author: GUNTHER, J.

text:
    ENGLE HOMES, INC., a Florida corporation, Engle Homes/Broward, Inc., a Florida corporation, and TZ Window Installation, Inc., a Florida corporation, Appellants, v. Harold M. JONES, III, and Laura Suth-konen Jones f/k/a Laura Suthkonen Goidich, Appellees.
    No. 4D03-2038.
    District Court of Appeal of Florida, Fourth District.
    April 14, 2004.

      Lucinda A. Hofmann and Cathy A. Williams of Holland & Knight LLP, Fort Lauderdale, for appellants Engle Homes, Inc. and Engle Homes/Broward, Inc.
    Scott N. Gelfand and Adam F. Haimo of Hodgson Russ LLP, Boca Raton, for ap-pellees.
   GUNTHER, J.

Engle Homes, Inc. and Engle Homes/Broward, Inc. (“Engle Homes”) appeal the trial court’s order denying their motion to compel arbitration of the appel-lee’s claims. We reverse and remand.

Engle Homes and Harold and Laura Jones executed a Purchase Agreement for the construction of a new home. Paragraph fifteen of the Purchase Agreement stated:

ARBITRATION. Any and all unsettled claims or disputes regarding the construction of Residence arising after closing shall be settled by binding arbitration in accordance with the construction industry arbitration rules of the American Arbitration Association and judgment upon the award rendered by the arbitration may be entered in a court having jurisdiction thereof. Any and all disputes relating to the warranty obligations set forth in the limited warranty issued by SELLER to PURCHASER shall be subject to arbitration as set forth within the limited warranty. This provision shall survive the closing.

(Emphasis added).

In November 2002, the Joneses sued Engle Homes asserting a cause of “action for damages arising from mold infestation of ... [their home due to] the negligent design and construction of the home by Engle Homes and its window subcontractor TZ Window.” The Joneses alleged that due to the negligence of Engle Homes, their “home [was] rendered unlivable[,]” and that they “suffered severe adverse health consequences” and damage to their personal belongings in the home. In seeking to recover damages for their home, property, and personal injuries, the Joneses asserted claims in their complaint for negligence, breach of implied warranty, professional negligence, breach of contract/express warranty, negligence (non-contractual damages), and violation of the Florida Building Code.

Based on paragraph fifteen of the Purchase Agreement, Engle Homes moved to compel arbitration and stay litigation. The trial court held a hearing on this motion and issued a non-final order denying the motion to compel “upon the authority of Whitehurst v. Camp, 699 So.2d 679 (Fla.1997) and Seifert v. U.S. Home Corporation, 750 So.2d 633 (Fla.1999).” White-hurst was a case cited by the Joneses in arguing that the arbitration clause was not controlling because it merged into the deed and was extinguished, and Seifert was a case cited by the Joneses when they argued that particular claims they made were not covered by the arbitration clause. Engle Homes now appeals the trial court’s order denying its motion to compel arbitration.

Whether a particular issue is subject to arbitration is “a matter of contract interpretation” that is subject to de novo review. Ocwen Fed. Bank FSB v. LVWD, Ltd., 766 So.2d 248, 249 (Fla. 4th DCA 2000). There are “three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; (3) whether the right to arbitration was waived.” Seifert, 750 So.2d at 636. At issue in this case are the first two elements.

We reject the Joneses’ argument that no agreement to arbitrate exists because the arbitration clause in the contract merged into the deed and was extinguished. Under the merger doctrine, “[i]t is a general rule that preliminary agreements and understandings relative to the sale of property usually merge in the deed executed pursuant thereto.” Milu, Inc. v. Duke, 204 So.2d 31, 33 (Fla. 3d DCA 1967). The Joneses have argued that Whitehurst, stands for the proposition that there are no longer any exceptions to this rule. This argument is completely without merit. In Whitehurst, the court did not address the direct application of the merger doctrine but merely analogized to it in dicta when considering whether the prejudgment contractual interest rate or the statutory interest rate applied to an award for post-judgment interest. 699 So.2d at 683-84. Nowhere in Whitehurst does the court state that the exceptions to the merger doctrine previously recognized by Florida courts do not apply. Thus, the exceptions to the general merger doctrine rule are viable and applicable to this case.

Florida courts have found that the merger doctrine “does not apply to those provisions of the antecedent contract which the parties do not intend to be incorporated in the deed, or which are not necessarily performed or satisfied by the execution and delivery of the stipulated conveyance.” Duke, 204 So.2d at 33; see also Sager v. Turner, 402 So.2d 1282, 1283 (Fla. 4th DCA 1981) (citing Duke, 204 So.2d at 33); Rubell v. Finkelstein, 679 So.2d 889, 889 (Fla. 3d DCA 1996); Am. Nat’l Self Storage, Inc. v. Lopez-Aguiar, 521 So.2d 303, 305 (Fla. 3d DCA 1988). Here, based on the language in the arbitration provision of the Purchase Agreement, which specifically states “[t]his provision shall survive closing,” it is clear that this provision was not meant to be extinguished by delivery of the deed and was not satisfied by the delivery of the deed. Thus, the arbitration clause survived closing and may be applied in this case.

The Joneses have not argued that their claims of breach of implied warranty and breach of express warranty are not subject to arbitration. However, the Joneses have argued that the arbitration provision in the contract was not enforceable as to their tort claims for personal injury or their personal property claims. Relying on Sei-fert, which states that “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate,” the Joneses argue that the arbitration clause does not clearly indicate that it applies to these tort or property claims. 750 So.2d at 636.

In Seifert, a contract between the Sei-ferts and U.S. Home “explicitly ... [referred] only to the sale and purchase of a[new] house” and stated that “[a]ny controversy or claim arising under or related to this Agreement or to the Property ... or with respect to any claim arising by virtue of any representations alleged to have been made by the Seller or Seller’s representative” would be subject to arbitration. Id. at 635, 641. After moving into the newly constructed home, Mrs. Sei-fert sued U.S. Home. Id. at 635. Mrs. Seifert asserted negligence and strict liability claims against U.S. Home after “the Seiferts’ car was left running in the garage, and the air conditioning system located in the garage picked up the carbon monoxide emissions from the car and distributed them into the house, killing Mr. Seifert.” Id. The court stated that in order for a claim to be submitted to arbitration, there must be “some nexus between the dispute and the contract containing the arbitration clause.” Id. at 638. The court found that neither the language in the contract between the Seiferts and U.S. Home or specifically in the arbitration clause was sufficient to demonstrate “that either party intended to include [the] tort claims for personal injuries,” which were being asserted by the Seiferts. Id. at 641.

In this case, the Joneses have stated that the nature of their cause of action is one asserting “negligent design and construction” of their residence. Here, as in Seifert, the Purchase Agreement between the Joneses and Engle Homes was for the sale and purchase of a new home; however, in this case, the arbitration clause specifically states that “[a]ny and all unsettled claims or disputes regarding the construction of Residence arising after closing shall be settled by binding arbitration.” (Emphasis added). Thus, unlike the situation in Seifert, the arbitration clause specifically indicates that the parties intended to arbitrate the claims relating to the construction of the residence which includes the claims of negligent design and construction now asserted by the Joneses. See Sears Authorized Termite & Pest Control v. Sullivan, 816 So.2d 603, 606 (Fla.2002) (finding that because the intent of the extermination agreement was “to ‘control’ spiders [and]-[t]he plain language of this arbitration clause ... [covered] the ‘performance’ of ... [the] agreement,” the situation was “clearly distinct from Seifert,” and thus, Sullivan’s personal injury claims based on spider bites which allegedly occurred because of Sears’s failure to control the spiders were subject to arbitration).

Because the Joneses’ personal injury and property damage claims relating to the negligent design and construction of their home are addressed by the arbitration clause, they are subject to arbitration. The Joneses’ other claims, including their breach of warranty claims, are also subject to arbitration. We reverse and remand for proceedings consistent with this opinion.

REVERSED and REMANDED.

FARMER, C.J., and GROSS, J., concur.

      . TZ Window is not a party to this appeal as it was not subject to the Purchase Agreement.


source: Caselaw Access Project

author: COPE, J.

license: Public Domain

text:
    Emilio DELGADO, Appellant, v. The ESTATE OF Dominga Freyre GARRIGA, Appellee.
    No. 3D03-1974.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Carrera & Amador, P.A., and Juan Carrera, for appellant.
    Carlos A. Enriquez and Geoffrey B. Marks, for appellee.
    Before COPE, GREEN and RAMIREZ, JJ.
   COPE, J.

Emilio Delgado appeals orders in a probate proceeding. We affirm.

I.

The decedent, Dominga Freyre Garriga, died intestate. Her son Urbano Garriga filed a petition for administration. In it he listed himself as the only heir. He was appointed personal representative.

Appellant Emilio Delgado filed a petition for extension of time to file his claim. Delgado asserted that he is the common-law husband of the decedent, having had that status since the 1960s. He argued that he should have been listed as an heir in the petition for administration but had been omitted and had not been given notice of the proceeding.

The personal representative agreed to the extension of time and accordingly, the trial court entered an agreed order approving it. Delgado filed his claim for the decedent’s burial expenses and for the real estate titled in the decedent’s name.

Delgado also advised the court that the petition for administration omitted a son of the decedent, Roberto Garriga, a resident of Cuba. The trial court appointed an attorney to act as guardian ad litem, attorney ad litem and administrator ad litem for the Cuban heir. The court stated, “Everything is frozen and at a standstill until we can have everybody represented and have a full hearing.” TR. Jan. 9, 2003, at 29. The personal representative thereafter filed an amended petition for administration which included Delgado and the Cuban heir as beneficiaries.

The Cuban heir petitioned for an extension of time to file his objection to Delgado’s claim. The Cuban heir argued that an extension should be granted because he had never been given proper notice of the probate proceeding to begin with, and because he needed more time owing to the logistic difficulties of communication between Cuba and the United States.

The personal representative requested an extension of time to object to Delgado’s claim owing to a calendaring error in the office of counsel for the personal representative, who had been absent for a period of time due to a death in his own family. The personal representative’s motion pointed out that there could be no prejudice to Delgado, because an extension would be needed in any event for the Cuban heir. Thereafter both the personal representative and the Cuban heir filed their objections to Delgado’s claim.

Delgado moved to strike the personal representative’s objection on the ground that it was untimely under section 733.705(2), Florida Statutes. He opposed the granting of an extension of time for the Cuban heir, saying that the showing of good cause was insufficient. The trial court denied Delgado’s motion to strike the personal representative’s objection, granted the extension of time for the Cuban heir to file his objection, and extended the time for Delgado to file an independent action on his claim. Delgado has appealed.

II.

If we were writing on a clean slate, we would hold that the orders now under review are non-final, non-appealable orders. Mr. Delgado in this case has submitted a claim for reimbursement for funeral expenses for the decedent, plus a claim to two pieces of real estate held by the decedent at the time of her death.

Under a 1996 amendment to the Florida Rules of Appellate Procedure (which took effect in 1997), there may be an appeal of “orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.... ” Fla. R.App. P. 9.110(a)(2) (emphasis added). The change in wording of the Rule has been viewed as strengthening the requirement of finality. See Amendments to the Florida Probate Rules, 683 So.2d 78, 78 (Fla.1996) (“proposed rule 9.110(a)(2) is different from [former] rule 5.100 and appears to preclude appeals that [former] rule 5.100 permits.”); In re: Estate of Nolan, 712 So.2d 421 (Fla. 2d DCA 1998); In re: Estate of Walters, 700 So.2d 434, 435 n. 1 (Fla. 4th DCA 1997); see also Garces v. Montano, 834 So.2d 194 (Fla. 3d DCA 2002).

This court has, however, cited favorably In re: Estate of Elliott, 798 So.2d 13 (Fla. 1st DCA 2001), on the issue of what constitutes an appealable order. Messner v. Dedeo, 826 So.2d 453, 454 n. 1 (Fla. 3d DCA 2002). In Elliott the First District concluded that pre-1996 precedent remains intact for orders which in substance require an independent suit on a probate claim. See In re: Estate of Elliott, 798 So.2d at 15 (citing Smoak v. Graham, 167 So.2d 559 (Fla.1964), and Sutton v. Stear, 264 So.2d 838 (Fla.1972)).

In Smoak the Florida Supreme Court rejected the idea “that the judicial labor of the probate court upon the controverted claim is not complete until same is ultimately ordered paid if and when claimant obtains a favorable judgment by independent action.” 167 So.2d at 560. The court went on to say:

We conclude, as above indicated, that the judicial labor of the probate court is complete, for purposes of review of a ruling under [former] Section 733.18(2), at the point when recourse to suit in another court or defense of such independent action is required as a condition to any further consideration of the claim in probate. A time extension under the statute is logically unassailable thereafter in that or any other trial court, and the right of appeal should and does then accrue.

Id. at 561. In Sutton v. Stear, the Florida Supreme Court ruled that an order extending the time for objections is an ap-pealable order. 264 So.2d at 841.

As this court has previously followed the First District’s decision in Elliott on the issue of appealability (holding that Smoak and Sutton remain good law today), we conclude that the orders now before us are appealable orders.

III.

Turning to the merits, we affirm the orders now under review. The trial court acted well within its discretion in making sure that the Cuban heir was properly represented and that he had a fair opportunity to object to Delgado’s claim. The logistic and communication considerations are obvious. The denial of the motion to strike the personal representative’s objection on grounds of untimeliness was likewise within the court’s discretion. As the Florida Supreme Court has said, “[wjhat is or is not sufficient to establish ‘good cause’ ... is primarily addressed to the conscience and discretion of the probate judge.” Dohnal v. Syndicated Offices Systems, 529 So.2d 267, 269 (Fla. 1988) (citation and internal quotation marks omitted).

It may not be amiss to point out that Delgado has felt free to request extensions of time for himself, first to file his own claim and second, to file his adversary action, yet has refused to offer the same courtesy to his adversaries that he himself has received.

The cases Delgado relies on are not controlling here. In Powell v. Chancy-Stoutamire, Inc., 546 So.2d 1135 (Fla. 1st DCA 1989), there was no written petition for extension of time. The reversal was without prejudice to the appellee in that case to file such a written motion. Id. at 1137. In In re: Estate of Elliott, 798 So.2d at 16-17, a pro se litigant filed a motion for an extension of time to file an independent action, asserting that she had not been aware of the legal requirement that she do so within the statutory time frame. The First District concluded that under established precedent, unfamiliarity with the legal requirement would not be good cause for an extension of time. Id. at 14, 17. The situation was similar in In re: Estate of Dezso, 382 So.2d 399, 400-01 (Fla. 4th DCA 1980).

Affirmed.

      . The doctrine of common-law marriage was abolished in Florida for common-law marriages entered into after January 1, 1968. See § 741.211, Fla. Stat. (2001).

      . Delgado requested the extension because more than three months had passed since publication of the first notice to creditors. See § 733.702(1), Fla. Stat. (2001).

      . On the other hand, confusion has resulted because the committee note to the 1996 amendment to Florida Rule of Appellate Procedure 9.110(a)(2) stated:

        1996 Amendment. The addition of new subdivision (a)(2) is a restatement of former Florida Rule of Probate Procedure 5.100, and is not intended to change the definition of final order for appellate purposes. It recognizes that in probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different issues and involve many different persons. An order of the circuit court that determines a right, an obligation, or the standing of an interested person as defined in the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged.

        Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773, 796 (Fla. 1996) (some emphasis added; some emphasis in original; underlining omitted). The Florida Supreme Court did not adopt the committee notes as an official part of the Rules. Id. at 777.

      . Under the statutes then in effect, the probate proceeding in Smoak was conducted in the county court while the independent action for damages was filed in the circuit court. In re: Estate of Hamlin, 157 So.2d 844, 845-46 (Fla. 2d DCA 1963), quashed, Smoak v. Graham, 167 So.2d at 562. To the extent that the decision was based on the fact that the adversary proceeding was conducted in a different court than the probate proceeding, such concern would not necessarily be valid today after the unification of the Florida court system in 1972.

      . Perhaps there should be further study of this problem with a view toward developing a rule further defining what constitutes a final order in a probate appeal. It appears wasteful to allow piecemeal appeals, one before and the other after the adversary action. Further, since rulings on extensions of time are subject to review under an abuse of discretion standard, it seems likely that most appeals of rulings on motions for extensions of time will result in affirmance. At least in those cases in which the adversary action is filed in a Florida circuit court, there does not appear to be a sound reason to allow an immediate appeal when the ultimate appeal can come at the conclusion of the adversary action.


author: PER CURIAM.

text:
    Timothy STIDHUM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-586.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Timothy Stidhum, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before LEVY, SHEVIN, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Burdick v. State, 594 So.2d 267 (Fla.1992).


text:
    David BERTRAN, Appellant, v. The STATE of Florida, Appellee.
    No. 03-2868.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.

      Bennett H. Brummer, Public Defender and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Consuelo Maingot, Assistant Attorney General, and Adrienne Sampson, Certified Legal Intern, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   CONFESSION OF ERROR

PER CURIAM.

The cause is remanded and the trial court is directed to vacate its order of revocation of probation and to enter a written order which conforms to its oral pronouncements. See Jefferson v. State, 732 So.2d 408 (Fla. 3d DCA 1999); Cushion v. State, 637 So.2d 2 (Fla. 3d DCA 1994). Bertrán need not be present. See Baldwin v. State, 855 So.2d 1180 (Fla. 1st DCA 2003).

Remanded.


text:
    OCEANSIDE AT FISHER ISLAND, etc., et al., Petitioners, v. CITY OF MIAMI BEACH, et al., Respondents.
    No. 3D03-2805.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Shubin & Bass, and Jeffrey S. Bass, Miami, for petitioners.
    Murray H. Dubbin, City Attorney, and Gary M. Held, First Assistant City Attorney, and Greenberg Traurig, and Elliot H. Scherker, Miami, for respondents.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Oceanside at Fisher Island Condominium Association No. 5, Inc. (the Association), along with John and Carolyn Kapiol-tas, Skip Pines, David Paresky, and Mr. and Mrs. Steven Berkman (collectively, the neighbors), petition this Court for a writ of certiorari seeking to quash the circuit court appellate division’s order rendered on September 24, 2003, after the appellate division denied rehearing. Pursuant to the Florida Supreme Court’s decision in Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003), we reiterate that a petition seeking certiorari review is not the proper procedural vehicle to challenge the constitutionality of a statute or ordinance. Id. at 199. Accordingly, because petitioners are challenging the constitutionality of certain sections of the City of Miami Beach Code, we deny the petition for writ of certiorari and remand the matter back to the circuit court, with instructions to treat the petitioners’ case as an original action for declaratory judgment.

Certiorari denied; case remanded with instructions.


text:
    R.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-2624.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Bennett H. Brummer, Public Defender and Lisa Walsh, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Annette M. Lizardo, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GREEN and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Ragsdale v. State, 720 So.2d 203 (Fla.1998); Evans v. State, 795 So.2d 275 (Fla. 3d DCA 2001); Williams v. State, 689 So.2d 393 (Fla. 3d DCA 1997), review denied, 697 So.2d 513 (Fla.1997); Kopel v. Kopel, 832 So.2d 108 (Fla. 3d DCA 2002)(Schwartz, C.J., specially concurring), review denied, 848 So.2d 1154 (Fla.2003).


text:
    Ramon D. ABREU, Appellant, v. KRAMA CONSTRUCTION INC. and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-2555.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Ramon D. Abreu, in proper person.
    John D. Maher, for appellee, Florida Unemployment Appeals Commission.
    Before GERSTEN, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

We reverse the order dismissing Abreu’s appeal from the appeal referee’s order denying unemployment compensation benefits. Abreu’s communications with the Commission demonstrate that he did not receive notice of the hearing, nor any other document thereafter. Hence, the record does not contain competent substantial evidence to support the Commission’s finding that Abreu’s appeal was untimely. Guerrero v. Fla. Unemployment Appeals Comm’n, 855 So.2d 266 (Fla. 3d DCA 2003); Applegate v. Nat’l Health Care Affiliates, Inc., 667 So.2d 332 (Fla. 1st DCA 1995); Landrum v. James Rummer Timber Harvesting, Inc., 645 So.2d 577 (Fla. 2d DCA 1994). In order to ensure that Abreu’s due process rights are observed, we remand for an evidentiary hearing on this issue. If the Commission determines that Abreu did not receive notice of the decision, his appeal shall be allowed to proceed. Guerrero.

Reversed and remanded for an eviden-tiary hearing.


text:
    Billy Wayne DAVIS, Newport Harbour, a Bahamian company and E. Dawson Roberts, Appellants, v. STARFISH VENTURES LIMITED, Appellee.
    No. 3D03-2538.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    George M. Evans, Miami, for appellant.
    Alvarez, Armas & Borron, for appellee.
    Before COPE, GERSTEN and RAMIREZ, JJ.
   PER CURIAM.

Billy Wayne Davis, Newport Harbour Limited and E. Dawson Roberts appeal an order denying their motion to dismiss on the basis, inter alia, of the statute of limitations and the economic loss rule. We dismiss that part of the appeal as being from a non-final, non-appealable order. See Couture Farms v. Triton International, Inc., 682 So.2d 578, 579 (Fla. 3d DCA 1996).

The appellants appeal the trial court’s order denying the motion to dismiss based on a claim of improper venue, which was treated as a motion to dismiss for lack of long-arm jurisdiction. The appellants also appeal the order denying their motion to dismiss under Florida Rule of Civil Procedure 1.061, the forum non conveniens rule. See generally Fla. R.App. P. 9.130(a)(3)(A), (C)(i). We find no error and affirm. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989); § 48.193(1)(b), Fla. Stat.

Affirmed in part; appeal dismissed in part.


text:
    Elena Arango GONZALEZ, Maria Arango Corredor, and Mercedes Arango Kaufman, Appellants, v. CATHOLIC CEMETERIES OF ARCHDIOCESE OF MIAMI, INC., Appellee.
    No. 3D03-1894.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Conroy, Simberg, Ganon, Krevans & Abel, P.A., and Doreen E. Lasch (Hollywood), for appellants.
    J. Patrick Fitzgerald, P.A., Coral Gables, and Roberto J. Diaz, Miami, and Thomas H. Courtney, Miami Shores, for appellee.

      Before GERSTEN and WELLS, JJ., and BARKDULL, THOMAS H„ JR., Senior Judge.
   PER CURIAM.

Affirmed. See and compare §§ 95.051, 95.11(3), Fla. Stat. (2001); Davis v. Monahan, 832 So.2d 708 (Fla.2002); Wood v. Eli Lilly & Co., 701 So.2d 344 (Fla.1997); In re Receivership of Armor Ins. Co., 775 So.2d 367 (Fla. 2d DCA 2000); Ross v. Twenty-Four Collection, Inc., 617 So.2d 428 (Fla. 3d DCA 1993); Trueba v. Pershing Indus., Inc., 374 So.2d 47 (Fla. 3d DCA 1979).


text:
    K.M., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 3D03-1047.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Steven Grossbard, for appellant.
    Calianne P. Lantz, for appellee.
    Hillary S. Kambour, Guardian Ad Li-tem.
    Before SCHWARTZ, C.J., and GERSTEN and FLETCHER, JJ.
   PER CURIAM.

Because the record amply supports the trial judge’s conclusion that the appellant mother, who was incarcerated at the time of trial, had abandoned her child, the order terminating her parental rights is affirmed.

      . While the parties suggest that the final judgment was not signed by the actual presiding judge, the record shows that an appropriate corrected judgment has already been executed below.


text:
    Casey HOLMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-504.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before GERSTEN, GODERICH and SHEVIN, JJ.
   PER CURIAM.

Casey Holmes appeals an order denying his motion for postconviction relief. We affirm the court’s denial of the motion on claim 2. However, we reverse the denial on the remaining claims raised by defendant and remand for further proceedings. The state correctly concedes that these claims are facially sufficient and that the court did not attach portions of the record conclusively refuting the claims. On remand, the court may summarily deny these claims if they are conclusively refuted by the record, and attach those portions of the record to its order, or grant defendant an evidentiary hearing. Peede v. State, 748 So.2d 253 (Fla.1999); Padilla v. State, 861 So.2d 1278 (Fla. 3d DCA 2003); Lasprilla v. State, 857 So.2d 1011 (Fla. 3d DCA 2003).

Reversed and remanded.


text:
    Kenneth OLIVER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2270.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Bennett H. Brummer, Public Defender and Lisa Walsh, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Fredericka Sands, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See § 924.33, Fla. Stat. (2003); Goodwin v. State, 751 So.2d 537 (Fla.1999).


author: KLEIN, J. POLEN, J.,

text:
    Myles T. SAVERY, Appellant, v. Patricia C. SAVERY, Appellee.
    No. 4D03-1144.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.

      John F. Schütz and Carina M. Leeson of Manoff & Schütz, P.A., West Palm Beach, for appellant.
    George E. Gelb of Kramer, Ali, Fleck Hughes, Gelb & Bornstein, Jupiter, for appellee.
   KLEIN, J.

The Saverys’ marriage was dissolved in 1994, but this court reversed the award of child support and remanded for the trial court to make specific findings and follow the guidelines. Savery v. Savery, 670 So.2d 1034 (Fla. 4th DCA 1996). This appeal arises from appellant having been recently held in contempt for failure to pay child support, and found to owe an arrear-age. He contends that we must reverse because, after our reversing in 1996 there was no order requiring him to pay child support in effect. We agree.

After the wife obtained a reversal of the child support award in 1996, the husband continued to voluntarily pay the child support required under the original judgment, but reduced it when one of the children reached majority. It was not until 2001 that either party sought to establish a support order pursuant to the reversal in 1996.

When a judgment is entirely reversed it is as if the judgment had never been entered. Smith v. Smith, 118 So.2d 204 (Fla.1960). Applying that principle to the partial reversal as to child support in this case, it follows that there was no court order requiring payment of child support in effect. The husband could not accordingly be found in contempt nor liable for an arrearage, because there was no obligation to pay. The order awarding attorney’s fees must also be reversed because it contains no findings of fact. Zucker v. Zucker, 774 So.2d 890 (Fla. 4th DCA 2001).

Reversed.

WARNER, J., concurs.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I agree with the result reached by the majority, but write separately out of concern that the majority’s reference to Smith v. Smith, 118 So.2d 204 (Fla.1960), may be misinterpreted. Smith was not a dissolution case. Moreover, it predated the change to “no-fault divorce” by some twelve years. Since no-fault became the law, it has rarely if ever occurred that a reversal would be based on error in finding a marriage irretrievably broken, and thereby dissolving it. Most cases, like the one before us, involve economic issues, child custody issues, or both. Soon after no-fault became the law, appellate courts were inclined to provide that a reversal in a dissolution case was “except as to the part of the final judgment dissolving the marriage.” Chereskin v. Chereskin, 665 So.2d 1133, 1133 (Fla. 5th DCA 1996). More recently, appellate decisions have abandoned using this language.

The point of law cited in the majority’s reference to Smith is an accurate statement. The supreme court was reversing an order in equity — a dispute over a claimed interest in real property — entered by the “chancellor.” In so doing, the court states that the parties were restored to their prior positions as if the appealed order had never been entered.

It is not our opinion today, but rather the 1996 opinion in Savery I, which reversed the final judgment of dissolution of marriage. Hopefully, the parties before us, by virtue of having never obtained a corrected final judgment following remand, will not take our opinion to suggest that they are still married to each other. Moreover, most practitioners today, having lived and practiced under no-fault for over thirty-one years, understand that a reversal of a final judgment in dissolution of marriage proceedings does not reverse the dissolution itself unless the opinion expressly states so. I write simply out of an abundance of caution that the majority’s language in this regard not be misinterpreted in other cases. Other than that, I concur.

      . Actually, the language in Savery I made this clear: "We affirm the final judgment of dissolution except for the award of child support which we reverse.” 670 So.2d at 1035.


text:
    Craig WILLIAMS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D03-3351.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Charles G. White, Jupiter, for appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.

      Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Craig Williams seeks to be released from custody because he was not brought to trial within 30 days of the trial court’s finding of probable cause that he is a sexually violent predator, pursuant to section 394.916, Florida Statutes (2003)[Jim-my Ryce Act], The record clearly shows, however, that Williams waived his entitlement to be brought to trial within the 30-day period. See Exhibit A, State’s motion to supplement record. Williams explicitly waived the 30-day trial requirement and stated that he was going to work with the public defender on his defense.

Additionally, Williams asserts in his petition for habeas corpus that he has not been brought to trial although his speedy trial time has expired. As the State points out, Williams’ case is brought under the Jimmy Ryce Act, which is a civil commitment process, and is not criminal in nature. As such, the rules of criminal procedure do not apply, and speedy trial rules are inapplicable.

The petition for habeas corpus is denied.

      . Section 394.9155(1) provides for the Florida Rules of Civil Procedure and the Florida Rules of Evidence to apply (with exceptions inapplicable here).


author: GROSS, J.

text:
    Salvatore BERTONE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1159.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Salvatore Bertone appeals his conviction for dealing in stolen property, contrary to section 812.019(1), Florida Statutes (2002). We reverse in this circumstantial evidence case, because the evidence was legally insufficient to sustain the conviction.

Bertone was charged with “trafficking” in two DeWalt saws, which he had pawned and later retrieved from a pawn shop.

To establish the statutory element that Bertone knew or should have known the saws were stolen, the state relied on section 812.022(2), Florida Statutes (2002), which provides:

Proof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

In Jackson v. State, 736 So.2d 77, 83-84 (Fla. 4th DCA 1999), we held that the circumstantial evidence rule of State v. Graham, 238 So.2d 618 (Fla.1970), applied to the inference of guilty knowledge created by section 812.022(2). In Graham, the supreme court held that the unexplained possession of recently stolen property, and nothing more, was insufficient to support a conviction for buying, receiving, or aiding in the concealment of stolen property. The supreme court wrote that

[p]roof of mere naked possession of property recently stolen, not aided by other proof that the accused received it knowing it to have been stolen, is not sufficient to show guilty knowledge. Proof of possession should be coupled with evidence of unusual manner of acquisition, attempts at concealment, contradictory statements, the fact that the goods were being sold at less than their value, possession of other stolen property, or other incriminating evidence and circumstances.

238 So.2d at 621 (citation omitted).

A line of cases following the reasoning of Graham holds that a section 812.022(2) inference, without more, is legally insufficient to support a guilty verdict, in the face of an unrefuted, exculpatory and not unreasonable explanation offered by the accused for his or her possession of the goods in question. Jackson, 736 So.2d at 84.

In this case, the victim said that the saws were stolen from his truck between June 15 and 17, 2002. Bertone testified that after work on June 17, 2002, he ran into his friend, Jose Garcia, a carpentry worker. Garcia’s car had broken down and appeared to be overheated. Because he did not have identification with him, Garcia asked Bertone to pawn two saws for him so that Garcia could use the money. Bertone took the saws to the Happy Hocker pawn shop and requested $40 for them. He took the money back to Garcia. A few days later, Bertone returned to the pawn shop with money given to him by Garcia. He retrieved the saws and returned them to Garcia.

Bertone’s explanation for possessing the stolen saws was “patently reasonable.” Coleman v. State, 466 So.2d 395, 397 (Fla. 2d DCA 1985). The state offered no other evidence of guilt. Id.

This case does not demonstrate the “other incriminating evidence and circumstances” under Graham that courts have found sufficient, when combined with possession of recently, stolen property, to support a theft conviction. Bertone did not attempt to conceal his conduct with the saws; he pawned and retrieved the items using his name and identification. Ber-tone did not sell the saws at less than fair value; he used the saws as collateral for a loan from a pawn shop, which he repaid. Because it could not be established when the saws were stolen, Bertone was not caught possessing them a very short time after the theft. Cf. S.P.L. v. State, 512 So.2d 1153 (Fla. 1st DCA 1987); Coleman, 466 So.2d at 397. Nothing about the condition of the saws “should have placed a reasonable person on notice” that they were stolen. Periu v. State, 490 So.2d 1327, 1329 (Fla. 3d DCA 1986) (involving a car with a windshield in a “smashed-up condition” combined with the absence of any vehicle identification numbers); see also D.G. v. State, 547 So.2d 295 (Fla. 3d DCA 1989) (where automobile showed signs of forced entry and physical damage in defendant’s possession within twenty-four hours after the taking). Bertone was not caught in a lie while giving an improbable story. See J.J. v. State, 463 So.2d 1168 (Fla. 3d DCA 1984). Nor did Ber-tone’s trial version of his possession of the saws conflict with any pretrial explanation. Cf. N.C. v. State, 478 So.2d 1142, 1144 (Fla. 1st DCA 1985); P.N. v. State, 443 So.2d 193 (Fla. 3d DCA 1983).

This case resembles cases where defendants’ unrefuted explanations of their possession of recently stolen property have been held insufficient to support a theft conviction. See J.H. v. State, 868 So.2d 1237, 1238 (Fla. 4th DCA 2004) (concerning student who found cell phone in class and planned to return it to the classmate he thought it belonged to the next day); Dellechiaie v. State, 734 So.2d 423, 424-25 (Fla. 2d DCA 1998) (regarding defendant who obtained car from unknown man in return for hauling it off property); E.L.S. v. State, 547 So.2d 298, 299 (Fla. 3d DCA 1989) (involving driver who told defendant that truck belonged to driver’s uncle); M.M. v. State, 547 So.2d 139 (Fla. 1st DCA 1989) (concerning defendant who borrowed motorcycle from a friend, giving friend’s last name and offering to show officer where friend lived); R.M. v. State, 450 So.2d 897, 898 (Fla. 3d DCA 1984) (involving defendant who borrowed vehicle from his stepfather); R.D.S. v. State, 446 So.2d 1181, 1182 (Fla. 3d DCA 1984) (regarding defendant who purchased moped from a boy named Rodney Middleton for $35); R.M. v. State, 412 So.2d 44, 45 (Fla. 3d DCA 1982) (involving defendant who borrowed bicycle from a friend).

The state relies on Haugabrook v. State, 827 So.2d 1065 (Fla. 2d DCA 2002), to argue that this case presented a jury question. Haugabrook is distinguishable. Haugabrook’s explanation for possessing stolen property was “not patently reasonable” and there were other incriminating evidence and circumstances under Graham which supported the conviction. Haugabrook, 827 So.2d at 1069.

However, Haugabrook cites to Patten v. State, 492 So.2d 748, 750 (Fla. 2d DCA 1986), a case which holds that the section 812.022(2) inference is sufficient to create a jury question “once the state proves [a defendant] was in possession of the recently stolen property.” Patten states that “in order to establish the criminal liability ... it is necessary for the state only to prove the items were stolen and the accused was dealing in it.” Id. at 750. Patten is consistent with pr e-Graham, pre-section 812.022(2) cases. See Jackson, 736 So.2d at 81-82. Because Patten would require affirmance, we certify conflict with it.

The conviction for dealing in stolen property is reversed.

WARNER and STEVENSON, JJ., concur.

      . See Dellechiaie v. State, 734 So.2d 423 (Fla. 2d DCA 1998); E.L.S. v. State, 547 So.2d 298 (Fla. 3d DCA 1989); M.M. v. State, 547 So.2d 139 (Fla. 1st DCA 1989); B.P. v. State, 515 So.2d 423 (Fla. 3d DCA 1987); Valdez v. State, 492 So.2d 750 (Fla. 3d DCA 1986); J.J. v. State, 463 So.2d 1168 (Fla. 3d DCA 1984); R.M. v. State, 450 So.2d 897 (Fla. 3d DCA 1984); R.D.S. v. State, 446 So.2d 1181 (Fla. 3d DCA 1984); McNeil v. State, 433 So.2d 1294 (Fla. 1st DCA 1983); R.M. v. State, 412 So.2d 44 (Fla. 3d DCA 1982); R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981); A.R. v. State, 393 So.2d 1174 (Fla. 3d DCA 1981). In addition to the charge of dealing in stolen property, this line of cases has applied the reasoning of Graham to theft charges. See Dellechiaie, 734 So.2d at 423-25; M.M., 547 So.2d at 139-40; R.M., 450 So.2d at 898; R.D.S., 446 So.2d at 1182; McNeil, 433 So.2d at 1295; R.M., 412 So.2d at 45.


text:
    Richard NEWBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3912.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Richard Newberry, South Bay, pro se.
    No appearance required for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We withdraw our previously issued opinion and substitute the following in its place.

Appellant challenges the trial court’s summary denial of his petition for post-sentencing DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. In order to obtain testing pursuant to that rule, the petition must include “a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result.” Fla. R.Crim. P. 3.853(b)(2). Because appellant cannot show that the DNA testing conducted was “inconclusive,” we affirm.

In appellant’s 1991 trial for sexual battery, the state produced evidence of definitive DNA testing pointing to appellant as the perpetrator. Appellant presented evidence contesting the reliability of the tests, but the jury rejected his evidence. This court affirmed his conviction. See New-berry v. State, 616 So .2d 1093 (Fla. 4th DCA 1993). He now claims that the tests were “inconclusive” because developments in DNA testing techniques have improved and would produce more reliable results. Although there is no case law interpreting what is meant by “inconclusive,” we do not understand it to encompass cases such as this one, where (1) DNA tests were performed; (2) experts testified as to their reliability and the defendant’s DNA matched the DNA found on the victim, but (3) the defendant offered contrary evidence challenging the reliability of the pri- or testing methods. The tests were not inconclusive, merely contested. Neither Rule 3.853 nor the statute allowing post-conviction testing, section 925.11(2)(a), Florida Statutes (2002), provides for additional testing in such circumstances.

Affirmed.

WARNER, SHAHOOD and HAZOURI, JJ., concur.


author: GRIFFIN, J.

text:
    Mark Vincent OLVERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3803.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2004.
    Jerri A. Blair and Jerry T. Lockett, of Lockett & Blair, P.A., and Michael A. Graves, of Graves & Spivey, P.A., Tavares, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Mark Vincent Olvera [“Olvera”] appeals the summary denial of his second rule 3.853 “Motion for DNA Evidence Examination.” We affirm.

In June 1989, an eighteen year old girl named Tina Hendricks was sexually battered and then murdered by strangulation, and her body was thrown into a canal in a Lake County park. Evidence accumulated by law enforcement authorities revealed that, on the night of the murder, the victim was in a bar dancing and drinking into the early hours of the morning. Olvera was also in the bar and witnesses testified that he attempted to dance and talk with the victim. Certain eyewitness testimony also indicated that the victim left the bar with Olvera. Forensic evidence indicated that the semen retrieved from the victim’s vagina matched the DNA provided by Olvera’s blood samples, and hairs found in the car he was driving that night were indistinguishable from the victim’s. The hair was not DNA tested, however.

Olvera was charged in the death of Tina Hendricks and the jury found him guilty of first-degree murder and sexual battery. The trial court sentenced him to a term of life imprisonment, with a mandatory term of twenty-five years on the murder conviction and a consecutive life sentence on the sexual battery conviction.

Before trial, DNA testing was done on at least four individuals: Olvera (who is Hispanic); Tom Hopwood, the victim’s boyfriend; “Johnny” Lockerd, an individual who was also at the bar that night and who some witnesses identified as being the individual who left with the victim; and a fourth individual, Ken Bowles, a friend of Olvera’s.

At trial, the State introduced evidence concerning the DNA testing performed in this case through the expert testimony of FBI DNA analyst, Audrey Lynch [“Lynch”]. The State properly qualified Lynch as an expert in the field of forensic DNA profiling without objection. Lynch testified that in every case she is involved with, she will have four autoradiographs prepared, each corresponding to a different location on the sample’s DNA and each isolated by a different probe. The four probes used on each of the K1 through K4 samples and on the Q1/Q2 sample are known as D2S44, D17S79, D157 and D4S139. Lynch testified that the D4S139 probe introduced a defective autoradio-graph, and that it was not used in her statistical calculations in this case. S he also testified that the Q1/Q2 sample, as is usual in the circumstances, included DNA from both the victim’s vaginal cells and from the semen in her vagina; Lynch testified that the mixed Q1/Q2 sample in this case was successfully separated into two DNA strands, one of which she could identify as matching the victim’s known blood sample.

Lynch testified that the FBI’s DNA tests showed a match between the male DNA found in the victim’s vagina and Olv-era’s, meaning that Olvera had sexual relations with the victim before she was murdered. Lynch testified that the K2 sample, taken from Olvera, appeared from a visual examination of each of the three usable autoradiographs to match the male strand of the Q1/Q2 sample. She testified that she confirmed those preliminary visual matches with a computer program that converts the visible bands on the autoradi-ographs to a digital measurement. According to Lynch, the DNA testing indicated the probability that an Hispanic person other than Olvera had sexually assaulted the victim on the night of the murder was 1:290,000.

Lynch explained how the FBI determined the probability that another Hispanic person has the same DNA profile as that of the male contributor to Q1/Q2. Each of the three probes used illustrated two measurable DNA fragments. The FBI consulted its database of Hispanic blood donors and determined from that database the rarity of each of the six visible fragments. According to Lynch’s testimony, the two bands on the D2S44 probe appear respectively in 12.3% and 5.4% of the Hispanic population; the two bands on the D17S79 probe appear respectively in 4.4% and 17.5% of the Hispanic population; and the two bands on the D1S7 probe appear respectively in 6.5% and 9.8% of the Hispanic population. The six probabilities multiplied together by the “product rule” produced the 1:290,000 figure.

Lynch also testified that she concluded absolutely, based on each of the three successful autoradiographs, that Kenneth Bowles’ and Tom Hopwood’s samples did not match the male strand of the Q1/Q2 sample. Finally, Lynch testified that she was subsequently sent John Lockard’s blood sample and through additional testing, excluded Mr. Lockard.

The State called Dr. Arthur Eisenberg [“Dr. Eisenberg”] as an additional expert witness. He testified that he had been asked to test the Olvera K1 through K4 samples, solely in order to determine whether the samples could have been switched with someone else’s in the FBI lab, a theory put forth by Olvera. Dr. Eisenberg testified that the K3 and K4 samples were too decayed to test by the time he received them, but that he tested K1 and K2. Dr. Eisenberg testified that the results he obtained using the D2S44 probe were respectively .4%, 1.3% and 1.1% different from the FBI’s results and that the results he obtained using the D17S79 probe were respectively .4% and .2% different from the FBI’s results. His conclusion was that there was no sample switch.

Dr. Ronald Acton [“Dr. Acton”] testified as an expert witness for the defense. He opined that the H2 Hispanic database used by the FBI does not include enough information for him to determine if the sample could be said to fairly represent a Hispanic population. Dr. Acton concluded that the H2 database is not adequate to support the FBI’s probability figure.

Dr. Acton further testified that, based on his own review of the FBI autoradio-graphs of the K2 sample and the Q1/Q2 sample, the two did indeed appear to match. He also testified that he was provided in discovery with only two autoradio-graphs made from the K6 (John Lockard) sample, and both were exposures made from the D2S44 probes. Using the FBI’s match criteria, he could not rule out John Lockard as the contributor of the male Q1/Q2 sample.

George Duncan [“Duncan”] testified as a rebuttal witness for the State. He testified that in his work analyzing DNA profiles for the Broward County Sheriffs Office Crime Laboratory, he routinely determines if two samples match by visually comparing them, then by confirming any match with a computer imaging process, then by confirming the computer’s results ■with a ruler. Duncan testified that he had compared the single K6 (John Lock-ard) autoradiograph, prepared from probe D2S44, with the corresponding D2S44 au-toradiograph prepared for the Q1/Q2 sample, both visually and with a ruler, although he had not had a chance to do any computer imaging analysis. His conclusion was that K6 did not match Q1/Q2.

After his conviction, Olvera appealed. On May 31, 1994, this court affirmed Olv-era’s judgment and sentence. Two years later, he filed a 3.850 post-conviction motion. It was subsequently denied, and this court affirmed.

In 2002, Olvera filed a petition for post-sentencing DNA testing pursuant to Florida Rule of Criminal Procedure 3.853. The motion requested re-testing based in part on the “switched samples” theory espoused at trial. The motion also argued that the previous DNA testing was inconclusive because there was an absence of DNA residue of Hopwood in the vaginal sample. Hopwood had testified to having intercourse with the victim the morning of the murder. The court denied Olvera’s 3.853 motion, and this court affirmed.

In 2003, Olvera filed a second motion for DNA testing. This time Olvera took a different approach. He urged that the evidence at trial overall was weak and that evidence pointed equally strongly to other possible perpetrators. He asked that the hair samples found in his car, which had not been DNA tested, be subjected to such testing, and he sought a retest of the blood samples on the ground that two of the samples had been found to be decayed by Dr. Eisenberg and because the probability figures relied on by Lynch were not reliable.

We pretermit for now the argument made by the State that a convicted person may not file more than one rule 3.853 motion for DNA testing, although we are inclined to agree with the State. Certainly, this case offers no good reason to allow successive motions. There is no argument made that the relief sought in the second motion and the arguments on which it is based could not have been asserted at the time of the first motion. Olvera’s argument basically is that because successive motions are not expressly prohibited, they must be permitted. Applying the reasoning of the Florida supreme court in State v. McBride, 848 So.2d 287 (Fla.2003), we think the high court would not allow successive rule 3.853 motions except pursuant to rule 3.853(d)(1)(B).

Olvera’s position is further weakened by the fact that, unlike others seeking DNA testing who were convicted without the corroboration of DNA testing, Olvera’s trial was centered on DNA evidence. Although Olvera focuses on the lack of testing of the hair samples, the trial court explained, in denying the second motion, that no matter what the outcome of any test of the hair samples, the fact remains that DNA testing has shown that his semen was found in the victim’s vagina. In order to avoid this impediment, Olvera is forced in 2003 to seek again what he did not succeed in obtaining in 2002 — a reevaluation of the vaginal swab. Even if procedurally he were allowed to do this, the grounds he puts forth for more testing of the vaginal swab do not persuade. Although K3 and K4 may have been degraded when Dr. Eisenberg examined them, all three experts testified that they found the K2 sample matched the DNA found in the vaginal swab. The trial court did not err in denying Olvera’s second motion.

AFFIRMED.

SAWAYA, C.J., and PALMER, J., concur.

      . § 782.04, Fla. Stat. (1991).

      . § 794.011, Fla. Stat. (1991).


author: SHARP, W., J.

text:
    SUTRON CORPORATION, Appellant, v. LAKE COUNTY WATER AUTHORITY, Appellee.
    No. 5D03-2398.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2004.

      Donald E. Hemke of Carlton Fields, P.A., Tampa, for Appellant.
    Derek E. Bruce and Jimmy D. Crawford of Gray, Harris & Robinson, P.A., Orlando, for Appellee.
   SHARP, W., J.

Sutron Corporation appeals from an adverse final summary judgment in its suit for an injunction against the Lake County Water Authority, a special taxing district, to require that the Authority award it a public contract on which it was the lowest responsive bidder. The Authority decided to re-solicit proposals for the contract rather than award the contract to Sutron. We affirm.

There was no factual dispute raised between the parties concerning the following facts. Sutron was the lowest responsive bidder on a Hydrologic Monitoring Network Repair, Purchase, Installation and Maintenance project. However, the Authority (acting through its Trustees) decided to re-solicit proposals for the contract rather than award it to Sutron. The Authority took this action in light of “concern over the fact[s] that Sutron had ... prepared the RFB to which all of the other companies had to respond, that the Authority had not yet adopted policies and procedures dealing with the award of a contract where a bidder had been an active participant in the preparation of the bid document.”

For purposes of the summary judgment, the trial judge accepted as true the allegations of Sutron that in April 2002, the Authority contracted with Berryman & Henigar, an engineering firm with principal offices in Orlando, to undertake studies relating to the project. Berryman was interested in Sutron working as a sub-consultant with it, in connection with those studies which would be used to prepare the RFB for the project.

Before those arrangements had been finalized, at a meeting with Berryman’s vice-president, Sutron’s vice-president, the executive director for the Authority, the water resources program manager for the Authority, and the project manager for the Authority, Sutron’s vice-president asked specifically whether Sutron’s participation as a sub-consultant would preclude it from bidding on the project. The Authority’s executive director and water resources program manager assured Sutron it would not be precluded from bidding in response to an RFB by its participation. Based on that understanding, Sutron agreed to participate as a sub-consultant to Berryman in connection with preparing input for the RFB.

The trial court determined that the Authority did not act in an arbitrary, unreasonable or capricious manner in rejecting all bids submitted because it followed the public policy of this state, expressed in section 287.057(10), Florida Statutes. The statute provides in part;

A person who ... participates in the drafting of a solicitation or who develops a program for future implementation, is not eligible to contract with the agency for any other contracts dealing with that specific subject matter, and any firm in which such person has any interest is not eligible to receive such contract.

The trial court also ruled that the Authority was not precluded from rejecting Su-tron’s bid based on the alleged representations of the Authority’s executive director and water resources program manager because of estoppel. It concluded that estop-pel was not applicable to this case because the Authority’s contract with Sutron, under these circumstances, would have been contrary to public policy.

It is well established in Florida that a public entity’s rejection of contract bids will be affirmed when challenged in court, unless the action of the public body was arbitrary, unreasonable or capricious. Even if the public entity makes an erroneous decision about which reasonable people may disagree, the discretion of the public entity to solicit, accept and or reject contract bids should not be interfered with by the courts, absent a showing of dishonesty, illegality, fraud, oppression or misconduct. See Scientific Games v. Dittler Brothers, Inc. 586 So.2d 1128 (Fla. 1st DCA 1991); City of Cape Coral v. Water Services of America, Inc., 567 So.2d 510 (Fla. 2d DCA 1990); Capeletti Brothers v. State Dept. of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983). This is a very high bar for Sutron, in this case.

Although section 287.057(18), is not binding on the Authority because it applies only to state-wide agencies in the executive branch of the state government, not to county-wide special taxing districts such as the Authority, it is declarative of the public policy of this state that public bidding be fair and open, and that all bidders should have an equal opportunity to present bids. There should be no opportunity for favoritism or insider information that gives one bidder an advantage over the other. This boosts public confidence in the public contract bidding process and is in the public interest.

Although maybe too vague to have alerted Sutron as to its inability to bid on this project, the RFB did contain reservations on the part of the Authority to act in the “best interest” of its citizens:

AWARD: This bid may be awarded in part or whole as best serves the interest of the Authority and the citizens of Lake County.
RESERVATIONS: The Authority reserves the right to accept any bids which in its opinion best serves the interests of Lake County, to reject any. or all bids, or any part thereof, and/or to waive technical errors.

This language should have alerted Su-tron that the Authority reserved the right to reject all bids if it determined that this course was in the best interest of the public. As noted above, it did so in rejecting all of the bids. We cannot say the trial court erred in concluding the Authority’s rejection of the bids in toto was not unreasonable, arbitrary or capricious. In our view, this was a situation in which the Authority could have awarded the contract to Sutron, or rejected all bids and started over, without falling into the unreasonable, arbitrary and capricious category.

Sutron’s estoppel argument is more compelling, although the circumstances in this case are not sufficiently egregious to merit its application. In order to establish estoppel against a government entity, a party must establish all of the elements of that doctrine, and in addition, rare, and exceptional circumstances. The cases in which this doctrine has been applied against a government agency involve potentially severe economic consequences to the person who relied on a government agent’s misstatement of fact, or situations in which the conduct of the government was unbearably egregious — “a classic example of bureaucratic ineptitude and indifference” coupled with a supremely adverse affect on an innocent citizen. The doctrine appears to be somewhat more leniently applied in permit and zoning matters.

In this case, “rare and exceptional” circumstances were not established or pled. The “misstatement” relied upon by Sutron was not shown to be callous, negligent or intentional. The agents’ prediction of the Authority’s future action simply proved to be wrong.

Further, Sutron does not allege it suffered severe financial losses as a consequence of the misstatement. Sutron does not claim it was not paid in full for its work for Berryman. Its preparation costs for its bid to the Authority on this project, at best, constituted its economic loss caused by its alleged reliance on the Authority employees’ misstatements. See Harry Pepper & Associates, Inc. v. City of Cape Coral, 429 So.2d 97 (Fla. 2d DCA 1983). Disappointed bidders on public works contracts cannot recover lost profits resulting from an award to another less responsive bidder nor can they in cases where all bids are rejected.

AFFIRMED.

SAWAYA, C.J., and MONACO, J., concur.

      . "RFB” stands for request for bid.

      . Scientific Games v. Dittler Brothers, Inc. 586 So.2d 1128 (Fla. 1st DCA 1991); City of Cape Coral v. Water Services of America, Inc., 567 So.2d 510 (Fla. 2d DCA 1990); Capeletti Brothers v. State Dept. of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983).

        .See Suwannee River Water Management Dist. v. Pearson, 697 So.2d 1224, 1225 (Fla. 1st DCA 1997)(water management districts are special taxing districts pursuant to § 189.403(6)). But see, Lee v. South Broward Hospital District, 473 So.2d 1322 (Fla. 4th DCA 1985)(hospital taxing district primarily acting as a state agency, it was a state agency for sovereign immunity purposes). Further,
      Section 287.012(1) provides:
      "Agency” means any of the various state officers, departments, boards, commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive branch of state government. “Agency” does not include the university and college boards of trustees or the state universities and colleges. That it is not a state agency seems well established where the legislature noted, in section 11.45(l)(e) that a local government entity includes a special district pursuant to section 189.403.

      . See Fruchtl v. Foley, 84 So.2d 906 (Fla. 1956); Lainhart v. Burr, 49 Fla. 315, 38 So. 711 (1905); Richmond Co., Inc. v. Rock-AWay, Inc., 404 So.2d 121 (Fla. 4th DCA 1981).

      . A representation as to a material fact that is contrary to a later-asserted position; reliance on that representation; and a change in position detrimental to the party claiming estop-pel, caused by the representation and reliance thereon. Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 215-216 (Fla. 1st DCA 1986) and cases cited therein.

      . 22 Fla. Jur.2d § 93; Alachua County v. Cheshire, 603 So.2d 1334 (Fla. 1st DCA 1992).

      . See Alachua County v. Cheshire, 603 So.2d 1334 (Fla. 1st DCA 1992); Harris v. State, Dept. of Admin., Div. of State Employees' Ins., 577 So.2d 1363 (Fla. 1st DCA 1991); Reedy Creek Improvement Dist. v. State, Dept. of Environmental Regulation, 486 So.2d 642 (Fla. 1st DCA 1986).

      . See Fraga v. Dept, of Health and Rehabilitative Services, 464 So.2d 144 (Fla. 3d DCA 1984).

      . Fla. Jur.2d Estoppel and Waiver § 104. See Tri-State Systems v. Dept. of Transportation, 500 So.2d 212 (Fla. 1st DCA 1986).

      . See City of Cape Coral v. Water Services of America, Inc., 567 So.2d 510 (Fla. 2d DCA 1990).


author: PLEUS, J. GRIFFIN, J.,

text:
    M. Lawrence KAPLAN, M.D., et al., Appellants, v. Leann R. MORSE and Kenneth D. Morse, Appellees.
    No. 5D03-2432.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2004.

      John R. Hamilton of Foley & Lardner, Orlando, for Appellants.
    Mark Lang of Mark Lang & Associates, Winter Park, for Appellees.
   PLEUS, J.

In this medical malpractice case, Lawrence Kaplan, M.D. and his professional association, Medical Express Health Care (“MEHC”), appeal from a final summary judgment arguing that genuine issues of material fact existed regarding causation and damages. As to Kaplan, we reverse the summary judgment and remand for trial on liability and damages. As to MEHC, we affirm the summary judgment as to liability and economic damages, but reverse as to unliquidated, non-economic damages and remand for trial.

Procedural History

Morse sued Kaplan and MEHC as well as two other doctors, Feenburg and Paus-tian, and South Seminole Hospital (“the Hospital”), for their alleged failure to properly diagnose Morse with an eye condition known as acute angle closure glaucoma. Morse’s husband asserted a loss of consortium claim.

Kaplan, acting on his own behalf and on MEHC’s behalf, filed a pro se motion to dismiss the plaintiffs’ original complaint. The trial court denied Kaplan’s motion to dismiss and struck MEHC’s motion to dismiss, ordering the corporation to obtain counsel and file an answer. Kaplan answered the complaint and filed a motion asking the trial court to allow him to represent the defunct corporation, MEHC. The trial court did not rule on that motion. Instead, it entered a default against MEHC based on its failure to obtain counsel. Kaplan then moved to set aside that default. The record reflects no ruling on that motion.

Subsequently, the trial court allowed the plaintiffs leave to amend their complaint to allege an additional statutory cause of action against Feenburg, Paustian, and the Hospital. The record does not reflect any response to the amended complaint by either Kaplan or MEHC. Feenburg, Paus-tian and the Hospital later settled with Morse and were dismissed from the suit. The record does not reflect the settlement amounts.

Morse ultimately filed an amended motion for summary judgment against Kaplan and MEHC. The motion was accompanied by various exhibits, including an affidavit executed by Morse. The record also contains the complete transcript of the deposition of Morse’s treating physician. In her affidavit, Morse attested that she earned $63,000 in 1991, $82,000 in 1992 and $82,000 in 1993. She then stated that her lost wages since 1993 “are in excess of $600,000.00.” Additionally, Morse attached to her amended motion for summary judgment documents reflecting $17,067.36 in taxable costs, a medical insurance lien in the amount of $6,832.50, and $12,206.97 in medical bills.

Morse also requested an award of non-economic damages in the amended motion for summary judgment. However, she provided no testimony or other evidence regarding the quantification of those damages. The only mention of the amount claimed for Morse’s non-economic damages is one unsworn statement in the amended motion for summary judgment, which reads, “A more than reasonable amount to assess for the unnecessary damage to Mrs. Morse’s eyesight, and probable loss of vision, is $300,000.00.”

At an unreported hearing, the trial court granted the plaintiffs’ amended motion for summary judgment against Kaplan and MEHC. Kaplan, who was still not represented by counsel, did not attend the hearing. The court entered a final judgment against Kaplan and MEHC, finding these two remaining defendants jointly and severally liable in the amount of $900,000.00, plus costs of $17,057.36. Kaplan and MEHC then retained counsel, who timely served a motion for rehearing on their behalf. The trial court denied the motion and Kaplan and MEHC appealed.

Standard of Review

The standard of review for summary judgment is de novo. Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001); Rollins v. Alvarez, 792 So.2d 695 (Fla. 5th DCA 2001). In reviewing a summary judgment, we must determine whether there is any “genuine issue as to any material fact” and whether “the moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c). Generally, “[t]he party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact.” City of Cocoa v. Leffler, 762 So.2d 1052, 1055 (Fla. 5th DCA 2000). The evidence contained in the record, including supporting affidavits, must be considered in the light most favorable to the non-moving party, and if the slightest doubt exists, summary judgment must be reversed. Krol v. City of Orlando, 778 So.2d 490, 492 (Fla. 5th DCA 2001).

Analysis

At the outset of our analysis, we note that MEHC was defaulted as a consequence of not obtaining proper representation. See, e.g., Lakeview Auto Sales v. Lott, 753 So.2d 723 (Fla. 2d DCA 2000); Richter v. Higdon Homes, Inc., 544 So.2d 300 (Fla. 1st DCA 1989). In both Lake-view Auto Sales and Richter, defaults were entered against corporate defendants for failure to obtain counsel. A default generally terminates a party’s right to further defend, except to contest unliquidated damages. Henry P. Trawick, Jr., Florida Practice and Procedure § 25-2 (2001 ed.). Although neither party raises the issue of the effect of the default, we conclude that the trial court correctly entered summary judgment against MEHC on the issue of liability and liquidated damages but not unliquidated damages. Accordingly, we affirm the award of $600,000 in economic damages but reverse the award of $300,000 in non-economic damages against MEHC.

As for the summary judgment against Kaplan, he correctly argues that Morse failed to carry her burden of conclusively proving the non-existence of any genuine issue of material fact as to his liability for Morse’s injuries, particularly regarding the element of causation. He notes plaintiffs in negligence actions are required to prove each of the following four elements: duty, breach, causation and damages. Jefferies v. Amery Leasing, Inc., 698 So.2d 368, 371 (Fla. 5th DCA 1997). These elements are applicable in medical malpractice actions. See Riegel v. Beilan, 788 So.2d 990, 991 (Fla. 2d DCA 2000).

On the issue of causation, Kaplan points to the deposition testimony of Morse’s expert, Dr. Chansky, which was in the record before the trial court. Chansky unequivocally testified that Dr. Paustian breached the prevailing standard of care and caused Morse’s injuries. When asked if Kaplan also caused or contributed to those injuries, Chansky stated:

If you look at the onset of Mrs. Morse’s symptoms, they truly were beyond forty-eight hours from when the time you’re describing she may have seen a family doctor, because her symptoms started the night of the 29th. And you’re talking about something on the 1st.
It is my opinion that Dr. Paustian had the, really the last chance and unique opportunity to make the proper diagnosis because of her presentation of symptoms and initiate therapy emergently. When you’re describing is really beyond the forty-eight-hour window.

Chansky’s testimony places the blame squarely on Dr. Paustian and provides ree-ord evidence to suggest that Kaplan did not cause Morse’s injuries. This testimony creates a genuine issue of material fact on the issue of causation. “Unless a mov-ant can show unequivocally that there was no negligence or that plaintiffs negligence was the sole proximate cause of the injury, courts will not be disposed to granting a summary judgment in his favor.” Wills v. Sears, Roebuck & Co., 351 So.2d 29, 31 (Fla.1977).

Because we reverse the summary judgment as to Kaplan on the issue of causation, it is not necessary to address his arguments regarding damages. We reverse and remand for trial on liability and damages as to Kaplan. Because MEHC was defaulted, we affirm the summary judgment as to liability and economic damages, but reverse as to unliquidated, non-economic damages and remand for trial.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

EDWARDS-STEPHENS, S., Associate Judge, concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

My problem with the majority opinion is that Kaplan never answered the amended complaint. This was a pleading to which a responsive pleading was required. See Fla.R.Civ.P. 1.110, esp. (e), “Effect of Failure to Deny.”

Kaplan was sued in 1995 and answered the original complaint in 1996. In 1997, the plaintiffs sought and obtained leave to file a first amended complaint. In the ensuing six years, Kaplan occasionally participated in the case but never filed an answer to the amended complaint. Plaintiffs filed their motion for summary judgment in December 2002 and gave some seven weeks’ notice of a hearing on the motion in late May 2003. Kaplan could have answered the amended complaint at any time, but did not.

Because a responsive pleading to the amended complaint was required and none was filed, all the averments, except as to the amount of damages, were deemed admitted. When a party admits an allegation, he is bound by it, and no further proof of the fact is required. See Carvell v. Kinsey, 87 So.2d 577 (Fla.1956).

Kaplan says, in essence, that his failure to answer the amended complaint and, further, to not appear at the summary judgment hearing are nothing. According to Kaplan, when he failed to file an answer, the plaintiffs’ only recourse was to try to obtain a default. In the absence of a default, the failure to file an answer and the failure to appear at the hearing were without legal significance, and the trial court was bound on rehearing to withdraw the order granting summary judgment because the plaintiffs’ experts disagreed on the extent of the casual connection between Kaplan’s negligent failure to diagnose the plaintiffs injury. Kaplan’s interpretation of rule 1.110 would mean that if he had filed an answer admitting one allegation and denying none, he would be held to have admitted the ones left undenied, but because he filed nothing at all, he has admitted nothing. Kaplan’s argument goes farther. He urges that because he had never filed an answer, the plaintiffs were obliged at summary judgment to negate the existence of any issue as to any pleading he might have filed. In my view, that simply isn’t so. By having failed to deny the allegations of the amended complaint as of the time of the summary judgment hearing, they were all deemed admitted. Taking the allegations of the amended complaint as admitted, the plaintiffs were entitled to their summary judgment on liability. As the rule provides, Kaplan is entitled to a trial on unliquidat-ed damages.

Kaplan might have obtained relief, in the trial court’s discretion, by seeking leave in the motion for rehearing to “amend” or to file an answer. If he had claimed that he did not believe or understand that he had to answer the amended complaint, which the record suggests was probably the case, I would expect the trial court to afford him relief. Once the defect of the lack of an answer was remedied, the analysis of the majority would be sound. Given Kaplan’s pattern of ignoring the proceedings and given the way the issue was presented on rehearing, however, I do not see how the trial court’s discretion was abused. I would affirm the judgment on liability.

      . The fact that Kaplan filed an answer to the original complaint is of no value under this rule. The old rule permitting an initial response to stand over to an amended pleading was abrogated in 1981. Henry P. Trawick, Jr., Trawick’s Florida Practice & Procedure § 14-5 at 224 (2004 ed.) According to the committee note to the 1980 amendment to rule 1.190(a), the amendment was designed to restore the rule of Scarf one v. Denby, 156 So.2d 694 (Fla. 2nd DCA 1963), that an answer to the original complaint does not stand over an answer to the amended complaint. In Kaplan’s defense, the amended complaint did no more than add a claim against other defendants. If an answer could stand over, this one would.


author: PLEUS, J.

text:
    STATE of Florida, Appellant, v. Kevin C. WILLIAMS, Appellee.
    No. 5D03-1419.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellee.
   PLEUS, J.

The State appeals from a sentencing order, claiming the trial court imposed an illegal downward departure sentence. The State argues that the record fails to support the three grounds specified by the court when it departed, sentencing the defendant to 39 months imprisonment, rather than the minimum of 78 months imprisonment called for by the sentencing guidelines.

We agree that the first two grounds for downward departure are infirm as not supported by sufficient evidence in the record. However, this court is bound to sustain a departure sentence if any reason given by the trial court is valid. State v. Tyrrell, 807 So.2d 122 (Fla. 5th DCA 2002). We conclude that the non-statutory ground given, diminished capacity, is a valid legal basis for a downward departure and is supported by sufficient evidence of record.

The Florida Supreme Court has held that evidence of abnormal mental condition not constituting legal insanity is inadmissible for purposes of negating specific intent or state of mind necessary to prove a criminal offense. Chestnut v. State, 538 So.2d 820 (Fla.1989). The court further explained:

Persons with less serious mental deficiencies should be held accountable for their crimes just as everyone else. If mitigation is appropriate, it may be accomplished through sentencing.

538 So.2d at 825 (emphasis added).

This is just such a case, because it is one in which diminished mental capacity constitutes a valid legal ground for mitigation at sentencing. There was ample evidence that the defendant suffers from diminished mental capacity as well as significant physical problems. The defendant scored 68 and 70 on his IQ tests. He has memory, concentration and attention problems. The defendant is morbidly obese with a pronounced difficulty, in walking. He uses a cane and appears to have some long-standing orthopedic malformation of his legs and/or feet. The defendant lives with his mother and has received Social Security Supplemental Income for many years. There was evidence that the defendant receives treatment and therapy on his legs, back and spine. He is very reliant on his mother, who sometimes helps him dress and who prepares his meals. The defendant was deemed minimally competent to stand trial. Witnesses at the sentencing hearing testified that the defendant would not hold up well under incarceration, that from an emotional and physical standpoint, he could not handle prison.

The trial court saw the defendant and made a judgment call, based on sufficient evidence, that under the circumstances, a downward departure was the best sentencing option. Based on the record evidence, we find no abuse of discretion.

SENTENCE AFFIRMED.

SAWAYA, C.J., and PALMER, J., concur.