text:
    AMERISHOP MAYFAIR, L.P., a foreign limited partnership, Appellant, v. Thomas BILLANTE, Appellee.
    No. 3D02-813.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2002.

      Frank, Weinberg & Black, and Neil G. Frank, and Marc A. Silverman, for appellant.
    Phillips, Eisinger, Koss & Brown and Gary S. Phillips, Hollywood, for appellee.
    Before GREEN, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

The Landlord, Amerishop Mayfair, L.P. (“Amerishop”) appeals the trial court’s final judgment finding that Thomas Billante was not liable as a guarantor for the tenant’s breach of a commercial lease agreement. We affirm.

Amerishop entered into a shopping center lease with the tenant, Thomas Speciality Restaurants on February 24, 1997. Billante signed a rental guaranty dated February 25, 1997, wherein he guaranteed all terms of the lease including, but not limited to payment by the tenant, of the minimum rental percentage rental, for the first two years of the lease. The rental guaranty provided in pertinent part that:

Guarantor agrees, absolutely, unconditionally and irrevocably, that (1) this obligation shall be binding upon the Guarantor without any further notice or acceptance thereof, but the same shall be deemed to have been accepted by the execution of the within lease; (2) immediately upon each and every default by Tenant, without any notice to or demand upon the Guarantor, Guarantor will pay to Landlord the sum or sums in default and will comply with or perform all the terms, covenants and conditions of said Lease which shall be binding upon the Tenant as provided in said Lease; (3) no extensions, forbearance or leniency extended by the Landlord to said Tenant shall discharge the Guarantor and the Guarantor agrees at all times it will be liable notwithstanding same and notwithstanding the fact that the Guarantor has had no notice of any said default or of any said forbearance or extension; (4) Landlord and Tenant without notice to or consent by Guarantor may at any time or times enter into such modifications, extensions, amendments or covenants respecting the said Lease and that Guarantor shall not be released thereby, it being intended that any joinder, waiver, consent or agreement by Tenant by its own operation, shall be deemed to be a joinder, consent or agreement by Guarantor with respect thereto and that Guarantor shall continue as Guarantor with respect to the said Lease as so modified, extended, amended or otherwise affected.
The obligations of the Guarantor herein shall be extensive with and shall remain in effect as long as Tenant’s obligations in and under said Lease, and all extensions or modifications thereof shall continue, and as long as said Tenant shall be liable Guarantor shall be liable thereunder in the same manner and in the same effect: EXCEPT, HOWEVER, bankruptcy or insolvency of the Tenant shall not release Guarantor from liability hereunder.... This Guarantg mag onlg be amended or modified at ang time by an instrument in writing executed by the Landlord and Guarantor.

(Emphasis added).

Thomas Speciality Restaurants subsequently assigned their lease to La Fon-taine, Restaurant, L.C. on August 21, 1997 with the written consent of Amerishop and Billante. La Fontaine Restaurant defaulted on their lease in March of 1999. In July of 1999, Billante divested himself of his interest in the restaurant and sold his interest to Martin Solomon and Churt Partners. On May 19, 2000, Amerishop entered into a lease termination agreement with La Fontaine Restaurant. Billante was not a party to this lease termination agreement nor was he given notice that such an agreement was to be executed. The pertinent parts of the lease termination agreement are as follows:

Paragraph 2:

The aforedescribed Lease between the parties is deemed to be terminated and the effective date of said termination for the purpose of this Lease Termination Agreement shall be deemed to be May 15, 2000....

Paragraph 4:

Landlord acknowledges that the afore-described Lease is terminated as of the Termination Date and the Landlord releases Tenant from all obligations of Tenant under the lease.... Landlord specifically waives, foregoes and releases any and all rights which it has, had, or may have had under the aforesaid lease as of the Termination Date....

Paragraph 6:

As a material condition of this Agreement, the Tenant shall sell and transfer over to the Landlord those certain items identified in Exhibit 1, consisting of certain furniture, fixtures and equipment located at the demised premises (the “FF & E”). The Tenant represents and warrants that it owns this FF & E free and clear of all liens and encumbrances of any nature and any kind ... to the extent there are liens held by any third party, Tenant will satisfy those liens in full....

Paragraph 11 provides:

This agreement does not release nor impair any right of the Landlord to proceed under the certain Rental Guaranty executed by Tom Billante dated February 24,1997.

Amerishop did not provide notice to Bil-lante that La Fontaine Restaurant had failed to pay its rent nor did it seek payment of the past due rents until June 20, 2000, one year and three months, after La Fontaine Restaurant defaulted on then-lease payments. On June 20, 2000, Amer-ishop filed its complaint to enforce the terms of the rental guaranty against Bil-lante.

After a bench trial, the trial court entered a final judgment in favor of Billante. The court found that the guarantor’s obligation terminated after the debtor’s obligation was discharged by the lease termination agreement and Amerishop took the instant appeal.

Amerishop argues that pursuant to the terms of the rental guaranty, Billante remained liable for the tenant’s breach of the lease. Amerishop further argues that the common law rule, that a guarantor is released by the release of the principal debt- or, was contractually altered by the specific language placed in the rental guaranty; the rental guaranty was enforceable against Billante as La Fontaine Restaurant was insolvent; no formal proceeding was required to determine La Fontaine Restaurant’s insolvency as a condition precedent to bringing suit; and even if a formal proceeding was required, there was substantial evidence of the tenant’s insolvency admitted at trial. Billante responds, however, that Amerishop’s release of La Fontaine Restaurant from liability also released him from all obligations under the guaranty. We agree.

A contract of guaranty is the promise to answer for the payment of the debt, default or performance of another. Nicolaysen v. Flato, 204 So.2d 547, 549 (Fla. 4th DCA 1967). The law is settled that the release of the debtor constitutes a release of the guarantor. See Matey v. Pruitt, 510 So.2d 351, 353 (Fla. 2d DCA 1987)(if debtor’s obligation has been paid or otherwise satisfied, the guarantor’s obligation is terminated). This is because where the debtor has been released, there is nothing left for the guarantor to secure. Id.

In the present case, the express terms of the rental guaranty indicated, among other things, that Billante agreed to be absolutely liable for all damages that arose from the tenant’s breach of the lease and that his obligations would be “extensive with and remain in effect as long as tenant’s obligations.” Hence, to the extent that the tenant had obligations under the lease, so did Billante. Pursuant to this agreement, if the tenant defaulted within the two year period described in the contract and the tenant remained obligated to the landlord, the landlord could obtain relief from Billante. It follows that once the tenant’s obligations ceased, Billante’s obligations ceased also. We therefore conclude that Billante’s obligations terminated once the lease termination agreement discharged La Fontaine Restaurant’s obligations. Jordan v. Keys Cove Marine, Inc., 719 So.2d 378 (Fla. 3d DCA 1998). See also Matey, supra.

Amerishop, however, maintains that because the lease termination agreement contained language that it did not release or impair any right of Amerishop to proceed under the rental guaranty against Billante, Billante remained liable. We disagree where Billante was not a party to this lease termination agreement and did not consent to the same. For this reason, Amerishop’s reliance upon the decision of New Market Acquisitions, Ltd. v. Powerhouse Gym, 154 F.Supp.2d 1213 (S.D.Oh.2001) is misplaced.

In New Market, the guarantor expressly agreed in the guaranty agreement to remain liable for all damages even where the landlord released the tenant from further obligations. Id. at 1221;(empha-sis added). The New Market court recog nized that but for the clear language of the guaranty that shows that the guarantors expressly agreed to remain liable for all damages even if the landlord released the tenant, the settlement agreement entered into between the landlord and tenant would have resulted in a compete discharge of the guarantor. The guaranty in the present case does not purport to hold the guarantor liable for damages in the event of a release of the tenant and is therefore distinguishable.

Finally, and as an additional ground for affirmance, we note that the rental guaranty in this case provided that the guaranty could only be amended or modified by an instrument in writing executed both by the landlord and guarantor. Here, Billante never executed the lease termination agreement or received notice of it for that matter. The tenant’s execution of the lease termination agreement, independent of the guarantor, therefore, could not bind Billante as guarantor.

Accordingly, we affirm the final judgment under review.

Affirmed.

      . The first two years of the lease were defined as the twelve month period commencing on the first day of January of the calendar year immediately succeeding the commencement date and each twelve month period thereafter. The two year lease period according to this definition started in January 1998 and ended on December 31, 1999. Billante would be responsible for a period of six months after any default by the tenant.

      . La Fontaine Restaurant's rent delinquency was approximately $336,000.00.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Barry GREENBERG, and Thomas D. Lardin, Esquire, Appellants, v. Evelyn VAN DAM, as Personal Representative of the Estate of Fulton P. Greenberg, Appellee.
    No. 3D02-710.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2002.
    Thomas D. Lardin; and Michael D. Ci-rullo, Fort Lauderdale, for appellants.
    Paul H. Bass, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   RAMIREZ, J.

Barry Greenberg and his counsel, Thomas D. Lardin, appeal from a final order awarding attorney’s fees pursuant to section 57.105, Florida Statutes (1999). Evelyn Van Dam cross-appeals from the denial of an award of a bonus fee. We reverse the award of fees and affirm the denial of a bonus fee.

Fulton Greenberg and his wife, Hor-tence Greenberg had two children, Barry Greenberg and Evelyn Van Dam. The Greenbergs executed wills on August 25, 1988, and the principal beneficiary under both of their wills was Barry Greenberg. Hortence died in 1996 and subsequently Fulton’s health deteriorated. He was diagnosed with dementia in March of 1999. In February of that year, Van Dam moved in with him on weekends. One month after Van Dam moved in with her father, Greenberg was informed that his father 'had revoked a power of attorney, previously given to Greenberg, and that the power of attorney was now given to Van Dam.

Fulton Greenberg executed a new will on May 5, 1999. During that month, Van Dam moved in full time with her father. A joint checking account that Greenberg had with Fulton was closed and a new one opened up with Van Dam, who was also added as the beneficiary on numerous certificates of deposit. There was also deposition testimony from Fulton’s housekeeper that Fulton did not understand why he was executing a new will on May 5, 1999.

A petition for appointment of guardian was filed on May 21, 1999. Ultimately, in this guardianship matter, the judge issued letters of limited guardianship of the person and property. However, the committee did not indicate a lack of capacity with regard to the execution of a will or waiving the provisions of an existing will. The court appointed Van Darn as limited guardian.

Fulton Greenberg died on April 11, 2000. Greenberg filed a petition to revoke probate on January 17, 2001. The basis for the revocation was a lack of testamentary capacity and undue influence by Van Dam. Van Dam answered the petition denying all material allegations. She also filed a request for compulsory judicial notice of Greenberg’s previous petition to determine incapacity and a motion for summary judgment, arguing that there is a presumption of testamentary capacity and there was a previous guardianship proceeding, which constituted estoppel by judgment. The lower court denied the motion without prejudice.

Van Dam subsequently filed a renewed motion for summary judgment and the trial court granted the motion concluding that Fulton Greenberg had the necessary testamentary capacity and that there was a lack of evidence of undue influence. Greenberg did not appeal from that summary judgment.

Van Dam then filed a motion for section 57.105 attorney’s fees against Greenberg and Lardin, Greenberg’s attorney, as a sanction. The trial court awarded Van Dam attorney’s fees against both Green-berg and his attorney. Later, in a separate order, the trial court determined that $9,480.00 was a reasonable fee and awarded that amount to Van Dam against Greenberg and Lardin. However, the trial court denied Van Dam an award for the “success bonus” of $15,000.00, that she had agreed to pay her attorney if she prevailed in this matter.

The trial court’s conclusion “was reached after discovery was conducted and [appellants were] unable to present a scintilla of evidence in support of [their] position.” Although we might agree that it may have been frivolous to challenge Fulton Greenberg’s testamentary capacity considering the result of the previous litigation, we cannot agree that there was no basis to support a claim of undue influence. In Allen v. Estate of Dutton, 394 So.2d 132, 134 (Fla. 5th DCA 1980), the court stated that to raise a presumption of undue influence, a petitioner must show “(1) the existence of a confidential or fiduciary relationship between the decedent and the procurer of a will; (2) the active participation of the procurer in the planning and drafting of the will; and (3) the realization by the procurer of a substantial benefit under the provisions of the will.” (citing In Re Estate of Carpenter, 253 So.2d 697 (Fla.1971); In Re Estate of Nelson, 232 So.2d 222 (Fla. 1st DCA 1970)). We hold that the facts of this case gave rise to such a presumption. Section 57.105 reads as follows:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds 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.

As there was a presumption of undue influence at the onset of the litigation, it is axiomatic that the claim, when initially presented, was “supported by the material facts necessary to establish the claim.” It may be that at some point in the litigation it became apparent that the claim could not be supported, but that was not the basis of the trial court’s ruling.

We are thus compelled to reverse the award of fees. Obviously, we agree with the trial court that no “bonus fee” was appropriate.

Affirmed in part, reversed in part, and remanded.


author: PER CURIAM.

text:
    Lonnie Raymond LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-3418.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2002.
    Rehearing Denied Jan. 21, 2003.

      Nancy C. Wear, Coral Gables, and Hilli-ard E. Moldof, Fort Lauderdale, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

A jury found the Defendant guilty of an organized scheme to defraud, eight counts of second-degree communications fraud, and 28 counts of third-degree communications fraud. The trial court sentenced him to two years in prison plus probation and ordered restitution to each of the victims. We affirm in part and reverse in part, and write to address only whether the State presented enough evidence to sustain the communications fraud counts where the victims did not testify.

These convictions resulted from a vending machine business owned by the Defendant. He advertised 20 vending routes already in place “in your area” in various city newspapers around the country. There were actually no established vending routes anywhere. The advertisement gave a telephone number. The number connected the customer to a “fronter,” or person who explained the investment opportunity. The fronter would give the customer a name and number of a reference, or “singer,” who would discuss his or her investment in the business.

After talking to the reference, the customer would receive a UPS package providing accurate details about the machines. Once the customer decided to buy, he or she would again talk to a “closer.” The customer would then sign a contract and wire or mail funds. The machine would go out to the customer’s home, and another, usually sub-contracted, company would help the customer find a location for the machine.

The State established at trial that there were never any vending routes in any of the advertised cities. At least one singer testified that he did not own any machines yet he received a paycheck to recount that he owned 10-12 machines and they each had 12-20 vends per day. All evidence showed that the buyers actually received working vending machines on their doorsteps; the State’s case was against the representations made about the nature of the business.

The State established this business procedure largely through the Defendant’s bookkeeper’s testimony. The State walked the bookkeeper through a mound of documents seized from the Defendant’s headquarters. The bookkeeper described the file notations as to which singer spoke with the customer, when the UPS packages were sent out and copies of the wire or money order the customer sent back.

The Defendant claims on appeal that his constitutional right to confrontation was violated by the 18 communication fraud convictions where the victim did not testify. We disagree. The Defendant’s right to confront his witnesses was satisfied because the State used business records, not witness testimony, to show the element of communication. Witness testimony was not required for the State to make its prima facie case; therefore, the Defendant’s constitutional right to confront the witnesses against him was not triggered. We reverse, however, those counts where the State did not prove a communication in furtherance of the scheme through documentation.

To decide whether the State made its prima facie case without witnesses, we examined the Florida Communications Act and federal mail fraud precedent.

“Any person who engages in a scheme to defraud and in furtherance of that scheme, communicates with any person with the intent to obtain property from that person is guilty, for each such act of communication, of communications fraud.” § 817.034(4)(b), Fla. Stat. (2001).

Further, the stated legislative intent of the Act was “to prevent the use of communications technology in furtherance of schemes to defraud by consolidating former statutes concerning schemes to defraud and organized fraud to permit prosecution of these crimes utilizing the legal precedent available under federal mail and wire fraud statutes.” § 817.034(l)(b), Fla. Stat. (2001).

Our reading of the statute does not require the communication itself to be fraudulent. The literal requirements of the statute are that the communication be: 1) in furtherance of the scheme to defraud and 2) made with the intent to obtain property. There is little Florida precedent analyzing the communications fraud portion of the Act. However, the second district has observed, “At the heart of the Act and the two federal statutes is the concept of ‘a scheme to defraud’ with the utilization of communication techniques as the means to accomplish a deceitful objective.” See Batten v. State, 591 So.2d 960 (Fla. 2d DCA 1991).

Like the second district, we looked to federal mail and wire fraud precedent as instructed by the Act. Federal precedent requires but the slimmest connection of the scheme to defraud with the use of the mail; mailing seems to be the jurisdictional threshold rather than a substantive element. The use of the mail does not have to be an essential element of the scheme to defraud to sustain a mail fraud conviction. See United States v. Young, 232 U.S. 155, 34 S.Ct. 303, 58 L.Ed. 548 (1914). For example, in Pereira v. United States, an out-of-state check served as the “mailing” for mail fraud. 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954). Pereira convinced a wealthy widow to write him a check for fake investments. Her check was written against a California bank, and he tried to cash it in Texas. The Texas bank mailed the check to the California bank in the normal course of redeeming an out-of-state check. That mailing, from one bank to another in the normal course of cashing the check, served as the basis for a mail fraud conviction though the actual fraud took place in a face-to-face confrontation.

At the close of the State’s evidence, the Defendant moved to dismiss the 18 communication counts where the victims did not testify. He argued that at least one end of the communication was necessary to show the fraud within the communications.

The State argued in response that it did not have to show that each communication was fraudulent; just that there was a scheme to defraud and communication in furtherance of the scheme with the intent to obtain property. The State used the Defendant’s own tracking of client communications to establish the communication in furtherance of the scheme for the 18 counts where a victim did not testify. The State’s evidence in eight of the 18 counts were copies of purchase orders and shipping logs for the machines. These copies showed the dates that the machines were shipped and have the signature of the victims on the purchase orders for the machines. The State also had snack orders for nontestifying victims in those same eight counts plus eight other counts. The snack orders noted when the snacks were ordered, when they were shipped and the amount shipped. The Defendant did not object to those exhibits. The State’s evidence as to the remaining two counts were in “sales books.” The sales books had the customer name, the corresponding salesperson, the number of units sold and the payment amount received. From the transcript, the sales books appeared to be the salespeople’s total sales per month, not lists of individual communications.

We affirm the 16 communications fraud counts where the State entered actual purchase orders of machines or snacks. The orders and shipment records documented precise dates of communication. Testimony of office practice combined with the business records submitted established a rebuttable presumption that the mailings and phone conversations occurred as recorded. See Brake v. State, 473 So.2d 774 (Fla. 3d DCA 1985). The presumption was unrebutted by the defense. However, because the sales books did not appear to document any particular communications, we reverse the two counts of communication fraud where the sales books were the only evidence. From the record, these appear to be Counts 37 and 39.

Under federal and Florida precedent, an instance of a shipment or purchase order going through the mail or taken over the telephone appears to be enough to establish the communication for communications fraud. Under Pereira, even the customers actually mailing or wiring the payment in return for the machines would satisfy the communication required for communications fraud. See § 817.034(3)(d), Fla. Stat. (1999). The overall scheme to defraud was the advertisement that falsely held out the vending machine business to be through established routes where other investors already were making money, then referring customers to singers who proclaimed high returns. At least one singer testified he didn’t have any machines out at all. Though the communications’ content was unknown, the bookkeeper’s testimony established that the communications were in “furtherance of the scheme” and were made with the intent of obtaining property. Actually, in most cases, the State was able to present a copy of the checks with the date received, which was the property actually obtained.

We express concern with the employment of the communications fraud statute, because its breadth has the potential for ensnaring simply borderline unethical business practices. However, we agree with the second district’s analysis:

The “concern naturally arises that the criminal law will be used to hold businessmen to the maximum, rather than the minimum, standards of ethical behavior.” Be that as it may, we cannot override or ignore the legislature’s determination to create the Act and to provide the standard by which it is to be effectuated. Our uneasiness, no different from that expressed by others in this field, is tempered by the good faith and judgment of those charged with the responsibility to carry out Florida’s regulation of criminal activities. The judiciary, of course, furnishes the oversight capable of remedying abuse.

591 So.2d at 964 (citations omitted).

Like the second district, we find that the record supports the communications fraud convictions where the State had business record evidence of communication. However, we reverse the two communication fraud counts where the evidence, as shown in the transcript, did not provide evidence of any particular instance of communication.

In conclusion, the use of fictitious references to hold out that the vending machine investment was an established, lucrative enterprise combined with the use of the mail to communicate and receive payment seems exactly the type of practice the communications fraud statute was designed to punish.

REVERSED IN PART, AFFIRMED IN PART.

GUNTHER, FARMER and MAY, JJ., concur.


text:
    Jason MOJICA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-909.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 2002.
    Bennett H. Brummer, Public Defender, and Lisa Walsh, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Based on the State’s correct confession of error we vacate the defendant’s conviction and sentence on Count VI (resisting an officer without violence).


text:
    Daniel C. GEORGE, Appellant, v. BEACH CLUB VILLAS CONDOMINIUM ASSOC., Appellee.
    No. 3D02-526.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2002.

      Harvie S. Duval, North Miami; Louis C. Arslanian, Hollywood, for appellant.
    Fowler, White, Burnett, and David A. Friedman, Miami, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   RAMIREZ, J.

Daniel C. George appeals from a final judgment of foreclosure awarding Beach Club Villas Condominium Association, Inc., sums due for special assessments for termite damage repair, roof repairs and roof replacement. Beach Club Villas cross-appeals the portions of the judgment which invalidate the special assessment for replacement of the mansards and an award that gives George a credit for property damage. We affirm the award to Beach Club Villas for the termite damage repairs, the denial of the assessment to replace the roof mansards, and a credit to George for his property damage. However, we reverse the award for the roof repair and replacement assessments because this relief was not properly pled.

FACTS

In 1997, the City of North Miami Beach warned Beach Club Villas that it would be fined if the roof mansards were not painted and repaired. The mansards were covered with cedar shingles which were over twenty-five years old. The Association received several estimates and determined that changing to terracotta tiles would be half the cost of replacement with new cedar shingles. The Board of Directors then passed a special assessment to have the cedar shingles replaced with terracotta tiles.

Once work began on the shingle replacement, the roofers discovered termite damage. The mansard contract did not cover termite damage repairs, so the Board passed an additional special assessment for the repairs necessary to fix the termite damage.

George owns two units at Beach Club Villas and is on the Board of Directors. He attended all of the meetings in question and objected that the Board’s actions were illegal because all the unit owners should have been allowed to vote on the assessments. He did not pay any of the special assessments for either of his units.

In January 1999, Beach Club Villas moved to foreclose on its claim of lien for the mansard replacement and termite damage repair assessments on George’s units. George counterclaimed for property damage caused by roof leaks during the mansard replacement period. In August 1999, the Board voted for an assessment for roof repairs. In April 2000, the Board passed an assessment for roof and seawall repairs. At the beginning of trial, Beach Club Villas announced that it would also be seeking a judgment for these latter assessments under the January 1999 claim of lien. Beach Club Villas neither moved to amend its complaint nor did it file additional claims of lien.

The trial court concluded that the special assessment for replacing the mansard shingles was not valid because changing from wood to terracotta was a material alteration which required the vote of the entire Association pursuant to section 718.113(2), Florida Statutes (2000). The court awarded Beach Club Villas all sums due on the assessments for termite damage repairs, roof repairs, and roof replacement pursuant to section 718.116(5), Florida Statutes (2000), with a credit to George for damages caused by the roof leaks.

MAINTENANCE v. ALTERATION

We affirm the trial court’s award for the termite damage repair assessment. We also find no error in the trial court’s determination that the mansard work effected a material alteration of the property which required a vote of the unit owners.

In deciding whether the Board was required to obtain the approval of the entire Association to make repairs, we must first examine the nature of the proposed work. If it constitutes ordinary maintenance, the Board has the authority to make those repairs on its own. If the work constitutes a material alteration or a substantial addition, the Board must obtain the approval of the Association members. We thus affirm the award for the termite damage repairs assessment because it is hardly debatable that this undertaking constituted maintenance.

A more difficult issue is the trial court’s invalidation of the mansard replacement assessment. The Association argues that the work was necessary to maintain the common elements. See Ralph v. Envoy Point Condo. Assoc., Inc., 455 So.2d 454, 455 (Fla. 2d DCA 1984) (“Simply because necessary work for maintenance may also constitute alterations or improvements does not nullify a condominium Board’s authority and duty to maintain the condominium common elements.”). See also Farrington v. Casa Solana Condo. Assoc., Inc., 517 So.2d 70, 72 (Fla. 3d DCA 1987) (“The ‘business judgment rule’ will protect a corporation’s Board of directors’ business judgment as long as the Board acted in a ‘reasonable’ manner in passing the special assessment.”). Here, Beach Club Villas was faced with fines if the cedar shingles were not repaired and painted. Because the shingles were at the end of their useful life, the Association argues that it was reasonable for the Board to determine that replacement was the proper course of action. In fact, the Association asserts that the Board’s decision to use tile at half the cost of new shingles was not only reasonable, but prudent as well. The case law, however, does not support the Association’s argument.

In Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685, 687 (Fla. 4th DCA 1971), the court stated that “the term ‘material alteration or addition’ means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.” The court concluded that a change from wire screening to glass jalousie windows constituted a material and substantial alteration. Similarly, in Islandia Condo. Ass’n, Inc. v. Vermut, 501 So.2d 741, 743 (Fla. 4th DCA 1987), the court held that changing the color scheme of the development from one of multi-color clusters to one uniform color fell within the Sterling definitions of substantial, material alteration.

We thus conclude that the change from cedar shingles to barrel tiles constituted a substantial and material alteration in appearance. The trial court’s conclusion to that effect was supported by competent, substantial evidence. See Cottrell v. Thornton, 449 So.2d 1291, 1292 (Fla. 2d DCA 1984) (stating that whether the proposed changes were substantial additions or alterations, or necessary repairs, was a question of fact for the trial court).

AWARD FOR ASSESSMENTS NOT PLED

We find error, however, in the trial court’s assessments for roof repairs and replacement which were not part of the pleadings. We reject the argument that the claim of lien for the mansard replacement and termite damage repairs can also serve to foreclose on these two assessments.

Section 718.116(5)(b), Florida Statutes (2002), states:

[t]o be valid, a claim of lien must state the description- of the condominium parcel, the name of the record owner, the name and address of the Association, the amount due, and the due dates.... The claim of lien shall secure all unpaid assessments ivhich are due and ivhich may accrue subsequent to the recording of the claim of lien and prior to entry of a certificate of title. (Emphasis added).

The trial court used the highlighted language to justify allowing Beach Club Villas to piggy-back new assessments even though they had not been pled. The word “accrue” references assessments already made before a claim of lien is filed, but coming due afterwards. The trial court thus interpreted the language of the statute as authorizing the inclusion of the two separate assessments made after the filing of the claim of hens in its award to Beach Club Villas.

Section 718.116(6)(a) states that the action to foreclose a lien is brought in the same manner as an action to foreclose a mortgage of real property. Section 718.116(3) references interest on assessments and installment payments on those assessments which are not paid when due. This language suggests that the statute does not refer to additional assessments for other purposes.

Even if we assume that the statute authorizes Beach Club Villas to piggy-back new assessments on its claim of lien, the Florida Rules of Civil Procedure still require parties to give their opponents notice of what is going to be tried. See Fla. R. Civ. P. 1.110(f)C‘Each claim founded upon a separate transaction or occurrence ... shall be stated in a separate count....”). This notice is provided through the pleadings. See Brown v. Gardens by the Sea South Condo. Assoc., 424 So.2d 181, 183 (Fla. 4th DCA 1983) (“[I]t is a fundamental rule that the claims and ultimate facts supporting same must be alleged [in the pleadings]. The reason for the rule is to appraise [sic] the other party of the nature of the contentions that he will be called upon to meet, and to enable the court to decide whether same are sufficient.”). As the relief awarded for these subsequent assessments were not part of the complaint, Beach Club Villas had to move to amend the pleadings to be able to recover these damages. See eg. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corp., 527 So.2d 211 (Fla. 3d DCA 1987). Here the complaint and the claim of lien sought to foreclose only for the mansard replacement and termite damage repair assessments. This is not a situation where a condominium is foreclosing on a claim of lien for failure to pay monthly assessments and several months have accrued since the filing of the complaint. This is a case where separate special assessments were made for other substantial repairs for which George may have different defenses. In fact, these later assessments may be considered distinct claims or “contracts” for which separate claims of lien must be filed. See Lee v. All Florida Const. Co., 662 So.2d 365, 366 (Fla. 3d DCA 1995) (stating that separate claims of lien must be filed for work done under separate contracts). Thus, these new claims added on the day of trial deprived George of due process.

We find no error in the trial court’s award of property damages on George’s counterclaim, but George is not entitled to attorney’s fees on his counterclaim because he failed to plead the statutory or contractual basis on which he sought fees. See Dealers Ins. Co. v. Haidco Invest. Ents., Inc., 638 So.2d 127, 129-30 (Fla. 3d DCA 1994).

Affirmed in part, reversed in part.


author: WARNER, J.

text:
    John CHAPMAN and Terry G. VILLAIRE, Appellants, v. KING MOTOR COMPANY OF SOUTH FLORIDA, a Florida corporation, Appellee.
    No. 4D01-4993.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 16, 2003.

      Sharon C. Degnan and Diane H. Tutt of Diane H. Tutt, P.A., Plantation, for appellants.
    Ricardo A. Reyes of Tobin & Reyes, P.A., Boca Raton and Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauder-dale, for appellee.
   WARNER, J.

In this appeal, appellants/plaintiffs challenge the trial court’s order requiring the parties to arbitrate their case before they had the opportunity to conduct discovery and have an evidentiary hearing on the issue of the 'unconscionability of the arbitration clause. Because we conclude that an evidentiary hearing is required, we reverse.

Appellants filed a complaint for violations of the Motor Vehicle Retail Sales Finance Act, the Florida Deceptive and Unfair Trade Practices Act, and for fraud and deceit in connection with the purchase of an automobile from defendant. They further alleged that the arbitration agreement contained in the documents they signed was unconscionable. Without an evidentiary hearing, the trial court ordered the case to arbitration.

A trial court’s decision on the validity of an arbitration agreement is a matter of contract interpretation subject to de novo review. See Ocwen Fed. Bank FSB v. LVWD, Ltd., 766 So.2d 248, 249 (Fla. 4th DCA 2000). To support a finding of unconscionability sufficient to invalidate an arbitration clause, the court must find that the contract is both procedurally and substantively unconscionable. See Powertel, Inc. v. Bexley, 743 So.2d 570, 574 (Fla. 1st DCA 1999). On its face, the terms of the arbitration provision in this case reveal similar concerns as to its substantive un-conscionability as were found in Poivertel where it required appellants to waive certain legal remedies, including their consumer rights under the Deceptive and Unfair Trade Practices Act. See id. at 576. See also Bellsouth Mobility LLC v. Christopher, 819 So.2d 171, 173 (Fla. 4th DCA 2002). Appellants’ allegations of procedural unconscionability also raise issues of fact requiring an evidentiary hearing.

We therefore reverse and remand for the court to conduct an evidentiary hearing on the validity of the arbitration clause.

STEVENSON and TAYLOR, JJ., concur.


text:
    CARTIER-McDONALD CONSTRUCTION, INC., a Florida corporation, and Pete Cartier, Appellants, v. WATERVIEW DEVELOPMENT, INC., a Florida corporation, Appellee.
    No. 4D01-5035.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 16, 2003.
    Stanley Dale Klett, Jr. of Cohen, Conway, Copeland, Klett, Paiva & Merrill, P.A., Palm Beach Gardens, for appellants.
    Kenneth G. Stevens, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal and cross-appeal from a foreclosure of a mechanic’s lien. Water-view Development, Inc. initiated the litigation to foreclose a mechanic’s lien against Cartier-McDonald Construction, Inc., and its officer, Pete Cartier, (Cartier collectively) for work done on a sub-contract agreement that Cartier-McDonald made with Waterview to build the shell of a warehouse building. Cartier denied foreclosure and counterclaimed that Waterfront did not complete the work in a timely manner and the construction was poor. After a bench trial, the trial court gave Waterview the mechanic’s lien and gave Cartier a set-off for defective work proven at trial. Cartier appeals this final judgment as well as an attorney’s fees order. Waterview appeals the trial court’s denial of its motion for pre-judgment interest as untimely.

We affirm the final order and attorney’s fees order in all aspects without further explanation. However, we reverse the order denying pre-judgment interest. Cartier admitted in the briefs that the motion was not untimely but argued that prejudgment interest should be denied on the merits. Because the trial court denied the motion as untimely and did not rule on the merits of the motion, we are unable to entertain arguments on the merits. Therefore, we reverse only the order on pre-judgment interest and remand for the trial court to consider the merits of the pre-judgment interest motion.

AFFIRMED IN PART, REVERSED IN PART.

POLEN, C.J., GUNTHER and ■ HAZOURI, JJ., concur.


author: PER CURIAM. FARMER, J.,

text:
    Cynthia Jean MOORE a/k/a Cynthia Jean Suarez, Appellant, v. DEPARTMENT OF CORRECTIONS, STATE OF FLORIDA, Appellee.
    No. 4D02-714.
    District Court of Appeal of Florida, Fourth District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 21, 2003.

      Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for appellant.
    Ron Renzy of Wallberg & Renzy, P.A., Coral Springs, for appellee.
   PER CURIAM.

Cynthia Moore appeals the dismissal of her claims for negligence and false arrest against the Department of Corrections (DOC). We affirm.

Moore’s lawsuit stemmed from the following events. While she was on probation, a DOC officer filed an affidavit saying that she had not paid her probation fees. The trial court issued an arrest warrant for a probation violation. Subsequently, Moore’s probation was terminated, but Moore’s probation officer did not revoke the outstanding warrant. The DOC probation officer assigned to Moore acknowledged that the probation was terminated; however, this officer was not the same person who filed the earlier affidavit for probation violation. The arrest warrant remained outstanding, and Moore was arrested pursuant to that warrant. At the heart of Moore’s case is her contention that DOC had a duty to revoke the outstanding warrant for violation of probation once it received notice that her probation had been terminated. The alleged violation of this duty gave rise to her claims against DOC for negligence and false arrest.

For Moore to have an actionable negligence claim against a government entity, there must be a common law or statutory duty regarding the alleged negligent conduct. See Hinckley v. Palm Beach County Bd. of Comm’rs, 801 So.2d 193, 194-95 (Fla. 4th DCA 2001). Moore alleges that DOC had a common law duty not to subject her to a false arrest.

To analyze government tort liability, the supreme court divided government functions into four categories: I. legislative, permitting, licensing, and executive officer functions; II. enforcement of laws and the protection of the public safety; III. capital improvements and property control operations; and TV. providing professional, educational, and general services for the health and welfare of the citizens. Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 919 (Fla.1985). The supreme court held that there is no duty of care and no corresponding tort liability for discretionary functions within categories I and II. See id. at 919.

Enforcement of public assistance laws to prevent fraud and charges resulting from State Attorney’s office investigations have both been classified as discretionary category II functions which carry no duty of care to a particular individual. See Harris v. Kearney, 786 So.2d 1222, 1226 (Fla. 4th DCA 2001); see also State v. Kowalski, 617 So.2d 1099, 1099-1100 (Fla. 5th DCA 1993).

In Harris v. Kearney, Harris omitted a new temporary job from her food stamps application on the advice of a Department of Children and Families (DCF) worker. 786 So.2d at 1223. Similarly to the instant case, a different DCF worker filed an affidavit saying that this omission constituted food stamp fraud, and the lower court issued an arrest warrant on that basis. Harris sued DCF for false arrest. This Court ruled that DCF did not have a duty toward the plaintiff because the government function of enforcing compliance with the food stamp statutes was an example of a Trianon category II discretionary power that did not give rise to a common law duty of care to an individual. See id. at 1226.

Likewise, we hold that probation supervision is also a Trianon category II function involving enforcement of laws and protection of public safety. See 468 So.2d at 919. Probation supervision is a discretionary duty involving the interpretation of existing probation statutes and supervision of probationers to protect the public. It does not give rise to a common law duty of care to individual probationers.

Harris is also instructive on Moore’s false arrest claim. “To be liable for false imprisonment, a person must personally and actively participate, directly or indirectly by procurement, in the unlawful restraint of another person against their will.... Merely providing information to the authorities that a violation of law occurred is not sufficient to support an action for false arrest.” See Harris, 786 So.2d at 1225. We follow our determination in Harris that the DCF worker’s affidavit merely provided information. See id. at 1225-26. The probation officer’s action of filing an affidavit that a violation of law has occurred does not give rise to a false arrest claim. See id at 1225-26. Extending this logic, the DOC’s failure to withdraw a warrant which was based upon a probation officer’s affidavit likewise does not support a false arrest claim.

Under the analysis above, we do not reach the issue that was raised regarding whether DOC is protected by quasi-judicial immunity.

In sum, we- affirm the dismissal of Moore’s negligence and false arrest claims.

AFFIRMED.

GUNTHER and MAY, JJ„ concur.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

If a police officer negligently prepared an arrest warrant naming the wrong person, and that person was arrested and placed in confinement as a result of the negligence of the officer, surely no one would suggest that the innocent person has no civil remedy against the officer. If, instead, the officer belatedly learned of the error after the warrant was already issued and placed in the hands of area police for execution but did nothing to correct the error, surely the officer would equally be liable under the civil remedy. I can see no functional difference between these two hypothetical cases and the present suit. In either instance, the cause of action under our common law tort of false imprisonment is as old as our system of law. Granting a civil remedy in damages is, after all, nothing if not a legal recognition of the essence of liberty.

In her complaint plaintiff alleges both that the warrant never should have been issued in the first place — which concededly does involve a matter of discretion — and also that, after it was issued and the officer learned that her probation had been terminated, the officer did nothing to cancel the warrant. The majority has cited no authority to the effect that the latter allegation specifically is legally insufficient to state a claim of false arrest.

Nor as a jurisprudential matter should it be deemed insufficient. The State of Florida has no proper interest in safeguarding law enforcement officers from such negligence. That is to say, when its officers come to know that an outstanding arrest warrant is no longer legally sustainable— as here where probation was terminated and thus revocation was no longer possible — then its officers should have no proper discretion or law enforcement zeal to maintain such invalid warrants. It may seem a small thing that a former probationer is arrested, even if she thereby lost her job as a result of such negligence. But the law in its perceived majesty either protects the legitimate liberty interests of all its citizens, or its claim to liberty for all is itself false.

I would let plaintiff place her evidence before a jury and let six citizens decide whether there was negligence and, if so, the sum of any damages.


author: KLEIN, J.

text:
    MARTIN PROPERTIES, INC., an Illinois corporation, Appellant, v. FLORIDA INDUSTRIES INVESTMENT CORPORATION, Indian River Farms, Inc. and VOSR Industries, Inc., Appellees.
    No. 4D02-342.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2002.
    Rehearing Denied Jan. 13, 2003.

      Catherine M. Masters of Schiff, Hardin & Waite, Chicago, IL, Nicole Finitzo and Nathan A. Engel of Schiff, Hardin & Waite, Lake Forest, IL and Alan S. Po-lackwieh, Sr. of Clem, Polackwieh, Vocelle & Berg, LLP, Vero Beach, for appellant.
    William G. Osborne of William G. Osborne, P.A., Orlando, for appellees Florida Industries Investment Corporation and Indian River Farms, Inc.
    David H. Simmons and Julie Hions O’Kane of de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for ap-pellee VOSR Industries, Inc.
   KLEIN, J.

Appellant Martin Properties (MPI) appeals an order denying it standing to challenge an assignment of the equity of redemption involving property on which MPI had been the high bidder at a mortgage foreclosure sale. We reverse.

Florida Industries Investment Corporation (FIIC) owned land subject to several mortgages. After the property went into foreclosure, FIIC contacted MPI, a lender, for assistance in saving the property. The parties negotiated but did not consummate a loan prior to the foreclosure sale.

MPI, however, did bid at the foreclosure sale and was the high bidder at $1,570,000. It paid that amount to the clerk who disbursed the funds to the lienors. FIIC then objected to the clerk issuing a certificate of title, alleging that MPI had committed a fraud by taking the property for itself. FIIC claimed that MPI and FIIC had agreed that another entity, Indian River Farms, was to be the purchaser at the foreclosure sale using funds loaned by MPI.

The court overruled FIIC’s objections to the sale, and FIIC then purported to assign its equitable right of redemption to VOSR Industries (VOSR). VOSR attempted to exercise that right by tendering the full amount due to the clerk which the clerk rejected.

At that point FIIC and Indian River Farms appealed the order overruling their objection to the foreclosure sale. We held on that appeal that the foreclosure sale was proper, but remanded for the trial court to determine if MPI had standing to contest the validity of the assignment of the right of redemption and if the assignment was valid. Indian River Farms v. YBF Partners, 777 So.2d 1096 (Fla. 4th DCA 2001).

On remand the trial court ruled as a matter of law that MPI did not have standing. Because there was no other party contesting the assignment, the court ruled, based on stipulated facts, that the assignment was valid, and that VOSR was entitled to redeem.

FIIC urges us to affirm the trial court’s holding that MPI had no standing to challenge the validity of the assignment because MPI was neither a party to it nor a third party beneficiary of it. That, however, is not the test. In General Development Corp. v. Kirk, 251 So.2d 284, 286 (Fla. 2d DCA 1971), the court explained:

Standing is, in the final analysis, that sufficient interest in the outcome of litigation which will warrant the court’s entertaining it. It is beyond doubt that standing is, in most states, no longer determined by first determining some abstract question such as “privity.”

If, in the present case, the assignment of the equity of redemption was not valid, MPI, as the successful bidder at the foreclosure sale, will own the property. This is sufficient to give MPI standing.

As to the merits, MPI argues that the assignment is not valid because it was not signed in the presence of two subscribing witnesses as is required by section 689.01, Florida Statutes (1999), our land conveyance statute. While there are no Florida cases addressing whether the equity of redemption is an interest in land covered by section 689.01, MPI has cited authority from other jurisdictions which support its argument. Fidelity Mut. Sav. Bank v. Mark, 112 Wash.2d 47, 767 P.2d 1382 (1989); Perry v. Safety Fed. Sav. & Loan Ass’n of Kansas City, 25 Ariz.App. 443, 544 P.2d 267 (1976).

Appellees argue that witnesses were present and observed the execution of the assignment by FIIC, even though the witnesses did not sign as attesting witnesses until months later. They cite Medina v. Orange County, 147 So.2d 556 (Fla. 2d DCA 1962), in which the court held that a deed was valid even though one of the subscribing witnesses did not sign until after the deed was delivered and recorded, and other authorities.

Because the trial court found MPI had no standing, it did not reach either the legal or factual issues involving the assignment and, consistent with our prior opinion, we reverse for resolution of those as well as other issues raised by the parties which were not addressed by the trial court.

Finally MPI argues that in determining the amount VOSR would have to pay to redeem, the court erred in not requiring VOSR to pay interest on the amount MPI paid in at the 1999 foreclosure sale. The funds paid by MPI at the foreclosure sale were disbursed to the lenders on the various mortgages. When VOSR attempted to exercise the equity of redemption, it tendered the proper amount, but the clerk of the court refused to accept it.

Our redemption statute, section 45.0315, Florida Statutes (1999), requires the tender to include the “reasonable expense of proceeding to foreclosure” and we stated in the prior appeal that payment of the “debt, interest and costs” is necessary to exercise the right of redemption. Indian River Farms, 777 So.2d at 1099. We also pointed out that when VOSR tendered its payment to the clerk in order to exercise the right of redemption, the clerk of the court erred in failing to accept the tender. Id. at 1100.

VOSR recognizes that the statute requires interest to be paid up to the time of tender, but argues that this only means a tender which occurs shortly after the foreclosure sale, not a tender which is delayed by litigation. We disagree. The intent we glean from this statute is that the successful bidder at the foreclosure sale, where there is a redemption, should be made whole to the extent reasonably possible.

As we noted earlier, VOSR tendered the proper amount necessary to redeem in 1999, but the clerk erroneously rejected it. If the clerk had accepted it, MPI would have been reimbursed and would not have suffered the loss of use of the money. This property is obviously more valuable than the amount of redemption, and we see no reáson why, under the facts in this case, the party who becomes the owner should not bear the carrying costs.

We accordingly hold that if the trial court finds VOSR is entitled to redeem, the amount necessary to redeem should include interest at the statutory rate on the funds paid by MPI from the date the funds were paid in 1999 to the date of redemption.

Reversed.

STEVENSON and TAYLOR, JJ., concur.

      . MPI did not appeal the order holding that it did not have standing to challenge the assignment, and waited to raise that issue by appealing the subsequent order determining the validity of the assignment and the amount necessary to redeem. Appellees have moved to dismiss the appeal on the ground that MPI should have appealed the order on standing; however, we have concluded that because MPI still had an interest in the amount necessary to redeem, as that would affect how much MPI would be refunded from what it paid as the successful bidder at the foreclosure sale, the order on standing was not final. Appellees' motion to dismiss the appeal is therefore denied.


author: WARNER, J. GROSS, J.,

text:
    STATE of Florida, Appellant, v. Foskie McCORD, Appellee.
    No. 4D01-4485.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2002.
    Rehearing Denied Jan. 16, 2003.

      Richard E. Doran, Attorney General, Tallahassee, and Judy Hyman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellee.
   WARNER, J.

The state appeals an order granting a motion to suppress DNA evidence taken from the defendant by means of police trickery. The trial court held that the defendant did not freely and voluntarily consent to the search of his body when he gave saliva samples. We affirm the trial court’s ruling.

Detective Brian Cahir, assigned to investigate twenty-two separate armed robberies in the Lake Worth and Palm Beach areas, focused his attention on Foskie McCord, appellant, as a possible suspect. In a majority of the robberies, bricks were used to smash the front doors of the convenience stores at gas stations. McCord became a suspect when he was stopped with a brick and bag while allegedly casing an Amoco gas station.

The detective followed McCord around town hoping to catch him committing a criminal violation. When McCord was in county jail, having been arrested on unrelated charges, the detective met with McCord, advised him of his Miranda rights, and told him that he was a suspect in a rape case. He told McCord that the rape had occurred at the same location of McCord’s car on a certain date. The detective convinced McCord to provide a saliva sample when he told McCord it could exclude him from the rape investigation. The detective wanted the sample to make a DNA comparison with blood recovered at the scene of one of the robberies. At no time did the detective mention that McCord was a suspect in any armed robberies.

After having been charged in the robberies, McCord moved to suppress the DNA evidence obtained from the saliva samples on the ground that his consent was involuntary and obtained in violation of his due process rights as a result of the detective’s deceitful tactics. At the suppression hearing, the detective acknowledged that the sexual battery never occurred, that McCord was never a suspect, and that he completely fabricated the story to obtain McCord’s consent. Jndeed, the detective admitted he believed McCord consented only because he wanted to clear his name in the fictional rape case.

The state contended that trickery did not render the consent invalid because McCord clearly was not coerced and voluntarily gave his consent to secure the samples. Because the saliva sample was taken upon the “premise of a fictitious rape to which the detective knew was non-existent,” the court determined that McCord involuntarily consented and suppressed the evidence, prompting this appeal.

A warrantless search does not violate the Fourth Amendment if the search is conducted pursuant to a consent freely and voluntarily given. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). To determine whether a consent is voluntary, the totality of circumstances must be examined. See id. at 227, 93 S.Ct. 2041; accord Washington v. State, 653 So.2d 362, 364 (Fla.1994). Those circumstances include whether the person is detained; the length of the detention; any subtly, coercive police questions; the education, intelligence, and possible vulnerable subjective state of the person; and the lack of effective warnings. See Schneckloth, 412 U.S. at 226, 229 and 248, 93 S.Ct. 2041. A detective’s misrepresentations as to the nature of the investigation may provide evidence of coercion. See United States v. Briley, 726 F.2d 1301, 1304 (8th Cir.1984). A critical factor in this case is whether the officer’s deception undermined the voluntariness of McCord’s consent.

In the context of obtaining a confession, the use of police trickery may result in the exclusion of the confession depending upon the level of trickery employed. See Thomas v. State, 456 So.2d 454, 458 (Fla.1984). For instance, in Frazier v. Cupp, 394 U.S. 731, 737-38, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), the defendant, a suspect in a murder case, was read his rights and brought in for questioning. After officers misrepresented to him that his cousin had confessed to the killings, the defendant confessed. Emphasizing the totality of the circumstances, the court held the officer’s misrepresentation was insufficient to render the confession inadmissible. See id. at 739, 89 S.Ct. 1420. Unlike McCord, however, the defendant knew he was being questioned about the murder and that his cousin’s statements related to that murder.

Similarly, in Washington, the defendant was a suspect in both a murder case and an unrelated rape case. The officers interviewed the defendant with respect to the rape case, read him his Miranda rights, and obtained his consent to take hair and blood samples by telling him that it would prove or disprove his guilt in the rape case. Washington, 653 So.2d at 363-64. The officers then compared the samples with the evidence in the murder case. The officers, however, were never untruthful with the defendant. They simply did not tell him that they also could use the samples in the murder case. The supreme court held that once the samples were validly obtained in connection with the rape case, the officers were not precluded from using that evidence in the murder case. See id. at 364.

Unlike the officers in Frazier and Washington, who did not lie to the defendants regarding the crimes for which they were suspects, the detective in this case fabricated a rape charge to obtain McCord’s consent. Even the detective testified that McCord consented to giving a sample only because he wanted to clear his name in a non-existent case. We agree with the trial court that this deception, while McCord was in jail, was so manipulative that his “consent” did not “validate the search.”

Finally, the state argues that we should follow United States v. Andrews, 746 F.2d 247, 250-51 (5th Cir.1984), overruled on other grounds by U.S. v. Hurtado, 905 F.2d 74 (5th Cir.1990), wherein a court upheld trickery to elicit the defendant’s consent. In Andrews, a federal agent, with a search warrant, naming the defendant, detained the defendant in his motel room but told him he was not under arrest. The agent read the defendant his Miranda rights, and the defendant agreed to talk. The agent asked the defendant, a convicted felon, if he had any guns. The defendant acknowledged that he had guns at home. This in itself was a crime, for which the agent intended to charge the defendant, but he never advised the defendant of that purpose. Instead, he misled the defendant by telling him a person fitting his description had been connected to various robberies in which a sawed-off shotgun was used. The agent asked to inspect the defendant’s shotguns. Driving his own vehicle while the officers followed, the defendant went to his home and produced the guns. The court affirmed the denial of the motion to suppress on the ground that the defendant’s consent had been voluntarily given. Examining the totality of circumstances, the court noted that the defendant was never under arrest and that he drove alone in his own vehicle. See id. at 251. While the agent may have misled the defendant regarding the crime he was investigating, there was no evidence to suggest that the defendant’s will was overborne. See id.

The state’s reliance on Andrews is misplaced. While the court found that trickery was used, the defendant freely admitted to the possession of a firearm before the officer made up his story about the robberies. Unlike the defendant in Andrews, McCord was in county jail, was never out of the presence of police, and the fictitious rape was used to induce the consent to search.

For these reasons we affirm the trial court’s ruling.

HAZOURI, J., concurs.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I concur in the majority opinion, but I find the analysis to be difficult because of the different focus that applies in the coerced confession cases.

In Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), the Supreme Court held that the voluntariness of defendant’s consent to search is to be analyzed by a voluntariness test “essentially like that which had been used by the Court for years.in the coerced confession cases.” Wayne R. LaFave, Search and Seizure § 8.2 (3d ed.1996).

In coerced confession cases, police deception has not been deemed to compel the exclusion of statements given after the misrepresentation. Thus, in Burch v. State, 343 So.2d 831, 832-33 (Fla.1977), the police convinced a defendant to take a pretended polygraph examination and then falsely informed him that he had failed the test. The supreme court held that under the totality of the circumstances the confession was admissible, pointing to the absence of “physical coercion common to confessions deemed invalidated.” Id. at 833. In State v. Manning, 506 So.2d 1094 (Fla. 3d DCA 1987), the third district found a confession to be voluntary notwithstanding the police misrepresentation to the defendant concerning his medical records. The difference between the confession cases and consent to search cases appears to be that in the confession cases the supreme court places greater emphasis on whether the police deception has rendered confessions “unreliable.” See Escobar v. State, 699 So.2d 984, 987 (Fla.1997), abrogated on other grounds, Connor v. State, 803 So.2d 598, 607 (Fla.2001).

The bottom line in this consent case is, as Professor LaFave has written, that the test the court has applied is “to ask if the deception is ‘fair,’ ... the question which must be asked under the Schneckloth formulation.” Laeave, § 8.2(n). As the Court noted in Schneckloth:.

there is no “ready definition of the meaning of ‘voluntariness’ rather, that term merely reflects an accommodation between the need for effective enforcement of the criminal law and “society’s deeply felt belief that the criminal law cannot be used as an instrument of unfairness.”

LaFave, § 8.2(n) (quoting Schneckloth, 412 U.S. at 224-25, 93 S.Ct. 2041). I agree with the majority that United States v. Andrews, 746 F.2d 247 (5th Cir.1984), does not control this case. There are factual differences in Andrews which are not present here. In a totality of the circumstances analysis, it is the circumstances which distinguish the cases on a case-by-case basis.


author: LEWIS, J.

text:
    ENTERPRISE LEASING CO. SOUTH CENTRAL, INC., Appellant, v. William W. HUGHES, Jr., etc., Appellee.
    No. 1D01-4821.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2002.

      B. Richard Young of Young, Bill & Fu-gett, P.A., Pensacola, for Appellant.
    R. Waylon Thompson of Manuel & Thompson, P.A., Panama City; Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Appellee.
   LEWIS, J.

Enterprise Leasing Company South Central, Inc., appellant, challenges the trial court’s finding that Chapter 99-225, Laws of Florida, violates the single subject rule under Article III, Section 6 of the Florida Constitution. Because each of the sections within Chapter 99-225 naturally and logically connect with the subject expressed in the title, we hold that Chapter 99-225 does not unconstitutionally violate the single subject rule. In addition, appellant contends that section 324.021, Florida Statutes (2000), which limits the liability of short-term motor vehicle lessors, does not deny access to courts, deny the right to a jury trial, violate the equal protection clause of the Florida Constitution, or violate the due process clause of the Florida Constitution. We agree. Accordingly, we reverse.

I. Factual Background

Appellant leased a motor vehicle to Earnest and Chris Jordan. Subsequently, on February 24, 2000, the vehicle driven by Chris Jordan crossed the center line and collided with the vehicle being driven by William W. Hughes, Sr. William W. Hughes, Sr. died immediately upon impact. Martha Hughes, his passenger, died seventy-eight days later from complications due to the accident.

William W. Hughes, Jr., appellee, as personal representative of the estates of William W. Hughes, Sr. and Martha Hughes, filed a -wrongful death action against appellant on June 30, 2000. Appel-lee alleged that appellant was liable for Jordan’s negligence under the dangerous instrumentality doctrine. Subsequently, appellant filed a Motion to Limit Damages Pursuant to Section 324.021, Florida Statutes. It asserted that it was only liable to appellee for the statutory maximum of $220,000.

In appellee’s response to appellant’s Motion to Limit Damages Pursuant to Section 324.021, appellee argued that section 324.021 was unconstitutional. Appellee claimed that Chapter 99-225, which amended section 324.021, violated the single subject rule of the Florida Constitution. Appellee also claimed that section 324.021 denied access to courts, the right to a jury trial, as well as equal protection to the most seriously injured claimants and to the physically handicapped. In addition, appellee contended that the statute denied due process.

On July 3, 2001, appellant offered $134,000 in settlement of appellee’s claims on behalf of William W. Hughes, Sr.’s estate. Appellee accepted the offer. Appel-lee proceeded to trial on claims raised on behalf of Martha Hughes’ estate. A jury awarded appellee $176,594.36 for medical and funeral expenses as well as $180,000 in past and future pain and suffering to the survivors. Thereafter, the trial court denied appellant’s Motion to Limit Damages Pursuant to Section 324.021. The trial court found that Chapter 99-225 violated the single subject rule under Article III, Section 6 of the Florida Constitution. This appeal follows.

As appellant raises constitutional questions, this Court reviews the trial court’s order de novo. See, e.g., Ocala Breeders’ Sales Co. v. Fla. Gaming Ctrs., Inc., 731 So.2d 21, 24 (Fla. 1st DCA 1999). When a trial court has declared a state law unconstitutional, the appellate court must begin the review process with the presumption that the law is constitutional. See id.; see also Dep’t of Ins. v. Keys Title and Abstract Co., 741 So.2d 599, 600 (Fla. 1st DCA 1999). The party challenging the law has the burden of showing beyond a reasonable doubt that the law is unconstitutional. See Chicago Title Ins. Co. v. Butler, 770 So.2d 1210, 1214-15 (Fla.2000).

II. Single Subject Rule

Appellant first argues that the trial court erred in finding Chapter 99-225 in violation of the single subject rule. We agree. Article III, Section 6 of the Florida Constitution provides, in pertinent part, that “[ejvery law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” The purposes of the single subject rule are to prevent ‘logrolling’ legislation, or putting two unrelated matters in one act, and to prevent surprise of provisions in the act which were not indicated by the title and which might be overlooked and carelessly and unintentionally adopted. See State v. Canova, 94 So.2d 181, 184 (Fla.1957). An act may be as broad as the Legislature chooses provided that the matters involved in the act have a natural or logical connection. State v. Johnson, 616 So.2d 1 (Fla.1993); Chenoweth v. Kemp, 396 So.2d 1122 (Fla.1981), receded from on other grounds by Sheffield v. Superior Ins. Co., 800 So.2d 197 (Fla.2001). The test for determining whether legislation meets the single subject rule is “whether the provision is a necessary incident to the subject expressed in the title or tends to make effective or promote the object of the legislation.” Tormey v. Moore, 824 So.2d 137, 141 (Fla.2002).

Contrary to appellee’s representation at oral argument, the title of Chapter 99-225 is “An act relating to civil actions.” See ch. 99-225, at 1400, Laws of Fla. Chapter 99-225 contains thirty-six sections, and each of these sections reflects either a substantive or procedural change in a civil action. The Legislature raised the burden of proof in certain circumstances, provided new defenses, established presumptions, limited recovery of damages, and required alternative dispute resolution in certain instances. The individual sections in Chapter 99-225 promote the unexpressed goal of the act, which is to control some of the perceived excesses of civil litigation. This is most readily apparent in sections 15 to 19, which expanded the immunity from liability for defendants. In addition, sections 20 and 23, which place limits on the recovery of damages, exhibit an intent to restrain any excesses of civil actions. Although the act does not contain any legislative findings or expressed intent, section 33 of Chapter 99-225 provides evidence of the Legislature’s intent to control civil litigation. Section 33 requires the Office of Program Policy Analysis and Government Accountability to contract for an actuarial analysis to determine the:

expected reduction in liability judgments, settlements, and related costs resulting from the provisions of this act. The analysis shall be based on credible loss cost data derived from settlement or adjudication of liability claims accruing after the effective date of this act. The analysis shall include an estimate of the percentage decrease in such judgments, settlements, and costs by type of coverage affected by this act, including the time period when such savings or reductions are expected.

Ch. 99-225, § 33, at 1428, Laws of Fla. Although the title of the act is broad in its coverage, each section of the act is logically and naturally connected to the subject expressed in the title. The sections are necessary incidents to this subject and promote the object of the act.

The supreme court has rejected single subject challenges even when an act is lengthy, containing multiple sections and seemingly different topics. As long as all of the sections within the act can be unified under one umbrella of legislative intent, the Florida Supreme Court has upheld the constitutionality of the act. For instance, in State v. Lee, 356 So.2d 276, 278 (Fla.1978), the supreme court reviewed Chapter 77-468, Laws of Florida, which contained forty-four sections addressing both tort reform and insurance. The ap-pellees in Lee argued that the act contained “at least two separate subjects, insurance and tort reform.” Id. at 282. Only a few sections of the act specifically addressed tort litigation; the remaining sections related to increases in automobile insurance rates and related insurance problems. Id. The supreme court concluded that, although the act was “broad and comprehensive,” the matters therein were naturally and logically connected. Id.

Similarly, in Smith v. Department of Insurance, 507 So.2d 1080, 1083 (Fla.1987), the supreme court reviewed the Tort Reform and Insurance Act of 1986, Chapter 86-160, Laws of Florida. The act contained seventy sections, which the court divided into five categories, each category containing sub-categories. Id. at 1085-86. The supreme court held that each section was integral to the Legislature’s one goal of ensuring the “availability of affordable liability insurance.” Id. at 1087. The court rejected appellant’s contention that the provisions therein dealing with contract actions violated the single subject rule, interpreting the- act as applying to both tort and contract “claims for personal injury and property damage.” Id.

In contrast, the supreme court has concluded that an act violates the single subject rule when an offending provision is glaringly different in nature from the remaining provisions of the act in such a manner that cannot be reconciled with the title or scope of the act. In State v. Thompson, 750 So.2d 643 (Fla.1999), the supreme court addressed the constitutionality of Chapter 95-182, Laws of Florida, which addressed both career criminal sentencing and domestic violence. The first six sections of the act amended the habitual offender statute by creating the sentencing category for violent career criminals, creating the offense of “possession of a firearm by a violent career criminal,”’and amending various other procedural provisions. Id: at 647. The other three sections created a civil cause of action for damages for violation of a domestic violence injunction, a cause of action for victims of repeated domestic violence, and imposed obligations on clerks of the court and law enforcement regarding domestic violence injunctions. Id. The supreme court concluded that the career criminal provisions and the civil domestic violence provisions addressed two different subjects with no overarching legislative statement of a crisis that might connect the two. Id. at 648.

In Heggs v. State, 759 So.2d 620, 624-25 (Fla.2000), the supreme court invalidated Chapter 95-184, Laws of Florida, because the very same civil domestic violence provisions in Thompson were incorporated into “an act relating to the justice system.” Six sections related to sentencing guidelines; six sections amended various substantive criminal statutes; eleven sections amended various statutes addressing substantive crimes and sentencing enhancement; two sections amended gain-time and control release statutes; eight sections amended various statutes relating to monetary compensation for crime victims; the last three sections addressed domestic violence. Id. at 625. The supreme court again concluded that the civil domestic violence provisions were not logically connected to the criminal provisions and that no crisis existed to require combining the two. Id. at 626.

Chapter 99-225, in contrast to the acts addressed in Thompson and Heggs, addresses only civil litigation. The act does not contain any provisions unrelated to the subject of the act as expressed in the title. In addition, the individual provisions of the act promote the goal of the legislation by limiting the perceived excesses of civil litigation. Therefore-, Chapter 99-225 does not violate the single subject rule. See Tormey, 824 So.2d at 141. Accordingly, we reverse the trial court’s order declaring Chapter 99-225 unconstitutional.

Although the trial court did not specifically address the following constitutional challenges in its order finding Chapter 99-225 unconstitutional, we address these challenges and determine that th'e trial court could not have found section 324.021, as amended by Chapter 99-225, unconstitutional on the other grounds raised by appellee in the proceedings below.

III. Right of Access to Courts

Appellant contends that section 324.021 does not violate a plaintiffs right to access the courts. Article I, Section 21 of the Florida Constitution states: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” The leading case in a constitutional challenge to the right of access to courts is Kluger v. White, 281 So.2d 1 (Fla.1973). In Kluger, the supreme court invalidated a statute requiring a minimum of $550 in property damages arising from an automobile accident before bringing an action. The supreme court held that:

where a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. § 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

281 So.2d at 4. In Smith, the Florida Supreme Court also invalidated a portion of a tort reform statute that placed a maximum recovery amount on all non-economic damages because the statute did not provide claimants with a commensurate benefit. 507 So.2d at 1088. Therefore, the Legislature clearly cannot restrict damages by enacting either a minimum damage amount or a maximum damage amount without meeting the Kluger test. Id.

Appellant contends that no clear common law right or statutory right to sue a short-term lessor under the dangerous instrumentality doctrine exists and, therefore, Kluger does not apply. Alternatively, appellant argues that even if Kluger applies, section 324.021(9)(b)2, Florida Statutes (2000), passes the reasonable alternative remedy prong of the test. That is, the statute does not prevent the plaintiff from bringing a cause of action against the lessee.

The statutory right to a cause of action for negligence for injuries resulting from an automobile accident existed prior to the adoption of the 1968 Constitution of the State of Florida. See Kluger, 281 So.2d at 4. However, there was no statutory right to sue a long-term lessor of an automobile for injuries resulting from negligent operation of that automobile by lessees. See Abdala v. World Omni Leasing, Inc., 583 So.2d 330, 332 (Fla.1991). Similarly, prior to the adoption of the 1968 Florida Constitution, there existed no statutory right to hold short-term lessors of an automobile vicariously liable for injuries resulting from negligent operation of that automobile by a lessee.

The dangerous instrumentality doctrine is a part of Florida’s common law. See Ady v. Am. Honda Fin. Corp., 675 So.2d 577, 581 (Fla.1996). The supreme court first extended the common law dangerous instrumentality doctrine to automobiles in 1920. See Southern Cotton Oil Co. v. Anderson, 80 Fla. 441, 86 So. 629 (1920). Not until Kraemer v. General Motors Acceptance Corp., 572 So.2d 1363 (Fla.1990), had the dangerous instrumentality doctrine been applied to long-term lessors of automobiles. However, although not applied to lessors of automobiles until Kraemer, the dangerous instrumentality doctrine itself existed at common law. Therefore, the holding in Kluger applies to this case. Cf. Cauley v. City of Jacksonville, 403 So.2d 379, 385 (Fla.1981) (stating that as there was no statutory right to recover for a municipality’s negligence predating the Declaration of Rights contained in the Florida Constitution or a common law cause of action as of July 4, 1776, Kluger was not applicable).

It does not follow, however, that section 324.021 restricts a party’s access to court. Section 324.021(9)(b)2, Florida Statutes (2000), provides that:

The lessor, under an agreement to rent or lease a motor vehicle for a period of less than 1 year, shall be deemed the owner of the motor vehicle for the purpose of determining liability for the operation of the vehicle or the acts of the operator in connection therewith only up to $100,000 per person and up to $300,000 per incident for bodily injury and up to $50,000 for property damage. If the lessee or the operator of the motor vehicle is uninsured or has any insurance with limits less than $500,000 combined property damage and bodily injury liability, the lessor shall be liable for up to an additional $500,000 in economic damages only arising out of the use of the motor vehicle. The additional specified liability of the lessor for economic damages shall be reduced by amounts actually recovered from the lessee, from the operator, and from any insurance or self-insurance covering the lessee or operator. Nothing in this sub-paragraph shall be construed to affect the liability of the lessor for its own negligence.

This section merely limits the liability of short-term lessors. It does not preclude an individual suffering from injuries arising from a vehicle accident from suing the lessee or operator of the vehicle. The statute reduces responsibility for damages arising from the fault of others but preserves full liability for compensatory damages caused by one’s own fault. The statute merely caps the amount of damages for the vicarious liability of the lessor. A plaintiff can always recover additional damages from the lessee or operator. Therefore, as the Legislature did not abolish an individual’s right to sue lessors of automobiles for injuries arising out of an accident involving that automobile, section 324.021 does not violate the holding in Kluger. See Abdala, 583 So.2d at 333 (concluding that, in regards to long-term lessors, the “Legislature can determine the circumstances permitting vicarious liability without violating the holdings of Kluger ”). Thus, we conclude that section 324.021 does not limit a plaintiffs right of access to the courts.

IV. Right to Trial by Jury

Appellant next argues that neither the language nor the operation of section 324.021 denies appellee the right to a trial by jury. Article I, Section 22 of the Florida Constitution provides that the “right of trial by jury shall be secure to all and remain inviolate.” Section 324.021 does not violate this section of the Florida Constitution by limiting plaintiffs right to trial by jury. Under this statute, a jury still retains the ability to fully assess all damages against those at fault. Section 324.021 merely limits a plaintiffs available damages from the owner of the vehicle. A plaintiff retains the ability to recover fully from the lessee or operator of the vehicle. Cf. Smith, 507 So.2d at 1088-89 (stating that a statute which limits full recovery of economic damages prevents a plaintiff from receiving the constitutional benefit of a jury trial). Accordingly, we hold that section 324.021 does not limit a plaintiffs right to trial by jury.

V. Equal Protection/Due Process

Appellant finally argues that appel-lee failed to sustain his burden of showing that section 324.021 violates the equal protection and due process clauses of the Florida Constitution. It contends that the Legislature’s amendments to section 324.021 are reasonably related to the amendment’s objective to reform the civil justice system. The statutory caps apply across the board and do not invite arbitrary and discriminatory enforcement. Appellee contends that the statute discriminates against those suffering serious and catastrophic injuries by eliminating the lessor as a source of recovery.

In equal protection and due process challenges, the test is whether the statute bears a reasonable relationship to a legitimate legislative objective and is not discriminatory, arbitrary, or oppressive. See Chicago Title Ins. Co., 770 So.2d at 1210; Abdala, 583 So.2d at 333. In Abdala, the supreme court addressed the constitutionality of section 324.021(9)(b), Florida Statutes (1987), as it applies to long-term leases. The supreme court flatly rejected any contention that section 324.021(9)(b) violated equal protection or due process. 583 So.2d at 334. The court stated that the statute does not “discriminate against plaintiffs suffering the worst injuries by eliminating possible recovery from the lessor in view of the unlimited ability to recover from the lessee.” Id.

Similarly, section 324.021(9)(b), as it applies to short-term leases, does not discriminate against plaintiffs suffering the worst injuries. The damages cap applies to all plaintiffs. The statute does not contain any arbitrary or oppressive classifications. Furthermore, the present version of section 324.021 serves a legitimate purpose. The statute was intended to recompense others for injury to person or property caused by the operation of a motor vehicle. See § 324.011, Fla. Stat. (2000). Although the statute, as amended, reduces the vicarious liability of short-term lessors, a plaintiff can still be recompensed from the lessee or operator of the vehicle.

Appellee argues that section 324.021(9)(c) is not rationally related to any legislative purpose because it arbitrarily limits the liability of car and truck rental companies, but not the liability of any other business which rents or lends a vehicle. Section 324.021(9)(c)l. was added pursuant to Chapter 99-225. It provides that:

The limits on liability in subparagraphs (b)2. and 3. do not apply to an owner of motor vehicles that are used for commercial activity in the owner’s ordinary course of business, other than a rental company that rents or leases motor vehicles. For purposes of this paragraph, the term “rental company” includes only an entity that is engaged in the business of renting or leasing motor vehicles to the general public and that rents or leases a majority of its motor vehicles to persons with no direct or indirect affiliation with the rental company. The term also includes a motor vehicle dealer that provides temporary replacement vehicles to its customers for up to ten days.

This section is rationally related to a legitimate legislative purpose. Through Chapter 99-225, the Legislature sought to shift some of the responsibility for damages due to the operation of the motor vehicle from the owner of a motor vehicle to the operator/lessee of the vehicle in short term leases. See H.R. Comm, on Judiciary, Analysis of HB 775. The statute shifts more of the liability to the actual tortfeasor.

The statute also does not arbitrarily limit the liability of car and truck rental companies while excluding other commercial businesses which lend vehicles. Section 324.021(9)(c)l. includes within the definition of “rental company” those businesses that provide temporary vehicles to its customers up to ten days. This is a reasonable period of time. Generally, customers would not need a replacement vehicle for a period longer than ten days. Thus, appel-lee has not shown beyond a reasonable doubt that section 324.021 violates the equal protection and due process clauses of the Florida Constitution and has not overcome the presumption that the statute is constitutional. We, therefore, hold that section 324.021 does not violate the equal protection and due process clauses of the Florida Constitution.

VI. Conclusion

Because Chapter 99-225 contains only one subject and each of its sections naturally and logically connect with the subject expressed in the title, we conclude that the act does not violate the single subject rule. Furthermore, we hold that section 324.021, as amended by Chapter 99-225, is constitutional and does not violate the right of access to courts, the right to a jury trial, and the equal protection and due process clauses of the Florida Constitution. Accordingly, we reverse and remand for further proceedings.

REVERSED and REMANDED for further proceedings.

MINER, J, CONCURS; WOLF, J., CONCURS WITH WRITTEN OPINION.

WOLF, J., concurring.

I agree with the decision and reasoning supporting reversal as to the single subject issue. As the trial court did not reach the other issues, I would decline to address them.


text:
    MASCI CONSTRUCTION, INC., Appellant, v. SOUTHEASTERN MUNICIPAL SUPPLY CO., a division of Clayton Group, Inc., Appellee. Lyndon Property Insurance Co., Appellant, v. Southeastern Municipal Supply Co., a division of Clayton Group, Inc., Appellee.
    Nos. 2D02-2691, 2D02-2705.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2002.
    James J. Gangitano of Law Offices of James J- Gangitano, Orlando, for Appellants.
    Diane E.H. Watson of Eduardo F. Mor-rell, P.A., Lakeland, for Appellee.
   PER CURIAM.

In these consolidated appeals, Masci Construction, Inc., and Lyndon Property Insurance Co. argue that the trial court erred by transferring venue to Seminole County instead of Orange County. Based on Southeastern Municipal Supply Co.’s concession of error, we reverse and remand for the trial court to transfer venue to Orange County.

Reversed and remanded.

BLUE, C.J., and FULMER and STRINGER, JJ., Concur.


text:
    Michael A. TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4237.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2002.

      Michael A. Torres, Crestview, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. New v. State, 807 So.2d 52, 53 (Fla.2002); Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980); Martin v. State, 809 So.2d 65 (Fla. 5th DCA 2002).

GUNTHER, STONE and GROSS, JJ., concur.