author: NORTHCUTT, Judge.

text:
    Irene J. PRIDGEN, Appellant, v. FIRST UNION BANK, Appellee.
    No. 2D03-2311.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.
    Rehearing Denied June 8, 2004.
    Irene J. Pridgen, pro se.
    Mark Broderick of Echevarria & Associates, P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

This case arises from a mortgage foreclosure. Irene Pridgen previously filed an untimely appeal from the final judgment of foreclosure, and this court dismissed it for lack of jurisdiction. Roughly twenty-five months after the foreclosure judgment was rendered, Pridgen filed this appeal, directed to an order scheduling the foreclosure sale.

An order that merely schedules a foreclosure sale is not a final appealable order. Rather, it is a purely administrative, interlocutory step in the judicial sales process. See § 45.031(1), Fla. Stat. (2003). Neither is the order appealed here an appealable nonfinal order under Florida Rule of Appellate Procedure 9.130.

In any event, Pridgen’s brief makes no complaint about the order appealed. Rather, all of her arguments challenge the underlying foreclosure judgment, which was not timely appealed. We have no jurisdiction to grant her any relief in that regard. See Beal Bank, S.S.B., Inc. v. Sherwin, 829 So.2d 961 (Fla. 4th DCA 2002); Hoyt v. State, 810 So.2d 1007 (Fla. 4th DCA 2002).

For these reasons, we dismiss this appeal.

STRINGER and WALLACE, JJ., Concur.


source: Caselaw Access Project

author: STRINGER, Judge.

license: Public Domain

text:
    Dathan GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4180.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.
   STRINGER, Judge.

Dathan Gray appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, Gray alleged that the trial court erred in allowing a different trial judge to handle his resen-tencing, pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), without a showing.of necessity. This court has held that, without a showing of necessity, it is error to permit resentencing by a. different judge than the one who originally imposed sentence. Persaud v. State, 821 So.2d 411 (Fla. 2d DCA 2002); Campbell v. State, 622 So.2d 603 (Fla. 2d DCA 1993).

Because the trial court was correct in its order that this issue should have been raised on direct appeal, we affirm without prejudice to Gray filing a petition pursuant to Florida Rule of Appellate Procedure 9.141(c), alleging ineffective assistance of appellate counsel.

Affirmed without prejudice.

ALTENBERND, C.J., and FULMER, J., concur.


text:
    Alexander BAEZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D03-3377, 2D03-4694.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.
   STRINGER, Judge.

Alexander Baez seeks review of the order of the trial court summarily denying his motion to correct illegal sentence. In a separate case number, he appeals an order of the trial court summarily dismissing his motion for postconviction relief as duplica-tive of his motion to correct illegal sentence. On our own motion, we consolidated the two appeals and ordered the State to respond to Baez’s allegations that the trial court failed to comply with the terms of his plea agreement when it significantly increased three of his sentences following resentencing pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). The State concedes that these three sentences should be reversed and the cases remanded for imposition of the sentences originally imposed. We agree; therefore, we reverse and remand for resentencing.

Affirmed in part; reversed in part; and remanded.

ALTENBERND, C.J., and FULMER, J., Concur.


author: WALLACE, Judge.

text:
    Stevie WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3942.
    District Court of Appeal of Florida, Second District.
    April 30, 2004.
   WALLACE, Judge.

Stevie Woods appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s order without prejudice for Woods to raise this issue in a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. See Burgess v. State, 831 So.2d 137 (Fla.2002); Lopez v. State, 864 So.2d 1151 (Fla. 2d DCA 2003). Any such motion will not be considered successive and will be considered timely if filed within thirty days from the date of issuance of this court’s mandate in this proceeding.

ALTENBERND, C.J., and FULMER, J., Concur.


author: LEVY, Judge.

text:
    MIAMI-DADE COUNTY, Petitioner, v. Sherry MORELAND, Respondent.
    No. 3D04-252.
    District Court of Appeal of Florida, Third District.
    May 26, 2004.
    Rehearing Denied Aug. 4, 2004.
    Robert A. Ginsburg and William X. Candela, for petitioner.
    Donna M. Ballman, for respondent.
    Before SCHWARTZ, C.J., and LEVY, J., and COBB, WARREN H., Senior Judge.
   LEVY, Judge.

Miami-Dade County (“the County”) petitions for a Writ of Prohibition, seeking to prohibit the trial judge from exercising jurisdiction over Count VII of the Amended Complaint on the ground that Sherry Moreland (“Moreland”) voluntarily submitted herself and fully utilized the administrative review process provided by the County. We agree with the County, grant the Petition, and issue the writ.

Moreland was terminated from her position as a Corporal Officer pursuant to a Disciplinary Action Report (DAR) which indicated that Moreland violated several Corrections Department rules, stemming from Moreland’s romantic relationship with an ex-inmate out on parole whom she met while working at the Dade County Jail. Director Manning met with More-land to review the DAR, and, as a result, Moreland was terminated effective May 2, 1997.

Moreland appealed her termination pursuant to the County’s civil service appeals process. After a two-day evidentiary hearing, the Hearing Officer issued findings and recommendations, recommending that Moreland be suspended from May 3, 1997 until August 30, 1999 without pay. After reviewing the Hearing Officer’s recommendations, the transcript of the hearing, and the exhibits, the County Manager accepted the Hearing Officer’s findings but rejected the recommendation as to the appropriate level of discipline. The County Manager emphasized that Moreland’s failure to notify the Corrections Department regarding her paramour’s criminal activities was a serious offense and warranted a greater penalty. Consequently, the County Manager demoted Moreland to a non-sworn position of a comparable salary range for which she qualified, and suspended her. Moreland did not appeal from the County Manager’s decision to the Appellate Division of the Circuit Court as provided for in the Dade County Code and the Florida Rules of Appellate Procedure. Moreland was subsequently reinstated in October of 2000 to a non-sworn position with the Corrections Department as a Labor Supervisor III.

On November 9, 2001, Moreland filed a Civil Complaint. The County filed a Notice of Removal and the matter was removed to federal court. Summary Judgment was subsequently granted as to all of the federal claims and the state law discrimination claims under Florida’s Civil Rights Act. The remaining state law claims were remanded back to state court. Moreland v. Miami-Dade County, 255 F.Supp.2d 1304 (S.D.Fla.2002). After remand, the County moved for Summary Judgment as to the state claims. The court granted Summary Judgment as to Counts I and II but denied the County’s motion as to Counts VII, VIII and X.

Count VII alleges that the County Manager violated Moreland’s due process rights under the Florida Constitution when he demoted her from Correctional Officer to a non-sworn position in November 1999, and prays for reinstatement of her former position with back pay and compensatory damages. The County asks this Court to prohibit the trial court from exercising jurisdiction over Count VII of the Amended Complaint on the ground that Moreland voluntarily submitted herself to, and fully utilized, the administrative review process provided by the County. We agree with the County and find that Moreland’s only recourse with respect to Count VII was to appeal the County Manager’s decision to the Appellate Division of the Circuit Court.

Where a civil service employee pursues civil service administrative remedies, the employee is precluded from bringing an independent action in Circuit Court to challenge the propriety of the discharge. See Bass v. Metro Dade County Dep’t of Corr. and Rehab., 798 So.2d 835 (Fla. 3d DCA 2001) (citing City of Miami Springs v. Barad, 448 So.2d 510, 511 (Fla. 3d DCA 1983)); Cf., Depaola v. Town of Davie, 872 So.2d 377, 381-82 (Fla. 4th DCA 2004) (firefighter was able to pursue relief in Circuit Court and was not limited to administrative appeal where there was no administrative order after the town failed to process his grievance at all). This Court in Barad held that once the employee submits himself to the administrative review procedures provided by the Ordinance, the employee has been afforded a quasi-judicial hearing and is not entitled to a de novo hearing in Circuit Court on the claim. Instead, the employee must institute an appellate proceeding in the Circuit Court Appellate Division to review the adverse determination. Barad, 448 So.2d at 510.

In the instant case, Moreland was given notice of her termination and appealed pursuant to Section 2-47 of the Miami-Dade County Code. Thus, an evidentiary hearing was held before a hearing examiner who considered testimony and evidence from the parties. The County Manager then reviewed the Hearing Examiner’s Opinion and Recommendation, and although he accepted the hearing examiner’s factual findings, he ordered a heftier penalty, indicating: “I am troubled by your apparent lack of candor in the hearing.... [T]he Hearing Examiner found that your testimony was inconsistent at best. Your lack of complete candor calls your integrity as a Correctional Officer into question.” As a result, Moreland was not reinstated to the County service as a Correctional Corporal but was offered reinstatement to a non-sworn County position of a comparable salary range.

The County contends that Moreland received a quasi-judicial judgment, and her only recourse was to appeal the decision to the Circuit Court Appellate Division. We agree with the County’s position, and under the authority of Bass and Barad, grant the County’s Petition for Writ of Prohibition to preclude the circuit court from exercising jurisdiction over Count VII, and issue the writ.

Of necessity, in reviewing the merits of the one count in front of us (Count VII), we have come to realize that the remainder of the case lacks any substantial merit, but we are unable to rule on those counts consistent with that view because of the fact that those counts are not presently before us.


author: PETERSON, J. SHARP, W., J.,

text:
    SONNY BOY, L.L.C., Appellant, v. Bhagwan ASNANI, et al, Appellees.
    No. 5D03-59.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2004.
    Rehearing Denied Aug. 5, 2004.

      Chris A. Draper of Becker & Poliakoff, P.A., Maitland, for Appellant.
    Robert E. Kramer, Ormond Beach, for Appellee, Bhagwan Asnani.
    Bruce A. Hochstetler, Daytona Beach, for Appellee, Ken Lovell.
    Louis Ossinsky, Jr. of Ossinsky and Krol, P.A., Daytona Beach, for Appellee, Lenny Mallero.
   PETERSON, J.

Sonny Boy, L.L.C., (“Sonny Boy”), appeals the trial court’s order denying its ore terms motion to amend the complaint and granting motions for judgment on the pleadings filed by Bhagwan Asnani, (“As-nani”), Ken Lovell, (“Lovell”), and Lenny Mallaro, (“Mallaro”), (collectively “Appel-lees”), as well as an order denying Sonny Boy’s motion for rehearing.

Sonny Boy filed a complaint against the Appellees seeking personal liability for breach of fiduciary duty as members of the board of directors of Fountain Beach Condominium Association. Sonny Boy alleges that the Appellees failed to cause the condominium association to maintain and repair specifically alleged items of common elements and that failure caused Sonny Boy to suffer damages from the loss of use and rental income of units owned by Sonny Boy in the condominium. The complaint alleges that Asnani was a director designated by the condominium developer but does not allege that the others were appointed in that manner, although Sonny Boy asserts this in its brief. Sonny Boy also asserts that because Asnani, as developer, designated both himself and Lovell as directors under section 718.303(l)(c), they are held to a stricter standard for any wrongful acts than elected directors under section 718.303(l)(d) which requires that the wrongful acts also be willful and knowing.

Section 718.303(1), Florida Statutes (2002), provides in part:

(1) Each unit owner, each tenant and other invitee, and each association shall be governed by, and shall comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws and the provisions thereof shall be deemed expressly incorporated into any lease of a unit. Actions for damages or for in-junctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against:
(c) Directors designated by the developer, for actions taken by them prior to the time control of the association is assumed by unit owners other than the developer.
(d) Any director who willfully and knowingly fails to comply with these provisions.

The statute is deficient in that it provides no guidance, standard or reason for distinguishing in section 718.303(l)(c) and seetion 718.303(l)(d) between directors who are “designated by the developer” and “any director.” If a higher standard was intended to apply to directors designated by the developer, that standard was not included in the statute. Courts have not directly addressed the distinction between the two sections, but have established the standards to follow when presented with the issue of director liability. Florida cases discussed below focus on section 718.303(l)(d) and allow us to conclude that Florida courts have adopted the “Business Judgment Rule” when faced with determining whether a director, whether or not designated by the developer, has breached a fiduciary duty in maintaining, repairing or replacing association property. The “rule” suggests that the decisions of directors will not be questioned unless there is a showing of fraud, self-dealing, dishonesty or incompetency.

It is well established in Florida that absent fraud, self-dealing and betrayal of trust, directors of condominium associations are not personally liable for the decisions they make in their capacity as directors of condominium associations. See, e.g., Perlow v. Goldberg, 700 So.2d 148 (Fla. 3d DCA 1997) (finding directors of condominium associations not individually liable for actions and governance of condominium association); Taylor v. Wellington Station Condominium Association, Inc., 633 So.2d 43 (Fla. 5th DCA 1994) (finding that in general, corporate directors and officers cannot be personally liable for corporate acts absent actual wrongdoing in the form of fraud, self-dealing or unjust enrichment to trigger individual liability); Munder v. Circle One Condominium, Inc., 596 So.2d 144 (Fla. 4th DCA 1992) (reversing lower court’s finding of individual liability by condominium developer). Similarly, section 617.0834(1), Florida Statutes (2002) and section 607.0831(1), Florida Statutes (2002) provide insulation for condominium association directors from liability in their individual capacities absent fraud, criminal activity, self-dealing, or unjust enrichment. Perlow, 700 So.2d at 149.

Sonny Boy alternatively contends that the trial court abused its discretion by denying its ore tenus motion to amend the complaint and in entering a judgment on the pleadings. This court’s standard for reviewing a lower court’s ruling on a motion to amend a complaint is an abuse of discretion. E.g., Video Independent Medical Examination, Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001). “[Rjefusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Id. (quoting Spradley v. Stick, 622 So.2d 610, 613 (Fla. 1st DCA 1993)). At the hearing on the matter, Sonny Boy requested that the court grant it leave to amend the complaint to allege that the actions of Appellees were willful. However, Sonny Boy never requested leave to amend the complaint to state allegations of fraud, self-dealing or unjust enrichment. The complaint likewise only alleged failure to conduct maintenance and repairs, allegations which are not indicative of fraud, self-dealing or unjust enrichment. Unless a basis for fraud, self-dealing or unjust enrichment existed the Appellees could not be held personally hable and amending the complaint to simply allege willfulness would not cure the deficiency. Perlow, 700 So.2d at 150 (holding that owner’s claim that trial court erred in dismissing complaint without leave to amend is without merit because there was no evidence the owners did, intended to, or could allege facts which would take this case out of the general rule that directors are immune from individual liability absent fraud, criminal activity, self-dealing or unjust enrichment). Accordingly, the trial court did not abuse its discretion in entering a judgment on the pleadings.

We affirm the judgment.

TORPY, J., concurs.

SHARP, W., J., dissents, .with opinion.

SHARP, W., J.,

dissenting.

I disagree that Sonny Boy failed to state a cause of action against Asnani because the complaint filed against him alleged he was the developer of the condominium, and that he appointed himself as the president of the Fountain Beach Condominium Association. In that capacity, the complaint alleged Asnani breached his statutory, as well as fiduciary duties owed to the Association and unit owners by failing to repair, and maintain an extensive list of equipment and parts of the common elements, after full knowledge of the repair and maintenance problems. Because section 718.303(l)(c), as discussed below, does not require proof that developer-appointed directors’ malfeasances be willful or knowing in order to establish personal liability, the trial court erred in dismissing the complaint against Asnani for failure to state a cause of action. ' ■

I also disagree that Sonny Boy’s complaint against Mallaro and Lovell should have been dismissed without an opportunity to amend, to add the words “willful and knowing.” The allegations against them were identical to those against Asnani, except there were no allegations that they were developer-appointed directors. Thus,, pursuant to section 718.303(l)(d), Sonny Boy would have to establish that their misconduct rose to a higher level than Asnani’s, equivalent to willful .and knowing omissions to repair and maintain the common elements of the condominium.

Failure to include the words “willful and knowing” was the basis for the trial court’s dismissal of all three counts. The court also refused Sonny Boy’s motion to amend the pleadings to include those words because it was “too late” — the case had been pending for over two years. Normally, the trial judge should be accorded broad discretion in such matters.

However, in this case, a prior judge had previously ruled that the “willful and knowing” language was not required, thus explaining why the amendment had not been undertaken earlier. Further, the allegations that Lovell and Mallaro knew about the maintenance and repair problems and took no steps to remedy them, and counsel for Sonny Boy’s representations to the court that after having conducted discovery in the case he could, in good faith, allege and prove that heightened misconduct on their parts, makes the dismissal in favor of these two defendants inequitable, in my view.

The essence of Sonny Boy’s complaint against all three defendants was that although they had been notified of a long list of serious equipment failures and lack of repairs to the condominium common elements, they, as well as the Association, took no steps to fulfill their statutory duties to maintain and repair. This caused Sonny Boy damages because it was unable to rent the units it owned in the condominium and it suffered loss of income. Sonny Boy also sought injunctive relief against the Association to require it to make the repairs and undertake the required maintenance. Later in the proceedings, the plaintiff dropped the Association as a party to this action.

I. Asnani

Asnani was alleged to be a developer-appointed director, and the developer of the condominium, and to have acted or failed to act in that capacity. There is a difference between the standard of conduct imposed on elected directors of owner-controlled condominium associations, in order to escape personal liability than that imposed on developer-appointed directors of the association before control of the association has been turned over to the owners. Section 718.303(1) creates the difference. It provides:

(1) Each unit owner, each tenant and other invitee and each association shall be governed by, and shall comply with the provisions of this chapter, the declaration, the documents creating the association and the association bylaws and the provisions thereof shall be deemed expressly incorporated into any lease of a unit. Actions for damages or for in-junctive relief or both for failure to comply with these provisions may be brought by the association by a unit owner against:
(a) The association;
(b) A unit owner;
(c) Directors designated by the developer for actions taken by them prior to the time control of the association is assumed by unit owners other than the developer;
(d) Any director who willfully and knowingly fails to comply with these provisions, (emphasis supplied)

These provisions have been part of Florida’s condominium statute since 1976. See 718.303(1), Fla. Stat. (Supp.1976); Fla. Laws § .1, ch 76-222. They continued unchanged following the extensive legislative revisions of 1990 and 1991. A related provision was added in 1984 to section 718.301(5) not directly applicable in this case, but which is consistent with holding developer-appointed directors to a higher standard of care. It provides:

If during the period prior to the time that the developer relinquishes control of the association pursuant to subsection (4), if any provision of the Condominium Act or any rule promulgated thereunder is violated by the association, the developer is responsible for such violation and is subject to the administrative action provided in this chapter for such violation or violations and is liable for such violation or violations to third parties. The subsection is intended to clarify existing law.

The Uniform Condominium Act, as well as other states’ condominium laws, reflects similar provisions, although not identical to Florida’s, imposing a different standard of care for association directors’ personal liability, depending on whether or not they are elected by the unit owners, or appointed by the developer, and holding the later to a higher standard. Section 3-103 of the Uniform Act provides:

On performance of their duties, the officers and members of the executive board are required to exercise (i) if appointed by the declarant, the care required of fiduciaries of the unit owners, and (ii) if elected by the unit owners, ordinary and reasonable care.

The Comment to this provision explains:

Higher standards for appointed board members is imposed because the board is vested with great power over the property interests of unit owners and great potential for conflicts of interest exist between owners and developers.

On the other hand, elected directors, after control of the association has shifted to the unit owners, have much less potential for experiencing a conflict of interest with other unit owners or the association. And if held to a high standard of fiduciary care and exposed to potential personal liability, it would be difficult to find anyone willing to serve as an association director or officer.

In B & J Holding Corp. v. Weiss, 353 So.2d 141 (Fla. 3d DCA 1977), the court imposed personal liability on the director-appointed officers and directors of the condominium association, using tort principles rather than chapter 711, the condominium statute then in effect. These defendants were the first director-appointed officers and directors of the association. It was established that they failed to assess the developer-owned units the maintenance fees due the association. They were held accountable to the association for breach of their fiduciary duties. Some of the pleadings and motions in this case indicate similar accusations may lie against Asnani for failure to pay maintenance fees to the association for developer-owned units.

A similar issue was posed in Oceancrest Condo. Apartments, Inc. v. Donner, 504 So.2d 447 (Fla. 4th DCA 1987). The court held that allegations that the developer-appointed directors of the association violated the condominium statutes and breached their fiduciary duties, by failing to collect assessments on the condominium units owned by the developer, stated a cause of action against them personally, under tort theory as well as chapter 718. The court stated that the developer-appointed directors had acted contrary to the interests of the association in failing to collect the fees, thereby benefitting either themselves or the entity that appointed them. It described this conduct as “willful” and a breach of the director’s fiduciary duties.

The majority opinion in this case concludes that although there is a different provision in section 718.303(1), which deals with developer-appointed directors’ personal liability for acts or omissions prior to turning control of the association to the unit owners, than the one for elected directors after turn over, no higher standard can be imposed on developer-appointed directors because the statute fails to say what standard is intended. If that were the Legislature’s intent, then two paragraphs should not have been needed. Section (d) requiring “willfully and knowingly” is all that is required.

In my view, two different standards were intended and clearly imposed by these provisions. The standard of conduct to which developer-appointed directors are intended to the held is the same as the other entities in section 718.308(1), for which no special standard is set forth in the statute either; the association, the unit owner and the tenant. Breach of a requirement of the condominium statute, or the condominium documents, or breach of a fiduciary duty should suffice to establish personal liability. See Garcia v. Crescent Plaza Condominium Ass’n, Inc., 813 So.2d 975 (Fla. 2d DCA 2002) (endorsing the “business judgment rule” for condominium associations).

In Board of Managers of the Fairways at North Hills Condo. v. Fairway at North Hills, 193 A.D.2d 322, 603 N.Y.S.2d 867 (1993), the court answered the questions posed by this case as one of “first impressions,” in that state. It held that sponsor appointed board members (director-appointed) owe fiduciary duties to unit owners. It defined that duty as one to perform their duties “in good faith and with that degree of care which an ordinary prudent person in a like position would use under similar circumstances.” 603 N.Y.S.2d at 869. The court reasoned that the first board of directors is often synonymous with the sponsor (developer) and is linked with the sponsors’ legitimate pursuit of lawful profits. Thus it assumes a dual role. As a consequence, the court said a condominium’s first board of managers is subject to a high standard of care to ensure its members do not gear their decisions to benefit the sponsor at the expense of the association or its members. See also Board of Managers of Weathersfield Condo. Ass’n v. Schaumburg Ltd.Partnership. 307 Ill.App.3d 614, 240 Ill.Dec. 336, 717 N.E.2d 429 (1999).

II. Mallero and Lovell — Willful and Knowing Standard.

There are many cases in Florida cited by the majority opinion in this case, which have taken an even more restrictive view of condominium association director personal liability than is suggested by the language in section 718.303(1). Willful and knowing is not enough. I do not understand how the courts took that track. Appellees rely on Munder v. Circle One Condo., Inc., 596 So.2d 144 (Fla. 4th DCA 1992) and Perlow v. Goldberg, 700 So.2d 148 (Fla. 3d DCA 1997).

Munder did not involve a suit against a director of a condominium association. There was no condominium association or director in existence at the time the alleged transgression took place. Rather, in Munder, the condominium association sued the developer of the condominium for acts it took prior to creating the association. The developer was a corporation and the condominium sought to sue not only the developer-corporation, but its president as well, seeking individual liability. The court held that the developer-corporation was liable for failure to renew a fire insurance policy on the condominium clubhouse. But it held there was no personal liability for the officer of the developer-corporation unless something more than officer status was established, such as fraud, self-dealing, unjust enrichment, betrayal of trust, or some basis to “pierce the corporate veil.” Clearly section 718.303(1) was not involved, nor was it mentioned.

Perlow dealt with (apparently) owner-elected condominium association board members — not director-appointed ones, for acts taken prior to turn over of control of the association to the unit owners. As described by Judge Nesbitt, the transgressions alleged in that case were negligent acts at most — the failure to properly administer insurance proceeds after hurricane Andrew. I agree with the result in that case, based on the language of section 718.303(l)(d). However, the court went far beyond what was necessary to resolve the personal liability issue by declaring that chapter 607 and chapter 617, which deal with corporations in general, control the issue of condominium association director liability.

Both section 617.0834(1) and section 607.0831(1) limit personal liability of directors of non-profit and for profit corporations to misdeeds arising to the level of criminal law violations, deriving personal benefits, reckless acts, and acts committed in bad faith or with a malicious purpose. To construe those provisions as part of the condominium statute, chapter 718, construction of the statutes, in essence, writes out the “willfully and knowingly” language in section 718.303(l)(d), and the higher fiduciary language implied in section 718.303(l)(c). Taking this view deprives both provisions of section 718.303(1) of any impact, because the general corporation statutes require a plaintiff establish a great deal more than “willfully and knowingly” in order to impose personal liability for directors whether or not they are developer-appointed or elected by unit owners.

In my view, this is an erroneous construction. The provisions of the Florida Condominium Act should control the issue of personal liability for condominium association directors. The condominium entity, however ancient, is purely a creature of statute. The specific statute governing and creating condominiums in Florida should control a more general statute. Further, section 718, 111(2), relied upon in Perlow provides in full:

The powers and duties of the association include those set forth in this section and, except as expressly limited or restricted in this chapter, include those set forth in the declaration and bylaws and chapters 607 and 617 as applicable, (emphasis supplied)

This section applies to associations, not directors. And, it provides chapter 718 controls condominium associations, where in conflict with chapters 607 and 617. Section 718.303(1) is in conflict with section 617.0834(1) and 607.0831(1).

Nor do the other cases cited by appel-lees in this case appear to me as controlling in the decision of this case. With regard to personal liability of director, Avila South Condo. Ass’n, Inc. v. Kappa Corp., 347 So.2d 599 (Fla.1977), held that a director guilty of self-dealing may be held liable to the association for the amount by which he or she was unjustly enriched. Olympian West Condominium Ass’n, Inc. v. Kramer, 427 So.2d 1039 (Fla. 3d DCA 1983) held that developer-appointed directors are not personally liable to the association for the existence or failure to correct construction defects in the building caused by the developer. It states (rather tersely) that no breach of common law, statutory or contractual duty on the part of the directors had been alleged. In this case, a statutory duty to maintain and repair the common elements has been allegedly breached.

In Taylor v. Wellington Station Condo. Ass’n, Inc., 633 So.2d 43 (Fla. 5th DCA 1994), this court touched on some of the issues in this case. There, the condominium association sued a member of the board of directors personally. The defendant served on the first board of directors appointed by the developer and he owned a 25% interest in the developer-corporation. There were allegations that the defendant “willfully” breached his fiduciary duty owed the association by failing to enforce the obligation of the developer to pay its share of common expenses, to allocate association funds for the benefit of the association, and to designate expenses chargeable to the developer. In sum, the plaintiff association contended the director had acted solely in the interest of the developer and contrary to his fiduciary duties owed the association. The trial court entered a partial summary final judgment for the association, holding the defendant director liable for failing to set aside reserve funds for the condominium, as required by the condominium law.

That was the part of the case which was appealed. The other issues remained for trial. This court reversed the summary judgment because we thought there was an issue of fact as to the element of willfulness, which should be resolved by the jury. We did not address the different standard of care imposed by section 718.303(1) on developer-appointed directors in the initial stage of the condominium’s development as opposed to elected directors. Possibly the statute was not called to our attention.

We also said by way of dictum in Taylor, that factual issues existed as to whether or not the defendant director’s conduct was sufficient to rise to the level necessary to permit personal director liability, citing Munder and Avila South Condo Ass’n v. Kappa. In making that statement, I now think we erred. See B & J Holding Corp. v. Weiss; Oceancrest Condo v. Donner. In Taylor, we concluded that a defendant director could not be held individually liable simply because of his status as a director of the association. With that no one could disagree.

However, based on the controlling statute, section 718.303(1), I think personal liability for a developer-appointed director for action taken or not taken before control of the association is turned over to the unit owners, can be based on less than willful and knowing acts, which may include failure to comply with the condominium statute, and/or the condominium documents, or a violation of the good business rule test, and/or breach of a fiduciary duty which favors the developer over the association. For elected directors of associations, personal liability should be premised on malfeasances which parallel director-appointed directors, only if the actions or inactions are willful and knowing.

      . Section 617.0834(1), Florida Statutes (2002), provides in part:
      (1) An officer or director of a nonprofit organization ... is not personally liable for monetary damages to any person for any statement, vote, decision, or failure to take an action, regarding organizational management or policy by an officer or director, unless:
      (a) The officer or director breached or failed to perform his or her duties as an officer or director; and
      (b) The officer's or director's breach of, or failure to perform, his or her duties constitutes:
      1. A violation of the criminal law, unless the officer or director had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful. A judgment or other final adjudication against an officer or director in any criminal proceeding for violation of the criminal law estops that officer or director from contesting the fact that his or her breach, or failure to perform, constitutes a violation of the criminal law, but does not estop the officer or director from establishing that he or she had reasonable cause to believe that his or her conduct was lawful or had no reasonable cause to believe that his or her conduct was unlawful;
      2. A transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or
      3. Recklessness or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

      . Section 607.0831(1), Florida Statutes (2002), provides in part:
      (1) A director is not personally liable for monetary damages to the corporation or any other person for any statement, vote, decision, or failure to act, regarding corporate management or policy, by a director, unless:
      (a) The director breached or failed to perform his or her duties as a director; and
      (b) The director’s breach of, or failure to perform, those duties constitutes:
      1. A violation of the criminal law, unless the director had reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful. A judgment or other final adjudication against a director in any criminal proceeding for a violation of the criminal law estops that director from contesting the fact that his or her breach, or failure to perform, constitutes a violation of the criminal law; but does not estop the director from establishing that he or she had reasonable cause to believe that his or her conduct was lawful or had no reasonable cause to believe that his or her conduct was unlawful;
      2. A transaction from which the director derived an improper personal benefit, either directly or indirectly;

      4. In a proceeding by or in the right of the corporation to procure a judgment in its favor or by or in the right of a shareholder, conscious disregard for the best interest of the corporation, or willful misconduct; or
      5. In a proceeding by or in the right of someone other than the corporation or a shareholder, recklessness or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

      . See §§ 718.111(l)(a); 718.113(1), Fla. Stat.

      . See Matthews v. Chaffee, 849 So.2d 483 (Fla. 2d DCA 2003) (absent findings of willful noncompliance, court abuses its discretion in dismissing with prejudice); Gamma Dev. Corp. v. Steinberg, 621 So.2d 718, 719 (Fla. 4th DCA 1993) (abuse of discretion to dismiss complaint unless it appears privilege to amend has been abused or that complaint is clearly unamendable).

      . Poliakoff, The Law of Condominium Operations (1998); §§ 2:05; 2:12 R.I. Gen Laws §§ 34-36.l-3.03(a)(l), (2); W.Va.Code § 36B-3-103(a).

      . Poliakoff, The Law of Condominium Operations (1998); § 2:01.

      . Some say it goes back to Roman times and the Napoleonic Code. Mark F. Grant, Howard D. Cohen & Manuel R. Valcarcel, IV, Ocean Trail Unit Owners Ass'n, Inc. v. Mead: Democracy or Tyranny-The Supreme Court of Florida Properly Finds In Favor of Condominium Board, 20 Nova L.Rev. 513, 514, 530 n. 1 (Fall 1995).

      . 10 Fla. Jur.2d Condominiums and Cooperative Apartments § 2.

      . See Palm Beach County v. Harris, 772 So.2d 1273 (Fla.2000); Gretz v. Florida Unemployment Appeals Comm., 572 So.2d 1384, 1386 (Fla.1991); J.M. v. Dept. Children & Families, 833 So.2d 279 (Fla. 5th DCA 2002); T.S. v. Clemons, 770 So.2d 197 (Fla. 2d DCA 2000); C.S. v. S.H., 671 So.2d 260, 268 (Fla. 4th DCA 1996).


author: MONACO, J.

text:
    ESTATE OF Edna Marie SHARP, etc., Appellant, v. OMNICARE, INC. and Badger Acquisition of Tampa, L.L.C., Appellees.
    No. 5D03-1851.
    District Court of Appeal of Florida, Fifth District.
    June 4, 2004.
    Rehearing Denied Aug. 3, 2004.

      Susan B. Morrison and Melanie L. Bos-sie of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Troy J. Crotts and Hala A. Sandridge of Fowler White Boggs Banker, P.A., Tampa, for Appellee.
   MONACO, J.

The Estate of Edna Marie Sharp appeals the dismissal with prejudice of its complaint seeking damages from a claim arising out of the provision of pharmacy services by the appellees, Omnicare, Inc., and Badger Acquisition of Tampa, L.L.C. (collectively, “Omnicare”). The trial court in dismissing the complaint with prejudice concluded that the Estate sought to establish a cause of action that went beyond that authorized by the Florida Supreme Court in McLeod v. W.S. Merrell, Co., Div. of Richardson-Merrell, Inc., 174 So.2d 736 (Fla.1965). We agree with the trial court in this regard, but remand because the Estate should be allowed the opportunity to amend its complaint to attempt to state a viable cause of action against Omnicare.

In McLeod the Supreme Court listed the standards of care that are imposed upon a pharmacist by the common law as follows:

[Rjather, it appears to us, that the rights of the consumer can be preserved, and the responsibilities of the retail prescription druggist can be imposed, under the concept that a druggist who sells a prescription warrants that (1) he will compound the drug prescribed; (2) he has used due and proper care in filling the prescriptions ...; (3) the proper methods were used in the compounding process; (4) the drug has not been infected with some adulterating foreign substance.

McLeod, 174 So.2d at 739. Our review of the case law since McLeod indicates that this list has not been expanded by the courts, and the parties have brought no Florida cases to our attention that do so. To the contrary, in Pysz v. Henry’s Drug Store, 457 So.2d 561 (Fla. 4th DCA 1984), the Fourth District declined to expand McLeod to impose a duty on pharmacists to warn a patient of the addicting qualities of a drug, or to notify a treating physician of the fact that his or her patient is addicted.

In the present case the Estate sought recovery through a survival action and through a wrongful death claim arising out of the death of Ms. Sharp while she was a resident of a nursing home in which Omni-care was providing pharmacy services pursuant to a contract that it had with the nursing home. Despite the holdings in McLeod, the Estate sought to state causes of action against Omnicare by characterizing Omnicare as a “consulting” pharmacist, as opposed to a “retail” pharmacist. The Estate alleged, among other things, that Omnicare failed to review Ms. Sharp’s drug regimen on a monthly basis; or to account and reconcile the controlled drugs that were to be used by Ms. Sharp; or to detect that her medication was not being properly administered or was being stolen; or to train the nursing personnel at the nursing home; or to determine from her records that her drug regime was not effective in the treatment of. her medical conditions; or to hire “an appropriate pharmacist” to oversee Ms. Sharp’s “medication-taking practices.”

When Omnicare moved to dismiss the complaint, the trial court took the matter under advisement, and later entered an order granting the motion to dismiss with prejudice. After the Estate filed its notice of appeal from this non-final order, we relinquished jurisdiction to allow the trial court to enter a final order dismissing the complaint with prejudice. The case was thereafter returned to this court.

We conclude that the allegations of the complaint do not avoid the narrow strictures of McLeod. While we have reviewed the statutory and other references argued by the Estate, we are unable to discern in the complaint a duty that Omni-care owed to Ms. Sharp that would give rise to the claims for damages being made by the Estate. For example, the Estate argues that Chapter 465, Florida Statutes (2002) (the Florida Pharmacy Act), imposes some duty on Omnicare to Ms. Sharp that was breached. In Johnson v. Walgreen Co., 675 So.2d 1036, 1038 (Fla. 1st DCA 1996), however, the court held there that Chapter 465 is “within the regulatory scheme for pharmacists,” and does not create a private cause of action. Cf., McFarland & Son, Inc. v. Basel, 727 So.2d 266 (Fla. 5th DCA 1999). No connection has been pointed out by the Estate between the regulatory and licensing purpose of Chapter 465, and the injuries suffered by Ms. Sharp.

In McLeod the Florida Supreme Court sharply limited the duties that a pharmacist owes to his or her customers. The high court chose not to make a pharmacist liable for duties that are ordinarily owed by a physician or caretaker to the patient. As the Pysz court noted, “[I]t is the physician who has the duty to know the drug that he is prescribing and to properly monitor the patient.” Pysz, 457 So.2d at 562. In the present case the Estate seeks to hold the nursing home’s pharmacists liable for the administration of medications that were provided to Ms. Sharp by the nursing home, or that were prescribed by her physicians. In light of McLeod, we can detect no breaches of duty owed by the pharmacist to Ms. Sharp.

We are, however, concerned by the fact that the Estate’s complaint was dismissed without affording it an opportunity to amend. Florida has long favored a policy of freely granting leave to amend a pleading so that cases can be resolved on their merits. See Fla. R. Civ. P. 1.190(a); Torrey v. Leesburg Reg’l Med. Ctr., 769 So.2d 1040 (Fla.2000); North Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359 (Fla. 4th DCA 1999). In particular, the Estate has voiced a desire to seek to establish a tort based on a theory of voluntary assumption of duties by Omnicare. We have previously indicated that the voluntary undertaking doctrine may be applied to a dispensing pharmacist in a proper case. See Sanderson v. Eckerd Corp., 780 So.2d 930 (Fla. 5th DCA 2001). We do not know at this point whether the Estate will be able state a viable claim using this theory, or perhaps some other theory not disposed of by this decision, but we conclude that it ought to at least have the chance.

Accordingly, we affirm the dismissal of the Estate’s complaint, but reverse that part of the order determining that the dismissal is with prejudice, and remand with instructions to allow the Estate an opportunity to amend its complaint.

AFFIRMED in part, REVERSED in part, and REMANDED.

SHARP, W., and THOMPSON, JJ., concur.

      . See, e.g., Becton v. K & L Contractors, Inc., 573 So.2d 428 (Fla. 5th DCA 1991).


author: SHARP, W„ J.

text:
    Gary Alan McQUAGGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1590.
    District Court of Appeal of Florida, Fifth District.
    June 18, 2004.
    Rehearing Denied Aug. 3, 2004.
    Gary Alan McQuagge, Bonifay, pro se.
    No Appearance for Appellee.
   SHARP, W„ J.

McQuagge appeals from the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking post-conviction relief in two criminal cases.

In Osceola County, 9th Judicial Circuit Court No. 98-2725, defendant was sentenced on September 26, 2000 as an habitual felony offender to 20 years incarceration, suspended upon the successful completion of two years of community control. On April 24, 2002, he was arrested for a violation of his community control. He admitted violating the conditions of his supervision on July 11, 2002, and was sentenced on August 30, 2002, to 7.5 years as an habitual felony offender.

In Osceola County, 9th Judicial Circuit Court No. 99-1172, defendant pled nolo contendere on August 15, 2000, to five charges and was sentenced on September 26, 2000, to a total of 20 years incarceration, to be suspended after the successful completion of one year community control and ten years of probation, to run consecutive to No. 98-2725. On April 24, 2002, defendant was arrested for a violation of his community control. He admitted the violation on July 11, 2002, and was sentenced on August 30, 2002, to 7.5 years incarceration as an habitual felony offender. McQuagge did not seek a direct appeal in either case.

In his first Rule 3.850 motion filed March 30, 2003, McQuagge sought to raise many claims relating to his original plea agreements and sentences. But they could not be considered pursuant to Rule 3.850 because the two-year limitations period for filing such a motion expired two years and thirty days after September 26, 2000. He also raised issues concerning the revocation of community control, and entitlement for credit for time served in a drug treatment center. This court rejected all of his claims. McQuagge v. State, 857 So.2d 895 (Fla. 5th DCA 2003).

In this motion, McQuagge seeks to rear-gue these same issues, although he labels them as grounds for having received an “illegal sentence.” This second motion is successive and an abuse of process.

AFFIRMED.

PALMER and MONACO, JJ., concur.

      . Fla. R.Crim. P. 3.850(b). See Hampton v. State, 837 So.2d 611 (Fla. 5th DCA 2003) (since defendant took no appeal, his judgment and sentence became final 30 days after rendition).


author: HAZOURI, J.

text:
    Lazaro HERRERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-45.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Rehearing Denied Aug. 24, 2004.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Lazaro Herrera was charged by Information with sexual battery without the use of physical force and violence likely to cause serious personal injury (Count I) and false imprisonment (Count II). A jury trial was held and the jury found him guilty as charged on Count I, but found him guilty of battery, a lesser included offense, on Count II. Judgment was entered in accordance with the jury verdict and the defendant was sentenced to concurrent sentences. We affirm the conviction for sexual battery but reverse the conviction for simple battery and remand for resentencing.

The charges arise from an incident which occurred on July 28, 2001 involving the defendant’s wife, Blanca Herrera (Mrs. Herrera), from whom he was separated at the time of the alleged assault. The case proceeded to trial, with the state asserting that the defendant coerced his wife into submitting to sexual intercourse, while the defendant contended that the sexual activity was not only consensual, but resulted from his estranged wife’s suggestion.

Mrs. Herrera testified at trial that on July 28, 2001 the defendant came to her residence and asked her if she would come back to his house and read some papers for him because he does not read English very well. Mrs. Herrera agreed to go with him. She testified that after she got to his house, the defendant ordered her to take off her clothes and have sex with him. Mrs. Herrera further testified that she advised the defendant that she did not want to have sex but the defendant threatened that if she did not take off her clothes he would rip them off. Prior to being forced to have sexual intercourse with the defendant, he forced her to pose for nude photographs. Subsequent to engaging in sexual intercourse, Mrs. Herrera was forced to perform oral sex on the defendant. Before being permitted to leave the defendant’s house, the defendant threatened her and told her not to call the police. The next day Mrs. Herrera notified the City of Pembroke Pines Police Department of the assault. Detective Bonnie Robinson began an investigation and advised Mrs. Herrera to go to the Sexual Assault Treatment Center for Broward County.

When Mrs. Herrera arrived at the Bro-ward County Sexual Assault Treatment Center, she was seen and examined by Sylvia Miller, a licensed advanced registered nurse practitioner. Miller testified that she took a history from Mrs. Herrera in order to assist her in conducting her physical examination and to assist in making a diagnosis. Miller testified that Mrs. Herrera told her that she was forced to have sex and forced to engage in oral sex at which time semen was sprayed in her face. Miller also testified that Mrs. Herrera told her that she was threatened that if she did not remove her clothes, they would be ripped off. In addition, Miller testified that Mrs. Herrera said that she was forced to pose for nude photographs.

Prior to Miller testifying concerning this history, defense counsel objected contending that these statements were inadmissible hearsay. The trial court overruled the objection stating that the testimony fell under section 90.803(4), Florida Statutes (2002), which provides the following exception to the hearsay rule:

Statements made for purposes of medical diagnosis or treatment by a person seeking the diagnosis or treatment, or made by an individual who has knowledge of the facts and is legally responsible for the person who is unable to communicate the facts, which statements describe medical history, past or present symptoms, pain, or sensations, or the inceptions or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.

The defendant argues that Miller’s testimony does not fall within section 90.803(4) because the examination was not done for the purpose of diagnosis or treatment, but rather for the purpose of finding physical evidence to corroborate Mrs. Herrera’s allegations of sexual assault.

In Conley v. State, 620 So.2d 180 (Fla.1993), the supreme court held that an alleged victim’s statement to a doctor that she had been sexually assaulted orally, vaginally, and anally were reasonably pertinent to the physician’s diagnosis or treatment of the victim’s wounds and therefore an exception to the hearsay rule pursuant to section 90.803(4). Id. at 184. However, the portion of the history that the sexual assault was done at gunpoint was inadmissible because it was not pertinent to the diagnosis or treatment. Id. Therefore, Mrs. Herrera’s statement to Miller that she was forced to have sex and that semen was. sprayed in her face is admissible as an exception to the hearsay rule pursuant to section 90.803(4). The state concedes that Mrs. Herrera’s statement that she was threatened that if she did not remove her clothes that they would be ripped off and that nude pictures were taken of her are not relevant to medical diagnosis or treatment. The state, however, argues that the two inadmissible statements are harmless error as the nude pictures were introduced into evidence without objection and the threat of ripping Mrs. Herrera’s clothes was not made a feature of the trial. We agree and conclude beyond a reasonable doubt that this error did not contribute to the verdict.

As the second point on appeal, the defendant argues that he was unfairly prejudiced by the investigating detective Bonnie Robinson’s testimony that while she conducted a search of the defendant’s home, she retrieved a shotgun from the defendant’s closet. Defense counsel made a contemporaneous objection which was sustained by the trial court and the jury was instructed to disregard the testimony. Defense counsel did not move for a mistrial at the time. However, at the close of the evidence, defense counsel moved for a mistrial in order to preserve the objection for appeal. The trial court denied the motion for mistrial. Defendant argues that the trial court abused its discretion in denying the motion for mistrial because the testimony was extremely prejudicial.

A motion for mistrial should be granted only when the error is so prejudicial as to vitiate the entire trial. See Miller v. State, 847 So.2d 1093, 1096 (Fla. 4th DCA 2003).

The state argues that the trial court’s immediate curative instruction to the jury sufficiently cured any error. We agree. A similar issue was addressed by the Florida Supreme Court in Marek v. State, 492 So.2d 1055 (Fla.1986). In Marek, the defendant argued that the trial court erred in refusing to grant his motion for mistrial which was made after a police officer testified that he found a gun in the defendant’s truck. Id. at 1057. The trial court sustained the defendant’s objection and immediately gave a curative instruction. On appeal, the court held that the curative instruction was sufficient to cure any prejudicial effects and the trial court correctly denied the motion for mistrial. Id.

In the instant case, there were no allegations made that a shotgun played any part in the incident. In addition, the trial court gave a very clear curative instruction: “The objection is sustained. Folks, please disregard the last answer. It’s not alleged that a firearm played any part in this incident.” This testimony was not so prejudicial as to deny the defendant a fair trial and, therefore, the trial court did not abuse its discretion in denying the Motion for Mistrial.

In his third and final point on appeal, defendant asserts that fundamental error occurred when he was convicted of both sexual battery and simple battery. We agree.

The defendant was charged with one count of sexual battery and one count of false imprisonment. The jury found him guilty of sexual battery as charged, but found him guilty of simple battery (a lesser included offense) on the charge of false imprisonment. The defendant argues that double jeopardy prohibits the dual convictions of sexual battery and simple battery because they are based on the same acts. The Double Jeopardy Clause of article I, section 9 of the Florida Constitution protects criminal defendants from multiple convictions and punishments for the same offense. A violation of double jeopardy is a fundamental error which can be raised for the first time on appeal. See Tannihill v. State, 848 So.2d 442, 444 (Fla. 4th DCA 2003).

Under the case law, a defendant can be convicted of both sexual battery and battery. See Beltran v. State, 700 So.2d 132 (Fla. 4th DCA 1997). However, if the battery is based on the same acts that form the basis for the sexual battery, double jeopardy prohibits dual convictions.

In Garcia v. State, 769 So.2d 449 (Fla. 4th DCA 2000), the defendant challenged his convictions for sexual battery and simple battery as a lesser included offense of burglary with a battery on the basis that the dual convictions violated double jeopardy. The act establishing the claim of battery was testimony that the defendant pushed the victim to the bed. This court reasoned that the act was an integral part of the sexual battery, since it prevented the victim from escaping and facilitated the subsequent act. Therefore, this court found that because there was one continuous offense, and the battery was not separate from the sexual battery, double jeopardy prohibited the multiple convictions and punishment. This court affirmed the conviction and sentence for sexual battery, but vacated the conviction and sentence for battery.

In the instant case, the charge of false imprisonment was based on the allegation that the defendant threatened Mrs. Herrera in order to stop her from leaving. However, there was no testimony that the defendant intentionally or accidentally touched Mrs. Herrera against her will except for the touching that occurred during the sexual battery. Therefore, the acts constituting the battery were not separate from the acts constituting the sexual battery. We find Garcia controlling and vacate the conviction and sentence for battery.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED FOR RE-SENTENCING.

WARNER and KLEIN, JJ., concur.

      . Each offense requires proof of an element that the other does not. Sexual battery requires a sexual attack, but regular battery does not. Likewise, regular battery requires evidence of bodily harm, but sexual battery does not. See § 794.011, Fla. Stat.; § 784.03, Fla. Stat.


author: POLEN, J.

text:
    UNION CARBIDE CORPORATION, Appellant, v. Dennis M. KAVANAUGH and Ingeborg Kavanaugh, his wife, Appellees.
    No. 4D03-2956.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Rehearing Denied Aug. 25, 2004.

      John Pelzer of Ruden, McClosky, Smith, Schuster & Russell, Fort Lauderdale, and Michelle Jerusalem Cole of Alston & Bird LLP, Charlotte, North Carolina, for appellant.
    Joel S. Perwin of Podhurst Orseck, P.A., David Jagolinzer and James L. Ferraro of Ferraro & Associates, P.A., Miami, for ap-pellees.
   POLEN, J.

This appeal is brought by Union Carbide Corporation (UCC) from a final judgment awarding the Kavanaughs $1,153,000.00 in damages based on a product liability action involving asbestos exposure. We affirm the order of the trial court in all regards.

The underlying facts are lengthy and need not be discussed in great detail for purposes of this opinion. However, it is relevant that Dennis Kavanaugh began working as a carpenter in West Palm Beach in 1969. He alleged that he was exposed to asbestos during his employ as a carpenter when he sanded joint compound which contained asbestos. He primarily used “Ready Mix” joint compound manufactured by Georgia-Pacific, another named defendant. UCC manufactured the asbestos and supplied Georgia-Pacific with the asbestos that eventually ended up in the “Ready Mix” joint compound.

On August 21, 2002, plaintiffs Dennis and Ingeborg Kavanaugh filed a complaint against thirty-two named defendants. Among the defendants was UCC. The first trial concluded in a mistrial with a hung jury. At the conclusion of the second trial, the jury found that UCC’s negligence was the legal cause of Dennis Kavanaugh’s injury. They found UCC 100% liable.

UCC raised numerous issues on appeal. Although we find no reversible error in any of the issues raised by UCC, we write to discuss the issue of bulk supplier liability.

UCC contends the trial court erred as a matter of law in denying its motion for directed verdict on Kavanaugh’s failure to warn claim. This argument is based on UCC’s assertion that, as a bulk supplier, UCC satisfied any duty to warn through the warnings it provided to Georgia-Pacific, its customer.

“In negligence actions, a motion for directed verdict should be treated with special caution because it is the function of the jury to weigh and evaluate the evidence.” Woodard v. Armenian Cultural Ass’n of Am., Inc., 724 So.2d 669, 671 (Fla. 4th DCA 1999) (quoting Pascale v. Fed. Express Corp., 656 So.2d 1351, 1353 (Fla. 4th DCA 1995)). A motion for directed verdict should be granted only when the evidence shows that the jury could not reasonably differ as to the existence of a material fact. See LRX, Inc. v. Horizon Assocs. Joint Venture ex rel. Horizon-ANF, Inc., 842 So.2d 881 (Fla. 4th DCA 2003). In considering a motion for directed verdict, the court must evaluate the evidence in the light most favorable to the nonmoving party and every inference must be drawn in favor of that party at the trial level, and on appeal. See id. If different reasonable inferences may be drawn or there is conflicting evidence, the case should be submitted to the jury. See Goss v. Permenter, 827 So.2d 285, 288 (Fla. 5th DCA 2002).

UCC contends that it satisfied its duty to warn by informing Georgia-Pacific of the hazards of asbestos. It asserts that, as a bulk supplier, it had no affirmative duty to warn ultimate users of the dangers of asbestos. We disagree.

UCC, as a bulk supplier of asbestos, had a duty to warn of the danger of its product. Section 388 of the Restatement (Second) of Torts provides that:

One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(e) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.

Restatement (Second) of Torts § 388 (1965); see also Sowell v. Am. Cyanamid Co., 888 F.2d 802, 803-04 (11th Cir.1989).

Under the Restatement, UCC is liable if it knowingly placed a dangerous product on the market, the dangerous condition of which is unnoticeable, and failed to properly warn of the dangerous condition.

UCC contends its duty was discharged by virtue of the warnings it provided to Georgia-Pacific, the manufacturer. It is true that the duty to warn can be discharged if the supplier passes the necessary information and warnings to manufacturers of the product’s dangerous condition. See Hunnings v. Texaco, Inc., 29 F.3d 1480, 1485 (11th Cir.1994). However, in order for a supplier to adequately discharge its duty to warn, a manufacturer must be considered a learned intermediary.

A learned intermediary is defined as “one who has knowledge of the danger and whose position vis-a-vis the manufacturer and consumer, confers a duty to convey the requisite warnings to the consumer.” Brito v. County of Palm Beach, 753 So.2d 109, 111 n. 1 (Fla. 4th DCA 1998) (citing Hayes v. Spartan Chem. Corp., 622 So.2d 1352, 1354 (Fla. 2d DCA 1993)). Yet, in certain instances, warnings from a supplier to a manufacturer, alone, are insufficient:

If, however, the third person is known to be careless or inconsiderate or if the purpose for which the chattel is to be used is to his advantage and knowledge of the true character of the chattel is likely to prevent its being used and so to deprive him of this advantage — as when goods so defective as to be unsalable are sold by a wholesaler to a retailer — the supplier of the chattel has reason to expect, or at least suspect, that the information will fail to reach those who are to use the chattel and whose safety depends upon their knowledge of its true character. In such a case, the supplier may well be required to go further than to tell such a third person of the dangerous character of the article, or, if he fails to do so, to take the risk of being subjected to liability if the information is not brought home to those whom the supplier should expect to use the chattel.
Even though the supplier has no practicable opportunity to give this information directly and in person to those who are to use the chattel or share in its use, it is not unreasonable to require him to make good any harm which is caused by his using so unreliable a method of giving the information which is obviously necessary to make the chattel safe for those who use it and those in the vicinity of its use.

Restatement (Second) of Torts § 388 cmt. n (1965).

Factors to be taken into consideration when determining whether a supplier has discharged its duty to warn the ultimate user of its product include: 1) the dangerous nature of the product; 2) the form in which the product is used; 3) the intensity and form of the warnings given; 4) the burdens to be imposed by requiring warnings; and 5) the likelihood that the warnings will be adequately communicated to the foreseeable users of the product. See Sowell, 888 F.2d at 804 (quoting Dougherty v. Hooker Chem. Corp., 540 F.2d 174, 179 (3d Cir.1976)).

In this case, it was for the jury to determine the adequacy of UCC’s warnings to Georgia-Pacific and whether, based on the sufficiency of the warnings given, UCC still owed Kavanaugh a duty. See Hayes, 622 So.2d at 1354. The evidence presented clearly showed that although UCC provided information and some warning to Georgia-Pacific, it did not fully disclose the magnitude of the hazards then known to exist.

UCC insists that Shell Oil Co. v. Harrison, 425 So.2d 67 (Fla. 1st DCA 1982), controls this case and warranted a directed verdict in its favor. In Shell Oil, the plaintiff was injured by a chemical product, Nemagon, supplied by the defendant through a separate manufacturer, Kerr-McGee. Once the defendant shipped Nemagon to Kerr-McGee, Kerr-McGee would reformulate and market it for various uses. Id. at 68. Once it became aware that Nemagon could be harmful, the defendant notified Kerr-McGee to inform its employees and customers of the potential harm, and to return any stock on hand to the defendant. Id.

The first district found that because the defendant had warned Kerr-McGee of the harm of Nemagon, it could not be liable to the ultimate consumer, and was thereby entitled to a directed verdict. Id. at 70. In reaching its conclusion, the first district found Zunck v. Gulf Oil Corp., 224 So.2d 386 (Fla. 1st DCA 1969), to be dispositive. There, Gulf Oil marketed an odorless gas to a wholesale distributor who additionally purchased odorant from Gulf Oil to mechanically insert into the gas as an effort to warn customers. See Shell Oil, 425 So.2d at 69. The wholesale distributor proceeded to supply the product to a retail distributor who sold it to the ultimate user. Id. The court in Zunck found that the manufacturer and distributor had fulfilled their duty to warn and “absent a showing that they had not taken necessary precautions commensurate with the dangers reasonably anticipated under the circumstances, they were not responsible for warning the ultimate users of the gas.” Shell Oil, 425 So.2d at 69.

Unlike Shell Oil and Zunck, UCC did not fulfill its duty to warn. It provided Georgia-Pacific with limited information which was not communicated to the ultimate users. Because UCC did not take reasonable precautions under the circumstances, its duty to warn did not stop with Georgia-Pacific, but continued to the ultimate user.

When faced with a motion for directed verdict, the trial court had to evaluate the evidence in Kavanaugh’s favor. As such, the trial court properly denied the directed verdict motion and we affirm that ruling.

We are unpersuaded by the other arguments raised on appeal and affirm the trial court’s order.

AFFIRMED.

MAY, J., and BERNSTEIN, SCOTT M., Associate Judge, concur.


author: PER CURIAM.

text:
    Fitzgerald TOUSSAINT, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1540.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Rehearing Denied Aug. 6, 2004.
    Jeffery S. Richardson, Tallahassee, for appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Having considered appellant’s response filed May 14, 2004, this appeal is hereby dismissed for lack of jurisdiction. See Fla.R.App. P. 9.110(b).

KAHN, DAVIS and PADOVANO, JJ., concur.


text:
    Rosalyn Ann SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2212.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Rehearing Denied Aug. 6, 2004.

      Rosalyn Ann Sanders, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking belated appeal is denied as facially insufficient. Petitioner fails to assert any specific acts that constitute a basis for entitlement to belated appeal. See Fla. R.App. P. 9.141(c)(3)(F).

KAHN, DAVIS and PADOVANO, JJ., concur.


text:
    Timothy E. WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0176.
    District Court of Appeal of Florida, First District.
    June 29, 2004.
    Timothy E. White, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Medberry v. Circuit Court for Brevard County, 762 So.2d 1037 (Fla. 5th DCA 2000).

KAHN, DAVIS and PADOVANO, JJ., concur.


author: PER CURIAM. KLEIN, J.,

text:
    Davion McKEITHAN, a minor, by and through his parents and natural guardians, Nelson McKEITHAN and Delores McKeithan and Nelson McKeithan and Delores McKeithan, individually, Appellants, v. HCA HEALTH SERVICES OF FLORIDA, INC., d/b/a Saint Lucie Medical Center, Appellee.
    No. 4D03-2154.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Rehearing Denied Aug. 24, 2004.

      Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, and Andy M. Custer of Alpizar & Ville, Palm Bay, for appellants.
    Janis Brustares Keyser, Thomas C. Heath, and Michael V. Baxter of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., West Palm Beach, for ap-pellee.
   PER CURIAM.

We affirm the final judgment finding-HCA Health Services of Florida, Inc. not liable for the care and treatment of Davion McKeithan. The trial court did not err in granting HCA’s motion for directed verdict for two reasons. First, the plaintiffs presented no competent testimony as to causation, that had the nurses accessed the chain of command, such conduct would likely have led to a different outcome for the patient. Second, under Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000), the plaintiffs failed to present evidence that the failure of the nurses to access the chain of command would have affected the treatment decisions of the treating physician, who testified at trial.

There was no error in allowing Dr. Menkes to offer a supplemental opinion; the doctor based his opinion in part upon the deposition of another doctor, who testified at trial. The opinions of the other doctor, a pediatric neuroradiologist, are of the type reasonably relied upon by a pediatric neurologist in giving an opinion.

Finally, we find no error in the denial of the plaintiffs’ motion for directed verdict on the issue of the supervision of the graduate nurse. HCA presented evidence of supervision sufficient to submit the issue to the jury. The nurses involved testified that although they did not document the extent of their supervisor/graduate nurse relationship, the supervisor was routinely and customarily involved in the care of all patients within the unit.

Although section 90.406, Florida Statutes (2003), does not apply to the routine practice of an individual, it is “left to the court to determine as a matter of circumstantial evidence whether there was sufficient probative value to allow the admission of the habit evidence.” ChaRles W. EhRHARDT, FLORIDA EVIDENCE § 406.1, at 255 (2002 ed). The trial court did not err in admitting the nurses’ testimony.

AFFIRMED.

POLEN and GROSS, JJ., concur.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree with the majority opinion. I am writing in response to plaintiffs’ contention that our opinion in Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000), which is an alternative basis on which we are affirming, is not well-reasoned. Plaintiffs premise their argument on two opinions of our sister courts which have been critical of Ewing. Munoz v. South Miami Hospital, Inc., 764 So.2d 854 (Fla. 3d DCA 2000); Goolsby v. Qazi, 847 So.2d 1001 (Fla. 5th DCA 2003).

I was on the panel in Ewing, as well as in the companion case of Anderson v. Ewing, 768 So.2d 1161 (Fla. 4th DCA 2000). Although these two appeals arose from the same trial, they were not consolidated in this court and Anderson did not issue until four months after Ewing. In order to have a full understanding of the facts in Ewing, which is being questioned, it is necessary to read Anderson.

It is unnecessary in this case for us to consider whether Ewing was correct, because it is only an alternative basis on which we are affirming. However, I must admit that now, when I read the two opinions together, I am not sure we were correct in Ewing. It is the additional facts contained in Anderson which have caused me to entertain these doubts, and I now wonder if we might have reached a different outcome in Ewing if the subsequent appeal in Anderson had been consolidated with it.

      . I do not agree that the warning cases cited in Munoz and Goolsby are relevant for the same reasons expressed by Judge Cope in his dissent in Munoz.


text:
    Troy E. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3426.
    District Court of Appeal of Florida, First District.
    July 9, 2004.
    Rehearing Denied Aug. 5, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General; Trisha Meggs Page, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he sought to have special conditions of probation stricken from his sentence. As this claim lacks merit, we affirm.

On July 14, 1999, the appellant was sentenced to 13 years’ imprisonment followed by 7 years of probation for two counts of attempted capital sexual battery that occurred on February 28, 1986. The court imposed as special conditions of probation the conditions set forth in section 948.03(5)(a), Florida Statutes (Supp.1998), relating to sex offenses. The appellant alleges that the trial court erred in imposing these conditions because the statutes in effect at the time the appellant committed his offenses did not authorize those conditions.

Although the statutory language of section 948.03(5)(a), Florida Statutes (Supp.1998), requires the imposition of these conditions for offenses committed on or after October 1, 1995, nothing in the statutory language prohibits imposing these conditions for offenses occurring pri- or to October 1, 1995. Indeed, section 948.03(4), Florida Statutes (1985), specifically authorizes the court to impose any conditions of probation that it considers proper. Furthermore, sentencing courts are endowed with broad discretion to impose various conditions of probation as long as they are related to rehabilitation or the protection of the public. See Kominsky v. State, 330 So.2d 800, 801 (Fla. 1st DCA 1976); Rodriguez v. State, 378 So.2d 7, 9 (Fla. 2d DCA 1979); Dearth v. State, 390 So.2d 108, 110 (Fla. 4th DCA 1980).

A review of the special conditions imposed in the present case reveals that each is properly related to the appellant’s rehabilitation or the protection of the public in light of the appellant’s convicted offenses. Because the sentencing court did not abuse its discretion in imposing these special conditions upon the appellant’s probation, his claim of an illegal sentence was properly denied.

AFFIRMED.

ALLEN, VAN NORTWICK and BROWNING, JJ„ concur.


text:
    Joseph Robert SPAZIANO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2657.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.
    Rehearing Denied Aug. 3, 2004.
    Terrence E. Kehoe, Law Office of Terrence E. Kehoe, Orlando, and James M. Russ, Law Offices of James M. Russ, P.A., Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kenneth S. Nunnelley, Senior Assistant Attorney General, Dayto-na Beach, for Appellee.
   PER CURIAM.

Joseph Robert Spaziano appeals an order denying his request for an evidentiary hearing during which the State would be required to prove its compliance with an earlier order granting his motion for post-conviction deoxyribonucleic acid, (“DNA”), testing of certain evidence. Spaziano asserts he was denied due process of law because once the lower court had made the initial determination that his motion for post-conviction DNA testing was sufficient and ordered testing of certain identified objects, a successor judge should not be permitted to short cut that process.

Twenty-nine years ago, Spaziano was tried and convicted in Orange County of forcible carnal knowledge and aggravated battery in violation of sections 794.01 and 784.05, Florida Statutes (1975). A complete transcript of the trial was not provided, but from the record the following facts can be gleaned: The victim was abducted by two unknown men who sexually assaulted her in their truck and at a house in a wooded area. The victim was then taken to another location where one of the men strangled her with his belt, lacerated her neck and one of her eyes with a knife and abandoned her. Although suffering from life-threatening injuries, she regained consciousness and walked to a road where she found help. After being treated for injuries, the victim underwent a pelvic examination which included testing of vaginal, rectal and oral smears. The medical examiner who conducted these tests opined that there was no evidence that the victim had had recent sexual intercourse because the pelvic examination was normal and the tests for the presence of sperm were negative. This testimony was presented by the defense at trial. Apparently, however, the jury believed the testimony of the victim which was corroborated by other witnesses. Spaziano was subsequently sentenced to life imprisonment and a consecutive five-year imprisonment. His appeal to the Fourth District Court of Appeal was per curiam affirmed. Spaziano v. State, 348 So.2d 980 (Fla. 4th DCA), cert. denied, 352 So.2d 174 (Fla.1977).

Twenty-seven years after his conviction, Spaziano filed a motion for post-conviction DNA testing of certain evidence collected during the police investigation. § 925.11, Fla. Stat. (2002); Fla. R.Crim. P. 3.853. Spaziano requested that certain items of physical evidence collected from the victim during police investigation be DNA tested. The lower court, by order dated December 6, 2002, granted Spazi-ano’s motion for postconviction DNA testing, finding that physical evidence containing DNA may still exist, that the results of the DNA testing of the same would be admissible at a future hearing and that there is a reasonable probability Spaziano would be acquitted if the alleged DNA evidence had been admitted at trial. As to the last finding, the lower court reasoned that since the victim testified at trial that she was assaulted by two unknown persons, the presence of DNA from two unknown persons as well as the absence of Spaziano’s DNA would tend to exonerate Spaziano. While we question the lower court’s finding on the issue of whether DNA testing would tend to exonerate Spa-ziano, we recognize that the State did not appeal the lower court’s order granting Spaziano’s motion for postconviction DNA testing. Instead, it appears the State made some attempt to comply with the lower court’s order granting Spaziano’s motion. Specifically, the State alleges that it attempted to ascertain the location of the evidence ordered by the lower court to be DNA tested, but that the only item found was a blood-stained long-sleeved flowered shirt; that otherwise, it -appears all of the evidence held by- the Orange County Sheriffs office had been destroyed on July 1, 1977. DNA testing from various cuttings of the long-sleeved, flowered shirt revealed only that “a partial female DNA profile ... was obtained”, and that “[t]he partial profiles obtained in all of the above cuttings were consistent with each other at the loci in which data was obtained.” The DNA testing report requested that a DNA standard from the victim be submitted for comparison purposes. The State then filed a notice of compliance with the order granting Spaziano’s motion for postconviction DNA testing. Attached to the State’s notice of compliance are emails between the State and the Orange County Evidence Supervisor and other employees of the Orange County Sheriffs department, as well as copies of facsimiles showing that evidence in Spaziano’s case had been destroyed without specifying the evidence destroyed. Some of the State’s attachments are illegible.

Spaziano disputed the State’s assertion that it had complied with the lower court’s order granting his motion for postconviction DNA testing and requested an eviden-tiary hearing during which admissible evidence, by sworn testimony and tangible evidence from live witnesses would be presented by the State as proof of its allegations of compliance. Spaziano further requested that the State obtain and submit a DNA standard in the form of blood samples from the victim, that the State be otherwise required to comply with the earlier order granting DNA testing of the remaining items, and that defense counsel be granted an order authorizing certain discovery to ensure compliance. An assistant state attorney advised the court at a subsequent hearing that “it appears — and I’m not saying this is true, I’m not asking the court to make a finding. But what I discovered and came to a dead end was, it appears those items have been destroyed.”

- The lower court subsequently. denied Spaziano’s requests for an evidentiary hearing, for the State to obtain a DNA standard in the form of blood samples from the victim and for an order authorizing certain discovery.

The lower court’s denial of Spaziano’s request for an evidentiary hearing is not supported by case law. See, e.g., Zollman v. State, 820 So.2d 1059 (Fla. 2d DCA 2002) (holding that postconviction relief petitioner, who twenty-three years after his conviction requested DNA testing of certain items of evidence, was entitled to an evidentiary hearing to address issue of whether testable evidence still existed); see also Marsh v. State, 852 So.2d 945 (Fla. 2d DCA 2003) (holding that the trial court was required to conduct hearing on defendant’s motion for postconviction DNA testing after the state denied having any physical evidence suitable for DNA testing); Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003) (holding that if the state’s response to defendant’s motion for DNA testing creates a factual dispute, the trial court should conduct an evidentiary hearing to resolve that dispute). Cf. King v. State, 808 So.2d 1237, 1240-41 (Fla.2002) (affirming the dismissal of a motion for DNA testing when the trial court had conducted a hearing at which custodial witnesses testified that the evidence to be tested no longer existed).

As for Spaziano’s request for the State to obtain a DNA standard in the form of blood or other samples from the victim, we find no basis under the facts of this case to justify granting that request. Spaziano acknowledges that normally an individual who is not a criminal defendant should not be required to submit to a physical examination. E.g., State v. Smith, 260 So.2d 489, 491 (Fla.1972) (recognizing that no right is held more sacred, or is more carefully guarded than the right of an individual to the possession and control of his own person, free from all restraint or interference of others); State v. Brewster, 601 So.2d 1289 (Fla. 5th DCA 1992) (quashing an order requiring victim to submit to blood test). Nevertheless, he urges this court to find that there are circumstances so compelling in his case that he would be deprived due process rights unless the victim is compelled to submit a DNA standard. We do not agree that the circumstances are compelling. The DNA testing of the victim’s blood-stained, long-sleeved flowered shirt established that the blood found on the shirt came from the same female source. This female source was most likely the victim, herself, as there has never been a claim that a second female was involved or even present in the offense. Indeed, Spaziano has never suggested that the blood found on the shirt was not that of the victim’s. In any event, confirmation that the blood on the shirt came from the victim hardly exonerates Spaziano.

Lastly, Spaziano contends that he is entitled to engage in discovery to ensure compliance with the December 6, 2002 order granting his motion for post-conviction DNA testing. Although no reported cases have been found discussing discovery during postconviction proceedings dealing with DNA and rule 3.853, cases discussing discovery during a rule 3.850 postconviction proceeding may lend some guidance. Discovery during a rule 3.850 posteonvietion proceeding is not automatically allowed. The lower court may allow discovery into matters which are relevant and material, and where the discovery is permitted the court may place limitations on the sources and scope. E.g., State v. Lewis, 656 So.2d 1248 (Fla.1994). The lower court, in deciding whether to allow this limited form of discovery, shall consider the issues presented, the elapsed time between the conviction and the post-conviction hearing, any burdens placed on the opposing party and witnesses, alternative means of securing the evidence, and any other relevant facts. Id. at 1250. On review of an order denying or limiting discovery it will be the moving party’s burden to show that the lower court abused its discretion. Id.

The assistant state attorney’s representation to the trial court that most of the evidence had been destroyed was not unqualified and it is unknown as to the efforts expended by custodians to find the evidence; nor were all of the documents presented by the State showing destruction legible. It is our view that Spaziano should be entitled to engage in discovery to verify that the evidence no longer exists, but that the discovery should be limited by the standards established in Lewis, infra.

We vacate the order denying an eviden-tiary hearing and remand for the imposition of limitations on discovery leading to an evidentiary hearing. We affirm the denial of the request to require the victim to submit a DNA standard.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

PETERSON, GRIFFIN and PLEUS, JJ., concur.

      . See, e.g., Zollman v. State, 820 So.2d 1059 (Fla. 2d DCA 2002) (acknowledging that DNA testing will not be permitted if the requested DNA testing would shed no light on the defendant's guilt or innocence, citing as an example one court that refused to order DNA testing because the victim's rape kit had tested negative for seminal fluid, thus, further testing would not and could not exonerate the defendant); Galloway v. State, 802 So.2d 1173 (Fla. 1st DCA 2001) (holding that inmate, who had been convicted along with two co-defendants of robbery and sexual battery, was not entitled to postconviction DNA testing, even though he alleged that his DNA would not match DNA evidence found at scene of crime and on body of victim, since absence of DNA match would not demonstrate that he was not present at scene and participating with his co-defendants in the commission of the crimes, so as to exonerate him of the crimes for which he w;as convicted); see also Hitchcock v. State, 866 So.2d 23, 27 (Fla.2004) (finding postconviction DNA testing is not intended to be a fishing expedition). Cf. Zollman, 820 So.2d at 1059-63 (holding that results of DNA testing, requested by defendant twenty-three years after his conviction for kidnaping, sexual battery, and robbery, would bear on the question of his guilt or innocence, as would support defendant's request for such testing, since there were no individuals present at crime scene other than victim and her assailant, victim testified that her assailant ejaculated into her, so DNA testing of the contents of the victim’s rape kit would show whether defendant was the perpetrator of sexual battery, and because there was only one assailant, if defendant did not commit sexual battery, he did not commit kidnaping or robbery).


text:
    KFC USA, INC., Appellant, v. Mae DEPEW, Appellee.
    No. 5D03-1370.
    District Court of Appeal of Florida, Fifth District.
    July 9, 2004.
    Rehearing Denied Aug. 3, 2004.

      Michael V. Hammond and Henry W. Jewett of Rissman, Weisberg, Barrett, Hurt, Donahue & McClain, P.A., Orlando, for Appellant.
    W.C. Airth, Jr., of W.C. Airth, Jr., P.A., Orlando, for Appellee.
   PER CURIAM.

Appellant, KFC USA, Inc. [KFC], appeals the non-final order denying its Motion to Remove Default and to Set Aside Default Judgment and Striking Affidavit. We rfeverse.

Mae Depew was injured in a fall at a Florida Kentucky Fried Chicken restaurant. Upon achieving maximum medical improvement, Depew filed suit against KFC for damages and served notice of process on KFC’s agent in Florida. When KFC failed to timely answer Depew’s complaint, the clerk of the court entered a default for failure to answer or file a responsive pleading. The trial court subsequently entered a final judgment against KFC as to liability only. Eight days later, KFC moved to set aside the judgment on the basis of excusable neglect and the existence of a meritorious defense, explaining that its legal department in Louisville, Kentucky, had been in the process of relocating and that temporary employees had mishandled the summons and complaint that had been forwarded there.

Although the standard of review of an order ruling on a motion to vacate a default judgment ■ is whether there has been an abuse of the trial court’s discretion, this court must remain cognizant of Florida’s “long standing policy of liberality toward the vacating of defaults” when a defendant has demonstrated excusable neglect and has presented a meritorious defense. North Shore Hosp. v. Barber, 143 So.2d 849, 852 (Fla.1962); see also Travelers Ins. Co. v. Bryson, 341 So.2d 1013, 1013 (Fla. 4th DCA 1977) (“It has long been the policy of the courts of this state to liberally set aside defaults for failure of a defendant to plead so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense.”).

Based on review of the record, KFC has demonstrated excusable neglect and has presented a meritorious defense, as required by Florida Rule of Civil Procedure 1.540(b). Keeping in mind the policy in Florida to liberally set aside defaults when a defendant has shown both, we reverse and remand to the trial court for further proceedings on the merits.

REVERSED and REMANDED.

GRIFFIN and PALMER, JJ., concur.

SAWAYA, C.J., dissents, without opinion.

      . North Shore Hosp., Inc. v. Barber, 143 So.2d 849 (Fla.1962); Joe-Lin, Inc. v. LKG Rest. Group, Inc., 696 So.2d 539 (Fla. 5th DCA 1997); Tire Kingdom, Inc. v. Bowman, 480 So.2d 221 (Fla. 5th DCA 1985).

      . See Dawkins, Inc. v. Huff, 836 So.2d 1062 (Fla. 5th DCA 2003) ("To be relieved of a default, a defendant must demonstrate excusable neglect, a meritorious defense, and due diligence in seeking relief.’’) (citation omitted); see also American Network Transp. Mgmt., Inc. v. A Super-Limo Co., Inc., 857 So.2d 313, 314 (Fla. 2d DCA 2003) ("In order to succeed on a rule 1.540(b) motion to vacate, the movant must demonstrate that the final judgment was the result of excusable neglect, that the movant exhibited due diligence in seeking to have the final judgment reopened, and that a meritorious defense exists.”); Eden Park Mgmt., Inc. v. Zagorski, 821 So.2d 1263 (Fla. 4th DCA 2002); Armet S.N.C. di Ferronato Giovanni & Co. v. Hornsby, 744 So.2d 1119 (Fla. 1st DCA 1999).


text:
    Billy SHEPHERD, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1049.
    District Court of Appeal of Florida, First District.
    July 14, 2004.
    Rehearing Denied Aug. 11, 2004.
    Billy Shepherd, pro se, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Cruz v. State, 742 So.2d 489 (Fla. 3d DCA 1999).

DAVIS, LEWIS and EOLSTON, JJ., concur.


text:
    Cruz M. APONTE and C & M Cutting, Inc., Appellants, v. VIGILANT INSURANCE COMPANY, Appellee.
    Nos. 4D03-3897, 4D03-3931.
    District Court of Appeal of Florida, Fourth District.
    July 14, 2004.
    Rehearing Denied Aug. 23, 2004.
    Bradley A. Ross and Kenneth J. Sobel of Greenspoon, Marder, Hirschfeld, Raf-kin, Ross & Berger, P.A., Fort Lauder-dale, for appellant Cruz M. Aponte.
    Michael Wrubel, Hollywood, for appellant C & M Cutting, Inc.
    Brett C. Powell of Hicks & Kneale, P.A., Miami, and Cindy L. Ebenfeld of Hicks & Kneale, P.A., Hollywood, for appellee.
   PER CURIAM.

Affirmed. See State Farm Fire & Cas. Co. v. Compupay, Inc., 654 So.2d 944 (Fla. 3d DCA 1995).

KLEIN, SHAHOOD, JJ., and EMAS, KEVIN M., Associate Judge, concur.