author: LEWIS, J.

text:
    George W. HARPER, Appellant, v. SEBRING INTERNATIONAL RACEWAY, INC., et al., Appellees.
    No. 1D04-0191.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2004.

      Bradley Guy Smith, of Smith, Feddeler, Smith & Miles, P.A., Lakeland; Susan W. Fox, of Fox & Loquasto, P.A., Tampa; Wendy S. Loquasto, of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Pat T. DiCesare, II, and Harold E. Barker, of DiCesare, Davidson & Barker, P.A., Lakeland, for Appellees.
   LEWIS, J.

Claimant, George W. Harper, appeals a final order of the Judge of Compensation Claims (“JCC”) in which the JCC found that claimant’s heart attack was not com-pensable because claimant was not involved in any physical stress or exertion prior to suffering the heart attack that was non-routine to his job as a fire protection team member. On appeal, claimant essentially contends that the JCC’s finding is not supported by competent, substantial evidence. We agree and, therefore, reverse the order and remand for further proceedings.

Claimant, who was sixty years of age at the time of the final hearing, testified that he had worked as a fire protection team member for the employer, Sebring International Raceway, since 1997 and had worked “in and around races” since 1969. Claimant described his position with the employer as consisting of fire protection for the raceway’s customers, clean-up, maintenance, course safety, “EMS,” and reconstruction of tire barriers. Claimant testified that he worked three to five days a week during the raceway’s busy season, which started near the end of October and continued through March. Claimant further testified, “Basically we sit and wait for something to happen.” If no accident occurred, claimant would turn his radio in, park his truck at the operations building, and return home.

On November 23, 2001, a vehicle racing on the raceway had a suspension failure while traveling at approximately 160 miles per hour and crashed into a nine-inch-thick retaining wall. Claimant, who was one of the first fire rescue workers to arrive at the accident scene, unloaded the fire extinguishers and carried a hydraulic pump, weighing 125 pounds, and its two attachments, each weighing approximately forty to forty-five pounds, to the scene. Using the pump, claimant attempted to extricate the driver of the vehicle, who was lapsing in and out of consciousness. Due to his medical background, claimant also assisted the EMS workers with the driver. According to claimant, all four fire protection team members used the pump, i.e., the jaws of life. While some cut, others pulled the vehicle’s bracing in order to extricate the driver. In total, it took claimant and the other three fire protection team members approximately forty-five minutes to extricate the driver of the vehicle. After the driver was placed into a helicopter, claimant and his co-workers began disassembling the pump, cleaning the race track, packing tools in their trucks, and filling the pump with fuel. Claimant first began experiencing unusual symptoms, including dizziness and vision problems, five minutes after the helicopter lifted off the track. After losing consciousness, claimant was rushed to the hospital, where he learned that he had suffered a heart attack. Claimant underwent a triple bypass four or five days later. Prior to this incident, claimant had been diagnosed with high blood pressure and diabetes, conditions for which he had been taking medication.

With respect to the accident, claimant testified that it “was the first major accident that [he] had been involved with at the track since [he] started.” Although claimant had been involved with serious accidents in the past, the accidents had occurred all over the United States while claimant was traveling with other race series. According to claimant, the EMS workers at the raceway would ask for his assistance maybe twice per year. William Berry, a fellow member of the fire protection team, similarly testified that the extrication at issue was “definitely the longest one [he had] ever worked on.” The raceway’s president and general manager, William Stephenson, testified that, while there are accidents “pretty much every week,” drivers only had to be extricated from their vehicles “[p]robably a couple times a year.” Stephenson also testified that the driver’s injuries in this case were more extreme than usual.

In his order, the JCC, in noting claimant’s cardiac history, found that claimant did not perform any job-related duty, any job-related task, or any job-related responsibility while aiding and extricating the injured driver from his vehicle that he had not previously performed while employed with the raceway. According to the JCC, the very nature of claimant’s position required him to work as responsively and as quickly as possible to administer proper medical attention to injured drivers. The JCC determined that the standard as set forth in Victor Wine and Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961), over ruled in part on other grounds by Evans v. Fla. Indus. Comm’n, 196 So.2d 748 (Fla.1967), governed claimant’s claim for workers’ compensation benefits due to claimant’s pre-existing cardiac condition. The JCC set forth:

I find that the record is devoid of any evidence that the Claimant engaged in any physical stress or exertion on November 23, 2001 that was non routine to his job with Sebring International Raceway. Though the evidence shows that the time spent aiding the driver in the crash which occurred on November 23, 2001 was of a longer period than average, I find that none of the tasks performed by the Claimant on that day were non routine to his job and were of the type performed by him on prior occasions. I find the seriousness of the accident to be irrelevant to this Court’s analysis in light of the fact the tasks the claimant performed on November 23, 2001 were no different then [sic] those he performed on prior occasion with this same employer.

In light of his conclusion that claimant failed to establish that he met the initial threshold of showing a physical exertion not routine to his job, the JCC declined to address the issue of medical causation. The JCC concluded that claimant did not sustain an injury within the course and scope of his employment and, therefore, denied claimant’s claim for workers’ compensation benefits. This appeal followed.

As we have explained:

The general rule regarding the com-pensability of a heart attack occurring during the course of employment is that the heart attack must have been caused by the unusual strain or overexertion of a specifically identifiable effort not routine to the work the employee was accustomed to performing. Victor Wine & Liquor, Inc. v. Beasley, 141 So.2d 581 (Fla.1961); Richards Department Store v. Donin, 365 So.2d 385 (Fla.1978). In ascertaining, for workers’ compensation purposes, whether a particular activity is routine, it has been said that “the analysis is not one solely predicated on the broad question of what was routine to the claimant; rather, that inquiry must necessarily be circumscribed by a consideration of what was routine to the job the claimant was accustomed to performing.” Skinner v. First Florida Building Corp., 490 So.2d 1367, 1369 (Fla. 1st DCA 1986); see also Wiggs Construction v. Knowles, 497 So.2d 942 (Fla. 1st DCA 1986). Further, the court must look to the duties performed by the employee himself rather than by fellow workers, and examine the work done by the employee as an entirety, rather than some isolated segment of the employee’s activities. Yates v. Gabrio Electric Co., 167 So.2d 565 (Fla.1964); Richards Department Store, supra. Under the principles established in the above cases, then, a proper analysis of what is “routine” must focus on the job the claimant was accustomed to performing at the time of his heart attack. Moreover, the court must examine the work done by the employee as an entirety, rather than some isolated segment of his activities. Yates, supra, at 567.

Walker v. Friendly Vill. of Brevard, 559 So.2d 258, 260 (Fla. 1st DCA 1990); see also Zundell v. Dade County Sch. Bd., 636 So.2d 8, 10 (Fla.1994) (explaining that, under Victor Wine, a claimant whose cardiovascular injury may have been exacerbated by a pre-existing condition may be unable to recover without first establishing that the injury occurred during a job-related exertion over and above normal working conditions). Under the Victor Wine test, whether a heart attack occurred during a job-related exertion over and above normal working conditions constitutes the test for legal causation, and proof of this element is geared towards satisfying the requirement that an injury is one arising out of the employment. McCall v. Dick Burns, Inc., 408 So.2d 787, 790 (Fla. 1st DCA 1982). Under the Victor Wine test, evidence of medical causation is also required. Id. We review the JCC’s findings regarding the compensability of claimant’s heart attack to ascertain whether it is supported by competent, substantial evidence. See Gardinier, Inc. v. Coker, 564 So.2d 254, 256 (Fla. 1st DCA 1990) (applying the competent, substantial evidence standard in reviewing the JCC’s finding that the claimant’s heart attack was compensable).

In finding that claimant’s heart attack was not compensable, the JCC found the seriousness of the accident and the “longer period than average” that it took to extricate the driver to be irrelevant given that claimant had previously engaged in the tasks he performed prior to suffering his heart attack. However, merely because a claimant may have previously performed the same or similar tasks as he or she performed prior to suffering a heart attack does not make the task routine to the claimant’s job. In other words, when applying the Victor Wine test, the circumstances surrounding a claimant’s performance of his or her job duties must be considered and are not, as found by the JCC, irrelevant to the compensability determination.

For instance, in Walker, the claimant accepted a job as a maintenance worker with the employer because he understood that he would be working primarily in air-conditioned buildings and that any outside work would be brief. See 559 So.2d at 259. For two months, the claimant performed maintenance repairs inside the air-conditioned buildings. Id. However, prior to his heart attack, the claimant had been required to perform additional outside work, including pulling up and hauling fence posts from around a retention pond. Id. On the day of his heart attack, which was a warm, humid day, the claimant was assigned to haul and lay sod in the direct sunlight. Id. The claimant’s supervisor testified that the normal outdoor work for maintenance workers was to do some erosion work, sodding, and sweeping the carports. Id. In noting that the usual standard of review in workers’ compensation cases is whether competent, substantial evidence supports the ruling, we found that the JCC applied the wrong legal standard because he essentially based his finding that the activity the claimant was engaged in at the time of his heart attack was “routine to his job on the ground that claimant was hired as a maintenance assistant whose official job duties included ground care.” Id. at 261. As we explained, the official job description was not determinative of what was routine. Id. In other words, if a claimant spends most of his time doing maintenance work on the inside of buildings and only on occasion engages in outdoor activity, that outdoor activity is not routine to the job the claimant is accustomed to performing. Id. As a result, we reversed and remanded for the JCC to apply the correct legal standard. Id. at 262.

Similarly, in Coker, the claimant, who was employed as a dragline oiler for approximately five years before his heart attack, was responsible for maintaining the machine, keeping it greased and clean, and assisting in moving the dragline. See 564 So.2d at 255. On a normal day, the claimant would spend no more than five or ten minutes picking up cable for a move. Id. While a regular move was between four and five steps, a longer move was only required when the dragline was moved to a new job site area. Id. The crane and dragline that the claimant had been working on had been in the same area for three to three and one-half years. Id. Longer moves did not occur more frequently than once a year. Id. Prior to his heart attack, the claimant was involved in moving the dragline to a new site, which was scheduled to take four days. Id. On the day of the planned move, there were brake problems with the dragline, which made the claimant’s job “ TO times harder’ ” because he had to keep the cable pulled back so that the crane would not come down. Id. The claimant testified that the move was much more difficult than a normal day because of the machine sliding, the brake problems, and because of the length of the move. Id. It was also more difficult because the temperature was eighty-five to ninety-five degrees, and the move was being made through a sand bed. Id. In affirming the JCC’s finding of compensa-bility, we noted that it was clear from the evidence that the extent of the claimant’s activity was significantly greater than usual and not routine to the job that the claimant was accustomed to performing. Id. at 256. We also noted that the brake problems that were encountered further removed the activity on those days from what was considered to be routine. Id.; see also Silvera v. Miami Wholesale Grocery, Inc., 400 So.2d 439, 440-41 (Fla.1981) (finding that the record indicated that the loading activity preceding the claimant’s heart attack was unusual to his performance and noting that the claimant, whose customary work was as a sales representative, spent several hours prior to his heart attack loading cases of beer and liquor onto a ship); Watman v. Metro. Dade County, 228 So.2d 908, 908-09 (Fla.1969) (affirming the award under the Victor Wine test and noting that the claimant, a heavy equipment operator who testified that he only used the shovel attached to his grader maybe once a year, suffered a heart attack after digging and chopping weeds when his grader ran into a concrete spillway); Hastings v. City of Fort Lauderdale Fire Dep’t, 178 So.2d 106, 109-10 (Fla.1965) (reversing the Industrial Commission’s reversal of the deputy’s finding that the claimant’s heart attack was com-pensable, noting that the testimony disclosed that the claimant’s regular duties on his twenty-four hour stint as an engineer/driver included cleaning and sweeping the fire station, preparing meals, cleaning and polishing the fire truck, and making sure the truck was always in good running condition, and noting that the claimant had the heart attack while engaged in a large fire drill, which, while normally a monthly event, did not take place every month); Yates v. Gabrio Elec. Co., 167 So.2d 565, 567 (Fla.1964) (concluding that the claimant’s heart attack was compensable given the testimony that ninety percent of the claimant’s time was devoted to relatively light work and that only ten percent was devoted intermittently to what could be described as heavy work, such as bending conduits and operating the ditch digger, and given the testimony that the lifting and loading of heavy concrete blocks was not routine to the type of work the claimant generally performed); Wiggs Constr. v. Knowles, 497 So.2d 942, 943 (Fla. 1st DCA 1986) (noting that the claimant, a carpenter who worked for the employer for one day prior to his heart attack and whose job with the employer was “do it all” carpentry that included rough carpentry normally assigned to younger carpenters, hoisted four-by-eight plywood sheets weighing seventy-five pounds from the ground to the roof of a two-story building alone prior to his heart attack, noting that such a job normally required two men, and affirming the JCC’s order finding the claimant’s heart attack compensable given that the excessive heat and humidity, combined with the claimant’s act of hoisting the plywood alone, constituted an identifiable exertion not routine to the general carpentry job for which the claimant was hired); McCall, 408 So.2d at 791 (finding a lack of competent, substantial evidence to support the deputy’s finding that the claimant did not perform an unusual, non-routine exertion and noting that the claimant, whose job was primarily supervisory in nature, testified that he had never strained himself so hard on the job and possibly had never strained himself so hard in any context as when he attempted to jerk an outrigger bolt free).

As we explained in Walker, if a claimant spends most of his or her time doing maintenance work inside air-conditioned buildings and only on occasion engages in outdoor activity, the outdoor activity is not routine to the job the claimant is accustomed to performing. See 559 So.2d at 261. The same logic underlying our Walker opinion applies to the facts of this case. While claimant conceded that the functions he performed on the day of his heart attack were functions he had performed in the past, he also testified that EMS would only request his help twice a year following an accident. The employer’s president and general manager similarly testified that although crashes regularly occurred, extrications only occurred a couple of times per year. Thus, contrary to the JCC’s findings, it cannot be said that claimant was performing a routine job duty when he assisted in extricating the driver from his vehicle. While claimant’s job duties may include aiding in the extrication of a driver when necessary, an employee’s official job duties do not determine what is routine for that employee. See id.

The facts of this case can also be analogized to the facts in Coker. Like the claimant in that case who suffered a heart attack while engaging in a longer move of a dragline that was made more difficult because of the machine sliding, the brake problems, and the length of the move, here, claimant testified that the extrication was the longest and most extreme accident he had been involved with while working for the employer. This testimony was corroborated by claimant’s co-worker and the raceway’s president and general manager, who testified that the driver’s injuries were more extreme than usual. While the E/C relies on claimant’s testimony that he had previously handled accidents similar to the one at issue, those accidents, according to claimant, occurred while he was employed with other race series. The type of work a claimant has been accustomed to performing in previous jobs, whether for the same employer or for a different employer, is irrelevant when applying the Victor Wine test. See Batson Cook Co. v. Thomas, 635 So.2d 991, 993 (Fla. 1st DCA 1994) (noting that it was undisputed that the claimant had not worked for the employer continuously since 1989 and that the job he had when he continued with the employer in 1991 was different from the one he had previously held with the employer and reversing the JCC’s finding of no compensability). Like the heavy equipment operator in Warman who suffered a heart attack after digging and chopping weeds, which was only necessary maybe once a year, the engineer/driver in Hastings who suffered a heart attack while engaged in a large fire drill, which happened approximately once a month, and the electrician in Yates who suffered a heart attack while engaged in heavy work, which consumed only ten percent of the claimant’s time, claimant only assisted the EMS workers approximately twice a year and was involved in extrications “[pjroba-bly a couple times a year.” Thus, such duties were not routine to claimant’s job as a fire protection team member. Had claimant suffered a heart attack while sitting in his truck awaiting an accident to occur, a task which, according to the evidence, was routine to claimant’s job, the JCC’s ruling would be correct. However, given the facts of this case, the JCC’s finding that claimant’s heart attack is not compensable is not supported by competent, substantial evidence. Accordingly, we REVERSE the JCC’s order and REMAND with instructions that the JCC address the issue of medical causation. See § 440.02(35), Fla. Stat. (2002) (providing that an accidental injury or death arises out of employment if work performed in the course and scope of employment is the major contributing cause of the injury or death).

BROWNING and POLSTON, JJ„ concur.

      . Dr. Sayad, a cardiologist, testified that claimant was found to have been suffering from significant heart disease. When asked his opinion as to what caused the heart attack, Dr. Sayad replied, “Well, again, as I stated before, the stress, the physical stress and the mental stress he was going through could have triggered the heart attack....” Dr. Johnson, also a cardiologist, acknowledged during his deposition that the workplace activity, i.e., the extrication of the driver, was the major contributing cause of the aggravation of claimant’s underlying condition.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Jeffrey PASSALINO, Appellant, v. PROTECTIVE GROUP SECURITIES, INC., Steven Grau and Stephen Molinari, Appellees.
    No. 4D03-4477.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.

      Daniel E. Oates and Andrew J. Daire of Daniel E. Oates, P.A., Pompano Beach, for appellant.
    Joan M. Levit of Akerman Senterfitt, Fort Lauderdale, for appellee.
   WARNER, J.

The issue presented in this appeal is whether proceeds from the sale of property held as a tenancy by the entireties retain their character as entireties property when deposited in an attorney’s trust account. We hold that the proceeds do remain entireties property and affirm the judgment of the trial court dissolving a writ of garnishment against the trust account by a creditor of one spouse.

Appellee, Stephen Molinari, was a judgment debtor of appellant, Jeffrey Passali-no. Mrs. Molinari was not a debtor of Passalino. Mr. and Mrs. Molinari sold property held as a tenancy by the entire-ties. The proceeds of the sale were deposited in a trust account held by their attorney. They were not co-mingled with other client’s funds. The Molinaris intended to use them to purchase a home, although their first contract for purchase fell through. During the five months that the proceeds were in trust, the attorney, at the direction of the Molinaris, disbursed some of the monies into the Molinaris’ personal bank account for their living expenses. The remainder amount of approximately $400,000 was intended as the deposit on the second contract for purchase of a home, which was signed October 10, 2003, and scheduled to close by October 22, 2003. In between that time, Passalino filed a writ of garnishment against the attorney’s trust account, which the trial court ultimately dissolved because it found the proceeds were held as a tenancy by the entireties.

Passalino argues that after the transfer of the proceeds of the sale to the trust account, the property no longer had the six unities necessary for it to constitute a tenancy by the entireties, which are

(1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names).

Beal Bank, SSB v. Almand & Assoc., 780 So.2d 45, 52 (Fla.2001) (citations omitted, footnote omitted). He specifically claims that the transfer of the funds to the trust account destroyed the unities of possession and title because the attorney was in possession of the funds and was the only person with authority to sign on the account.

The proceeds from the sale or rental of tenancy by the entireties property are also held as a tenancy by the entireties and are owned in total by both the husband and the wife. Dodson v. Nat’l Title Ins. Co., 159 Fla. 371, 31 So.2d 402, 404 (1947); Miller v. Rosenthal, 510 So.2d 1127, 1128 (Fla. 2d DCA 1987); Brown v. Hanger, 368 So.2d 63, 64 (Fla. 3d DCA 1979); Sheldon v. Waters, 168 F.2d 483, 485 (5th Cir.1948). Here, there is no dispute that the Molinaris owned the rental property as a tenancy by the entireties and the proceeds from the sale retained that character. The issue is whether this character was lost when the Molinaris deposited the proceeds into their attorney’s trust account.

A tenancy by the entireties can be terminated by the divorce of the owners, the death of one of the owners, or an agreement between the owners. Sheldon, 168 F.2d at 485. “[Wjithout an agreement neither alone can [do] anything to alter the tenancy of identifiable property so held.” Id. The agreement need not be explicit; it can be inferred from the conduct of the parties. See id. at 485-86.

Transferring the proceeds of the sale of entireties property to a trustee for the benefit of the husband and wife does not terminate the unities of title or possession, where the parties clearly intended their property to be held as a tenancy by the entireties by exercising beneficial ownership of the property and controlling the property’s disposition. See Snyder v. Dinardo, 700 So.2d 726 (Fla. 2d DCA 1997) (finding escrow agreement between husband and wife and their attorney for the proceeds of sale of entireties property clearly established the intent to create an entireties estate even though the escrow agent was given sole signatory authority over account); see also In re Nagel, 298 B.R. 582, 588 (Bankr.E.D.Va.2003) (stating that under Virginia law, which is similar to Florida law, “[t]he proceeds, which the settlement attorney retained and continues to hold, are held — automatically—as tenants by the entirety ... until the parties jointly agree to the contrary.”)

Passalino cites a footnote in Rollins v. Alvarez, 792 So.2d 695 (Fla. 5th DCA 2001), as support for his position. In Rollins, a husband and wife funded an inter vivos trust with marital property. The wife transferred her interest in the property to the trust, under which her husband had sole control over the funds and had authority to amend, modify, or revoke the trust. The husband executed amendments changing the beneficiaries. These were challenged, and the trial court’s ruling on the validity of the amendments was appealed. Although not in issue, in a footnote the district court stated, “There is no dispute that the effect of this transfer to the trustee destroyed any tenancy by the entireties that may have existed in the property pre-transfer. See Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941); 12 Fla. Jur.2d Cotenancy and Partition § 29 (1998).” 792 So.2d at 696 n. 2.

Appellant suggests that Rollins stands for the proposition that a transfer to a trustee of entireties property in and of itself terminates the entireties. We disagree with his interpretation. Rollins’s citation to Hunt is instructive. In Hunt, a husband’s conveyance of entireties property to his wife terminated his interest in the property and, thus, the entireties character of the property. 200 So. at 77-78. Likewise, in Rollins the wife’s transfer of marital property to the trust in which her husband maintained sole control and could direct the disposition of property terminated the entireties character of property. In other words, the unities of possession and interest were terminated, because the wife no longer exercised control over the property.

The evidence in this case established that Mr. and Mrs. Molinari did not intend to terminate the tenancy by the entireties when they deposited the proceeds of the sale from their entireties property in the trust account. The money was held for their use and benefit, and only they could direct its disposition. While the evidence indicated that either Mr. or Mrs. Molinari could order disbursements, this does not defeat the characterization of the trust funds as property held as a tenancy by the entireties. See Beal Bank, 780 So.2d at 56 (finding that the unilateral alienation by one spouse of money in a bank account does not demonstrate that the account is not held as a tenancy by the entireties where “there is evidence that each spouse had permission to act for the other”). Furthermore, the fact that the Molinaris withdrew funds from the account in order to pay living expenses rather than for the purchase of a new home does not alter the character of the property. There is no restriction on how a couple may spend the proceeds from the sale of entireties property as long as both spouses are in agreement. See Oliver v. Givens, 204 Va. 123, 129 S.E.2d 661, 664 (1963) (noting that “creditors are not prejudiced by a gift of property which is exempt from them claims”).

As the unities of title and possession were not destroyed in the sale proceeds deposited in the attorney’s trust account, the proceeds maintain their character as a tenancy by entireties. Thus, the trial court correctly dissolved the writ of garnishment. We also find no abuse of discretion in the remaining issue raised by Passalino as to the timing of the hearing on the motion to dissolve.

Affirmed.

SHAHOOD and MAY, JJ„ concur.


author: HAZOURI, J.

text:
    Theresa CURTIN and Raymond Curtin, her husband, Appellants, v. Helena A. DELUCA, D.M.D. and Helena A. Deluca, D.M.D., P.A., a Florida professional association, Appellees.
    No. 4D03-2744.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.

      Sharon M. Sabel, Fort Lauderdale, for appellants.
    Susan S. Oosting, Gary Shendell and Andrew Márchese of Marshall, Dennehey, Warner, Coleman & Goggin, Fort Lauder-dale, for appellees.
   HAZOURI, J.

Theresa and Raymond Curtin (Plaintiffs) filed suit against Helena A. Deluca, D.M.D. and Helena A. Deluca, D.M.D., P.A., a Florida professional association (Defendants) alleging negligence. Defendants denied the allegations and the case proceeded through discovery. In February 2003, Defendants filed a Motion to Dismiss for Lack of Prosecution. The trial court granted the motion and dismissed the case. A Final Judgment was entered in favor of Defendants. Plaintiffs appeal the Final Judgment. We reverse.

In September 1998, Plaintiffs filed a First Amended Complaint against Defendants. Deluca is a dentist who treated Theresa Curtin from February 2, 1992 through April 8, 1997. The Complaint alleged that Deluca was negligent in her care and treatment of Theresa.

Defendants responded to the First Amended Complaint by filing an Answer and Affirmative Defenses. The case actively proceeded with discovery through 2001. During 2002, only two filings were made. On January 25, 2002, Plaintiffs filed a Notice of Service of Answers to Defendants’ Expert Witness Interrogatories.

On February 14, 2003, Defendants filed a Motion to Dismiss for Lack of Prosecution. Defendants alleged that the last record activity designed to move the case forward to a conclusion was on January 25, 2002. Therefore, Defendants argued that the case should be dismissed for lack of prosecution pursuant to Florida Rule of Civil Procedure 1.420(e). On February 20, 2003. Defendants filed a Notice of Hearing setting the Motion for hearing on February 27th.

In response to the Motion to Dismiss, Plaintiffs filed two Affidavits in opposition. The Affidavits were from: 1) Plaintiffs’ attorney Sharon Sabel; and 2) Sabel’s assistant Patricia Thaler. The affidavits state that in January 2003, Sabel prepared a Request for Admissions (Request) directed to Defendants. She delivered the Request to the courthouse on January 24, 2003 and mailed a copy to Karen Cohen (Defendants’ lawyer) on that same day.

At the hearing on the Motion to Dismiss, the Defendants acknowledged receiving a copy of the Request but argued that the case should be dismissed because the last record action taken by the Plaintiffs which was designed to move the case forward was on January 25, 2002, more than a year before Defendants filed their Motion to Dismiss. With respect to the Request, Defendants argued that it did not constitute “record activity” because: 1) the Request was never filed with the trial court; and 2) the Request was initiated solely to create record activity and did not ask any meaningful questions designed to move the case forward where the information sought in the Request was previously covered in depositions.

Plaintiffs’ counsel asserted that she had hand-delivered the Request to the court and could not explain why it was never filed and that the Request established good cause as to why the case should not be dismissed.

The trial court found that there was no activity on the face of the record for a one year period as required by Florida Rule of Civil Procedure 1.420(e) and that the Plaintiffs had failed to sustain their burden of establishing any non-record activity that was done in good faith and designed to move the case forward.

A Motion to Dismiss for Lack of Prosecution is governed by Florida Rule of Civil Procedure 1.420(e), which states as follows:

All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.

Under this rule, there is a two-step process. First, the defendant is required to show there has been no record activity for the year preceding the motion. Second, if there has been no record activity, the plaintiff has an opportunity to establish good cause why the action should not be dismissed. See Del Duca v. Anthony, 587 So.2d 1306, 1308-09 (Fla.1991). The plaintiff has the burden of demonstrating that one of the bases that would preclude dismissal exists. See Metro. Dade County v. Hall, 784 So.2d 1087, 1090 (Fla.2001). Dismissal is mandatory if it is demonstrated that no action toward prosecution has been taken within a year. The trial judge has no discretion in the enforcement of this aspect of the rule. The abuse of discretion standard is triggered only if the trial court must make a determination of good cause. Id. at 1090 n. 4.

The question that must be resolved is whether the Request, which for some unexplained reason is not reflected as record activity in the court file, is non-record activity that constitutes good cause to avoid dismissal. We answer the question in the affirmative.

The supreme court held in Hall that non-record discovery activity can constitute good cause if it is made in good faith to move the case forward. In Hall, there had been no record activity within one year of the filing of a motion to dismiss pursuant to rule 1.420(e). However, within the one year period depositions had been taken and the plaintiff had made an offer of judgment. The court stated:

We hold that, within the meaning of rule 1.420(e), depositions taken and offers of judgment made in accordance with the Florida Rules of Civil Procedure are good cause to avoid dismissal if the depositions and offers are taken and made in good faith to move the case forward to a conclusion.

Id. at 1091.

We find that the trial court abused its discretion. The Request served by the Plaintiffs was sufficient to preclude dismissal because it focused on genuine issues in the case which had been disputed in the pleadings. See Malka v. Lawrence, 690 So.2d 649 (Fla. 3d DCA 1997). Defendants assert that much of the information requested in the Request had previously been obtained through deposition and, therefore, was not calculated to move the case forward. However, Defendants ignore the fact that requests for admissions can serve very useful purposes at trial. There are valid tactical reasons for obtaining information for use at trial through a request for admissions as opposed to the introduction of deposition testimony. Even if the information sought in the request for admissions is also disclosed in a deposition, a party may wish to introduce the answers on specific issues without the use of a deposition in order to avoid the introduction of any part or all of the deposition by the opposing party. The availability of one method of discovery does not preclude the use of another tool for discovery.

We find that the Plaintiffs established good cause for the lack of record activity which was calculated to move the case forward. We therefore reverse and direct the trial court to vacate the Final Judgment in favor of the Defendants and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED WITH DIRECTIONS.

STEVENSON and GROSS, JJ„ concur.

      . Fla. R. Civ. P. 1.330(a)(4) states, "If only part of a deposition is offered in evidence by a party, an adverse party may require the party to introduce any other part that in fairness ought to be considered with the part introduced, and any party may introduce any other parts.”


author: PER CURIAM.

text:
    Christopher CREED, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1473.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Christopher Creed, was convicted of trafficking in cocaine with possession of a firearm, aggravated assault with possession of a firearm and fleeing a police officer. He appeals these convictions raising seven issues. We affirm as to six of these points without discussion. We reverse appellant’s conviction of fleeing a police officer and find that the trial court erred in not granting appellant’s motion for judgment of acquittal.

Appellant and undercover police arranged a transaction in which the police would sell cocaine to appellant. Upon meeting in appellant’s car, appellant proceeded to point a gun at the officer and when the officer jumped out of the car, appellant drove away. He was chased by two vehicles driven by the police but neither had any police insignia, flashing lights, or sirens. Although the police in one of the cars were wearing identifiable police gear, there was no testimony that appellant saw or could see them while he was fleeing. There was testimony that after the cars stopped and appellant jumped out to run away, the police exited their vehicles and both yelled that they were police and could be seen wearing their police gear.

Appellant was charged with fleeing or attempting to elude a law enforcement officer under section 316.1935(1), Florida Statutes (2001), which provides:

(1) It is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance with such order, willfully to flee in an attempt to elude the officer, and a person who violates this subsection commits a misdemeanor of the first degree....

Appellant argues that since this statute applies to persons who flee in vehicles, not on foot, and appellant did not know that it was the police chasing him while he was operating his vehicle, he was without the requisite knowledge to be found guilty of this charge. The state argues that appellant could see the officers’ uniforms after he stopped his car and got out.

Under the evidence as presented by the state, when appellant was operating his vehicle, although duly authorized law enforcement officers were following him, none of them ordered him to stop. Even if they had yelled at him to stop, he had to know he had been directed to stop the vehicle by a duly authorized law enforcement officer. The evidence showed that appellant did not know they were police until after the vehicle was stopped and he was running away.

We find that the trial court should have granted appellant’s motion for judgment of acquittal on this charge and reverse the conviction. We affirm all other convictions.

AFFIRMED in part; REVERSED in part.

GROSS, TAYLOR and HAZOURI, JJ., concur.


author: WELLS, Judge.

text:
    MIAMI-DADE COUNTY, Appellant, v. Julio ARAVENA, the husband and as Personal Representative of the Estate of Gregorio Vega, deceased, Appellee.
    No. 3D03-2482.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Robert A. Ginsburg, Miami-Dade County Attorney, and Jeffrey P. Ehrlich, Assistant County Attorney, for appellant.
    Feiler, Leach & McCarron and Martin E. Leach, Coral Gables, for appellee.

      Before SCHWARTZ, C.J., and LEVY, and WELLS, JJ.
   WELLS, Judge.

Miami-Dade County appeals from an order denying its motion for judgment notwithstanding the verdict, claiming that this wrongful death action is barred by workers’ compensation immunity. Because we agree that the “unrelated works” exception to workers’ compensation immunity does not apply to this case, we reverse.

The decedent, Gregoria Vega, was employed by the County’s police department as a part-time school crossing guard at the intersection of Southwest 16th Street and 62nd Avenue. On October 24, 2001, two vehicles — one traveling northbound, the other eastbound — collided in the intersection. One of the vehicles veered off the road killing Vega. At the time of the accident, the traffic lights at the intersection were not operating properly.

Julio Aravena, Vega’s husband, subsequently brought a wrongful death suit alleging that Vega’s death was caused, in part, by the negligence of County traffic signal repair personnel who failed to timely repair the malfunctioning traffic light. The County sought to avoid liability claiming that Aravena’s action was barred by that portion of Florida’s Workers’ Compensation Law which accords tort immunity to employers and co-employees “acting in furtherance of the employer’s business.” § 440.11(1), Fla. Stat. (2001). The trial court disagreed with the County, finding that Aravena’s claim fell within the “unrelated works” exception to the co-workers’ immunity provision. Id. (stating that coworker immunity is not “applicable to employees of the same employer when each is operating in furtherance of the employer’s business but they are assigned primarily to unrelated works”). We disagree.

In Taylor v. Sch. Bd. of Brevard County, 888 So.2d 1, 3, 2004 WL 1846219 (Fla. Aug. 19, 2004), the Florida Supreme Court concluded that the “unrelated works” exception to workers’ compensation immunity was to be interpreted narrowly and “applied only when it can clearly be demonstrated that a fellow employee whose actions caused the injury was engaged in works unrelated to the duties of the injured employee.” Applying this principle and test to the facts therein, the Supreme Court found that the duties of a school bus attendant — who was injured when the wheelchair lift affixed to a school bus fell on him — were related to the duties of the school bus mechanic who maintained the bus because the attendant and the mechanic “had in common the provision of transportation services to Brevard County school children.” Id. In reaching this decision, the Supreme Court approved the Fifth District Court of Appeal’s determination that the co-employees were involved in the “same project,” finding that the holding “comport[ed] with the overall legislative intent of the Florida Workers’ Compensation Law, because the law was meant to systematically resolve nearly every workplace injury case on behalf of both the employee and the employer.” Id.; see also Sanchez v. Dade County Sch. Bd., 784 So.2d 1172, 1173 (Fla. 3d DCA 2001), review granted, 819 So.2d 139 (Fla. 2002) (finding no exception from co-worker immunity for school security personnel who failed to protect a school teacher from a trespasser assault in the teachers’ parking lot because the teacher and security personnel were collectively engaged in “activities primarily related to the provision of education related services”); Dade County Sch. Bd. v. Laing, 731 So.2d 19, 20 (Fla. 3d DCA 1999) (finding no exception from co-worker immunity for a custodian who struck a teacher leaving a classroom with a golf cart because the teacher and custodian “were both working on the same project, in the sense that they were co-employees providing education related services to students at Hialeah High School”); Johnson v. Comet Steel Erection, Inc., 435 So.2d 908, 909 (Fla. 3d DCA 1983) (finding no exception from co-worker immunity because “the fact that appellant was a common laborer for the general contractor and the tortfeasor was a welder for the subcontractor did not make their work ‘unrelated’ ”); accord Fitzgerald v. South Broward Hosp. Dist., 840 So.2d 460, 464 (Fla. 4th DCA 2003) (finding no exception from co-worker immunity for maintenance personnel whose negligence allegedly resulted in a bathroom stall door falling on a nurse because “both [the nurse and maintenance personnel] performed services relating to the hospital’s mission, which was the treatment of patients”); compare Palm Beach County v. Kelly, 810 So.2d 560, 562 (Fla. 4th DCA 2002) (applying the unrelated works exception where a county employee, who primarily maintained and repaired excavation equipment at a rock pit, had an automobile accident with another county employee, who swept and mowed airport grounds, because these co-employees “had different job duties and did not work cooperatively as a team but, rather, worked on two entirely different projects”).

In the instant case, it cannot be said that these co-employees worked on entirely different projects. Nor can it be clearly demonstrated that the work of the County’s traffic signal repair personnel, whose job was to regulate vehicular and pedestrian traffic, was unrelated to the work of the school crossing guard, whose job also was to regulate vehicular and pedestrian traffic at the same intersection. To hold otherwise would contravene the overall legislative intent of the workers’ compensation law, which “was meant to systematically resolve nearly every workplace injury case on behalf of both the employee and the employer.” Taylor, 888 So.2d at 4.

Accordingly, we reverse the trial court’s denial of the motion for judgment notwithstanding the verdict and remand for entry of judgment for the County based on workers’ compensation immunity.


author: STEVENSON, J.

text:
    Karan WEISSBERG and Marty Weissberg, her husband, Appellants, v. ALBERTSON’S INC., Appellee.
    No. 4D04-84.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.

      Robert Garven, Coral Springs, and Charles A. Mancuso of Thomas & Pearl, P.A., Fort Lauderdale, for appellants.
    Andrea L. Kessler and Wesley L. Catri of Catri, Holton, Kessler & Kessler, P.A., Fort Lauderdale, for appellee.
   STEVENSON, J.

In this appeal, Karan and Marty Weiss-berg challenge the dismissal with prejudice of their negligence action against Albert-son’s Inc. Because the complaint properly alleged at least one cause of action, and could be amended to state a related cause of action, we reverse.

In February of 2003, Karan and Marty Weissberg filed a negligence suit against Albertson’s Inc. The Weissbergs alleged that, on June 1, 2002, Karan was shopping at Albertson’s when she was struck by a “powerized” shopping cart that had been provided by Albertson’s. Albertson’s filed a motion to dismiss for failure to state a cause of action, arguing that, in essence, the Weissbergs were seeking to hold it liable for a fellow shopper’s negligent operation of the cart under the dangerous instrumentality doctrine and, by statute, such a shopping cart is not a dangerous instrumentality. The trial court granted the motion to dismiss and afforded the Weissbergs the opportunity to amend.

The amended complaint contained the following allegations of negligence:

7. ... Plaintiff, KAR[A]N WEISS-BERG, was standing and/or walking on the floor of said premises in an area open to use for customers, when she was struck by a powerized shopping cart, a Mart Cart, ... which was operated by an unnamed patron of Defendant.
8. Defendant was on actual notice of the injury and/or accident causing propensities of the Mart Cart as a result of the failure to comply with manufacturer’s operating instructions.
9. Defendant, ALBERTSON’S was negligent, including but not limited to, negligently allowing a patron of Defendant to operate a powerized shopping cart without taking any precautions to determine if the patron of Defendant was trained in the operation of a power-ized shopping cart, pursuant to the manufacturer’s instructions, or able to operate this powerized shopping cart in a safe and cautious manner, pursuant to the manufacturer’s instructions.
10. Defendant, ALBERTSON’S, failed to provide safety warning devices, provided by the manufacturer, for the Mart Cart in question including safety flags and/or flashing safety lights.
11. The negligence of the Defendant, ALBERTSON’S, created a casual [sic] relationship between the actions of its unnamed customer, and the injuries and damages sustained by Plaintiff, KARAN WEISSBERG.

Again, Albertson’s sought dismissal, raising the same arguments that resulted in dismissal of the original complaint. This time, the trial court dismissed the complaint with prejudice and final judgment was entered in favor of Albertson’s. The trial court’s ruling is subject to de novo review. See Atkins v. Topp Telecom, Inc., 873 So.2d 397, 398 (Fla. 4th DCA 2004).

Florida’s dangerous instrumentality doctrine is a means by which to hold the owner of a motor vehicle vicariously liable for the negligence of the individual to whom the owner entrusted the vehicle. See Toombs v. Alamo Rentr-A-Car, Inc., 833 So.2d 109, 110 n. 2 (Fla.2002). Moreover, as Albertson’s has pointed out, section 768.093(2), Florida Statutes (2002), provides that a powered shopping cart is not, under certain defined circumstances, a dangerous instrumentality. The doctrine and the statute, however, are dispositive only of any attempt by the Weissbergs to hold Albertson’s responsible for the negligence of the cart’s operator.

First, the allegations of paragraph 9 of the amended complaint suggest that the Weissbergs are attempting to hold Al-bertson’s responsible not for the negligence of the cart’s operator, but for its own negligence in entrusting the cart. Admittedly, though, the amended complaint lacks necessary factual allegations regarding the precise nature or manner of Albertson’s negligence in providing or entrusting the cart to the unnamed patron. Nonetheless, since Florida plainly recognizes a cause of action for negligent en-trustment, see, e.g., Kitchen v. K-Mart Corp., 697 So.2d 1200, 1202 (Fla.1997), we find that such a theory/claim should not have. been dismissed with prejudice and that the Weissbergs should be afforded an opportunity to amend. See Creios v. Ellis, 531 So.2d 1372 (Fla. 1st DCA 1988) (recognizing that dismissal with prejudice is appropriate only where the amendment process has been abused or it is clear that the deficiencies cannot be cured).

Second, the allegations of paragraph 10 of the amended complaint seek to hold Albertson’s liable not for the negligence of the cart’s operator, but for its own negligence under a premises liability theory. Such allegations adequately state a cause of action and should not have been dismissed.

Accordingly, we reverse the final judgment entered in favor of Albertson’s. On remand, the Weissbergs’ premises liability theory/claim should be reinstated and the Weissbergs afforded an opportunity to amend the allegations of their negligent entrustment theory/claim.

REVERSED and REMANDED.

GROSS and HAZOURI, JJ., concur.


text:
    Wayne BELLETETE, Appellant, v. Gloria HALFORD, Appellee.
    No. 4D03-4150.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Edward F. Holodak of Edward F. Holo-dak, P.A., Hollywood, for appellant.
    Linda L. Houghtaling of Linda Lee Houghtaling, P.A., Miami, for appellee.
   PER CURIAM.

Wayne Belletete sued his former landlady, Gloria Halford, for discrimination under the Florida Civil Rights Act (FCRA), the Florida Fair Housing Act (FHA), and Florida Statutes section 760.50, in addition to alleging negligent infliction of emotional distress. Halford moved for summary judgment, which the trial court granted on all counts. Belletete appeals on two grounds. Because we agree with Bellet-ete’s argument that legal action against a tenant is not required as a prerequisite to a discrimination claim under Florida Statutes section 760.50, we reverse. We affirm in all other respects. It should be noted that Belletete does not raise an issue regarding the negligent infliction of emotional distress count, and as a result, the summary judgment will be affirmed as to this count without discussion.

Halford owns a multi-family dwelling at 1735 Jefferson Street in Hollywood, at which Belletete was a tenant. Belletete was required to share a bathroom and other common areas with two other tenants. Belletete told one of the tenants of his HIV-positive status, and the tenant contacted Halford and explained that he refused to share rooms with Belletete. Halford then asked Belletete to vacate the premises, which he did.

Belletete returned to the premises the following day and requested that Halford write a letter explaining that he was evicted and was HIV-positive so that he could secure charitable assistance. Halford provided him with the following letter:

Wayne Belletete has been evicted from premises at 1735 Jefferson St. Hwd. because he has to share the bathroom with another person, and this is not advisable because of the conditions of health that Wayne carries (HIV-positive).

Belletete filed suit against Halford. Count I of the complaint alleged a violation of the Florida Civil Rights Act based on Florida Statutes sections 760.35 and 760.50. Count II alleged rental discrimination under Florida Statutes sections 760.23 and 760.35. Finally, Count III alleged negligent infliction of emotional distress. The letter written by Halford was attached to the complaint as an exhibit.

Following discovery, Halford filed a motion for summary judgment. The trial court conducted a hearing and granted the motion, finding that Halford requested that Belletete leave the premises but undertook no legal action, such as eviction, to interfere with his tenancy. The trial court erred by ruling that Halford was required to undertake legal action in order for Bel-letete to raise the discrimination claims.

Belletete asserts that summary judgment should not have been granted to Halford because legal action against a tenant is not a prerequisite to a claim of discrimination under the FCRA and FHA.

The standard of review applicable to a motion for summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla.2000); 5th Ave. Real Estate Dev., Inc. v. Aeacus Real Estate Ltd. P’ship, 876 So.2d 1220, 1220 (Fla. 4th DCA 2004). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Aberdeen, 760 So.2d at 130; see also Cheeks v. Dorsey, 846 So.2d 1169, 1171 (Fla. 4th DCA 2003) (“Summary judgment should not be granted if there are genuine issues of material fact.”).

We first address Count I of Bel-letete’s complaint. In this count, Belletete seeks relief under the FCRA, citing sections 760.35 and 760.50. However, neither of these sections is part of the FCRA; section 760.35 is included in the FHA and section 760.50 is included under Miscellaneous Provisions. As such, the trial court did not err in granting summary judgment to the extent that the count failed to state a legal basis for relief under the FCRA.

Florida Statutes section 760.50(4)(a) provides:

A person may not discriminate against an otherwise qualified individual in housing, public accommodations, or governmental services on the basis of the fact that such individual is, or is regarded as being, inflicted with human immunodeficiency virus.

Where an individual believes himself to be aggrieved under this provision, a “right of action in the circuit court” is provided in section 760.50(6). These provisions do not include any language indicating that prospective tenants, but not existing tenants, are covered by its protections, nor do these provisions indicate that any specific conduct, such as eviction, is a prerequisite to bringing a cause of action for discrimination under section 760.50 in circuit court. As a result, the trial court erred by concluding that summary judgment should be granted on Count I to the extent it raises a claim under section 760.50 because such a cause required that Halford take action to interfere with Belletete’s tenancy. Legal action is simply not the sine qua non of discrimination under section 760.50. Therefore, the summary judgment should be reversed and remanded on this ground for further proceedings to determine whether what transpired between Halford and Belletete was discrimination under section 760.50.

We next address Count II, and the remaining portion of Count I, which deal with the FHA, including section 760.35. Section 760.23 provides:

It is unlawful to refuse to sell or rent after the making of a bona fide offer, to refuse to negotiate for sale or rental of, or otherwise to make unavailable or deny a dwelling to any person because of race, color, national origin, sex, handicap, familial status, or religion.

HIV-positive status is defined as a handicap by section 760.50(2). Enforcement of this provision falls to the Commission on Human Relations and “[a]ny person who claims to have been injured by a discriminatory housing practice or who believes that he or she will be injured by a discriminatory housing practice that is about to occur may file a complaint with the commission.” § 760.34(1), Fla. Stat.

The trial court did not err by granting summary judgment on Belletete’s FHA claims in Counts I and II because the claims were barred by the doctrine of exhaustion of administrative remedies. Sections 760.34 and 760.35 contain much the same language and structure as their counterpart in the FCRA, section 760.11. In the case of section 760.11 the “may file a complaint” language has been interpreted as follows:

Section 760.11 establishes administrative and civil remedies for violations of the Florida Civil Rights Act. Although this statute states that a complaint “may” be filed with the Commission, it is clear that such a complaint must be filed with the Commission or its federal counterpart by anyone who wishes to pursue either a lawsuit or an administrative proceeding under this act.

Ross v. Jim Adams Ford, Inc., 871 So.2d 312, 315 (Fla. 2d DCA 2004). In the case at bar, there is no record evidence that Belletete first filed a complaint based on the FHA with the Commission on Human Relations. Therefore, his FHA claims were barred, and the trial court’s decision to grant summary judgment on Counts I and II as they deal with the FHA is affirmed.

In sum, as to Count I, the summary judgment is affirmed in part, and reversed and remanded in part regarding section 760.50. The summary judgment is affirmed as to Counts II and III.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED for further proceedings consistent with this opinion.

GUNTHER, STONE and TAYLOR, JJ., concur.

      . Had Belletete properly raised any FCRA claims in Count I, they also would have been so barred.


text:
    E.S., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1318.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and WELLS, JJ.
   PER CURIAM.

The appellant, E.S., a juvenile, appeals from his final judgment of conviction and sentence for carrying a concealed weapon, a BB gun, in violation of section 790.01(1), Florida Statutes (2003). We reverse.

E.S. was charged by a petition for delinquency with carrying a concealed weapon. The arresting officer testified that the BB gun he had found on E.S. looked “like a .45 or a semi-auto .45,” and that the gun was “capable of inflicting injury” when operated properly. The officer also testified that he did not find any CO2 cartridges or anything that would fire out of the gun. The BB gun itself was also placed into evidence, which the trial court examined.

The defense moved for a judgment of acquittal arguing that the state had not established that the BB gun was a “deadly weapon,” within the meaning of the statute. The trial court denied the motion, finding that the “deadliness” of the gun was an issue to be resolved by the trier of fact, and that based on the “totality of the circumstances” he found the BB gun in question to be a deadly weapon. E.S. was adjudicated guilty and sentenced to one year probation.

On this appeal, E.S. claims that the evidence was insufficient to establish that the BB gun was a deadly weapon and therefore the trial court erred in denying the motion for judgment of acquittal. We agree.

A “deadly weapon” has generally been defined to be one likely to produce death or great bodily injury. Whether or not the weapon involved is to be classed as “deadly” is a factual question to be resolved by the jury under appropriate instructions.

Dale v. State, 703 So.2d 1045, 1047 (Fla.1997) (citing Goswick v. State, 143 So.2d 817, 820 (Fla.1962), receded from on other grounds, State v. Smith, 240 So.2d 807 (Fla.1970)).

At trial, although the BB gun was introduced into evidence, there was no testimony regarding its operation. The evidence showed that the gun had no cartridge in it and could not discharge pellets. The only evidence regarding the gun’s ability to injure was the police officer’s testimony that the gun was “capable of inflicting injury ... [if] properly operated.” Thus, the evidence taken as a whole, failed to support a factual determination that the BB gun in question was “likely to produce death or great bodily injury.” Dale v. State, 703 So.2d at 1045.

Since the evidence fell short of showing that the BB gun was a “deadly weapon,” the trial court erred in finding E.S. delinquent, and its adjudication and conviction must be vacated.

Reversed, remanded with directions to vacate sentence and conviction.

      . Section 790.01 provides in pertinent part:
      [A] person who carries a concealed weapon or electric weapon or device on or about his or her person commits a misdemeanor of the first degree....
      § 790.01(1), Fla. Stat. (2003). In turn, section 790.001 provides that
      “Weapon'' means any dirk, metallic knuckles, slungshot [sic], billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocket knife.
      § 790.001(13), Fla. Stat. (2003).


author: POLEN, J.

text:
    Mary Lou POWERS, Appellant, v. ABERDEEN GOLF & COUNTRY CLUB, INC., a Florida corporation, d/b/a Aberdeen Country Club and Aberdeen Golf & Country Club, and Shea Homes, Inc., f/k/a UDC Homes, Inc., a Delaware corporation d/b/a Aberdeen Country Club and Aberdeen Golf & Country Club, Appellees.
    No. 4D03-3557.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.

      Michael H. Stauder of Michael H. Stau-der, P.A., North Palm Beach, for appellant.
    James T. Ferrara and Vanessa D. Sloat of Sachs, Sax & Klein, P.A., Boca Raton, for appellees.
   POLEN, J.

This appeal arises from an accident resulting in personal injury to the Appellant, Mary Lou Powers. Powers challenges a final order granting a Motion to Dismiss based upon the statute of limitations in favor of the Appellee, Aberdeen Golf & Country Club (“Aberdeen”). There is also a cross-appeal based on the trial court’s entry of partial summary judgment finding that Aberdeen assumed the liability for Powers’ accident in the purchase agreement with its predecessor in interest, Shea Homes. We reverse and remand for the reasons set forth below.

On March 29, 1996, Powers was attending an event held at the Aberdeen Golf & Country Club when she slipped and fell due to a set of mobile stairs not being properly secured. At the time of the accident, Shea Homes, who was doing business under the name Aberdeen Country Club or Aberdeen Golf & Country Club, owned the premises. Approximately eight months after the accident, Shea Homes transferred ownership of the premises to a separate entity, which happened to be incorporated under the name Aberdeen Golf & Country Club, Inc. Pursuant to the transfer of interest, Aberdeen took the premises on an “as is” basis without any warranties, releasing Shea Homes from all responsibility and liability, expressly assuming the risk of existing or future circumstances, known or unknown.

On March 28, 2000, one day before the statute of limitations expired, Powers filed suit against Aberdeen for negligence, apparently under the presumption that Aberdeen and Shea Homes were one and the same. In the Answer and Affirmative Defenses, Aberdeen advised Powers that Shea Homes, not Aberdeen, was the owner of the premises on the date of the accident. Thereafter, Aberdeen filed a third-party complaint against Shea Homes. On February 14, 2002, Powers filed an Amended Complaint, without explanation for the time delay. Shea Homes filed an Answer and Affirmative Defenses failing, however, to assert the statute of limitations. Aberdeen also filed an Amended Answer and Affirmative Defenses to the Amended Complaint, again failing to assert the statute of limitations in either its defense or Shea Homes’ defense.

Aberdeen moved for summary judgment asserting that it did not assume the liability of Shea Homes regarding the accident in issue. Thereafter, Shea Homes moved to add the additional affirmative defense of the statute of limitations, and by an agreed order the motion was granted. Shea Homes also moved for summary judgment based on the new affirmative defense, which was granted in its favor on January 6, 2003, thus removing Shea Homes from the case. Powers’ motion for rehearing was denied. After hearing argument on Aberdeen’s pending motion for summary judgment, the trial court denied Aberdeen summary judgment and instead awarded Powers summary judgment finding that Aberdeen did assume Shea Homes’ liability. The trial court also heard argument on Aberdeen’s motion to dismiss for failure to join an indispensable party, but at the request of Powers, a continuance was granted before the trial court ruled on the motion.

During the time that Powers was granted a continuance, Shea Homes and Powers were able to reach an agreement that the order granting Shea Homes summary judgment due to the expiration of the statute of limitations should be vacated. The trial court entered the agreed order, as to which Aberdeen claims to have had no advance knowledge. Though Aberdeen challenges the validity of this agreed order, we need not consider this issue as we reverse for other reasons. As such, Aberdeen’s motion to dismiss for failure to join an indispensable party was rendered moot.

Aberdeen next filed a motion for summary judgment asserting the statute of limitations defense, under the position that Aberdeen, which has now been ruled to have assumed Shea Homes’ liability, is standing in the shoes of Shea Homes with respect to affirmative defenses. This was in spite of the fact that Shea Homes was again back in the lawsuit. Aberdeen’s motion was denied. However, on the eve of trial, Aberdeen inquired as to what defenses it would be permitted to raise and the trial court opined that the defenses available to Shea Homes would also be available to Aberdeen. Thereafter, Aberdeen made an ore tenus motion for reconsideration on the trial court’s order denying Aberdeen’s motion to dismiss based on the statute of limitations as applicable to Shea Homes. After hearing argument on this motion, the trial court granted Aberdeen’s motion and dismissed the Amended Complaint with prejudice. Reconsideration of this motion was denied and this timely appeal followed.

Turning first to Aberdeen’s cross-appeal, the trial court erred by granting summary judgment, at that time, for Powers, finding that Aberdeen assumed Shea Homes’ liability due to the ambiguity of the language in the transfer of interest contract. The relevant portion of the contract is found in paragraph 3.4 titled “ ‘As Is’ Sale: Release,” and provides:

Buyer hereby acknowledges and agrees that the Club Facilities are to be transferred to Buyer on an “as is” basis without warranty of any kind whatsoever.... Buyer expressly assumes the risk of existing or future circumstances, known or unknown to it, that may adversely affect its use or operation of the Club Facilities to be transferred by Seller pursuant to this Agreement. Seller is hereby released from all responsibility and liability regarding the Plan, the Club Facilities and any other rights or interests being conveyed to Buyer under and pursuant to this Agreement....

(Emphasis added.) We find the above clause to be ambiguous with respect to exactly what is meant by the term “circumstances.” Such a choice of words is subject to reasonable differences of opinion. As such, the trial court should have heard parol evidence on the matter before issuing a ruling as a matter of law. See Miller v. Kase, 789 So.2d 1095, 1098 (Fla. 4th DCA 2001) (citing Royal Am. Realty, Inc. v. Bank of Palm Beach & Trust Co., 215 So.2d 336, 338 (Fla. 4th DCA 1968) (“In the absence of clear and unambiguous language, the court must engage in judicial interpretation. To that end, the court must attempt to ascertain the intention of the parties and may accept parol evidence, not to vary the terms of the contract but to explain ambiguous terms.”)). We find Aberdeen’s remaining issue on cross-appeal to be unpersuasive. Accordingly, we reverse the trial court’s partial summary judgment and remand for further proceedings.

Turning to Powers’ issues on appeal, if on remand the trial court again rules that Aberdeen assumed Shea Homes’ liability, Aberdeen is barred from asserting a statute of limitations defense. Aberdeen did not assert this affirmative defense in its responsive pleading. Florida Rule of Civil Procedure 1.110(d) specifically requires that the affirmative defense of the statute of limitations shall be asserted in the responsive pleading. “Generally, [affirmative] defenses ... are not properly considered on a motion to dismiss.” U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 861 So.2d 74, 76 (Fla. 4th DCA 2003) (citations omitted). However, “[a]f-firmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b).” Fla. R. Civ. P. 1.110(d).

At the time the accident occurred, Shea Homes was operating under the name Aberdeen. Shea Homes subsequently transferred its interests to another entity also known as Aberdeen. Powers initially filed suit against Aberdeen. When Powers learned of the transfer in interest, she amended her complaint. The confusion of which party was which was arguably a mere misnomer allowing for amendment of the pleadings, possibly to relate back to the time the initial complaint was filed. See Williams v. Palm Beach Cmty. Coll. Found., Inc., 862 So.2d 917 (Fla. 4th DCA 2003); Thomas v. Taylor Creek Marina of Fort Pierce, Inc., 520 So.2d 708 (Fla. 4th DCA 1988). Therefore, because it is not inescapably clear that the statute of limitations issue appears on the face of the Amended Complaint, the dismissal was in error. See Jelenc v. Draper, 678 So.2d 917, 919 (Fla. 5th DCA 1996).

Consequently, the trial court’s partial summary judgment holding Aberdeen responsible for Shea Homes’ liabilities and the order granting Aberdeen’s motion to dismiss due to the expiration of the statute of limitations are reversed, with instructions to conduct further proceédings consistent with this opinion.

MAY, J., and GOLD, MARC H., Associate Judge, concur.

      . Shea Homes, formerly known as UDC Homes, Inc., will be referred to only as Shea Homes to avoid any confusion with the Appel-lee, Aberdeen Golf & Country Club (Aberdeen).


author: KLEIN, J.

text:
    Christopher A. MYLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3338.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant, whose probation was revoked as a result of his arrest for home invasion robbery, moved to suppress the arrest on the ground that he was merely a bystander. As a result of his arrest the police obtained evidence which incriminated him. We reverse.

A detective responded to the scene of the robbery around 10:00 p.m., and his interview of the victims, a mother and daughter, indicated that two males had entered the home and threatened them at gunpoint. The thirteen year old daughter informed the detective that she saw appellant, who had not entered the home, standing outside her yard on the other side of a low fence, and he appeared to be acting as a lookout. He was on a path that people in the neighborhood regularly used, merely watching. He did not signal or otherwise communicate with the two gunmen in the residence, and did not conceal himself. The daughter observed appellant drive off in a car while the gunmen were still there.

The detective who arrested appellant testified that he believed he had probable cause based entirely on the daughter’s statement that she thought he was acting as a lookout. The detective knew before arresting appellant that appellant lived in the same rooming house as the two suspects, but when the detective went to the rooming house to look for all of them, appellant was not there. The next day, using the description of the car in which appellant had left the scene of the robbery, the detective arrested him, and, as a result, obtained incriminating evidence.

Appellant argues that there was no probable cause for his arrest because the officer did not have reasonable grounds to believe that he had committed a felony. Blanco v. State, 452 So.2d 520 (Fla.1984); § 901.15(2), Fla. Stat. (2002) (officer may arrest a person without a warrant when a felony has been committed and he or she reasonably believes that the person committed it).

In State v. Parrish, 470 So.2d 869 (Fla. 1st DCA 1985) an officer had been advised that two men in a silver Camaro had just robbed a drugstore and that a person about ten blocks away had just been shot at by two men.' A passerby flagged down the officer and informed him he had seen two men hop a fence and run across a yard toward a store. When the officer arrived at the scene he found the defendant standing in front of the store and the passerby indicated that he was one of the men he had seen running. The officer arrested Parrish without asking any questions, and the court affirmed the granting of the motion to suppress the arrest, explaining that the officer should have investigated further before arresting him for the armed robbery.

We conclude that this arrest should have been suppressed. Appellant was on a path used regularly by the people in the neighborhood, and it was not unusually late. Under these facts the officer did not have probable cause. United States v. Gonzalez, 70 F.3d 1236, 1238 (11th Cir.1995) (“mere presence at the scene of a crime, without more, does not support a finding of probable cause to arrest.”). Reversed.

FARMER, C.J., and STONE, J., concur.


text:
    Donald JENKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-908.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Bennett H. Brummer, Public Defender and Paul Morris, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr. Attorney General and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.
   PER CURIAM.

The petition for habeas corpus based on appellate counsel’s failure to raise the denial of the defendant’s motion to suppress his confession on direct appeal, see Jenkins v. State, 837 So.2d 1088 (Fla. 3d DCA 2003), is denied because the ground asserted has no substantive merit. Brown v. State, 846 So.2d 1114 (Fla.2003); Frances v. State, 857 So.2d 1002 (Fla. 5th DCA 2003).


text:
    Jeffrey H. WAIT, Appellant, v. Christine R. WAIT, Appellee.
    No. 4D03-653.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for appellant.
    Craig A. Boudreau, West Palm Beach, for appellee.
   PER CURIAM.

Less than a year after rendition of the final judgment dissolving the marriage of Jeffrey and Christine Wait, the former husband filed a petition for a downward modification of the judgment’s child support and alimony obligations. The trial court denied the former husband’s petition, relying upon the “unclean hands” doctrine, and directed him to contribute $2,500 towards the attorney’s fees incurred by the former wife. The former husband appeals.

We find no abuse of discretion in the trial court’s application of the “unclean hands” doctrine and affirm the denial of the former husband’s petition. See Blender v. Blender, 760 So.2d 950, 952 (Fla. 4th DCA 1999) (applying abuse of discretion standard of review to lower court’s determination to apply clean hands doctrine). We reverse, however, that portion of the order requiring the former husband to contribute to the former wife’s attorney’s fees since the only evidence before the lower court placed the parties in financial parity.

AFFIRMED in part and REVERSED in part.

KLEIN, STEVENSON and SHAHOOD, JJ., concur.


text:
    Angel E. ZAVALA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, etc., et al., Appellees.
    No. 3D03-3276.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Angel E. Zavala, in proper person.
    John D. Maher (Tallahassee), for appel-lees.
    Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.
   PER CURIAM.

The decision below denying unemployment compensation benefits is reversed because the conduct complained of did not, as a matter of law, amount to disqualifying “misconduct.” § 443.036(29), Fla. Stat. (2003); Castillo v. Florida Unemployment Appeals Commission, 785 So.2d 552 (Fla. 3d DCA 2001). After remand, the appellant shall be awarded the benefits claimed.


text:
    Steve HAMPTON, a/k/a Calvin Ross, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-804.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.

      Carey Haughwout, Public Defender, and Louis G. Carres, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Frank J. Ingrassia, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his convictions for resisting arrest with violence, loitering and prowling, battery on a law enforcement officer, and unlawful use of a false name. He claims that the court erred in denying his motion for judgment of acquittal, however his motion was a “boilerplate motion” and did not allege the grounds he asserts on appeal. “To preserve an argument for appeal, it must be asserted as the legal ground for the objection, exception, or motion below. Florida Rule of Criminal Procedure 3.380 requires that a motion for judgment of acquittal ‘fully set forth the grounds on which it is based.’ ” Woods v. State, 733 So.2d 980, 984 (Fla.1999) (quoting Fla. R.Crim. P. 3.380(b)) (citations omitted). A boilerplate motion for judgment of acquittal will not suffice to preserve the issue on appeal. Id. We therefore affirm.

He also alleges that the trial court should have discharged his counsel on a Nelson inquiry, because counsel refused to pursue a hearing to determine whether the probable cause affidavit included false evidence. At the Nelson hearing Hampton relied on State v. Swain, 689 So.2d 343 (Fla. 4th DCA 1997), as support for his position. In response to his motion, counsel told the court that they did not have any affidavits from witnesses showing a deliberate falsehood, and they had a good faith belief that appellant was not entitled to a hearing. The court determined that the lawyers had provided effective assistance of counsel. On the face of this record, we cannot conclude that the trial court abused its discretion because it made a full inquiry into appellant’s request. Moreover, the issue of whether counsel was effective can be raised in a motion for postconviction relief should appellant have evidence of the falsity of the probable cause affidavit.

Affirmed.

SHAHOOD and MAY, JJ., concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


text:
    Ramon BERENGUER, M.D., et al., Appellants, v. PUBLIC HEALTH TRUST OF DADE COUNTY, et al., Appellees.
    No. 3D03-3203.
    District Court of Appeal of Florida, Third District.
    Nov. 10, 2004.
    Zumpano Patricios Winker and Leon N. Patricios, Miami, for appellants.
    Isicoff, Ragatz Koenigsberg and Theresa Ragatz, Miami, and Matthew L. Lines, Jacksonville; William X. Candela, Miami; Karon M. Coleman, for appellees.
    Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.
   PER CURIAM.

Affirmed. See Metropolitan Dade County v. Rudoff, 544 So.2d 1118 (Fla. 3d DCA 1989); City of Miami v. Fraternal Order of Police Lodge No. 20, 378 So.2d 20 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1113 (Fla.1980); Koenig v. Tyler, 360 So.2d 104 (Fla. 3d DCA 1978); Pushkin v. Lombard, 279 So.2d 79 (Fla. 3d DCA 1973), cert. denied, 284 So.2d 396 (Fla.1973); cf. Sharick v. Southeastern University of the Health Sciences, Inc., 780 So.2d 136, 138 (Fla. 3d DCA 2000), review granted, 804 So.2d 330 (Fla.2001), 805 So.2d 809 (Fla. 2002), review dismissed, 822 So.2d 1290 (Fla.2002);


text:
    Donald J. GAGNARD, Jr., Appellant, v. Stephen STICHT, Appellee.
    Nos. 4D03-1448, 4D03-1695.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Susan R. Brown of Susan R. Brown, P.A., Hollywood, for appellant.

      Stephen Sticht, Fort Lauderdale, pro se.
   PER CURIAM.

Stephen Sticht, the appellee, obtained a final judgment of injunction for protection against repeat violence against appellant, Donald Gagnard, Jr. In this consolidated appeal, Gagnard challenges the injunction that Sticht obtained against him and a subsequent order dismissing his later-filed petition for an injunction to protect him from Sticht. We affirm in part and reverse in part.

We reverse the final judgment of injunction for protection against repeat violence entered against Gagnard. Although Gag-nard’s argumentative behavior toward the victim in two separate instances was extremely uncivil and threatening in tone, it fell short of meeting the legal requirement of repeat “violence.” See § 784.046(l)(a), Fla. Stat. (2003) (defining “violence” to include an “assault”). An “assault” is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” § 784.011(1), Fla. Stat. (2003). In the instant case, in two separate arguments, Gagnard threatened to kill Sticht and to “ ‘F’ him up.” Yet, there was no evidence that Gagnard made any overt acts indicating an ability to carry out the threats or justifying a belief in Sticht that violence was imminent. See Johnson v. Brooks, 567 So.2d 34, 35 (Fla. 1st DCA 1990) (stating that “[a] person’s mere intention to commit an assault is not enough; there must be some overt act sufficient to demonstrate a threat directed at the person placed in fear”).

We have examined Gagnard’s claim that the trial court erred in dismissing his petition for an injunction against repeat violence against Sticht, but we find no error. Accordingly, the consolidated appeals on review are affirmed in part and reversed in part.

AFFIRMED in part and REVERSED in part.

KLEIN, STEVENSON and SHAHOOD, JJ., concur.


text:
    Paul BARLETTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-469.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Paul Barletta, Florida City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the trial court’s summary denial of appellant’s motion for relief pursuant to Florida Rule of Criminal Procedure 3.850, and remand for an evidentiary hearing or attachment of those portions of the record which conclusively refute appellant’s claimed entitlement to relief. In so doing, we reject the state’s argument that our per curiam affirmance in Barletta v. State, 842 So.2d 124 (Fla. 4th DCA 2003) bars appellant’s claim that his sentence is an illegal habitual offender sentence under the collateral estoppel doctrine. See State v. McBride, 848 So.2d 287 (Fla.2003); Shelton v. State, 739 So.2d 1235 (Fla. 4th DCA 1999).

POLEN, KLEIN and MAY, JJ., concur.


text:
    Stephen A. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1004.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898, 902 (Fla.1979).

• GUNTHER, POLEN and SHAHOOD, JJ., concur.


text:
    Timothy CYPRESS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1566.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Robinson v. State, 373 So.2d 898, 902 (Fla.1979).

POLEN, KLEIN and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    George MAY, Appellant, v. Patrick C. BARTHET, Andrew M. Feldman, Michael K. Winston, John R. Hart, Paul D. Breitner, Glenn Schaeffer, Michael Ensign, Mandalay Resorts Group, Inc., International Game Technology, Inc., G. Thomas Baker, and Charles N. Mathewson, Appellees.
    No. 4D04-2800.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2004.
    George May, pro se.
    John R. Hart and Michael K. Winston of Carlton Fields, P.A., for appellees Mandalay Resorts Group, Inc., John R. Hart, and Michael K Winston.
    Patrick C. Barthet and Paul D. Breitner of The Barthet Firm, Miami, for appellees International Game Technology, Inc., G. Thomas Baker, Charles N. Mathewson, Patrick C. Barthet, Andrew M. Feldman, and Paul D. Breitner.
   GROSS, J.

Appellant, George May, is a pro se litigant who has flooded Florida’s courts with lawsuits. With this appeal, appellant seeks reversal of a final order dismissing a complaint with prejudice that he filed against International Game Technologies, Inc., G. Thomas Baker, Charles N. Mathewson, Patrick C. Barthet, Andrew M. Feldman, Paul D. Breitner, Mandalay Resorts Group, Inc., Michael K. Winston, John R. Hart, Glenn Schaeffer, and Michael Ensign (collectively the “appellees”). No legal basis for reversal is apparent from appellant’s brief. The brief is rambling and largely unintelligible.

Appellant is the subject of two orders entered by the Fifteenth Judicial Circuit under Florida’s Vexatious Litigant Law, section 68.098, Florida Statutes (2003). Those orders prohibit appellant from filing pro se matters in that circuit without first obtaining the signature of an attorney of record or without the court’s prior authorization. These restraints were imposed in response to appellant’s practice of filing baseless lawsuits which were dismissed, and then refiling those same claims, in new lawsuits, frequently joining as defendants the attorneys and trial judges who participated in the prior proceedings decided against him. Despite those orders, however, the clerk of the circuit court inadvertently accepted appellant’s pro se complaint for filing in the instant case.

The Vexatious Litigant Law delineates a statutory dismissal procedure created specifically for correcting such errors. It provides:

If the clerk of the court mistakenly permits a vexatious litigant to file an action pro se in contravention of a prefiling order, any party to that action may file with the clerk and serve on the plaintiff and all other defendants a notice stating that the plaintiff is a pro se vexatious litigant subject to a prefiling order. The filing of such a notice shall automatically stay the litigation against all defendants to the action. The administrative judge shall automatically dismiss the action with prejudice within 10 days after the filing of such notice unless the plaintiff files a motion for leave to file the action.

§ 68.093(5).

Appellees responded to the complaint by initiating that statutory procedure. They filed the necessary notice with the trial court and the matter was heard on July 14, 2004. The circuit court ultimately dismissed the complaint after appellant failed to appear. This appeal followed. We affirm. See Fla. R.App. P. 9.315(a).

Some of the appellees have filed a joint motion requesting, inter alia, that this court enter an order to show cause why appellant should not be prohibited from filing further pro se appeals with this court. For the reasons that follow, the appellees’ motion is granted.

Appellant’s practices have caused this court (and others) to expend an unreasonable amount of judicial resources disposing of frivolous claims. See, e.g., May v. Int’l Game Tech., Inc., 871 So.2d 242 (Fla. 4th DCA 2004); May v. Allapattah Props. P’ship, 867 So.2d 442 (Fla. 4th DCA 2004); May v. Gen. Elec. Capital Auto Lease, Inc., 661 So.2d 1309 (Fla. 4th DCA 1995); see also May v. Hatter, 2001 WL 579782 (S.D.Fla.2001) (offering a detailed chronology of appellant’s similar abuse of Florida’s federal court system). This court takes judicial notice of this and prior appeals appellant has filed in this court and finds that his pro se activities have needlessly interfered with the resolution of our other cases.

Further, while Article I, § 21, of the Florida Constitution offers some protection to an individual’s access to courts, the fifth district has recognized that:

when one person, by his activities, upsets the normal procedure of the court so as to interfere with the causes of other litigants, it is necessary to exercise restraint upon that person, i.e., [a] requirement that pleadings be accompanied by an attorney’s signature — a restraint which does not amount to a complete denial of access.

Platel v. Maguire, Voorhis & Wells, P.A., 436 So.2d 303, 304 (Fla. 5th DCA 1983); accord Kreager v. Glickman, 519 So.2d 666, 668-69 (Fla. 4th DCA 1988). Such restraints are now widely accepted by Florida courts and have been successful in controlling past pro se litigants who have engaged in similarly disruptive activities. See, e.g., Martin v. State, 747 So.2d 386 (Fla.2000); Attwood v. Singletary, 661 So.2d 1216 (Fla.1995); Attwood v. State, 660 So.2d 358 (Fla. 4th DCA 1995); Martin v. Stewart, 588 So.2d 996 (Fla. 4th DCA 1991); Helm v. Hillsborough County, 849 So.2d 322 (Fla. 2d DCA 2003); Peterson v. State, 530 So.2d 424 (Fla. 1st DCA 1988). Based on the foregoing, it is appropriate to impose an attorney signature requirement on appellant to prevent him from continuing his pro se misconduct.

It is therefore ordered and adjudged that:

No later than within twenty days after the entry of this order, appellant shall show cause in writing why this court should not prohibit him from filing further pro se appeals in this court without first obtaining the signature of an attorney of record who is licensed to practice law in Florida. After appellant’s response to this order, the appellees shall have ten days to reply in writing.

SHAHOOD and HAZOURI, JJ., concur.