evidence sufficient to satisfy it that Tedder had moved on August 3, as alleged. Because it is also apparent that the examiner’s finding to the contrary was supported by competent, substantial evidence, the Parole Commission was not permitted to disregard the examiner’s finding in favor of its own, and to revoke Tedder’s conditional release on that basis.

In denying Tedder’s petition for a writ of mandamus, the trial court did not follow the well-established law set out above. Instead, it focused exclusively on the Parole Commission’s decision, concluding that it was supported by competent, substantial evidence. This, too, constituted a departure from the essential requirements of law because it is well-settled that whether the agency’s findings are supported by competent, substantial evidence is irrelevant as long as those of the hearing officer are as well. See Gross, 819 So.2d at 1003 (“if the court concludes that both the administrative law judge’s findings and the agency’s substituted or modified findings are supported by substantial competent evidence, the findings made by the administrative law judge must prevail and the agency’s order rejecting or modifying them must be reversed”); Westchester Gen. Hosp. v. Dep’t of Health & Rehab. Servs., 419 So.2d 705, 708 (Fla. 1st DCA 1982) (when both the hearing officer’s findings and those of the agency are supported by competent, substantial evidence, the former must prevail).

IV.

Based on the foregoing analysis, we conclude that the trial court departed from the essential requirements of law when it denied Tedder’s petition for a writ of mandamus seeking reinstatement to conditional release status. As explained above, the relief we may grant is limited to quashing the trial court’s order, which we now do. It appears that, but for the actions of the Parole Commission, Tedder’s conditional release term would have ended more than a year ago. Accordingly, on remand, we direct the trial court to expedite its reconsideration of Tedder’s petition.

ALLEN, C.J. and BROWNING, J., concur.


author: CASANUEVA, Judge.

text:
    Marilyn Holmes HERNDON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3204.
    District Court of Appeal of Florida, Second District.
    April 23, 2003.
   CASANUEVA, Judge.

Marilyn Holmes Herndon challenges the trial court’s order dismissing her motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In her motion, Herndon alleged that she pleaded to trafficking in methamphetamine. She further alleged that the seven-year mandatory minimum term of imprisonment imposed by the trial court is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In 2002, the legislature enacted chapters 02-208, 02-209, 02-210, 02-211 and 02-212, Laws of Florida, which reenacted the provisions originally contained in chapter 99-188. The legislature intended that the reenactment be retroactive to July 1, 1999. See Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). However, in Green, this court held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Herndon alleged that she committed the offense of trafficking in methamphetamine within the Taylor window. See Green, 839 So.2d at 750 n. 1. She has therefore presented a facially sufficient claim. See Sims, 838 So.2d 658. The trial court dismissed Herndon’s motion without prejudice to Herndon’s refiling it following review of Taylor in the Florida Supreme Court. However, on May 29, 2002, prior to the issuance of the trial court’s order, the State filed a voluntary dismissal of its petition for review. See State v. Taylor, 821 So.2d 302 (Fla.2002) (table). We therefore reverse the order of the trial court and remand for further consideration of Herndon’s claim. If Herndon is correct that the trial court imposed a seven-year mandatory minimum for trafficking in methamphetamine where the offense was committed within the Taylor window, the trial court shall resentence her under the 1997 version of the statute. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

NORTHCUTT and STRINGER, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    A.J.V., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-338.
    District Court of Appeal of Florida, Second District.
    April 23, 2003.

      James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

The circuit court adjudicated A.J.V. delinquent for committing an aggravated battery. The Department of Juvenile Justice recommended he be placed on probation, but the court disregarded that recommendation and placed him in a high-risk, residential program. We agree with A.J.V. that the evidence did not support the court’s decision. See C.C.B. v. State, 828 So.2d 429, 431 (Fla. 1st DCA 2002) (explaining that the applicable standard of review is whether the circuit court’s findings underpinning its decision to disregard the D.J.J.’s recommended placement are supported by competent, substantial evidence). We reverse and remand for the circuit court to reconsider the placement.

Section 985.23(3)(c), Florida Statutes (2001), provides:

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons which establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department....

The circuit court gave six reasons for departing from the D.J.J.’s recommendation: (1) youth needs structured program; (2) substantial likelihood to reoffend; (3) violent charge, struck victim with a baseball bat; (4) serious anger management problem; (5) substantial restitution; and (6) public safety.

Concerning reasons (1), (2), and (5), the evidence contravened the court’s findings. The D.J.J. report stated that A.J.V. was doing well at home; nothing contradicted the report or showed he needed a more structured environment. The evidence suggested A.J.V. was not likely to reof-fend. His previous record consisted of a possession of marijuana charge and another charge that was not prosecuted. Neither was a crime of violence. He had been released from detention pending his disposition hearing and had not committed any new offenses. Nor had he been in contact with the victim since the date of the offense. The substantial restitution owed mitigated against detention in a high risk facility. A.J.V. had a part-time job and would'have been able to begin paying restitution if he had been placed on probation.

Reason (3), that A.J.V. committed a violent crime, while supported by the evidence, concerns the nature of the charge itself. Clearly this was a serious offense; A.J.V. attacked his mother’s former boyfriend with a baseball bat. But we have held that the “nature of the charge” is not a sufficient reason to depart from the D.J.J.’s recommendation. K. M. T. v. State, 695 So.2d 1309, 1310 (Fla. 2d DCA 1997); see also C.C.B., 828 So.2d at 431 (holding that the court’s decision to disregard the D.J.J.’s recommendation based on the nature of the charge was insufficient); cf. K.N.M. v. State, 793 So.2d 1195 (Fla. 5th DCA 2001) (reversing court’s departure from D.J.J.’s recommendation in case involving aggravated battery based on reason that the juvenile lacked remorse). Moreover, no evidence except the nature of the charge supported reason (4), that A.J.V. had an anger management problem.

Again, while the nature of the charge may have led the court to be concerned about the public’s safety, nothing else supported a finding that A.J.V. was a danger to the public. His was not a random offense; the victim was his mother’s former boyfriend, and some evidence intimated that problems existed in the relationship. A.J.V.’s mother testified that he followed her rules. The court did not explain why this child would be a danger to the public, such that commitment was required. See P.R. v. State, 782 So.2d 911, 913 (Fla. 5th DCA 2001) (stating that the court must “reference the characteristics of the restrictiveness level vis-a-vis the needs of the child”); S.L.K v. State, 776 So.2d 1062, 1064 (Fla. 4th DCA 2001).

We reverse the circuit court’s décision to commit A.J.V. to a high-risk residential program because it was not supported by competent, substantial evidence. We remand for a new disposition hearing.

DAVIS, J., and THREADGILL, EDWARD F. (Senior) Judge, Concur.


author: FULMER, Judge.

text:
    Beverly TUCKER, Appellant, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 2D01-5469.
    District Court of Appeal of Florida, Second District.
    April 23, 2003.

      Elihu H. Berman, Clearwater, for Appellant.
    Charles W. Hall of Fowler, White, Boggs, Banker, P.A., St. Petersburg and Charles Tyler Cone of Fowler, White, Boggs, Banker, P.A., Tampa, co-counsel for Appellee.
   FULMER, Judge.

Beverly Tucker appeals a final judgment in favor of her uninsured motorist carrier, Allstate Insurance Company, in her suit to recover damages arising out of a 1994 automobile accident between Tucker and Thomas Savopoulos. Because we agree with Tucker’s contention that the trial court erred in allowing Allstate to introduce collateral impeachment evidence, we reverse for a new trial.

Tucker argues that the trial court erred in allowing Allstate to cross-examine her with evidence that in March 2000 she gave her employer the 1994 accident report, after she had altered the date to reflect a recent accident, and used the report to falsely explain her absence from work. We agree that the March 2000 incident was erroneously admitted because it had no relevance to the issues being tried and served only to impeach Tucker’s credibility and reflect poorly on her character. See §§ 90.608-.610, Fla. Stat. (2001); Markowski v. Attel Bank Int'l Ltd., 758 So.2d 1283, 1284 (Fla. 3d DCA 2000) (holding that in suit by bank to collect on promissory note, it was error for the trial court to admit evidence of “incidents [which] served only to impeach [the defendant’s] credibility and character in a manner not permitted by Florida’s Evidence Code”); DeSantis v. Acevedo, 528 So.2d 461, 462 (Fla. 3d DCA 1988) (holding that in negligence action against roofing company, it was error to permit cross-examination of plaintiff concerning incidents of misconduct during plaintiffs employment with police department that were only marginally, if at all, relevant to facts of case).

Allstate argues that Tucker has not preserved this issue for review. Tucker raised and unsuccessfully argued the issue in a pretrial motion in limine. During opening statements, Allstate’s counsel began discussing the March 2000 incident. Tucker’s counsel objected, to which the trial court responded, “The Court’s prior ruling will stand.” Under these circumstances, we agree with Tucker that the issue was adequately preserved. See Webb v. Priest, 413 So.2d 43, 46 (Fla. 3d DCA 1982) (stating that where issue was raised both pretrial and in the early stage of trial, plaintiff was not required “to renew objection each time in what would have been an obviously futile gesture”). Finally, we reject Allstate’s alternative assertion that the error was harmless.

Reversed and remanded.

SILBERMAN and COVINGTON, JJ., Concur.

      . Thomas Savopoulos, an original defendant, was dismissed from the suit prior to trial.

      . We find no merit in Tucker’s second issue.


author: COVINGTON, Judge.

text:
    Karyn Lee BOND, Appellant, v. Michael William BOND, Appellee.
    No. 2D02-5668.
    District Court of Appeal of Florida, Second District.
    April 23, 2003.
    Karyn Lee Bond, pro se.
    Michael W. Bond, pro se.
   COVINGTON, Judge.

Karyn Lee Bond appeals the denial of her oral motion to transfer venue because of inconvenience of the parties. Because she did not file a sworn, written motion with supporting affidavits, we affirm the trial court’s denial of her motion. A motion based on section 47.122, Florida Statutes (2002), must be accompanied by sworn proof. Breen v. Huntley Jiffy Stores, Inc., 610 So.2d 29, 30 (Fla. 2d DCA 1992). Karyn Lee Bond may properly raise this issue again in the trial court. See id.

Affirmed.

SALCINES and KELLY, JJ., Concur.


author: DAVIS, Judge.

text:
    ALLSTATE INSURANCE COMPANY, INC., Appellant/Cross-Appellee, v. Samuel CAMPBELL and Margaret Campbell, Appellees/Cross-Appellants.
    No. 2D01-4618.
    District Court of Appeal of Florida, Second District.
    April 23, 2003.

      Robert D. Grode, II, and Sidney M. Crawford, of Sidney M. Crawford, P.A., Lakeland, for AppellanVCross-Appellee.
    Michael V. Laurato, of Austin & Laura-to, Tampa, and Raymond T. Elligett, Jr., and Amy S. Farrior, of Schropp, Buell & Elligett, P.A., Tampa, for Appellees/Cross-Appellants.
   DAVIS, Judge.

Allstate Insurance Company, Inc., challenges the final judgment finding in favor of Samuel Campbell and Margaret Campbell and awarding each of them separate damage amounts for injuries they suffered in a motor vehicle accident. The Camp-bells’ claims were based on an underin-sured motorist policy issued to them by Allstate. Allstate argues that the trial court erred in refusing to offset the Camp-bells’ individual jury verdicts by the amount of the recovery each of them received from the tortfeasor. The Camp-bells cross-appeal the judgment, arguing that the verdicts were inadequate as the jury’s failure to award any noneconomic damages was contrary to the evidence presented at trial. Because we agree with both parties, we reverse the final judgment and the damages awards and remand for a new trial on past noneconomic damages.

The Campbells were involved in an accident in which Todd Bosselman negligently ran a red light and struck the Campbells’ vehicle. Bosselmaris liability coverage was limited to $10,000 per person and $20,000 per accident. After both Mr. and Mrs. Campbell settled with Bosselmaris carrier for policy limits, they each proceeded to trial against Allstate on the underin-sured motorist policy, requesting both economic and noneconomic damages. Prior to trial, the parties agreed that the trial court would credit personal injury protection benefits and automobile medical payment benefits against the verdict posttrial. The trial court granted the Campbells’ pretrial motion in limine to preclude admission of the Bosselman settlement.

At trial, the Campbells presented evidence that each had suffered permanent injuries, that each had experienced pain and inconvenience, and that each had incurred hospital and other medical expenses. The trial court instructed the jury regarding both economic and noneconomic damages. Separate verdict forms for each of the Campbells were submitted to the jury. Each verdict form asked the jury to make specific findings as to the damages to be awarded for past and future economic damages (medical expenses and lost earnings), past and future noneconomic damages (pain and suffering), and past and future loss of consortium.

During closing argument, the Camp-bells’ attorney invited the jury to concentrate on the needed medical expenses and to give less attention to the issues of pain and suffering and loss of consortium. The jury found that Mr. and Mrs. Campbell each suffered permanent injuries and awarded damages to each of them for both past and future economic losses (medical expenses and lost earnings). However, for each of the Campbells, the jury entered a zero verdict for past noneconomic losses and loss of consortium, as well as for future noneconomic losses and loss of consortium.

Following the trial, after the trial court set off the personal injury protection benefits and medical payment benefits previously received by the Campbells, the court refused to set off the $10,000 that each had received from the Bosselman settlement, finding that the language of section 627.727(1), Florida Statutes (1999), precluded the setoff. The trial court erred in this statutory interpretation. The relevant statutory language reads: “The amount of coverage available under this section shall not be reduced by a setoff against any coverage, including liability insurance.” Id. (emphasis added). This portion of the statute deals not with post-trial setoff, however, but with the requirement that underinsured coverage must be offered to a person buying liability coverage and that the underinsured coverage offered must not be reduced by the amount of other liability insurance. Accordingly, the language in this section refers to what must be offered or made available to the purchaser; it has nothing to do with posttrial setoff.

The section that does provide for posttrial setoff is section 627.727(6)(t), which states: “The underinsured motorist insurer is entitled to a credit against total damages in the amount of the limits of the underinsured motorist’s liability policy in all cases to which this subsection applies ....” § 627.727(6)(c), Fla. Stat. (1999). However, the underinsured motorist carrier is only entitled to this credit if the underinsured award duplicates the benefits recovered from the tortfeasor’s liability insurance. State Farm, Mut. Auto. Ins. Co. v. Vecchio, 744 So.2d 570, 571 (Fla. 2d DCA 1999); Galante v. USAA Cas. Ins. Co., 695 So.2d 456 (Fla. 4th DCA 1997).

The Campbells argue that the credits should not apply here because the underin-sured jury award, which included only economic damages, did not duplicate the benefits contained in the Bosselman settlement, which represented total damages, including noneconomic and economic damages. The record refutes the Campbells’ argument, however, because the jury award does represent the total damages. The Campbells presented the jury with evidence of both noneconomic and economic damages, the jury was instructed regarding both noneconomic and economic damages, and the verdict forms required the jury to respond to the issues of both non-economic and economic damages. Finally, the jury was instructed to find the total damages incurred by each of the Camp-bells, including both economic and noneco-nomic damages. Because the underin-sured jury award here did represent the total damages, it duplicated the benefits the Campbells received from the tortfeasor and the credit provision of section 627.727(6)(c) applies. Accordingly, the trial court erred in failing to offset the under-insured verdict amounts by the proceeds of the Bosselman settlement.

Finally, in the Campbells’ cross-appeal they argue that the return of a zero award on the issue of noneconomic damages is contrary to the weight of the evidence. Allstate counters that the jury was properly charged, that the Campbells’ attorney’s statements in his closing argument led to this verdict, and that the jury’s decision should be accepted as a proper evaluation of the evidence.

While we agree with the Camp-bells that the record supports an award of some measure of past noneconomic damages, we are not persuaded that future noneconomic damages must be included in such an award. The evidence supports the jury’s finding that the Campbells each sustained permanent injuries and incurred significant medical expenses. Even the attorney for Allstate admitted that the Campbells had been hurt. Moreover, contrary to Allstate’s argument, the closing argument of the Campbells’ attorney did not amount to a waiver of their claims for noneconomic damages. Although these factors would support an award of past noneconomic damages, they do not necessarily require an award of future noneco-nomic damages. The distinction between past noneconomic damages and future non-economic damages was best explained by the Florida Supreme Court when it quoted with approval the following language taken from Judge Klein’s dissent in Allstate Insurance Co. v. Manasse, 681 So.2d 779 (Fla. 4th DCA 1996), quashed, 707 So.2d 1110 (Fla.1998):

Future damages are, by nature, less certain than past damages. A jury knows for a fact that a plaintiff has incurred past medical expenses, and, when it finds those expenses to have been caused by the accident, there is generally something wrong when it awards nothing for past pain and suffering. The need for future medical expenses is often in dispute, however, as it was here. It does not necessarily therefore follow, in my opinion, that an award of future medical expenses requires an award of noneconomic damages.

Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111-12 (Fla.1998).

In this case, the jury entered verdicts for both past and future economic damages, although the future economic damages awarded were nominal. Since the jury found that the Campbells suffered injuries that required treatment by medical care providers as evidenced by the award of past medical costs, the jury’s failure to award even nominal past noneco-nomic damages was not supported by the weight of the evidence and must be reversed. Mason v. Dist. Bd. of Tr. of Broward Cmty. Coll, 644 So.2d 160 (Fla. 4th DCA 1994). However, as in Manasse, the need for future economic damages was disputed and the jury awarded only minimal future economic damages. Therefore, the jury’s failure to award future noneco-nomic damages was supported by the evidence and is affirmed. See Manasse, 707 So.2d 1110.

We accordingly reverse and remand for a new trial on past noneconomic damages only for each of the Campbells. Upon a determination of those amounts, the trial court shall credit Allstate with a $10,000 offset against each of the Campbells’ total damages award pursuant to section 627.727(6)(c).

Reversed and remanded.

ALTENBERND, C.J., and CASANUEVA, J., Concur.

      . The future economic damages awarded here were $300 per year. The future economic damages awarded in Manasse were only $250 per year.


author: HAZOURI, J.

text:
    Saed MASHNI, Appellant, v. LaSALLE PARTNERS MANAGEMENT LIMITED, d/b/a Pompano Square Mall and Southeast Service Corporation, d/b/a Service Solutions, Appellees.
    No. 4D01-4476.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.

      Thomas J. Morgan, Jr. of Thomas J. Morgan, P.A., Coconut Grove, for appellant.
    Richard G. Rosenblum and Damian H. Albert of Walton Lantaff Schroeder & Carson, Fort Lauderdale, for appellees.
   HAZOURI, J.

Saed Mashni (Mashni) was a plaintiff in a slip and fall case arising from an incident which occurred in a restroom located in the Pompano Square Mall. Mashni filed suit against LaSalle Partners Management Limited d/b/a Pompano Square Mall (La-Salle), the owner and operator of the mall, and Southeast Service Corporation d/b/a SSC Service Solutions (Southeast), a corporation contracted to provide janitorial services for the mall. The trial court entered a summary judgment in favor of both LaSalle and Southeast and ruled there was no evidence as to actual or constructive notice on the part of the defendants and that Mashni failed to exercise due care in light of an open and obvious danger. Mashni appeals the summary final judgment. We reverse.

Mashni was shopping in the Pompano Square Mall on July 11, 1999. As he entered a restroom in the mall, he noticed that there was a puddle of water on floor. In fact, he testified in a pretrial deposition that he almost slipped in the puddle of water as he entered. He used the restroom and as he was leaving, he slipped and fell in another puddle of water which was approximately three steps away from where he had noticed the first puddle. In his deposition, Mashni testified that the restroom was dark, that he did not know how long the water had been on the floor, and that he did not notice whether there were any track marks or foot prints in the water. He did, however, notice that the water was dirty and stated that some of the dirt stuck to his hand because he had a black substance on his hands after his fall.

In their motion for summary judgment, LaSalle and Southeast alleged that Mash-ni’s testimony established that he was aware of the water on the restroom floor prior to the accident and, therefore, it was open and obvious; thereby relieving them of any liability. The defendants also argued that Mashni presented no evidence that either defendant had actual or constructive notice of the dangerous condition.

The standard of review when reviewing the entry of summary judgment is de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party. See Bruckner v. City of Dania Beach, 823 So.2d 167, 170 (Fla. 4th DCA 2002). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it. Id.

Mashni presented evidence that when he entered the restroom, he noticed that it was “sloppy.” After he fell, he saw black spots in the water and on his hands. Even though Mashni could not testify to how long the water had been on the floor or where it came from, he contends that the evidence creates a genuine issue of fact as to whether the defendants had constructive notice of the hazardous condition. We agree.

Circumstantial evidence can be sufficient to show that a dangerous condition existed for such a length of time so as to charge the store owner with constructive knowledge. See Camina v. Parliament Ins. Co., 417 So.2d 1093 (Fla. 3d DCA 1982). In Camina, the plaintiff slipped on some thawed ice cream on the floor. Id. at 1094. The third district held that the evidence that the ice cream was thawed, dirty, and splattered, although susceptible of the inference that the plaintiffs slip and fall had created the condition, was equally susceptible of the inference that the condition existed beforehand. Therefore, the issue of constructive notice should have been decided by the jury. In the instant case, Mashni testified that after he slipped, he noticed the water was dirty. Even though the dirt could have been created by Mashni’s fall, under the reasoning in Ca-mina, the fact that the water was dirty could also create an inference that it was on the floor for a period of time sufficient to create constructive notice. See also Colon v. Outback Steakhouse of Fla., Inc., 721 So.2d 769, 771 (Fla. 3d DCA 1998) (holding that evidence that a potato had a dirty and “mashed” appearance was sufficient evidence to create an inference that it had gone undetected on the floor for a sufficient period of time to place the owner on constructive notice).

In Lynch v. Target Stores, 790 So.2d 1193 (Fla. 4th DCA 2001), this court reversed a summary judgment based on the issue of constructive knowledge. The plaintiff had slipped on a creamy substance on the floor of a store. Her affidavit stated that she had been in that area for approximately fifteen minutes before she fell and, during that time, she did not see any employees enter or exit the area. This court held that the facts, viewed most favorably to the plaintiff, supported a reasonable inference that the substance had been on the floor for a minimum of fifteen minutes and that it was up to the jury to determine whether this was sufficient time to find that the store owner should have been aware of the condition. Id. at 1194. In the instant case, Mashni testified that he was in the restroom for approximately three to four minutes before he fell. After that, he walked outside of the restroom and waited for an additional two to three minutes for his sister to exit the ladies restroom. His sister then went to call security. The security guards arrived and then called maintenance. Until the security guards called the maintenance man, no mall employees had entered the restroom to check its condition. Mashni contends that pursuant to Lynch, the trial court should have submitted the issue to the jury to determine whether this was sufficient time to find that the defendants should have been aware of the condition. We agree.

At the time the summary final judgment was entered, the trial court did not have the benefit of the Florida Supreme Court’s holding in Owens v. Publix Supermarkets, Inc., 802 So.2d 315 (Fla.2001). In Owens, the Court recognized that courts have struggled to determine what constitutes sufficient evidence to create a jury question on the issue of constructive notice. The Court attempted to remedy this confusion by creating a presumption to apply in cases with circumstances similar to the instant case where there is no direct evidence establishing how long the condition was present. The Court held that the existence of a foreign substance on the floor of a business premises that causes a customer to fall and be injured creates a rebuttable presumption that the premises owner did not maintain the premises in a reasonably safe condition. Id. at 331. Therefore, once the plaintiff establishes that he or she fell as a result of that transitory foreign substance, the burden shifts to the defendant to produce evidence that it exercised reasonable care under the circumstances.

The Court stated that this holding (shifting the burden) shall be applicable to all cases commenced after the decision became final and those cases already commenced, but in which trial has not yet begun. Id. at 331. The instant case was commenced on July 20, 2000, prior to Owens becoming final on December 14, 2001. However, a trial never began because the trial court entered a summary judgment on October 5, 2001. Therefore, Owens applies to the instant case and provides additional basis for reversal of the summary judgment. See D'Aquisto v. Costco Wholesale Corp., 816 So.2d 1231 (Fla. 5th DCA 2002).

We note that while the instant case has been on appeal, the Legislature passed chapter 2002-285 relating to negligence actions involving transitory foreign objects or substances and enacted section 768.0710. By its terms, chapter 2002-285 became effective May 30, 2002, and applies to all causes of action pending on or after that date. For the reasons stated by the Florida Supreme Court in Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256 (Fla.2002), we decline to address the effect of this legislation.

The defendants, as business owners, acknowledge that they owed a duty to Mash-ni to use reasonable care in maintaining the premises in a reasonably safe condition and to give Mashni timely notice and warning of latent and concealed perils known to the defendants or which by the exercise of due care should have been known. However, the defendants argue that an owner- is entitled to assume that the invitee will perceive that which would be obvious to the invitee through the normal use of his senses, and is not required to give the invitee notice of an obvious danger. The trial court found that the water that Mashni slipped on was open and obvious and, therefore, the defendants could not be held liable. Masnhi contends that the trial court erred in entering summary judgment because the evidence does not establish that the condition was open and obvious and, even if it was, the defendants still owed Mashni a duty to maintain the property in a reasonably safe condition. We agree.

Mashni testified that when he entered the restroom it was dark and that he almost slipped on some water on the floor by the door. As he was leaving, he did in fact shp on some water that was approximately three steps away from where he had originally seen the first puddle of water. Mashni contends that a genuine issue of material fact exists as to whether the water was open and obvious. Defendants argue that since Mashni admits that he was aware that there was water on the floor, that the condition was open and obvious. However, simply because a hazardous condition is open and obvious does not necessarily mean that the owners’ duty to maintain the property in a reasonably safe condition is discharged. See Kersul v. Boca Raton Cmty. Hosp., 711 So.2d 234 (Fla. 4th DCA 1998).

In Ashcroft v. Colder Race Course, Inc., 492 So.2d 1309 (Fla.1986), our supreme court recognized that generally landowners/occupiers have no obligation to protect the invitee against dangers which are known to him, or which are so obvious and apparent that he may reasonably be expected to discover them. However, the Court held that this is not a fixed rule. A court must take into account all the circumstances. For example:

In some jurisdictions, it is also true where the condition is one, such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, when, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it. The jury in such cases may be permitted to find that obviousness, warning or even knowledge is not enough.

Id. at 1311.

In the instant case, even though the trial court found that the water was open and obvious, there still remains a factual issue regarding whether or not the defendants should have anticipated that shoppers in the mall wishing to use the restroom may be harmed. Also, the jury could find that even if Mashni was aware of the water, the condition was such that it could not be negotiated with reasonable safety. See Jauma v. City of Hialeah, 758 So.2d 696 (Fla. 3d DCA 2000), review denied, 786 So.2d 1184 (Fla.2001).

In Jauma, the plaintiff slipped and fell due to a buildup of water on the street outside his house and sued the city for negligence. The third district applied section 343A of the Second Restatement of Torts and held that:

The open and obvious nature of the hazard does not provide an avenue of relief for the City because the Jaumas and the other residents of the street had no other means of entry and egress from their homes. In those circumstances, the City as landowner was aware that the residents would have to encounter the danger notwithstanding that the flooding was open and obvious.

Id. at 698.

In the instant case, shoppers in the mall had to walk through the water in order to use the restroom. Even if the water was open and obvious, the defendants should have been aware that shoppers would encounter the danger. The fact that Mashni was aware of the water does not bar his claim, but is relevant to the determination of comparative negligence. See Lisanti v. City of Port Richey, 787 So.2d 36, 37 (Fla. 2d DCA 2001).

We reverse the summary judgment and remand for further proceedings.

REVERSED.

WARNER and STEVENSON, JJ., concur.

      . The Court stated:
      We decline in this opinion to address the effect, validity, or applicability of this legislation because those issues are not before us, except to note that, on remand, this legislation and its effect on our decision in Owens will necessarily be issues to be considered in this case. See Markowitz, 826 So.2d at 262; Cf. Memorial Hospital-West Volusia, Inc. v. News-Journal Corp., 729 So.2d 373, 384 (Fla.1999) (analysis of a newly enacted statute should "follow usual procedures, with the challenge initially proceeding in the circuit court”).

      . § 343A Known or Obvious Dangers provides as follows:.
      (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
      (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.
      Restatement (Second) of Torts § 343A (1965).


text:
    The STATE of Florida, Appellant, v. Nashawn P. JACKSON, Appellee.
    No. 3D02-1900.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before JORGENSON, LEVY, and GERSTEN, JJ.
   PER CURIAM.

The State of Florida appeals the trial court’s Order Granting Defendant’s Motion for Judicial Enforcement of Plea Agreement or Vacation of Plea. We affirm.

On July 26, 1993, the Defendant, Na-shawn Jackson, entered a plea of guilty to two counts of sexual battery upon a person less than 12 years of age. Under the terms of the plea agreement, the Defendant pled guilty in exchange for a seven-year term of imprisonment, followed by ten years of probation. The agreement also required the Defendant to complete a Mentally Disordered Sex Offender (MDSO) program. The Defendant was released from state prison on November 26, 1996, after receiving approximately 44 months of gain time and serving 40 months of his sentence. On August 7, 2001, an Affidavit of Violation of Probation was filed, alleging that the Defendant had violated the terms of his probation by committing a battery on or about July 27, 2001. On November 28, 2001, the Defendant admitted to the violation of probation in exchange for a revocation of probation and a sentence of 20 months imprisonment with 131 days of credit for time served.

On June 7, 2002, the Defendant filed a Motion for Judicial Enforcement of Negotiated Plea Agreement, or Alternatively, for Vacation of Said Plea Agreement, which stated that the Department of Corrections reinstated the 44 months originally credited as gain time because he returned to state prison following the judgment and sentence for the probation violation. The Defendant asked the trial court to resentence him so as to give full effect to the terms of the plea agreement or, alternatively, to allow him to withdraw his guilty plea. The trial court granted the motion and stated that it would schedule a resentencing hearing. This appeal follows.

The trial court properly granted the Defendant’s Motion for Judicial Enforcement of Plea Agreement or Vacation of Plea and vacated the revocation of probation because the forfeiture of the Defendant’s gain time by the Department of Corrections thwarted the intent of the negotiated plea agreement. See Williams v. Department of Corrections, 734 So.2d 1132, 1133 (Fla. 3d DCA 1999); see also Dellahoy v. State, 816 So.2d 1253 (Fla. 5th DCA 2002); Wallace v. State, 793 So.2d 78 (Fla. 2d DCA 2001). Although there may be a suggestion inherent in the trial court’s Order that the trial court had the authority to countermand the Department of Corrections’ forfeiture of gain time, it is clear that the trial court cannot, and did not, take any action which had the effect of rescinding the forfeiture of gain time.

Affirmed.

      . "The [Department of Corrections’] forfeiture of the gain time cannot be countermanded by the court, but neither can that forfeiture thwart the plea bargain.” Dellahoy, 816 So.2d at 1253.