author: ORFINGER, J.

text:
    Andrea J.B. CAGLE, Appellant, v. ST. JOHNS COUNTY SCHOOL DISTRICT, et al., Appellee.
    No. 5D05-1380.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 17, 2006.

      Andrea J.B. Cagle, South Ponte Vedra Beach, Pro Se.
    Thomas J. Leek and Kelly V. Parsons, of Cobb & Cole, Daytona Beach, for Appel-lee.
   ORFINGER, J.

Andrea J.B. Cagle timely appeals an order of the Public Employees Relations Commission (“PERC”) dismissing her amended unfair labor practices charge against the St. John’s County School District (“School District”). On appeal, Ms. Cagle argues that PERC erred by summarily dismissing her unfair labor practices charge and not providing her with an evidentiary hearing on these charges. For the reasons explained hereafter, we affirm.

Ms. Cagle is the wife of a disabled veteran who qualifies for a veterans’ preference in hiring pursuant to section 295.07(l)(b), Florida Statutes (2004). After the School District did not hire Ms. Cagle for employment in 2001, she filed an administrative complaint with PERC against the School District based on her veterans’ preference. During the hearing, a no trespass order was issued against Ms. Cagle’s husband for threatening the well-being of those at the hearing. Notwithstanding, Ms. Cagle prevailed at the hearing. The School District appealed the decision, but, ultimately, the parties entered into a settlement agreement. As a result of the settlement agreement, Ms. Cagle signed a one-year contract with the School District and was employed at R.B. Hunt Elementary School for the 2003-2004 school year as a fourth grade teacher.

Ms. Cagle entered into service at R.B. Hunt Elementary as agreed upon. In the fall of 2003, the vice-principal of R.B. Hunt assessed Ms. Cagle’s skills in the classroom, giving Ms. Cagle overall good marks, with several suggestions for improvement. However, in March 2004, Principal Barbara Stevens conducted an unannounced observation of Ms. Cagle’s classroom, or classroom “snap shot,” which was not favorable to her.

In response to the unflattering evaluation, Ms. Cagle provided Principal Stevens with a 146-page packet of documents. The packet included a copy of the transcript from the 2002 hearing at which Ms. Cagle testified regarding her veterans’ preference. Shortly thereafter, Principal Stevens sent a copy of the documents to James Springfield, the Executive Director of Human Resources at the School District. She explained to Mr. Springfield via e-mail that she needed his “input and support in this recommendation issue” because if she does not recommend Ms. Ca-gle for re-appointment for the following school year, “it will bring litigation.”

In late April 2004, Principal Stevens met with Ms. Cagle for her year-end evaluation. At the meeting, Principal Stevens told Ms. Cagle that she was recommending that Ms. Cagle not be rehired. Ms. Cagle left the meeting without signing her evaluation. The following day, Ms. Cagle called in sick. Later that day, Ms. Cagle’s grandson entered her classroom under the guise of giving a chorus announcement, but, instead, informed the class that Principal Stevens was trying to fire his grandmother and the students should tell their parents. After Ms. Cagle refused to answer six investigative questions asked by the School District, she was placed on administrative leave until the end of her contract term. Ms. Cagle’s annual contract expired May 25, 2005, and she was not rehired for the following school year.

Ms. Cagle then filed a pre-hearing statement with PERC in a new veterans’ preference case. In the statement, Ms. Cagle alleged, among other things, that the School District had retaliated against her, in violation of section 447.501(l)(d), Florida Statutes (2004), by discharging or otherwise discriminating against her through a series of unfair labor practices, including an unlawful suspension and violations of personnel laws. PERC transferred and docketed Ms. Cagle’s retaliation claim as an unfair labor practice charge.

Ms. Cagle subsequently filed a separate unfair labor practice charge against the School District. In addition to alleging violations of section 447.501(l)(d), Ms. Ca-gle also alleged that the School District violated section 447.501(l)(a), which prohibits an employer from interfering with, restraining, or coercing a public employee in the exercise of any rights guaranteed by chapter 447 of the Florida Statutes. Ms. Cagle’s charges were consolidated to determine whether the allegations established a prima facie violation of the unfair labor practice laws.

In Ms. Cagle’s consolidated charges, she alleged that the School District discriminated against her due to her status as the wife of a disabled veteran and because she had previously filed a veterans’ preference case against the School District in 2001. Specifically, Ms. Cagle asserted that the School District acted adversely to her in the following ways: issued a no trespass order against her husband in 2002 at the previous veterans’ preference hearing, did not comply with PERC’s 2002 final order or the subsequent settlement agreement between the parties, treated Ms. Cagle disparately during the 2003-2004 school year, charged Ms. Cagle with “unprofes-sionalism” and sent untruthful letters to the parents of the students in her class, suspended Ms. Cagle and placed her on administrative leave, discharged Ms. Cagle from her teaching position under the guise of a “non-renewal of an annual contract,” and subjected her to a hate crime.

PERC’s General Counsel summarily dismissed both unfair labor practice cases, finding that they failed to provide facts that demonstrated that Ms. Cagle’s prior veterans’ preference complaint and testimony were substantial or motivating factors in the alleged retaliation by the School District. However, the General Counsel noted that that if Ms. Cagle felt that the School District had not complied with the settlement agreement, she should seek enforcement of that settlement agreement in the circuit court.

Ms. Cagle appealed to PERC, amending her charge and alleging eleven incidents that constituted violations of section 447.501(1)(d). Because the appeal alleged additional facts and included supporting documents that were not previously considered, the appeal was remanded as an amended charge for the General Counsel to determine the sufficiency of Ms. Cagle’s allegations. On remand, PERC’s General Counsel determined that Ms. Cagle’s amended charge failed to establish a prima facie violation of the unfair labor practice laws and summarily dismissed it. According to the General Counsel, softie of the allegations were untimely and others did not constitute adverse actions because there were no tangible punitive impacts as a result of their occurrence. Additionally, the General Counsel found that there were facially valid reasons for the School District to take certain actions against Ms. Cagle but not against other employees, and that there was no objective evidence linking Ms. Cagle’s protected activity to the School District’s actions.

Ms. Cagle again appealed to PERC, alleging ten “exceptions” to the General Counsel’s summary dismissal of the amended charge, which she claimed were sufficient to establish a prima facie violation of section 447.501(l)(d). Ms. Cagle objected to the conclusions of the General Counsel, and also included new factual allegations and supporting documents that had not previously been provided to the General Counsel.

PERC subsequently issued a final order, affirming the General Counsel’s summary dismissal of the amended charge. In its final order, PERC incorporated the additional evidence that Ms. Cagle provided in her exceptions, and found that this new allegation would have been dismissed by the General Counsel as untimely. Thereafter, incorporating the new allegation, PERC considered all of Ms. Cagle’s arguments, and dismissed the unfair labor practice charge in its entirety. This appeal followed.

This Court reviews the record to determine whether the administrative aetion is supported by competent, substantial evidence. § 120.68, Fla. Stat. (2005); Laney v. Bd. of Pub. Instruction for Orange County, 153 Fla. 728, 15 So.2d 748, 753 (1943); Braddock v. Sch. Bd. of Nassau County, 455 So.2d 394, 396 (Fla. 1st DCA 1984). Review of an agency’s statutory interpretation is de novo. See Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So.2d 417, 420 (Fla. 1st DCA 2004). However, administrative agencies are “afforded wide discretion in the interpretation of a statute which it is given the power and duty to administer.” Republic Media, Inc. v. Dep’t of Transp., 714 So.2d 1203, 1205 (Fla. 5th DCA 1998). As a result, “a reviewing court must defer to an agency’s interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence.” Pub. Employees Relations Comm’n v. Dade County Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985). If the agency’s interpretation is within the range of possible and reasonable interpretations, it is not clearly erroneous and should be affirmed. See Novick v. Dep’t of Health, Bd. of Med., 816 So.2d 1237, 1240 (Fla. 5th DCA 2002); Republic Media, Inc., 714 So.2d at 1205.

The courts have recognized that PERC has developed special expertise in addressing labor issues and is uniquely qualified to interpret and apply the policies enunciated in chapter 447. See Laborers’ Int’l Union of N. Am. v. Greater Orlando Aviation Auth., 869 So.2d 608, 610 (Fla. 5th DCA 2004); Sch. Bd. of Dade County v. Dade Teachers Ass’n, 421 So.2d 645, 647 (Fla. 3d DCA 1982). Thus, its decisions on this area of law are entitled to considerable deference by this Court. See Laborers’ Int’l Union of N. Am.; Sch. Bd. of Dade County.

Ms. Cagle asserts that she presented a prima facie case to PERC, and that PERC erred in summarily dismissing the amended complaint. The School District disagrees, arguing that Ms. Cagle did not establish a prima facie violation of the unfair labor practices laws. As a result, the School District contends that PERC properly dismissed the amended charge.

In order to sustain an unfair labor practice charge, the law requires that the charge and supporting documents provide evidence to support a prima facie violation of the unfair labor practice alleged. § 447.503(1), Fla. Stat. (2004). As set forth in PERC’s final order, the applicable standard is found in Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108, 117 (Fla. 1st DCA 1977), in which the court held:

In order to determine whether the evidence sustains a charge alleging an unfair labor practice, when it is grounded upon an asserted violation of protected activity, the following general principles should be considered by the hearing officer and by PERC:
(1) In any such proceeding the burden is upon the claimant to present proof by a preponderance of the evidence that (a) his conduct was protected and (b) his conduct was a substantial or motivating factor in the decision taken against him by the employer.
(2) If the hearing officer determines the decision of the employer was motivated by a non-permissible reason, the burden shifts to the employer to show by a preponderance of the evidence that notwithstanding the existence of factors relating to protected activity, it would have made the same decision affecting the employee anyway. In considering the employer’s explanation, the examiner should attempt to strike an equitable balance between the rights of an employer whose duty, as here, is to promote the efficiency of public services through its public employees, and the rights of a nontenured public school teacher to be secure in his employment, free from discrimination due to his union activity.

(Footnotes omitted); see Gibbons v. State Pub. Employees Relations Comm’n, 702 So.2d 536, 537 (Fla. 2d DCA 1997). In its final order, PERC addressed each of Ms. Cagle’s exceptions to the General Counsel’s summary dismissal. PERC cogently articulated its reasoning and conclusions in support of dismissing Ms. Cagle’s charges. The record supports PERC’s conclusions. Ms. Cagle’s allegations do not establish a prima facie case of retaliation.

Lastly, Ms. Cagle argues that PERC erred by summarily dismissing her claim without holding a hearing. She further alleges that the record shows that PERC did not provide her time to finish drafting her appeal before it was denied. We disagree. A claimant is only entitled to an evidentiary hearing when the claimant can show a nexus between the protected activity and the alleged adverse action. Gibbons, 702 So.2d at 537; Pasco County, 353 So.2d at 119. Here, there is competent, substantial evidence in the record to support PERC’s finding that Ms. Cagle failed to show a sufficient nexus between the protected activity and the adverse action. Ms. Cagle did not meet her burden of showing that the School District’s reasons for placing her on administrative leave were pretextual. In the absence of such evidence, Ms. Cagle did not demonstrate that her prior protected activity was a substantial or motivating factor in either the School District’s decision to place her on administrative leave or to not renew her contract. As a result, Ms. Cagle was not entitled to an evidentiary hearing on her unfair labor practices claim.

For these reasons, we affirm PERC’s final order.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.

      . In relevant part, section 295.07(l)(b), Florida Statutes (2004), provides:
      (1) The state and political subdivisions in the state shall give preference in appointment and retention in positions of employment to:

      (b) The spouse of any person who has a total disability, permanent in nature, resulting from a service-connected disability and who, because of this disability, cannot qualify for employment....

      . The alleged hate crime was requiring Ms. Cagle to attend a ceremony honoring a teacher from her school as teacher of the year. Ms. Cagle asserts this was a "hate crime” because the teacher of the year had been hired instead of Ms. Cagle in 2001.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wilbur L. MITCHELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-319.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2006.
    Rehearing Denied Oct. 17, 2006.
    Wilbur L. Mitchell, in proper person.
    Charles J. Crist, Jr., Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. Turner v. Dugger, 614 So.2d 1075 (Fla.1992).


text:
    Vincent Bernard SPELLS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1883.
    District Court of Appeal of Florida, Second District.
    Sept. 6, 2006.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

Vincent Bernard Spells ■ appeals the judgments and sentences that were imposed on him after a jury found him guilty of trafficking in heroin, possession of cocaine, and possession of marijuana. Mr. Spells argues that the trial court erred in denying his motion to suppress evidence obtained after the execution of a search warrant. We conclude that the search warrant was properly issued and that the trial court correctly denied Mr. Spells’ motion to suppress. Accordingly, we affirm Mr. Spells’ judgments and sentences.

In a separate issue, Mr. Spells argues that a $2 cost item assessed in accordance with section 938.15, Florida Statutes (2004), should be stricken because it may be assessed only for a violation of a county or municipal ordinance. Mr. Spells preserved this issue by filing an appropriate motion under Florida Rule of Criminal Procedure 3.800(b)(2). We affirm the imposition of the $2 in costs under the statute. See Kimball v. State, 933 So.2d 1285 (Fla. 2d DCA 2006).

Affirmed.

WHATLEY, KELLY, and WALLACE, JJ., concur.


text:
    Twon ADAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1684.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Rehearing Denied Nov. 1, 2006.
    Twon Adams, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before RAMIREZ, WELLS, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Cooper v. State, 817 So.2d 934 (Fla. 3d DCA 2002).


text:
    Michael STAPLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1961.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Rehearing Denied Oct. 18, 2006.
    Michael Stapler, Avon Park, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, J.

Michael Stapler appeals the summary denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Stapler argues that because his term of community control expired before the revocation proceedings were commenced, the sentencing court lost jurisdiction to proceed. As a consequence, he contends that his sentence is illegal. We disagree and affirm.

It is true, as Mr. Stapler asserts, that upon the expiration of the probationary (or community control) period, “a court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation or modification of the probation.... ” State v. Hall, 641 So.2d 403, 404 (Fla.1994) (quoting Carroll v. Cochran, 140 So.2d 300 (Fla.1962)). We also agree that such a claim can be asserted under rule 3.800(a), provided that it is apparent from the face of the record that the sentence has been imposed by a court without jurisdiction and does not require an evidentiary hearing. See Slingbaum v. State, 751 So.2d 89, 89 (Fla. 2d DCA 1999); Jett v. State, 722 So.2d 211, 212 (Fla. 1st DCA 1998); Wilson v. State, 698 So.2d 1380, 1381-82 (Fla. 4th DCA 1997).

From the limited record before us, it appears that pursuant to a plea agreement with the State, Mr. Stapler was sentenced to one year of community control with all of the standard, and several special conditions, on April 7, 1998. Mr. Stapler and the State apparently agree that an affidavit alleging various violations of community control was presented to the court on April 5, 1999, and that a warrant was issued the same day. Under the law as it now exists, the issuance of the warrant would have tolled termination of Mr. Stapler’s community control supervision, which would have otherwise ended the next day. See § 948.06(l)(d), Fla. Stat. (2005) (stating that upon filing of affidavit alleging violation of probation or community. control and following issuance of warrant, probationary period is tolled until court enters ruling on violation); Sepulveda v. State, 909 So.2d 568, 570 (Fla. 2d DCA 2005). However, Mr. Stapler committed his offenses prior to July 1, 2001, when section 948.06(1) was amended. See ch.2001-109, § 1, Laws of Fla. The revised tolling statute has been held not to apply retroactively. See Frye v. State, 885 So.2d 419 (Fla. 1st DCA 2004). Instead, under the law as it existed at the time of Mr. Stapler’s revocation proceedings, the arrest warrant was not issued for the purposes of setting in motion the revocation process, until the judge signed the warrant and the warrant had been delivered to the proper executive officer for execution. State v. Boyd, 717 So.2d 524, 526 (Fla.1998).

Because the record before us does not disclose whether the violation of community control warrant was delivered to the appropriate sheriff on or before April 6, 1999, we cannot conclude that the trial court lacked jurisdiction to sentence Mr. Stapler after the revocation hearing was conducted. A court of general jurisdiction proceeding within the scope of its powers will be presumed to have jurisdiction to give the judgments and decrees it renders until the contrary is shown. Because the court is presumed to have acted within its powers, the burden is on the accused to affirmatively show that the court had no jurisdiction, unless facts showing the lack of jurisdiction affirmatively appear on the record. 22 C.J.S. Criminal Law § 174 (2002).

Mr. Stapler had the obligation in his rule 3.800(a) motion to allege how and where the record demonstrated the trial court’s lack of jurisdiction. Baker v. State, 714 So.2d 1167, 1167 (Fla. 1st DCA 1998) (holding that, in accordance with the supreme court’s decision in State v. Mancino, 714 So.2d 429 (Fla.1998), a rule 3.800(a) motion “must affirmatively allege that ‘the court records demonstrate on their face an entitlement to relief,”’ and indicating that “[t]he allegations required by Mancino at a minimum would have to address how and where the record demonstrates an entitlement to relief’). At a minimum, Mr. Stapler’s motion should have stated where in the record the information could be located to demonstrate that the violation of community control warrant was not placed into the hands of the sheriff in a timely manner. Mere eon-elusory allegations are insufficient to satisfy the pleading requirements of the rule. Baker, 714 So.2d at 1167 n. 1.

Because Mr. Stapler’s motion was facially insufficient, we affirm. As a result, we need not address the trial court’s conclusion that Mr. Stapler would have been in violation of his probation even if his community control had expired.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.

      . At sentencing, Mr. Stapler was sentenced to one year community control followed by four years of probation. In sentencing Mr. Stapler, the trial judge said:
      If you are able to enroll in the armed forces, the remainder of the supervision will be converted to administrative probation. If you do not complete all special conditions within the year of community control, then the sentence which I am suspending at this time will be imposed and that suspended sentence , is that of four years of probation and that would be consecutive to the community control....
      It is difficult to discern whether the suspended portion of Mr. Stapler’s sentence was authorized under Poore v. State, 531 So.2d 161 (Fla.1988). It is hard to fit such a sentence into one of the five basic sentencing alternatives set forth in Poore, given the suspended nature of the probation that might have followed Mr. Stapler's community control. It would have been simpler if the sentencing judge had made it clear that probation would automatically follow the community control, unless Mr. Stapler sought an early termination based on his successful completion of the special conditions as agreed.

      . Although not argued by the State, Mr. Stapler's failure to assert the alleged jurisdictional defect during the revocation proceedings may have waived the claim. "Criminal jurisdiction involves concepts of subject matter jurisdiction and personal jurisdiction.... Subject matter jurisdiction encompasses those matters upon which a court has the power to act, and refers to a court's authority to determine a particular kind of case, not merely the particular case then occupying the court's attention, while personal jurisdiction deals with the authority of a court to bind the parties to an action.” 21 Am.Jur.2d Criminal Law§ 480 (1998) (footnotes omitted).
      Our review of the cases demonstrates that while Florida courts often speak of a court's loss of jurisdiction to proceed against a defendant unless revocation proceedings are commenced prior to the expiration of supervision, the cases do not clearly indicate whether it is personal or subject matter that is lost by the court. If the court has subject matter jurisdiction, the objection that it has no jurisdiction over the person of the accused may be waived. 22 C.J.S. Criminal Law § 175 (2002). On the other hand, if the defect concerns subject matter jurisdiction, it cannot be waived, but may be raised at any time. In State v. Hall, 641 So.2d 403 (Fla.1994), the supreme court reaffirmed that "upon expiration of the probationary period the court is divested of all jurisdiction over the person of the probationer unless in the meantime the processes of the court have been set in motion for revocation ...(quoting Carroll v. Cochran, 140 So.2d 300, 301 (Fla.1962)). If indeed, as the court said, it was speaking of "jurisdiction over the person of the probationer,” we see no reason why such a defect cannot be waived by failing to assert it in a timely manner.


text:
    Richard HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2318.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Rehearing Denied Oct. 17, 2006.

      Richard Harris, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Almendares v. State, 916 So.2d 29 (Fla. 4th DCA 2005) (a trial court may sentence a defendant to consecutive sentences for crimes arising out of the same criminal episode as long as the sentences are not pursuant to an enhancement statute).

THOMPSON, SAWAYA and TORPY, JJ., concur.


text:
    Miguel SALDO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1842.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 2006.
    Rehearing Denied Oct. 18, 2006.
    Miguel Saldo, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. Hunter v. State, 732 So.2d 10 (Fla. 3d DCA 1999).


text:
    Adrian Kevin GRAY, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3476.
    District Court of Appeal of Florida, First District.
    Sept. 13, 2006.
    Rehearing Denied Oct. 20, 2006.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General, Robert R. Wheeler, Chief — Criminal Appeals, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Adrian Gray appeals his conviction for kidnapping and sentence as a prison re-leasee reoffender (PRR), contending that the trial court erred by (I) failing to enter judgment of acquittal, because the state failed to prove that he kidnapped the victim, (II) failing to grant his motion to suppress evidence, and (III) finding him to be a PRR. We affirm on Issues II and III without comment, but reverse his conviction for kidnapping, because the evidence did not prove that Gray had confined the victim in any degree that exceeded the parameters of the robbery.

In Faison v. State, 426 So.2d 963 (Fla.1983), the supreme court ruled that if a victim is confined for the purpose of facilitating the commission of another crime, the confinement, to constitute the separate offense of kidnapping,

(a) Must not be slight, inconsequential and merely incidental to the other crime; (b) Must not be the kind inherent in the nature of the other crime; and (c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Id. at 965 (quoting Kansas v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)).

The evidence at trial discloses that Gray entered a convenience store in Fernandina Beach on February 24, 2004, at around 11:00 p.m., wearing a mask. He seized the clerk by the hair, threatening to blow her head off if she tried to do anything. He continued to pull the victim by her hair to the office where the keys were located, then pulled her by the hair to the front door and ordered her to lock it. Leaving the keys in the front door, Gray forced her behind the counter and ordered her to open the two registers. He then took money from each, and directed the victim to lie face down between the registers and open the safe. She replied she could not open it, but she did retrieve two bills from the money drop. Gray then ordered her to remove all of her clothing except her undergarments. He further advised her he had a friend inside the store, and if she attempted to leave, the friend would blow her head off. The clerk heard him walk around the counter, heard the keys jingle, then the doorbell, and after listening for another 20 seconds, she pushed the panic button to notify the police, called 911, and dressed herself. The clerk reported that the robber took a large set of store keys, but he did not lock the door when he left. Neither did he make any sexual advances toward her, nor threaten her sexually.

In our judgment the above facts do not satisfy the Faison test to support a separate conviction for kidnapping, because Gray’s movement and confinement of the clerk were incidental to the robbery and ceased once he left the store. See Berry v. State, 668 So.2d 967, 969 (Fla.1996) (observing that binding the victims satisfied the Faison test, whereas if the robbers had simply held the victims at gunpoint, or had confined them in a room and ordered them not to leave, such confinement would cease naturally with the robbery); Walker v. State, 604 So.2d 475, 477 (Fla.1992) (lying down or moving to the back of the store during a robbery was “slight, inconsequential, and merely incidental to the robberies”); McCutcheon v. State, 711 So.2d 1286 (Fla. 4th DCA 1998) (ordering victim into a storeroom where the safe was located, and beating her because she would not open the safe, did not extend beyond commission of the robbery); Formor v. State, 676 So.2d 1013 (Fla. 5th DCA 1996) (confining victims to motel bathrooms with threats to kill them if they came out was incidental to the robberies); Elozar v. State, 825 So.2d 490, 491 (Fla. 5th DCA 2002) (confining employees in an open safe during robbery was not kidnapping, because they were “free to come out when the armed robbers left the premises”); Frederick v. State, 931 So.2d 967 (Fla. 3d DCA 2006) (confining two employees in a closed freezer for duration of the robbery was insufficient to establish kidnapping).

In the case at bar, Gray violently dragged the victim around the store for the purpose of finding the keys that would open the cash register and safe and lock the door. While Gray made threats on her life, he did not bind her. Notwithstanding his directions to the clerk requiring her to lock the store and remove her clothes, such acts did not extend beyond the actual commission of the robbery, because when Gray left the store, the door was unlocked with the victim’s clothes inside, thereby enabling her to dress immediately. As such, her confinement did not exceed the scope of the robbery.

Although we acknowledge that forcing the victim to undress appears to satisfy the third Faison requirement, because Gray may have believed it would make his escape easier, by slowing her ability to go outside the store and observe the route of his departure, such act was rendered incidental to the robbery due to his leaving the clothing accessible to her. Thus, the disrobing was comparable to placing her in a separate room and closing the door with orders for her not to come out, which the court ruled in Berry was not kidnapping, because such confinement would “cease naturally with the robbery.” Berry, 668 So.2d at 969. If Gray had taken or hidden the victim’s clothing, the disrobing would be more comparable to tying her up and leaving her “in a precarious and vulnerable state for a period beyond the robbery.” Id.

We therefore reverse the kidnapping conviction and remand the case with directions for the trial court to impose the lesser-included offense of false imprisonment. § 924.34, Fla. Stat. (2004). “False imprisonment” is defined as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will.” § 787.02(l)(a), Fla. Stat. (2004) (emphasis added). In contrast, “kidnapping” is defined as “forcibly, secretly, or by threat confining, abducting, or imprisoning another person against his or her will and without lawful authority,” with specific intent to commit another offense. § 787.01(l)(a), Fla. Stat. (2004). Merely “restraining” one’s victim is not included in the definition of kidnapping. By dragging the victim around the store by her hair, locking the door, and forcing her to disrobe, Gray forcibly restrained the victim against her will. See, e.g., Davis v. State, 816 So.2d 840 (Fla. 1st DCA 2002) (affirming conviction for false imprisonment based upon evidence that the victim was restrained on a sofa and told to “shut up” by a man holding a gun on her while other perpetrators robbed another person inside the house).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for resen-tencing.

ERVIN, WEBSTER, and HAWKES, JJ., concur.


author: THOMPSON, J.

text:
    Richard J. GOODWIN, Appellant, v. BLU MURRAY INSURANCE AGENCY, INC., Appellee.
    Nos. 5D05-1357, 5D05-1648.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.
    Rehearing Denied Oct. 16, 2006.

      Richard C. Swank and Donald E. Christopher, of Litchford & Christopher, P.A., Orlando, for Appellant.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, for Appellee.
   THOMPSON, J.

Richard Goodwin sought unpaid insurance commissions earned as an agent with Blu Murray Insurance Agency, Inc. (“Blu Murray”) before and after he terminated a twenty-year relationship with the agency. Goodwin claims the trial court erred in denying his motion for summary judgment as to renewal commissions and pre-termi-nation commissions, ruling he waived his right to an accounting, and denying him attorney’s fees as the prevailing party. We reverse.

Blu Murray compensated Goodwin on a commission-only basis for the sale of new and renewal policies based on a percentage of the policy premiums. Most of Goodwin’s sales derived from Blue Cross and Blue Shield health insurance products marketed through Blu Murray, the general agent, which acted as an intermediary in processing policy applications and premium checks as well as the commissions. Blu Murray then paid a share of the commission to its individual agent.

After ten years with Blu Murray, Goodwin became concerned in 1992 about the stability of his position. Goodwin claimed that Edward Murray, Blu Murray’s principal, assured him that someday he intended to allow Goodwin to take over sole ownership of the South Daytona office as a general agent. In October 1992, Blu Murray and Goodwin entered into a written Commission Agreement drafted by Blu Murray. The Commission Agreement provides, in pertinent part:

Renewals of policies written by the agent will be paid the agent or the agents estate as long as the total monthly renewal commissions payable to the agent equal at least $100 a month. Renewals due the agent must be paid as long as the agency or the agency assigns are collecting money from insurance companies. No sale of the agency, or change in ownership of management will alter this agreement.
The first year commissions may change at the discretion of the G.A., renewal percentages must be at least one-half of G.A. amount. FIRST YEAR COMMISSION SHOULD NOT EVER BE LESS THAN 1/2 OF GA COMM.

Over the first few years of Blu Murray’s sale of Blue Cross products, the insurer paid a flat commission regardless of the size or value of the policy. However, in the late 80’s or early 90’s, Blue Cross began to pay commissions based on a percentage of a policy’s first-year premium. After the change, Blu Murray, as general agent, received ten percent of the first-year premiums and paid half, or five percent, to its individual agent. The Commission Agreement memorialized this change.

Not long after Goodwin and Blu Murray entered into the Commission Agreement, however, Blue Cross increased to thirteen percent its first-year commission structure. Because Blu Murray manually redacted the commission the agency received on the commission statement each agent received, the individual agents were unaware of the commission increase. Blu Murray continued to pay them only 5%, rather than 6.5% of the first-year premium. Goodwin remained unaware of the shortage until the mid to late 90’s, when Blu Murray converted to computerized commission statements. The employee responsible for their preparation failed to redact the amount Blue Cross paid Blu Murray. Goodwin discovered for the first time that Blu Murray was not paying him the amount due under their agreement. When he discovered this fact in 1998, Goodwin confronted Murray on three or four occasions, but Murray refused to increase Goodwin’s share as their agreement required. In view of Murray’s ownership promises and the successful insurance practice he had built with Blu Murray, Goodwin did not pursue the matter further at that time.

Their relationship continued until 1 September 2002 when Goodwin terminated his employment after Murray rejected the possibility that Goodwin would become an owner. Goodwin nevertheless expected to continue receiving commissions due under the Commission Agreement. Once Goodwin left, however, Blu Murray ceased payment of all first-year and renewal commissions.

Goodwin promptly filed a two-count complaint against Blu Murray for breach of contract and an accounting. He sought attorney’s fees as to both counts. In count one, he sought attorney’s fees under chapter 448, Florida Statutes (2002), as an action for lost wages. The court instructed Goodwin to file an amended complaint to plead alternative counts for breach of contract as an independent contractor and as an employee in counts one and two, respectively; he again sought an accounting in count three. Goodwin alleged an entitlement to attorney’s fees in count one pursuant to section 448.08. He did not, however, seek attorney’s fees under count two as an independent contractor.

The trial court granted Blu Murray’s motion for summary judgment on count one, ruling that estoppel barred Goodwin from asserting he was an employee by virtue of his formation of a P.A. and holding himself out as its employee. Goodwin had formed the P.A. in 1989, a few years before executing the Commission Agreement in his individual capacity. The court’s order also ruled that the statute of limitations barred claims that arose more than five years before he filed suit.

The court conducted a bench trial on the accounting. Goodwin asserted that Blu Murray’s concealment of its gross commissions and the number and complexity of the calculations warranted an accounting. The trial court ruled that Goodwin had waived his right to an accounting by waiting nearly four years to bring suit after discovering the shortchange and denied the claim.

Goodwin subsequently sought leave to amend his complaint to assert a claim as ah independent contractor for attorney’s fees under section 448.08. Citing the recent case of Elder v. Islam, 869 So.2d 600 (Fla. 5th DCA 2004), he argued that the relevant inquiry is what constituted “wages,” rather than what label may be used by the party seeking payment of the wages. The trial court, concluding that an independent contractor could not seek attorney’s fees under section 448.08, denied the motion.

Before the jury trial on the remaining count for breach of contract, both parties brought cross motions for summary judgment on renewal commissions. The trial court granted both motions for summary judgment, ruling in part that Goodwin had a vested interest in pre-termination commissions. Relying, however, upon Barr v. Sun Life Assur. Co., 146 Fla. 55, 200 So. 240 (1941), the court ruled that Goodwin was not entitled to any post-termination renewal commissions. The trial court also ruled, as a matter of law, that Goodwin had waived any right to seek damages for the commission shortage.

Based upon the trial court’s oral rulings on the respective motions for summary judgment, Goodwin believed that the issue of liability had been resolved. The trial court ruled that the contract was not ambiguous, Goodwin was not entitled to post-termination renewal commissions, but he was entitled to vested commissions for first-year policy sales and renewals prior to his termination. The parties stipulated to the amount of damages based on Goodwin’s pre-termination commissions. The stipulation did not apply, however, to any other damages Goodwin sought in the past or might seek in the future upon appeal. The jury returned a verdict for Goodwin on the breach of contract, and the trial court entered a final judgment awarding Goodwin stipulated damages of $58,213.65.

Despite the court’s earlier denial of Goodwin’s motion for leave to amend, Goodwin filed a post-judgment motion for attorney’s fees pursuant to section 448.08 and the recently amended Florida Rule of Civil Procedure 1.525 to preserve for appeal his claim to attorney’s fees. The trial court denied his motion for fees, but awarded costs to Goodwin as the prevailing party. This appeal followed.

We first consider the summary judgment on renewal commissions. Goodwin argued that the agreement’s plain and unambiguous language required that he or his estate receive renewal commissions for the policy’s life regardless of his termination as long as the total monthly renewal commissions equal at least $100. Alternatively, Goodwin contended a jury must resolve any ambiguity. The agreement’s language provided:

B. RENEWAL COMMISSIONS:
Those percentages as shown in the schedule of commissions which are percentages of the renewal premiums for the second year and through the life of the policy as the agency receives commissions on that policy.
Renewals of policies written by the agent will be paid the agent or the agents estate as long as the total monthly renewal commissions payable to the agent equal at least $100 a month.
Renewals due the agent must be paid as long as the agency or the agency assigns are collecting money from insurance companies. No sale of the agency, or change in ownership or management will alter this agreement, (emphasis added).

The trial court erred. The existence of an ambiguity in a contract is a question of law. Centennial Mortgage, Inc. v. SG/SC, Ltd., 772 So.2d 564, 566 (Fla. 1st DCA 2000). To the extent any ambiguity exists in the interpretation of the contract, it will be strictly construed against the drafter. Tannen v. Equitable Life Ins. Co., 303 So.2d 352, 355 (Fla. 3d DCA 1974). We conclude that the contract provided for the payment of post-termination renewal commissions to Goodwin.

The Commission Agreement expressly states the agent or his estate will be paid renewal commissions for the life of the policy as long as the total monthly renewal commissions equal at least $100 per month and that renewal commissions due the agent must be paid as long as the agency or its assigns are collecting money from the insurance companies. No provision requires Goodwin to service the policies. The agreement does not expressly provide that Goodwin’s right to premiums ceases upon his termination. We therefore reverse the judgment as to count two.

Second, though we conclude that section 448.08 attorney’s fees do not apply to independent contractors, Skylink, Inc. v. Titus, 745 So.2d 377, 377-78 (Fla. 4th DCA 1999); Singer Prods., Inc. v. Tecnecol, Ltda., 625 So.2d 892 (Fla. 3d DCA 1993), whether an individual is an employee or an independent contractor is a question of fact for the jury. Font v. Stanley Steemer Int’l, Inc., 849 So.2d 1214, 1216 n. 2 (Fla. 5th DCA 2003). Florida courts have adopted several criteria to aid in making this determination: (1) the extent of the employer’s control over the details of the work; (2) whether the person employed is engaged in a distinct occupation or business; (3) the kind of occupation involved, and whether the work is done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer supplies the in-strumentalities, tools, and the place of work; (6) the length of time the person is employed; and (7) whether the work is part of the employer’s regular business. Carroll v. Kencher, Inc., 491 So.2d 1311, 1312 (Fla. 4th DCA 1986).

The trial court declared that Goodwin was estopped from claiming he was an employee of Blu Murray because the record clearly reflected that Goodwin consistently acted as an independent contractor and he was an employee of his P.A.

Equitable estoppel must be applied with great caution, and the party raising estoppel must prove its elements by clear and convincing evidence. Watson Clinic, LLP v. Verzosa, 816 So.2d 832, 834 (Fla. 2d DCA 2002). The elements of es-toppel are: (1) the party against whom estoppel is sought must have made a representation about a material fact that is contrary to a position it later asserts; (2) the party claiming estoppel must have relied on that representation; and (3) the party seeking estoppel must have changed his position to his detriment based on the representation and his reliance on it. Id. Estoppel rests on the premise that the party asserting the estoppel has acted in reliance upon the prior inconsistent conduct. Pelican Island Property Owners Ass’n, Inc. v. Murphy, 554 So.2d 1179, 1181 (Fla. 2d DCA 1989). The essence of estoppel is that a person should not be permitted to unfairly assert inconsistent positions, but estoppel will not lie unless the party seeking to assert it was misled. Id.

No estoppel is clearly present. Many facts in evidence could support a jury’s determination that Goodwin was an employee regardless of his formation of the P.A. His status as an employee of his P.A. is not determinative of whether he was an employee of Blu Murray. Where there are varying inferences and conclusions which can be drawn from the facts, the issue of whether an individual is an employee or an independent contractor should be submitted to the jury. Carroll, 491 So.2d at 1313. Further, there is no evidence here of detrimental reliance. The court erred in utilizing summary judgment to apply estoppel to a disputed factual issue.

Accordingly, we reverse the trial court’s dismissal of count one and, upon remand, direct that the jury make a finding whether Goodwin was an employee or an independent contractor. The jury’s finding will establish his entitlement to attorney’s fees and' costs under section 448.08.

The third issue is the trial court’s denial of Goodwin’s summary judgment on count two for unpaid wages, an accounting in count three for pre-termination commission shortages over a period of years, and post-termination renewal and first-year commissions. The court summarily awarded Goodwin the first-year commissions and the pre-termination five percent renewal commissions, but denied him pre-termination renewal commission shortages based upon waiver and laches.

The elements of waiver are: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right. Zurstrassen v. Stonier, 786 So.2d 65, 70 (Fla. 4th DCA 2001). Waiver may be implied by conduct, but that conduct must make out a clear case. Fireman’s Fund Ins. Co. v. Vogel, 195 So.2d 20, 24 (Fla. 2d DCA 1967). The burden of proving the affirmative defense of estoppel and waiver rests upon the party invoking it. Mercede v. Mercede Park Italian Restaurant, Inc., 392 So.2d 997, 998 (Fla. 4th DCA 1981). Summary judgment is particularly unsuitable where the facts and circumstances indicate a possibility of waiver. Scheibe v. Bank of America, N.A., 822 So.2d 575, 575-76 (Fla. 5th DCA 2002). Mere delay is insufficient to support a defense of waiver or estoppel. Mercede, 392 So.2d at 998; Air Prods. & Chem., Inc. v. Louisiana Land & Exploration Co., 867 F.2d 1376, 1380 (11th Cir.1989) (applying Florida law in holding no clear waiver shown after five-year delay); O’Brien v. O’Brien, 424 So.2d 970, 971 (Fla. 3d DCA 1983). The decision in Arbogast v. Bryan, 393 So.2d 606, 608 (Fla. 4th DCA 1981), is distinguishable because the broker waited six years to seek a commission against a corporation since dissolved. The former directors of the corporate broker were exposed to personal liability they would not have had otherwise.

The court erred in concluding that Goodwin’s inaction demonstrated a clear-cut case of waiver of his rights under the Commission Agreement because waiver is a factual issue to be determined by the finder of fact, in this case, the jury. See Gulf stream Park Racing Ass’n, Inc. v. Kessinger, 874 So.2d 645, 647 (Fla. 4th DCA 2004); Bd. of County Commm’rs of Jackson County v. Int’l Union of Operating Engineers, Local 653, 620 So.2d 1062, 1065 (Fla. 1st DCA 1993). Goodwin never expressly waived his contract rights. Blu Murray contends that his delay constitutes waiver. Goodwin explained that he deferred action because of substantial promises later reneged by Murray. We remand for a jury to determine whether Goodwin waived his right to the commission shortages.

The court also erred in applying laches to bar Goodwin’s recovery of renewal commission shortages. Section 95.11(6), Florida Statutes (2002), provides:

Laches shall bar any action unless it is commenced within the time provided for legal actions concerning the same subject matter regardless of lack of knowledge by the person sought to be held liable that the person alleging liability would assert his or her rights and whether the person sought to be held liable is injured or prejudiced by the delay. This subsection shall not affect application of laches at an earlier time in accordance with law.

See also Engle v. Acopian, 432 So.2d 113, 115-16 (Fla. 5th DCA 1983).

Thus, the court erred in denying Goodwin an accounting based on laches and estoppel. The elements of laches were not met. Like waiver, laches is also an affirmative defense. As such, the burden of proof is on the individual who asserts it, and it must be proved by very clear and positive evidence. Van Meter v. Kelsey, 91 So.2d 327, 332 (Fla.1956). Unlike waiver, laches requires the element of injury or prejudice to the defendant in the event relief is accorded to the plaintiff, or in the event the suit is not barred. Id. There is no showing that Blu Murray would suffer any prejudice by affording Goodwin the relief he seeks in the form of an accounting. Blu Murray’s speculation that the IRS may scrutinize its business records is collateral to the events in question. The records are available; many of them are part of the present record on appeal. Laches may be applied before the statute of limitations expires only where strong equities, not present here, appear. Appalachian, Inc. v. Olson, 468 So.2d 266, 269 (Fla. 2d DCA 1985).

The equitable defenses of waiver and laches require clean hands, and, if Goodwin’s allegations are true, Blu Murray’s conduct does not demonstrate clean hands. The Fourth District in Epstein v. Epstein, 915 So.2d 1272, 1275 (Fla. 4th DCA 2005), aptly described the doctrine of equity:

Equity is a court of conscience; It demands fair dealing in all who seek relief, and requires decency, good faith, fairness, and justice. Equity cannot be invoked for selfish or ulterior purposes .... Where a litigant fails to meet such a standard equity will deny all relief, and if both parties are at fault, relief will be withheld from both.
The clean hands doctrine “applies not only to fraudulent and illegal transactions, but to any unrighteous, uncon-scientious, or oppressive conduct by one seeking equitable interference in his own behalf.” ... He who has acted in bad faith, resorted to trickery or deception, or been guilty of fraud, injustice, or unfairness will appeal in vain to a court of conscience, even though in his wrongdoing he may have kept himself strictly ‘within the law.’

Id. (citations omitted).

Accordingly, we reverse the trial court’s summary judgments on counts one and two adverse to Goodwin and remand for a jury trial to determine the affirmative defense of waiver, Goodwin’s damages, and his status as an employee or independent contractor. The jury’s finding on his status will establish whether Goodwin is entitled to damages under either count one or count two, as well as any entitlement to section 448.08 attorney’s fees and costs as an incident of prevailing on count one. We also reverse the judgment on count three and remand for an accounting.

REVERSED and REMANDED with directions.

GRIFFIN and ORFINGER, JJ., concur.

      . Blu Murray asserted the defense of waiver to both of Goodwin's legal and equitable claims. Because the issues surrounding waiver are identical as to both claims, the legal claims must be tried first so as not to deprive Goodwin of his constitutional right to trial by jury. See Spring v. Ronel, 421 So.2d 46, 47 (Fla. 3d DCA 1982); Adams v. Citizens Bank of Brevard, 248 So.2d 682, 684 (Fla. 4th DCA 1971).


text:
    Verley COMMACK, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-2990.
    District Court of Appeal of Florida, Fifth District.
    Sept. 15, 2006.
    Rehearing Denied Oct. 19, 2006.
    Verley Commack, Blountstown, Pro Se.
    No Appearance for Respondent.
   PER CURIAM.

We deny Petitioner’s request for a belated appeal of his motion for postconviction relief. See Izquierdo v. State, 935 So.2d 1243 (Fla. 5th DCA 2006) (holding that a defendant is not entitled to a belated appeal of the denial of motion for postconviction relief when he fails to demonstrate that the failure to file a timely appeal was due to state action).

PETITION FOR BELATED APPEAL DENIED.

PLEUS, ORFINGER, and LAWSON, JJ., concur.


author: BENTON, J.

text:
    FOOD LION, LLC, Appellant, v. MONUMENT/JULINGTON ASSOC. LTD. PARTNERSHIP, a/k/a Stafford Development Co. and Fay Chamberlain, Appellees.
    No. 1D05-3769.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.
    Rehearing Denied Oct. 24, 2006.

      James G. Lindquist, Esquire and David M. Fernandez, Esquire of Barr, Murman & Tonelli, P.A., Tampa, for Appellant.
    Charles Cook Howell, III, Esquire of Howell & O’Neal, P.A., Jacksonville, for Appellee MonumenVJulington Assoc. Ltd. Partnership, a/k/a Stafford Development Co.
    Randall Rutledge, Esquire, Jacksonville, for Appellee Fay Chamberlain.
   BENTON, J.

This case grows out of a dispute between the owner of a shopping center and one of its tenants, a grocery store, about who is responsible for injuries Fay Chamberlain, a grocery store customer, sustained when she slipped on an icy sidewalk outside the store. The grocer leases the store building, but not the sidewalk. We reverse summary judgment entered in favor of the shopping center owner.

The customer sued the owner and Food Lion, LLC (Food Lion), the grocer. Food Lion filed a cross-claim against the shopping center owner for indemnification and contribution, a cross-claim it later dismissed. Judgment was entered thereafter against the plaintiff on the owner’s motion for summary judgment, which the customer did not oppose or appeal. Here, as below, however, Food Lion argues that entering summary judgment in favor of the owner and against the customer was error. See Holton v. H.J. Wilson Co., Inc., 482 So.2d 341, 342 (Fla.1986) (recognizing a civil defendant’s “right to appeal alleged errors in judgments exonerating codefendants”).

The mere right to appeal does not obviate the necessity to preserve for appeal every point urged on appeal. See, e.g., C.M. v. Dep’t of Child. & Fam. Servs., 854 So.2d 777, 780 (Fla. 4th DCA 2003) (“[T]he error was not preserved and is not a ground for reversing the order terminating the mother’s parental rights.”). Food Lion’s dismissal of its cross-claim precludes relief on the present appeal, therefore, on the claims for indemnification and contribution it first stated in the cross-claim, then abandoned by dismissing the cross-claim.

But the judgment exonerating the shopping center owner also affects important procedural rights Food Lion would otherwise have, under Fabre v. Marin, 623 So.2d 1182, 1183-85 (Fla.1993), receded from in part on other grounds in Wells v. Tallahassee Mem’l Reg’l Med. Ctr., Inc., 659 So.2d 249, 250-54 (Fla.1995), and its progeny, see Thomas v. Daniel, 736 So.2d 100, 101 (Fla. 1st DCA 1999) (“[T]o include a nonparty on a verdict form, defendants seeking to raise third-party liability must not only plead the nonparty’s negligence as an affirmative defense, but must also specifically ... prove the nonparty’s fault in causing the accident.”), and Food Lion did argue against entry of summary judgment below.

Accordingly, we reach Food Lion’s contention that summary judgment should be reversed because the shopping center owner’s nondelegable duties to Ms. Chamberlain did not, on the facts developed below, rule out liability on the part of the owner for her injuries. A landowner owes a business invitee a duty not only to react to hazards of which it has notice but also to inspect to ensure conditions are safe or, at the least, that hazards (unless open and obvious) are discovered and warned against. See Lynch v. Brown, 489 So.2d 65, 66 (Fla. 1st DCA 1986); Anderson v. Walthal, 468 So.2d 291, 294 (Fla. 1st DCA 1985) (explaining that the landlord had a duty “to use ordinary care in keeping the premises in a reasonably safe condition”). See also § 768.0710(2)(b), Fla. Stat. (2002) (“Actual or constructive notice of the transitory foreign object or substance is not a required element of proof to this claim.”).

Whether a landlord’s duty to maintain the premises “ha[s] been breached is ordinarily a question for the jury to decide.” Hancock v. Dep’t of Corr., 585 So.2d 1068, 1071 (Fla. 1st DCA 1991). We reverse and remand for a trial at which “evidence of notice or lack of notice” can be adduced “together with all of the [other] evidence,” § 768.0710(2)(b), Fla. Stat. (2002), on the plaintiffs claims.

Reversed and remanded.

ERVIN and BROWNING, JJ., concur.


author: SUAREZ, J.

text:
    TURNER CONSTRUCTION COMPANY and Travelers Casualty and Surety Company, Appellants, v. E & F CONTRACTORS, INC., Appellee.
    No. 3D06-340.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Rehearing Denied Oct. 18, 2006.
    Peckar & Abramson and Jerry P. Brod-sky and Adam P. Handfinger and Sahr O. Dumbar, Miami, for appellants.
    McConnell Lipton and H. Hugh McConnell, Coral Gables, and Walter Stevens, for appellee.
    Before GERSTEN, GREEN, and ■SUAREZ, JJ.
   SUAREZ, J.

Turner Construction Company and its surety, Travelers Casualty and Surety Company, (collectively, “Turner”) appeal the order granting E & F Contractors, Inc.’s (“E & F”) motion to abate affirmative defenses and entry of final summary judgment for E & F. We affirm.

Turner contends that the trial court erred by striking, without prejudice, its affirmative defense of set-off in E & F’s suit on a construction subcontract. E & F asserts that the orders should be affirmed because Turner’s set-off claim is the subject of other pending litigation between the parties.

E & F entered into four separate subcontracts to perform work for Turner on four different construction projects. E & F filed four separate suits against Turner for payment pursuant to each of the subcontracts. In the instant case, E & F seeks $53,770.20 for work that it performed pursuant to the Alexan subcontract. Turner agrees that the amount is unpaid. However, it asserts set-off as an affirmative defense, claiming that E & F owes Turner more than $53,770.20 for its deficient and defective work on the other projects that the parties are presently litigating. E & F moved to abate the set-off claim and for summary judgment, arguing that set-off is unavailable because the set-off claims and the instant claim each arise out of different subcontracts and different construction projects. The trial court granted E & F’s motion. Instead of abating the action, the trial court struck the affirmative defense of set-off and entered final summary judgment in E & F’s favor.

We affirm because the trial court did not abuse its discretion by striking Turner’s affirmative defense of set-off. The affirmative defense of set-off in the instant case is in the nature of a permissive counterclaim, and is the subject of other pending suits between the parties. See Campbell v. Gordon, 674 So.2d 783 (Fla. 1st DCA 1996)(a permissive counterclaim is one that does not arise out of the transaction or occurrence that is the subject matter of the present claim). It is within a trial judge’s discretion to sever a permissive counterclaim from the main claim if there is no evidence of prejudice. See Whigum v. Heilig-Meyers Furniture, Inc., 682 So.2d 643 (Fla. 1st DCA 1996). Here, the trial court’s order does not prejudice Turner because Turner still has the opportunity to fully litigate its set-off claims in the pending lawsuits arising out of its other subcontracts with E & F. Jones v. Equitable Life Assur. Soc., 126 Fla. 527, 171 So. 317 (1936) (holding that the appellants’ alleged error in litigating a foreclosure suit without litigating the counterclaim at the same time was harmless error because it could be brought separately). Furthermore, the trial court’s order striking the set-off claim promotes the interests of judicial economy, and avoids the potential of inconsistent judgments. No abuse of discretion is evident. See Orange Julius Realty Corp. v. Sunshine Toy Ctr., 251 So.2d 681, 682 (Fla. 3d DCA 1971)(“[a]n appellate court will not interfere with the procedural rulings of a trial judge unless a party is deprived of a substantial right by the procedure employed”).

Affirmed.


text:
    Marc WORD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1270.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Rehearing Denied Oct. 17, 2006.

      Marc Word, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Jones v. State, 922 So.2d 1088 (Fla. 4th DCA 2006).


text:
    Gervase JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1262.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Rehearing Denied Nov. 1, 2006.
    Gervase Johnson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Hughes v. State, 901 So.2d 837 (Fla.2005); Wallace v. State, 931 So.2d 173 (Fla. 5th DCA 2006).


text:
    Herbert SHERMAN, Petitioner, v. TOWN OF BAY HARBOR ISLANDS and Florida Municipal Insurance Trust, Respondents.
    No. 1D06-3920.
    District Court of Appeal of Florida, First District.
    Sept. 20, 2006.
    Rehearing Denied Oct. 20, 2006.
    Mark L. Zientz and Andrea Cox of the Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

As the motion to, disqualify was not timely filed pursuant to Florida Rule of Judicial. Administration 2.160(e), the petition for writ of prohibition is denied.

ALLEN, WEBSTER, and DAVIS, JJ., concur.


author: FLETCHER, Judge.

text:
    Deborah BYARS, Appellant, v. Sandy THOMAS, Appellee.
    No. 3D05-2589.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Rehearing Denied Oct. 18, 2006.

      Murray A. Greenberg, County Attorney, and William X. Candela, Assistant County Attorney, for appellant.
    Slesnick & Casey and James C. Casey, Coral Gables, for appellee.
    Before FLETCHER and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   FLETCHER, Judge.

Deborah Byars appeals from an order vacating an arbitration award in an action for defamation brought by Sandy Thomas. We affirm.

Byars and Thomas were employed by Miami-Dade Corrections Department where Byars was Thomas’ supervisor. In August of 2002, a grievance was filed against Byars on behalf of Thomas by the Police Benevolent Association [PBA] pursuant to the applicable collective bargaining agreement between the PBA and the County. In March of 2004, a settlement agreement was reached whereby written reprimands against Thomas were to be rescinded and Thomas agreed to withdraw her demand for arbitration under the collective bargaining agreement. Two months thereafter, Thomas filed the instant defamation action against Byars stemming from the prior workplace dispute. Byars moved to dismiss, or alternatively to compel arbitration under the collective bargaining agreement. Over Thomas’ objection, the trial court compelled the parties to arbitrate the claim. The arbitrator issued an award finding the matters to be res judicata and denying Thomas’, claim which led to Byars moving for confirmation of the award and Thomas moving for a trial de novo. Without specifying the basis for its ruling, the trial court vacated the arbitration award.

Pursuant to Section 682.13(l)(e), Florida Statutes (2005), a trial “court shall vacate an award when ... [t]here. was no agreement or provision for arbitration ... unless the party participated in the arbitration hearing without raising the objection.” The sole agreement for arbitration herein was contained in the collective bargaining agreement between the PBA and the County. This agreement, in Article 3, specifically states that only the PBA may request arbitration. The parties’ individual rights of actions, therefore, are not subject to the arbitration provision.

We affirm and remand for further proceedings consistent with this opinion.


text:
    Francois E. GREYLING, Appellant, v. WACHOVIA BANK, N.A., Appellee.
    No. 3D05-2370.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 2006.
    Rehearing Denied Nov. 2, 2006.
    Rones & Navarro, and Victor K. Rones, North Miami Beach, for appellant.
    Ruden, McClosky, Smith, Schuster & Russell, and John H. Pelzer, and Brigid F. Cech, Fort Lauderdale, for appellee.
    Before GERSTEN, RAMIREZ, and WELLS, JJ.
   PER CURIAM.

Affirmed. See F & R Builders v. Lowell Dunn Co., 364 So.2d 826 (Fla. 3d DCA 1978).


text:
    Marvin Gene WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1884.
    District Court of Appeal of Florida, Fifth District.
    Sept. 22, 2006.
    Rehearing Denied Oct. 18, 2006.
    Marvin G. White, Jasper, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Kellie A. Nielan, Assistant Attorney General, Daytona Beach, and Brigid E. Collins, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the order of the trial court denying the appellant’s rule 3.850 motion for post-conviction relief without prejudice to his refiling a facially sufficient motion. Rather than refile his motion after correcting his deficiencies, the appellant chose to appeal. He may have been confused by the trial court’s order that mistakenly referenced a necessity for him to comply with rule 3.850(b), Florida Rules of Criminal Procedure. Nevertheless, the motion filed by the appellant did not contain the information required by rule 3.850(c), which was obviously what the trial court intended to say.

AFFIRMED.

THOMPSON, MONACO and LAWSON, JJ., concur.


text:
    Enrique CASTRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1937.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 2006.

      Enrique Castro, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, C.J., and GREEN and CORTINAS, JJ.
   PER CURIAM.

Enrique Castro filed a motion for post-conviction relief, claiming that there are transcription errors in the transcript of his plea colloquy. The trial court summarily denied the motion and Castro has appealed. We vacate the order and remand for further consideration in light of this court’s related reversal in Castro v. State, 935 So.2d 1224 (Fla. 3d DCA 2006).

Reversed and remanded for further proceedings consistent herewith.


text:
    Alexander PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-712.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.
    Rehearing Denied Nov. 8, 2006.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

On Perkins’ claim that the trial court erred in sentencing by considering an affidavit from the Department of Corrections reflecting his prior release date, we affirm on the authority of Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (en banc). As to all other issues raised, we also find no reversible error or abuse of discretion, and affirm.

STONE, POLEN and FARMER, JJ., concur.


author: KLEIN, J. POLEN, J.,

text:
    LIBERTY MUTUAL FIRE INSURANCE COMPANY, a foreign corporation, Petitioner, v. Harvey D. BENNETT, as Personal Representative of the Estate of Sandra L. Bennett, deceased, Respondent.
    No. 4D06-1082.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Rehearing Denied Nov. 9, 2006.

      Gregory M. Keyser and Donna M. Krus-be of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., West Palm Beach, for petitioner.
    Michael B. Davis of Paxton & Smith, P.A., West Palm Beach, for respondent.
   KLEIN, J.

Respondent Bennett brought this suit against Liberty Mutual, his own insurer, as a result of an accident in which his wife’s death was caused by an uninsured tortfeasor. After a jury verdict which was greater than the policy limits on the UM claim, Bennett filed this first-party bad faith action under section 624.155, Florida Statutes (1997). Bennett then obtained an order from the trial court requiring Liberty Mutual to produce its entire claims file, overruling objections based on work product and attorney-client privilege. We grant the petition as to information covered by the attorney-client privilege and certify the question to the Florida Supreme Court as one of great public importance.

In Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), the Florida Supreme Court held that the work product privilege did not protect from discovery the insurer’s file in a statutory first-party bad faith claim, and the trial court accordingly correctly applied Ruiz in holding the work product privilege inapplicable. We agree with Liberty Mutual, however, that the attorney-client privilege, which was not at issue in Ruiz, does apply. XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578 (Fla. 1st DCA 2006) (holding that Ruiz did not do away with the attorney-client privilege in first-party bad faith cases); United Servs. Auto. Ass’n v. Buckstein, 891 So.2d 1153 (Fla. 4th DCA 2005) (upholding the attorney-client privilege in a first-party bad faith case before the supreme court decided Ruiz).

We certify the same question certified by the court in XL Specialty, as one of great public importance:

DOES THE FLORIDA SUPREME COURT’S HOLDING IN ALLSTATE INDEMNITY CO. V. RUIZ, 899 S0.2D 1121 (FLA.2005), RELATING TO DISCOVERY OF WORK PRODUCT IN FIRST-PARTY BAD FAITH ACTIONS BROUGHT PURSUANT TO SECTION 624.155, FLORIDA STATUTES, ALSO APPLY TO ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS IN THE SAME CIRCUMSTANCES?

WARNER, J., concurs.

POLEN, J.,

dissenting.

I respectfully dissent. While I agree with the majority’s certified question to the supreme court, and its observation that Allstate Indemnity Co. v. Ruiz did not expressly deal with the applicability of attorney-client privilege to first party bad faith discovery requests, I see no reason to treat attorney-client privilege any differently in this context. Indeed, the most telling evidence of bad faith, while otherwise arguably privileged, might be the insurer’s attorney’s advice to the insurer that it should settle the case for policy limits. In the face of an alleged unreasonable refusal to settle, why should not the insured be able to discover such information?

I would deny the petition, certify conflict with XL Specialty, and adopt the reasoning of the trial court in toto. To that end, I set forth the trial court’s order verbatim:

THIS CAUSE is before the Court on Plaintiffs Supplemental Request to Produce, and Defendant’s Response thereto. This Court, having considered same, having heard argument of counsel, and being otherwise duly advised in premises, finds and decides as follows:
The instant matter is a claim for bad faith pursuant to 624.155, Fla. Stat. Plaintiff has requested production of Defendant’s claims file on Plaintiffs underlying claim for UM benefits. Defendant is arguing that based on work product and attorney/client privilege, it should not be compelled to produce its entire claims file. With respect to work product documents, Defendant is arguing that it should not be compelled to produce any documents created after October 10, 1997, as “based on the unique facts of this case, this date represents the resolution of the underlying dispute between Plaintiff and Defendant[”](sic). Plaintiff argues in response that the underlying claim for UM benefits was resolved on June 21, 2001, when the jury’s March 8, 2001 verdict was reduced to final judgment.
Both parties cite to the case of Allstate Indemnity Co. v. Ruiz, 889 [899] So.2d 1121 (Fla.2005). In that case, the Florida Supreme Court held that there should be no distinction between a third-party bad faith claim and a first-party bad faith claim for purposes of discovery. In the context of third-party bad faith factions, Florida courts determined:
It is clear that in an action for bad faith against an insurance company for failure to settle a claim within policy limits, all materials, including documents, memoranda and letters, contained in the insurance company’s file, up to and including the date of judgment in the original litigation, should be produced.

Id. at 1126, citing Stone v. Travelers Ins. Co., 326 So.2d 241, 248 (Fla. 3d DCA 1976); United Servs. Auto. Ass’n v. Jennings, 731 So.2d 1258, 1260 (Fla.1999); Dunn v. Nat’l Sec. Fire & Cas. Co., 631 So.2d 1103, 1109 (Fla. 5th DCA 1993). The Florida Supreme Court held that first-party claimants should have “the identical opportunity to pursue bad faith claims against insurers as has been the situation in connection "with third-party claims,” and thus “there is no basis to apply different discovery rules to the substantively identical causes of action.” Id. at 1128.

Florida case law is clear that a bad faith claimant is entitled to the insurer’s file up to and including the date of judgment in the underlying matter. Ruiz, 899 So.2d at 1126. In the instant matter, the date of judgment in the underlying matter was June 21, 2001. The fact that Defendant may have been treating this matter as a bad faith claim on October 8, 1997, does not change the clear holding of the Florida courts in this regard. Therefore, Plaintiff is entitled to Defendant’s file up to and including June 21, 2001, the date of judgment in the underlying matter.

Defendant also argues that the holding of Ruiz, supra, does not render the attorney/client privilege inapplicable, thereby entitling Defendant to withhold from production claim file documents protected by the attorney/client privilege. A reading of the decision in Ruiz, supra, reveals that the Florida Supreme Court did not specifically address the attorney/client privilege. However, numerous courts have addressed this issue and have found that in a bad faith action, no attorney-client privilege extends to protect documents that were created before the date of the judgment that gave rise to such claim. Dunn v. Nat’l Sec. Fire & Cas. Co., 631 So.2d 1103 (Fla. 5th DCA 1993); see also Allstate Indemnity Co. v. Oser, 893 So.2d 675 (Fla. 1st DCA 2005); Superior Ins. Co. v. Holden, 642 So.2d 1139 (Fla. 4th DCA 1994); Liberty Mutual Fire Ins. Co. v. Kaufman, 885 So.2d 905 (Fla. 3d DCA 2004). The holding in Ruiz, supra, necessarily requires a finding that the rationale in these decisions would apply to a first-party bad faith claim as well as a third-party bad faith claim. Therefore, Plaintiff is entitled to all materials contained in Defendant’s claims and litigation file up to and including the date of judgment in the underlying action.

Accordingly, it is hereby

ORDERED AND ADJUDGED that Defendant, Liberty Mutual Fire Insurance Company, is hereby directed to comply with Plaintiffs Supplemental Request for Documents within thirty (30) days from the date of this Order.


text:
    Jimmy Lewis MOORE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-875.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Robin F. Hazel, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   SUAREZ, J.

The defendant appeals his convictions for burglary, petit theft, and resisting arrest without violence. We affirm.

The defendant contends on appeal that he was deprived of a fair trial because the State asked the venire hypothetical questions he deems irrelevant, and because the trial court struck several jurors for cause based on their responses to the hypothetical questions. He seeks reversal of his convictions and retrial. The State asserts that the convictions should be affirmed because the hypothetical questions were proper and the trial court only struck potential jurors who were unwilling to follow the law.

The defendant was arrested when he allegedly reached under the partially opened door of a scrap metal business a few minutes after closing time and grabbed four metal radiators. The owner chased the defendant until the defendant dropped the items. An off-duty officer happened to witness the chase and arrested the defendant. At the police station, the defendant waived his Miranda rights and admitted he was in possession of the radiators.

At trial, the prosecutor explained during voir dire the difference between testimonial and physical evidence, and asked the venire whether it would require the State to produce a specific type of evidence. To illustrate the point, the prosecutor described a hypothetical situation involving a purse snatching. The jurors agreed that a case involving the victim’s testimony along with physical DNA and fingerprint evidence would be a solid case. The prosecutor then asked whether the venire would be satisfied solely with testimony if the witness was credible and the testimony proved the case beyond a reasonable doubt. Several potential jurors explained that they simply could not convict without physical evidence. The trial court then addressed the venire to explain that no specific type of evidence was necessary. The trial court struck for cause those potential jurors who stated they could not convict without physical evidence.

The purpose of voir dire is to “obtain a fair and impartial jury, whose minds are free of all interest, bias, or prejudice.” Pope v. State, 84 Fla. 428, 94 So. 865, 869 (1922). A trial court may exercise its discretion to permit hypothetical questions if they make a “correct reference to the law of the case that aid in determining whether challenges for cause, or peremptory are proper.... ” Pope, 94 So. at 869; Pait v. State, 112 So.2d 380 (Fla.1959) (accord). Hypothetical questions, “designed to determine whether the jurors could correctly apply the law, are permissible.” Williams v. State, 931 So.2d 999 (Fla. 3d DCA 2006). A trial court’s decision to grant or deny a cause challenge is reviewed for an abuse of discretion. Still v. State, 917 So.2d 260 (Fla. 3d DCA 2005).

We affirm because the alleged voir dire error is both unpreserved and without merit. As a preliminary matter, the argument on appeal is unpreserved for appellate review because defense counsel failed to make a contemporaneous objection below. Steinhorst v. State, 412 So.2d 382 (Fla.1982). On the merits, the trial court did not abuse its discretion by permitting hypothetical questions or by striking the jurors at issue for cause. The hypothetical questions did not pretry the case, but tested the venire’s ability to accept both testimonial and physical evidence. The hypothetical scenario did not relate to the facts of the case, and did not ask the jurors to commit to a verdict. Instead, it merely explored whether certain venire members would require the State to produce a certain kind of evidence. Indeed, the questioning revealed that certain potential jurors held such a bias and refused to accept testimony alone even if it was credible and satisfied the burden of proof.

Therefore, the trial court did not err by permitting or participating in this line of questioning, and striking the jurors in whom bias was shown. Williams v. State, 931 So.2d 999 (Fla. 3d DCA 2006) (holding that the trial court did not abuse its discretion by permitting the state to pose various hypothetical scenarios to inquire whether the jurors would find reasonable doubt based on sympathy rather than the hypothetical fact pattern).

Affirmed.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: LAGOA, J.

text:
    Y.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D05-2099.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.

      Greer Davis Wallace, Florida City, for appellant.
    Anthony C. Musto, Hallandale Beach, for appellee.
    Mercedes Scopetta, Guardian Ad Litem.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   LAGOA, J.

The father, Y.P., appeals an order adjudicating his minor children dependent, and asserts that there was no competent, substantial evidence to support the adjudication. Because we find that the evidence was sufficient to establish by a preponderance of the evidence that the children were in substantial risk of imminent threat of harm, abuse, or neglect, we affirm.

As a result of alleged domestic abuse between Y.P. and the children’s mother, R.V., the Department of Children and Family Services (“the Department”) removed the children from the home. Pursuant to a Custody Release Order, the trial court placed the children with family friends and granted Y.P. and R.V. supervised visitation. Following an adjudicatory hearing, the trial court found that the Department established by a preponderance of the evidence that the children were “under substantial risk of imminent threat of harm or abuse and neglect, within the meaning and intent of Chapter 39, Florida Statutes,” and adjudicated the minor children dependent as to both Y.P. and R.V.

In a dependency proceeding, the Department has the burden to prove its allegations by a preponderance of the evidence. R.F. v. Fla. Dep’t of Children & Families, 770 So.2d 1189, 1192 (Fla.2000). We review an adjudication of dependency for an abuse of discretion, and will uphold the determination if the trial court applied the correct law and its ruling is supported by competent, substantial evidence. M.F., 770 So.2d at 1192; D.R. v. Dep’t of Children & Family Servs., 898 So.2d 254, 255 (Fla. 3d DCA 2005); In re J.A.H., 876 So.2d 647, 648 (Fla. 2d DCA 2004). Weighing the evidence is the province of the trial court, M.R. v. Dep’t of Children & Family Sens., 788 So.2d 277, 278 (Fla. 3d DCA 2001), and this Court will not disturb the trial court’s credibility findings. “In the event the evidence is conflicting or turns on credibility of the witnesses, all credence and presumption of correctness must be given to the trial court.” F.R. v. Dep’t of Children & Families, 826 So.2d 449, 450 (Fla. 5th DCA 2002).

Chapter 39, Florida Statutes, seeks to guarantee each child in Florida a safe and supportive home environment and to preserve the family unit whenever possible. To this end, section 39.501(2), Florida Statutes (2005), provides that “[t]he purpose of a petition seeking the adjudication of a child as a dependent child is the protection of the child and not the punishment of the person creating the condition of dependency.” See also M.W. v. Dep’t of Children & Family Sens., 881 So.2d 734, 736 (Fla. 3d DCA 2004).

In the instant case, the Department filed a Petition for Dependency alleging that the parents had abused and/or neglected the minor children, and/or would prospectively abuse and/or neglect the children, so as to cause their physical, mental, and/or emotional health to be significantly impaired. As to Y.P., the Department alleged that Y.P. exhibited violent outbursts and rages when angered, and engaged in acts of domestic violence against R.V. in the presence of the children.

At the adjudicatory hearing, the trial court heard testimony from Y.P., R.V., and two Child Protective Investigators. Y.P. testified that he sometimes broke things when he became upset, including breaking chairs and punching a hole in the wall in his home. Y.P. acknowledged that the children were in the home, although not in the same room, during these incidents. Y.P. also admitted that while Child Protective Investigator, Serena Stewart (“Stewart”), was at his home to interview him, he punched the wall of his trailer after learning that he could not accompany his wife and children to their interviews with the Department. Y.P. was offered, but declined, the following services: daycare, a safety plan for the children, anger management, and family counseling.

Stewart testified that when she visited the home, she noticed that the kitchen sink and counters were missing, leaving exposed piping. The kitchen and living room of the trailer ran together and were located very close to the bedrooms. During this visit, Y.P. told Stewart that he had torn out the sink and counter when he was upset, and that he would move to another country where he could beat his wife and his kids when he wanted to, and even kill his wife if he decided to do so.

Subsequent to Stewart’s visit, Y.P. escorted R.V. and the children to the Department’s office. While in the waiting area, Y.P. became violent and began using racial slurs when he was not allowed to be present during the interviews of R.V. or the children. The police were called, and it was only after the police arrived that Y.P. permitted his wife and children to be escorted by the police out of the waiting room and into the Department’s office.

During her interview, R.V. admitted that Y.P had hit her with a stick, and that she fled with the children to a shelter following the incident. R.V. was offered a shelter with her children but declined, telling the Department investigators that she could not leave her husband. R.V. also refused any services offered by the Department.

Based on the evidence presented, the trial court found that Y.P. hit R.V. with a stick after she attempted to stop Y.P. from hitting their children and that R.V. and the children sought shelter following this incident. The trial court also found that Y.P. had an anger control problem that included a history of breaking things while the children were present in the home and engaging in verbally abusive behavior toward Department staff after learning that he could not be present during the Department’s interviews with the mother and children. The trial court further found that Y.P.’s past criminal conviction interfered with his ability to care for the children and placed them at risk of significant impairment. Finally, the trial court also noted that the parents rejected any services from the Department.

Based on these findings, the trial court entered an Order adjudicating the children dependent as to Y.P., finding that “[t]he Department has proven by a preponderance of the evidence that the [minor] children are under substantial risk of imminent threat of harm or abuse and neglect, within the meaning and intent of Chapter 39, Florida Statutes, which is likely to cause the children’s physical, emotional or mental health to be significantly impaired.” The trial court further found that Y.P. had “physically and emotionally abused and neglected, and prospectively will emotionally abuse and neglect” the children through “acts of domestic violence against the [m]other [R.V.] in the presence of the [c]hildren.”

On appeal, Y.P. argues that the Department failed to establish that the alleged domestic violence either occurred in the presence of the children or that the children were aware of any domestic violence. We disagree.

Florida courts have consistently held that “presence” extends to an awareness of the domestic violence. See e.g., D.R. v. Dep’t of Children & Family Servs., 898 So.2d 254, 255-56 (Fla. 3d DCA 2005) (affirming dependency adjudication where record reflected a history of domestic violence between the parents while the child was in the home); D.W.G. v. Dep’t of Children & Families, 833 So.2d 238, 242-43 (Fla. 4th DCA 2002) (explaining that children may be aware of domestic violence even if they do not see it).

In the instant case, the record amply supports the trial court’s findings. It is clear from the evidence presented that Y.P. engaged in violent behavior while the children were in the relatively close confines of the home and that Y.P. engaged in violent behavior in front of the children while in the waiting area of the Department’s office. Indeed, the record demonstrates that Y.P prevented the children from entering the Department’s office until the police arrived. Moreover, the aftermath of Y.P.’s behavior was evident long after the rage subsided, ie., a hole in the wall, broken chairs, and a torn kitchen sink and countertop leaving exposed pipes. Finally, the record demonstrates that R.V. fled with the children to a shelter after Y.P hit her with a stick. Accordingly, we affirm the trial court’s order of dependency as to Y.P., the father.

Affirmed.

      . R.V.’s separate appeal was affirmed by this Court. R.V. v. Dep’t of Children & Family Servs., 932 So.2d 205 (Fla. 3d DCA 2006) (table).

      . Pursuant to section 39.01(30)(i), Florida Statutes (2005), “harm” can occur when a parent ”[e]ngages in violent behavior that demonstrates a wanton disregard for the presence of a child and could reasonably result in serious injury to the child.”

      . Pursuant to section 39.01(2), Florida Statutes (2005), "abuse” is defined as including "any willful act or threatened act that results in any physical, mental or sexual injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.”

      .Pursuant to section 39.01(45), Florida Statutes (2005), " '[njeglect’ occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired.... Neglect of a child includes acts or omissions.”


text:
    Jose CANSECO, Jr., and Oswaldo Canseco, Appellants, v. Alan CHEEKS and Christian Presley, Appellees.
    Nos. 3D05-1661, 3D05-1660.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.
    Robert 0. Saunooke, Miramar, for appellants.
    Gaebe, Mullen, Antonelli, Esco & DiMatteo, and Christienne H. Sherouse, and Anne C. Sullivan, Coral Gables; Podhurst Orseck, and Stephen F. Rosenthal, Miami, for appellees.
    Before GERSTEN, GREEN, and SUAREZ, JJ.
   PER CURIAM.

Jose Canseco, Jr., (“Jose”), and Oswaldo Canseco, (“Ozzie”), (collectively “the Cansecos”), appeal the trial court’s order of final judgment in favor of Christian Presley, (“Presley”), and Alan Cheeks, (“Cheeks”), in a tort action. We affirm.

On Halloween night, the Cansecos, who are former professional baseball players and martial art experts, went to a Miami Beach nightclub costumed as modern-day vampires and leather-clad warriors. Cheeks, a scientist and accomplished woodwind musician, and Presley, an oncology drug researcher, were in Miami Beach for a conference and ended up at the same nightclub.

Without any provocation, Jose attacked Presley, shoving him against a column, lifting him by the throat, and choking him. Jose punched Presley several times before proceeding to punch Cheeks. A bouncer tried to stop the attack, but Jose continued. As a result, Presley had a broken nose, and Cheeks suffered lip injuries that hindered his ability to play his saxophone.

Presley and Cheeks sued the Cansecos for battery, conspiracy to commit battery, and the intentional infliction of emotional distress, (“IIED”). The jury found in favor of Presley and Cheeks and awarded compensatory and punitive damages. The trial judge remitted part of the punitive damages award, and then ordered the jury to assign liability jointly and severally. The Cansecos appeal.

The Cansecos first contend that the trial court abused its discretion in admitting medical bills without physician authentication. We reject the contention that it is necessary to introduce expert testimony as a precondition to admitting the medical bills. See Garrett v. Morris Kirschman & Co., 336 So.2d 566, 571 (Fla.1976); A.J. v. State, 677 So.2d 935 (Fla. 4th DCA 1996); Invin v. Blake, 589 So.2d 973 (Fla. 4th DCA 1991).

Second, the Cansecos argue that the trial court erred in finding the Canse-cos liable for IIED. We believe the Canse-cos’ conduct satisfies an IIED claim. See LeGrande v. Emmanuel, 889 So.2d 991, 994 (Fla. 3d DCA 2004); Johnson v. Dep’t of Health & Rehab. Servs., 695 So.2d 927, 929-930 (Fla. 2d DCA 1997).

Next, the Cansecos contend that the trial court erred in awarding punitive damages. We disagree because intentional battery supplies the requisite proof of malice, justifying a punitive damages award. See Brown v. Ford, 900 So.2d 646, 648 (Fla. 1st DCA 2005); Parsons v. Weinstein Enters., Inc., 387 So.2d 1044, 1046 (Fla. 3d DCA 1980).

Finally, the Cansecos argue that the trial court erred in holding the Cansecos jointly and severally liable. We disagree. See Barton Protective Servs., Inc. v. Faber, 745 So.2d 968, 976 (Fla. 4th DCA 1999).

Accordingly, we affirm the final judgment in favor of Presley and Cheeks.

Affirmed.