author: VAN NORTWICK, J.

text:
    Urs KOECHLI, Charles R. Cushing, and C.R. Cushing & Company, Inc., Appellants, v. BIP INTERNATIONAL, INC. d/b/a Global Interior Group, Appellee.
    No. 1D03-1511.
    District Court of Appeal of Florida, First District.
    April 26, 2004.

      Michael G. Tanner and Mark G. Alexander of Holland & Knight LLP, Jacksonville, for Appellants.
    Gregory A. Anderson, John J. Glenn and Brian W. Davey of Anderson St. Denis & Glenn, P.A., Jacksonville, for Appellee.
   VAN NORTWICK, J.

Urs Koechli, Charles R. Cushing, and C.R. Cushing & Company, Inc. appeal a non-final order denying their motions to compel arbitration. The underlying action arose out of a business transaction in which Alpha GMBH & Co. Schiffsbesitz KG (Alpha), and appellee, BIP International, Inc., doing business as Global Interior Group (BIP), entered into a vessel refurbishment agreement providing for the terms under which BIP would renovate the vessel M7Y Giant I (the vessel). Appellants were not signatories to the refurbishment agreement, but possessed rights and incurred obligations under it. Among other things, the refurbishment agreement included a provision that required arbitration of “any dispute between the parties hereto as to any matter arising out of or relating to this Contract.” BIP filed suit against the appellants based upon actions they took on behalf of and as agents or officer of Alpha in connection with the refurbishment agreement. We hold that these non-signatories may invoke the arbitration provision of the refurbishment agreement and compel arbitration by BIP, a signatory, where appellants acted as the representatives or agents for Alpha in entering into and performing the refurbishment agreement; BIP’s action against appellants asserts claims based upon appellants’ alleged wrongful acts committed while performing their duties relating to the refurbishment agreement; and BIP’s separate federal court action against Alpha, which has been referred to arbitration, is based in substantial part on allegations of wrongful acts by the appellants while acting in their capacity as agents for or officers of Alpha which are substantially interdependent to the allegations in the instant action. Accordingly, we reverse and remand for further proceedings.

I. Factual Background

Alpha purchased the M/Y Giant I with plans to refurbish and operate the vessel as a luxury charter yacht. Alpha and BIP entered into a refurbishment agreement under which BIP agreed to make specified renovations and modifications to the vessel. Cushing & Co., acting through its principal, C.R. Cushing, was appointed as Alpha’s onsite representative and was authorized to act on behalf of Alpha. Urs Koechli signed the refurbishment agreement as Alpha’s chief executive officer.

The refurbishment agreement contains two provisions that are relevant here. Article XIV, paragraph 1 provides in pertinent part:

In the event of any dispute between the parties hereto as to any matter arising out of or relating to this Contract or any stipulations herein or with respect hereto which cannot be settled by the parties themselves, such dispute shall be finally settled by binding arbitration in New York, New York, pursuant to the commercial rules of arbitration of the American Arbitration Association by a single arbitrator designated in accordance with the rules of the American Arbitration Association.

Article XXI, paragraph 6 provides:

This Contract shall not be deemed for the benefit of any third party nor shall it give any person not a party to this contract any right to enforce its provisions.

After work on the vessel began under the refurbishment agreement, both BIP and Alpha asserted that the agreement had been breached. BIP contended that Alpha had misrepresented the condition of the vessel and the extent of necessary modifications and that Alpha had failed to make agreed upon payments under the refurbishment agreement. Alpha contended that BIP failed to properly complete the modifications.

BIP filed an in-rem action in Federal District Court in the Southern District of Florida to arrest the vessel to recover progress payments. The claims between the parties included breach of contract, fraud in the performance of the contract, wrongful arrest of the vessel and defamation. The vessel filed a motion to stay the civil action and compel arbitration pursuant to article XIV of the refurbishment agreement. The Federal District Court granted the motion and the cause proceeded to arbitration.

BIP also filed suit in the Duval County Circuit Court against Cushing & Company, Cushing, Koechli, and eight other defendants. Count I of BIP’s complaint alleges that the appellants and others fraudulently induced BIP to enter into the refurbishment agreement by making representations regarding the status or condition of the vessel which the defendants knew to be false. Count II alleges the same misrepresentations, but alleges that they resulted from negligence. Count III alleges that certain defendants, including Cushing, conspired to defraud BIP. Count IV alleges that appellants and others converted the proceeds of a $1,000,000 letter of credit which BIP and a corporate affiliate had posted to secure BIP’s performance under the agreement. Count V alleges that appellants and other defendants tortiously interfered with BIP’s business relationship with Alpha. Count VI alleges tortious interference with a contractual right against appellants and other defendants.

Appellants filed separate motions to compel arbitration and to stay. The trial court denied the motions, reasoning that the appellants were not parties to the contract between BIP and Alpha and, thus, could not enforce the arbitration provision.

II. Applicable Law

The refurbishment agreement provides that New York law applies. An arbitration agreement is not generally enforceable under Florida law if it incorporates the law of another state. Riverfront Properties Ltd. v. Max Factor III, 460 So.2d 948, 952 (Fla. 2d DCA 1984). Because this case involves interstate commerce, however, the Federal Arbitration Act applies, and Florida courts must enforce an arbitration agreement that is valid under the Federal Arbitration Act. Jensen v. Rice, 809 So.2d 895, 899 (Fla. 3d DCA 2002)(“Florida courts must enforce arbitration agreements that are valid and enforceable under the Federal Arbitration Act, even where, as here, the arbitration agreement would not be enforceable under Florida law.”). While federal law establishes the enforceability of arbitration agreements, state law governs the interpretation and formation of such agreements. Employers Insurance of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316, 1322 (11th Cir.2001).

III. Issues on Appeal

On appeal, appellants contend that this case is a transparent attempt by BIP to circumvent its obligation to arbitrate under the refurbishment agreement. They contend that, as Alpha’s agents, appellants are entitled to the benefit of Alpha’s arbitration agreement. Alternatively, they contend that equitable estoppel applies to allow them, non-signatories, to require arbitration.

We start from the general principle that arbitration is a matter of contract and “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (I960)). Therefore, a non-signatory to a contract containing an arbitration agreement ordinarily cannot compel a signatory to submit to arbitration. While exceptions to this rule should be rare, see Westmoreland v, Sadoux, 299 F.3d 462, 465 (5th Cir.2002), exceptions nonetheless exist depending upon the factual circumstances involved.

“Although arbitration is a contractual right that is generally predicated on an express decision to waive the right to trial in a judicial forum, [courts have] held that the lack of a written arbitration agreement is not an impediment to arbitration.” Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 756-57 (11th Cir.1993). Florida law recognizes that contracts may be validly formed without an express written agreement. Nautica Intern., Inc. v. Intermarine USA, L.P., 5 F.Supp.2d 1333, 1340 (S.D.FIa.1998). Florida and federal courts have recognized that a non-signatory can compel arbitration by a signatory to an arbitration agreement when the underlying proceeding concerns actions allegedly taken by the non-signatory as an agent of a signatory, Thomson-CSF v. American Arbitration Association, 64 F.3d 773, 777 (2d Cir. 1995); Qubty v. Nagda, 817 So.2d 952, 957-58 (Fla. 5th DCA 2002); Merrill Lynch Pierce, Fenner & Smith, Inc. v. Melamed, 453 So.2d 858, 860 (Fla. 4th DCA 1984); Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286, 288 (Fla. 3d DCA 1980); when the non-signatory is an intended third party beneficiary of the contract in question, E.I. Dupont de Nemours & Co. v. Rhone, Poulenc Fiber and Resin Intermediates, S.A.S., 269 F.3d 187, 194 (3d Cir.2001); Henderson v. Idowu, 828 So.2d 451, 452 (Fla. 4th DCA 2002); Technical Aid Corporation v. Tomaso, 814 So.2d 1259, 1261 (Fla. 5th DCA 2002); and, under the doctrine of equitable estop-pel, when the signatory’s claims allege substantially interdependent and concerted misconduct by the signatory and the non-signatory or when the claims relate directly to the contract and the signatory is relying on the contract to assert its claims against the non-signatory. MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999); Armas v. Prudential Securities, Inc., 842 So.2d 210, 212 (Fla. 3d DCA 2003); see also Jensen v. Rice, 809 So.2d 895, 900 (Fla. 3d DCA 2002). See generally Reynolds v. York, 2003 WL 22880945 (S.D.Tex. November 21, 2003). Finally, “it matters whether the party resisting arbitration is a signatory or not.” Merrill Lynch Investment Managers v. Optibase, Ltd., 337 F.3d 125, 131 (2d Cir. 2003).

IV. Agency and Equitable Estoppel

Appellants do not contend that they are intended third party beneficiaries under the refurbishment agreement. They argue that they can invoke the arbitration provision in the refurbishment agreement because they are agents of Alpha, a signatory to the refurbishment agreement. We reject the broad construction of the agency exception urged by appellants, which would permit a non-signatory agent to a signatory to invoke arbitration simply because the agency relationship exists. This argument erroneously blurs the legal distinction between individual capacity and representative capacity which is “a meaningful legal difference.” Westmoreland, 299 F.3d at 466, quoting McCarthy v. Azure, 22 F.3d 351, 360 (1st Cir.1994). Like the Westmore-land court, we conclude that “a non-signatory cannot compel arbitration merely because he is an agent of one of the signatories.” Id. A non-signatory agent should be permitted to compel arbitration

when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory .... [or] when the signatory to the contract containing a arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.

Id. at 467.

Applying these equitable estoppel principles, see MS Dealer Corp. v. Franklin, 177 F.3d at 947, we have examined the language of the refurbishment agreement and the claims which have been asserted in this action and have determined that, even though BIP’s claims sound in tort, BIP’s claims rely upon and are necessarily related to the refurbishment agreement. Moreover, the facts constituting the alleged misconduct of Alpha in the separate federal court action referred to arbitration are substantially the same facts on which BIP relies to demonstrate the alleged misconduct of appellants in the case before us. Because the basis of BIP’s claims arise out of or are intimately related to the refurbishment agreement, it would be inequitable to allow BIP both to rely upon the agreement in its action against non-signatories and selectively to repudiate it when seeking to resist arbitration. See Hughes Masonry Co. v. Greater Clark County School Building Corp., 659 F.2d 836, 838-39 (7th Cir.1981). Thus, even though BIP’s claims sound in tort, under the circumstances here, BIP is estopped from denying the appellants the benefit of the arbitration provision.

V. “Party”

The definition of the term “party” under the refurbishment agreement is also a central issue here. The arbitration provision requires arbitration “of any dispute between the parties hereto as to any matter arising out of or relating to this Contract. ...” In addition, article XXI, paragraph 6 of the contract provides that “this Contract shall not be deemed for the benefit of any third party nor shall it give any person not a party to this contract any right to enforce its provisions.” Neither party has supplied any directly-on-point authority for the meaning of “party” or “third party” under these provisions. Appellants contend that, because they stood in the shoes of the principal, Alpha, in their actions under the contract, they are not a “third party” within the meaning of the contract.

We note that this is not a situation in which the language of the contract expressly restricts arbitration to the signing parties. Compare Parkway Dodge, Inc. v. Yarbrough, 779 So.2d 1205 (Ala.2000)(arbitration agreement between automobile “dealer” and “purchaser” did not entitle automobile manufacturer to compel arbitration of dispute with purchaser). Similar to the agency relationship analysis discussed in section TV above, we conclude that, in the context of the unique facts of this case, for the purposes of invoking the arbitration provision the word “party” includes appellants, who received rights and were bound to obligations under the refurbishment agreement.

In concluding that the appellants are deemed parties for the purpose of compelling arbitration by a signatory to the underlying agreement, we find persuasive the reasoning of the Fourth District Court of Appeal in Ocwen Financial Corp. v. Holman, 769 So.2d 481, 483 (Fla. 4th DCA 2000) and Tenet Healthcare Corp., FMC v. Maharaj, 787 So.2d 241 (Fla. 4th DCA 2001). In Holman, Ocwen, a non-signatory of the underlying contract but the parent corporation of a signatory, sought to compel arbitration. The court held that, even though Ocwen and other individual defendants were not signatories to the underlying contract, they were deemed parties for purposes of arbitration. As the court explained:

[W]e conclude that Ocwen is a “party” within the meaning of the arbitration clause because it received rights and accepted obligations under the asset purchase agreement. The individual defendants as well are entitled to the protection of the arbitration clause in the contract signed by OFS because the claims against them arose solely in connection with their activities as officers and directors of that corporation.

769 So.2d at 483.

Similarly, in Tenet Healthcare Corp., FMC v. Maharaj, 787 So.2d 241, 243 (Fla. 4th DCA 2001), although Tenant Healthcare and the hospital were not signatories to the underlying agreements, the court held that they were “parties” within the meaning of the arbitration clauses “because the claims against them arose solely in connection with their activities as officers and directors of the Transplant Institute, [and] also because the claims against them arose from the same set of operative facts as those claims against the Transplant Institute and the General Partner.” The Tenet Healthcare court reasoned:

Because the arbitration clauses in this case are expansive provisions, encompassing “any controversy or claim arising out of or in connection with this Agreement, or the alleged breach thereof,” and because the factual allegations in the complaint relied on the contract between the parties, we resolve the issue in favor of arbitration.

Id.

As the non-signatories in Ocwen and Tenet, appellants received rights and assumed obligations under the refurbishment agreement and the claims against them arose from actions in their capacity as agents or an officer of Alpha, a signatory under the agreement. Thus, we hold the appellants are deemed parties for the purpose of the arbitration provision.

VI. Conclusion

For the reasons explained above, we hold that appellants, although non-signatories to the contract, may invoke the arbitration provision of the refurbishment agreement, and that the trial court erred in denying the motion to compel arbitration. Accordingly, the order on appeal is REVERSED and REMANDED for further proceedings consistent with this opinion.

PADOVANO and HAWKES, JJ., concur.

      . The arbitration provision in the contract requires arbitration "of any dispute between the parties as to any matter arising out of or relating to this contract.” See Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 453 So.2d 858 (Fla. 4th DCA 1984)(claim against account executive, a non-signatory who was employed by securities firm, was subject to arbitration pursuant to arbitration clause in a contract governing the cash management account between the securities firm/employer and customer, where the language of the contract was broad enough to include persons within the respondeat superior doctrine); accord Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980)(where parties agree to arbitrate "any controversy or claim arising out of, or relating to this agreement” such language was broad enough to include persons within respondeat superior doctrine; and thus nonsignatoxy employees of a car dealership were considered parties to arbitration contract between buyers and dealership). Compare Qubty v. Nagda, 817 So.2d 952, 958 (Fla. 5th DCA 2002)(“broad arbitration provisions [are] intended to obligate signatories to the agreement to arbitrate disputes brought not only against the principal, but claims made against the principal’s agents”).


source: Caselaw Access Project

author: HAWKES, J.

license: Public Domain

text:
    J.B.M., father of a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D03-2486.
    District Court of Appeal of Florida, First District.
    April 26, 2004.

      Michael M. Naughton, Jacksonville, for Appellant.
    Simeon Tyler, Dept, of Children and Families, Jacksonville, for Appellee.
   HAWKES, J.

Appellant, who is blind, attended an all night Sudanese tribal meeting during which he allegedly consumed a significant quantity of alcohol. At the conclusion of the meeting, as Appellant was leaving, he fell down two flights of stairs, injured his head and broke his leg. This unfortunate accident occurred in the presence of his minor child. Help arrived, the Department of Children and Families (DCF) was notified, the notification led to an investigation, the investigation led to the sheltering of Appellant’s child and, ultimately, an adjudication of dependency.

On appeal, Appellant alleges two errors. The first alleged error is the trial court’s admission of blood alcohol test results without a proper predicate. The second alleged error is that there is no competent, substantial evidence to support a finding of dependency. We agree on both grounds and reverse.

In its dependency petition, DCF alleged that, as a result of Appellant’s fall after the Sudanese tribal meeting, the child was at substantial risk or imminent threat of harm, abuse or neglect, in that Appellant failed to provide a safe, stable and suitable home for the child because he has a history of alcohol abuse.

A dependency hearing was held where evidence was introduced that Appellant and his child, who are Sudanese, attended the tribal meeting at the home of other Sudanese and their children. While the adults attended the meeting, and evidently consumed alcohol, the children were in another room with supervision.

Appellant’s wife, the child’s mother who no longer resides with Appellant, testified that approximately one year prior to the accident, when she still lived with Appellant and the child, Appellant was admitted to the emergency room for alcohol poisoning. DCF introduced an emergency room record that appears to reference this same incident. The mother also testified that: when she lived with Appellant, he drank alcohol “a lot”; she and Appellant, both of whom are Sudanese, “beat” the child; and Sudanese routinely “beat” their children.

DCF also sought to introduce evidence of Appellant’s blood alcohol test results, taken following his hospital admission for his broken leg. Appellant objected on grounds that a proper predicate had not been laid for the record’s admission. The trial court overruled the objection and admitted the record.

Ultimately, the trial court found Appellant abused, neglected or abandoned the child by consuming alcohol to excess on the day of the accident, which rendered Appellant incapable of exercising appropriate parental supervision and control over the child, placing the child at imminent risk of harm, and that Appellant required emergency treatment for excessive drinking on at least two occasions while he was the child’s primary care giver. For these reasons, the trial court adjudicated the child dependent.

We first address Appellant’s claim of error in admitting the blood test over objection. When Appellant was hospitalized for his fall down the stairs, a medical blood alcohol test was performed. The only witness to testify regarding the test results was a nurse who neither drew Appellant’s blood, nor was she shown to be the custodian of the records. Thus, her testimony was insufficient to lay the proper predicate for the test’s admission. See Phillips v. State, 621 So.2d 734 (Fla. 3d DCA 1993) (holding nurse’s testimony insufficient to lay proper predicate for admission of blood alcohol content where nurse testified records were kept in the normal course of business, but nurse did not draw blood and was not custodian of records).

Appellant also argues there was insufficient evidence to support an adjudication of dependency. “A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent, substantial evidence in the record.” In re M.F., 770 So.2d 1189, 1192 (Fla.2000). To support an adjudication of dependency, the parent’s harmful behavior must be a present threat to the child. See B.C. v. Dep’t of Children & Families, 846 So.2d 1273 (Fla. 4th DCA, 2003).

A “[cjhild who is found to be dependent” includes, inter alia, one who has been “abandoned, abused, or neglected” by the parents, or a child who is found “[t]o be at substantial risk of imminent abuse, abandonment, or neglect” by the parents. See § 39.01(14)(a) & (f), Fla. Stat. (2002). Therefore, before we can affirm the trial court’s adjudication of dependency, we must either find: competent, substantial evidence that the child was abandoned; competent, substantial evidence that the child was abused; competent, substantial evidence that the child was neglected; or the risk of abandonment, abuse or neglect is imminent. We will address each in turn.

An abandoned child is one whose parent or caregiver, “while being able, makes no provision for the child’s support and makes no effort to communicate with the child.” P.D. v. Dep’t of Children & Families, 866 So.2d 100, 101 (Fla. 1st DCA 2004) (quoting § 39.01(1), Fla. Stat. (2002)). Here, there was no allegation of abandonment, nor was evidence of abandonment introduced or argued. Consequently, there can be no finding of dependency based on abandonment, and we cannot affirm the trial court on this ground.

The second ground on which a child may be found dependent is when the child is abused. An abused child is one who is subjected to “any willful act or threatened act that results in any physical, mental, or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” Id. (quoting § 39.01(2), Fla. Stat. (2002)). “Harm” is defined by statute to include a parent’s “[cjontinued chronic and severe use of a controlled substance or alcohol” if “the child is demonstrably adversely affected by such usage.” § 39.01(30)(a), (g) 2., (Fla. Stat.2002); B.C., 846 So.2d at 1275. Here, the only potential evidence of abuse comes from the mother’s testimony that the child was “beat,” or evidence of Appellant’s alcohol consumption.

The mother testified through an interpreter that both she and Appellant “beat” the child, and that Sudanese “beat” their children, and that Appellant drank alcohol “a lot.” These types of conclusory statements, by themselves, do not constitute competent, substantial evidence sufficient to support a finding of dependency, just as the recitation of a criminal statute, by itself, does not establish probable cause to support an arrest.

There was no effort to solicit testimony to explain what the mother meant by the term “beat,” or to provide facts and circumstances to assist the trial court in making conclusions as to the meaning of the term. This testimony could easily have meant the mother and Appellant used corporal punishment on the child, and that corporal punishment was common in the Sudan. Significantly, there was no evidence that, as a result of “beatings” the child received bruises, welts, cuts, burns, broken bones, or in any way suffered physical, mental or emotional harm. This is the nature of evidence that would supply the factual basis, required to support a finding of dependency.

Similarly, there is no evidence sufficient to meet the statutory threshold, that Appellant has a chronic or severe alcohol problem which would “harm” the child. Just as no testimony was solicited as to what the mother meant by “beat,” there was insufficient testimony to develop what was meant by “a lot,” whether it was “chronic,” and whether it harmed the child. Again, there was a lack of any factual basis to support a finding of dependency. Despite the trial court’s holding that Appellant was twice admitted to the hospital for alcohol poisoning while he was the child’s primary caregiver, there appears to be only one incident of hospitalization for alcohol poisoning. Significantly, at the time of that admission, the child’s mother testified she was residing with Appellant, and the child was in her care. Therefore, Appellant was not the child’s primary caregiver. Moreover, treatment for alcohol poisoning, standing alone, is insufficient to prove the child suffered “harm” as a result, as required by statute.

Even if the test results following the tribal meeting were properly admitted, there would still be insufficient evidence that Appellant’s alcohol use met the threshold of harm necessary to support an adjudication of dependency. The witnesses familiar with the tribal meeting incident testified Appellant’s child was with the other children, supervised and away from the drinking. There was no evidence Appellant harmed or failed to provide for his child in any way as a result of his alcohol consumption. Accordingly, the trial court’s adjudication of dependency cannot be sustained on the ground of abuse.

Another ground we may consider in a dependency action is whether there is competent, substantial evidence that the child was neglected. A neglected child is one who is “deprived of ... necessary food, clothing, shelter, or medical treatment or ... permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.” P.D., 866 So.2d at 101— 102 (quoting § 39.01(45), Fla. Stat. (2002)). Here, there was no evidence that Appellant failed to provide his child with necessary food, clothing, shelter or medical care, or that the child was physically, mentally or emotionally impaired in any manner while in Appellant’s care. Accordingly, the trial court cannot be affirmed on the ground of neglect.

Finally, in the absence of actual abuse, abandonment, or neglect, a finding of dependency can be made if prospective abuse, abandonment, or neglect is shown to be imminent. See B.D. v. Dep’t of Children & Families, 797 So.2d 1261, 1262 (Fla. 1st DCA 2001); In re J.L., 824 So.2d 1023, 1025 (Fla. 2d DCA 2002). “The terms ‘prospective’ and ‘imminent’ are not defined in the statute. ‘Prospee-five simply means likely to happen, or ‘expected.’ ‘Imminent’ encompasses a narrower time frame and means ‘impending’ and ‘about to occur.’ ” E.M.A. v. Dep’t of Children & Families, 795 So.2d 183, 186 n. 3 (Fla. 1st DCA 2001) (internal citations omitted); In re J.L., 824 So.2d at 1025.

“[A] parent’s addictions can support a finding of prospective abuse or neglect sufficient to support an adjudication of dependency if the evidence establishes the addiction will affect a parent’s ability to provide and care for his or her child.” B.C., 846 So.2d at 1275 (citing C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520, 522-523 (Fla. 1st DCA 2002)). However, if there is no evidence the child actually suffered harm or injury — physical, mental or emotional — as a consequence of a parent’s alcohol or drug use, evidence that the parent has a drug or alcohol problem, standing alone, is insufficient to support a finding of dependency. See M.H. v. Dep’t of Children & Families, 866 So.2d 220 (Fla. 1st DCA 2004).

Here, the record fails to support a finding of imminent prospective abuse or neglect due to the father’s alcohol use. Other than one admission to the emergency room, and the improperly admitted blood alcohol test results, there was no evidence that Appellant had an alcohol problem at all, or that these two incidents were not isolated events. Significantly, there was no evidence that Appellant’s behavior, if unchanged, would result in the child’s impending abuse or neglect.

Because the dependency order is not supported by competent, substantial evidence, it is hereby REVERSED.

DAVIS and VAN NORTWICK, JJ., concur.


author: BROWNING, J.

text:
    Virgil MONTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4080.
    District Court of Appeal of Florida, First District.
    April 26, 2004.
    Nancy A. Daniels, Public Defender and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant seeks review of an order denying his motion for postconviction relief, filed pursuant to Florida Rule of Appellate Procedure 3.850, as untimely. In response to an order issued by this Court on the authority of Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the state conceded that Appellant’s motion was timely because it was filed within two years of the date the mandate issued from this Court. See, e.g., Brower v. State, 701 So.2d 433 (Fla. 1st DCA 1997). Accordingly, we reverse and remand for further consideration of Appellant’s postconviction motion.

BARFIELD and LEWIS, JJ., concur.


author: DAVIS, J.

text:
    ORANGE COUNTY CORRECTIONS and Crawford & Company, Appellants, v. Rosa SUMMERS, Appellee.
    No. 1D03-1902.
    District Court of Appeal of Florida, First District.
    April 26, 2004.

      Danni Lynn Germano and Sara P. Rein-er of Broussard, Cullen & DeGailler, Orlando, for Appellants.
    Jack T. Keller of Morgan & Associates, P.A., Winter Park, for Appellee.
   DAVIS, J.

In this appeal, we are presented with the issue of whether a claimant may receive temporary partial disability benefits if he or she makes less than 80 percent of his or her average weekly wage, but more than the maximum compensation rate while working with the employer following the accident. Because we find that a claimant is entitled to temporary partial disability benefits in such a situation, we affirm the JCC’s order. Finding them to be without merit, we decline to address the other issues raised by Appellants.

Appellee, the claimant, Rosa T. Summers, earned an average weekly wage of $999.33 while working with Appellant, the employer, Orange County Corrections. After suffering a compensable work-related accident on July 16, 2002, she was placed on light duty work restrictions, and was able to earn approximately $644.00 per week with the employer. The statutory maximum compensation rate for the year 2002 is $594.00 per week. The claimant petitioned for temporary partial disability benefits pursuant to section 440.15(4)(a), Florida Statutes (2002), which the employer and its carrier, Appellant, Crawford and Company, denied on the grounds that the claimant was not entitled to temporary partial disability benefits because she was earning from the employer more than the statutory maximum compensation rate. The JCC awarded the claimant the benefits, finding no such limitation in the statute. We agree with the JCC’s determination in this case.

Section 440.15(4)(a) indicates that if an employee is not able to earn 80 percent of his or her average weekly wage following a compensable, work-related accident, temporary partial disability benefits are due. See Vencor Hosp. v. Ahles, 727 So.2d 968 (Fla. 1st DCA 1998). Florida Administrative Code Rule 4L-3.0191(2) provides that an employee is eligible for temporary partial disability benefits if he or she: (1) has received a medical release to return to work; (2) is not able to earn 80 percent of his or her average weekly wage; (3) has not reached maximum medical improvement; and, (4) has not received payment for 104 weeks of temporary benefits. While the statutory maximum compensation rate set forth in section 440.12(2), Florida Statutes, applies to temporary disability benefits, it merely limits the amount the carrier is obligated to pay if temporary benefits are due. The statutory maximum compensation rate is not a consideration in determining whether temporary partial disability benefits are due.

Accordingly, we affirm the JCC’s award of benefits.

BARFIELD and BENTON, JJ., concur.


text:
    Carole RUSHING, Appellant, v. CARIBBEAN FOOD PRODUCTS, Appellee.
    No. 1D03-3598.
    District Court of Appeal of Florida, First District.
    April 26, 2004.

      Michael Bowlus and Stacie L.C. McEl-roy; Ford, Jeter, Bowlus, Duss, Morgan, Kenney & Safer, P.A., Jacksonville, for Appellant.
    William A. Bald, Jacksonville, for Appel-lee.
   HAWKES, J.

Carol Rushing appeals the trial court’s final order finding Caribbean Food Products, Inc., to be the prevailing party, and granting prevailing party attorney’s fees and costs, following Rushing’s voluntary dismissal of her third-party complaint. We affirm.

Rushing filed a third-party complaint seeking indemnity and the costs of defense from Caribbean, pursuant to an indemnity provision of a lease between the parties. Subsequently, Rushing voluntarily dismissed her complaint, pursuant to Florida Rule of Civil Procedure 1.420, without recovering anything from Caribbean. Following Appellant’s voluntary dismissal of her complaint, Caribbean filed a motion for attorney’s fees and costs pursuant to the prevailing party provision of the parties’ lease. A hearing was held. After receiving evidence and hearing arguments of counsel, the trial court concluded Caribbean was the prevailing party for purposes of the lease’s prevailing party attorney’s fee provision, because Rushing voluntarily dismissed her claim.

A trial court’s ruling on a motion for attorney’s fees following a voluntary dismissal is reviewed for abuse of discretion. See Landry v. Countrywide Home Loans, Inc., 731 So.2d 137, 141 (Fla. 1st DCA 1999). The general rule is that when a plaintiff voluntarily dismisses an action, the defendant is the prevailing party for purposes of a prevailing party attorney’s fee award. See e.g., id. at 139; Thornber v. City of Ft Walton Beach, 568 So.2d 914 (Fla.1990). “[Attorney’s fees are properly awarded after a voluntary dismissal where such an award is provided for by statute or agreement of the parties.” Century Constr. Corp. v. Koss, 559 So.2d 611, 612 (Fla. 1st DCA), rev. den., 574 So.2d 141 (Fla.1990). A voluntary dismissal as contemplated by Rule 1.420 requires costs to be assessed and judgment entered therefor “in any action dismissed under this rule[.]” See id. Costs include attorney’s fees when provided by statute or agreement between the parties. See id.

Here, it is uncontested that Rushing voluntarily dismissed her third-party complaint pursuant to Rule 1.420. The record indicates the trial court expressly considered and properly rejected Appellant’s arguments for denying Caribbean prevailing party status. Similarly, the trial court expressly considered and properly rejected Appellant’s public policy argument that a party’s motivation for voluntary dismissal should be considered before the dismissed party can be considered the “prevailing” party, and attorney’s fees awarded. The trial court did not abuse its discretion by finding Caribbean the prevailing party and awarding attorney’s fees under the relevant lease provision.

AFFIRMED.

BOOTH and POLSTON, JJ., concur.


author: PER CURIAM.

text:
    Carl CARPENTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3393.
    District Court of Appeal of Florida, First District.
    April 26, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the trial court failed to attach portions of the record conclusively refuting the appellant’s claim, we reverse.

The appellant was convicted of several offenses, the most severe being DUI manslaughter, a second-degree felony punishable by up to fifteen years of imprisonment. §§ 316.193(3)(c)3., 775.082(3)(c), Fla. Stat. (1995). The trial court imposed 189.4 months of incarceration followed by ten years of probation, resulting in a cumulative sentence of 309.4 months, a sentence well in excess of the statutory maximum. The appellant filed the instant motion alleging his sentence is illegal in that it exceeds both the statutory maximum and the maximum sentence reflected on his 1994 guidelines scoresheet. The trial court denied the appellant’s claim, attaching a 1995 guidelines scoresheet, which reflected a maximum permissible sentence of 315.7 months.

Our review of the record reveals that the appellant is entitled to relief. Because his current offense was committed on May 6, 1996, the 1994, rather than the 1995, guidelines scoresheet controls his sentence. See Heggs v. State, 759 So.2d 620 (Fla.2000); Trapp v. State, 760 So.2d 924 (Fla.2000). Thus, it appears that the appellant has raised a facially sufficient claim for relief.

Accordingly, we reverse the trial court’s order denying the appellant’s claim and remand for the trial court to either grant relief or attach portions of the record conclusively refuting the appellant’s claim.

REVERSED and REMANDED.

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    Horace Leroy MADDOX, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5087.
    District Court of Appeal of Florida, First District.
    April 26, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his posteonvietion motion filed pursuant to Florida Rule of Criminal Procedure 3.800. Because the trial court failed to attach portions of the record that demonstrate the appellant’s motion was successive, we reverse.

The motion filed by the appellant is facially sufficient to warrant consideration on the merits. The appellant alleges that the trial court failed to provide sufficient reasons to retain jurisdiction over the first one-third of his sentence as required by Hampton v. State, 764 So.2d 829, 830 (Fla. 1st DCA 2000) (acknowledging standard that trial courts must meet for retention of jurisdiction to be valid). The trial court summarily denied the appellant’s motion, finding that it was successive in that the appellant had presented this argument in a prior rule 3.800 motion. The attachments, however, provided by the trial court only demonstrate that the appellant had acknowledged that the trial, court had retained jurisdiction over the first one-third of his sentence and did not demonstrate that the appellant had presented the instant argument that such retention was invalid for lack of sufficient reasons. Therefore denial as successive was improper. See Fuston v. State, 764 So.2d 779, 779-80 (Fla. 2d DCA 2000) (holding that a motion that does not deal with the “specific issue” raised in a previous motion is not successive). Accordingly, we reverse the lower court’s summary denial of the appellant’s motion and remand to the trial court to address the appellant’s claim on the merits or provide record attachments that demonstrate the successiveness of the appellant’s claim.

REVERSED AND REMANDED.

BARFIELD, DAVIS and BENTON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Henry SAWYER, Appellee.
    No. 1D03-3839.
    District Court of Appeal of Florida, First District.
    April 26, 2004.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender; Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The trial court dismissed proceedings for civil commitment initiated under the Jimmy Ryce Act on June 6, 2003, on grounds that Henry Sawyer had served his sentence for sexual battery by the time he was released on October 24, 1997. On appeal, the state contends that his re-incarceration on account of his subsequent conviction on three counts of burglary of a conveyance makes him subject to civil commitment — for life, if necessary — even after his new criminal sentence expires if, as the state alleges, he “suffers from a mental abnormality or personality disorder which makes him likely to engage in acts of sexual violence if not confined in a secure facility for long term control, care and treatment.” Bound by State v. Mitchell, 866 So.2d 776 (Fla. 1st DCA 2004), we reverse and, as in Mitchell, certify this question as one of great public importance:

DOES THE [JIMMY] RYCE ACT REQUIRE THAT THE CURRENT INCARCERATION BE FOR A SEXUALLY VIOLENT OFFENSE?

BARFIELD, DAVIS, and BENTON, JJ., concur.


author: POLSTON, J.

text:
    John H. BRAXTON, Appellant, v. HOLMES COUNTY ELECTION CANVASSING BOARD, Debbie Wilcox-Morris, Supervisor of Election of Holmes County and Member of Canvassing Board, The Honorable Robert E. Brown, County Judge and Member of Canvassing Board, Rick Crews, County Commissioner and Member of Canvassing Board, and Dennis Lee, Candidate and Sheriff of Holmes County, Appellees.
    No. 1D02-5171.
    District Court of Appeal of Florida, First District.
    Rehearing Denied April 27, 2004.
    Feb. 24, 2004.
    Rhonda S. Clyatt, Esquire, and Jean Marie Downing, Esquire, Panama City, for Appellant.

      Franklin R. Harrison, Esquire, and Kevin D. Obos, Esquire, of Harrison, Sale, McCloy & Thompson, Panama City; Gerald Holley, Esquire, Chipley, for Appel-lees.
   POLSTON, J.

Appellant John H. Braxton appeals the December 9, 2002 final judgment of the trial court relating to his contest of the 2000 Holmes County General Election for the sheriffs race, pursuant to section 102.168, Florida Statutes (2000). Braxton lost the race to appellee Dennis Lee by five votes. Braxton brought an action, alleging fraud in the election process (Count I), alleging gross negligence (Count II), and seeking declaratory and injunctive relief because of improper counting of ballots (Count III).

The trial court conducted a bench trial and, after hearing evidence for two days, ruled in favor of appellees on their motion for directed verdict, which pertained to the fraud and gross negligence counts. We affirm the trial court’s ruling rejecting Braxton’s claims of fraud and gross negligence in the election process because he failed to present a prima facie case. See Sec. Abstract & Ins. Co. v. Fid. Nat’l Title Ins. Co. of Pa., 668 So.2d 658 (Fla. 4th DCA 1996)(affirming the trial court’s involuntary dismissal at the close of plaintiffs case because the plaintiff failed to establish a prima facie case); Robinson v. Wright, 425 So.2d 589 (Fla. 3d DCA 1982)(same); Fla. R. Civ. P. 1.420(b). We also affirm the trial court’s ruling that negligence in the election causing substantial noncompliance with the election laws was not so pervasive that it thwarted the will of the people. Accordingly, we agree with appellees that the election should not be voided. See Beckstrom v. Volusia County Canvassing Bd., 707 So.2d 720, 725 (Fla.1998)(ruling that “if a court finds substantial noncompliance with statutory election procedures and also makes a factual determination that reasonable doubt exists as to whether a certified election expressed the will of the voters, then the court in an election contest brought pursuant to section 102.168, Florida Statutes (1997), is to void the contested election even in the absence of fraud or intentional wrongdoing”).

After dismissing the claims of fraud and gross negligence, the trial court indicated that it would manually recount the under-votes in the election. After this recount, two votes were added to each candidate’s vote totals. Therefore, Lee won the election by five votes. Braxton argues that the trial court erred by not considering certain absentee ballots rejected by the Canvassing Board and by not properly recounting all of the undervotes in its manual recount ordered. We agree and, therefore, reverse.

I. Rejected Absentee Votes

At trial, Braxton requested the trial court to review 25 rejected absentee ballots in its recount of ballots. The Canvassing Board rejected the 25 ballots because it determined that the signatures on the ballot envelopes did not sufficiently match the signatures on file to qualify them as legal ballots. The requirements for comparing signatures during canvassing of absentee ballots are as follows:

The canvassing board shall, if the supervisor has not already done so, compare the signature of the elector on the voter’s certificate with the signature of the elector in the registration books to see that the elector is duly registered in the county and to determine the legality of that absentee ballot. An absentee ballot shall be considered illegal if it does not include the signature and the last four digits of the social security number of the elector, as shown by the registration records, and either:
a. The subscription of a notary or officer defined in Item 6.b. of the instruction sheet, or
b. The signature, printed name, address, voter identification number, and county of registration of one attesting witness, who is a registered voter in the state.
However, an absentee ballot shall not be considered illegal if the signature of the elector or attesting witness does not cross the seal of the mailing envelope or if the person witnessing the ballot is in violation of s. 104.047(3). If the canvassing board determines that any ballot is illegal, a member of the board shall, without opening the envelope, mark across the face of the envelope: “rejected as illegal.” The envelope and the ballot contained therein shall be preserved in the manner that official ballots voted are preserved.

Section 101.68(2)(c)l., Fla. Stat. (2000). These 25 ballots rejected as illegal are sufficient to change or place in doubt the result of the election. See § 102.168(3)(c), Fla. Stat. (2000)(stating that grounds for contesting an election include “[rjeceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election”).

The trial court refused to consider these 25 ballots because the Canvassing Board had already considered and ruled on them. The Florida Supreme Court, in Gore v. Harris, 772 So.2d 1243 (Fla.2000), rev’d on other grounds, Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000), held:

Although the protest and contest proceedings are separate statutory provisions, when a manual count of ballots has been conducted by the Canvassing Board pursuant to section 102.166, the circuit court in a contest proceeding does not have the obligation de novo to simply repeat an otherwise-proper manual count of the ballots. As stated above, although the trial court does not review a Canvassing Board’s actions under an abuse of discretion standard, the Canvassing Board’s actions may constitute evidence that a ballot does or does not qualify as a legal vote. Because the appellants have failed to introduce any evidence to refute the Canvassing Board’s determination that the 3300 ballots did not constitute “legal votes,” we affirm the trial court’s holding as to this issue.

772 So.2d at 1260 (emphasis added). Lee argues that the trial court followed Gore v. Harris because the trial court properly considered the Canvassing Board’s actions as evidence. We agree with Lee that the trial court properly considered the Canvassing Board’s actions as evidence, but agree with Braxton that the trial court erred by not considering other evidence regarding whether the ballots constitute legal ballots. At trial, Braxton proffered evidence, including testimony from those who witnessed signatures on the rejected ballots and from actual signing voters, to refute the Canvassing Board’s determination that the 25 ballots did not constitute legal votes. In Gore v. Harris, no contravening evidence was presented.

Appellees also argue that because Gore v. Harris was reversed by the United States Supreme Court, Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388, it has no application to this case. We do not read the United States Supreme Court’s decision to reverse Gore v. Harris on this issue, although the Florida Supreme Court’s decision on this issue was subject to serious criticism in various concurring and dissenting opinions. See Bush, 531 U.S. at 105,121 S.Ct. 525 (stating “it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition”); id. at 120, 121 S.Ct. 525 (Rehnquist, C.J., concurring; the Florida Supreme Court’s decision to conduct a manual recount on undervotes to determine voter intent was a departure from the legislative scheme); id. at 131, 121 S.Ct. 525 (Souter, J. dissenting; other interpretations of Florida’s election law were possible, and “some might have been better than those adopted by the Florida court’s majority”); id. at 135-36, 121 S.Ct. 525 (Ginsburg, J., dissenting; “I might join THE CHIEF JUSTICE were it my commission to interpret Florida law”). Because the Florida Supreme Court was not reversed on this issue, and on remand did not vacate its decision, we cannot ignore its ruling. See Gore v. Harris, Case No. SC00-2431, 779 So.2d 270, Order on Remand (Fla. Dec. 14, 2000)(unpublished order)(dismissing case on remand); Gore v. Harris, 773 So.2d 524 (Fla.2000)(opinion after Dec. 14 order dismissing case, on remand).

Therefore, in accordance with Gore v. Harris, we direct the trial court, on remand, to consider all the relevant evidence, not just the Canvassing Board’s determination, in its finding of whether these 25 absentee ballots should be rejected as illegal ballots or counted.

II. 14 Undervotes Not Counted

The trial court recounted 136 of the 150 undervotes. Braxton argued at trial, and on appeal, that the additional 14 un-dervotes should have been recounted. The Supervisor of Elections indicated that at least some of these undervotes were likely in the ballots that had been segregated as undervotes in the presidential election, but that additional work would need to be performed to identify those in the sheriffs race. The trial court erred by refusing to consider these additional undervotes in its manual recount. The trial court was apparently concerned with identifying which ballots had been considered as undervotes by the Supervisor of Elections. Although the Supervisor testified that the segregated presidential election undervotes could be run through the machine again to identify any undervotes in the Sheriffs race, the trial court prevented any effort to do so. Therefore, we direct the trial court, on remand, to attempt to identify and consider these additional undervotes.

Lee argues that these “missing” 14 un-dervotes were only raised by Braxton during post-trial proceedings, therefore the trial court properly did not consider them in the manual recount. However, the record indicates that Braxton sufficiently raised these missing undervotes during trial and did not waive the issue.

III. 3 Spoiled Ballots

Three ballots from Precinct Ten were apparently mistakenly spoiled by a poll worker, and were not counted in the certified results. On remand, we direct the trial court to consider these ballots.

We find no error in the trial court’s rulings on the additional ballots at issue in the appeal.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH DIRECTIONS.

ERVIN AND BARFIELD, JJ., concur.

      . Although the ore terms motion was characterized as a motion for directed verdict, and referred to as that in the final judgment, it is treated as a motion for involuntary dismissal pursuant to Fla. R. Civ. P. 1.420(b), because it was a bench trial.

      . The undervotes were those ballots without a vote in the sheriff's race. For example, a voter may have chosen to not vote in the sheriff’s race, or may not have properly marked the ballot for the machine to read it.

      .The Canvassing Board certified 3,674 votes for Braxton and 3,679 votes for Lee. The trial court counted an additional two votes for each candidate, therefore totaling 3,676 votes for Braxton and 3,681 votes for Lee.

      . Ms. Clyatt [Braxton's counsel]: And you are^ — you are saying you are not reviewing the actions in any way, whether it’s de novo or under abuse of discretion, you simply are declining review of the Canvassing Board's action with regard to the absentee ballots total?
      The Court: Envelopes.
      Ms. Clyatt: Envelopes or their count of them. The Court: Correct. Because I believe the Canvassing Board acted properly in regards to the absentee ballots slash envelopes, and acted in good faith. And I have no belief whatsoever that the law requires me to review those. I believe once they reviewed them, it’s [ ] over.


text:
    Donna GLIDDEN, Appellant, v. DEPARTMENT OF JUVENILE JUSTICE and Florida Unemployment Appeals Commission, Appellees.
    No. 1D03-3276.
    District Court of Appeal of Florida, First District.
    April 28, 2004.
    Marilyn J. Adler of Community Legal Services of Mid-Florida, Inc., Ocala, for appellant.
    Jennifer A. Parker, General Counsel, and John Milla, Assistant General Counsel, Department of Juvenile Justice, Tallahassee, for appellees.
   PER CURIAM.

Because appellant was denied the right to present evidence at the final hearing before the appeals referee, we reverse the final order and remand for further proceedings. Cf. Thomson v. Department of Envtl. Regulation, 511 So.2d 989 (Fla.l987)(holding that res judicata could not be fairly applied to deny a second permit application and that the applicant was entitled to a formal hearing to present new facts, changed conditions, or additional submissions by the applicant).

REVERSED AND REMANDED.

BARFIELD, BROWNING, and LEWIS, JJ., concur.


text:
    Neil KRAUSE, Appellant, v. James CROSBY, Florida Department of Corrections, Appellee.
    No. 1D03-3860.
    District Court of Appeal of Florida, First District.
    April 28, 2004.

      Neil Krause, appellant, pro se.
    Louis A. Vargas, General Counsel, and Barbara Debelius, Assistant General Counsel, Department of Corrections, Tallahassee, for appellee.
   PER CURIAM.

The order dismissing appellant’s petition for writ of mandamus is reversed, and the matter is remanded for further proceedings. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

BOOTH, POLSTON and HAWKES, JJ„ concur.


text:
    Randolph Joseph DANDRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-0201.
    District Court of Appeal of Florida, First District.
    April 28, 2004.
    Jack Behr, Public Defender, and Robin Miller, Assistant Public Defender, Shali-mar, for petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Speaking through his trial counsel, petitioner seeks a belated appeal of the judgment and sentence rendered on or about September 15, 2003, in Okaloosa County Circuit Court case number 03-698-CF. Counsel states in the sworn petition that petitioner made a timely request for an appeal, and candidly acknowledges that the failure to timely file an appeal was attributable solely to her negligence. In response to an order to show cause, the state has not established a good faith basis for disputing counsel’s sworn assertion. Moreover, despite the state’s argument to the contrary, our dismissal of and refusal to reinstate the prior untimely appeal filed by counsel did not constitute an adjudication of the question of whether petitioner is entitled to a belated appeal. See Hickey v. State, 831 So.2d 262 (Fla. 1st DCA 2002). Accordingly, the petition seeking belated appeal is granted.

Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel at public expense, the trial court shall appoint counsel to represent petitioner on appeal.

KAHN, VAN NORTWICK and POLSTON, JJ., concur.


text:
    STATE, OFFICE OF INSURANCE REGULATION, Petitioner, v. AIU INSURANCE COMPANY, et al., Respondent.
    No. 1D04-0378.
    District Court of Appeal of Florida, First District.
    April 28, 2004.

      Susan Dawson, Esq., Tallahassee, for Petitioner.
    Daniel C. Brown, Esq., Kelly A. Cruz-Brown, and Frederick T. Hawkes, Esq. of Carlton Fields, P.A., Tallahassee, for Respondents.
   PER CURIAM.

Petitioner’s petition for a writ of certio-rari, which this Court treats as a petition to review nonfinal agency action pursuant to section 120.68(1), Florida Statutes (2003), is dismissed for lack of jurisdiction. See § 120.68(1), Fla. Stat. (2003); Eight Hundred, Inc. v. Fla. Dep’t of Revenue, 837 So.2d 574 (Fla. 1st DCA 2003); Holmes Reg’l Med. Ctr. v. Agency for Health Care Admin., 731 So.2d 51 (Fla. 1st DCA 1999).

DISMISSED.

ALLEN, PADOVANO and LEWIS, JJ., CONCUR.


text:
    Alfredo ZITO, Appellant, v. JEFF HARDING, INC. and AIG Claim Services, Inc., Appellees.
    No. 1D04-0758.
    District Court of Appeal of Florida, First District.
    April 28, 2004.
    Monte R. Shoemaker, Altamonte Springs, for appellant.
    No appearance for appellees.
   PER CURIAM.

Alfredo Zito appeals an order of the Judge of Compensation Claims dismissing his petition for benefits, without prejudice, based on his failure to comply with certain statutory pleading requirements. We dismiss the appeal as being taken from a nonfinal, nonappealable order. See Garcia v. New Industrial Techniques, 678 So.2d 467 (Fla. 1st DCA 1996); see also Augustin v. Blount, Inc., 573 So.2d 104 (Fla. 1st DCA 1991). We have considered appellant’s request to treat this proceeding as seeking extraordinary writ relief, but deny that request. Appellant has failed to demonstrate that the remedy afforded by appeal from a final order will be inadequate, or that any other form of extraordinary writ relief is warranted.

APPEAL DISMISSED.

KAHN, VAN NORTWICK and POLSTON, JJ., concur.


text:
    Peter BEGGIO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-1247.
    District Court of Appeal of Florida, First District.
    April 28, 2004.

      Melissa Minsk Donoho, Ft. Lauderdale, for petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Peter Beggio seeks a belated appeal of a June 2001 order of the circuit court denying his motion for postconviction relief. We deny the petition, concluding that it is untimely under Florida Rule of Appellate Procedure 9.141(c)(4)(A). Moreover, even if the present petition is deemed to relate back to the prior pro se petition that was timely filed but was dismissed for failure to comply with an order of the court, we find that the matters alleged in the petition fail to set forth a basis for the granting of a belated appeal. While petitioner’s prior counsel may have given him a candid assessment of the likelihood of a successful appeal of the denial of his postconviction motion, petitioner has failed to show that his counsel improperly discouraged him from filing an appeal.

PETITION FOR BELATED APPEAL DENIED.

KAHN, VAN NORTWICK and POLSTON, JJ., concur.


text:
    Steven WHITSETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2168.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2004.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm based on Krischer v. Faris, 838 So.2d 600 (Fla. 4th DCA), prohibition dismissed, 846 So.2d 1148 (Fla.2003), but certify as a question of great public importance the question certified in Harris v. State, 27 Florida Law Weekly D946, — So.2d-, 2002 WL 731699 (Fla. 1st DCA 2002), rev. granted, 854 So.2d 600 (Fla. 2003):

IS A PLEA AGREEMENT FOR PRISON TIME FOLLOWED BY PROBATION VIOLATED WHEN THE STATE LATER INITIATES DISCRETIONARY CIVIL COMMITMENT PROCEEDINGS UNDER THE JIMMY RYCE ACT (PART V OF CHAPTER 394, FLORIDA STATUTES)? IN THE CIRCUMSTANCES DESCRIBED IN THE FIRST QUESTION, IS THE STATE BARRED BY EQUITABLE ESTOPPEL FROM SEEKING CIVIL COMMITMENT?

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    David K. BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1905.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2004.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.

WARNER, POLEN and MAY, JJ., concur.


text:
    Roy LITTLE, Petitioner, v. Wisley BRAVE, Respondent.
    No. 4D03-2704.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2004.
    Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, Robert M. Montgomery, Jr., and John T. McGovern of Montgomery & Larson, LLP, West Palm Beach, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Ft. Lauder-dale, for respondent.
   PER CURIAM.

Because setting a cause for trial in accordance with Florida Rule of Civil Procedure 1.440 is a mandatory duty, we grant the petition and require that the case be set for trial. See Pate v. Sawaya, 663 So.2d 679, 679-80 (Fla. 5th DCA 1995); Ivans v. Greenbaum, 613 So.2d 130, 130 (Fla. 3d DCA 1993); Globe Life & Accident Ins. Co. v. Preferred Risk Mut. Ins. Co., 539 So.2d 1192, 1193 (Fla. 1st DCA 1989).

GUNTHER, WARNER and MAY, JJ., concur.


author: KLEIN, J.

text:
    Antonio Gonzalez MESA, Appellant, v. WASHINGTON MUTUAL BANK, F.A., successor by Merger to Bank United, Appellee.
    No. 4D03-3140.
    District Court of Appeal of Florida, Fourth District.
    April 28, 2004.

      Jason A. Dvoracek of Koppen, Watkins, Partners & Associates, P.A., Delray Beach, for appellant.
    Michael J. Posner of Ward, Damon & Posner, West Palm Beach and Susan C. Minor of Shapiro & Fishman LLP, Aven-tura, for appellee.
   KLEIN, J.

Appellant was a defendant in this mortgage foreclosure because he was liable on a mortgage made prior to the mortgage which was foreclosed. He does not contest the foreclosure aspects of the summary judgment, but argues that the amount of the money judgment entered against him is too high, and that there were issues of fact as to that amount which could not be resolved on summary judgment. We agree with his argument and accordingly reverse only that aspect of the final judgment entered against appellant, a money judgment for $56,465.65, so that the trial court can determine the merits of the claims advanced by appellant in his pleadings. The judgment is otherwise affirmed.

STONE and TAYLOR, JJ., concur.


author: VICTORY, J.

text:
    Brian CAMPBELL, et al. v. TORE, INC., et al.
    No. 2003-CC-1341.
    Supreme Court of Louisiana.
    Feb. 20, 2004.
    Rehearing Denied May 14, 2004.

      Peuler & Ernst, Gregory L. Ernst, New Orleans, Anthony D’Alto, II; Windhorst, Gaudry, Ranson, Higgins & Gremillion, Gretna, William H. Voigt, New Orleans, for applicant.
    Falcon Law Firm, Timothy J. Falcon, Deani Beard Milano, Marrero; The Diddel Law Firm, A. Glenn Diddel, III, Houston, TX; Shapiro & Shapiro, Kristina Webb Shapiro, Baton Rouge, for respondent.
   VICTORY, J.

At issue in this case is whether the trial court abused its discretion in granting the plaintiffs motion for a new trial. After reviewing the trial record and applicable law, we find that the trial court erred in granting a new trial and therefore reverse that ruling and reinstate the verdict rendered by the jury.

FACTS AND PROCEDURAL HISTORY

Brian Campbell (“Campbell”) filed suit against Tork, Inc. for injuries arising from an accident that occurred on February 22, 1995 while Campbell was employed as a finance and insurance manager at Benson BMW/ Isuzu/ Volkswagen, Inc. The accident happened when Campbell arrived at work, attempted to turn off the outside lights by flipping a switch on the timer box, and received a brief electrical shock. Eyewitness evidence suggests that as a result of this shock, Campbell fell against a doorframe, though it is unclear as to whether he lost consciousness. Later that day, after complaining of shortness of breath and dizziness, he was sent to Dr. Marc Acosta, whose practice included treating work-related injuries from the Benson | ¡^dealerships. The next day, Campbell returned to the job, but was fired a month later for falsifying reports unrelated to the accident. Campbell filed suit in 1996 alleging the electrical shock caused brain damage resulting in escalating cognitive problems, and thus impairing his ability to function normally.

After a six-day trial beginning March 4, 2002, the jury returned a verdict in favor of Campbell for $50,000, which included $25,000 general damages for past physical and mental pain, suffering, and anxiety and $25,000 special damages for past lost wages and employee benefits, but awarded no medical expenses. Campbell then filed alternative motions for a JNOV, Additur, or New Trial. After taking the motions under advisement, on October 31, 2002, the trial judge granted a new trial without issuing reasons.

Following a writ denial by the Fifth Circuit Court of Appeal, we granted the defendants’ writ to determine whether the trial judge abused his discretion in granting the plaintiffs motion for a new trial.

DISCUSSION

La. C.C.P. art.1972 provides:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1)"When the verdict or judgment appears clearly contrary to the law and the evidence.
(2)When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3)When the jury was bribed or has behaved improperly so that impartial justice has not been done.
Additionally, La. C.C.P. art.1973 provides:
13A new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.

As previously indicated, the trial court did not give any reasons for granting a new trial. However, we note that the plaintiff asked for relief under La. C.C.P. arts.l972(l) and 1973. Since the trial judge included no “good ground” for granting a new trial under La. C.C.P. art 1973 in his judgment, and none appears in the record, we conclude that he found the verdict “contrary to the law and the evidence” as stated in La. C.C.P. art.l972(l). Thus, we will examine the trial court’s ruling in accordance with the standard for granting or denying a motion for new trial under this provision.

A trial judge may order a new trial if a jury’s verdict cannot be supported by “any fair interpretation of the evidence” Martin v. Heritage Manor South Nursing Home 2000-1023 (La.4/3/01), 784 So.2d 627, 631-632. As explained in Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84:

The fact that a determination on a motion for new trial involves judicial discretion ... does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury’s responsibility. A motion for new trial solely on the basis of being contrary to the evidence is directed squarely at the accuracy of the jury’s factual determinations and must be viewed in that light. Thus the jury’s verdict should not be set aside if it is supportable by any fair interpretation of the evidence [emphasis added]. Davis, supra, 774 So.2d. at 93 (citing Gibson v. Bossier City General Hospital, 594 So.2d 1332 (La.App. 2 Cir. 1991)).

|4In considering whether to grant a motion for a new trial, “the trial court may evaluate the evidence without favoring either party, it may draw its own inferences and conclusions; and evaluate witness credibility to determine whether the jury had erred in giving too much credence to an unreliable witness.” Joseph v. Broussard Rice Mill, Inc. 00-0638 (La.10/30/00), 772 So.2d 94 (citing Smith v. American Indem. Ins. Co., 598 So.2d 486 (La.App. 2d. Cir.)), writ denied, 600 So.2d 685 (La. 1992).

The applicable standard of review in ruling on a motion for new trial is whether the trial court abused its discretion. Martin, supra at 632. In order to apply this standard, “we are faced with the balancing of two very important concepts: the great deference given to the jury in its fact finding role and the great discretion given to the trial court in deciding whether to grant a new trial.” Davis, supra 774 So.2d. at 93-94. Though the “[trial] court has much discretion [in determining whether to grant a new trial], this Court will not hesitate to set aside the ruling of the trial judge in a case of manifest abuse.” Lamb v. Lamb 430 So.2d 51 (1983). Thus, although “the scales are clearly tilted in favor of the survival of the jury’s verdict, the trial court is left with a breadth of discretion which varies with the facts and events of each case.” Davis, supra 774 So.2d. at 94.

Although our standard of review is relatively straight-forward, the application of this standard is more complicated. Martin, supra at 632. In order to enable this Court to correctly apply this standard of review, the facts and evidence presented in | seach case are very important. The trial record must be examined carefully to determine if the trial court abused its discretion in deciding that the jury verdict was not supportable by “any fair interpretation of the evidence.” Thus, the evidence and testimony is hereafter examined in order to correctly apply our standard of review.

Prior to the trial, the plaintiff and defendants stipulated as to the defendants’ liability for the shock Campbell received while employed at the dealership. Due to this stipulation, the trial concerned only damages, and the primary issues that were presented to the jury involved the causal connection between the plaintiffs claimed brain injury and the accident, and the severity of any related injury. The witnesses included those who testified as to what occurred on the day of the accident, including plaintiffs mental and physical state subsequent to the accident, as well an expert witness who testified as to the effect such a shock would have on person. Of primary importance, however, is the testimony of the treating and examining physicians who had examined Campbell and rendered various diagnoses as to his injuries. After an independent review of the record, we find the testimony of many of these witnesses provides substantial evidence to support the jury verdict, and thus “is supportable by any fair interpretation of the evidence.” Davis, supra 774 So.2d. at 93 (citing Gibson v. Bossier City General Hospital, 594 So.2d 1332 (La.App. 2 Cir.1991)).

Immediately after the accident, the plaintiff was sent to Dr. Acosta, a board certified internist, who found no signs of trauma nor burns from electrical shock. According to the medical records from this examination, the plaintiff complained only of dizziness, shortness of breath and trembling. After running an EKG, and finding it to be normal, Dr. Acosta discharged him to return to work the following day.

From March of 1995 until May of 1995, Campbell sought treatment from Dr. Maria Palmer, a neurologist, upon referral of his attorney. Dr. Palmer found no | fievidence of trauma, and found normal neurological patterns in Campbell. She did, however, diagnose a mild cervical muscle spasm in his neck, and a mild concussion for which plaintiff was prescribed pain medication.

From April until August of 1995, Campbell saw Dr. Michael Ballard, an internist, complaining of headaches. Dr. Ballard found no evidence of a burn or electrical shock and did not diagnose any neurological deficits in the plaintiff. He did conclude that plaintiff had a cervical muscle spasm or sprain with possible nerve impingement and referred Campbell to an orthopedist at Tulane, Dr. Raul Rodriguez for further treatment. However, upon examination of Campbell and after taking numerous x-rays, Dr. Rodriguez could find nothing objectively wrong with Campbell.

In January of 1996, Campbell sought treatment from a team of physicians at Ochsner Clinic led by Dr. Rand Voorhies, a neurosurgeon, and including Dr. Kevin McKinley (neurology), Dr. Richard Wake-man (neuropsychology), and Dr. Douglas Swift (occupational medicine). Dr. Voor-hies found no neurological deficits and a bone scan was found to be normal. After his examination, Dr. Voorhies referred Campbell to the other members of his Ochsner team for follow-up work, with Dr. Swift to be his primary treating physician. Dr. Swift concluded that Campbell’s problems did not include neurological issues, and after conferring with other members of his team, Dr. Swift referred plaintiff to get “psychological help.”

Dr. McKinley treated Campbell from early 1996 until June of that year and testified at trial that at that time he believed that Campbell was faking his symptoms or malingering, and did not recommend Campbell for neuropsychological testing. After conferring with Dr. Swift about the plaintiff, Dr. McKinley testified that he believed there was a “dominant psychiatric component” involved in Campbell’s problems. However, in spite of his earlier diagnosis, Dr. McKinley signed an affidavit in 2001 |7stating that Campbell had sustained brain injury, though he admitted in trial that his opinion was based solely on Dr. Wakeman’s evaluation of the plaintiff and that he had not re-examined the plaintiff in light of Dr. Wakeman’s diagnosis.

Dr. Richard Wakeman, upon referral by Dr. Swift and Dr. Voorhies, examined Campbell in March of 1996, and administered numerous tests to evaluate his cognitive abilities. Dr. Wakeman’s diagnosis at that time was that Campbell suffered a conversion disorder or a somatization disorder, stemming from psychiatric origin. Dr. Wakeman continued to treat Campbell about a dozen times to help him “cope with his headaches and his arm and shoulder pain and neck pain” through September of 1996. During this period of treatment, Dr. Wakeman testified that he found no evidence of long-term memory deficit. The plaintiff returned to Dr. Wakeman in 1999 for additional testing, upon referral by his attorney. After a second examination, Dr. Wakeman concluded that the plaintiff had sustained traumatic brain injury resulting from the February 1995 accident, rendering him permanently disabled. He based this opinion on the presumption that plaintiff had lost consciousness during or immediately after the electrical shock, and testified that in order to have a closed-head injury sufficient to cause a neuro-cognitive disorder, there must be some period of unconsciousness. However, Dr. Wakeman told the jury that on a subsequent visit plaintiff was tested for malingering and the results indicated an abnormal range, suggestive of malingering.

In October, 1996, Campbell began treating with Dr. M. Kaleem Arshad, a psychiatrist, upon the referral of a social worker, Anna Leason. Based upon Campbell’s medical history, Dr. Arshad concluded that the plaintiff suffered from an 1 s“organic brain syndrome related to the head injury.” He opined that the plaintiff suffers a “severe, permanent mental impairment.” Dr. Arshad testified that he did not believe that the plaintiff exaggerated his symptoms, but rather he lied to cover his mental deficits, a syndrome called “confabulation.” He further expressed his belief that the plaintiff was not competent to testify.

In October 1996, upon referral from Ms. Leason and Dr. Arshad, the plaintiff was examined by Dr. Raphael Salcedo, a neu-ropsychologist. After administering several tests, he concluded plaintiff had “emotional psychological issues” with “somatic symptoms.” Plaintiffs psychological problems complicated the “evaluation process.” Dr. Salcedo declined to “assess the neu-ropsychological impact, if any, associated with this individual’s reported injury.”

In March 1997, Campbell’s attorney referred him for testing at Healthcare Rehabilitation Center in Austin, Texas. Neu-ropsychological testing there suggested that Campbell sustained traumatic brain injury secondary either to Campbell striking his head or anoxia from the shock. This testing, however, did not include an evaluation for malingering.

The defendants requested an Independent Medical Examination (IME) in April of 1997 by Kevin Bianchini, a licensed neu-ropsychologist. Dr. Bianchini administered numerous tests, measuring basic mental faculties relating to brain function. In October 2001, Dr. Bianchini re-evaluated plaintiff, concluding that Campbell was malingering, explaining that he

appears to have more impairments than would make sense given the circumstances of those injuries. In fact, substantially more impairments than would make sense.... In addition, on these specific tests designed to pick up faking, he had positive results on them a number of times.

In Dr. Bianchini’s opinion, Campbell did not suffer from any “neuro-eognitive impairment.”

|flOn January 16, 1997, upon the defendant’s request, plaintiff submitted to an IME by Dr. Reny Culver, a psychiatrist. After reviewing Campbell’s medical records, Dr. Culver obtained a detailed history from Campbell and observed him for three and a half hours. In Dr. Culver’s opinion, Campbell presented no “memory disturbances” or “cognitive problems” and he reached the conclusion that he “was faking his symptoms, that he didn’t have anything wrong with him but he was trying to make me think that he had something wrong with him. The term for it in medicine is malingering.”

In December 2000, upon referral of Dr. Arshad, Campbell began treating with Marcia Beard Ph.D., a clinical psychologist. Based upon her examination and treatment of Campbell, she expressed the opinion that plaintiff suffered a traumatic brain injury, resulting in severe cognitive deficits and depression.

Todd Meunier, the plaintiffs expert in the field of vocational rehabilitation, after reviewing Dr. Arshad’s report and Dr. Wakeman’s report, concluded that the plaintiff “could not maintain any kind of competitive employment.” However, he admitted if evidence were submitted regarding the plaintiffs activities such as driving, cutting grass, and shopping, his opinion might change.

Finally Cedric Walker, a Ph.D. in biomedical engineering, testified that the switch involved in Campbell’s accident measured a voltage of 120 (standard household current), and that less than one amp of electricity passed through Campbell’s body based on the absence of an electrical burn. Thus, any nerve damage from this type of electrical shock would occur only within the first twenty-four hours |inafter the shock, and could not develop subsequent to this period. Additionally, he testified that the current flowed “down his left arm, down his torso, and through his feet,” and that the current could not have passed through his brain.

From the above testimony and other evidence presented in trial, the jury was exposed to conflicting accounts of what occurred and the resulting injury to the plaintiff. As to what occurred on the day of the accident, the only witness to the accident, Vernon Lewis, testified in trial that the plaintiff lost consciousness as a result of the shock. However, upon cross-examination, and when presented with a deposition in which he had previously stated that the plaintiff did not lose consciousness, Mr. Lewis claimed that he was unsure as to this fact. The primary issue, however, lies in the conflicting diagnoses of medical professionals. Whereas Drs. Arshad, Wakeman, and McKinley (though based solely on the report of Dr. Wake-man), testified that Campbell suffered from brain injury as a result of the accident, there was also substantial evidence, from Drs. Bianchini, Culver and McKinley’s first evaluation, as well as tests done by Dr. Wakeman and Dr. Bianchini, that indicate that Campbell was malingering. Additionally, it was the opinion of Drs. Acosta, Rodriguez, and Yoorhies, that Campbell had nothing physically wrong with him. Drs. Palmer and Ballard found nothing wrong with Campbell’s neuro-cog-nitive ability, but found a “mild cervical muscle spasm” in his neck along with possible soft tissue injury. Finally, there was testimony from a Ph.D. in biomedical engineering that the brief shock from household current could not have even passed through the plaintiffs brain.

This court stated in Martin, supra, “A jury verdict cannot be set aside on the In grounds that the verdict is contrary to the evidence if it is supportable by any fair interpretation of the evidence.” 784 So.2d. at 637. This is a case in which there was a dispute among the experts as to whether plaintiff suffered a brain injury as a result of the accident. It is the duty of the jury to evaluate the credibility of each witness, and come to conclusions as to the facts based on these evaluations. Because the plaintiff did not testify in this case, the jury had no opportunity to evaluate his credibility, and had to rely on expert testimony regarding the extent of the injuries he may have suffered as a result of the brief shock. It is apparent to this Court that the jury accepted the defendant’s substantial evidence that the plaintiff suffered no brain injury from the shock, and in turn awarded him damages only for the shock itself and soft tissue injury associated with it.

CONCLUSION

While a trial judge does have discretion in granting a new trial, and is entitled to draw his own inferences and conclusions from the evidence as well as evaluate the credibility of the witnesses, he may not interfere with a jury verdict with which he simply disagrees when that verdict is based on a fair interpretation of the evidence. Martin, supra at 636-637. In our case, the jury’s verdict is clearly supportable by a fair interpretation of the evidence as there was substantial evidence heard by the jury to lead it to conclude that the plaintiffs injury from the shock was not nearly as serious as claimed by the plaintiff. Therefore, it was an abuse of discretion for the trial court to grant a new trial.

DECREE

For the reasons stated herein, we reverse the judgment of the trial court granting ^plaintiffs motion for new trial and reinstate the jury verdict of $50,000 in favor of Brian Campbell, et al.

      . Prior to the trial in this matter, Brian Campbell was judicially interdicted and his wife, Melissa Campbell, was appointed his curator. Thus, she represents Mr. Campbell in this matter as his curator.

      . As discussed infra, the sole witness to the accident was ambivalent in his testimony regarding whether Campbell lost consciousness as a result of the electrical shock.

      . Although the motion for new trial was argued on June 11, 2002, the District Judge did not rule on the motion until more than four months after the matter had been submitted.

      . In Martin v. Heritage Manor South Nursing Home, supra at 631-632 this Court explained the different standards to be used by a trial judge in granting a JNOV, versus granting a motion for a new trial:
      A motion for a new trial requires a less stringent test than for a JNOV as such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury. "Although the language is similar between the standards for a JNOV and new trial, there is a real difference between a finding that no evidence existed for a rational jury to reach a particular result and a finding that a jury could not have reached its conclusion on any fair interpretation of the evidence.” Gibson, supra at 1336. Notably, in considering whether the verdict was supported by any “fair interpretation of the evidence” on a motion for new trial, the trial judge is free to weigh the evidence and make credibility determinations, and is not required to view the evidence in the light most favorable to the non-movant as on a JNOV motion.

      . This standard of review is discussed in La. C.C.P. art. 1971 Official Revision Comment (d) ("Although the trial court has much discretion regarding applications for new trial, in a case of manifest abuse the appellate court will not hesitate to set the trial court's ruling aside, or grant a new trial when timely applied for.”)

      . According to the testimony of Dr. Wake-man, a conversion disorder is one that has no physical basis whatsoever, but rather is purely psychiatric in origin. A somatization disorder is one in which the patient suffers real physical pain, but there is no external cause of the pain.

      . Dr. Culver, among other credentials, has taught classes that teach the detection of malingering at the Tulane Medical Center for the last five to seven years.

      . There was substantial evidence presented at trial in the form of testimony, receipts, and his handicap drivers license application that the plaintiff had been engaged in all of these activities.

      .This seems to be crucial to the jury’s determination as all the doctors opined that the plaintiff must have lost consciousness for a period of time in order to sustain brain injury of the nature suggested by the plaintiff.

      . It is Tork's contention, and is supported by the verdict, that the jury followed his recommendation that they award $25,000 to Campbell for cervical and soft tissue injuries, and added another $25,000 for past lost wages.


text:
    In re David C. WILLARD.
    No. 2004-OB-0757.
    Supreme Court of Louisiana.
    March 24, 2004.
   ORDER

Considering the Motion for Interim Suspension for Threat of Harm, or in the alternative Motion for Transfer to Disability Inactive Status,

IT IS ORDERED that David C. Willard, Louisiana Bar Roll number 20420, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(A) for an indefinite period and until further order of this court.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

CALOGERO, C.J., and WEIMER, J., recused.

/a/ Catherine D. Kimball

Justice, Supreme Court of Louisiana


text:
    STATE ex rel. BROWN v. STATE.
    No. 2003-KH-2568.
    Supreme Court of Louisiana.
    March 26, 2004.
   PER CURIAM.

Writ granted. This Court’s rulings in State ex rel. Degreat v. State, 98-0690 (La.7/2/98), 724 So.2d 205 and State ex rel. Fleury v. State, 93-2898 (La.10/13/95, 661 So.2d 488) provide the exceptions to the rule set out in State ex rel. Simmons v. State, 93-0275 (La.12/16/94), 647 So.2d 1094, according to which lower courts must produce certain documents (including plea colloquies) free of charge as of right. Under Degreat and Fleury, this Court declines production of documents it normally provides even in the absence of a showing of particularized need in cases in which the only claims the documents could support are not cognizable on collateral review or when the limitations period of La.C.Cr.P. art. 930.8 has expired and the application would not satisfy any exception to prescriptive period.

Accordingly, reviewing courts should rely on the exceptions set out by this Court when evaluating an indigent inmate’s request for cost-free documents under Simmons. In the instant case, the rules of Degreat and Flewry apply and prevent relator from receiving the cost-free documents he seeks. With regard to relator’s 1995 conviction, his present confinement on an habitual offender sentence based in part on that conviction satisfies the custody requirement of La.C.Cr.P. art. 924 for purposes of post-conviction relief. See State v. Smith, 96-1798, pp. 5-6 (Laj 10/21/97), 700 So.2d 493, 495. However, relator may no longer collaterally attack that guilty plea in the court of conviction as the first step toward setting aside his present habitual offender sentence, see State ex rel. Martin v. State, 462 So.2d 637, 638 (La.1985), because the application would be time barred as a matter of La.C.Cr.P. art. 930.8. See State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189. Nor may relator collaterally attack his habitual offender sentence in the court of his current conviction on the basis of defects in that 1995 plea colloquy because claims of sentencing error are not cognizable in post-conviction proceedings. See La.C.Cr.P. art. 930.3; State ex rel. Melinie v. State, 93-1380 (La.1/12/96), 665 So.2d 1172. Similarly, Fleury applies to relator’s 1999 guilty plea, as to which the requested colloquy appears to have been lost in any event, because collateral attack on that conviction is now time barred as a matter of La.C.Cr.P. art. 930.8. To this extent, the judgment of the court of appeal is affirmed, because the result is correct.


author: 11 JOHNSON, J.,

text:
    STATE of Louisiana v. Richard MAHOGANY. State of Louisiana v. Albert Rey.
    Nos. 2004-KP-0454, 2004-KP-0455.
    Supreme Court of Louisiana.
    March 26, 2004.
   In re State of Louisiana; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. C, Nos. 251-479 in No. 2004-KP-0454.

In re State of Louisiana; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. E, Nos.248,426 in No. 2004-KP-1455.

_[jWrit granted.

JOHNSON, J., would deny the writ and assigns reasons.

11 JOHNSON, J.,

would deny the writ applications for the following reasons.

Albert Rey was convicted of possession of heroin with intent to distribute in 1975. In 1976, Richard Mahogany was convicted of distribution of heroin. Both defendants were convicted and, pursuant to former LSA-R.S. 40:966(B), were sentenced to life imprisonment at hard labor, without benefit of probation or suspension of sentence. Recently, both defendants filed motions “for probation, alternatively, for re-sentencing, or declaration of sentencing scheme unconstitutional.” Two separate trial judges vacated defendants’ sentences and ordered their release.

At the time of defendants’ convictions, a conviction for distribution of heroin was a probatable offense under LSA-R.S. 40:966(B). However, in 1977, the Legislature amended LSA-R.S. 40:966(B), changing the penalty for distribution of | ¡Jieroin to imprisonment without benefit of probation or suspension of sentence. Since then, the statute has undergone several amendments, and currently provides for the benefit of probation or suspension of sentence, after at least five years of imprisonment at hard labor has been served.

Each of these defendants has served over 28 years in prison. Under the law that existed at the time of their convictions, and under the law that exists today, both defendants are eligible for probation or suspension of sentence. I believe that a life sentence, without benefit of probation or suspension of sentence, is so disproportionate to the severity of the crimes committed by these defendants that it runs afoul of the Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution.

Accordingly, I would deny these writ applications and allow the trial courts’ rulings to stand.


text:
    In re Joseph W. THOMAS.
    No. 2004-OB-0813.
    Supreme Court of Louisiana.
    March 31, 2004.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status filed by respondent, Joseph W. Thomas,

IT IS ORDERED that Joseph W. Thomas, Louisiana Bar Roll number 8163, be and he hereby is transferred to interim disability inactive status pending a hearing to determine the validity of his claim of inability to assist in his defense due to mental and physical incapacity, pursuant to Supreme Court Rule XIX, § 22(C). All disciplinary proceedings shall be stayed pending this determination.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Jeffrey P. Victory

Justice, Supreme Court of Louisiana