author: PER CURIAM. LAWSON, J.,

text:
    Jennifer DRAGOVICH, as Next Friend, Etc., Appellant, v. MAGICAL CRUISE COMPANY, LTD., etc., et al., Appellees.
    No. 5D05-1695.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.
    Daniel S. Rosenbaum and Cheryl L. Potter of Becker Poliakoff, P.A., West Palm Beach, for Appellant.
    Robert W. Thielhelm, Jr., of Baker Hos-tetler LLP, Orlando and Ted L. Shinkle of GrayRobinson, P.A., Melbourne, for Appel-lee Magical Cruise Company Limited.
    Joseph L. Amos, Jr. and Stephanie B. Preston of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee Suram Trading Corporation, Inc.
   PER CURIAM.

AFFIRMED.

THOMPSON and SAWAYA, JJ„ concur.

LAWSON, J., dissents, with opinion.

LAWSON, J.,

dissenting.

Jennifer Dragovich, as next friend of Taylor Dragovich, a minor, timely appeals the order granting Suram Trading Corporation, Inc.’s, (“Suram”), and Magical Cruise Company, LTD., d/b/a Disney Cruise Lines’s, (“Disney”), motions to exclude the testimony of Paul Summers, M.D., regarding the issue of medical causation, and the subsequent final order granting summary judgment in favor of Suram and Disney.

Dragovich alleges that Suram supplied Disney with shrimp contaminated with three strains of non-typhoid salmonella and two strains of E. coli bacteria that Disney served to her during an embarkation luncheon aboard one of its cruise ships sailing from Port Canaveral. According to the complaint, Jennifer Dragovich contracted gastroenteritis from the contaminated shrimp, which resulted in an infection of the placenta, a placental abruption, and the pre-term delivery of Taylor (with consequent medical complications).

I agree with the majority’s conclusion that the testimony of Dr. Summers was properly excluded under the Frye test. If Dr. Summers had presented the only causation theory in opposition to Suram and Disney’s respective motions for summary judgment, I would also agree that summary judgment had been properly granted. However, Dragovich also opposed summary judgment by filing an affidavit from Enid GilberU-Barness, M.D., that presented an alternative theory of causation which created a genuine issue of material fact for trial.

In her affidavit, timely filed in opposition to the summary judgment motions, Dr. Gilberh-Barness opined that within a reasonable degree of medical certainty: (1) Jennifer Dragovich developed severe cho-rioamnionitis (an infection of the placenta) as a result of the diarrhea she experienced on board Disney’s cruise ship; (2) the diarrhea and resulting chorioamnionitis were caused by the bacterial pathogens in the shrimp supplied by Suram and served by Disney; (3) the chorioamnionitis caused a placental abruption to occur; and (4) this abruption caused the pre-term delivery of Taylor Dragovich.

Although Dragovich presented and ar-. gued this theory of causation as completely independent of the previously-rejected opinion of Dr. Summers, Suram and Disney were successful in convincing the trial court that a logical link between the two opinions required rejection of both. In short, Dr. Summers had opined that the body’s immune reaction to the localized colon infection somehow caused Jennifer Dragovich to begin pre-term contractions. These contractions would have caused the opening of her cervix. Dr. Gilbert-Barness agrees that Jennifer Dragovich’s cervix had to have been open before pathogens being expelled from her body in diarrhea could have infected the placenta.

Because the trial court rejected Dr. Summers’ opinion as to why the cervix might have been open (thereby allowing the pathogens from the shrimp access to the placenta), it also concluded that Dr. Gilbert-Barness’ opinion must be rejected as well. I disagree. “It is elementary that a tortfeasor takes an injured party as he finds him.” Fassoulas v. Ramey, 450 So.2d 822, 829 (Fla.1984) (Ehrlich, J., dissenting). Therefore, the law does not require Dragavich to prove why her pregnant body was vulnerable to an infection of the placenta anymore than it would require a victim with brittle bones to establish why she had this condition before recovering in tort from someone who negligently struck her causing bone fractures that would not have been sustained by a “normal,” healthy person.

Therefore, I would reverse the order granting summary judgment on the issue of causation, and remand for further proceedings.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).


source: Caselaw Access Project

author: FARMER, J.

license: Public Domain

text:
    BRANDON JONES SANDALL ZEIDE KOHN CHALAL & MUSSO, P.A.; Michael S. Zeide, M.D.; Edward W. Sandall, M.D.; Marvin A. Kohn, M.D.; Joseph B. Chalal, M.D.; and Emilio S. Musso, M.D., Appellants, v. BEASLEY & HAUSER, P.A.; and Montgomery & Larson, LLP, Appellees.
    No. 4D05-2820.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller McIntyre & Gregoire, P.A., Fort Lauderdale, and Ronna Friedman Young, of Sachs Sax & Klein, Boca Raton, for appellants.
    James W. Beasley, Jr., and Robert J. Hauser of Beasley Hauser Kramer & Leonard, P.A., West Palm Beach, for ap-pellees.
   FARMER, J.

Here we review an order refusing to vacate an arbitration award. The trial court found that the party seeking such relief failed to prove “evident partiality” on the part of the neutral arbitrator. We affirm.

The subject of the arbitration was attorneys’ fees. The client doctors and their attorneys could not agree on the amount, if any, of additional fees due for representation at the end of an appellate matter. To settle their differences, they entered into an after-the-fact agreement to arbitrate. They agreed to a panel of three arbitrators, all of whom would be members of the Florida Bar. They also apparently construed their agreement to mean that the arbitrators would be from Palm Beach County. The client doctors proceeded to designate their arbitrator, and the attorneys designated theirs. The two designated arbitrators of the parties then had to settle on a neutral arbitrator.

The several lawyers involved as parties and arbitrators in this case were spread among prominent local law firms. The client doctors had professional and social relationships with some of the members of these firms. Some attorneys considered for neutral arbitrator — as well as partners in a chosen neutral’s firm — were very likely to have prior relationships and continuing future contacts with individual parties to this dispute and their professional associates. From the beginning, it would have seemed unlikely, given their interrelated social and professional relationships in Palm Beach County, that the neutral arbitrator would be untouched by past or future contacts of both doctors and lawyers unrelated to the substance of this attorney fee dispute.

And so their agreement gave both sides several days to decide on the neutral. There can be no doubt that the parties consulted their designated arbitrators on whom to appoint. Indeed there was testimony that the client doctors even consulted additional outside counsel regarding the arbitration. From a list of proposed neutral arbitrators, ultimately both of the arbitrators designated by the parties agreed to appoint a former trial court judge (whom the parties honorifically refer to as Judge Rutter), now a partner in a local law firm. Both sides approved the appointment.

During the course of the ensuing arbitration, Rutter and his law firm were contacted by a Doctor Lester — who is not a party and is not involved in any way with the claim being arbitrated — for legal advice or possible representation in regard to a peer review proceeding. Doctor Lester then had contacts with three of the claimant attorneys or their firms about potential future litigation on the unrelated matter. There were several contacts between Rut-ter (on the one hand) and members of his law firm and three of the claimant attorneys (on the other hand) in regard to providing documents and information connected to the subject matter of Doctor Lester’s inquiries. Rutter did not disclose any of these contacts.

The arbitration proceeded to a conclusion. The arbitration decision found in favor of the attorneys in part and in favor of the client doctors in part. Indeed the final decision could plausibly be seen as a division of the baby into equal parts.

The trial judge held an evidentiary hearing lasting for two days on the client doctors’ petition seeking to vacate the award for evident partiality of a neutral arbitrator.- Among other things, the trial judge made the following findings of fact with regard to the above contacts:

a. the Law Firms and Rutter did not act as co-counsel with respect to issues relating to Dr. Lester or with respect to any other matter;
b. Dr. Lester sought legal advice from Rutter and the Law Firms for two different purposes and on two different matters;
c. there is no evidence that Rutter and the Law Firms were consultants for one another with respect to issues relating to Dr. Lester; Rutter was merely a transmitter of factual information relevant to proceedings relating to Dr. Lester;
d. there are no continuing or prior business dealings, and no business relationship, between the Law Firms and Rutter;
e. there is no financial relationship between the Law Firms and Rutter;
f. there is no social relationship between the Law Firms and Rutter;
g. [the client Doctors] have not shown there was bias or prejudice in the arbitration decision or by Rutter;
h. there is no evidence of any predisposition on the part of Rutter to rule in favor of one party or the other; and
i. but for Rutter’s law partner’s vacation, Rutter probably would not have had any contact with the Law Firms.

In making her decision, the trial judge expressed several conclusions of law from the evidence. She said that the client doctors were required to show that Rutter “ ‘might reasonably be thought biased’ under the circumstances.” “Mere speculation is not enough to establish evident partiality; [the client doctors] must establish ‘specific facts’ that indicate improper motives of Judge Rutter.” She further thought that “the evidence of bias must be ‘direct, definite and capable of demonstration.’ ” She concluded that the facts shown at the evidentiary hearing did not “demonstrate evidence of bias,” saying: “The evidence in this case does not establish facts and circumstances that prove evident partiality.” In doing so, she rejected the client doctors’ principal argument that they were entitled to vacatur as a matter of law upon a showing of a mere appearance of partiality.

The Florida Arbitration Code provides that:

“Upon application of a party, the court shall vacate an award when: (a) The award was procured by corruption, fraud or other undue means; (b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party .... ” [e.s.]

§ 682.13(1), Fla. Stat. (2005). The client doctors based their attack on subsection (l)(b) above, alleging “evident partiality” on the part of a neutral arbitrator. Focusing on the text of this statute, we read its plain meaning to require the complaining party to prove evident partiality prejudicing the rights of the party. In other words, the partiality of the neutral must be obvious and plain and must be shown to have unfairly affected the rights of the complaining party.

The Fifth District recently construed section 682.13(l)(b) in RDC Golf of Florida 1, Inc. v. Apostolicas, 925 So.2d 1082, 2006 WL 664207 (Fla. 5th DCA Mar. 17, 2006). Addressing an identical contention by a party seeking to set aside an arbitration award on the grounds of evident partiality, the court held that this provision requires “a showing through credible evidence, giving rise to a ‘reasonable impression of partiality’ that was ‘direct, definite, and capable of demonstration,’ as distinct from a ‘mere appearance’ of bias that was remote, uncertain, and speculative.” 925 So.2d at 1094. In RDC it turned out that the neutral arbitrator and the attorney for one of the parties to the dispute being arbitrated were jointly representing a synagogue in a matter involving a Rabbi, a fact that was not disclosed until the arbitration hearing had finished. The Fifth District concluded that the non-disclosure in that case did not create a “reasonable impression of partiality.” [e.s.] Id. It strikes us that the contacts in the present case are even more harmless than those in RDC.

The client doctors argue that the Florida Arbitration Codé provision quoted above should be interpreted in the same way several federal courts have construed the federal arbitration statute. They refer to selective parts of the principal disposi-tional opinion in Commonwealth Coatings Corporation v. Continental Casualty Corporation, 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968), to argue that a mere appearance of possible bias is sufficient. We note that the partiality shown in that case involved a close business relationship between the arbitrator and the defendant in arbitration, one that even involved the matter in arbitration. The federal statute construed in Commonwealth allowed the court to vacate an award “where there was evident partiality or corruption in the arbitrators.” 9 U.S.C. § 10(a)(2) (1968).

But it is at once apparent that the text of the federal statute differs in a significant aspect from the Florida statute. The Florida statute adds the qualifying provision prejudicing the rights of any party not found in the federal statute. We therefore doubt that the decisions construing the text of the broader federal statute offer much guidance as to the meaning of the narrower Florida provision.

The doctors also argue that our own decision in Boyhan v. Maguire, 693 So.2d 659, 662 (Fla. 4th DCA 1997), construes the Florida statute to allow a judge to set aside an arbitration award on the basis of a mere appearance of possible bias. We think they have read something unstated into Boyhan. The part of the opinion relied upon by the doctors is:

“The courts addressing evident partiality claims have unequivocally denounced the appearance of partiality in arbitration proceedings; thus, a showing of circumstances which would reasonably tend to bias the judgment of an impartial arbitrator will suffice for vacation of an award.”

693 So.2d at 662. We should point out, however, that “a showing of circumstances which would reasonably tend to bias the judgment of an impartial arbitrator” is hardly the same thing as an appearance of possible bias. What Boyhan really seeks to make clear is that the particular circumstance that a party relies on to show evident partiality must be something that logically would reasonably tend to tilt the decision of the arbitrator. Only with such a circumstance could “evident partiality” possibly be shown.

In construing the Florida statute, we have held that “[a] very high degree of conclusiveness attaches to an arbitration award.” Deen v. Oster, 814 So.2d 1065, 1068 (Fla. 4th DCA 2001). That means that the role of the judiciary in Florida arbitration decisions was meant to be quite limited and rare. If the parties intended for arbitration decisions to be broadly under the control of the judiciary, them agreement would hardly have the effect of substituting arbitration for litigation in a court. We think the sentiments expressed by Justice White in his concurring opinion in Commonwealth accurately portray the policies embodied in the Florida provision:

“The judiciary should minimize its role in arbitration as judge of the arbitrator’s impartiality. That role is best consigned to the parties, who are the architects of their own arbitration process, and are far better informed of the prevailing ethical standards and reputations within their business.”

393 U.S. at 151, 89 S.Ct. 337.

Rutter’s undisclosed contacts do not demonstrate an obvious case of bias, and there is nothing showing that the contacts prejudiced the outcome in any way. The evidence of the client doctors at best shows that any tendency of the contacts to bias was insignificant and was outweighed by a neutrality that was far more real. Both sides were fully aware of close, interconnected workings among these professional groups in Palm Beach County when they agreed to appoint Rutter as the neutral arbitrator. Both sides foresaw that during the progress of the arbitration past and continuing professional relationships might well result in legal and medical contacts and referrals to lawyers or doctors on unrelated matters. Indeed their premeditated mutual appointment of this particular neutral arbitrator — with his past record of judicial service — suggests a belief that if unrelated contacts did occur they could rely on habits, customs and attitudes of detachment and impartiality formed during previous judicial service as a safeguard against any possible prejudice.

Affirmed.

STONE and MAY, JJ., concur.

      . Citing Int’l Ins. Co. v. Schrager, 593 So.2d 1196, 1197 (Fla. 4th DCA 1992).

      . One dictionary lists the following adjectives as sharing a "central meaning”: apparent, clear, clear-cut, distinct, evident, manifest, obvious, patent, plain. American Heritage Dictionary 88 (3rd ed.).


author: PER CURIAM.

text:
    SANTA CATALINA TOWNHOMES, INC., Petitioner, v. Shabaz MIRZA, Respondent.
    No. 4D05-4897.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Peter M. Hodkin of the Law Offices of Peter M. Hodkin, P.A., Ft. Lauderdale, for petitioner.
    Assad S. Mirza of Mirza & Mirza, LLP, Pembroke Pines, for respondent.
   PER CURIAM.

In an action for the specific performance of a contract for the construction and sale of real property by petitioner (the developer/defendant below) to the respondent (the plaintiff contract purchaser), the developer seeks certiorari review of an order denying its motion to dissolve the purchaser’s lis pendens or require the posting of a bond. We deny the petition.

The developer contends that because the lis pendens in this case was not founded on a recorded instrument or a construction lien, a bond was absolutely required. Following a hearing at which the .developer did not seek to adduce any evidence of its likely damages (other than counsel’s argument that the developer’s damages would equal the purchase price of the property), the trial court denied the motion without prejudice, declining to set bond “at this time.”

We conclude the trial court did not depart from the essential requirements of law in denying bond “at this time.” In Medical Facilities Development, Inc. v. Little Arch Creek Properties, Inc., 675 So.2d 915 (Fla.1996), the supreme court rejected the contention that a bond is required in all cases in which the lis pendens is not founded on a recorded instrument or construction lien. Instead, the trial court is authorized to require a lis pendens bond, after affording the parties an evidentiary hearing on the issue of whether the holder of the property is likely to incur damage, and the amount thereof, if the lis pendens notice is unjustified. See Betsy Ross Hotel, Inc. v. A.G. Gladstone Assocs., Inc., 833 So.2d 211, 212 (Fla. 3d DCA 2002).

In Haisfield v. ACP Florida Holdings, Inc., 629 So.2d 963 (Fla. 4th DCA 1993), where, as in the instant case, a lis pendens was filed in connection with a suit for specific performance of a contract to sell land to the party filing the notice, this court adopted, as the proper method of measuring damages for wrongful filing of a lis pendens, the method described in Askari v. R & R Land Co., 179 Cal.App.3d 1101, 225 Cal.Rptr. 285 (1986): the difference between the fair market value at the time of filing of the lis pendens and the fair market value at the time of its termination, plus any consequential damages, including the award of operating expenses if the property declined in value, prejudgment interest from the date of termination of the lis pendens, and attorney’s fees.

In this case, no evidence was presented at the hearing from which the order on review emanated as to the amount of damages petitioner was likely to incur, under this measurement, in the event the lis pen-dens is ultimately determined to be unjustified. By denying bond “without prejudice,” it appears the trial court will allow the petitioner a further opportunity to attempt to do so. Under the circumstances, its denial of the motion without prejudice was not a departure.

Accordingly, we deny the petition without prejudice to the developer’s renewing its request for bond and for an evidentiary hearing on the issue of whether it is likely to incur damages as a result of the lis pendens and, if so, the amount.

STEVENSON, C.J., FARMER and HAZOURI, JJ., concur.


text:
    Stephen Jerome TOLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1949.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Stephen Jerome Tolbert, appeals his conviction for possession of cocaine under section 893.101, Florida Statutes (2003), arguing that a jury instruction failed to instruct the jury that knowledge of the illicit nature of the controlled substance is an element of the crime, therefore rendering section 893.101 unconstitutional. This court addressed the constitutionality of section 893.101 in Wright v. State, 920 So.2d 21 (Fla. 4th DCA), rev. denied, 915 So.2d 1198 (Fla.2005). In Wright, this court rejected the argument made by Tolbert. Accordingly, we affirm Tolbert’s conviction for those reasons discussed in Wright.

Affirmed.

WARNER, GROSS and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    Huntley WALKER, Appellant, v. FLORIDA DEPARTMENT OF VETERANS’ AFFAIRS, a governmental entity, Appellee.
    No. 4D05-2530.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Roger Pickles of Law Office of Robert P. Kelly, Hollywood, for appellant.
    Christopher J. Whitelock of Whiteloek & Associates, P.A., Fort Lauderdale, for ap-pellee.
   GROSS, J.

Huntley Walker appeals an adverse final summary judgment on his complaint that his dismissal by his employer, the Florida Department of Veterans Affairs, violated the Whistle-blower’s Act, sections 112.3187-112.31895, Florida Statutes (2004). Walker claimed that he was fired because he raised safety issues about the van he drove for the Department. We affirm because Walker failed to make a protected disclosure in the manner required by the statute.

To state a cause of action under the Whistle-blower’s Act, three elements must be established: “1) prior to termination the employee made a disclosure protected by the statute; 2) the employee was discharged; and 3) the disclosure was not made in bad faith or for a wrongful purpose, and did not occur after an agency’s personnel action against the employee.” Dep’t of Transp. v. Florida Comm’n on Human Relations, 842 So.2d 253, 255 (Fla. 1st DCA 2003). Under section 112.3187(7), as it applies to this case, a protected disclosure requires an employee’s “written and signed complaint,” or a “written complaint to [the employee’s] supervisory official ].” The purpose of the statutory requirement of a signed writing “is to document what the employee disclosed, and to whom the employee disclosed it, thus avoiding problems of proof for purposes of the Whistle-blower’s Act.” Hutchison v. Prudential Ins. Co. of America, Inc., 645 So.2d 1047, 1050 (Fla. 3d DCA 1994) (holding that a “signed letter” authored by employee satisfies statutory requirement of a “written and signed complaint”).

To satisfy the “written and signed complaint” requirement, appellant points to two repair invoices for the van, prepared by the repair shop and signed by Walker as a customer. One invoice shows a zero balance for a $3,800 repair and the other shows a balance of $750 for different repairs. The invoices do not qualify as a “written and signed complaint” within the meaning of section 112.3187(7). The invoices neither document the nature of Walker’s protected disclosure, nor indicate the person to whom any disclosure was made. The Department had authorized the repairs prior to Walker signing the invoices; one invoice reflects that the bill for services had already been paid by the department. Even the liberal construction of the statute that Walker urges cannot stretch the statutory requirement of a “written and signed complaint” to cover the invoices here at issue.

Affirmed.

WARNER and HAZOURI, JJ., concur.


text:
    Tiphanie-Nicole PARRA, a minor by and through her mother, Mercy PARRA, and Mercy Parra, individually, Appellants, v. TUTOR TIME LEARNING SYSTEMS, INC., a Florida corporation, Appellee.
    No. 4D05-2993.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Eric L. Berger of Law Offices of Koppel & Bates, Plantation, for appellants.
    Christopher B. Hopkins and Allison S. Miller-Bernstein of Cole, Scott & Kissane, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Rodriguez v. Discovery Years, Inc., 745 So.2d 1148 (Fla. 3d DCA 1999); Benton v. School Board of Broward Co., 386 So.2d 831 (Fla. 4th DCA 1980).

STEVENSON, C.J., GUNTHER and MAY, JJ., concur.


author: ' PER CURIAM.

text:
    Terence M. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-39.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Terence M. Scott, Belle Glade, pro se.
    Charles J. Crist, Jr.; Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   ' PER CURIAM.

Terence Scott appeals the summary denial of his rule 3.850 motion for post-conviction relief. The trial court denied appellant’s 3.850 motion as untimely without ruling on the merits of appellant’s claims or ordering a response from the state. A judgment and sentence do not become final until the thirty-day period for filing an appeal has expired. Napolitano v. State, 782 So.2d 1012 (Fla. 4th DCA 2001); Caracciolo v. State, 564 So.2d 1163 (Fla. 4th DCA 1990). Scott was sentenced on September 4, 2003, and his conviction became final on October 7, 2003. Thus, as the state correctly concedes, Scott’s post-conviction motion filed on October 3, 2005 was timely. Accordingly, the trial court’s denial of these claims is reversed and remanded for consideration of the merits of the motion for post-conviction relief.

FARMER, GROSS and MAY, JJ., concur.


text:
    James McDONOUGH, Secretary, Department of Corrections, Appellant, v. Kenneth GARTLEY, Appellee.
    No. 4D06-765.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Judy Bone, Assistant General Counsel, Tallahassee, for appellant.
    No appearance for appellee.
   PER CURIAM.

We treat this petition for writ of certio-rari as a final appeal and affirm.

STONE, POLEN and KLEIN, JJ., concur.


author: WAENER, J.

text:
    Homer WIGGINS, as Personal Representative of the Estate and Survivors of Virginia Wiggins, deceased, Appellant, v. Samuel H. SADOW, M.D., Appellee.
    No. 4D05-599.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Deborah J. Gander of Colson Hicks Eid-son, Coral Gables, for appellant.
    Thomas E. Dukes, III and Michelle M. Perez-Sotolongo of McEwan, Martinez & Dukes, P.A., Orlando, for appellee.
   WAENER, J.

Homer Wiggins, as representative of the estate and survivors of Virginia Wiggins, appeals the jury verdict and final judgment in favor of Samuel H. Sadow, M.D. on Wiggins’ claim of medical malpractice causing the death of Virginia Wiggins, his wife. He claims that the trial court abused its discretion in denying his motion for new trial based upon juror misconduct. He also contends that the verdict was against the manifest weight of the evidence. Because the issue of juror concealment was determined on issues of credibility, the court did not abuse its discretion. We also conclude that the trial court did not abuse its discretion in denying the motion for new trial based on Wiggins’ challenge that the verdict was against the manifest weight of the evidence. We therefore affirm.

Juror Arber, who had confrontations in the past with Wiggins’ granddaughter, sat on the jury. During voir dire, the juror was asked whether she knew Homer Wiggins or any of the listed witnesses. She did not state that she knew any of the listed witnesses. The juror would later testify that she did not recognize Wiggins or the members of his family who testified during the trial. However, when Wiggins’ granddaughter was present in court for the announcement of the verdict, the granddaughter recognized the juror. Wiggins filed a motion for new trial based upon juror misconduct, claiming that the juror knew the family and wrongly refused to disclose her connection. The court held a hearing at which the juror, other family members, and the court bailiff testified. Based upon the juror’s testimony in which she swore that she did not recognize any of the witnesses or Homer Wiggins, the court determined that the juror had not concealed her relationship to the plaintiffs family, because she had not recognized them. The court therefore denied the motion.

A trial court’s order on a motion for new trial grounded on juror concealment of information is reviewed for an abuse of discretion. Taylor v. Magana, 911 So.2d 1263, 1267 (Fla. 4th DCA 2005). In De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995), our supreme court set forth a three-part test for determining whether a juror’s nondisclosure of information during voir dire warrants a new trial. The Be La Rosa test requires the complaining party to establish that: 1) the information is relevant and material to jury service in the case; 2) the juror concealed the information during questioning; and 3) the failure tó disclose the information was not attributable to the complaining party’s lack of diligence. Id. at 241. Applying that test to the facts of this case, we conclude that no abuse of discretion is shown.

Juror Arber has known Wiggins’ granddaughter, Margie McPeak, since they were teenagers. However, they ceased being friends when the juror was involved in a relationship with the father of McPeak’s child. According to McPeak, she and Arber engaged in a physical altercation during this time, which was several years prior to the trial of this case. McPeak was not a witness at trial, and her name was never read to the jury. She did not come to court until the verdict was read.

Wiggins’ other granddaughter, Nancy D’Avino, also knew Arber. However, when they last saw each other, Nancy’s last name was not D’Avino. Arber testified at the post-trial hearing that she had only known D’Avino by her maiden name, and thus she did not recognize D’Avino as someone she knew. When D’Avino testified during trial, D’Avino thought she might have recognized Arber but did not advise her grandfather’s attorney of that fact because she was unsure that the juror was, in fact, Arber. It was only when McPeak saw Arber in court as the verdict was being read that she recognized Arber and notified Wiggins’ attorney. Arber likewise recognized McPeak and told the deputy sheriff immediately after the jury was discharged. She was concerned that there might be a further incident, but she advised the deputy that she had not known of her connection to the family until McPeak appeared in court.

In its order denying the motion for new trial, the trial court made a finding of fact that juror Arber did not conceal any material fact during the course of the trial because she did not recognize the plaintiff or the members of the family who were present at trial before the jury retired to deliberate. Based upon the trial court’s findings, the three-part De La Rosa test was not met. Although the information regarding Arber’s connection with the Wiggins’ granddaughters would have been relevant to her service on the jury, Arber did not “conceal” any information because she did not know of her relationship to Wiggins through his granddaughters, and she was never asked whether she knew McPeak, nor was she asked whether she knew D’Avino by a name that she would have recognized. “[Ijnformation is considered concealed for purposes of the three part test where the information is ‘squarely asked for’ and not provided.” Birch v. Albert, 761 So.2d 355, 358 (Fla. 3d DCA 2000). No information was squarely asked for and concealed within the meaning of the De La Rosa test.

The court made a detailed analysis of the witnesses and found Arber’s testimony credible. Although it is quite apparent that Wiggins vehemently disagrees with the findings of the trial judge, the trial court is the judge of the credibility of witnesses. We find no abuse of discretion.

As to whether the trial court erred in denying the motion for new trial on the ground that the verdict was contrary to the manifest weight of the evidence, a trial judge has broad discretion in ruling on such a motion. Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999). “If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.” Id. at 498.

The gist of the medical malpractice claim was that Dr. Sadow negligently lacerated Mrs. Wiggins’ renal vein during a repair of an abdominal aneurysm. This occurred because he failed to recognize that the vein was retro-aortic, or behind the abdominal aorta rather than in front of it. A retro-aortic renal vein is an anatomical anomaly that occurs in 1-2% of the population, but does not pose any health problems. Not knowing that he had lacerated the renal vein, he also failed to repair it, and Mrs. Wiggins expired during surgery. Dr. Sadow’s defense was two-fold. First, he claimed that he was not negligent in failing to recognize the retro-aortic presentation of the vein, and second, he maintained that other major health problems of Mrs. Wiggins resulted in her massive blood loss and ultimate death.

Wiggins’ expert, Dr. Stone, testified that Dr. Sadow fell below the standard of care in failing to recognize the placement of the renal vein. The defense expert, Dr. Faro, testified that Dr. Sadow did not fall below the standard of care in failing to recognize this anatomical anomaly from the CT scan made prior to surgery. In fact, Dr. Faro testified that a lot of radiologists would not recognize it, nor would he himself have been able to pick it out from the CT scan prospectively. Moreover, Dr. Stone admitted that he once failed to recognize the placement of the renal vein prior to surgery.

Dr. Faro admitted that once surgery commenced, there was a “possibility” that Dr. Sadow could have recognized the retro-aortic vein. Wiggins claims that this amounted to a concession that Dr. Sadow deviated from the standard of care, but Dr. Faro gave several reasons why it was not unreasonable that Dr. Sadow did not recognize it. Dr. Faro also testified that Dr. Sadow met the standard of care in his attempts to control Mrs. Wiggins’ bleeding after he discovered that she was losing blood.

Although the plaintiff attempts to paint a picture where the defendant’s experts were in “agreement” that the defendant violated the standard of care, a review of the entire record suggests that the testimony of the defense experts was much more nuanced. The consistent message of Dr. Faro’s testimony was that Dr. Sadow met the standard of care at each stage of the surgery. The concessions that Dr. Faro made on cross-examination did not amount to concessions that Dr. Sadow committed malpractice. At the hearing on the motion for new trial, the trial court noted “there was testimony from both sides as to what the doctor did or didn’t do that was appropriate or inappropriate.” Finding that the case was well presented by the lawyers, the court concluded that the case simply presented disputed issues of fact which the jury resolved. It thus denied the motion. We find no abuse of discretion in the court’s ruling.

Wiggins cites Fisher v. Smithson, 839 So.2d 788 (Fla. 4th DCA 2003), and Gonzalez v. Ravirifici, 745 So.2d 1145 (Fla. 3d DCA 1999), as authority for his position that a new trial should have been granted, but in each of those cases the appellate court affirmed an order of the trial court granting a new trial. In both cases, the appellate court determined that the granting of a new trial was not an abuse of discretion. If the trial court in this case had granted a new trial, we may very well have determined that it was not an abuse of discretion. See Brown, 749 So.2d 490. Nevertheless, where a review of the record shows that reasonable persons can disagree on the court’s conclusion that there was disputed evidence as to the issue of negligence, we will not reverse.

Affirmed.

KLEIN, J., and BAILEY, JENNIFER D., Associate Judge, concur.


author: WARNER, J.

text:
    DEVELOPMENT CORP. OF PALM BEACH, Appellant, v. WBC CONSTRUCTION, L.L.C., Willard Brothers Construction, Inc. and Building Materials Holding Corporation, Inc., Appellees.
    No. 4D05-293.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Spencer M. Sax of Sachs Sax Klein, Boca Raton, and Robert Rivas of Sachs Sax Klein, Tallahassee, for appellant.
    Rodolfo Sorondo, Jr. and llene L. Pabi-an of Holland & Knight LLP, Miami, for appellee Building Materials Holding Corporation, Inc.
   WARNER, J.

Development Corp. of Palm Beach (“Development”) appeals an order of the trial court dismissing its complaint filed against Building Materials Holding Corporation (“BMHC”) for lack of personal jurisdiction over BMHC. We affirm because BMHC was not subject to jurisdiction under section 48.193, Florida Statutes.

Development brought suit against Willard Brothers Construction, Inc. (“Willard Brothers”), WBC Construction, LLC (“WBC”), and BMHC for damages for breach of contract entered into by Willard Brothers in 2000 and modified in 2003 to construct shells of residential homes for Development. Although its agreements were with Willard Brothers, which later became WBC, Development also sued BMHC alleging that BMHC was the parent company of WBC and the cause of action arose from the activities of a joint venture between WBC, Willard Brothers, and BMHC.

BMHC moved to dismiss the complaint for lack of personal jurisdiction. It attached affidavits from its chief administrative officer, stating that it conducted no business activities in Florida, that it was not a member or manager of WBC, and that it was not a party to a joint venture with WBC. It denied that it had a contractual relationship with Development or that it was involved with any of the activities that gave rise to the alleged tortious conduct in the complaint.

Development filed counter-affidavits of one of its officers, stating his understanding that BMHC was engaged in a joint venture with WBC and Willard Brothers. He further stated that BMHC controls and is responsible for WBC and Willard Brothers. Attached to the affidavit were press releases from BMHC which included language describing the relationship between Willard Brothers and BMHC as a joint venture. It also filed an affidavit of Danny Willard, who testified in a deposition that Willard Brothers “merged with a partner, which is BMHC.” BMHC then filed an affidavit of Bruce Willard which refuted his brother’s statement, attesting that WBC was not a merger or joint venture with BMHC.

After a review of the motion and affidavits, the trial court concluded that the affidavits could not be reconciled and conducted a limited evidentiary hearing pursuant to Venetian Salami Company v. Parthenais, 554 So.2d 499 (Fla.1989), to determine whether BMHC had the requisite minimum contacts with Florida to be subjected to its jurisdiction.

At the hearing, the following facts revealed the connection between BMHC and WBC. BMHC is a publicly-traded holding company that invests in the residential construction industry through its operating subsidiaries. It is headquartered in California and incorporated under the laws of Delaware. BMHC has two wholly owned subsidiaries that conduct its business operations, one of which is BMC Construction, Inc. (“BMC”).

Willard Brothers is a Florida corporation, owned by Bruce and Danny Willard, and formed in 1990. It is in the business of shell construction, which refers to the business of building the structural portions of new homes. In 2002, BMHC, through BMC, sought to purchase the assets of Willard Brothers. In order to accomplish the sale, Bruce and Danny formed a company called WBC Construction, a limited liability company incorporated in Delaware. The assets of Willard Brothers were then transferred to WBC. Willard Brothers retained a 98% share of WBC, with the brothers owning the remaining 2%.

In January 2003, Willard Brothers, WBC, Bruce, Danny, BMHC, and BMC entered into a securities purchase agreement. Pursuant to the agreement, BMC purchased sixty percent of WBC, leaving Willard Brothers with 38% and the brothers owning 2%. BMHC has no direct ownership interest in WBC. BMHC is referred to in the securities purchase agreement because it issued shares of its stock to Willard Brothers as part of the purchase price for BMC’s 60% interest.

Concurrent with the sale, an operating agreement was entered which provided that the ordinary and usual decisions concerning WBC would be made by its managing member, Willard Brothers, through Bruce Willard. Among other powers, the managing member has the authority to hire and fire employees and consultants, to execute leases and contracts in the ordinary course of business, to maintain bank accounts, and to bring and defend actions and proceedings before any court. The managing member also participates in a management committee which oversees the company. The members of the management committee are Bruce and Danny Willard; Mike Mahre, the CEO of BMC, who is also a senior vice-president at BMHC; and Randy Shipp, who is the Chief Operating Officer of BMC.

However, there are some limitations on the authority of Willard Brothers as the managing member. Certain expenditures must have the approval of BMC as well as BMHC. BMHC must approve any purchase or sale of an asset in excess of $25,000. Further WBC must receive BMHC’s permission to buy or sell automobiles or real estate.

BMHC audits WBC on an annual basis, and WBC’s profits and losses are reported in a consolidated financial statement of all BMHC-held entities. BMHC processes WBC’s payroll through a national payroll service in Idaho. Bruce Willard acknowledged that he reports each month on significant accounts to BMC. He reports to Mike Mahre, who is not only CEO of BMC, but also a senior vice-president of BMHC.

BMHC presented its relationship with WBC as a joint venture in press releases and on its website. The website repeatedly referred to a joint venture with Willard Brothers through WBC. Furthermore, in BMHC’s Form 10-K filing with the SEC, it stated that WBC was managed by BMHC and referred at one place to WBC as being integrated into BMHC and in another as being consolidated with BMHC. Additionally, under the headline “BMHC Launches Florida Operations Through New Construction Services Joint Venture,” BMHC’s website included an article describing a joint venture with WBC through its subsidiary BMC.

The corporate attorney of BMHC who testified at the hearing stated that the press releases and website material were written by its investor relations firm and were meant to be responsive to the SEC requirement that firms use “plain English” for investors. It was not meant to characterize their legal relationship, which is defined in the securities purchase agreement and operating agreement.

After hearing the evidence, the court granted the motion to dismiss finding that BMHC did not have minimum contacts with the State of Florida. Development appeals this order.

Generally, a trial court’s ruling on a motion to dismiss for lack of personal jurisdiction is reviewed de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256-57 (Fla.2002). However, where “the trial court’s decision is based on live testimony, the appellate court defers to the trial court’s determination as to the credibility of witnesses.” Evans v. Thornton, 898 So.2d 151, 152 (Fla. 4th DCA 2005). Thus, with respect to the determination of facts, we defer to the trial court. With respect to the application of those facts to the law, we review de novo.

Section 48.193, Florida Statutes, is the long-arm statute of this state and provides, in relevant 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.
(2) A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

In Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989), the court explained the procedure to determine whether personal jurisdiction exists. Initially, the plaintiff must allege facts in its complaint showing the basis of the court’s jurisdiction. When a defendant challenges jurisdiction, the defendant files a motion to dismiss. If the motion alone is filed, then the defendant merely raises the legal sufficiency of the pleadings. When, however, the defendant files affidavits contesting the factual assertions of jurisdiction or the existence of minimum contacts, the burden then shifts to the plaintiff to file counter-affidavits supporting its position. If those affidavits conflict, then it is incumbent on the trial court to hold a hearing to resolve the conflicts in the evidence and determine the jurisdictional issue. Id. Thus, an evi-dentiary hearing under Venetian Salami resolves the factual disputes necessary to determine jurisdiction pursuant to section 48.193 as well as whether minimum contacts exist to satisfy due process concerns.

Here, the complaint alleged sufficient facts to show personal jurisdiction under either section 48.193(l)(a) or (2). It alleged that the defendant conducted business in the state through a joint venture relationship with WBC, and those same allegations would also sustain jurisdiction pursuant to section 48.193(2) as they would show that the defendant conducted substantial business activity within the state. The affidavits filed by BMHC and Development show a dispute as to the relationships and the contacts with Florida. Therefore, the court was required to resolve the factual issues at a hearing.

In order to establish a joint venture, the following elements must be proven: (1) a community of interest in the performance of a common purpose, (2) joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a right to share in the profits, and (5) a duty to share in any losses that may be sustained. Kislak v. Kreedian, 95 So.2d 510, 515 (Fla.1957). Under Florida law, members of a joint venture fall within the ambit of the long-arm statute where the causes of action arise out of the joint venture’s business activities to be performed in the forum state. See Sutton v. Smith, 603 So.2d 693, 698-99 (Fla. 1st DCA 1992).

We agree with BMHC that all of the elements of a joint venture were not proven. Nevertheless, that does not end the inquiry, as the type of business relationship actually existing could still result in subjecting BMHC to jurisdiction pursuant to an agency theory under section 48.193(l)(a). Here, the relationship was a parent/subsidiary arrangement, or even a sub-subsidiary, because BMC was the actual stockholder of WBC, and BMC was a wholly owned subsidiary of BMHC.

While a parent corporation is not subject to jurisdiction in Florida solely because its subsidiary does business here, see Qualley v. International Air Service Co., Ltd., 595 So.2d 194, 196 (Fla. 3d DCA 1992), the control of a parent over a subsidiary may permit the conclusion that the subsidiary is acting as the agent of the parent, thus subjecting the parent to jurisdiction under section 48.193(1) and supporting “minimum contacts.”

The level of control must be very high, however. In Enic, PLC v. F.F. South & Co., Inc., 870 So.2d 888 (Fla. 5th DCA 2004), a plaintiff sought to obtain jurisdiction over the foreign parent corporation of a local subsidiary for misrepresentations connected with the sale of its business. The foreign parent moved to dismiss for lack of jurisdiction. The court examined whether the subsidiary could be said to be the agent of the parent so as to subject it to jurisdiction under section 48.193(l)(a). The court explained:

It is well settled in Florida that the mere presence of a subsidiary in Florida, without more, does not subject a non-Florida corporate parent to long-arm jurisdiction. See, e.g., Walt Disney Co. v. Nelson, 677 So.2d 400, 403 (Fla. 5th DCA 1996); Qualley v. International Air Service Co., 595 So.2d 194, 196 (Fla. 3d DCA 1992), cause dismissed, 605 So.2d 1265 (Fla.1992). However, when a parent exercises sufficient control over a subsidiary, that control establishes an agency and supports jurisdiction. E.g., State v. American Tobacco Co., 707 So.2d 851, 854-55 (Fla. 4th DCA 1998); see also Bell Atlantic Corp. v. Associated Data Consultants, Inc., 714 So.2d 523 (Fla. 4th DCA 1998). The amount of control exercised by the parent must be high and very significant. American Tobacco, 707 So.2d at 851 (Fla. 4th DCA 1998). “[T]he parent corporation, to be liable for its subsidiary’s acts under the ... agency theory, must exercise control to the extent the subsidiary ‘manifests no separate corporate interests of its own and functions solely to achieve the purposes of the dominant corporation.’ ” Id. (quoting Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982) modified on other grounds by Dania Jai-Alai Palace v. Sykes, 450 So.2d [1114] at 1114 (Fla.1984)).
The instant ease is analogous to Kramer Motors, Inc. v. British Leyland, Ltd., 628 F.2d 1175 (9th Cir.) cert. denied, 449 U.S. 1062, 101 S.Ct. 785, 66 L.Ed.2d 604 (1980). In Kramer Motors, the court found that there was insufficient control by the parent over the subsidiary despite: 1) some of the directors of the parent were members of the board of the subsidiary; 2) the president of the subsidiary served as a director of the parent; 3) the parent had a general executive responsibility for the subsidiary’s operation and reviewed and approved the major policy decisions of the subsidiary; 4) the parent guaranteed obligations of the subsidiary to United States banks; 5) executives of the parent worked closely with executives of the subsidiary on pricing and products and sometimes traveled to the United States for meetings; 6) the parent approved the subsidiary’s proposal to consolidate product distribution; and 7) the parent established goals and gave directives to the subsidiary. Id. at 1177. Despite the amount of involvement in Kramer Motors of the parent over the subsidiary, the court found that such contact was insufficient to establish an agency because no evidence was shown that the parent controlled the internal day-to-day affairs of the subsidiary. All goals and directives of the parent were “normal” and did not show “operational control” of the subsidiary by the parent necessary to establish personal jurisdiction. See also General Cigar Holdings, Inc. v. Altadis, S.A., 205 F.Supp.2d 1335 (S.D.Fla.), aff'd, 54 Fed.Appx. 492 (11th Cir.2002), (finding no personal jurisdiction over a parent with a Florida subsidiary where despite “regular and extensive contact” and a “very close working relationship” between the parent and the subsidiary, there was no evidence that the parent controlled the subsidiary’s daily “basic operation”).

Id. at 891-92. The court determined that Enic did not exercise that kind of control over its subsidiary and thus determined that jurisdiction over Enic did not exist.

When we compare the control of BMHC over WBC, it is significantly less than what was determined insufficient in Enic or in Kramer. BMHC did not control the daily operations of WBC. The “operational control” necessary to subject the parent to jurisdiction under the agency theory of section 48.193(1) is not present. See also Walt Disney Co. v. Nelson, 677 So.2d 400 (Fla. 5th DCA 1996). Therefore, BMHC was not subject to Florida jurisdiction pursuant to section 48.193(1).

Jurisdiction over BMHC is also not present under the “substantial business activity” provisions of section 48.193(2). BMHC does not maintain any offices in the state and does no business itself in the state. Only by attributing the activities of BMC and WBC to BMHC can any assertion of contact with Florida exist. We have already determined that BMHC does not exert sufficient control over WBC to justify jurisdiction under an agency theory, and it was not in a joint venture with WBC. Therefore, the activities of WBC cannot provide personal jurisdiction over BMHC.

This case is unlike Nichols and NTS v. Paulucci, 652 So.2d 389 (Fla. 5th DCA 1995), cited by Development. There, the court found that jurisdiction could be exercised over NTS, a corporation which was not actually a parent of another corporation involved in a Florida joint venture, but which had extensive contacts and control over the companies in the joint venture. In that case, the control of the company and the intertwining of the operational activities was far more extensive than is present in this case. NTS paid routine expenses for the joint venture partners, performed the accounting of expenses and invoicing for the venture, incurred expenses on behalf of the joint venture, provided its architect and decorator to the joint venture for work in Florida, and guaranteed a $13 million loan for the joint venture. Because of its extensive contacts, the court affirmed the trial court’s determination that NTS itself had engaged in “substantial and not isolated activity within this state.... ” See § 48.193(2), Fla. Stat.

As to the representations made by BMHC on its website regarding the joint venture with WBC, the court heard the evidence that these were not meant to state the legal relationship between the parties but to state in terms investors might understand the complicated arrangements between the parent, subsidiaries, and sub-subsidiaries. The court obviously gave credence to this testimony. Development did not allege that it relied on these representations in entering into the contract. In fact, the original contract was entered into with Willard Brothers, long before the securities purchase agreement between WBC and BMC existed. Under these circumstances, the trial court could have discounted the importance of these representations in determining jurisdiction in this case.

For these reasons, we affirm the order of the trial court.

KLEIN and HAZOURI, JJ„ concur.


author: TAYLOR, J.

text:
    Daniel DONOHUE, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-266.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Richard L. Rosenbaum of the Law Offices of Richard Rosenbaum, Fort Lauder-dale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Daniel Donohue appeals his judgment of conviction and sentence for indecent assault. We affirm appellant’s judgment of conviction, but remand for re-sentencing, because the aggravating circumstances used to upwardly depart from appellant’s guidelines sentence were not determined by the jury or admitted by appellant, as required by Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

After a jury found appellant guilty of indecent assault on a child, the state moved to aggravate appellant’s sentence pursuant to section 921.0016(3)©, Florida Statutes. The state based its motion on the five year-old victim’s vulnerability due to age and a mental disability, autism. The trial court granted the state’s motion for upward departure, finding “specifically, that [victim], because of his age and because of his severe emotional state as a result of his mental condition, was a vulnerable child.” The court sentenced appellant to the statutory maximum prison term of fifteen years, which exceeded the sentencing guidelines range of 36.6 to 61 months. Appellant argues that the trial court improperly enhanced his sentence upon factors that were not alleged in the charging document nor established by a jury beyond a reasonable doubt.

In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” The Supreme Court, in Blakely, 542 U.S. at 303, 124 S.Ct. 2531, defined the statutory maximum as “the maximum [the trial judge] may impose without any additional findings” beyond those “reflected in the jury verdict or admitted by the defendant.” In United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court reaffirmed the application of Apprendi’s principles to guidelines sentencing schemes. There, the Court held that imposing a sentence under the federal sentencing guidelines based on “additional facts that the sentencing judge found by a preponderance of the evidence” violated the Sixth Amendment. Id. at 226, 125 S.Ct. 738. Under the Supreme Court’s interpretation of the Sixth Amendment, other than a defendant’s pri- or convictions, the aggravating circumstances relied upon to exceed the maximum guidelines sentence must be based on (1) findings made by the jury or (2) facts admitted by the defendant.

Recently, in a second degree murder case, Maglio v. State, 918 So.2d 369, 376 (Fla. 4th DCA 2005), we cited Apprend% Blakely, and Booker in holding that the trial court improperly imposed an upward departure sentence based on the “heinous nature of the crime,” because “the facts supporting that factor were neither admitted by Maglio nor found by a jury.” We upheld the sentence, however, because we determined that a second aggravating factor relied upon by the court, extraordinary physical trauma, was found by the jury when it returned a verdict of “guilty of Second Degree Murder as charged in the Information.” Id. We reasoned that “[a]l-though the jury was not provided the opportunity to check a box on the verdict form stating ‘extraordinary physical trauma,’ the factual finding that was necessarily made by the jury is sufficient to support the conclusion that the jury found that Maglio caused ‘extraordinary physical trauma’ to the victim by striking him about the head with a blunt instrument to cause his death.” Id.

In finding no Sixth Amendment violation, we applied the first district’s analysis in Hunter v. State, 828 So.2d 1038, 1039 (Fla. 1st DCA 2002). In Hunter, the defendant challenged enhancement of his sentence from a first degree felony to a life felony based on the use of a firearm during commission of the crime. The defendant was charged by information with attempted first degree murder with a firearm. The information specifically alleged that he attempted to kill the victim by shooting him with a pistol and that he carried-or possessed a firearm while committing the crime. The court held that the defendant’s enhanced sentence was proper under Apprendi, because when the jury found the defendant guilty of attempted first degree murder as charged, “it necessarily found beyond a reasonable doubt that he had used a gun during this crime.” Id. at 1040. The court stated that “[wjhere the information alleges that the crime was committed with a firearm and the jury finds that the defendant committed the crime as charged, the jury has necessarily found use of a firearm.” Id. at 1039.

In this case, the information charged appellant with indecent assault on a child under the age of sixteen years. It did not allege any facts showing that the child was “especially vulnerable” due to his very young age and mental condition. Consequently, the jury verdict, which was simply “guilty as charged in the information,” did not reflect a finding concerning vulnerability of the victim. We thus cannot conclude that the departure sentence was based on findings made by the jury.

Indeed, the state does not argue that the departure sentence imposed in this case was based on facts found by the jury. Instead, the state argues that Ap-prendi or Blakely requirements were met because appellant “admitted” to these aggravating factors at trial. To support its argument that appellant admitted to these vulnerability factors, the state cites numerous instances in the record where appellant’s trial counsel referred to, or acknowledged, the victim’s age and autism: during pre-trial hearings (when counsel sought to depose child witnesses), opening statements, cross-examination of the state’s witnesses, direct examination of his own witness, and closing argument. However, these comments by defense counsel during trial did not constitute an “admission” by appellant. “It is, of course, fundamental that representations by counsel, absent a stipulation, when not made under oath and subject to cross-examination, are not evidence.” Sloan v. Sloan, 393 So.2d 642, 644 (Fla. 4th DCA 1981); see also Parkerson v. Nanton, 876 So.2d 1228, 1229-30 (Fla. 1st DCA 2004) (affirming denial of motion for directed verdict and noting that statements by defendants’ counsel in opening and closing argument did not constitute judicial admissions as to permanency of plaintiffs post-traumatic stress disorder); Fla. Std. Jury Instr. (Crim.) 2.1 (“What the lawyers say is not evidence, and you are not to consider it as such.”).

The state further argues that the departure sentence should be upheld because there was no dispute as to the victim’s age and mental disability. Without question, the evidence in this case established that the victim’s young age and autism made him especially vulnerable to the defendant’s sexual assault. For this reason, an upward departure from the sentencing guidelines was justified. See Capers v. State, 678 So.2d 330 (Fla.1996) (holding that vulnerability of victim due to age justifies departure from sentencing guidelines for offenses committed after January 1, 1994, even if victim’s age is an element of the offense); Greene v. State, 714 So.2d 554 (Fla. 2d DCA 1998) (holding that upward departure from sentencing guidelines was warranted by ages of victims).

But, for Sixth Amendment purposes, the jury’s verdict needed to reflect this finding of vulnerability to support the departure sentence. Blakely, 542 U.S. at 303-04, 124 S.Ct. 2531; Behl v. State, 898 So.2d 217, 221 (Fla. 2d DCA 2005) (holding that assessment of victim injury points for sex penetration in sentencing defendant convicted of sexual battery violated defendant’s Sixth Amendment rights where jury’s guilty verdict did not embody factual determination by jury that the sexual battery had involved sex penetration); see also Bundrage v. State, 814 So.2d 1133, 1135 (Fla. 2d DCA 2002) (“Even if the facts presented to the jury would only support an actual possession theory, the supreme court’s decision in [State v.] Overfelt [, 457 So.2d 1385 (Fla.1984),] and its progeny require a jury finding of actual possession to justify imposition of the ... mandatory minimum sentence.”).

In sum, because the facts supporting vulnerability of the victim were neither admitted by appellant nor found by a jury, the trial court erred in imposing an upward departure sentence. Accordingly, we reverse the sentence and remand this case for re-sentencing consistent with this opinion.

Reversed and Remanded.

POLEN and SHAHOOD, JJ„ concur.


author: POLEN, J.

text:
    Neville D. RICHARDS, Appellant, v. The SHERIFF OF PALM BEACH COUNTY, Appellee.
    No. 4D05-2003.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Neville D. Richards, West Palm Beach, pro se.
    Fred H. Gelston of Fred H. Gelston, P.A., West Palm Beach, for appellee.
   POLEN, J.

This case began with the alleged assault of Appellant, Neville Richards, in March of 1999. An undercover police officer with the Palm Beach County Sheriffs Department, Agent Dimarco, was assaulted in a reverse sting operation gone awry, and Palm Beach County deputies established a perimeter to look for the assailant. Although the assailant was allegedly a Hispanic or white male, and Richards is a dark-skinned African-American male, Richards was detained by deputies. After Richards’ initial detainment, Agent Dimar-co arrived at the scene and allegedly indicated that Richards was not his assailant. Despite this, Richards was arrested. Richards was prosecuted for resisting arrest without violence, but the case against him was eventually dropped. In October of 2002, Richards filed a civil complaint against Palm Beach County, alleging (1) false imprisonment; (2) false arrest; and (3) malicious prosecution. On November 19, 2004, the trial court issued a sua sponte order to show cause why the case should not be dismissed for failure to prosecute, pursuant to Florida Rule of Civil Procedure 1.420(e). Richards’ response requested that the trial court take judicial notice of his attorney’s motion to withdraw in May of 2004. The trial court found that Richards had failed to demonstrate good cause and dismissed the case for failure to prosecute, citing Modellista de Europa (Corp.) v. Redpath Inv. Corp., 714 So.2d 1098 (Fla. 4th DCA 1998). Based on the Florida Supreme Court’s decision in Wilson v. Salomon, 923 So.2d 363 (Fla.2005), we reverse and remand.

A trial court’s determination that there is no good cause in dismissing an action for failure to prosecute is reviewed using an abuse of discretion standard. Classical Financial Servs., L.L.C. v. G2 Resources, Inc., 898 So.2d 251, 252 (Fla. 4th DCA 2005). “The rule is mandatory; ‘[u]nless a party can satisfy the exceptions provided for in the rule, it specifically states ‘shall dismiss,’ and there is no discretion on the trial court’s part if it is demonstrated- to the trial court that no action toward prosecution has been taken within a year.’ ” Havens v. Chambliss, 906 So.2d 318, 319 (Fla. 4th DCA 2005) (quoting CPI Mfg. Co. v. Industrias St. Jack’s, 870 So.2d 89, 91 (Fla. 3d DCA 2003)). While Modellista de Europa (Corp.) v. Redpath Inv. Corp. states: “Neither the motion to withdraw, nor the court’s order granting the motion, nor the appearance of new counsel are considered the type of ‘record activity’ which will avoid dismissal under Rule 1.420(e),” the supreme court’s recent decision in Wilson changes this result. 714 So.2d at 1099 n. 2.

Wilson states: “[TJrial court orders that are entered and filed to resolve motions that have been properly filed in good faith should be treated as record activity precluding dismissal under rule 1.420(e) of the Florida Rules of Civil Procedure.” 923 So.2d at 363-64. “The plain language of the rule contemplates that an action cannot be dismissed under the rule for failure to prosecute if some ‘action has been taken by filing of pleadings, order of court, or otherwise’ within the past year.” Id. at 366. Based on this finding, and based on the fact that the trial court entered an order granting Richards’ attorney’s motion to withdraw within six months time of its sua sponte order to show cause, we find that there was record activity precluding dismissal of Richards’ case for failure to prosecute. We reverse and remand to the trial court for proceedings consistent with this opinion.

KLEIN and SHAHOOD, JJ., concur.

      . 923 So.2d 363 (Fla.2005).


text:
    Ulysses JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1514.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Ulysses Jackson appeals the final judgment and sentence for the crimes of attempted sexual battery upon a child and indecent assault. He claims that the court erred in sentencing him above the statutory maximum and failed to enter a proper order revoking probation. Although Jackson had filed a motion to correct these sentencing errors, the trial court failed to enter an order within the sixty-day time limit, and thus the motion was deemed denied. See Fla. R.Crim. P. 3.800(b)(1)(B). The state concedes that Jackson’s sentence for the indecent assault charge was illegal, as he was sentenced to twenty-seven years in prison when the maximum sentence for a second degree felony is fifteen years. It also concedes that the court erred in failing to enter a written order specifically indicating which conditions of probation Jackson violated. We reverse for correction of these sentencing errors.

Jackson also claims that in sentencing him on the violation of probation, the court was misinformed about the amount of time he had actually served on his original sentence. Because of this material misinformation, he claims the case should be remanded to determine if the mistake affected the current sentence. We conclude that the court was not misinformed about his original sentence. Jackson was originally sentenced to twenty-two years for his crime, and he actually served eight years in prison. At the hearing for sentencing on the probation violation, the prosecutor informed the court that Jackson was sentenced to twenty-two years, and the court indicated that it would sentence him to Department of Corrections time, “whatever it is, it is.” The court then sentenced Jackson to twenty-seven years. There is no indication in the record that the court was operating under a misapprehension of fact as to the time Jackson had already spent in prison. We therefore affirm the conviction.

KLEIN, J., and BAILEY, JENNIFER D., Associate Judge, concur.

      . The state cites to Lacey v. State, 831 So.2d 1267 (Fla. 4th DCA 2002), for the proposition that the standard of review for sentencing after a revocation of probation is de novo. Lacey cites to Hannah v. State, 814 So.2d 1129 (Fla. 5th DCA 2002). However, Hannah cites to Schaal v. State, 743 So.2d 1229 (Fla. 1st DCA 1999), for the proposition, but Schaal never mentions this. Our understanding is that a sentencing error constituting an illegal sentence would be reviewed de novo. The reliance on a material mistake of fact would not be reviewed de novo.

      . Although there is no evidence that the court was mistaken, Jackson can file a motion for reduction of the sentence pursuant to rule 3.800(c) after our mandate issues if he believes that the trial court may be inclined to lessen his sentence.


text:
    Kenneth ELLICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4786.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We affirm appellant’s convictions and sentences for trafficking in hydrocodone and possession of cocaine. He raises three issues, none of which require reversal.

He alleges that the judge gave a confusing jury instruction which negated his affirmative defense. However, he failed to make a specific objection to the charge, and no fundamental error occurred. See Reed v. State, 837 So.2d 366, 370 (Fla. 2002). Further, he never requested a jury instruction on his affirmative defense.

Appellant also complains that a passing reference to a suppression hearing by a testifying detective was reversible error. Not only was the objection to this reference sustained, the court gave a curative instruction. The court then refused appellant’s motion for mistrial. “A mistrial should be declared only when the error is so prejudicial and fundamental that it denies the accused a fair trial. Even if the comment is objectionable, the proper procedure is to request a curative instruction from the trial judge that the jury disregard the remark.” Buenoano v. State, 527 So.2d 194, 198 (Fla.1988). See also Herrera v. State, 879 So.2d 38 (Fla. 4th DCA 2004) (holding that curative instruction was sufficient to cure any prejudicial effect of officer’s statement). We conclude that the comment did not deny the appellant a fair trial, and the trial court properly exercised its discretion.

Finally, appellant complains that the prosecutor’s closing argument was peppered with improper argument which constituted fundamental error. Having examined the challenged remarks, we conclude that in the context of the case none of them were improper, let alone fundamental error.

Affirmed.

GROSS and HAZOURI, JJ., concur.