author: WELLS, Judge.

text:
    G & G FASHION DESIGN, INC., Lisbet M. Ghilardi and William F. Younkin, Appellants, v. Enrique GARCIA, Appellee.
    No. 3D02-3321.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing and/or Clarification Denied April 21, 2004.

      Francine D. Holbrook, for appellants.
    Dennis B. Freeman, Miami, for appellee.
    Before SCHWARTZ, C.J., COPE, and WELLS, JJ.
   WELLS, Judge.

Shareholders Lisbet Ghilardi and William Younkin appeal from a final judgment valuing shareholder Enrique Garcia’s interest in a closely held corporation at $150,000. We affirm.

Enrique Garcia is a fifty per cent owner of G & G Fashion Design, Inc., a corporation that operates two clothing stores-Flash Swimwear and Flash Lingerie — at the Bal Harbour Shops in Miami Beach. Lisbet Ghilardi and her husband, William Younkin, own the remaining fifty percent interest in G & G. In March 2001, Garcia brought suit to dissolve G & G. Ghilardi and Younkin, pursuant to section 607.1436 of the Florida Statutes, elected to purchase Garcia’s fifty per cent interest in the corporation. Because the parties could not agree on the value of Garcia’s shares, the trial court was obligated to “determine the fair value of the petitioner’s shares as of the day before the date on which the petition [to dissolve the corporation] was filed....” § 607.1436(4), Fla. Stat. (2003).

During a five-day bench trial, the lower court heard conflicting evidence on valuing the shares of this closely held corporation. Ghilardi and Younkin presented testimony that the fair value of Garcia’s shares of this on-going business should be zero based on the investment value method. Garcia presented evidence that his shares were worth $150,000 based on the market value method. The trial court adopted the market value method and valued Garcia’s shares at $150,000.

Section 607.1436(4) and Florida case law neither define “fair value” nor provide criteria by which “fair value” may be measured. However, case law interpreting New York’s similar statutory provisions, to which we have looked in the past for guidance, confirms that “fair value” rests on determining what a willing purchaser in an arm’s length transaction would offer for an interest in the subject business:

Business Corporation Law § 1118 offers no definition of fair value and no criteria by which a court is to determine price or other terms of the purchase. Rather, fair market value, being a question of fact, will depend upon the circumstances of each case; there is no single formula for mechanical application.
The objective of proceeding under Business Corporation Law § 1118 — including the one now before us — is to determine what a willing purchaser in an arm’s length transaction would offer for petitioners’ interest in the company as an operating business.

Matter of Seagroatt Floral Co., Inc., 78 N.Y.2d 439, 445, 576 N.Y.S.2d 831, 583 N.E.2d 287 (1991) (citations omitted); Munshower v. Kolbenheyer, 732 So.2d 385, 386 (Fla. 3d DCA 1999)(looking to New York case law as persuasive on issues regarding valuation of closely held corporations).

Determining what an arm’s length purchaser of an interest in a closely held corporation would offer is “not an exact science.” Seagroatt, 78 N.Y.2d at 445, 576 N.Y.S.2d 831, 583 N.E.2d 287. “Accordingly, courts in such proceedings confront a variety of evidence and methods aimed at determining the price of minority interests-. ...” Id. In most instances, the market value method of valuation is of little significance because shares of a closely held corporation are not publicly traded and purchase offers for these shares usually come from insiders:

A court’s obligation to determine the “fair value” of the petitioner’s shares in a closely held corporation presents a difficult problem. The statute does not define the term “fair value”, and it fails to provide any criteria for determining “fair value”.... The factors to be considered are, inter alia, market value, investment value, and net asset value. The weight to be accorded each factor depends upon the circumstances of the particular case. The value of the corporation should be determined on the basis of what a willing purchaser, in an arm’s length transaction, would offer for the corporation as an operating business, rather than as a business in the process of liquidation.
Within the context of a closely held corporation, market value is usually of little or no significance because the shares of stock are not traded on any public market. Moreover, other than certain bona fide offers to purchase all of the outstanding stock of a corporation (i.e., through a merger or acquisition), a sale of the stock of a closely held corporation usually does not qualify as an arms-length transaction because the sale usually involves corporate officers, employees or family members....

Blake v. Blake Agency, Inc., 107 A.D.2d 139, 486 N.Y.S.2d 341, 347 (1985) (citations omitted)(emphasis added); see also Seagroatt, 78 N.Y.2d at 445, 576 N.Y.S.2d 831, 583 N.E.2d 287 (stating that closely held corporations are “legal entities that by their nature contradict the concept of ‘market’ value,” making it difficult to value the interests of their shareholders).

But unlike most instances, the court below had before it competent, substantial evidence of a good faith, arm’s length offer to purchase by a disinterested third person. Specifically, Julia Rodriguez, an owner of a successful business in the same upscale mall where G & G’s two stores are located, testified that shortly before this action was brought, she had offered to purchase Garcia’s shares for $150,000. According to Ms. Rodriguez, she had been approached by her accountant, who also was G & G’s long-term accountant, about purchasing Garcia’s shares. She subsequently met with Garcia to discuss G & G’s financial condition, and with his permission, their mutual accountant provided Ms. Rodriguez with G & G’s pertinent financial information which she used to create spreadsheets to evaluate the value of Garcia’s shares. Ms. Rodriguez was also made aware of G & G’s bank debt in excess of $300,000 and that this debt had to be personally secured by the shareholders. Ms. Rodriguez testified that she was unfazed by G & G’s debt because her own store had carried more than $700,000 in debt when she purchased it, yet she had been able to satisfy the debt and turn the store into a profitable business, precisely what she hoped to accomplish with G & G. According to Ms. Rodriguez, based on the information that she had gathered, her experience and knowledge of this particular mall and its businesses, and her accountant’s informed favorable recommendation, she offered $150,000 in writing to purchase Garcia’s shares, an offer the trial court adopted as the value of Garcia’s shares.

On this record, we cannot say that the trial court erred in considering or in relying upon either the market value approach or on Rodriguez’s good faith, bona fide, arm’s length offer in valuing Garcia’s shares. See Matter of Walt’s Submarine Sandwiches, Inc., 173 A.D.2d 980, 569 N.Y.S.2d 492, 493 (1991)(“The valuation process is fact specific with an emphasis on the particular circumstances of the case, including such pertinent evidence as prior attempts to sell the business, offers to purchase and other expert testimony”)(emphasis added); McManus v. McManus, 282 A.D.2d 213, 723 N.Y.S.2d 165, 166 (2001)(finding that the amount paid to purchase shares of stock was a better indication of its value than the appraised value prepared by a consulting firm).

A trial court’s selection of one valuation method over another does not require reversal. See McManus, 723 N.Y.S.2d at 166; Davis v. Alpha Packaging, Indus. Inc., 267 A.D.2d 384, 700 N.Y.S.2d 220, 221 (1999)(fínding that “the determination of a fact-finder as to the value of a business, if it is within the range of testimony presented, will not be disturbed on appeal where valuation of the business rested primarily on the credibility of the witnesses and their valuation techniques”). The record in this case reflects a careful consideration of witness credibility and the weight to be attributed to Julia Rodriguez’s testimony regarding valuation (and to some extent that of G & G’s long-time accountant) on one hand, and that of Leslie Avener, Ghi-lardi’s and Younkin’s “valuation” witness, on the other. On this record, we could reverse only by re-weighing the evidence and the credibility of the witnesses — a function not ascribed to this court. See Cole v. Cole, 723 So.2d 925, 927 (Fla. 3d DCA 1999); Citibank, N.A. v. Julien J. Studley, Inc., 580 So.2d 784, 785-86 (Fla. 3d DCA 1991); Froman v. Froman, 458 So.2d 833, 833 (Fla. 3d DCA 1984).

Finding no reversible error in the remainder of the issues raised by the appellants, we affirm.

      . The record confirms, as the final judgment notes, that Ghilardi’s and Younkin's "expert” was not hired to value, nor did she perform a true valuation of, G & G. Rather, Leslie Avener was hired only to consult with the parties, and the "value” that she ascribed to G & G was premised in significant part on information provided by Younkin and on assumptions that did not reflect the realities of this business.


source: Caselaw Access Project

author: GERSTEN, J.

license: Public Domain

text:
    Luis G. JIMENEZ, Appellant, v. WSUA BROADCASTING CORPORATION, Appellee.
    No. 3D03-34.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing and Rehearing En Banc Denied April 28, 2004.
    J.H. Zidell, and Jason S. Remer, for appellant.
    Aragon, Burlington, Weil, Schwiep, Kap-lan & Blonsky, and Daniel F. Blonsky, for appellee.
    Before LEVY, GERSTEN, and WELLS, JJ.
   GERSTEN, J.

We affirm the trial court’s order granting appellee WSUA Broadcasting Corporation’s motion for sanctions and to strike sham pleadings. The record fully supports the trial court’s findings that appellant Luis G. Jimenez’s complaint contained false factual averments and was tantamount to a fraud upon the court. See Meadows v. Edwards, 82 So.2d 733 (Fla. 1955); Rhea v. Hackney, 117 Fla. 62, 157 So. 190 (1934); City of Miami v. Urban League of Greater Miami, Inc., 849 So.2d 1095 (Fla. 3d DCA 2003); Hanono v. Murphy, 723 So.2d 892 (Fla. 3d DCA 1998).

Affirmed.


author: PER CURIAM.

text:
    Marcia M. BLANCO, Appellant, v. Yamilet CHAO a/k/a Yami Chao, Sylvia Gray, Cyber Title Company, LLC., and Cumberland Casualty & Surety Company, Appellees.
    No. 3D03-1681.
    District Court of Appeal of Florida, Third District.
    Feb. 11, 2004.
    Rehearing Denied April 28, 2004.
    Russo & Kavulich, and Rex E. Russo, Coral Gables, for appellant.
    Richard A. Sherman, Fort Lauderdale; Loughren & Doyle, and Richard B. Doyle (Fort Lauderdale), for appellees.
    Before LEVY, GERSTEN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Gardner v. Weiler, 630 So.2d 670 (Fla. 4th DCA 1994).


author: PER CURIAM. COPE, J.

text:
    Willie SPIVEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2828.
    District Court of Appeal of Florida, Third District.
    Feb. 18, 2004.
    Willie Spivey, in proper person.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Fort Lauderdale, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   CONFESSION OF ERROR

PER CURIAM.

Willie Spivey appeals from the denial of his post-conviction petition to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. Based on the state’s proper confession of error, we remand the cause back to the trial court for resentencing on count one only; because the defendant is required to be sentenced on that count pursuant to the guidelines the habitual offender designation applied to count one is in error. We affirm denial of post-conviction relief regarding count two.

Affirmed in part, remanded in part.

GODERICH and FLETCHER, JJ., concur.

COPE, J.

(concurring).

This court’s decision in Spivey v. State, 829 So.2d 386 (Fla. 3d DCA 2002), remanded the case for resentencing on count one only. The State is correct that count two was not reopened for resentencing and the previously-imposed habitual offender sentence on that count remained intact.


text:
    Patrick PENN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2938.
    District Court of Appeal of Florida, Third District.
    Feb. 25, 2004.
    Rehearing Denied April 30, 2004.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before FLETCHER, SHEVIN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See State v. Cooper, 835 So.2d 377 (Fla. 3d DCA 2003).


text:
    Jose Renato BERMUDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2752.
    District Court of Appeal of Florida, Third District.
    March 3, 2004.
    Rehearing Denied April 28, 2004.

      Jose Renato Bermudez, for appellant.
    Charles J. Crist, Jr., Attorney General and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, LEVY, and GREEN, JJ.
   PER CURIAM.

This is an appeal from the denial of a petition for writ of habeas corpus, challenging the incarceration of Appellant/Petitioner Jose Renato Bermudez following a conviction for DUI/Manslaughter. We affirm.

Bermudez was arrested on June 10,1997 on a DUI/Manslaughter charge. He was found guilty by a jury and sentenced to seventeen years imprisonment. Bermudez filed a pro se appeal, and this court affirmed his conviction. Bermudez v. State, 744 So.2d 1008 (Fla. 3d DCA 1999). Bermudez, thereafter, filed a Motion to Correct Sentencing Error which was denied by the trial court, and affirmed on appeal. Bermudez v. State, 796 So.2d 627 (Fla. 3d DCA 2001).

On August 7, 2003, Bermudez filed a Petition for Writ of Habeas Corpus, claiming (1) that his Fourth Amendment rights were violated when the police drew blood from him without first arresting him, as required by section 316.1932, Florida Statutes (1997), and (2) that, based on his counsel’s failure to raise the above point, he had been denied his rights to effective counsel and due process. The trial court denied the petition, finding that it failed to state a prima facie case for relief. Ber-mudez appeals.

The issues Bermudez raises in his petition could have, and should have, been raised in a Rule 3.850 motion for post-conviction relief. Such motions must be filed within two years after the judgment and sentence become final. See Fla. R.Crim. P. 3.850(b). A criminal defendant may not escape this two-year limit for 3.850 motions by styling a pleading as a petition for writ of habeas corpus. Green v. State, 727 So.2d 349, 350 (Fla. 5th DCA 1999); see also Patterson v. State, 664 So.2d 31, 32 (Fla. 4th DCA 1995) (affirming denial of petition for habeas corpus where it was apparent defendant was merely seeking untimely motion for 3.850 relief). Bermudez’s first appeal became final in November 1999. He filed his petition for writ of habeas corpus in August 2003, long after the two-year limit had expired. Therefore, Bermudez’s claims are time-barred.

Bermudez, however, claims that he has a right to habeas corpus relief under Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (stating that one of the “principal functions of habeas corpus [is] ‘to assure that no man has been incarcerated under a procedure which creates an impermissibly large risk that the innocent will be convicted.’ ”). Bermudez’s petition, however, does not allege that he is factually innocent, but rather that probative evidence used to incriminate him, i.e., blood used to test his blood alcohol level, was illegally seized. The trial court was therefore correct in declaring that Bermudez’s petition fails to state a prima facie case for relief.

For the above reasons, we affirm.

      . The statute provides, in pertinent part:
      Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test ... for the purpose of determining the alcoholic content of his or her blood or breath ... if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages.... § 316.1932, Fla. Stat. (1997) (emphasis added).


text:
    Michael JOHNSTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2046.
    District Court of Appeal of Florida, First District.
    March 5, 2004.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

[Original opinion at 29 Fla. Law Weekly D96.]

PER CURIAM.

We withdraw our opinion filed December 31, 2003, and substitute the following opinion. We grant appellee’s motion for rehearing, insofar as it pertains to the factual distinction between the instant case and Jones v. State, 480 So.2d 163 (Fla. 1st DCA 1985), and to the underlying purpose of the restitution statute. See § 775.089, Fla.Stat. (Supp.1994). The motion is otherwise denied.

The appellant, Michael Johnston, appeals his conviction and sentence for three counts of dealing in stolen property. The appellant contends that the trial court erred by ordering restitution for all losses resulting from the burglary of the victim’s home. We affirm the trial court’s order of restitution with respect to the items stolen from the victim’s home, but reverse with respect to the damages to the victim’s home.

The amount of restitution ordered by a trial court is subject to review for an abuse of discretion. Ashton v. State, 790 So.2d 1115, 1117 (Fla. 5th DCA 2001). A trial court must order a defendant to make restitution for damage or loss caused directly or indirectly by the defendant’s offense, and damage or loss related to the defendant’s criminal episode. § 775.089(l)(a), Fla. Stat. (Supp.1994). However, the general rule is that restitution may not be ordered for any loss which resulted from an offense for which the defendant was not charged or convicted. Watson v. State, 699 So.2d 835, 837 (Fla. 3d DCA 1997); Smith v. State, 664 So.2d 1047, 1048 (Fla. 2d DCA 1995); Faulkner v. State, 582 So.2d 783, 784 (Fla. 5th DCA 1991); Denson v. State, 556 So.2d 823, 824 (Fla. 1st DCA 1990). Nonetheless, the general rule does not apply where there is a significant relationship between the loss for which restitution is ordered and the defendant’s offense. See Denson, 556 So.2d at 824; Jones v. State, 480 So.2d 163 (Fla. 1st DCA 1985).

Ms. Janis Milin’s home was burglarized and she subsequently found several of the stolen items at local businesses. Three proprietors, who knew the appellant from previous transactions, identified the appellant as the seller of the items stolen from Ms. Milin. The appellant was charged with burglarizing the home of Ms. Milin, three counts of dealing in stolen property belonging to Ms. Milin, grand theft, and criminal mischief. Thereafter, he negotiated a plea agreement whereby he pled nolo contendere to the dealing in stolen property offenses and the state nolle prossed the remaining offenses. The court ordered appellant to make restitution for all losses resulting from the burglary.

We conclude that restitution for the items stolen during the burglary is proper, because the loss bears a significant relationship to the dealing in stolen property. See Jones, 480 So.2d at 164. See also Hercule v. State, 655 So.2d 1256, 1257 (Fla. 3d DCA 1995)(“Where restitution is part of a plea bargain, it should be liberally construed in favor of making the victim whole.”). Thus, the trial court did not abuse its discretion in ordering the appellant to pay restitution for all of the items stolen during the burglary. We reach a different conclusion in regard to the victim’s claim for the cost to clean and to repair the burglarized home.

At the September 20, 2003, restitution hearing, counsel for the state advised the trial court that the plea agreement contemplated restitution for all of the victim’s loss, except the cost to repair damage to the home. In reviewing the itemized list of property stolen in the burglary of the victim’s home, counsel for the state urged that appellant should be required to pay restitution for all amounts claimed, less the cost to clean and repair the premises, and indicated that $1,050 should be deducted from the total amount of restitution claimed.

The restitution order in this case directs appellant to pay restitution in the total amount of $27,555.00. Because the amount of restitution ordered is less than the total amount the victim claimed, we are uncertain whether the trial court included the $1,050 repair cost in the total amount of restitution which appellant is required to pay.

Accordingly, we reverse in part and remand with directions to the trial court to determine whether the restitution ordered included $1,150 for the cost to repair and to clean the victim’s home, and, if so, to deduct that amount from the restitution order.

AFFIRMED IN PART and REVERSED IN PART.

ERVIN, DAVIS and BROWNING, JJ., CONCUR.

      . The victim testified concerning the value of items removed from the home and not recovered, and placed into evidence an itemized list of those items, together with the value of each. The $1,050 cost of repair is further itemized to reflect $900 as cleaning cost and $150 as repair cost.

      . In its motion for rehearing, the state argues for the first time that the plea negotiation contemplated compensation to the victim for the full extent of her losses incurred by the criminal episode, including the cost to clean and to repair the burglarized home. At the trial level, counsel for the state advised the trial court that the repair cost should be deducted from the total amount of restitution claimed by the victim. In view of the position taken by the state at the trial level, we decline to consider appellee's inconsistent argument in the motion for rehearing. See Lee v. City of Jacksonville, 793 So.2d 62, 63 (Fla. 1st DCA 2001).


text:
    June WIGGINS, et al., Appellants, v. Julia DAWSON, et al., Appellees.
    No. 3D02-3424.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Rehearing Denied April 28, 2004.
    Louis M. Jepeway, Jr., Miami, for appellants.
    Duane Morris and Lida Rodriguez Ta-seff and Patricia Montes de Oca, Miami; Holland & Knight and Sanford L. Bohrer, Miami, for appellees.
    Before SCHWARTZ, C.J., and COPE and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Fridovich v. Fridovich, 598 So.2d 65 (Fla.1992); Nodar v. Galbreath, 462 So.2d 803 (Fla.1984).


author: FLETCHER, Judge.

text:
    Edna DE LA PENA, Appellant, v. SUNSHINE BOUQUET COMPANY and Hortica, Appellees.
    No. 3D03-2857.
    District Court of Appeal of Florida, Third District.
    March 10, 2004.
    Rehearing Denied April 28, 2004.
    Richard E. Zaldivar; Jay M. Levy, for appellant.
    Herzfeld & Rubin and Daniel L. Koch, Miami, for appellees.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   FLETCHER, Judge.

Edna De La Pena appeals from the circuit court’s denial of a petition for rule nisi in connection with her claim for workers’ compensation benefits. The judge of compensation claims granted De La Pena an independent medical examination by Dr. Barry Burak. When the employer/carrier failed to schedule an appointment with Dr. Burak within the ten days indicated in the order, De La Pena petitioned the circuit court for a rule nisi to enforce the order. At a hearing on the motion, counsel for the employer/carrier stated that they had attempted to schedule the appointment with Dr. Burak, but were unable to do so because the doctor insisted on prepayment and a fee which exceeded the amount allowable for the examination. Suggesting that De La Pena have the examination performed by another doctor, the circuit court denied her petition for rule nisi. Albeit for a different reason, we affirm the denial.

The circuit court has jurisdiction to enforce a final compensation order of a judge of compensation claims. § 440.24(1), Fla. Stat. (1998); North Shore Med. Ctr. v. Capua, 634 So.2d 1141 (Fla. 3d DCA 1994). However, interlocutory orders, such as the one at issue here, are matters which properly belong before the judge of compensation claims who has the power to enforce his or her own interlocutory orders. § 440.33, Fla. Stat. (1998).

Therefore, we affirm the denial of the petition for rule nisi.

      . Prepayment, the employer/carrier contends, is not permitted, only reimbursement, citing Florida Workers’ Comp. Health Care Provider Reimbursement Manual, pp. i, 10 (Div. of Work. Comp. 2003). We make no comments on this interpretation.


author: BROWNING, J. BENTON, J.,

text:
    Mark V. CLEMONS, Appellant, v. STATE RISK MANAGEMENT TRUST FUND and Florida Department of Insurance, Appellees.
    No. 1D03-2252.
    District Court of Appeal of Florida, First District.
    March 16, 2004.
    Rehearing Denied April 28, 2004.

      David J. Finger of Levine & Finger, Miami, Attorney for Appellant.
    Kelly Overstreet Johnson and Kelly A. O’Keefe of Broad & Cassel, Tallahassee, Attorneys for Amicus Curiae, for appellant.
    Ben H. Wilkinson and Cynthia S. Tunni-cliff of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for appellees.
   BROWNING, J.

After Appellant obtained a judgment against two officers from the Florida Game and Fresh Water Fish Commission in their individual capacities for violations of his federal civil rights under 42 U.S.C. section 1983, Appellant sought payment from Florida’s State Risk Management Trust Fund. When the Fund refused to pay, Appellant filed suit against the Fund and Florida’s Department of Insurance. The trial court granted the defendants’ motion to dismiss on the ground that Appellant was precluded from recovering through the Fund because the civil rights violations were based on intentional torts committed by the officers. We reverse because the final judgment does not contain a provision that Appellant “caused the harm intentionally.” See § 284.38, Fla. Stat. (2002).

Section 284.30, Florida Statutes, establishes the Fund to provide insurance for certain claims, including “federal civil rights actions under 42 U.S.C. s.1983 or similar federal statutes.” Section 284.38, Florida Statutes, provides for exclusion from coverage where the officer “has been determined in the final judgment to have caused the harm intentionally.” Nothing in the final judgment suggests that Officers Henderson and Crabtree intentionally violated Appellant’s federal civil rights.

The final judgment states only that Appellant was entitled to damages from each officer on one count of malicious prosecution, one count of civil rights violation, one count of conspiracy to violate civil rights, and three counts of punitive damages. Appellee argues that the finding of liability for malicious prosecution necessarily is a “determination in the final judgment” that the officers “caused the harm intentionally.” This is untrue because, even though an element of malicious prosecution is malice, the Florida Supreme Court has held that “[i]n an action for malicious prosecution it is not necessary for a plaintiff to prove actual malice; legal malice is sufficient and may be inferred from, among other things, a lack of probable cause, gross negligence, or great indifference to persons, property, or the rights of others.” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1357 (Fla.1994). Lack of probable cause, gross negligence, and great indifference to persons, property, or personal rights do not constitute intent to harm as clearly stated in section 284.38. Therefore, the finding of liability for malicious prosecution does not mandate exclusion from recovery through the Fund for the violations of federal civil rights.

Neither does the finding of liability for punitive damages. This Court has held that, in seeking punitive damages, “[i]t is not necessary to prove actual malice or intent to cause the particular injury sustained; the requisite malice or evil intent may be inferred from the defendant’s having willfully pursued a course of action in wanton disregard of the potential harm likely to result as a consequence of that wrongful conduct.” Johns-Manville Sales Corp. v. Janssens, 463 So.2d 242, 247 (Fla. 1st DCA 1984). Additionally, the finding of liability for conspiracy to violate civil rights does not necessarily imply that the officers intended to harm appellant because conspiracy does not require a finding of specific intent, but requires only the additional element that the accused conspired to commit the underlying offense. See United States v. Stewart, 65 F.3d 918, 928 (11th Cir.1995); United States v. Irvin, 787 F.2d 1506, 1516 (11th Cir.1986).

Because the trial court’s application of the exclusion in section 284.38 was error, we REVERSE and REMAND for proceedings consistent with this opinion.

DAVIS, J., concurs; BENTON, J., concurs with opinion.

BENTON, J.,

concurring.

I share the majority opinion’s view that the exclusion in section 284.38, Florida Statutes (1997), does not apply to the judgment for compensatory damages entered on June 23, 1998, in favor of Mark V. Clemons against Officers Henderson and Crabtree under 42 U.S.C. §§ 1983 and 1985, because “the officers] ... [were not] determined in the final judgment to have caused the harm intentionally.” § 284.38, Fla. Stat. (1997).

I write separately to address appellant’s contention that Form DI4-865, “Federal Civil Rights Liability and Employment Discrimination Certificate of Coverage,” promulgated as a rule by incorporation in Rule 4H-2.004(5), Florida Administrative Code, since transferred to Rule 69H-2.004(5), Florida Administrative Code, creates an exclusion, even if section 284.38, Florida Statutes (1997), does not.

The form certificate of coverage attached to the complaint designates Florida Fish and Wildlife Conservation Commission as the “Name Insured” and certifies “Federal Civil Rights Liability Coverage provided pursuant to Chapter 284, Part II, Section 768.28, Florida Statutes, and any rules promulgated thereunder.” The certificate purports to exclude

actions of insureds committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property;
[or] ... final judgments in which the insured has been determined to have caused the harm intentionally[.]

The latter exclusion echoes pertinent language in section 284.38, Florida Statutes (1997). But the former exclusion tracks limiting language in section 768.28(9)(a), Florida Statutes (1997), in contravention of controlling language making clear that the “limits provided in s. 768.28 shall not apply to a civil rights action arising under 42 U.S.C. s.1983 or similar federal statute.” § 284.38, Fla. Stat. (1997).

To the extent the certificate and the statute conflict, the statute controls. Cf. Mullis v. State Farm Mut. Auto. Ins. Co., 252 So.2d 229, 233-34 (Fla.1971) (“[SJtatu-torily fixed and prescribed protection is not reducible by insurers’ policy exclusions and exceptions.... ”). This is so even though the form was adopted by a duly promulgated administrative rule. “It is axiomatic that an administrative rule cannot ... contravene the provisions of a statute.” State, Dep’t of Bus. Reg. v. Salvation Ltd., 452 So.2d 65, 66 (Fla. 1st DCA 1984); Willette v. Air Prods., 700 So.2d 397, 401 (Fla. 1st DCA 1997) (“A statute takes precedence over a rule.”).

While an administrative law judge presiding in a section 120.57 proceeding will deem controlling duly promulgated administrative rules never challenged under section 120.56, it is open to a reviewing court to adjudicate an administrative rule at odds with the statute it purports to implement, even when there has been no administrative rule challenge proceeding below. See State ex rel. Dep’t of Gen. Servs. v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977) (“[P]rovisions [now codified at section 120.56(1)(e) ] are addressed ... to district courts of appeal, which might otherwise rebuff rule challenges by petitions to review 120.57 proceedings because petitioner did not ‘exhaust’ the rule-challenge remedies of 120.54 and .56.”); Rudloe v. Fla. Dep’t of Envtl. Reg., 517 So.2d 731, 733 (Fla. 1st DCA 1987) (“[0]n occasion, we have reviewed a rule challenge for the first time on appeal where the challenge involved essentially a matter of law to be determined by the ordinary rules of statutory construction.”).


text:
    OLD DOMINION LIMITED PARTNERSHIP, Appellant, v. PAN AMERICAN AT MERRICK PLAZA, LTD., Appellee.
    No. 3D03-509.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Ruden, McClosky, Smith, Schuster & Russell, and John H. Pelzer, and Kristie J. Myers (Fort Lauderdale), for Appellant.
    Sullivan & Rivero, and Andres Rivero, and Lisa B. Lehner, for Appellee.
    Before GERSTEN, FLETCHER, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Mori v. Matsushita Elec. Corp. of America, 380 So.2d 461 (Fla. 3d DCA 1980).


text:
    Juan Jose VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3050.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Fredericka Sands, Assistant Attorney General, for appellee.

      Before LEVY and RAMIREZ, JJ., and HARRIS, CHARLES M., Senior Judge.
   PER CURIAM.

The issue in this case is whether a comment made by the judge at the time of defendant’s conviction for violation of probation indicates that the judge incorrectly believed that defendant had the burden to prove that he did not violate probation or merely expressed the notion that defendant had a “burden” to comply with the terms of his probation. In its brief, the State concedes that without clarification the record warrants a reversal. Because of the ambiguity in the record, we reverse for a new violation hearing.

REVERSED AND REMANDED for a new violation of probation hearing.


text:
    ALL AMERICAN POOL SURFACE, INC., and Jason Evans, Appellants, v. Paul JORDAN, Appellees.
    No. 3D03-309.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Conroy, Simberg, Ganon, Krevans & Abel, P.A., and Hinda Klein (Hollywood), for appellants.
    Barbara Green, Coral Gables; Goldfarb, Gold, Gonzalez & Wald and Jonathan D. Wald, Miami, for appellee.
    Before SCHWARTZ, C.J. and LEVY, J., and HARRIS, CHARLES M., Senior Judge.
   PER CURIAM.

The issue in this case is whether the testimony of the forensic accountant concerning plaintiffs loss of future earning ability was so based on speculation, conjecture, and incorrect assumptions that a new trial should have been ordered by the trial court. The expert’s figures, not finalized until shortly before her testimony and calculated without discussing them with plaintiff or reading his deposition, assumed incorrectly that plaintiff, an hourly rate employee, received the private use of a company car, sick leave, and paid vacations. She further based her testimony on the costs of benefits, including the cost of worker’s compensation protection, cost of uniforms, and cost for the work-related use of a vehicle paid by the employer. Obviously, if plaintiff is being compensated for the rest of his work life for the income he would have received had he worked full time, then the future use of a uniform, which he would no longer have to wear, the future use of a work-related vehicle, which he would no longer have to drive, or the cost of unemployment protection, when he is no longer concerned with being unemployed, is immaterial.

Because we agree that the expert’s testimony was based on speculation, conjecture, and incorrect assumptions, we reverse for a new trial on the issue of lost earning ability.

REVERSED AND REMANDED.


text:
    COMPREHENSIVE HEALTH CENTER, INC., Appellant, v. LAW OFFICES OF ROBERT A. TRILLING, Appellee.
    No. 3D03-965.
    District Court of Appeal of Florida, Third District.
    March 17, 2004.
    Greenspan & Kane and Brian K. Korte, for appellant.
    Robert A. Trilling, Miami, for appellee.
    Before GODERICH, FLETCHER and SHEPHERD, JJ.
   PER CURIAM.

The defendant below, Comprehensive Health Center, Inc., appeals from an adverse final default judgment. After a careful review of the record, we affirm the trial court’s entry of default judgment. However, we reverse the entry of final default judgment and remand for an evi-dentiary hearing on the issue of damages as the amount sued for was unliquidated. See Hartford Fire Ins. Co. v. Controltec, Inc., 561 So.2d 1334 (Fla. 5th DCA 1990).

Affirmed, in part; reversed, in part.


author: PER CURIAM. BENTON, J.,

text:
    Clyde A. OWENS, Appellant, v. James L. RIDLEY, Jr., individually; and Taylor Cotton, & Ridley, Inc., a Florida corporation, Appellees.
    No. 1D03-939.
    District Court of Appeal of Florida, First District.
    March 18, 2004.
    Rehearing Denied April 28, 2004.

      Jack M. Ross, Gainesville, and James H. Sullivan III, Gainesville, for Appellant.
    Leonard E. Ireland, Jr., of Clayton-Johnston, P.A., Gainesville, for Appellees.
   PER CURIAM.

REVERSED and REMANDED. See Hart Props., Inc. v. Slack, 159 So.2d 236 (Fla.1963); Yun Enters., Ltd. v. Graziani, 840 So.2d 420 (Fla. 5th DCA 2003); Sorrells v. Mullins, 303 So.2d 385 (Fla. 3d DCA 1974). We express no view on the effect of Florida Rule of Civil Procedure 1.110(g), which the defendants argued on appeal but not before the trial court.

KAHN and VAN NORTWICK, JJ., concur.

BENTON, J., dissents with written opinion.

BENTON, J.,

dissenting.

In some circumstances, “the proper procedure is to enter the summary judgment with leave to the party to amend.” Hart Props., Inc. v. Slack, 159 So.2d 236, 240 (Fla.1963) (dicta). When appropriate, an appeals court should “affirm the summary judgment but without prejudice to the plaintiff filing an amendment to the complaint within the facts appearing of record.” Sorrells v. Mullins, 303 So.2d 385, 387 (Fla. 3d DCA 1974).

Appropriate circumstances do not, however, obtain in the present case. Appellant seeks a seventh opportunity to plead in a case which has already dragged on since last century. See Fla. Gas Co. v. Arkla Air Conditioning Co., 260 So.2d 220, 221 (Fla. 1st DCA 1972) (“The second point posed by Florida Gas is that the trial court abused its discretion in not permitting it one more opportunity to state a cause of action. ‘Three strikes are out’ in a baseball game; Florida Gas has been at bat four times. Under the most liberal construction of our modern rules, we hold that ample opportunity has been proffered to appellant.”).

The present case differs dramatically from Yun Enters., Ltd. v. Graziani, 840 So.2d 420, 423 (Fla. 5th DCA 2003), where “Yun had not amended its complaint prior to its [one and only] request” to do so, but resembles closely Feigin v. Hosp. Staffing Servs., Inc., 569 So.2d 941, 942 (Fla. 4th DCA 1990), where it was held:

Refusal to grant leave to amend was not an abuse of the court’s discretion since this was the seventh complaint filed over a four-year period and the record clearly reflects the court’s warning that this was the plaintiffs “last bite at the apple.” Clay v. City of Margate, 546 So.2d 434 (Fla. 4th DCA), rev. denied, 553 So.2d 1164 (1989); Cohen v. American Home Assurance Co., 367 So.2d 677 (Fla. 3d DCA), cert. denied, 378 So.2d 342 (1979).

See also Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992) (“While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion.”); Heritage Corp. of S. Fla. v. Small, 457 So.2d 521, 521 (Fla. 3d DCA 1984); Price v. Morgan, 436 So.2d 1116, 1122 (Fla. 5th DCA 1983); Alvarez v. DeAguirre, 395 So.2d 213, 216 (Fla. 3d DCA 1981).

With respect, I do not believe the trial judge abused his discretion in failing to allow the post-judgment amendment sought in the present case. “Although it is highly desirable that amendments to pleadings be liberally allowed so that cases may be concluded on their merits, there is an equally compelling obligation on the court to see to it that the end of all litigation be finally reached.” Broum v. Mont gomery Ward & Co., 252 So.2d 817, 819 (Fla. 1st DCA 1971).


author: PETERSON, J.

text:
    ENIC, PLC, Appellant, v. F.F. SOUTH & COMPANY, INC., et al, Appellee.
    No. 5D03-439.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2004.
    Rehearing Denied April 23, 2004.

      David B. King, Mayanne Downs and Kristen L. Davenport of King, Blackwell & Downs, P.A., Orlando, for Appellant.
    David H. Simmons, Julie Hions O’Kane and Daniel J. O’Malley of de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee.
   PETERSON, J.

Enic, PLC, a United Kingdom public limited company, and the parent company of its wholly-owned subsidiary, Enic Entertainment, Inc., (“Enic Entertainment”), appeals a non-final order denying its motion to dismiss for lack of personal jurisdiction.

Enic Entertainment was the parent corporation of its wholly-owned subsidiary, Church Street Station of Orlando, Inc., (“Church Street Station”). On May 4, 2001, Enic Entertainment sold all of its stock in Church Street Station to F.F. Station, LLC, (“F.F.Station”). On September 27, 2001, F.F. South & Company, Inc., (“F.F.South”), F.F. Station, and Church Street Station of Orlando, Inc., (“CSS”), (collectively “Plaintiffs”), sued Enic Entertainment, Enic, PLC, Gerard O’Riordan, director of Enic Entertainment and former director of Church Street Station, Tyler Piercy, chief financial officer of Enic Entertainment, and Arthur Anderson, LLP, (“Arthur Anderson”), (collectively “Defendants”). In their complaint, the Plaintiffs alleged inter alia that the Defendants: 1) knowingly misrepresented the value, income, and indebtedness of Church Street Station; 2) knowingly misrepresented the arrangements with, and rents due, from tenants of the various properties in the Church Street Station entertainment, dining and shopping complex located in Orlando, Florida; and 3) removed valuable property from the complex which was to remain as part of the purchase.

Enic, PLC responded with a motion to dismiss for lack of personal jurisdiction alleging that it does not have the necessary minimum contacts with the State of Florida to avoid offending traditional notions of fair play and substantial justice as required by International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny. It supported its motion with the affidavit of its finance director and depositions.

The trial court denied the motion to dismiss and found that Enic, PLC as the parent, exuded sufficient control over its subsidiary, Enic Entertainment. In support of its finding, the trial court listed those acts which it relied on in making its finding, including inter alia: Enic, PLC’s ownership of Enic Entertainment; some of Enic, PLC’s directors also served on Enic Entertainment’s board of directors; Enic, PLC’s control over disposal and acquisition of assets by Enic Entertainment; Enic, PLC’s financial support of Enic Entertainment; Enic Entertainment’s reporting of day-to-day operation of Church Street Station to Enic, PLC; Enic, PLC’s review of the proposed contract for sale of Church Street Station; and Enic, PLC’s reimbursement of Church Street Station’s accounting bills.

Orders finding personal jurisdiction are issues of law reviewable under the de novo standard of review. E.g., Execu-Tech Business Systems, Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582, 584 (Fla.), cert. denied 531 U.S. 818, 121 S.Ct. 58, 148 L.Ed.2d 25 (2000). To establish personal jurisdiction over Enic, PLC, the foreign defendant, the Plaintiffs must satisfy a two-pronged test. Procedural in nature, the first prong requires the plaintiff to initially plead sufficient factual allegations to subject the defendant to jurisdiction under section 48.193(1), Florida Statutes (2002), Florida’s Long Arm Statute. See, e.g., John Scott, Inc. v. Munford, Inc., 670 F.Supp. 344 (S.D.Fla.1987). The second prong is concerned with due process and requires the plaintiff to establish that the defendant has sufficient minimum contacts with the state to meet the federal requirements of fair play and substantial justice under International Shoe and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). The contacts must be “such that he should reasonably anticipate being haled into court there.” World-Wide, 444 U.S. at 297, 100 S.Ct. 559. See also Venetian Salami Co. v. J.S. Parthenais, 554 So.2d 499 (Fla.1989) (holding that the requisite minimum contacts are not built into the long-arm statute). If a defendant meets the high threshold of “substantial and not isolated activity within the state” as required under section 48.193(2), minimum contact is also met. Woods v. Nova Companies Belize, Ltd., 739 So.2d 617, 620 (Fla. 4th DCA 1999).

PRONG I: FLORIDA’S LONG ARM PERSONAL JURISDICTION

In order to support long arm personal jurisdiction under section 48.193, Florida Statutes, (2002), the Plaintiffs “must first allege sufficient facts in the complaint in support of long arm jurisdiction.” John Scott, 670 F.Supp. at 345. Once the Plaintiffs do this, Enic, PLC must file affidavits or other sworn testimony to substantiate its claim that Florida’s long arm statute is inapplicable to it. Id. The burden then shifts back to the Plaintiffs to prove a basis for personal jurisdiction. Venetian, 554 So.2d at 502-503. The Plaintiffs allege in the instant case that personal jurisdiction exists under section 48.193(l)(a), (b) and (g), Florida Statutes. Both sides filed affidavits and depositions in support of their positions and the trial court found that the Plaintiffs alleged sufficient facts in its complaint and that Enic, PLC satisfied its burden under the Venetian test, stating that, “Plaintiffs[’] initial pleading which alleges that Mr. O’Riordan and Mr. Piercy were Florida agents and representatives of Enic, PLC, sufficiently alleged facts to bring Enic, PLC within the [cjourt’s jurisdiction.”

PRONG II: MINIMUM CONTACTS/AGENCY

Our analysis now turns to the second prong, “minimum contacts,” and in this case concerns the question whether an agency relationship existed between Enic, PLC and Enic Entertainment such that personal jurisdiction can be established over Enic, PLC.

Personal jurisdiction exists when any person, who personally or through an agent, either carries on a business in Florida or breaches a contract by failing to perform acts required to be performed in Florida. § 48.193(1)(a), (g), Fla. Stat. (2002); John Scott, 670 F.Supp. at 345. As in John Scott, the issue of personal jurisdiction is largely controlled by whether Enic Entertainment can be regarded as Enic, PLC’s agent. Id. If Enic Entertainment acted as Enic, PLC’s agent, then the trial court did not err in its ruling.

Determination of the existence of an agency is an issue of fact and the burden is on the plaintiff to establish a prima facie case. Product Promotions Inc. v. Cousteau, 495 F.2d 483, 492 (5th Cir.Tex.1974). Under Florida law, the elements of an agency relationship are: 1) acknowledgment by the principal that the agent will act for it; 2) the agent’s acceptance of the undertaking; and 3) control by the principal over the action of the agent. Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.1990). We need only focus on the third element to determine the outcome of this case: whether Enic, PLC exercised that degree of control over Enic Entertainment to make the latter the agent of the former.

It is well settled in Florida that the mere presence of a subsidiary in Florida, without more, does not subject a non-Florida corporate parent to long-arm jurisdiction. See, e.g., Walt Disney Co. v. Nelson, 677 So.2d 400, 403 (Fla. 5th DCA 1996); Qualley v. International Air Service Co., 595 So.2d 194, 196 (Fla. 3d DCA 1992), cause dismissed, 605 So.2d 1265 (Fla.1992). However, when a parent exercises sufficient control over a subsidiary, that control establishes an agency and supports jurisdiction. E.g., State v. American Tobacco, Co., 707 So.2d 851, 854-55 (Fla. 4th DCA 1998); see also Bell Atlantic Corp. v. Associated Data Consultants, Inc., 714 So.2d 523 (Fla. 4th DCA 1998). The amount of control exercised by the parent must be high and very significant. American Tobacco, 707 So.2d at 851 (Fla. 4th DCA 1998). “[T]he parent corporation, to be liable for its subsidiary’s acts under the ... agency theory, must exercise control to the extent the subsidiary ‘manifests no separate corporate interests of its own and functions solely to achieve the purposes of the dominant corporation.’ ” Id. (quoting Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982) modified on other grounds by Dania Jai-Alai Palace v. Sykes, 450 So.2d at 1114 (Fla.1984)).

The instant case is analogous to Kramer Motors, Inc. v. British Leyland, Ltd., 628 F.2d 1175 (9th Cir.) cert. denied, 449 U.S. 1062, 101 S.Ct. 785, 66 L.Ed.2d 604 (1980). In Kramer Motors, the court found that there was insufficient control by the parent over the subsidiary despite: 1) some of the directors of the parent were members of the board of the subsidiary; 2) the president of the subsidiary served as a director of the parent; 3) the parent had a general executive responsibility for the subsidiary’s operation and reviewed and approved the major policy decisions of the subsidiary; 4) the parent guaranteed obligations of the subsidiary to United States banks; 5) executives of the parent worked closely with executives of the subsidiary on pricing and products and sometimes traveled to the United States for meetings; 6) the parent approved the subsidiary’s proposal to consolidate product distribution; and 7) the parent established goals and gave directives to the subsidiary. Id. at 1177. Despite the amount of involvement in Kramer Motors of the parent over the subsidiary, the court found that such contact was insufficient to establish an agency because no evidence was shown that the parent controlled the internal day-to-day affairs of the subsidiary. All goals and directives of the parent were “normal” and did not show “operational control” of the subsidiary by the parent necessary to establish personal jurisdiction. See also General Cigar Holdings, Inc. v. Altadis, S.A., 205 F. Supp 2d 1335 (S.D.Fla.), aff'd, 54 Fed. Appx. 492 (11th Cir.2002), (finding no personal jurisdiction over a parent with a Florida subsidiary where despite “regular and extensive contact” and a “very close working relationship” between the parent and the subsidiary, there was no evidence that the parent controlled the subsidiary’s daily “basic operation”).

In the instant case, the lack of control over Enic, PLC’s subsidiary, Enic Entertainment, is evident in the record. First, the record shows that Enic, PLC was not directly involved in the day-to-day operation of Enic Entertainment and more specifically, Church Street Station. Although the subsidiary Enic Entertainment reported to its parent, the actual day-to-day operation of Church Street Station was controlled solely by Enic Entertainment, not by the parent. The evidence was insufficient to establish that Enic, PLC had the operational control necessary over Enic Entertainment to obtain personal jurisdiction over Enic. Second, the actual negotiations involving the sale of Church Street Station were controlled exclusively by Enic Entertainment, not by Enic, PLC. Although Enic, PLC expressed its approval of Enic Entertainment’s contract with F.F. Station for the sale of a major asset, Church Street Station, Enic, PLC was simply not involved in the contract negotiations; the sales contract was negotiated exclusively between F.F. Station and Enic Entertainment. Additionally, Enic Entertainment never claimed to be acting on behalf of Enic, PLC, nor is Enic, PLC mentioned anywhere in the agreements relating to the sale of Church Street Station. Furthermore, the record reveals no act by Enic, PLC which could be interpreted as giving rise to the cause of action alleged by the Plaintiffs. Although Enic, PLC approved Enic Entertainment’s contract with F.F. Station for the sale of Church Street Station (which gave rise to the breach of contract action after closing), Eme, PLC s approval of the contract negotiated by its subsidiary, Enic Entertainment, “does not constitute the kind of deliberate forum protection-invoking act which the law requires.” See, e.g., Kramer Motors, 628 F.2d at 1178 (citing WorldWide Volkswagen v. Charles S. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). Finally, Enic Entertainment’s presence in the State of Florida was primarily for the purpose of carrying on its own business, not that of its parent, Enic, PLC. Enic Entertainment had some semblance of independence from Enic, PLC and thus, jurisdiction over Enic, PLC cannot be acquired on the basis of Enic Entertainment’s local activities. See, e.g., Consolidated Development Corp. v. Sherritt, Inc., 216 F.3d 1286, 1293 (11th Cir. 2000); cf. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264 (11th Cir.2002) (finding of control warranted where Florida subsidiaries were mere instrumentalities of parent); John Scott, Inc. v. Munford, Inc., 670 F.Supp. 344 (S.D.Fla.1987) (finding of control warranted by parent’s direct and active participation in and management of transaction at issue).

We conclude that the Plaintiffs failed to establish a basis for personal jurisdiction over Enic, PLC when it could not establish that it exercised sufficient and significant control over Enic Entertainment to subject itself to the personal jurisdiction of Florida courts. The order denying Enic, PLC’s motion to dismiss for lack of personal jurisdiction is reversed and we remand for further proceedings.

REVERSED and REMANDED.

SHARP, W. and TORPY, JJ„ concur.

      . Section 48.193, Florida Statutes (2002), provides in pertinent part: (1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
      (a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
      (b) Committing a tortious act within this state.

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


author: FARMER, C.J.

text:
    Alvin BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3957.
    District Court of Appeal of Florida, Fourth District.
    March 31, 2004.
    Rehearing Denied May 12, 2004.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

Defendant’s sole contention on appeal is that the trial judge abused his discretion in refusing his challenge for cause as to one potential juror’s impartiality. We agree. The juror expressed a clear bias in favor of the state and his responses to the court’s questioning merely indicated he would “try” his best not to be prejudiced. While a juror’s efforts to be a neutral fact-finder may be admirable, on this record we find the juror’s remarks were legally insufficient indicia of his impartiality. See Davis v. State, 656 So.2d 560 (Fla. 4th DCA 1995).

During voir dire, juror 12 responded to the trial judge’s inquiry whether any potential juror had been the victim of a crime that could result in prejudice. He was a victim of attempted armed robbery and had favorable impressions of the police investigation. The judge asked whether that experience would bias or prejudice him for or against the state or for against the defendant. The juror said, “I’d try not to.” When the judge repeated his question, the juror said, “If I had a bias it would be against the defendant.” The judge then inquired whether he could put the matter entirely aside and consider the case solely on the evidence. The juror said, “I would give it my best shot.”

Defendant challenged this juror for cause, arguing that the word “try” did not indicate a neutral mind. The trial judge denied the challenge. Defendant then employed a peremptory challenge to remove juror 12 from the panel, exhausted his peremptory challenges, and requested another peremptory challenge naming an objectionable juror who was seated on the jury. The judge denied his request. The jury ultimately found the defendant guilty on two counts of battery on a law enforcement officer, one count of fleeing and eluding, and one count of possession of cocaine.

Defendant argues that the trial judge should have excused potential juror 12 for cause because there was a reasonable doubt whether he could render an impartial verdict. He has preserved his challenge for our review. See Trotter v. State, 576 So.2d 691, 693 (Fla.1990) (“To show reversible error, a defendant must show that all peremptories had been exhausted and that an objectionable juror had to be accepted.”); Jenkins v. State, 824 So.2d 977, 981 (Fla. 4th DCA 2002) (“On direct appeal, to preserve for appellate review a claim that the trial court improperly denied a cause challenge to a juror, a defendant must exhaust his peremptory challenges, request an additional peremptory challenge from the court, and demonstrate that an objectionable juror was seated.”).

A juror must be excused for cause if reasonable doubt exists as to whether the juror possesses an impartial state of mind. Bryant v. State, 656 So.2d 426 (Fla.1995). The test is whether a juror can lay aside any bias or prejudice and render a verdict solely on the evidence presented and the instructions on the law given by the court. Singer v. State, 109 So.2d 7 (Fla.1959).

In Davis v. State, 656 So.2d 560 (Fla. 4th DCA 1995), we granted defendant a new trial based on a potential juror’s remark that he would tend to be sympathetic toward one party. We found his later statements, that he did not “think” that his feelings would impact his ability to be fair, to be legally insufficient to overcome a showing of possible partiality. We explained:

“Where a juror demonstrates a strong bias for or against the credibility of one side or another, which he or she is unsure can be put aside, a challenge for cause should be granted. The underlying principle is that ‘a juror is not impartial when one side must overcome a preconceived opinion in order to prevail.’ ”

656 So.2d at 562.

On the face of this record, it is even clearer than it was in Davis that there was a reasonable doubt the juror possessed an impartial state of mind. Juror 12 clearly expressed an unequivocal bias in favor of the state and his remark, “I’d try not to [be prejudiced],” demonstrated that even he was uncertain he could put that bias aside. While the juror stated he “would give it his best shot,” he never uttered any affirmative words indicating that he could in fact lay aside any bias or prejudice. The juror’s responses were legally insuffi-dent to indicate his impartiality. Davis, 656 So.2d 560. He should have been excused for cause. Singer v. State, 109 So.2d 7, 23-24 (Fla.1959) (“[I]f there is a basis for any reasonable doubt as to any juror’s possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial[,] he should be excused on motion of a party, or by the court on its own motion.”); accord Hill v. State, 477 So.2d 553, 555 (Fla.1985); Jenkins v. State, 824 So.2d 977, 980 (Fla. 4th DCA 2002); Lowe v. State, 718 So.2d 920, 921-22 (Fla. 4th DCA 1998).

The state asserts that the juror was later rehabilitated when the court inquired of the panel whether they could remain impartial and he did not respond. While Florida law permits the rehabilitation of a juror whose responses in voir dire raise concerns about impartiality, reasonable doubt is not overcome by a juror’s silence to a question asked of the entire panel. See Juede v. State, 837 So.2d 1114, 1116 (Fla. 4th DCA 2003). Additionally, we have consistently held that close cases should be resolved in favor of excusing the juror. See, e.g., Williams v. State, 638 So.2d 976, 978 (Fla. 4th DCA 1994), review granted, 648 So.2d 724 (Fla.1994), review denied, 654 So.2d 920 (Fla.1995) (impartiality of fact finders absolute prerequisite).

Contrary to the state’s argument, the defendant has demonstrated that an objectionable juror was seated. See Shannon v. State, 770 So.2d 714 (Fla. 4th DCA 2000) (defendant not required to explain why juror who sat on panel is objectionable because peremptory challenge need not be based on any specific reason). He has also shown prejudice by the error. Ault v. State, 866 So.2d 674 (Fla.2003) (rejecting harmless error analysis; issue is “whether the composition of the jury panel as a whole could possibly have been affected by the trial court’s error.”); Hill v. State, 477 So.2d 553 (Fla.1985) (error not harmless because it reduces number of strikes available).

Because we find the juror’s responses legally insufficient to indicate his impartiality, the trial judge lacked discretion to refuse defendant’s challenge. See Davis, 656 So.2d 560; Juede v. State, 837 So.2d 1114, 1116 (Fla. 4th DCA 2003) (whether challenged juror’s responses are sufficient “is a mixed question of law and fact to be resolved by the trial court.”). On this record, “[w]e have no choice but to reverse for a new trial in front of fair and impartial jurors.” James v. State, 736 So.2d 1260, 1263 (Fla. 4th DCA 1999).

GUNTHER and TAYLOR, JJ„ concur.


text:
    Carey HAUGHWOUT, Public Defender, Fifteenth Judicial Circuit, Petitioner, v. Ronald F. MELLOR, Respondent.
    No. 4D04-415.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2004.
    Rehearing Denied May 14, 2004.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for petitioner.
    Ronald F. Mellor, West Palm Beach, pro se.
   PER CURIAM.

Petitioner seeks a writ of certiorari challenging the lower court’s order requiring the Public Defender to represent a non-indigent defendant in a criminal proceeding. Certiorari is the appropriate relief. See Brevard, County v. State, 516 So.2d 968 (Fla. 5th DCA 1987) (certiorari relief granted when trial court required the county to pay for private counsel when the accused was solvent), rev. denied, 528 So.2d 1183 (Fla.1988); Behr v. Gardner, 442 So.2d 980 (Fla. 1st DCA 1983). For the reasons set forth below, we grant the petition and quash the order appointing the public defender.

Florida law requires a public defender to represent indigent defendants but a court “may not appoint the public defender to represent, even on a temporary basis, any person who is not indigent.” § 27.51(2), Fla. Stat (2003). Section 27.52 defines indigent, for the purposes of this section, as a person who “is unable to pay for the services of an attorney without substantial hardship to his or her family.” § 27.52(2)(b)2.

The law provides further guidance by creating a presumption of non-indigen-cy when any of the following exist: (1) the defendant has been released on bond of greater than $5,000; (2) the defendant “owns, or has equity in, any ... tangible ... real property”; or (3) the defendant “retained private counsel immediately before or after filing the affidavit asserting indigency.” § 27.52(2)(c). The presence of any of these factors creates a presumption of non-indigency. See Martin v. State, 711 So.2d 117, 119 (Fla. 4th DCA 1998). Unless the defendant can overcome this presumption of non-indigency, the trial court should not appoint the public defender.

The record indicates that Mellor has an equity interest in real property within Palm Beach County and has twice retained private counsel. As one factor is clearly present, the lower court was required to find a presumption of non-indi-gency existed. Instead, the lower court concluded Mellor would probably not retain private counsel in the future and feared Mellor would proceed to trial, on a second-degree murder charge, without any representation unless the public defender was appointed. Based on this conclusion, the lower court felt it had no choice but to appoint the public defender to preserve Mellor’s constitutional right to counsel.

Because the record shows Mellor has, and is, able to hire private counsel, the lower court order appointing the public defender must be quashed. We therefore grant the petition, issue the writ of certio-rari, and remand to the trial court for further proceedings consistent with this opinion.

GUNTHER, GROSS and MAY, JJ., concur.


author: MONACO, J.

text:
    Carmelo I. FIGUEROA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1341.
    District Court of Appeal of Florida, Fifth District.
    April 8, 2004.
    James F. Cummins, Inverness, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The issue presented to us for consideration is whether certain cell telephone records obtained from a telephone service provider pursuant to an investigative subpoena, as opposed to a warrant, violates the Fourth Amendment proscription against unlawful searches and seizure. Because we conclude that obtaining the records did not amount to a search, we find no violation of the appellant’s constitutional right and affirm.

Carmelo I. Figueroa was charged with conspiracy to traffic in cocaine in excess of 400 grams, trafficking in cocaine, and possession of cocaine. Mr. Figueroa moved to suppress certain evidence that was found in his vehicle after a traffic stop. His vehicle was searched incident to the arrest based on probable cause that was founded on information received in connection with the interception of information related to a cell phone number. An evidentiary hearing was held before the judge who denied the motion to suppress. Mr. Figueroa then pled nolo contendere to the charges as filed, reserving the right to appeal the denial of his motion to suppress, and was adjudicated guilty and sentenced to state prison.

The evidence at the suppression hearing reflected that Mr. Figueroa was identified by the Citrus County Sheriffs Office Special Investigations Unit as a suspect in a narcotics ring. In furtherance of the investigation the Special Investigations Unit requested certain cell telephone records from Nextel Communications, a wireless telephone company, by serving Nextel with an investigative subpoena. The foundation for the request was section 934.23(4), Florida Statutes (2000), a statute that authorized the State to use a subpoena to obtain information without first seeking the approval of a court. That subsection of the statute, which concerns the disclosure of customer communications or records by the provider of electronic communication services, reads

(4)(a) Except as provided in paragraph (b), a provider of electronic communication service or remote computing service may disclose a record or other information pertaining to a subscriber or customer of such service, not including the contents of communication covered by subsection (1) or subsection (2), to any person other than an investigative or law enforcement officer.
(b) A provider of electronic communication service or remote computing service shall disclose a record or other information pertaining to a subscriber to or customer of such service, not including the contents of communications covered by subsection (1) or subsection (2), to an investigative or law enforcement officer only when the investigative or law enforcement officer:
1. Obtains a warrant issued by the judge of a court of competent jurisdiction;
2. Obtains a court order for such disclosure under subsection (5); or
3. Has the consent of the subscriber or customer to such disclosure.
(c) A provider of electronic communication service or remote computing service shall disclose to an investigative or law enforcement officer the name, address, telephone toll billing records, telephone number or other subscriber number or identity, and length of service as a subscriber or customer of such service and the types of services the subscriber or customer used when the governmental entity uses a subpoena.
(d) An investigative or law enforcement officer who receives records or information under this subsection is not required to provide notice to a subscriber or customer.”

(Emphasis added).

Subsections (4)(a) and (b) of the statute make specific reference to “contents of communication.” The term, “contents,” is defined in section 934.02(7), Florida Statutes (2000), as it relates to wire, oral or electronic communications, as including “any information concerning the substance, purport, or meaning of that communication.” Section 934.22, Florida Statutes (2000), generally prohibits a person or entity who provides an electronic communication service or remote computing service to the public from knowingly divulging the contents of a communication, except under certain limited described conditions, one of which is pursuant to section 934.23. An “electronic communication” is defined by section 934.02(12), Florida Statutes (2000), as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by use of a wire, radio, [or] electromagnetic ... system ...” It does not include, among other exclusions, a wire or oral communication, or communications made through a tone-only paging device.

The information subpoenaed by and received by the Special Investigations Unit from Nextel in the present case consisted of the numbers dialed from and received by a particular cell phone associated with an identified wireless telephone account (referred to as a “toll analysis”), and the name, address, telephone number, type of service and other similar information for the wireless account subscriber (referred to as “subscriber information”). No court order or warrant was obtained by the Special Investigations Unit in connection with the issuance of the subpoena, nor was Mr. Figueroa notified by law enforcement authorities or Nextel that the records were being requested.

The cell phone in question was in the possession of one James Morrell, and registered to Todd Puckett, both of whom are co-defendants of Mr. Figueroa. Using the information obtained from Nextel by the investigative subpoena, law enforcement then obtained a wiretap and a “dialed number recording device” (apparently, “Caller I.D.”), pursuant to court orders. Based in part on the information gathered through the wiretap and Caller I.D., Mr. Figueroa and the others were arrested and charged with a variety of drug offenses.

At the hearing on the motion to suppress, the State conceded that Mr. Figueroa had standing to challenge the evidence sought to be suppressed because he was a participant in some incriminating conversations that were intercepted by virtue of the wiretap. The probable cause underpinning the wiretap was, in part, information obtained from Nextel by use of the investigative subpoena. After considering the evidence presented, the trial court found that the toll analysis did not fall within the definition of “contents” of an “electronic communication,” as contemplated by sections 934.02(7) and (12), Florida Statutes (2000), and was not protected by the Fourth Amendment. He held, accordingly, that the toll analysis and subscriber information were properly the subject of the investigative subpoena, and thus could be used to demonstrate probable cause to support the later wiretaps.

Mr. Figueroa’s argument, reduced to its essence, is that a number transmitted from one cellular telephone to another, or to a cellular telephone company is “content” of an “electronic communication,” and cannot be obtained by law enforcement authorities using only an investigative subpoena. His position is that the wiretap procedure, including court approval, must be utilized to acquire this information. We disagree.

We begin with consideration of Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). In that case the United States Supreme Court decided that information obtainable through the use of a pen register is not a search, and is, therefore, not within the constitutionally protected sphere of Fourth Amendment privacy. A pen register is essentially the opposite of Caller I.D. It is defined as a device that “records and decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted,” but it does not include the contents of the communication. See § 934.02(20), Fla. Stat. (2000). Thus, when a pen register is installed at the offices of a telephone company, it will record the numbers dialed from a particular telephone. Because telephone companies and their employees have access to the information, the court reasoned that a telephone caller could have no legitimate expectation of privacy in the numbers he or she dials. Thus, according to the Smith majority, if a caller voluntarily conveys this numeric information to the telephone company, the Constitution does not restrict access to it, and law enforcement can obtain it without a showing of probable cause. The Supreme Court later explained that a search does not occur for Fourth Amendment purposes unless the individual seeking to invoke the constitutional protection “manifested a subjective expectation of privacy” in the subject matter of the challenged search, and “society [is] willing to recognize that expectation as reasonable.” Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)(quoting California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986)).

The Florida Supreme Court confronted a permutation of Smith in State v. Jackson, 650 So.2d 24 (Fla.1995). There, the court considered whether the State was required to seek court authorization pursuant to sections 934.07 and 934.09, Florida Statutes (1991), to lawfully intercept information transmitted to a display pager through a duplicate pager. These statutes set out strict procedures that law enforcement authorities must follow to intercept wire, oral, or electronic communications, including the requirement to demonstrate probable cause. The law enforcement officers in Jackson, apparently relying on Smith, monitored numbers called from the appellant’s display pager without seeking or receiving the court authorization required by sections 934.07 and 934.09. The numbers intercepted included a two or three digit code that would identify the caller, the caller’s telephone number, and the amount of illicit drugs the caller wanted to purchase. The appellant argued that the numbers dialed into her pager were, therefore, electronic communications for which wiretap procedures had to be followed. The State argued that a duplicate display pager is similar to a pen register, and was not governed by the statutory requirements for a wiretap order.

The Jackson court rejected the State’s position that the pen register and “trap- and-trace device” (the earlier version of Caller I.D.) procedures apply, and held that the wiretap prerequisites set out in the statute had to be applied. The court said in this regard:

These devices are attached to a telephone line to reveal only numbers dialed to or from that line. The caller has no control over what numbers are recorded on the pen register or the trap-and-trace device. In contrast, a pager such as the one Jackson used reveals numbers dialed by the caller. Because the caller decides which numbers to enter, the caller could dial in the telephone number of the telephone line from which the call is made or could dial another telephone number all together. The callers in this case also dialed substantive information, including an identifying code and a quantity of drugs they wanted to purchase. Thus, because the interception of the pager may disclose telephone numbers and coded messages as dialed by the caller, monitoring a pager with a duplicate digital display pager is more intrusive than using a pen register or a trap-and-trace device. We therefore hold that any communication via a pager other than a tone-only pager requires a wire tap order under sections 934.07 and 934.09.

Jackson, 650 So.2d at 28.

The critical fact in Jackson was that the interception of pager transmissions to the appellant disclosed not only telephone numbers, but coded messages transmitted by the caller to the appellant. That is to say, the pager transmission included “contents,” as defined by section 934.02. Jackson, then, when read in light of Smith, essentially means that the legislature recognized in Chapter 934 that an individual might have a subjective expectation of privacy with respect to the “contents” of a pager message, even though that expectation might not exist with respect to the telephone numbers received by the pager.

In the present case, however, there were no messages or quanta of information concerning the “substance, purport, or meaning of the communication” that were procured by law enforcement authorities, and thus no “contents” were intercepted. By use of the subpoena, the Special Investigations Unit obtained only phone numbers, with no communicative information regarding the substance of the calls. The interception of phone numbers, without more, falls squarely within the holding of Smith.

We conclude, therefore, that in view of the facts adduced at the suppression hearing, the Special Investigations Unit properly used an investigative subpoena to obtain the toll analysis and subscriber information from Nextel, and that the trial court properly denied the motion to suppress.

The judgment and sentence is, accordingly, affirmed.

PETERSON and THOMPSON, JJ., concur.

      .The statute was amended in 2002 by Laws of Florida 2002-72. Section 934.23(4) now reads:
      (4)(a) An investigative or law enforcement officer may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber or customer of such service, not including the contents of a communication, only when the investigative or law enforcement officer:
      1. Obtains a warrant issued by the judge of a court of competent jurisdiction;
      2. Obtains a court order for such disclosure under subsection (5);
      3. Has the consent of the subscriber or customer to such disclosure;- or
      4. Seeks information under paragraph (b).
      (b) A provider of electronic communication service or remote computing service shall disclose to an investigative or law enforcement officer the name; address; local and long-distance telephone connection records, or records of session times or durations; length of service, including the starting date of service; types of services used; telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and means and source of payment, including any credit card or bank account number of a subscriber to or customer of such service when the governmental entity uses a subpoena or obtains such information in the manner specified in paragraph (a) for obtaining information under that paragraph, (c) An investigative or law enforcement officer who receives records or information under this subsection is not required to provide notice to a subscriber or customer.

      . While we have some misgivings about this, we accept the State’s concession.


text:
    Mark Alan SADLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-0195.
    District Court of Appeal of Florida, First District.
    April 13, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s summary denial of the appellant’s postconviction motion but remand to the trial court to correct a scrivener’s error, which erroneously lists the appellant’s second-degree murder conviction as a second-degree felony instead of a first-degree felony punishable by life. See Netterville v. State, 673 So.2d 986 (Fla. 1st DCA1996).

AFFIRMED.

BOOTH, POLSTON, and HAWKES, JJ., concur.


text:
    Steven CORN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3095.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2004.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PLEUS and MONACO, JJ., concur.


text:
    J.M.T., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3171.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2004.

      James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary J. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PLEUS and TORPY, JJ., concur.


text:
    Michael LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-401.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2004.
    Michael Lopez, Sneads, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Ayo v. State, 718 So.2d 840, 841 (Fla. 5th DCA 1998).

SHARP, W., ORFINGER and MONACO, JJ., concur.


text:
    James E. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-908.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2004.
    James E. Brown, Crawfordville, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See § 777.04(4)(b), Fla. Stat. (2003).

SAWAYA, C.J., SHARP, W., and GRIFFIN, JJ., concur.


text:
    Nelson VELARDO, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-922.
    District Court of Appeal of Florida, Fifth District.
    April 13, 2004.

      Nelson Velardo, Heathrow, pro se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Novaton v. State, 634 So.2d 607 (Fla.1994).

PETERSON, MONACO and TORPY, JJ., concur.


text:
    Cedrick JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3810.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.
    Rehearing Denied May 13, 2004.
    Carey Haughwout, Public Defender, and Iva K. Oza and Margaret Good-Earnest, Assistant Public Defenders, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

The voir dire transcript in this criminal appeal is not available because of a computer error. We therefore granted defendant’s motion to relinquish jurisdiction to the trial court to reconstruct the record, if possible. Being fully advised, the trial court found the record could not be reconstructed, but noted that defendant had used only three peremptory challenges.

Defendant argues that a new trial must be granted as a matter of law because the record is incomplete and his appellate counsel is therefore unable to determine whether any prejudicial errors occurred during jury selection. Jones concedes he “does not know if errors occurred in voir dire.” The State argues that Burgess v. State, 766 So.2d 293 (Fla. 4th DCA 2000), governs the outcome of this issue on appeal.

In Burgess, we relied on our earlier holding in Velez v. State, 645 So.2d 42 (Fla. 4th DCA 1994), and denied a new trial because defendant had “not identified any prejudicial error that occurred during the voir dire.” 766 So.2d at 293-94. We explained:

“Appellant does not contend that the trial court incorrectly instructed the jurors. Appellant does not argue that he was forced to accept any juror who said that he or she would like to hear him testify. Appellant used only two of the six peremptory challenges he had available; any objection to a failure to excuse jurors for cause was not preserved. E.g., Kearse v. State, 662 So.2d 677, 683 (Fla.1995) (finding that in order to preserve challenge for cause “a defendant must exhaust all peremptory challenges.”) Unlike Delap v. State, 350 So.2d 462 (Fla.1977), this was not a first degree murder case involving imposition of the death penalty, where the supreme court has a constitutional duty to review the entire record of the conviction and the sentence of death.”

766 So.2d at 294. We should add that the facts as to this issue, and the argument, in Burgess are indistinguishable from this case.

Appellate counsel for defendant urges that we adopt a categorical rule. Her contention is that the State has a duty to furnish a complete transcript, in order that review of criminal convictions can be meaningful. She further contends that appellate counsel should not be bound by trial counsel’s inability to recall whether there was any arguable error in the selection of a jury — i.e., that defendant should not have to show that the omission disables him from arguing a specific, identifiable claim of error. In short counsel contends:

“[t]o the extent that Burgess and Velez can be read to require appellant to show prejudicial error occurred in a part of the proceedings for which no appellate record exists, they must be wrongfully decided.”

Reply Brief, at 10.

As it happens, however, we are not free to adopt the rule counsel urges. In Darling v. State, 808 So.2d 145 (Fla.2002), a death penalty case — we pointedly note— the supreme court relied on our Velez holding to deny a defendant’s claim that the absence of certain pretrial hearing records preclude meaningful review. Darling emphasizes that the failure to demonstrate a specific prejudice made this claim insufficient. 808 So.2d. at 163.

Under existing law by which we are bound, defendant has failed to demonstrate that the missing portions of the transcript are necessary for meaningful review of a specific, identifiable issue in his appeal. It is not enough to say that as a result of the omission we do not know whether any error occurred, and therefore a new trial is required. A new trial would be required under Darling-Burgess-Velez only if Jones could point to a specific decision by the trial judge that he would use to show reversible error.

We affirm on all other issues as well.

GUNTHER and GROSS, JJ., concur.


author: STONE, J.

text:
    TRES-AAA-EXXON, a Florida corporation, and Luis Apa, Appellants, v. CITY FIRST MORTGAGE, INC.; Anthony J. Estevez; Peter Garcia; and Stephen Fiske, Appellees.
    No. 4D02-4917.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.

      Ian S. Seitel of Ian S. Seitel, P.A., Fort Lauderdale, for appellants.
    Bruce R. Jacobs of Wedderburn & Jacobs, P.A., North Miami Beach, for Appel-lees-City First Mortgage, Peter Garcia and Stephen Fiske.
    Howard W. Mazloff of Howard W. Ma-zloff, PA.., Miami, for Appellee-Anthony J. Estevez.
   STONE, J.

The plaintifflappellant (Exxon) is the buyer of property upon which a gas station was to be constructed. City First Mortgage is the lender and the individual appel-lees, Garcia and Estevez, are collectively referred to as the sellers. When the construction costs exceeded the costs represented by the sellers, Exxon sued for fraud in the inducement and negligent misrepresentation. The trial court entered a final judgment on the pleadings in favor of the sellers. We reverse.

According to the complaint, in the course of negotiations, the sellers undertook the task of determining the cost of the improvements. Estevez calculated the costs at $122,512 and City First hired an appraiser who advised that the cost of the improvements would be no more than $125,000. The cost statements reflecting these amounts were incorporated into the purchase contract and the mortgage escrow agreement with City First.

The trial court’s award of a final judgment in favor of the sellers was predicated on Exxon’s failure to allege a misrepresentation of a past or existing fact. See Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168, 172 (Fla. 4th DCA 1994); see also Mejia v. Jurich, 781 So.2d 1175, 1177 (Fla. 3d DCA 2001). Exxon contends, however, that the misrepresentations as to improvement costs were both negligently and willfully made because the sellers had knowledge of Exxon’s reliance on their “expertise” regarding the cost of constructing the gas station, and knew that the estimates given to Exxon were false.

The sellers contend that the representations, even if false, were simply estimates or predictions of the future cost of the pending improvements. See Thor Bear, 648 So.2d at 171; see also Famham v. Blount, 152 Fla. 208, 11 So.2d 785, 790 (1942). They argue that fraud cannot be predicated on “unfulfilled predictions or expectations, or erroneous conjectures as to future events.... ” Brod v. Jemigan, 188 So.2d 575, 579 (Fla. 2d DCA 1966). See Pressman v. Wolf, 732 So.2d 356 (Fla. 3d DCA 1999), overruled on other grounds, M/I Schottenstein Homes, Inc. v. Azam, 813 So.2d 91 (Fla.2002).

Allegations of fraud are difficult to resolve by a judgment on the pleadings since, generally, such a claim requires an explanation of the allegations. See Baker v. United Services Auto. Ass’n, 661 So.2d 128, 132 (Fla. 1st DCA 1995). A judgment on the pleadings should be granted only when the party is clearly entitled to a judgment, as a matter of law, based solely on the pleadings. McKinzie By and Through McKinzie v. Hollywood, Inc., 421 So.2d 606, 607-08 (Fla. 4th DCA 1982). “The court must accept as true all well-pleaded allegations of the non-moving party.” Windle v. W.W. Windle Co., 731 So.2d 36, 37 (Fla. 4th DCA 1999).

Whether a statement is one of fact or opinion depends on the circumstances in each case. See Mejia, 781 So.2d at 1177; see also Baker, 661 So.2d at 131. Although it is undisputed that, generally, an action for fraud may not be predicated on statements of opinion or promises of future action, other proofs may determine whether a statement coming from one with claimed superior information concerning the subject makes it a representation of fact rather than opinion. See Thor Bear, 648 So.2d at 172.

Here, Exxon alleged that the defendants knew full well it was “relying on [the sellers’] expertise and their undertaking” of the appraisal of the costs.

In Vickers v. Shepard, 526 So.2d 1016 (Fla. 2d DCA 1988), in an action arising from loans for the purchase of cattle, a summary judgment dismissing the buyer’s counterclaim for fraud, deception, and misrepresentation by the seller was reversed where there was testimony that a bank employee furnished the seller with incorrect figures representing the value of the cattle and intended that the buyer rely on the false appraisals.

Next, in Baker, the First District explained that triable issues of fact, precluding summary judgment, may be presented in fraud cases as proof of whether an alleged misrepresentation was intended as a statement of fact or opinion. 661 So.2d at 132. The issue in Baker was whether an agent made a statement of fact or opinion incorrectly in stating that damages owed to Baker would be payable pro-rata by two different insurance companies. Id. at 130. In reversing, the Baker court noted that “[wjhether a statement is one of fact or opinion depends on the circumstances of each particular case.” Id. at 132.

Similarly, in Thor Bear, this court reversed judgment in accordance with a motion for directed verdict and concluded that where a landlord misrepresented that there was sufficient parking near a tenant’s store, a jury may find the tenant’s reliance on such a statement justified, based on an inference that it was a false statement concerning an existing fact. 648 So.2d at 172.

Also, in Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 335 (Fla. 1997), the supreme court recognized that a negligent misrepresentation claim is properly submitted to the trier of fact, where a vendor of property furnished the buyer with a year-old appraisal containing an erroneous zoning classification.

Recently, in D & M Jupiter, Inc. v. Friedopfer, 853 So.2d 485, 487 (Fla. 4th DCA 2003), this court reversed a summary judgment in favor of the seller, finding a genuine issue of material fact as to whether the seller’s statement, made within an offer of sale memorandum that the property’s site drainage requirements were met, could be found to be a misrepresentation. The issue precluded summary judgment in the buyer’s action against seller for fraud in the inducement and negligent misrepresentation, notwithstanding a statement that the seller’s statement was not guaranteed. Id.

While we reverse, we caution, however, that despite our foregoing references to opinions resting on summary judgment or directed verdict issues, this opinion is directed solely to the judgment on the pleadings and should not be construed as prejudging any subsequent motion for summary judgment or motion for directed verdict.

GROSS and HAZOURI, JJ., concur.