author: KELLY, Judge.

text:
    Maria TORRES, as parent and natural guardian of Luis Torres, a minor child, Appellant, v. SARASOTA COUNTY PUBLIC HOSPITAL BOARD, d/b/a Sarasota Memorial Hospital; Gary W. Easterling, M.D.; Gary W. Easterling, M.D., P.A.; and Sarasota County Health Department, Appellees.
    No. 2D04-1634.
    District Court of Appeal of Florida, Second District.
    April 13, 2007.
    Rehearing Denied June 13, 2007.

      Joel S. Perwin of Joel S. Perwin, P.A., Miami, and Richard M. Shapiro of Shapiro Law Group, Bradenton, for Appellant.
    Carol Ann Kalish and David A. Wallace of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for Appellee Sarasota County Public Hospital Board, d/b/a Sarasota Memorial Hospital.
    Brett Powell of Hicks & Kneale, P.A., Miami, and Mark Haskins of Lumpkin & Haskins, P.A., Sarasota, for Appellee Gary W. Easterling, M.D., and Gary W. Easter-ling, M.D., P.A.
    Daniel E. Scott, Sarasota, for Appellee Sarasota County Health Department.
   KELLY, Judge.

In this medical malpractice action brought by Luis Torres through his mother, Maria Torres, to recover for birth-related injuries, the trial court entered judgment for the appellees, Sarasota County Public Hospital Board, d/b/a Sarasota Memorial Hospital; Gary W. Easter-ling, M.D.; Gary W. Easterling, M.D., P.A.; and the Sarasota County Health Department. The judgment in favor of the appellees followed the entry of a judgment in favor of the doctor who had delivered Luis, Dr. John Sullivan, after the trial court found that Dr. Sullivan had not deviated from the standard of care when he delivered Luis. In Torres v. Sullivan, 903 So.2d 1064 (Fla. 2d DCA 2005), this court reversed the judgment in favor of Dr. Sullivan after concluding that the trial court had improperly rejected the opinion of Luis’s expert on the standard of care. In this appeal, Luis contends that we must reverse the summary judgments in favor of each of the parties to this appeal because they relied on the trial court’s finding that Dr. Sullivan had not deviated from the applicable standard of care. He also argues that although Dr. Easterling raised additional arguments in support of his motion for summary judgment, those arguments cannot sustain the judgment in Dr. Easterling’s favor. We agree.

The Summary Judgment for Dr. Sullivan

During delivery, Luis sustained a bra-chial plexus injury. The complaint alleges that Dr. Sullivan was negligent because he failed to obtain a complete obstetrical history from Mrs. Torres and, as a result, delivered Luis vaginally instead of performing a Caesarean section. The trial court granted Dr. Sullivan’s motion for summary judgment after it concluded that Dr. Sullivan had not deviated from the standard of care when he took Mrs. Torres’s history. The trial court reached its conclusion by rejecting the testimony provided by Mrs. Torres’s expert on the standard of care in favor of conflicting testimony provided by Dr. Sullivan’s expert. This court reversed because the issue of whether Dr. Sullivan’s actions met the applicable standard of care involved “a disputed issue of fact that could not be resolved by the trial judge in a motion for summary judgment.” Id. at 1068.

Sarasota Memorial Hospital

Luis’s complaint alleges that the Hospital is vicariously liable for Dr. Sullivan’s negligence and the negligence of the nurse who assisted him in obtaining Mrs. Torres’s history. In moving for summary judgment, the Hospital asserted that because Dr. Sullivan had been found not to be negligent, the Hospital was exonerated from any vicarious liability for his actions. The Hospital also asserted that if Dr. Sullivan had acted within the standard of care, then so had its nurse, and thus, the summary judgment in favor of Dr. Sullivan exonerated it from any vicarious liability for her actions. Because the Hospital’s motion for summary judgment depended entirely on the trial court’s earlier improper determination that Dr. Sullivan had not deviated from the standard of care, we agree with Luis that our decision in Torres v. Sullivan mandates reversal of the summary judgment in favor of the Hospital.

Sarasota County Department of Health

The complaint alleges that during her pregnancy with Luis and during an earlier pregnancy, Mrs. Torres received prenatal care from the Department of Health. The allegations of negligence against the Department pertain in one way or another to the medical records created and kept by the Department during those pregnancies. In moving for summary judgment, the Department argued that the allegations of negligence against it were no different than those made against Dr. Sullivan and therefore it too was entitled to summary judgment. Although it appears to us that the Department’s characterization of the allegations against it was not entirely accurate, the trial court apparently was convinced by this argument because it granted the Department’s motion. We agree with Luis that the judgment in favor of the Department cannot be sustained because the trial court relied on its erroneous determination that Dr. Sullivan was not negligent.

Dr. Easterling

A year before Luis was born, Dr. East-erling delivered Luis’s sister, Isaura. The complaint alleges that “by virtue of his physician/patient relationship with Mrs. Torres” in connection with Isaura’s birth, Dr. Easterling owed a duty, not only to Mrs. Torres, but also to her unborn son, Luis. The complaint alleges that the standard of care applicable to Dr. Easterling required him to document in Mrs. Torres’s medical records Isaura’s condition at birth and the complications Mrs. Torres experienced during labor and delivery. It also alleges that he was obligated to tell Mrs. Torres that Isaura had suffered an Erb’s Palsy because of birth trauma and that Mrs. Torres should provide this information to future health care providers. The complaint alleges that Dr. Easterling failed to do any of these things and that had he done them, Dr. Sullivan or a reasonable obstetrician under the same circumstances would have had this information and as a result would have performed or ordered a Caesarean section (with Mrs. Torres’s consent) instead of attempting to deliver Luis vaginally.

After the trial court entered the judgment in favor of Dr. Sullivan, Dr. Easter-ling moved for summary judgment. He claimed he was entitled to summary judgment on three grounds: he did not owe a duty to Luis, he was not negligent, and his alleged negligence could not have been the cause of Luis’s damages. The trial court did not specify which ground provided the basis for its ruling in favor of Dr. Easter-ling. On appeal, Luis contends that none of the grounds argued by Dr. Easterling provide a basis to affirm the summary judgment. We agree and write only to discuss the question of whether Dr. East-erling owed a duty to Luis.

Dr. Easterling argues that the summary judgment in his favor was proper because he did not owe a duty of care to Luis. Citing Pate v. Threlkel, 661 So.2d 278 (Fla.1995), Dr. Easterling contends that Luis was not his patient and “before a physician can be found to owe a legal duty of care to a third party not under the care of that physician, it must be shown that the physician is aware of the existence of the third party.” Dr. Easterling contends that he could not have been aware of Luis’s existence because Luis did not exist at the time of his alleged negligence. Dr. Easterling also argues that “the concept of legal duty is based upon whether the defendant’s actions place the plaintiff within a zone of danger” and that the question of duty “presupposes the actual existence of the plaintiff as a member of society capable of being injured as the result of the defendant’s actions.”

In medical malpractice actions, as in other negligence actions, a plaintiff must establish a duty owed to the plaintiff by the defendant, a breach of that duty by allowing conduct to fall below the applicable standard of care, and an injury proximately caused by the defendant’s breach of duty. Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So.2d 398 (Fla. 2d DCA 1988). “Unlike most duties, the physician’s duty to the patient is explicitly relational: physicians owe a duty of care to patients.” Restatement (Third) of Torts Liab. For Physical Harm § 41 cmt. h (Proposed Final Draft No. 1, 2005). Thus, the existence of a relationship between a physician or other healthcare provider and a patient is an essential element of a cause of action for medical malpractice because it is that relationship that gives rise to the physician’s duty of care. See Pate, 661 So.2d at 281. We agree that no physician-patient relationship existed between Luis and Dr. Easterling.

The absence of a physician-patient relationship between Luis and Dr. Easterling is not necessarily fatal to his claim, however, because Florida has extended a physician’s duty to third parties in limited circumstances. See, e.g., Pate, 661 So.2d at 282; Gill v. Hartford Accident & Indem. Co., 337 So.2d 420 (Fla. 2d DCA 1976) (physician had a duty to warn the plaintiff, who shared a room with his patient, of his patient’s contagious infection); Cheeks v. Dorsey, 846 So.2d 1169 (Fla. 4th DCA 2003) (physician has a duty to third parties who may be injured as a result of the physician’s failure to take the proper precautions in prescribing a drug to his patient which may interact with alcohol or other drugs); Hofmann v. Blackmon, 241 So.2d 752 (Fla. 4th DCA 1970) (physician has a duty to advise and warn family members of his patient’s contagious disease). The analysis of whether such an extension is appropriate in this case is complicated by the fact that Luis had not been conceived at the time of Dr. Easterling’s alleged malpractice. The question of whether a child has a medical malpractice cause of action for injuries allegedly caused by the negligence of a physician when that negligence occurs before the child is conceived appears to be one of first impression in Florida.

Courts have dubbed the type of claim Luis asserts against Dr. Easterling a “preconception tort.” See, e.g., Grover v. Eli Lilly & Co., 63 Ohio St.3d 756, 591 N.E.2d 696, 698 (1992). Preconception tort actions are generally defined as actions in which the plaintiff is seeking redress for injuries caused by negligent conduct that occurred before the plaintiffs conception. A claim for “wrongful life” is a preconception tort. A “wrongful life” claim is a malpractice action in which the plaintiff child alleges that if the defendant physician had not been negligent in providing medical advice or treatment to the plaintiffs parents, the plaintiff would not have been born. Kush v. Lloyd, 616 So.2d 415, 417 n. 3 (Fla.1992). Most courts that have considered the issue have refused to recognize such an action because of the nature of the “right” invaded — the right not to be born — and the nature of the damages:

The normal measure of damages in tort actions is compensatory. Damages are measured by comparing the condition plaintiff would have been in, had the defendants not been negligent, with plaintiffs impaired condition as a result of the negligence. The infant plaintiff would have us measure the difference between his life with defects against the utter void of nonexistence, but it is impossible to make such a determination. This Court cannot weigh the value of life with impairments against the nonexistence of life itself. By asserting that he should not have been born, the infant plaintiff makes it logically impossible for a court to measure his alleged damages because of the impossibility of making the comparison required by compensatory remedies.

Gleitman v. Cosgrove, 49 N.J. 22, 227 A.2d 689, 692 (1967), abrogated on other grounds by Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979). In Kush, the court confirmed that Florida does not recognize a claim for “wrongful life.” 616 So.2d at 423. In rejecting the claim, the court did not mention that the child asserting the claim had not been conceived at the time of the physician’s alleged negligence. Instead, the court cited the “existential conundrum” created by such a claim. Id.

The claim Luis asserts is not a claim for “wrongful life,” and the damages he seeks are those typically sought in a claim for medical malpractice. Thus, the reasoning the court employed in Kush does not preclude the type of claim Luis asserts. On the other hand, we cannot say that Kush sanctions his claim simply because the court made no mention of the preconception timing of the physician’s negligence as a factor in rejecting the claim for wrongful life. And although we believe it is unwise to read too much into the fact that Kush makes no mention of the preconception timing of the physician’s negligence as a factor in rejecting that child’s claim, the fact that the court never discussed the issue of duty, and either overlooked or ignored the fact that the physician’s alleged negligence occurred before the child was conceived, militates against a conclusion that we should reject Luis’s claim solely because he had not been conceived at the time of Dr. Easterling’s alleged negligence. Instead of adopting a blanket no-duty rule based on the timing of the physician’s alleged negligence, we believe it is appropriate to assess the viability of Luis’s claim as we would any other medical malpractice claim brought against a physician by someone other than a patient.

To assess the viability of Luis’s claim, Dr. Easterling urges us to follow Pate. Luis asserts that Pate undermines Dr. Easterling’s argument and supports finding a duty in this case. In Pate, the plaintiffs mother was diagnosed with a genetically transferable disease. 661 So.2d at 279. The plaintiff alleged that her mother’s physicians knew or should have known of the likelihood that her children would have inherited the condition and that, under the applicable standard of care, the mother’s physicians had a duty to warn the mother that it was important to test her children for the disease. Id. The plaintiff alleged that because the physicians had failed to warn the mother, the plaintiff did not get tested for the disease until it had reached a point where it was incurable. The physicians argued that in the absence of a professional relationship, they did not owe a duty to the plaintiff. Id. at 279-80. Noting that in other professional relationships lack of privity did not preclude the imposition of a duty where a third party was the intended beneficiary of the services rendered, the court concluded that “when the prevailing standard of care creates a duty that is obviously for the benefit of certain identified third parties and the physician knows of the existence of those third parties, then the physician’s duty runs to those third parties.” Id. at 282.

In this case, the parties’ experts on the standard of care agreed that it required Dr. Easterling to document Isaura’s difficult delivery and the injury she sustained as a result. Those experts also agreed that the standard exists at least in part because the information is “useful to those who subsequently care for and provide” obstetrical care for the patient. One expert indicated that a doctor must “communicate with the future care givers” and that “if the doctor does not record all complications, he has not completed his task.” The standard of care as articulated by these experts clearly contemplates that the information will be useful in future deliveries to avoid complications that occurred in the past and that might harm the mother or future children.

Even though the standard of care contemplates future children, Dr. Easterling contends that Luis cannot maintain this action because Pate states that the duty only extends to third parties when the physician knows of their existence. He argues that because a future child does not exist, a physician cannot owe that child a duty under the exception created by Pate. For several reasons, we do not read Pate to preclude a duty in this case. First, in Pate, the court was not faced with a case involving preconception medical malpractice where, by definition, the plaintiff will not exist at the time of the alleged negligent act. Second, in Pate, the court tied the existence of a duty to the nature of the standard of care the physician owed to the patient. The standard of care alleged to have been breached in Pate was premised on the physicians’ knowledge of the third parties, the children. In contrast, in this case, the standard of care is premised on the possibility that in the future the patient will have another child. Applying the rationale of Pate to this case, we conclude that Dr. Easterling’s duty extended to Luis.

In reaching this conclusion, we have considered that other states have permitted claims for preconception negligence in analogous circumstances. The cases we find most closely analogous are those involving a physician’s failure to give a mother Rh immune globulin following the birth of a child. See, e.g., Lynch v. Scheininger, 162 N.J. 209, 744 A.2d 113 (2000); Lough v. Rolla Women’s Clinic, Inc., 866 S.W.2d 851 (Mo.1993); Walker v. Rinck, 604 N.E.2d 591 (Ind.1992). In analyzing whether the physicians in those cases could be liable to a child who was not conceived at the time of the negligent act — the failure to administer Rh immune globulin — the courts were persuaded by the fact that the only reason to administer Rh immune globulin is for the protection of future children. See, e.g., Walker, 604 N.E.2d at 594-95. While on this record we cannot say that the duty to document complications or injuries occurring during labor and delivery is exclusively for the benefit of future children, it is unquestionably done at least in part for their benefit.

We also find it persuasive that our decision to allow a child in Luis’s position to maintain a claim will not impose any obligations on physicians beyond what is already required by the prevailing standard of care. Further, the duty the physician owes to his patient, the mother, is no different than the duty owed to the yet-to-be-conceived child. Thus, there is no conflict between what the physician is obligated to do in caring for the patient and what he is obligated to do to avoid creating a risk of harm to future children. In other words, as a matter of policy, we see no basis under the facts in this case to deny Luis the ability to bring a claim for injuries that he sustained as result of negligence that occurred before he was conceived.

Further, recognizing Luis’s claim is consistent with the policy this court adopted in a case with similar issues. In Day v. Nationwide Mutual Insurance Co., 328 So.2d 560 (Fla. 2d DCA 1976), a child sued for prenatal injuries. The child’s mother was six weeks’ pregnant when she was involved in an automobile accident. When the child was born eight months later, she had “severe cerebral damage.” Id. The defendant argued, among other things, that because a fetus of six weeks was not a “person” in the “constitutional law sense,” it could not be a “person” for the purpose of the lawsuit. Id. at 562.

This court rejected the argument that a nonviable fetus had no legal existence stating, “a child born alive, having suffered prenatal injuries at any time after conception, has a cause of action against the alleged tortfeasor. If the child is born alive, there is a relation-back to the time of injury in order for the infant person to maintain its cause of action.” Id. (footnote omitted). This court stated further that

[hjere, however, the primary concern is the child who has suffered an injury and who in many instances must go through life with an injury or some resulting deformity. Additionally, society also has a very direct concern. A child who is born alive but inflicted with a physical or mental injury or deformity is a potential public charge. Where the injury or deformity is caused by the fault of another, fairness dictates that the financial needs of such child should be borne by the tortfeasor rather than the taxpayer.

Id. While Day involved a postconception injury, the underlying argument was that the defendant could not owe a duty to someone who did not exist. Faced with this previously unrecognized claim, this court chose as a matter of policy to make the alleged wrongdoer answer for his actions rather than deprive the injured party of a remedy, the ultimate result of which would have been to place the financial burden caused by the injury on society rather than the wrongdoer.

Although we have concluded that we are obliged to follow Pate and apply its third-party beneficiary analysis, we note that the majority of courts that have considered medical malpractice claims based on preconception negligence have elected to use a traditional negligence analysis. See, e.g., Renslow v. Mennonite Hosp., 67 Ill.2d 348, 10 Ill.Dec. 484, 367 N.E.2d 1250 (1977); Martin v. St. John Hosp. & Med. Ctr. Corp., 205 Mich.App. 486, 517 N.W.2d 787 (1994); Monusko v. Postle, 175 Mich.App. 269, 437 N.W.2d 367 (1989). In doing so, those courts have analyzed a variety of factors in determining whether to impose a duty, foremost among them, the foreseeability of harm to the plaintiff. Although Pate does not rely on a traditional negligence analysis, it does not completely ignore the concept of foreseeability of harm. Rather, the court noted that “[o]ur holding is likewise in accord with McCain [v. Florida Power Corp., 593 So.2d 500 (Fla.1992) ] because under the duty alleged in this case, a patient’s children fall within the zone of foreseeable risk.” Pate, 661 So.2d at 282. The court does not elaborate, but it seems evident to us that it was simply recognizing that because the alleged standard of care imposed an obligation to protect third parties, provided the physician knew they existed, those third parties necessarily were foreseeable. In this case, the alleged standard of care requires physicians to document certain complications so those complications can be avoided in future deliveries. Thus, future children, such as Luis, are necessarily foreseeable given the nature of the alleged standard of care.

In reviewing cases from other jurisdictions in which courts have employed a traditional negligence analysis, we also examined other factors those courts thought were significant and we found nothing that, if applied to this case, would rule out recognizing a claim like the one Luis asserts. On the other hand, we also found no case where a duty was imposed based on a physician’s failure to properly document complications during labor and delivery. It appears to us that the difference in those cases and in this case may lie in how direct the link is between the plaintiffs injury and the physician’s alleged negligent act. For example, in Monusko, the plaintiff was injured after her mother contracted rubella while she was pregnant with the plaintiff. 437 N.W.2d at 368. The plaintiff alleged that her mother’s physicians provided negligent prenatal care during an earlier pregnancy when they failed to have the mother tested or immunized for rubella. The court looked at the foreseeability óf the harm to the plaintiff in determining whether the physician owed her a duty. Id. at 369. In finding that a duty existed, the court stressed the “direct connection between the test and immunization procedure and the harm ... and the fact that the test and the preconception immunization are specifically designed to prevent rubella syndrome in children that are not yet conceived.” Id. at 370.

In Martin, the plaintiff mother, as the personal representative of her daughter’s estate, brought a wrongful death action after their daughter was stillborn as a result of a rupture of the mother’s uterus. 517 N.W.2d at 788. The estate sued the hospital employing the physicians who performed a Cesarean section on the mother in connection with an earlier pregnancy. The estate alleged the physicians breached their duty to the daughter because when they performed the earlier Cesarean section on the mother, they used an incision that was well known to increase the risk of uterine rupture in later pregnancies. Id. at 789. In rejecting the argument that the physicians did not owe a duty to the child because she was conceived after the earlier Cesarean section, the court framed the issue as whether the parents could maintain an action for the death of their child where “the alleged breach of care in performing the procedure on the mother involves the failure to adhere to a standard of care which contemplates future pregnancies and considers the effect the procedure may have on such pregnancies.” Id. at 790. In concluding that the estate could maintain the action, the court noted the direct connection between the services provided to the mother and the harm that occurred. Id.

These cases are representative of those in which courts have allowed a child to maintain a claim for preconception medical malpractice. Arguably, in those cases the link between the negligent act and the injury to the later-conceived child is more direct than the link in this case. Pate, however, does not expressly include in its analysis a consideration of how directly the injury is connected to the alleged negligent act. Even if we believed that such a consideration was consistent with Pate, if we compare the facts here to those in Pate, we cannot say that the connection between Dr. Easterling’s alleged negligent act and Luis’s injury is more remote than was the connection in Pate. Accordingly, while we realize our holding extends liability to a factual scenario that differs from those typically found in cases recognizing claims for preconception medical malpractice, we conclude that to hold otherwise would be inconsistent with Pate.

Reversed and remanded for further proceedings.

FULMER, C.J., and CANADY, J., Concur.

      . A brachial plexus injury is an injury to the nerve bundles which travel from the spinal cord to the arms resulting in Erb’s palsy, paralysis of the upper arm.

      .We have not overlooked the fact that in this appeal the Department has raised additional arguments in support of the judgment in its favor, including an argument that its alleged negligence could not have been the cause of Luis’s injury. Those arguments were not made to the trial court at the time of the summary judgment, and the record is not sufficiently developed to permit us to conclude that the Department is entitled to a judgment as a matter of law based on these alternative arguments. See State Farm Fire & Cas. Co. v. Levine, 837 So.2d 363 (Fla.2002). The Department is free to raise those arguments to the trial court on remand.

      . The complaint uses the term "unborn.” Luis’s status at the time Isaura was born is more accurately described as “yet-to-be-conceived” rather than “unborn.”

      . On appeal, Dr. Easterling has not asserted that we can affirm the summary judgment based on his argument that he was not negligent. In the trial court, his argument regarding causation relied on the summary judgment in favor of Dr. Sullivan and, in light of our decision in Torres v. Sullivan, we agree that this argument by Dr. Easterling cannot provide a basis to affirm the summary judgment in his favor. We recognize that in his arguments to this court, Dr. Easterling has significantly expanded the causation argument he made in the trial court. As was the case with the additional arguments raised by the Department, our record is not sufficiently developed to permit us to conclude that the summary judgment should be affirmed on the basis of the new arguments. In particular, Dr. Easterling's argument relies on factual assertions regarding Dr. Sullivan's actions that, based on the record before us in this appeal, we cannot conclude are undisputed. We express no opinion on the merits of the new arguments, and Dr. Easterling is free to raise them on remand.

      . A related claim belonging to parents is a claim for "wrongful birth.” A claim for "wrongful birth” is a medical malpractice claim asserted by parents to recover damages they sustain as a result of the birth of a deformed or impaired child. Kush v. Lloyd, 616 So.2d 415, 417 n. 2 (Fla.1992).

      . Through his mother, Luis is claiming damages for loss of future earning capacity, past and future mental pain and suffering, and past and future medical expenses.

      . Rh immune globulin is given to Rh-negative women after pregnancies in which they carried Rh-positive babies to prevent the mother's immune system from reacting to the Rh-positive blood of any subsequent child. Without Rh immune globulin, subsequent pregnancies may end in miscarriage, stillbirth, or birth to babies with anemia, jaundice, or other serious health problems.


source: Caselaw Access Project

author: SHAHOOD, J.

license: Public Domain

text:
    Elena WHITBY a/k/a Jennifer Ross, Appellant, v. INFINITY RADIO, INC., a Delaware corporation, f/k/a CBS Radio, Inc., et al., Appellees.
    No. 4D06-660.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Rehearing Denied Aug. 8, 2007.

      David L. Gorman of David L. Gorman, P.A., North Palm Beach, for appellant.
    Alan Rosenthal, Natalie J. Carlos and Tenikka L. Cunningham of Adorno & Yoss LLP, Miami, for appellee Infinity Radio, Inc.
   SHAHOOD, J.

Elena Whitby, a/k/a Jennifer Ross (“Whitby”), timely appeals the Final Order of Further Contempt and Sanctions based on the violation of a non-compete covenant of an employment agreement. We affirm.

Whitby was employed as a radio personality by WRMF-FM 97.9 (WRMF) in West Palm Beach for fifteen years beginning in 1980. On May 18, 1995, Whitby entered into an employment agreement with OmniAmerica Group (the “1995 Agreement”), the owner of WEAT-FM 104.3 (“WEAT”). The 1995 Agreement contained a non-compete covenant which prohibited Whitby, for twelve months after leaving WEAT, from appearing on radio or television and from working for any competing business within 125 miles of WEAT.

Whitby started broadcasting at WEAT on September 25, 1995. OmniAmerica sold WEAT to Chancellor Broadcasting, which in turn sold the station to American Radio Systems in 1996. American Radio then merged with CBS Radio, Inc. in 1998, which has since changed its name to Infinity Radio, Inc. (“Infinity”).

In February 1999, Whitby and Infinity signed an “Amendment to Letter Agreement” which contained language providing that the 1995 Agreement remained in full force and effect and was ratified and confirmed. Also in February 1999, Whitby became the lead host of WEAT’s morning show following the death of WEAT’s existing lead host, Kevin Kitchens. WEAT’s morning show became the highest rated show in the market.

The 1995 Agreement was set to expire on September 25, 2000. In August 2000, Russ Morley (Morley), an employee and on-air personality for James Crystal Holdings, Inc., met with Whitby to discuss the possibility of Whitby working as an on-air personality for WRMF, a direct competitor of WEAT.

On September 21, 2000, James Crystal Holdings, Inc. executed a three-year employment agreement with Whitby for her to broadcast the WRMF morning show. On September 25, 2000, when the 1995 Agreement terminated, Whitby ceased her employment with WEAT. Later that day, she began broadcasting on WRMF.

On September 26, 2000, Infinity filed both a Complaint for Injunctive Relief and an Emergency Motion for Temporary Injunction against Whitby to enforce the non-compete provision in the 1995 Agreement. After a hearing on October 4, 2000, the court denied the motion for temporary injunction. Infinity appealed this ruling to this court. This court, on February 21, 2001, reversed the denial of a temporary injunction and remanded with instructions to enter a temporary injunction. See Infinity Radio, Inc. v. Whitby, 780 So.2d 248 (Fla. 4th DCA 2001). Whitby petitioned the Florida Supreme Court for discretionary review of this decision, which was denied. See Whitby v. Infinity Radio, Inc., 796 So.2d 539 (Fla.2001).

On remand, the trial court entered a temporary injunction enjoining Whitby from being employed by WRMF in any capacity for a one-year period from April 27, 2001 through April 27, 2002.

On May 1, 2001, Infinity filed an Emergency Motion to Enforce Temporary Injunction. The motion stated that Whitby had made a personal appearance at a publicity event on behalf of WRMF in violation of the court’s April 27, 2001 order of temporary injunction. The trial court entered an order finding Whitby to be in indirect civil contempt and imposed a fine of $100,000 on July 30, 2001. The order specifically provided that “in order that Whitby may purge the contempt, payment of the fine is suspended on the condition that Whitby commits no further violations of the Temporary Injunction.”

On November 19, 2003, Infinity moved to liquidate the $100,000 sanction against Whitby, alleging that payments she received from WRMF during the injunction period, which were characterized as a loan, violated the injunction. Hearings were held before a successor judge on March 9, 2004 and March 18, 2004. On July 7, 2004, the court entered an order finding a further violation of the injunction. The court found that Whitby had knowingly and intentionally committed further violations of the Temporary Injunction by accepting regular, periodic payments from WRMF through the term of the injunction. As a result, the court ordered Whitby to pay the sum of $100,000 into the Court Registry. Whitby appealed to this court and the lower court stayed payment of the sanctions. On appeal, this court affirmed per curiam without an opinion on June 15, 2005. See Whitby v. Infinity Radio, Inc., 907 So.2d 543 (Fla. 4th DCA 2005).

While the appeal was pending, the case went to trial on the merits of the breach of contract claim. A jury trial was held from March 28, 2005 through April 8, 2005. At the end of the trial, the jury found that Whitby breached her contract, and as such, was liable to Infinity for $1 million in compensatory damages. The jury found further that each of the three WRMF owners tortiously interfered with the Whit-by-Infinity contract, and awarded Infinity $1 million from each of them. Finally, the jury awarded $13.2 million in punitive damages against one of WRMF’s owners. The trial court remitted the total compensatory damages to $2.3 million, to be divided among appellants pro rata ($575,000 each). Infinity moved for entry of final judgment for damages based upon the jury’s verdict as reduced by the trial court. On September 2, 2005, the trial court entered final judgment against Whitby. Whitby and the WRMF owners appealed the final judgment to this court. On January 24, 2007, this court issued an opinion reversing and remanding the trial court’s final judgment based on the issues of liability and damages. See Whitby v. Infinity Radio, Inc., 951 So.2d 890 (Fla. 4th DCA 2007).

At a December 2, 2005 hearing, Whitby claimed that (1) she did not have the present ability to pay the $100,000 contempt fine, and (2) she believed one of the owners of WRMF would indemnify her pursuant to an indemnification clause in her employment agreement with WRMF. At the conclusion of the hearing, the trial court took the order under advisement and would call the parties with the ruling.

On December 9, 2005, the trial court conducted a telephonic hearing to announce the ruling. The trial court orally announced its finding that Whitby had the ability to pay the Order Imposing Sanctions after weighing her assets and liabilities and that she was in contempt of court for not complying with the order. The trial court initially stated that final judgment should be entered in favor of Palm Beach County, the recipient of the injury on the court, for $100,000 and that Whit-by’s failure to comply with the judgment would subject her to more strenuous sanctions.

A hearing was held on February 2, 2006, to address the proposed final judgment against Whitby for her contempt in violating the Order Imposing Sanctions. Upon further reflection, the trial court ruled that payment of the civil contempt fine should be made to the trust account of Infinity’s counsel until resolution of the attorney’s fees and costs issue,' and not to Palm Beach County.

During a February 6, 2006, hearing the trial court concluded that an order should be entered in favor of Infinity as originally contemplated by the court’s first Civil Contempt Order. On February 8, 2006, the trial court entered its Order of Further Contempt against Whitby, directing her to pay $100,000 either directly to Infinity or its counsel’s trust account within thirty days of the date of the Order. This appeal followed.

Jurisdiction to Enter a Judgment Based Upon the July 7, 2004 Order Finding a Further Violation of the Temporary Injunction

Whitby’s first argument on appeal is that the trial court lost continuing jurisdiction to enter further orders enforcing the interlocutory civil contempt order because entry of Final Judgment on the initial complaint divested the court of jurisdiction to enter further orders. We disagree and find there was jurisdiction.

By motion from Infinity, the trial court found Whitby to be in violation of its Temporary Injunction. During a hearing on the motion, Infinity explained, “we do not seek compensatory damages as part of the relief for violation of the injunction.” Rather, Infinity asked for a “coercive fine.” The court entered an order finding Whitby to be in indirect civil contempt and imposed a coercive fine of $100,000, with the ability to purge so long as there was no future violation. After the period of injunction, Infinity again moved to enforce contempt against Whitby due to her violation during the injunction period. The trial court found Whitby to be in violation and ordered her to pay $100,000. Whitby appealed and the court stayed payment pending the appeal. On appeal, this court affirmed. Thereafter, final judgment was entered in the original action. The final judgment did not specifically reserve jurisdiction over the contempt order. Infinity then moved for enforcement of the contempt order and the trial court ordered the fine to be paid.

Because the contempt order did have a purge provision, was instituted by the offended party, and had the purpose of coercing the offending party into complying with the court order, it was civil in nature. See Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla.1977); Johnson v. Bednar, 573 So.2d 822 (Fla.1991) (Civil contempt is used to coerce an offending party into complying with a court order rather than to punish the offending party for a failure to comply with a court order.).

Being civil in nature, the contempt order is part of the original cause. See S. Dade Farms, Inc. v. Peters, 88 So.2d 891, 899 (Fla.1956). Final judgment on the original cause would normally divest jurisdiction on pretrial matters if it is not specifically reserved. See T.D. v. K.D., 747 So.2d 456, 458 n. 2 (Fla. 4th DCA 1999). However, courts retain ancillary jurisdiction over contempt matters determined before final judgment. Tobkin v. State, 777 So.2d 1160, 1163 (Fla. 4th DCA 2001) (“[A] voluntary dismissal does not divest the court of jurisdiction to conclude ancillary matters involved in the case such as outstanding and unresolved motions for attorney’s fees and costs, and similar issues. These ancillary matters would include unresolved contempt of court matters.”); Cooter v. Hartman Corp., 496 U.S. 384, 396, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A court may make an adjudication of contempt and impose a contempt sanction even after the action in which the contempt arose has been terminated.”).

Here, Infinity moved for contempt and the trial court granted the motion, which was affirmed on appeal before final judgment in the original action was entered. Only issues regarding Whitby’s ability to pay and to whom, ancillary matters, remained after final judgment. As a result, the court retained jurisdiction to enforce its prior ruling. See also Dep’t of Children & Family Servs. v. J.B., 898 So.2d 980, 982 (Fla. 5th DCA 2005) (jurisdiction found for lower court to enter a written order awarding attorney’s fees after the case was closed because the lower court orally awarded fees prior to closing the case, thus retaining jurisdiction to enter a written order consistent with its previous oral pronouncement).

Ability to Pay the $100,000 Contempt Fine

Whitby’s second point on appeal is that there was a complete lack of competent substantial evidence to support the trial court’s finding that she had the ability to pay the $100,000 contempt fine. We disagree and find that the trial court had competent, substantial evidence to find an ability to pay.

Before a court can enforce an order of contempt, it must first determine, by competent substantial evidence, that the contemnor has the present ability to pay from some available asset. Buchanan v. Buchanan, 932 So.2d 270 (Fla. 2d DCA 2005); Politz v. Booth, 910 So.2d 397, 398 (Fla. 4th DCA 2005). For a coercive fine, the court “must consider the offending party’s financial resources and the seriousness of the burden on that particular party.” Johnson, 573 So.2d at 824 (citing United States v. United Mine Workers, 330 U.S. 258, 304, 67 S.Ct. 677, 91 L.Ed. 884 (1947)). All sums from whatever source available to the contemnor-obligor must be considered by the trial court to determine their ability to pay the purge amount. Sibley v. Sibley, 833 So.2d 847, 849 (Fla. 3d DCA 2002). “A court is required to consider all assets and property interests of the obligor, including cash as well as real property and business interests.” Koll v. Koll, 812 So.2d 529, 533 (Fla. 4th DCA 2002).

An appellate court will not disturb a trial court’s factual findings when supported by competent substantial evidence. Milian v. State, 764 So.2d 860, 861 (Fla. 4th DCA 2000).

An evidentiary hearing was held on December 2, 2005, to determine Whitby’s ability to pay the $100,000 fine. At the hearing, Whitby testified that she sold her home for $1,225,000 on December 1, 2005, $164,000 of which was not going to be used to purchase a new home. She owns a 2003 motor home jointly with her husband. In 2005 she bought a $33,000 Honda Accord in her own name and a utility vehicle called a John Deere Gator for $8,000. In 2005, she bought a $6,000 pony and paid $650 a month to stable the pony, but recently put it up at her girlfriend’s house where it is stabled for free. Her current annual compensation is about $245,000. In addition she receives $1,000 a month from commercial voice-overs. She has a bank account in her own name for $5,000.

The above provided the court with competent, substantial evidence to find Whitby had the ability to pay the contempt fíne. Furthermore, Whitby has acknowledged payment of the entirety of the fíne to the Adorno & Yoss, LLP Trust Account.

Notice of the Contempt Proceedings

Whitby’s third argument on appeal is that the only issue set to be addressed at the February 6, 2006 hearing was in whose favor judgment would be entered. It was error for the trial court to make a finding of contempt in the absence of any motion seeking that relief or notice that it would be addressed during the hearing. We find that Whitby received adequate notice of the contempt proceedings.

A person facing civil contempt sanctions is entitled to notice and an opportunity to be heard. Akridge v. Crow, 903 So.2d 346, 350 (Fla. 2d DCA 2005).

On July 7, 2004, the trial court entered an order finding that Whitby violated the temporary injunction and that she must pay the sum of $100,000. Whitby appealed the order to this court. This court affirmed without an opinion on June 15, 2005. On September 26, 2005, Infinity filed a Motion to Set Hearing on Notice of Contempt due to the fact that Whitby has not complied with the July 7, 2004 order. The trial court entered an Order Setting Hearing on Infinity’s Notice of Contempt for December 2, 2005. At the conclusion of the December 2nd hearing, the judge advised the parties that she was taking the matter under advisement and would call the parties with the ruling. In a telephonic hearing on December 9, 2005, the trial court orally announced its finding that Whitby had the ability to pay the Order Imposing Sanctions and that she was in contempt of court for not complying with the order. Infinity volunteered to draft the proposed judgment.

A hearing was held on February 2, 2006, to address the proposed final judgment against Whitby for her contempt in violating the Order Imposing Sanctions. Upon further reflection, the trial court ruled that payment of the civil contempt fine should be made to the trust account of Infinity’s counsel until resolution of the attorney’s fees and costs issue, and not to Palm Beach County. Whitby objected and the trial court set another hearing to finalize her rulings.

The hearing was conducted on February 6, 2006. The trial court concluded that an order should be entered in favor of Infinity as originally contemplated by the court’s first Civil Contempt Order. On February 8, 2006, the trial court entered its Order of Further Contempt against Whitby, directing her to pay $100,000 either directly to Infinity or its counsel’s trust account within thirty days of the date of the Order.

The hearings after the December 9th oral announcement did not discuss further contempt, only to whom Whitby should pay the original $100,000 contempt fine. Whitby received full notice of the contempt sanctions.

Incarceration as a Penalty for Failing to Pay a Civil Contempt Fine

Whitby’s final argument on appeal is that it was improper for the trial court to assist Infinity and its lawyers in collecting the contempt fine by the threat of incarceration. We disagree.

The Florida Supreme Court explained in Parisi v. Broward County, 769 So.2d 359, 365 (Fla.2000), the available sanctions to enforce a contempt order:

While there is a broad arsenal of coercive civil contempt sanctions available to the trial court, including “incarceration, garnishment of wages, additional employment, the filing of reports, additional fines, the delivery of certain assets, the revocation of a driver’s license,” to be a valid civil contempt sanction the contempt order must include a purge provision.

Id. at 365 (quoting Gregory v. Rice, 727 So.2d 251, 254 (Fla.1999)). Furthermore, in In re Tierney, 328 So.2d 40 (Fla. 4th DCA 1976), the court distinguished punishment, which includes imprisonment, between the two types of contempt:

If the character and purpose of the punishment is Coercive, i.e., if it is designed for the benefit of other parties and Conditional imprisonment is imposed for the obvious purpose of compelling the contemnor to obey an order, then the contempt may be classified as ‘civil’. In such instance the contemnor carries ‘the keys of (his) prison in (his) own pockets.’

Id. at 46 (citations omitted); see also Brown v. Smith, 705 So.2d 682, 684 (Fla. 4th DCA 1998) (citing Bowen v. Bowen, 471 So.2d 1274 (Fla.1985) (“The purpose of a civil contempt proceeding is to obtain compliance with a court order. Because incarceration is utilized solely to obtain compliance, it must be used only when the contemnor has the ability to comply.”)).

Here, there was a finding that Whitby had the financial ability to pay the civil contempt fine; therefore, incarceration is a proper tool to enforce compliance.

Affirmed.

GROSS and TAYLOR, JJ., concur.


author: CANADY, Judge.

text:
    Charles G. OLSON, Appellant, v. Theresa C.M. JOHNSON, Janet M. Tassinari, and Jeannine Johnson-Williams, Appellees.
    No. 2D05-3804.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.

      Charles G. Olson, pro se.
    Gregory S. Roe of Tetreault & Roe, A Partnership of P.A.s, St. Petersburg, for Appellee Theresa C.M. Johnson.
    No Appearance for Appellees Janet M. Tassinari and Jeannine Johnson-Williams.
   CANADY, Judge.

Charles G. Olson sued Theresa C.M. Johnson and the other appellees for “conspiracy in the commission of acts constituting malicious prosecution and abuse of judicial process.” Olson now appeals from a summary final judgment in favor of Johnson. In her second amended motion for summary judgment, Johnson asserted that Olson’s complaint was filed after expiration of the four-year statute of limitations, that his claims were barred by the doctrine of sovereign immunity, and that because Johnson’s statements were privileged there was no disputed issue of material fact. We conclude that Johnson did not establish that she was entitled to summary judgment.

I. Background

On March 30, 1996, the police were called to Johnson’s house in response to a stalking complaint. Johnson, Jeannine M. Johnson-Williams (Johnson’s sister-in-law), and Janet M. Tassinari (the mother of Olson’s child), claimed that Olson was lurking outside Johnson’s house while Tas-sinari was visiting with the other two women. Tassinari told the responding police officer that she was in fear for her life because she and Olson were in a custody battle and that Olson had drug connections and access to a lot of money. Johnson also told the officer that she was afraid for her own safety. On that basis, the officer initiated a stalking report, and each of the women filed and signed affidavits.

On August 5, 1996, Olson was charged with stalking. However, Olson was acquitted of the charge on January 8, 1997. Thereafter, on March 22, 2000, Olson filed his complaint against the three women. Johnson then filed her answer along with two motions for summary judgment.

Olson then filed an affidavit from the attorney who represented him in the criminal case, Bruce G. Howie. In that affidavit, Howie delineated Tassinari’s trial testimony and explained that documentary evidence established that Olson had been six miles away purchasing items at a department store during the time of the alleged stalking incident at Johnson’s home. In his deposition, Olson testified he was at the department store at the time of the alleged stalking. Olson also testified that during another stalking incident alleged by the women, he was at a birthday party for a friend.

The record also contains reports from the guardian ad litem, which indicate that Olson and Tassinari were involved in a bitter custody battle and that Tassinari had, on at least one occasion, attempted to interfere with Olson’s attempts to exercise visitation with the child.

The trial court granted Johnson’s second motion for summary judgment on June 23, 2005. This appeal follows.

II. Analysis

We apply a de novo standard of review to an order granting summary judgment. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A party moving for summary judgment must conclusively demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Id. “In determining whether a genuine issue of material fact exists, this court must view ‘every possible inference in favor of the party against whom summary judgment has been entered.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Maynard v. Household Fin. Corp. III, 861 So.2d 1204, 1206 (Fla. 2d DCA 2003)). “It is the mov-ant’s burden to prove the nonexistence of genuine issues of material fact, ‘and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.’ ” Id. (quoting Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000)).

In our analysis, we will address the asserted grounds for summary judgment with respect to the claim based on malicious prosecution. The parties have not— either in the trial court or on appeal— addressed the specific elements of a claim of abuse of process — a cause of action which is distinct from malicious prosecution. Since the parties have not developed this issue but have treated the abuse of process aspect of the case as wholly subsidiary to the malicious prosecution aspect, we will not address the issue of abuse of process.

A. Requirements for Malicious Prosecution Actions and for Conspiracy Claims

In order to prevail in a malicious prosecution action, the plaintiff must establish each of six elements: (1) an original judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damages as a result of the original proceeding.

Durkin v. Davis, 814 So.2d 1246, 1248 (Fla. 2d DCA 2002). “In an action for malicious prosecution it is not necessary for a plaintiff to prove actual malice; legal malice is sufficient....” Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1357 (Fla.1994). Legal malice, which is also referred to as technical malice or malice in law, “requires proof of an intentional act performed without justification or excuse.” Reed v. State, 837 So.2d 366, 368-69 (Fla.2002). “Legal malice may be inferred from one’s acts,” and — unlike actual malice — “does not require proof of evil intent or motive.” Id. at 369.

A cause of action for conspiracy requires showing “(a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to [the] plaintiff as a result of the acts performed pursuant to the conspiracy.” Walters v. Blankenship, 931 So.2d 137, 140 (Fla. 5th DCA), review denied by McNeely v. Walters, 942 So.2d 412 (Fla.2006); see also Armbrister v. Roland Int’l Corp., 667 F.Supp. 802, 809 (M.D.Fla.1987) (“A cause of action for conspiracy comprises the following elements[:] an agreement between two or more persons to achieve an illegal objective, one or more overt acts pursuant to that agreement, and resulting injury to the plaintiff.”).

B. The Cause of Action Was Not Barred by the Statute of Limitations

The statute of limitations for both malicious prosecution and civil conspiracy is four years. See § 95.11(3)(o), (p), Fla. Stat. (Supp.1996). “A cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (1995).

For a cause of action for malicious prosecution, the right to maintain a suit arises upon termination of the prosecution favorably to the plaintiff. See Cazares v. Church of Scientology of Cal., Inc., 444 So.2d 442, 447 (Fla. 5th DCA 1983); McMurray v. U-Haul Co., 425 So.2d 1208, 1211 (Fla. 4th DCA 1983). Here then if Olson’s claim is treated as a malicious prosecution claim, the date that a cause of action accrued would be January 8, 1997, and Olson’s complaint, filed March 22, 2000, would be within the four-year limitations period.

A conspiracy cause of action accrues when the plaintiff suffers damages as a result of the acts performed pursuant to the conspiracy. “The last of [the] elements [of conspiracy] will necessarily be the injury to the plaintiff.” Armbrister, 667 F.Supp. at 809; see also Timmins v. Firestone, 283 So.2d 63, 64 (Fla. 4th DCA 1973) (recognizing in an action for conspiracy to libel and intentionally interfere with business and marital and family relations, cause of action accrued when defendants did overt acts resulting in newspaper publications — i.e., when the injury occurred).

Here, although Olson testified that he believed the conspiracy among the appel-lees started in 1993 and that his income began to be affected in 1995, his complaint seeks damages for the conspiracy with respect to the stalking complaint made against him on March 30, 1996. The first injury which was the result of that conspiracy occurred when he was arrested for stalking on August 5, 1996. Clearly then, Olson’s March 22, 2000, complaint — viewed as a claim for conspiracy — was filed within the statute of limitations and summary judgment could not be granted on that basis.

C. Olson’s Claim is Not Barred By Any Privilege

Johnson asserts that she was entitled to summary judgment because her statements accusing Olson were protected by an absolute privilege. Alternatively, Johnson asserts that a qualified privilege is applicable and is sufficient to defeat Olson’s claim. We conclude that neither an absolute nor a qualified privilege applies here.

In support of her claim of privilege, Johnson relies on the decision in Fridovich v. Fridovich, 598 So.2d 65 (Fla.1992), in which the Florida Supreme Court was presented with the certified question of whether a person who makes statements to law enforcement about another individual prior to the instigation of judicial proceedings is protected by an absolute privilege against liability for defamation. The court held that “defamatory statements voluntarily made by private individuals to the police or the state’s attorney prior to the institution of criminal charges are presumptively qualifiedly privileged.” Id. at 69 (footnote omitted). Such voluntary statements are treated differently than “statements made under a state attorney’s investigatory subpoena,” which are “encompassed within a judicial proceeding and thus [are] absolutely privileged.” Fridovich, 598 So.2d at 69 n. 7.

Johnson’s reliance on Fridovich is unwarranted. In relying on Fridovich, Johnson confuses the law of defamation — with which Fridovich deals — with the law of malicious prosecution — which is at issue in the instant case. Olson has made no claim based on defamation, and the fact that defamatory statements may have been made in the course of the conduct which Olson alleges as the basis for his claim does not transform that claim into a defamation claim that is subject to an assertion of the absolute privilege or qualified privilege discussed in Fridovich. There is no equivalent privilege available to a eom-plaining -witness such as Johnson who is named as a defendant in a malicious prosecution action. Such a defendant must defend against a malicious prosecution claim by disputing an element or elements of the cause of action alleged or by raising an applicable affirmative defense.

D. Johnson Has Not Established the Absence of a Disputed Issue of Material Fact on the Element of Malice

If Johnson could establish beyond dispute that the malice element — or any other essential element — of Olson’s claim lacked evidentiary support, Johnson would be entitled to judgment as a matter of law. She has, however, not made that showing.

Legal malice “may be inferred from, among other things, a lack of probable cause, gross negligence, or great indifference to the rights of others.” Mancusi, 632 So.2d at 1357. Here, Olson “produced evidence from which a jury could infer that” Johnson and the other appellees “intentionally provided false information to [the] authorities.” Id. Johnson relied on the existence of an asserted “presumption of good faith” arising from her claim of privilege to establish that there was no disputed issue of fact with respect to the malice element of the malicious prosecution claim. Since there is no available privilege, this argument with respect to the malice element collapses. And Johnson has not claimed an absence of disputed issues of material fact with respect to any of the other elements of Olson’s claim.

E. Sovereign Immunity Does Not Apply

Finally, Johnson has failed to explain how her actions in filing the police affidavit could possibly be protected by sovereign immunity. The fact that Olson alleged that various governmental employees were part of the alleged conspiracy has no bearing on whether Johnson should receive sovereign immunity for her conduct. While police officers, state attorneys, and judges may be protected for their actions done pursuant to their lawful duties, Johnson fails to cite any authority which would extend sovereign immunity to a citizen reporting an alleged crime.

III. Conclusion

We therefore hold that (a) the action was not barred by the statute of limitations, (b) there was no applicable privilege, (c) Johnson failed to show the absence of a disputed material fact with respect to the malice element or any other element of Olson’s claim, and (d) Johnson was not protected by sovereign immunity. We reverse the summary final judgment and remand for further proceedings.

Reversed and remanded.

WHATLEY and NORTHCUTT, JJ., Concur.

      . Co-defendant Jeannine M. Johnson-Williams defaulted on May 31, 2000, while Tassinari filed an answer denying the majority of the allegations made by Olson.

      . We note that in American National Title & Escrow of Florida, Inc, v. Guarantee Title & Trust Co., 810 So.2d 996, 998 (Fla. 4th DCA 2002), considering a claim that “the defendants conspired to maliciously give false information to law enforcement authorities resulting in [one of the plaintiffs] being wrongfully arrested, jailed and charged with crimes,” the court — citing Fridovich — rejected a claim of absolute privilege and stated that the defendants “would enjoy at most a qualified privilege, which could be overcome by proof that false information was given to law enforcement authorities with intent to injure plaintiffs.” There is no indication that the plaintiffs had made any claim for defamation. There is also no indication that the issue of qualified privilege was presented to the court. The court’s comments regarding the availability of a qualified privilege thus appear to be dicta.


author: PER CURIAM.

text:
    Anthony MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-399.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2007.
    Anthony Murphy, Miami, pro se.
    Bill McCollum, Attorney General, Tallahassee, Donna M. Hoffmann and Diane F. Medley, Assistant Attorneys General, West Palm Beach, for appellee.
   ON REMAND FROM THE FLORIDA SUPREME COURT

PER CURIAM.

Anthony Murphy sought review of the summary denial of his motion for postcon-viction relief pursuant to Florida Rule of Criminal Procedure 3.850. In 2002, we reversed and remanded, relying on cases holding that affirmative misadvice, regarding even collateral consequences of a plea, may form the basis for withdrawing the plea. Murphy v. State, 820 So.2d 875 (Fla. 4th DCA 2002). At issue was Murphy’s claim of misadvice that his 1984 plea could not be used as a basis for enhancing a sentence for a future crime.

At the time we decided Murphy, there was conflict among the districts on this point. See Murphy, 820 So.2d at 376. The Florida Supreme Court accepted review of Murphy in light of that conflict and stayed review of this case. After issuing related decisions in Bates v. State, 887 So.2d 1214 (Fla.2004), and State v. Dickey, 928 So.2d 1193 (Fla.2006), the supreme court quashed our decision and remanded for reconsideration in light of Dickey. See State v. Murphy, 957 So.2d 560 (Fla.2007).

In Dickey, the supreme court “conclude[d] that allegations of affirmative mis-advice by trial counsel on the sentence-enhancing consequences of a defendant’s plea for future criminal behavior in an otherwise facially sufficient motion are not cognizable as an ineffective assistance of counsel claim.” Id. at 1198. Because Murphy’s claim of ineffective assistance of counsel in this case is not cognizable, we affirm the trial court’s order.

SHAHOOD, C.J., STONE and TAYLOR, JJ., concur.


author: POLEN, J.

text:
    Winer MATHIEU, Appellant, v. CITY OF LAUDERDALE LAKES, Florida, Amelia Mathieu, and Jacques Lherisson, Appellees.
    No. 4D06-4236.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.
    Martin E. Leach of Feiler & Leach, P.L., Coral Gables, for appellant.
    Sonja K. Dickens of Arnstein & Lehr, LLP, Fort Lauderdale, for appellee City of Lauderdale Lakes.
   POLEN, J.

Appellant Winer Mathieu timely appeals a final judgment granting appellee City of Lauderdale Lakes’ motion to set foreclosure sale. We reverse the foreclosure and remand for further proceedings to determine whether Lauderdale Lakes is entitled to a monetary judgment.

On January 29, 2003, Mathieu’s bank, Cenlar FSB, filed a complaint to foreclose mortgage against Mathieu related to real property located in Lauderdale Lakes, Florida. Since Lauderdale Lakes had code enforcement liens on the property, it was also listed as a defendant. Lauder-dale Lakes filed an answer to the bank’s complaint and a cross-claim against Math-ieu, asserting that it was entitled to payment of its code enforcement liens through foreclosure of said liens and sale of the property. Mathieu answered the cross-claim, but did not assert homestead as an affirmative defense.

Cenlar FSB eventually dismissed its complaint for foreclosure against Mathieu and cancelled the notice of lis pendens on the property. However, on December 1, 2003, a final money judgment was entered in favor of Lauderdale Lakes on its cross-claim against Mathieu (no foreclosure date was set). Almost two years later, in a separate, unrelated case, Mathieu filed a petition for declaratory judgment against Lauderdale Lakes seeking to have the court determine his property homestead and exempt from levy and execution under Article X, Section 4 of the Florida Constitution. Art. X, § 4, Fla. Const. The court entered an order determining that the property had maintained homestead status from 1990 through November 22, 2005, the date of the order. However, it did not invalidate Lauderdale Lakes’ prior judgment against Mathieu for monetary damages.

Seven months later, Lauderdale Lakes filed a motion to set foreclosure sale date against Mathieu’s property. Mathieu filed a response to the motion, asserting that Lauderdale Lakes was precluded from foreclosing on his property because it was his homestead. At the same time, Math-ieu filed a homestead affidavit with the circuit court, acknowledging that he continued to maintain homestead status post the order determining his property homestead. The court nevertheless entered an order scheduling foreclosure sale.

In the amended final order, the court recognized that Mathieu’s property had previously been deemed homestead since 1990. Yet it ultimately found that pursuant to Schaller v. Balk, A.I.A., P.A., 708 So.2d 299 (Fla. 2d DCA 1998), since Math-ieu did not raise homestead as a defense prior to the December 1, 2003 final judgment, he was “precluded from raising said defense in an effort to prevent the sale of the property.” Mathieu filed this appeal before the date of the foreclosure sale.

On appeal, Mathieu argues that the trial court erred in granting Lauderdale Lakes’ motion to set foreclosure sale date because the property was homestead prior to imposition of Lauderdale Lakes’ code enforcement liens and because the court was advised of this prior to the setting of foreclosure sale. The issue in this case relates to the lower court’s application of the law of homestead, and is therefore reviewed de novo. See D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (reviewing pure questions of law de novo).

Article X, Section 4 of the Florida Constitution provides only three exceptions to the homestead exemption: (1) for the payment of taxes and assessments thereon; (2) obligations contracted for the purchase, improvement or repair thereof; and (3) obligations contracted for house, field or other labor performed on the realty. Art. X, § 4, Fla. Const. In the case at bar, Lauderdale Lakes charged Mathieu with code enforcement violations and eventually obtained an order relating to the liens. The cause of action was filed pursuant to Chapter 162, which provides local code enforcement boards the authority to “impose administrative fines and other noncriminal penalties to provide an equitable, expeditious, effective and inexpensive method of enforcing any codes and ordinances in force in counties and municipalities.” § 162.02, Fla. Stat. (2003). Section 162.09(3), Florida Statutes (2003), provides the mechanism and limitations of the liens created under the Chapter:

A certified copy of an order imposing a fine, or a fine plus repair costs, may be recorded in the public records and thereafter shall constitute a lien against the land on which the violation exists and upon any other real or personal property owned by the violator. Upon petition to the circuit court, such order shall be enforceable in the same manner as a court judgment by the sheriffs of this state, including execution and levy against the personal property of the violator, but such order shall not be deemed to be a court judgment except for enforcement purposes.... No lien created pursuant to the provisions of this part may be foreclosed on real property which is a homestead under s. 4, Art. X of the State Constitution ....

(Emphasis added).

Thus, the code enforcement liens in this case did not, in and of themselves, “constitute a cloud” upon Mathieu’s homestead property. See Mishin v. City of Fort Lauderdale, 661 So.2d 415, 415 (Fla. 4th DCA 1995) (finding that lien created by code enforcement board order was not a “judgment, decree or execution” under Art. X, § 4, Fla. Const., and thus did not “constitute a cloud upon Miskin’s homestead property”); see also Pelecanos v. City of Hallandale Beach, 914 So.2d 1044, 1045 (Fla. 4th DCA 2005) (recognizing that a municipal code enforcement lien is not one of the specified exceptions).

Since code enforcement liens do not defeat homestead protection and the property has not yet been sold through foreclosure, Mathieu contends that any filing of homestead status was effective and protects the property from sale. See Schaller, 708 So.2d at 301 (Fla. 2d DCA 1998) (“As a general rule, a person can file a declaration of homestead at any time before the sale date, which until resolved, will protect the property from sale.”). Lauderdale Lakes maintains that Mathieu’s entire premise is incorrect. According to Lauderdale Lakes, Mathieu “is under the impression that the lower court ordered the forced sale of [his] property to satisfy a code enforcement lien. This is erroneous because when the foreclosure sale was set, [Lauderdale Lakes] was proceeding on a final judgment of foreclosure that was entered by the lower court on December 1, 2003.” Where a lienholder forecloses its lien and obtains a foreclosure judgment against the property owner, the lien merges into that judgment and the lienholder becomes a judgment creditor. All State Plumbing v. Mut. Sec. Life Ins. Co., 537 So.2d 598, 599 (Fla. 3d DCA 1988) (citing Nassati Realty Co. v. City of Jacksonville, 144 Fla. 754, 198 So. 581 (1940)). Therefore, as argued by Lauderdale Lakes, all issues and defenses related to the original code enforcement liens were merged into the December 1, 2003 final judgment in favor of Lauderdale Lakes on its code enforcement claims, thus precluding, under the doctrine of res judicata, Mathieu from asserting a homestead defense in subsequent proceedings.

In Schaller v. Bruce N. Balk, ALA., P.A., 708 So.2d 299 (Fla. 2d DCA 1998), on which the trial court in this case relied, Bruce N. Balk, P.A. sued and obtained a judgment on a monetary obligation owed to it by Fred Schaller. Id. at 300. Balk then brought another action against Schal-ler to force a sale of a property on which Schaller had a mortgage. Id. The trial court found that Balk had a lien to secure payment of the monetary obligation and ordered the property be sold free and clear of any claims of Schaller. Id. Schal-ler then filed a verified notice of homestead property pursuant to section 222.01, Florida Statutes (1995), and filed his own lawsuit seeking declaration of the property as homestead property and to enjoin its sale. Id. at 301. The trial court denied Schaller’s notice of homestead and found that the previous final judgment was res judicata on the issue of homestead. Id. On appeal, the Second District noted that, “as a general rule, a person can file a declaration of homestead at any time before the sale date, which until resolved, will protect the property from sale.” Id. (citation omitted). However, it was clear that the issue was litigated and determined in the original litigation and, by reason of the final judgment, Balk’s lien attached to the property before Schaller’s notice of homestead. Id. “Under such circumstances, an after acquired status of homestead does not affect the prior lien. Accordingly, we affirm [the orders] finding the issue of homestead was res judicata.” Id.

Here, the trial court applied Schaller because Mathieu did not raise homestead as a defense prior to entry of the December 1, 2003 final judgment against him and for Lauderdale Lakes. As such, the trial court determined that Mathieu was precluded from raising the defense in an effort to prevent the foreclosure sale of the property. However, in Schaller, All State Plumbing and Nassau Realty Co., supra, the alleged homestead properties were encumbered by liens excepted under Article X, Section 4 of the Florida Constitution. See Schaller, 708 So.2d at 300 (although not made clear by the Second District, the monetary obligation was due Bruce N. Balk, P.A., an architectural firm presumably contracted by Schaller to improve the latter’s property); see also All State Plumbing, 537 So.2d at 599 (concerning mechanic’s lienholder); Nassau Realty Co., 198 So. at 582 (involving tax liens against property). Therefore, the initial foreclosure proceedings in those cases entailed analysis of the property holders’ possible homestead protections.

In this case, Lauderdale Lakes sought a monetary judgment due it from code enforcement liens — claims that do not defeat homestead protection. Pelecanos, 914 So.2d at 1045. Whether the issue of homestead status was litigated and determined as part of the December 1, 2003 final judgment is thus unclear. Cf. Schaller, 708 So.2d at 301 (“[I]t is clear from the record that the issue of the homestead status ... was litigated and determined [in the original] circuit civil case.... ”). As a result, that issue is not res judicata to Lauderdale Lakes’ motion to set foreclosure sale date. See Schaller, 708 So.2d at 301.

Based on the foregoing, we find that the trial court erred in its application of Schal-ler and we reverse and remand for further proceedings to determine whether Lauder-dale Lakes is entitled to a monetary judgment, foreclosure having been made unavailable by Mathieu’s filing of homestead status.

Reversed and Remanded with Instructions.

STEVENSON and TAYLOR, JJ., concur.


text:
    Daniel ARIANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1973.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.

      Howard P. Alterman of Law Office of Howard P. Alterman, P.A., Lake Worth, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Daniel Ariano timely appeals a conviction of burglary of a dwelling with a battery and sentence to 10 years in Florida State Prison with credit for 369 days time served. We reverse the trial court’s determination that Ariano is a member of a criminal street gang and remand for resentencing.

After adjudicating Ariano guilty of the charged crime of burglary of a dwelling with a battery, the trial court applied the criminal street gang enhancer and multiplied Ariano’s sentence by 1.5 pursuant to sections 874.04 and 921.0024(l)(b)2.b, Florida Statutes (2004)., We find that the court erred in enhancing Ariano’s sentence because its determination that Ariano was a member of a criminal street gang was not supported by evidence demonstrating that the gang engaged in a pattern of criminal street gang activity.

Section 874.03(2), Florida Statutes (2004), defines a “criminal street gang member” as one who is a member of a criminal street gang and who meets at least two of the following criteria: (a) admits to gang membership; (b) is a youth under the age of 21 years who is identified as a gang member by a parent or guardian; (c) is identified as a gang member by a documented reliable informant; (d) resides in or frequents a particular gang’s area and adopts their style of dress, their use of hand signs, or their tattoos, and associates with known gang members; (e) is identified as a criminal street gang member by an informant of previously untested reliability and such identification is corroborated by independent information; (f) has been arrested more than once in the company of identified gang members for offenses which are consistent with usual criminal street gang activity; (g) is identified as a gang member by physical evidence such as photographs or other documentation; (h) has been stopped in the company of known gang members four or more times.

A “criminal street gang” is one that, among other things, engages in a pattern of criminal street gang activity. § 874.03(1), Fla. Stat. (2004). A “pattern of criminal street gang activity” means “the commission or attempted commission of, or solicitation or conspiracy to commit, two or more felony or three or more misdemeanor offenses, or one felony and two misdemeanor offenses, or the comparable number of delinquent acts or violations of law which would be felonies or misdemeanors if committed by an adult, on separate occasions within a 3-year period.” § 874.03(3), Fla. Stat. (2004).

Thus, in order to declare Ariano a member of a criminal street gang it must be demonstrated that the criminal street gang he was alleged to be a member of (SUR 13) committed or attempted to commit two felonies or violent misdemeanors on separate occasions within a three-year period and that Ariano is a member of that criminal street gang. At the hearing to declare Ariano a criminal street gang member, the State demonstrated that Ariano was part of a gang called SUR 13 based on Ariano’s tattoo, his girlfriend’s tattoo and evidence that Ariano was part of a crowd or mob of fifteen people attacking the victim while telling him not to disrupt SUR 13 activities. From this evidence, the trial court found that Ariano met at least two of the enumerated criteria of section 874.03(2), Florida Statutes (2004).

However, the trial court made no finding concerning a pattern of criminal street gang activity. Moreover, the State did not prove that SUR 13 had committed or attempted to commit the requisite number of crimes. See § 874.03(1), (3), Fla. Stat. (2004). Where the language of a statute is clear and unambiguous, courts may not resort to rules of statutory construction; rather, the statute must be given its plain and ordinary meaning. See Crist v. Jaber, 908 So.2d 426, 432 (Fla.2005) (citations omitted). Based on the plain and ordinary language of the statute involved in this case, gang membership alone is not sufficient to declare a person a member of a criminal street gang. See S.L. v. State, 708 So.2d 1006 (Fla. 2d DCA 1998). The State must also demonstrate a pattern of criminal street gang activity. See id. Since only gang membership was proven, the trial court erred in declaring Ariano a member of a criminal street gang for purposes of the sentence enhancement.

We therefore reverse the trial court’s finding and remand for resentencing without enhancement under section 874.04, Florida Statutes (2004).

Reversed and Remanded with Instructions.

STEVENSON and TAYLOR, JJ„ concur.

      . § 874.04, Fla. Stat. (2004), states:
      Upon a finding by the court at sentencing that the defendant committed the charged offense for the purpose of benefiting, promoting, or furthering the interests of a criminal street gang, the penalty for any felony or misdemeanor, or any delinquent act or violation of law which would be a felony or misdemeanor if committed by an adult, may be enhanced. Each of the findings required as a basis for such sentence shall be found by a preponderance of the evidence.

      . § 921,0024(l)(b)2.b, Fla. Stat. (2004), states that, "If the offender is convicted of the primary offense and committed that offense for the purpose of benefiting, promoting, or furthering the interests of a criminal street gang as prohibited under s. 874.04, the subtotal sentence points are multiplied by 1.5.”


author: WARNER, J.

text:
    Robert EDELSTEIN and Lowey, Stolzenberg & Edelstein, LLP, a New York limited liability partnership, Appellants, v. MARLENE D’ARCY, INC., a Florida corporation and as a derivative of CN Venture, LLC, a Florida limited liability company, Appellees.
    No. 4D06-4007.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2007.

      Charles J. Meltz of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Orlando, for appellants.

      Howard N. Kahn of Kahn & Chenkin, Davie, for appellees.
   WARNER, J.

The trial court denied a motion to dismiss for lack of personal jurisdiction filed by a New York accountant and his accounting firm in a suit involving a dispute between two partners in a Florida business venture for which the accountant and his firm provided professional services and for which the accountant acted as treasurer. As the complaint alleged that the accountant and the firm engaged in tortious conduct occurring in Florida, we conclude that both parties are subject to the jurisdiction of the Florida court.

Marlene D’Arcy, Inc. and CN Venture, LLC sued Peter Coppola and others, including appellants Robert Edelstein and Lowey, Stolzenberg & Edelstein, LLP (“LS & E”), alleging several causes of action arising out of CN Venture, whose partners were D’Arcy and PDC Enterprises, whose sole shareholder was Coppola. PDC withdrew from the venture, and Coppola sold his interest to D’Arcy. D’Arcy alleged that Coppola and others misinterpreted or violated the regulations governing the venture to the detriment of D’Arcy. These allegations turned into counts for breach of the regulations, conversion, and conspiracy. As to Edelstein and his accounting firm, D’Arcy alleged that they had failed to follow the regulations, assisted Coppola in improperly obtaining monies from CN Venture, and failed to pay D’Arcy monies allegedly due. The complaint alleged claims for conversion and conspiracy. It also alleged a count for accounting malpractice.

Edelstein and his accounting firm moved to dismiss the complaint for lack of personal jurisdiction. The motion and accompanying affidavits of Edelstein and LS & E stated that Edelstein, a resident of New York, is a certified public accountant licensed to practice in New York and is a partner with LS & E, a New York limited liability partnership. Edelstein performed limited accounting services for CN Venture, including the preparation of tax returns and bookkeeping services. He attended several meetings held by the principals of CN Venture in New York. Edelstein is not a registered agent, officer, or director of CN Venture. Edel-stein’s affidavit stated that less than one percent of his annual billable time was spent performing services to CN Venture, and fees paid by CN Venture were less than one percent of his gross billed revenue. The affidavit also set forth specific facts supporting the contention that he has no other business or personal contacts with Florida. LS & E’s affidavit contained similar statements, except LS & E stated that less than two percent of its work is done on behalf of Florida residents and less than two percent of its receivables are generated by work done on behalf of Florida residents. The motion and affidavits did not deny or provide any facts relative to the allegations of tor-tious conduct contained in the complaint.

D’Arcy filed an affidavit of its president stating that Edelstein was treasurer of CN Venture and an authorized signatory on CN Venture’s bank account. Edelstein and LS & E prepared CN Venture’s income tax returns and performed bookkeeping duties. The affidavit also discussed telephone calls between Edelstein and the president of D’Arcy, who lived in Florida, which form the factual basis for the complaint’s allegations of conversion, conspiracy, and accounting malpractice. D’Arcy also relied on another affidavit filed by Edelstein in another matter on behalf of CN Venture in which Edelstein stated, “CNV has no New York presence whatsoever.”

The trial court denied the motion, concluding that the complaint provided specific allegations of tortious conduct against Edelstein and his corporation. Because Edelstein had an ongoing relationship with a Florida business venture and acted as its treasurer, Edelstein and his firm had minimum contacts with the state. From this order Edelstein and LS & E appeal.

We review the trial court’s denial of the motion to dismiss for lack of personal jurisdiction de novo. See Wendt v. Horowitz, 822 So.2d 1252, 1256-57 (Fla.2002). In determining whether long-arm jurisdiction is appropriate in a given case, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989); see also Wendt, 822 So.2d at 1257. If the requirements of the first prong are met, the next inquiry is whether sufficient “minimum contacts” are demonstrated. The first prong of the analysis (whether the complaint alleges sufficient jurisdictional facts) involves a shifting burden. Radcliffe v. Gyves, 902 So.2d 968, 971 (Fla. 4th DCA 2005).

“Initially, the plaintiff may seek to obtain jurisdiction over a nonresident by pleading the basis for service in the language of the statute without pleading the supporting facts.” Venetian Salami, 554 So.2d at 502. “A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.” Id. “[T]he defendant’s affidavits submitted in support of a motion to dismiss based on lack of personal jurisdiction ‘must contain something more than the assertion of legal conclusions.’” Radcliffe, 902 So.2d at 971 (quoting Acquadro v. Bergeron, 851 So.2d 665, 672 (Fla.2003)).

Section 48.193, Florida Statutes, the long-arm statute of this state, provides in pertinent part:

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

§ 48.193(l)(a) & (b), Fla. Stat.

D’Arcy and CN Venture’s complaint raised causes of action for conversion, conspiracy, and accounting malpractice (which involves a breach of fiduciary duty) against Edelstein and LS & E. The affidavits of Edelstein and LS & E discuss pertinent facts relating to jurisdiction under section 48.193(l)(a) and whether Edelstein and LS & E do business in Florida or have any Florida contacts. However, nowhere in their affidavits do Edelstein or LS & E dispute the complaint’s allegations that they committed tortious acts in Florida.

The complaint specifically alleged that Edelstein conspired with Coppola and others to convert monies to their use and benefit by misappropriating CN Venture’s funds to Coppola in Florida. The conversion occurred in Florida, because that is where Coppola acquired the money. A conspiracy to commit a tortious act in Florida can subject a non-resident defendant to jurisdiction in this state. See Execur-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000), cert. denied, 531 U.S. 818, 121 S.Ct. 58, 148 L.Ed.2d 25 (2000). As Edelstein’s affidavit did not address jurisdiction under section 48.193(b), the affidavit is legally insufficient to contest the jurisdictional basis of the tort counts. Thus, the first jurisdictional test under Venetian Salami is met.

As to minimum contacts, we agree with the trial court that minimum contacts are shown. The test is whether “the defendant’s conduct and connection with the forum are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Edelstein was treasurer of CN Venture as well as its accountant. He prepared the venture’s tax returns and performed bookkeeping services. This relationship was not fleeting but ongoing. According to the complaint, his directions and advice resulted in the conversion of millions of dollars from CN Venture to Coppola, for whom Edelstein also served as an accountant. The intentional torts of conspiracy and conversion, and an accounting malpractice claim which amounted to a breach of fiduciary duty, were all aimed at a Florida resident, D’Arcy. Under such circumstances, we conclude that due process is met. See Allerton v. State Dep’t of Ins., 635 So.2d 36, 39 (Fla. 1st DCA 1994); see also State, Office of Attorney Gen., Dep’t of Legal Affairs v. Wyndham Int’l, 869 So.2d 592, 600 (Fla. 1st DCA 2004). For this reason also, the “corporate shield doctrine” does not apply as the corporate officer himself is alleged to have committed intentional torts expressly aimed at Florida. Allerton, 635 So.2d at 40.

Because both tests of Venetian Salami are met, we affirm the trial court’s ruling.

GROSS and TAYLOR, JJ., concur.


author: KAHN, J.

text:
    COMMUNITY HEALTH CHARITIES OF FLORIDA; The American Liver Foundation; Cystic Fibrosis Foundation; Crohn’s & Colitis Foundation; Prevent Blindness Florida; Children’s Tumor Foundation; March of Dimes; Lupus Foundation of America, Florida Chapter; Florida Hospices & Palliative Care; Hemophilia Foundation of Greater Florida; National Parkinson Foundation; American Diabetes Association; Leukemia & Lymphoma Society; American Lung Association; ALS Association; Alzheimer’s Association; Juvenile Diabetes Research Foundation; Arthritis Foundation; Florida SIDS Alliance; Sickle Cell Disease Association of Florida; Easter Seals Florida; St. Jude Children’s Research Hospital; Muscular Dystrophy Association; Nami Florida; National Kidney Foundation; National Multiple Sclerosis Foundation; Huntington’s Disease Society of America; and Association for Retarded Citizens, Petitioners, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, Respondent.
    No. 1D07-2067.
    District Court of Appeal of Florida, First District.
    July 31, 2007.

      David C. Hawkins and D. Andrew Byrne of Cooper & Byrne, PLLC, Tallahassee, for Petitioners.
    Matthew F. Minno, Deputy General Counsel, and Gerald T. York, Assistant General Counsel, Department of Management Services, Tallahassee, for Respondent.
   KAHN, J.

By this original proceeding, petitioners assert their entitlement to proceed under section 120.569(2), Florida Statutes (2005). They complain that respondent, the Department of Management Services (“Department”), had no discretion to dismiss their petition for formal administrative hearing. We find that the Department had a clear legal duty to comply with the provisions of section 120.569(2) and, accordingly, grant the relief sought by petitioners, which is a writ of mandamus.

Petitioners are 28 charities or umbrella organizations that participated in the 2006 Florida State Employees’ Charitable Campaign. Dissatisfied with certain decisions regarding allocation of “undesignated funds,” petitioners initiated proceedings under Florida’s Administrative Procedure Act, Chapter 120, Florida Statutes (2005). The Department dismissed the initial petition as legally insufficient. Petitioners then filed an amended petition for a formal administrative hearing. In that filing, petitioners asserted their entitlement to receive undesignated funds, alleging that the Department had made improper factual determinations when deciding that petitioners were not entitled to such funds. Petitioners challenged, as well, the Department’s exercise of delegated authority, including whether the Department improperly delegated or subdelegated the design of campaign materials and allocation of undesignated funds. Petitioners also challenged the Department’s rule defining “direct services,” and further claimed that the Department had improperly relied upon non-rule policy in its oversight of the charitable campaign. The Department dismissed the petition without prejudice, stating “[t]o the extent your amended petition could be construed as a rule challenge, filing of the Amended Petition with the Department was improper ... [and it should have been] filed with the Division of Administrative Hearings.”

Mandamus will lie only where the petitioner shows it has “a clear legal right to the requested relief,” and correspondingly, that respondent has “an indisputable legal duty to perform the requested action.” Jackson v. Fla. Dep’t of Corr., 790 So.2d 381, 386 (Fla.2000). We must decide, then, whether petitioners have a clear legal right to proceed on the petition, as filed, and whether the Department has a legal duty to act on the petition pursuant to sections 120.569(2)(a) and 120.569(2)(c), Florida Statutes (2005).

Under section 120.569(1), any party whose substantial interests are determined by an agency, and who raises by petition a disputed issue of material fact, has a right to a formal administrative hearing. By its terms, the statute allows an aggrieved party to file a petition with the appropriate agency, “[ejxcept for any proceeding conducted as prescribed by s. 120.56.” § 120.569(2)(a), Fla. Stat. (2005). The Department argues that because petitioners have challenged a rule, a proceeding countenanced by section 120.56, they may not proceed by the present consolidated petition and, instead, must file separate actions.

Contrary to the Department’s argument, this is not simply a proceeding as prescribed in section 120.56. Although petitioners have challenged a rule, they have ostensibly brought this proceeding under 120.57(1), Florida Statutes (2005). We have previously ruled that “nothing precludes ... a rule challenge in conjunction with [a] 120.57 proceeding.” United Health, Inc. v. Dep’t of Health & Rehab. Servs., 579 So.2d 342, 343 (Fla. 1st DCA 1991). Accordingly, petitioners’ inclusion of a rule challenge, along with the allegation of factual disputes entitling them to an adjudicatory hearing, does not free the Department from the requirements of section 120.569.

Under that statute, an agency must, within 15 days of receipt, grant or deny a request for hearing. § 120.569(2)(a), Fla. Stat. (2005). An agency may dismiss a petition only if it articulates with particularity its reasons for doing so. § 120.569(2)(c), Fla. Stat. (2005). Our review of the agency order confirms that the Department here declared the amended petition legally insufficient for failing to meet the requirements of the rules concerning the form of the petition. See Fla. Admin. Code R. 28-106.201 (2005). The petition does, however, comply with the pleading requirements. Apparently, then, petitioners’ inclusion of a rule challenge constitutes the Department’s sole reason for refusing to proceed on the petition. As we have noted, this reason is not sufficient.

Although a rule challenge is filed with the Division of Administrative Hearings (“DOAH”), the same result may be accomplished here by requiring the Department to forward the petition to DOAH. Under the rule challenge statute, the DOAH, upon receipt of a petition, must immediately forward copies to the agency whose rule is challenged. See § 120.56(l)(c), Fla. Stat. (2005). Here, the clear intent of the statute has been satisfied because the Department has already received notice of the rule challenge as well as of the substantial interest challenge which, of course, must be filed with the agency. See § 120.569(2)(a), Fla. Stat. (2005). As this court long ago observed, the legislative purpose of section 120.57 is “to avoid any appearance of requiring a substantially affected party to initiate duplicative 120.54 or .56 proceedings if his rule challenge is regularly presented with other grievances under 120.57.” Dep’t of Gen. Servs. v. Willis, 344 So.2d 580, 592 (Fla. 1st DCA 1977). Here, a bifurcation of proceedings would waste public resources and could well result in a duplication of effort.

For the reasons stated in this opinion, we GRANT the writ. We instruct the Department to comply with the provisions of sections 120.569(2)(a) and 120.569(2)(c), Florida Statutes (2005).

LEWIS and HAWKES, JJ„ concur.