author: PER CURIAM.

text:
    Alba L. PENA, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D02-2240.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.
    Rehearing Denied Oct. 1, 2003.
    Thomas Eugene Zamorano, for appellant.
    Sandra A. Piligian, Assistant District Legal Counsel, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

Alba L. Pena (“Pena”) appeals from the Department of Children and Family Services’ (“DCF”) order determining her household to be eligible for only $10 in food stamp benefits. We reverse because the DCF erred in prorating the shelter expenses, thus unnecessarily reducing appellants’ food stamp benefits.

Pena applied for food stamp benefits for her 6-year-old disabled son, Richard Sorto (“Richard”). Although Richard qualified for food stamp benefits as a United States citizen, Pena is a Honduran national who is ineligible for federal food stamps due to her immigration status.

As a result of his disability, Richard receives $365 in monthly supplemental security income and $250 per month in child support. Pena has no income, yet the DCF bases the total household income on the child’s income alone. Pena and Richard have monthly household expenses including a $475 rental obligation and separate utility expenses.

In assessing Pena’s application for food stamps, the DCF treated the total household income as the income of Richard alone and prorated the $475.00 rental obligation, reducing it to $237.50. The standard utility allowance of $198.00 was also prorated and reduced to $99.00.

Since the DCF’s calculation was based on prorated shelter expenses, it found Pena’s household to be eligible for only $10 in food stamp benefits. Pena appealed this decision to the DCF’s Office of Appeal Hearings.

At the DCF’s appeal hearing, a DCF analyst testified that the DCF prorated the household expenses because Pena was not an eligible member. The DCF concluded that the Pena household should receive $10 in food stamp benefits. Pena then appealed to this Court.

Pena first argues that the DCF erred in prorating the standard utility allowance. The DCF correctly concedes Pena is entitled to relief on this point. See 7 C.F.R. § 273.9(d)(6)(iii)(F).

Pena further claims error in the DCF’s decision to prorate the rental expenses. She asserts that federal food stamp policy prohibits prorating rental expenses where all household income belongs to the eligible member. Thus, Richard, the eligible citizen child, claims entitlement to deduct the full amount of the rental expense, even when it is billed to Pena, the ineligible household member. We agree.

Congress established the food stamp program to assure levels of nutrition among low-income households. See Atkins v. Parker, 472 U.S. 115, 117, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985); 7 U.S.C. § 2011. The Secretary of the United States Department of Agriculture (USDA) is responsible for establishing national standards for food stamp eligibility. See 7 U.S.C § 2014(b). According to 7 U.S.C § 2014(b) and § 2020(e)(5), no state agency operating the food stamp program, including the DCF, can alter eligibility for food stamps. Because the federal food stamp program is a matter of federal, not state law, see Atkins v. Parker, 472 U.S. 115, 105 S.Ct. 2520, 86 L.Ed.2d 81 (1985), state policies must be in accord with federal standards. See Wilson v. Department of Health & Rehab. Servs., 561 So.2d 660 (Fla. 1st DCA 1990).

In addition, this record reflects that the USDA’s Southeast Regional Office prepared a memorandum stating that the DCF’s policy of calculating deductions for households with an ineligible alien was erroneous. The memorandum stated, in pertinent part:

Under 273.9(d)(6)(iii)(F), as amended by the Noncitizen Eligibility Rule published in the Federal register on November 21, 2000, when eligible household members share utility costs with ineligible individuals, and the household elects to use the SUA, the eligible household is entitled to the entire (as opposed to a prorated) SUA. In the case of other deductible expenses, the amount allowable as deduction to the eligible household is based on the amount of the expenses paid by the eligible household even if billed to the ineligible individual. If an expense is billed to an ineligible individual and paid in its entirety by the eligible household the eligible household would be entitled to a deduction for the full amount of the expense. Under the State’s handbook, as revised effective 12-15-01, expenses' billed to an ineligible individual would be prorated even if paid in their entirety by the eligible household. We suggest that the State agency clarify its handbook to specify that in cases in which an ineligible individual is billed for a deductible expense, the eligible household is entitled to deduct the full amount of the expense that it actually pays. The expense would only be prorated if paid by both the ineligible individual(s) and the eligible household, or paid entirely by the ineligible individuals).

(emphasis added).

Consequently, because the decision of the DCF hearing officer fails to comply with federal law, it must be reversed. Alexander v. Department of Health & Rehab. Servs., 590 So.2d 1081, 1082 (Fla. 1st DCA 1991). Accordingly, we reverse and remand with instructions to the DCF to deduct the full amount of both the rental expenses and standard utility allowance in recalculating the food stamp amount and award Pena’s household food stamp benefits in accordance with the new calculations.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Verdell HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2954.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2003.
   CASANUEVA, Judge.

In the second appearance of this appeal in this court, Verdell Harvey again challenges the trial court’s order denying his motion for postconviction relief. In Harvey v. State, 787 So.2d 149, 150 (Fla. 2d DCA 2001) (Harvey I), Mr. Harvey contended the trial court erred in failing to reclassify his conviction for second-degree murder from a first-degree felony to a life felony. At the time of the offense, a defendant could not receive a habitual offender sentence for a life felony. Mr. Harvey, then and now, seeks to avoid the imposition of a habitual offender life sentence by having the offense determined to be a life felony. To attain this goal, he asserts that his sentence must be enhanced because a firearm or weapon was used. Relying on Orjales v. State, 758 So.2d 1157 (Fla. 2d DCA 2000), the trial court denied Mr. Harvey’s claim. We affirm.

By information, Mr. Harvey was charged with second-degree murder with a firearm, which is a life felony. The jury verdict form found “the defendant guilty of Second Degree Murder, as charged.” The verdict form did not contain the word “firearm” anywhere on its face. Accordingly, Mr. Harvey’s judgment reflected a conviction for second-degree murder and classified the offense as a first-degree felony. Mr. Harvey was sentenced to a life term as a habitual offender.

“[Sjeetion 775.087(l)(a), Florida Statutes (1993), requires that the trial court reclassify a first-degree felony to a life felony where the use of a weapon or firearm is an essential element of the offense and a weapon or firearm was used during the offense.” Collins v. State, 800 So.2d 660, 661 (Fla. 2d DCA 2001). Under the version of the habitual offender statute in existence at the time Harvey committed the second-degree murder, a defendant could not receive a habitual offender sentence for a life felony. See Harvey I, 787 So.2d at 150.

In Harvey I, Mr. Harvey claimed his sentence was illegal because it should have been enhanced to a life felony based on the use of a firearm, thus depriving the trial court of the power to impose a habitual offender sentence. Because the trial court failed to attach record documentation refuting this claim, we reversed and remanded for further consideration stating, “In order to enhance a conviction based on the use of a firearm, there must be a specific finding by the jury that the defendant used a firearm. That finding can be construed from an ‘as charged’ verdict, if the information alleged the use of a firearm.” Harvey I, 787 So.2d at 150. To support this conclusion, Harvey I cited to State v. Hargrove, 694 So.2d 729 (Fla.1997). However, Hargrove did “not involve a verdict of guilty ‘as charged’ where the charge was a crime using a firearm.” Id. at 781. Thus, the language in Har-grove that such a verdict would incorporate a finding that the defendant used a firearm would appear to be dicta. Furthermore, as the supreme court noted in Tucker v. State, 726 So.2d 768, 771 (Fla.1999), “[W]e held [in State v. Tripp, 642 So.2d 728, 730 (Fla.1994)] that the jury’s verdict that Tripp was guilty ‘of the charges made against him in the Information’ was insufficient to establish that a weapon was used, even though the information alleged that he used a weapon during the attempted first-degree murder.”

On remand, the trial court again denied Mr. Harvey’s claim and attached the information to its order denying relief. The information, citing the language from section 782.04(2), alleged that Mr. Harvey committed second-degree murder “by shooting [the victim] with a firearm, to wit: a handgun.” The attached verdict form did not contain a special interrogatory referencing the use of a firearm, nor did the verdict form provide an option for the jury to find Mr. Harvey “guilty of second-degree murder with a firearm.” Instead, the jury found the defendant to be “guilty of second-degree murder as charged.” In again denying Mr. Harvey’s claim, the trial court relied on this court’s holding in Orjales, 758 So.2d 1157.

Here, as in Orjales, the issue is whether a sentence may be enhanced in degree when the verdict fails to reflect a jury finding that the offense was committed with a firearm. This is critical because the jury’s performance of its fact-finding function determines whether the offense involved the use of a firearm. See State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984). We conclude here, as we did in Orjales, that “the absence of specific language referencing a firearm in the verdict form ... is fatally defective.” Orjales, 758 So.2d at 1159.

The defendant in Orjales appealed his conviction for aggravated assault with a firearm and his sentence of thirty-six months’ imprisonment with a three-year minimum mandatory provision. The information in that case charged the defendant with aggravated assault and stated that he “did use a deadly weapon, to wit: a firearm, without intent to kill.” Id. at 1158. “The verdict form for the aggravated assault count gave the jury three choices: guilty of aggravated assault as charged, guilty of assault, and not guilty.” Id. This court held in Orjales that, because of “the absence of specific language referencing a firearm in the verdict form, as well as in the jury instructions,” the trial court erred in imposing a three-year minimum mandatory on the aggravated assault conviction. Id. at 1159. Thus, in Orjales, we held that a jury finding of guilty as charged where the information referenced the use of a firearm was insufficient to allow for the imposition of a three-year minimum mandatory based on the physical possession of a firearm during the commission of the enumerated offense.

We recognize that the “as charged” language in Harvey I can be misconstrued. Nevertheless, to sustain an enhancement under Hargrove, Tucker, Tripp, and Orjales, the verdict form must identify the charge as one committed with a firearm. In that way, an “as charged” verdict would incorporate language from the information or indictment that the crime was committed with a firearm. Alternatively, an interrogatory on the verdict form would ask the jury to find that the crime was committed with a firearm.

Because the verdict form here did not reflect the jury’s factual finding that the crime was committed with a firearm, the trial court could not enhance the degree of the crime.

We affirm.

SALCINES and SILBERMAN, JJ., Concur.

      . Whether a minimum mandatory is imposed based on the physical possession of a firearm pursuant to section 775.087(2), or whether the level of offense is enhanced based on the possession/use of a firearm pursuant to section 775.087(1), there exists an identical requirement for the jury to specifically find that the defendant possessed/used a firearm. See State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984).


author: BROWNING, J.

text:
    WENDY’S OF N.E. FLORIDA, INC., d/b/a Wendy’s Old Fashion Hamburgers, Appellant, v. Carl Wayne VANDERGRIFF and Charono Vandergriff, Appellees.
    No. 1D02-2284.
    District Court of Appeal of Florida, First District.
    Nov. 19, 2003.
    Rehearing Denied Feb. 19, 2004.

      Tracy Raffles Gunn and Cecil L. Davis, Jr., of Fowler White Boggs Banker, P.A., Tampa, for Appellant.
    Charles M-P George, Coral Gables, for Appellees.
   BROWNING, J.

Wendy’s of N.E. Florida (“Wendy’s”) raises three issues in its appeal of a final order granting attorney’s fees and costs to Essex Insurance Company (“Essex”). Wendy’s contends that the trial court reversibly erred because: 1) Essex’s motion for attorney’s fees and costs was untimely; 2) the trial court erroneously applied Colony Insurance Company v. G & E Tires and Service, Inc., 777 So.2d 1034 (Fla. 1st DCA 2000), to this case; and 3) disputed issues of material fact precluded attorney’s fees under section 57.105, Florida Statutes (2001). We affirm without comment the trial court’s ruling that Essex’s motion was timely, but we reverse on the remaining grounds and remand for entry of judgment for Appellant on Appellees’ claim for attorney’s fees and costs.

In April 2000, the Vandergriffs sued both Wendy’s and its franchisee, the WIT Group, for a slip-and-fall that occurred at a Wendy’s restaurant in March 1999. In May 2000, Essex, which insured WIT under a Commercial General Liability Insurance Policy, notified Wendy’s of its intent to defend Wendy’s under a reservation of the right to withdraw its defense absent a duty to defend. In June 2001, Essex filed a complaint for declaratory relief in which it alleged that its insurance policy with WIT did not' cover Wendy’s, and that Essex would not defend Wendy’s for the allegations in the Vandergriff complaint.

Wendy’s filed an answer to the motion for declaratory relief alleging that it was named as an additional insured under WIT’s insurance policy, as required by its franchise agreement with WIT. Thereafter, both Essex and Wendy’s moved for summary judgment. The trial court granted Essex’s motion for final summary judgment “due to the undisputed fact that Wendy’s ... was never named as an additional insured under the Essex Insurance Company policy issued to The Wit Group, Inc.”

After entry of final judgment in the declaratory judgment action, Essex filed a motion for attorney’s fees and costs for both its defense of Wendy’s in the Vander-griff claim and its successful prosecution of the declaratory judgment action. The trial court entered a final judgment granting Essex’s motion for attorney’s fees and costs for Wendy’s defense, relying on Colony Insurance, and for the prosecution of the declaratory judgment action under section 57.105, Florida Statutes.

Fees and Costs under Colony Insurance

As a general rule, a liability insurer has a duty to defend its insured against claims; this duty is distinct from, and broader than, its duty to indemnify its insured. Colony Ins., 777 So.2d at 1036. Once the insurer’s duty to defend arises, it continues throughout the case unless it becomes apparent by the pleadings that a claim is not covered under the policy, at which point the insurer is released from its duty to defend. Baron Oil Co. v. Nationwide Mut. Fire Ins. Co., 470 So.2d 810, 815 (Fla. 1st DCA 1985). Generally, an insurer is not entitled to attorney’s fees in such cases, but an exception exists under the facts and circumstances of Colony Insurance.

Under Colony Insurance, an insurer is entitled to reimbursement for all costs and fees incurred in defending the underlying suit if the defense was initially provided under an expressed reservation of rights providing for attorney’s fees and costs if the insurer prevailed, and if the insured accepts such defense. 777 So.2d at 1038. Because Appellees expressed no such reservation of rights to attorney’s fees and costs to Appellant when undertaking its defense, Colony Insurance is inapplicable, and the trial court erred by relying on Colony Insurance. Essex’s unilateral attempt to assert such right some 16 months after accepting Wendy’s defense has no legal effect, as Wendy’s never agreed to Essex’s untimely assertion.

Fees Under Section 57.105, Florida Statutes

Section 57.105, Florida Statutes, permits the trial court to award fees and costs on any claim or defense at any time during a civil proceeding or action when the trial court finds:

(1) ... that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts.
(3) At any time in a civil proceeding or action in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including, but not limited to, the filing of any pleading or part thereof, the assertion of or any response to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred in obtaining the order, which may include attorney’s fees, and other loss resulting from the improper delay.

§ 57.105(1) & (3), Fla. Stat. (2001). As this Court noted in Bridgestone/Firestone, Inc. v. Herron, 828 So.2d 414, 417 (Fla. 1st DCA 2002), this statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. See Ch. 99-225, § 4, Laws of Fla. Unlike its predecessor, the 1999 version of the statute no longer requires a party to show a complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported. Bridgestone, 828 So.2d at 418; Read v. Taylor, 832 So.2d 219, 221 (Fla. 4th DCA 2002); Forum v. Boca Burger, Inc., 788 So.2d 1055, 1061 (Fla. 4th DCA 2001), review granted, 817 So.2d 844 (Fla.2002). However, this Court cautioned that section 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings. Bridgestone, 828 So.2d at 419; see also Mullins v. Kennelly, 847 So.2d 1151, 1154 (Fla. 5th DCA 2003) (noting that the central purpose of section 57.105 is, and always has been, to deter meritless filings as to streamline the administration and procedure of the courts) (citing Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 505 (Fla.1982), overruled in part on other grounds, Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985)).

In determining whether a party is entitled to statutory attorney’s fees under section 57.105, Florida Statutes, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. Weatherby Assocs., Inc. v. Ballack, 783 So.2d 1138, 1142 (Fla. 4th DCA 2001). In so doing, the court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law. Read, 832 So.2d at 221; Boca Burger, 788 So.2d at 1061. An award of fees is not always appropriate under section 57.105, even when the party seeking fees was successful in obtaining the dismissal of the action or summary judgment in an action. See Mullins, 847 So.2d at 1154 (citing Read, 832 So.2d at 222). In Mullins, the court noted that consistently and fairly applying the statute is problematic:

“In the legal world, claims span the entire continuum from overwhelmingly strong to outrageously weak. Somewhere between these two points, courts draw a line to separate the nonfrivolous from the frivolous, the former category providing safe shelter, the latter subjecting attorney and client to sanctions.” Eastway Constr. Corp. v. City of New York, 637 F.Supp. 558, 574 (E.D.N.Y.1986). As Judge Gersten observed in commenting on the earlier version of section 57.105:
We recognize that to some extent, the definition of “frivolous” is incapable of precise determination. Nevertheless, a review of Florida case law reveals that there are established guidelines for determining when an action is frivolous. These include where a ease is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contracted by overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or to maliciously injure another; or (c) [sic] as asserting material factual statements that are false.
Visoly v. Sec. Pacific Credit Corp., 768 So.2d 482, 491 (Fla. 3d DCA 2000) (footnotes omitted).
While the revised statute incorporates the “not supported by the material facts or would not be supported by application of then-existing law to those material facts” standard instead of the “frivolous” standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for the imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis....

Mullins, 847 So.2d at 1155 n. 4.

Here, the trial court abused its discretion in awarding fees under section 57.105, Florida Statutes, because Wendy’s position was not wholly unsupported by the facts at any time before the final summary judgment. At the time Essex filed its complaint for declaratory relief, a justi-ciable controversy existed as to whether Wendy’s was insured by Essex. Essex was defending the claim against Wendy’s under the assumption that it had a duty to defend. In light of this assumption, Essex’s allegation that Wendy’s was not insured created a justiciable issue sufficient to allow a declaratory action to go forth. See generally State v. Florida Consumer Action Network, 830 So.2d 148, 151 (Fla. 1st DCA 2002) (explaining that a declaratory action may be brought where, among other requirements, there is a controversy as to a state of facts and some privilege of the complaining party is dependent upon the facts), review denied, 852 So.2d 861 (Fla.2003). Although Essex attached to its complaint for declaratory judgment a copy of its insurance policy with WIT Group, there continued to be a dispute of facts as to whether Wendy’s was covered under the policy. The WIT Group indicated in discovery that it had a contractual obligation to insure Wendy’s as an additional insured under their franchise agreement, that it had requested its agent to insure Wendy’s, that it believed Wendy’s was an additional insured, and that the certificate of insurance named Wendy’s as an additional insured.

Wendy’s loss in the declaratory judgment action by summary judgment does not necessarily imply that Wendy’s argument was frivolous. See State, Dep’t of Transp. v. Kisinger Campo & Assocs., 661 So.2d 58 (Fla. 2d DCA 1995). From the record before us, which does not include the transcript of the hearing on attorney’s fees, it does not appear that Wendy’s defense was so completely lacking in merit as to support the trial court’s finding that Wendy’s position was frivolous. Thus, we cannot agree that the award of fees under section 57.105 was justified.

For the reasons stated, we REVERSE the final judgment granting Essex’s motion for attorney’s fees and costs and REMAND the case for entry of judgment for Appellant on such motion.

WOLF, C.J., and HAWKES, J., concur.


author: RAMIREZ, J.

text:
    APRIL REALTY LIMITED, etc., et al., Appellants, v. Ara KULHANJIAN, et al., Appellees.
    No. 3D02-226.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.
    Rehearing Denied Feb. 18, 2004.
    Bruce D. Friedlander; and Phillip D. Parrish, for appellants.
    David K. Markarian; and J. James Don-nellan, III, Miami; and Jay D. Schwartz, for appellees.
    Before COPE, and RAMIREZ, JJ., and NESBITT, Senior Judge.
   RAMIREZ, J.

The plaintiff, April Realty Limited, appeals from an order granting summary judgment in favor of the defendants in an action for fraud, negligent misrepresentation, constructive trust, and negligence per se. We affirm because the trial court was correct in finding that April Realty failed to establish its claim against the defendants.

Ara Kulhanjian and Tom Gebing were interested in putting together a deal to acquire and develop a piece of property. They were seeking a third party investor to finance the deal and met with Marvin Braun, a friend of Kulhanjian. Braun made suggestions for using a joint venture to obtain the property and asked Kulhanji-an to put together a proposal. Kulhanjian prepared a hand-written draft of a joint venture proposal. He was a newly licensed real estate agent and inexperienced. Neither he nor Gebing had ever been involved in a joint venture property development. As a result, prior to sharing the proposal with Gebing or Braun, Kul-hanjian contacted Robert Sherry, the principal of April Realty Limited, and asked him to review and critique the draft of the proposal.

This hand-written draft proposal indicated that the property had been demucked and filled. It also indicated that Kulhanji-an and Gebing intended to acquire and develop the property as principals in a joint venture (Sherry later referred to Kulhanjian and Gebing as “wannabe principals”). Sherry told Kulhanjian that an investor would need to have his head examined if he agreed to go along with such a proposal. Some time later, Kulhanjian and Gebing brought Sherry to see the property. Sherry told them that he was interested in purchasing the property, but not as part of a joint venture. Sherry purchased the property and later learned that it had not been demucked and filled. April Realty Limited sued Kulhanjian, Gebing, and others. The complaint asserted claims for fraud, negligent misrepresentation, constructive trust, and negligence per se. The trial court entered two orders granting summary judgment in favor of the defendants, which we affirm.

Simply stated, the evidence is insufficient to support April Realty’s claims. In order to succeed on a claim of fraud, a plaintiff must establish that the defendant “made a deliberate and knowing misrepresentation which was designed to cause detrimental reliance.” Ocean Bank of Miami v. Inv-Uni Inv. Corp., 599 So.2d 694, 697 (Fla. 3d DCA 1992). Here, there is no evidence showing that Kulhanjian intended for Sherry to rely upon the information contained in the proposal draft, much less that the misrepresentation was knowing and deliberate. Sherry himself admits that the only reason Kulhanjian gave him the proposal was so that Sherry could offer him advice.

The lack of evidence showing that Kul-hanjian intended for Sherry to rely on the proposal draft is also fatal to the claim for negligent misrepresentation. The Supreme Court of Florida has adopted § 552 of the Restatement (Second) of Torts, which provides:

§ 552. Information Negligently Supplied for the Guidance of Others.
(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
(2) Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.
(3) The liability of one who is under a public duty to give the information extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them.

Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 337 (Fla.1997) (quoting Restatement (Second) of Torts § 552 (1977)) (emphasis added). As all of the evidence shows that the information contained in the proposal was not offered to provide guidance to Sherry, but rather was provided so that Sherry might offer his guidance to Kulhanjian, the trial court was correct in granting summary judgment on the claim for negligent misrepresentation.

April Realty also brought a claim for negligence per se, arguing a violation of section 475.421, Florida Statutes (1995) (repealed by Laws 2003), which provided that:

Any person who publishes or causes to be published by means of newspaper, periodical, radio, television, or written or printed matter any false or misleading information for the purpose of offering for sale or for the purpose of causing or inducing any other person to purchase, lease, or rent real estate located in the state, or to acquire an interest in the title thereto, is guilty of a misdemeanor of the first degree, punishable as provided in § 775.082 or § 775.083.

As there is a complete lack of evidence supporting its contention that the information contained in the proposal draft was provided to Sherry for the purpose of causing or inducing him to purchase the property, April Realty has failed to establish its claim for negligence per se.

Thus, the trial court’s orders granting summary judgment in favor of the defendants are affirmed.


text:
    Korian DUNKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3975.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.
    Rehearing Denied March 4, 2004.
    Korian Dunkley, Bowling Green, pro se.
    No appearance required for appellee.
   PER CURIAM.

AFFIRMED. See Campbell v. State, 718 So.2d 886 (Fla. 4th DCA 1998).

WARNER, POLEN and MAY, JJ., concur.


text:
    Israel CARRILLO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1287.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Rehearing Denied Feb. 6, 2004.
    Israel Carrillo, proper person.
    Charles J. Crist, Jr., Attorney General, and Jason Helfant, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

We affirm the trial court’s order denying the defendant’s motion to correct illegal sentence. However, we remand for the trial court to correct the final judgment as to the degree of crime for which the defendant was convicted. See Copcutt v. State, 477 So.2d 70 (Fla. 1st DCA 1985)(case remanded to correct degree of crime for which defendant was convicted). The final judgment classifies the burglary of an unoccupied dwelling as a second degree felony when it should be categorized as a third degree felony. See § 810.02(4)(a), Fla. Stat. (1995). This change does not affect the defendant’s current sentence as he was sentenced as a habitual offender.

Affirmed but remanded to the trial court for correction of the final judgment as directed.


author: HAWKES, J.

text:
    Brett STEWARD, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-0651.
    District Court of Appeal of Florida, First District.
    Dec. 11, 2003.
    Rehearing Denied Feb. 12, 2004.

      Gordon B. Scott, Advocacy Center for Persons With Disabilities, Inc., Tallahassee, for Appellant.
    Ralph J. McMurphy, Wildwood, for Ap-pellee.
   HAWKES, J.

Appellant, Brett Steward, had previously been found eligible to receive benefits through the Developmental Disabilities Home and Community-Based Waiver Program (DDHP). He is ten years old, mildly retarded, has Spina Bifida, Hydrocephalis, a hearing deficit, significant kidney disease, a urostomy for bladder elimination and a colostomy for bowel elimination. He is incontinent, and uses diapers due to occasional urine leaking, and uses a wheelchair because he has no use of his lower extremities.

Steward appeals a final order entered by the Department of Children & Families (DCF), denying his request to remove heavy pile carpeting in his home, and replace it with ceramic tile or linoleum. Since Steward lacks upper body strength, the carpeting forced him to obtain assistance in pushing his wheelchair to access the various rooms in his home. Without assistance, he was forced to crawl on his stomach, using his elbows to propel himself. DCF denied Steward’s request due to their belief that replacement of floor coverings was excluded under the Developmental Services Waiver Services Medicaid Coverage and Limitations Handbook (Handbook), and no exceptions were permitted. We reverse and remand.

An environmental modification assessment of Steward’s home was performed at the request of his support coordinator, and Janice Bloom, Steward’s grandmother and guardian. DCF was advised by Steward’s support coordinator that the carpeting should be replaced with a new solid surface to enable Steward to use his wheelchair independently, alleviate the unsanitary and odiferous conditions caused by his incontinence, and minimize his exposure to harmful bacteria. A doctor and an Advanced Registered Nurse Practitioner from Shands Hospital opined that the removal of the carpeting in Steward’s home, and its replacement with tile or linoleum, was medically necessary. After DCF denied Appellant’s request on grounds that replacement of floor coverings was not covered under the DDHP, an administrative hearing was held.

At the hearing, Steward’s counsel conceded the Handbook, addressing Environmental Accessability Adaptations (EAAs), excludes carpeting and flooring, but argued exceptions were permissible. DCF’s expert witness, Martin Reid, admitted waivers are permitted, but testified he did not request a waiver. Following Reid’s testimony, the hearing officer asked Reid if the Handbook contained a provision which would permit a waiver in this case. Reid testified he was “not familiar with it.” The hearing officer clarified Reid’s answer, then stated “if there is a provision which would allow an exception, then I think [DCF] probably should have. — should have taken that avenue.”

Subsequently, a Final Order was entered which concluded the Handbook identifies EAAs which are not covered through the DDHP, and replacement of floor coverings is not covered. For this reason, the hearing officer affirmed DCF’s denial of Appellant’s request to replace the carpeting in his home with tile or linoleum.

An agency’s final order based on a conclusion of law is subject to de novo review. See Parlato v. Secret Oaks Owners Ass’n, 793 So.2d 1158 (Fla. 1st DCA 2001). A review of the excerpts of the Handbook contained in the record indicates EAAs which are of “general utility and are not of direct medical or remedial benefit to the beneficiary, such as carpeting, ...” are excluded from coverage. Dept’ of Children & Families, Developmental Servs. Waiver Servs. Fla. Medicaid Coverage & Limitation Handbook at 2-36 (emphasis added). Here, replacement of Steward’s carpeting with tile would have a direct medical or remedial benefit. Thus, based on the plain language of the Handbook, flooring replacement in this case would not be excluded from coverage, and an exception would not be required.

However, to the extent an exception is necessary, it is available through the terms of the Handbook, which provides in pertinent part that:

[EAAs] are approved when they are medically necessary. The Department must approve exceptions. To submit an exception request, the appropriate professional must complete an assessment documenting how the specific EAA is medically necessary, how it’s directly related to the beneficiary’s developmental disability, how it’s directly related to accessibility issues within the home, and how, without the selected EAA, the beneficiary cannot continue to reside in their current residence. The request will be reviewed by an appropriate, qualified professional to determine whether the standards for medical necessity set forth in Chapter 59G-1.010(166), F.A.C., are met and to determine whether the requested item fairly meets the service definition.

Id. at 2-37. The only reasons DCF gave for denying Steward’s request were that floor covering replacement was excluded under the Handbook, and no exceptions were permissible. DCF erred in both conclusions.

When the hearing officer was told floor covering changes were not permitted, even in a case where the requested change was supported by competent, substantial evidence that it was medically necessary, he specifically asked about exceptions. Clearly, exceptions to the policy are available. Because DCF was neither aware of, nor did it consider any exception, and the hearing officer indicated exceptions should have been considered had they been available, the hearing officer erred by denying Steward’s request based solely on the ground that floor covering replacement is excluded.

Accordingly, we reverse the Final Order and remand for DCF to review Steward’s request to determine whether, under these circumstances, an exception is even required, and if so, to conduct proceedings to determine whether Steward’s request falls within the exception permitted.

REVERSED and REMANDED for proceedings consistent with this opinion.

BROWNING and POLSTON, JJ„ concur.


author: CANADY, Judge.

text:
    STATE of Florida, Appellant, v. Paul T. HENDREX, Appellee.
    No. 2D02-3584.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2003.
    Rehearing Denied Feb. 10, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah F. Hogge, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
   CANADY, Judge.

The State appeals an order of the trial court suppressing illegal drugs that were found in the possession of Paul T. Hendrex when he was detained and arrested. Because we conclude that the police officer who detained and arrested Hendrex had the necessary legal justification for doing so, we reverse.

I. BACKGROUND

At Hendrex’s suppression hearing, the State presented the testimony of several police officers. This testimony revealed that the investigation of Hendrex began when a juvenile who was arrested for breaking into ears told the police that he had committed his crimes because he was addicted to methamphetamine. The police asked the juvenile to help them arrest his drug dealer, and the juvenile agreed to cooperate. The juvenile was known to police and in the past had provided them with information concerning the location of certain persons. There was no showing, however, that the information the juvenile had previously provided had ever led to an arrest. The juvenile identified Hendrex as his dealer and gave the police a detailed physical description of both Hendrex and Hendrex’s car. He also explained that his ordinary course of dealing with Hendrex was that he would call Hendrex when he had some stolen radios to trade for drugs. Testimony was also presented by an officer with experience in criminal investigations that transactions involving bulk radio sales were frequently linked with criminal drug activity.

According to the testimony of the officers, the juvenile was directed to make a “controlled call” — that is, a call in which an officer dialed the phone and listened to the juvenile during the call — from an officer’s cell phone to Hendrex to set up a meeting. During the call, the officer heard the juvenile inform Hendrex that he had “some radios to show him.” Following the call, the juvenile informed the officer that Hen-drex had agreed to meet at the juvenile’s residence shortly to look at the radios. There was no overt mention of criminal activity or drugs during the call, although the juvenile did inform the officer that Hendrex had mentioned during the call that he still had a couple of radios left over from a prior transaction with the juvenile.

The officers began driving toward the juvenile’s residence in anticipation of Hen-drex’s arrival. Hendrex, however, arrived at the juvenile’s residence before the officers and called the cell phone that had been used for the controlled call. In an effort to stall Hendrex and give the officers time to reach the residence, an officer who posed as the juvenile’s friend told Hendrex that the juvenile had gone into a convenience store and would be at the residence in a few minutes. Fearing that Hendrex was getting “antsy” and that he might leave before the officers arrived, the officers provided detailed descriptions of Hendrex and his car to another officer who was patrolling the area of the juvenile’s residence. That officer was advised that there was probable cause for Hendrex’s arrest. When that officer approached the residence, he observed a vehicle in the driveway with a person inside. Both the vehicle and its occupant fit the descriptions the officer had been given. The trial court described the sequence of events as follows:

Thereafter, [the officer] parked behind [Hendrex], who was seated in his vehicle in the driveway of the [residence], and initiated his vehicle’s overhead lights. After exiting his patrol car, [the officer] withdrew his service weapon and ordered [Hendrex] out of the car and to he on the ground. [Hendrex] exited the vehicle and began “digging around in his pocket.” [Hendrex] removed a small plastic bag containing a white powdery substance from his front pants pocket and placed it on the ground next to him as he lay down. [Hendrex] was then handcuffed.

The contents of the bag were later tested and determined to be methamphetamine. A subsequent search of Hendrex’s person and automobile led to the discovery of a quantity of marijuana.

In his motion to suppress, Hendrex argued that the juvenile informant’s tip did not give the police probable cause to arrest him. The trial court accepted this argument and stated in its order that the tip was sufficient to create reasonable suspicion to stop Hendrex and question him about his activities but was inadequate to constitute probable cause to arrest Hen-drex. The trial court concluded:

Under the facts of this case, the Court finds that the officer would have been justified in stopping [Hendrex] and detaining him for a reasonable length of time in order to further investigate the allegations and information of the informant. However, that is not what happened in this ease. Upon initial contact by law enforcement [Hendrex] was immediately ‘seized’ when he was ordered out of his car.

In support of its ruling, the trial court cited Popple v. State, 626 So.2d 185, 188 (Fla.1993), a case in which the supreme court concluded that the officers “did not have the reasonable suspicion necessary to authorize an investigatory stop.”

II. ANALYSIS

When a trial court’s ruling on a motion to suppress is reviewed on appeal, the trial court’s findings of historical fact are reviewed under a deferential standard, but the trial court’s determinations on mixed questions of law and fact and its legal conclusions are subject to de novo review. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 608 (Fla.2001). When considering a motion to suppress, a court is required to consider the “totality of [the] circumstances” that led to the discovery of evidence. State v. Butler, 655 So.2d 1123, 1128 (Fla.1995).

The disposition of this case turns on the distinction between an investigatory stop and an arrest. An arrest involves a higher level of police intrusion than does an investigatory stop. Under the Fourth Amendment, an arrest therefore requires a higher level of justification than that required for an investigatory stop. Based upon the trial court’s historical factual findings, we conclude that (1) the initial detention of Hendrex was an investigatory stop and not an arrest; (2) the investigative stop was legally justified; and (3) the voluntary production by Hendrex of the small plastic bag in the course of the investigatory detention gave the officer probable cause to arrest Hendrex and to search his person and his vehicle. We thus conclude that the trial court erred in determining that Hen-drex was subjected to arrest without probable cause, while we agree with the trial court’s conclusion that the police had the reasonable suspicion necessary to make an investigatory stop.

“An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion.” Ornelas, 517 U.S. at 693, 116 S.Ct. 1657 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). For a reasonable suspicion to exist, “the detaining officers must have a particularized objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 411-12, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Although an officer making an investigatory stop “must be able to articulate something more than an inchoate and unparticular-ized suspicion or ‘hunch,’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (citing Terry, 392 U.S. at 30, 88 S.Ct. 1868), the “level of suspicion required for [such a] stop is obviously less demanding than that for probable cause,” id. (citing United States v. Montoya de Hernandez, 473 U.S. 531, 541, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)).

Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.

Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990).

An investigative stop may be based on a police officer’s personal observations. See United States v. Sharpe, 470 U.S. 675, 682 n. 3, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985) (holding that police observation of overloaded pickup truck with camper shell commonly used to transport illegal drugs, driving in tandem with car and evading police, provided reasonable suspicion to justify investigatory stop). But information provided to the police by an informant may also serve as the basis for an investigatory detention. See White, 496 U.S. at 326-27, 110 S.Ct. 2412 (holding that there was reasonable suspicion to justify stop of person based on anonymous informant’s correct description of detainee’s vehicle, time of departure, and travel destination).

Here, the trial court correctly concluded that the police had the reasonable suspicion necessary to justify an investigative detention of Hendrex. The facts of the instant case are similar to those in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), where the court held that an investigative stop was justified. In Adams, the investigatory detention was based on information provided to a police officer by an informant that the defendant who was “seated in a nearby vehicle was carrying narcotics and had a gun at his waist.” Id. at 145, 92 S.Ct. 1921. The court noted that the “informant was known to the officer personally and had provided him with information in the past.” Id. at 146, 92 S.Ct. 1921. The court stated: “This is a stronger case than obtains in the case of an anonymous telephone tip. The informant here came forward personally to give information' that was immediately verifiable at the scene.” Id.

Similarly, in the present case, the juvenile informant was known to the police and had provided them with information in the past. In addition, the reliability of the information he provided was demonstrated by his ability to influence and predict the future conduct of the defendant. When the defendant responded to the phone call from the informant, the police were thus able — at least to some extent — to corroborate the reliability of the informant. See also White, 496 U.S. at 332, 110 S.Ct. 2412 (“When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop”). Finally, the prediction of Hendrex’s conduct was significant when viewed in light of the totality of the circumstances because there was testimony from a police officer with experience in criminal investigations that bulk sales. of used car radios were highly correlated with criminal drug activity and that such transactions outside the context of criminal activity were rare. The trial court was thus correct to conclude that the police had reasonable suspicion to stop Hendrex.

Hendrex argues that the credibility of the juvenile informant’s tip should have been discounted because .the tip was offered merely to curry favor with the authorities. But in the circumstances present here, the informant’s desire to curry favor would in fact make it more likely that he would provide truthful information rather than untruthful information. The assertion that Hendrex would be in possession of drugs was readily subject to verification or nonverification by the police. And the informant would hardly expect to curry favor with the authorities by providing them information that they could readily determine was untruthful. Cf. Adams, 407 U.S. at 147, 92 S.Ct. 1921 (relying on circumstance that “the informant may have been subject to immediate arrest [under state law] for making a false complaint” if police “investigation proved the tip incorrect”).

The trial court’s error in this case arose from its conclusion that the initial encounter between the police and Hendrex constituted an arrest. In reaching this conclusion, the court stated: “Upon initial contact by law enforcement, [Hendrex] was immediately ‘seized’ when he was ordered out of his car.” The court apparently reasoned that such a seizure necessarily resulted in an arrest. But that is not the case. :

This point is illustrated by Popple v. State, 626 So.2d 185 (Fla.1993), which was cited by the trial court as supporting authority. In Popple, a police officer directed the defendant to leave his vehicle. The Florida Supreme Court concluded that the officer’s'conduct resulted in a seizure under the Fourth Amendment. But the court concluded not that the defendant had been arrested, but that he had been subjected to an “investigatory stop.” Id. at 188, 626 So.2d 185. A similar “seizure” occurred in the course of the investigative stop in the instant case when Hendrex was ordered out of his vehicle by the officer.

The fact that the investigative stop of Hendrex was effected at gunpoint did not convert it into an arrest. It has long been recognized that in a properly justified investigatory stop an officer has grounds “to insist on an encounter” with the subject of the stop, that is “to make a forcible stop.” Terry, 392 U.S. at 32, 88 S.Ct. 1868 (emphasis supplied). In State v. Perera, 412 So.2d 867, 871 (Fla. 2d DCA 1982), we held that conducting an investigative stop at gunpoint was appropriate:

That the officers used their sirens and flashing lights and had their guns drawn also did not change the stop into an arrest.... [WJhere there is a clear possibility of the type of criminal activity which the officers believed they were encountering in the present case, we cannot fault them for having their guns at the ready for their own protection.

See also Carroll v. State, 636 So.2d 1316, 1318 (Fla.1994) (“The stop was not necessarily converted into an arrest because the officer drew his gun and directed [the defendant] to lie on the ground.”) (citing Perera and State v. Ruiz, 526 So.2d 170 (Fla. 3d DCA 1988)).

Nor does the fact that the officer who detained Hendrex had been told — and believed — that there was probable cause to arrest Hendrex mean that the initial detention of Hendrex was an arrest. We addressed this issue in Perera, where we held that the belief of police officers that there was probable cause to arrest did not convert an investigative stop into an arrest. 412 So.2d at 871. This court stated:

Our view [that the police conduct constituted an investigative stop] is not changed simply because some of the officers may have had the intent to arrest appellees prior to stopping them. Actions taken by a law enforcement officer must be examined objectively as to how they affect a suspect and not from the standpoint of what the officer’s intent was.

Id.; cf. State v. Pye, 551 So.2d 1237, 1239 (Fla. 1st DCA 1989) (“The police officer’s words alone cannot transform an investigatory stop into an arrest.”).

Here, as in Perera, “immediately after the stop probable cause developed” when the illegal drugs came into the plain view of the police. 412 So.2d at 870. “Under [the plain-view] doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). In the instant case, the officer had reasonable suspicion that Hendrex was engaged in illegal activity and conducted the stop in a lawful manner. The plastic bag that contained a substance that appeared to be an illegal drug was placed by Hendrex in the plain view of the officer, who was in a “lawful vantage point” to see it. Id. Once the officer observed the plastic bag, he had probable cause to arrest Hendrex and perform a search of Hendrex’s person and vehicle incident to that arrest.

III. CONCLUSION

In stopping Hendrex, arresting him, and conducting the subsequent search, the police did nothing to transgress the Fourth Amendment. We therefore quash the order granting the motion to suppress and remand this case for further proceedings.

Reversed and remanded.

WHATLEY and SALCINES, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Norman C. FLEURY, Jr., and Karen Fleury, Appellants, v. BIOMET, INC., a foreign corporation, and Mike Trieste, Appellees.
    No. 2D02-2103.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2003.
    Rehearing Denied Feb. 17, 2004.
    John P. Graves, Jr., of Graves & Stephan, Chartered, Sarasota, for Appellants.
    Marie A. Borland and Robert B. Gough, III of Hill, Ward & Henderson, P.A., Tampa, and A. Lamar Matthews, Jr. of Matthews, Eastmoore, Hardy, Crauwels & Garcia, P.A., Sarasota, for Appellees.
   NORTHCUTT, Judge.

Norman Fleury, Jr., and his wife, Karen Fleury, filed a negligence and products liability action stemming from the premature failure of Mr. Fleury’s artificial knee. The defendants, Biomet, Inc., and Mike Trieste, won a final summary judgment after the circuit court entered an order imposing sanctions for the spoliation of evidence. We reverse.

For purposes of reviewing the summary judgment, we view the allegations and evidence of record in the light most favorable to the Fleurys, treating any factual disputes as resolved in their favor. Thus viewed, the record reflects the following:

The product at the center of this controversy was an artificial knee that was designed and manufactured by Biomet and sold by Trieste, Biomet’s exclusive distributor in Charlotte County, Florida. The specific artificial knee at issue was packaged by Biomet on October 11, 1990, and sterilized the next day. Biomet then placed the knee in its inventory. It remained there until December 1994, when it was employed in a total right knee replacement performed on Mr. Fleury by Dr. Douglas Nuelle, an orthopedic surgeon.

The knee consisted of tibial, patella, and femoral components. This litigation focused on the tibial component, which in significant part was formed by molding a polymer known as ultra-high molecular weight polyethylene, or UHMWPE, to a metal tray. The expected life of a tibial component such as the one implanted in Mr. Fleury is ten to fifteen years. His failed prematurely, after only two years. Eventually, in October 1999, another orthopedic surgeon, Dr. Vance Askins, removed Mr. Fleury’s artificial knee and replaced it with another one.

When Dr. Askins performed the 1999 surgery, he found that all three main components of Mr. Fleury’s artificial knee-the femoral, patella, and tibial-were loose. The polyethylene that had been molded to the tibial tray had failed. The metal was exposed and there were small pieces of polyethylene floating in Mr. Fleury’s knee.

In the litigation the Fleurys and their experts contended that the polyethylene failed because it had oxidized over time due to the process Biomet had employed to sterilize the artificial knee. When the knee was manufactured in 1990, Biomet sterilized it by subjecting it to gamma rays. A Biomet representative testified in deposition that problems with oxidation led the company to alter its sterilization protocol in mid-1992. Henceforth, Biomet sterilized its polyethylene products by subjecting them to gamma rays in an oxygen-free environment, which was achieved by injecting argon gas into the packaging to force out any oxygen. Two years later, when Biomet sold the circa 1990 artificial knee that was implanted in Mr. Fleury, it did not warn that the knee had been sterilized by a method that could cause it to oxidize over time.

The hospital where Dr. Askins performed Mr. Fleury’s second knee replacement discarded the Biomet artificial knee within hours after it was removed from Mr. Fleury’s leg. This was done pursuant to the hospital’s standard protocol for handling and disposing of bio-hazardous waste. Under the protocol, Dr. Askins could have directed the hospital to preserve the knee, but he did not.

About six weeks before the scheduled trial in the Fleurys’ lawsuit, Biomet and Trieste moved to dismiss, contending that their inability to examine and test the artificial knee prevented them from defending against the Fleurys’ allegations. The defendants filed an affidavit by Stephen Li, Ph.D., the president of a medical device testing company and an expert in polymers used in medical devices. Dr. Li expressed doubt that Mr. Fleury’s artificial knee failed because the polyethylene in the tibial component had oxidized. He asserted that there was no clinical or laboratory evidence that a directly molded tibial component that had been gamma sterilized in air would suffer clinically significant oxidation in the first nine years after its irradiation, either on the shelf or implanted. Dr. Li also maintained that it would be impossible to attribute the failure of Mr. Fleu-ry*s knee to oxidation without examining and testing the product. He went on to list some of the examinations and tests that might be performed if the product were available.

When ruling on the defendants’ motion to dismiss, the circuit court found that none of the parties to the lawsuit were at fault for the loss of the artificial knee, and that the spoliation of this evidence was inadvertent. Still, the court noted that there was some evidence to suggest that before Mr. Fleury’s second surgery he and Dr. Askins believed that the Biomet knee was defective. Therefore, although the court declined to dismiss the suit, it ordered that at trial Dr. Askins and the Fleurys’ expert witnesses would not be permitted to opine either as to the cause of any observed wear of the artificial knee’s polyethylene component or that oxidation contributed to the wear. In addition, the jurors would be instructed that they must presume that the product was not defective.

Thus deprived of their ability to prove the causation element of their cause of action, the Fleurys suffered the summary judgment under review. We reverse because the circuit court should not have entered the spoliation order.

Sanctions for the spoliation of evidence may be imposed when a party fails to preserve evidence in its custody. Under the facts described above, it is debatable whether the subject artificial knee was ever in the Fleurys’ custody. See Derosier v. Cooper Tire & Rubber Co., 819 So.2d 148 (Fla. 4th DCA 2002) (holding that spoliation of evidence principles did not apply where tread that had separated from allegedly defective tire had been discarded by persons unknown immediately after automobile accident while plaintiffs were being transported to the hospital, and thus evidence was not in plaintiffs’ custody when it was lost), review denied, 837 So.2d 409 (Fla.2003).

Even when it is clear that evidence has been lost while in the custody of a party, the appropriate sanction varies according to the willfulness or bad faith, if any, of the party who lost the evidence, the extent of the prejudice suffered by the other party, and what is required to cure the prejudice. Harrell v. Mayberry, 754 So.2d 742, 745 (Fla. 2d DCA 2000); Sponco Mfg., Inc. v. Alcover, 656 So.2d 629, 630 (Fla. 3d DCA 1995). Dismissal or default, the harshest of all sanctions, are reserved for cases in which one party’s loss of evidence renders the opposing party completely unable to proceed with its case or defense. Harrell, 754 So.2d at 745.

In this case, the circuit court determined that neither party was at fault for the loss of the evidence, and that dismissal of the Fleurys’ suit would be too harsh a sanction. Yet the court’s sanction order accomplished the same result by depriving the Fleurys of any ability to prove a necessary element of their cause of action. Thus, although recognizing that dismissal was uncalled for here, the circuit court imposed the equivalent of a dismissal. See Fed. Ins. Co. v. Allister Mfg. Co., 622 So.2d 1348, 1350 (Fla. 4th DCA 1993) (recognizing that precluding plaintiff from presenting evidence regarding faulty garage door system after expert inadvertently discarded part of product was equivalent of dismissal). This, in itself, would be cause for reversal.

Beyond that, Biomet and Trieste suffered no real prejudice from the loss of the evidence. Unlike cases in which the offending party has examined or tested evidence and then lost it before the opposing party has had an opportunity to do so, in this case both parties are in the same position. Neither side will be able to present expert testimony founded on the experts’ examination or testing of the product. Therefore, it cannot be said that the loss of the evidence put the defendants at a disadvantage in the litigation. See Derosier, 819 So.2d at 145 (reversing summary judgment following spoliation order where tread from allegedly defective tire was discarded immediately after automobile accident and therefore was not available to either party, and defendant’s expert stated without the tire neither he nor any other expert could determine why tread separated from tire); Aldrich v. Roche Biomedical Lab., Inc., 737 So.2d 1124, 1126 (Fla. 5th DCA 1999) (reversing summary judgment following spoliation order where spoliation of evidence put both parties in same position).

The circuit court having determined that the spoliation of the evidence in this case was inadvertent and that none of the parties were at fault, and it being apparent that the defendants were not prejudiced by the spoliation of the evidence, there was no basis for imposing sanctions on its account. For this reason we reverse the summary judgment and the spoliation order that gave rise to it, and we remand for further proceedings. See Aldrich, 737 So.2d at 1126.

The Fleurys also contend the circuit court erred by granting the defendants’ motion in limine to exclude testimony by some of its expert witnesses. But, as Biomet and Trieste point out, the court did not exclude the witnesses’ testimony. Rather, it limited the introduction of the witnesses’ videotaped depositions while allowing the Fleurys to present the witnesses’ live testimony so that the court could more readily evaluate their qualifications. Under the circumstances of this case, we do not find that the court abused its discretion. That said, we note that the Fleurys are free to seek a reconsideration of the ruling from the circuit court, perhaps after taking supplemental depositions of the experts in order to allay the court’s concerns.

Last, the Fleurys complain of the circuit court’s refusal to compel compliance with their demand for discovery of reports concerning prior similar claims. The defendants objected to the discovery demand on the grounds that it was overbroad and was unduly burdensome. On the latter issue, the record reflects that the Fleurys were willing to pay the cost of producing the material, but the motion to compel was not heard until a few days prior to trial. Given the time necessary for the defendants to comply with the discovery demand, we do not think the court abused its discretion by declining to order compliance on the eve of trial. However, we note that the order denying the motion to compel was absolute, suggesting that the court did not address the question whether the discovery demand was overbroad. Therefore, we affirm the order without prejudice to the Fleurys’ right to i-enew their motion to compel. In that event, the court will have an opportunity to determine whether the discovery demand is overbroad and, if so, to limit it appropriately in accordance with American Medical Systems, Inc. v. Osborne, 651 So.2d 209 (Fla. 2d DCA 1995).

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

ALTENBERND, C.J., and COVINGTON, J., Concur.


text:
    Didier DESVIGNE, Appellant, v. DOWNTOWN TOWING CO., Appellee.
    No. 3D03-51.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Rehearing Denied Feb. 6, 2004.
    Marcelle B. Poirier, for appellant.
    Francis X. Santana; Paul R. Sasso, for appellee.
    Before LEVY, GREEN and FLETCHER, JJ.
   PER CURIAM.

Didier Desvigne (“Mr.Desvigne”) appeals from a Final Judgment entered in favor of Downtown Towing Company (“Downtown Towing”), contending that Downtown Towing and/or its counsel failed to make a good faith effort to notify Des-vigne or his counsel of the vehicle auction date, despite the ongoing communications between counsel for both parties. We agree with Mr. Desvigne and reverse.

On January 16, 2001, Mr. Desvigne was arrested for reckless driving. As a result of this arrest, his vehicle, a 1997, 993 Porsche, was towed to Downtown Towing. The following day, Mr. Desvigne went to pick up the vehicle at Downtown Towing. Downtown Towing refused to release the Porsche, alleging that Mr. Desvigne failed to provide sufficient documentation of ownership of the vehicle because he did not provide a Florida registration for the Porsche. Desvigne was advised to contact Downtown Towing’s attorney. As a result, Desvigne contacted his attorney who then telephoned Downtown Towing’s attorney in an effort to obtain release of the Porsche.

Downtown Towing and Desvigne’s attorneys corresponded several times regarding the Porsche between January 19, 2001 and February 28, 2001, the date the Porsche was auctioned. Among the correspondence, Desvigne’s counsel submitted evidence that Desvigne purchased the Porsche in France from Daytona Automobiles. Downtown Towing’s counsel never indicated to Desvigne’s counsel that the Porsche would be auctioned on February 28, 2001. The Porsche was auctioned for $1,300.00. Desvigne contends that the value of the Porsche is $80,000-85,000. As a result of the auction, Desvigne sued Downtown Towing for compensatory and punitive damages for conversion of the Porsche. After a non-jury trial, the court entered judgment in favor of Downtown Towing and ordered Desvigne to pay attorneys fees and costs.

A trial court’s findings of fact and conclusions of law come to this court with a presumption of correctness and will not be disturbed unless totally unsupported by competent substantial, evidence. Hull v. Miami Shores Village, 435 So.2d 868 (Fla. 3d DCA 1983); Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982). However, where the court’s decision is manifestly against the weight of the evidence, or unsupported by competent substantial evidence, it becomes this Court’s duty to reverse. Randy Int’l Ltd. v. Am. Excess Corp., 501 So.2d 667, 670 (Fla. 3d DCA 1987); Design Eng’g Corp. of Am. v. Pan Aviation, Inc., 448 So.2d 1112 (Fla. 3d DCA 1984); Hull v. Miami Shores Village, 435 So.2d 868.

In the instant case, the trial court’s findings and conclusion of law are not supported by the evidence, where the Record unequivocally reflects that Mr. Desvigne is the owner of the vehicle. First, it is undisputed that the only individual who came forward to claim the vehicle was Mr. Des-vigne. Additionally, Mr. Desvigne provided documentation that he was the owner of the vehicle. More importantly, the Record reflects that Downtown Towing was corresponding with Mr. Desvigne’s attorneys about Mr. Desvigne’s ownership of the vehicle, even on the date of the auction, and that on several occasions Mr. Desvigne offered to pay the storage fees. Accordingly, the Final Judgment is reversed with directions that judgment be entered in favor of Mr. Desvigne and that either, the vehicle be returned to Mr. Desvigne, plus compensation for the depreciation value of the vehicle and for any damages that resulted from the storage or towing of the vehicle; or that damages be awarded to Mr. Desvigne for the value of the car on the date the vehicle was sold, plus any other costs, fees, or damages the trial court deems are warranted.

Reversed and remanded with directions.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Petitioner, v. Frank E. MILLER, Jr., Respondent.
    No. 1D02-5149.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2003.
    Rehearing Denied Feb. 12, 2004.
    Raymond L. Roebuck and David M. Gagnon, of Taylor, Day & Currie, Jacksonville, for Petitioner.
    Kevin J. Loftus, of Harrell & Johnson, P.A., Jacksonville, for Respondent.
   BROWNING, J.

Respondent, who was involved in an automobile accident that occurred during the course and scope of his employment, was paid 66-2/3 % of his lost wages under Florida’s workers’ compensation scheme. Thereafter, Respondent filed a claim with Petitioner for reimbursement under his personal injury protection (PIP) policy. Petitioner denied the' claim. The county court ordered Petitioner to pay 60 % of the difference between Respondent’s total lost wages and Respondent’s total workers’ compensation payments. The circuit court affirmed. We grant the petition for writ of certiorari because both lower courts failed to correctly apply the applicable newer version of section 627.736, Florida Statutes (2000), as interpreted by the district courts in Diaz v. South Carolina Insurance Co., 397 So.2d 386, 387 (Fla. 3d DCA 1981), and Jorglewich v. Lumbermens Mutual Casualty Co., 522 So.2d 114, 115 (Fla. 5th DCA 1988). Under these circumstances, certiorari review is proper pursuant to Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885 (Fla.2003) (stating that an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review). Therefore, we QUASH the decision under review and grant the petition, WITH DIRECTIONS that the circuit court reverse the county court’s summary judgment and remand to the county court for further proceedings consistent with this opinion.

POLSTON and HAWKES, JJ.. concur.