author: WARNER, J. HAZOURI, J.,

text:
    Damien PENDERGRASS, as Personal Representative of the Estate of Arthur Pendergrass, Jr., a deceased adult single man, for and on behalf of lawful claimants: The Estate of Arthur Pendergrass, Jr., Damien Pendergrass, Artis Pendergrass, Dedrick Pendergrass and Taris Pendergrass, individually, Appellants, v. R.D. MICHAELS, INC., a Florida corporation, Oceanview Construction Corp., a Florida corporation, and Staff Leasing, Inc., a Florida corporation, Appellees.
    No. 4D05-1598.
    District Court of Appeal of Florida, Fourth District.
    Aug. 2, 2006.
    Rehearing Denied Sept. 22, 2006.

      Jeanne C. Brady and Frank R. Brady of Brady & Brady, P.A., and Arvid J. Peterson, III of Law Offices of Arvid J. Peterson, III, P.A., Boca Raton, for appellants.
    Michele I. Nelson of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., West Palm Beach, for appellee R.D. Mi-chaels, Inc.
    J. Daniel Ennis and John J. Cavo of Lane, Reese, Aulick, Summers & Ennis, P.A., Coral Gables, for appellees Ocean-view Construction Corp. and Staff Leasing, Inc.
   WARNER, J.

The personal representative of the Estate of Arthur Pendergrass appeals a final summary judgment determining that the defendant-employers are entitled to workers’ compensation immunity for a job accident which killed Pendergrass. Because the evidence does not show that the employer deliberately intended to injure Pen-dergrass or engaged in conduct substantially certain to cause injury or death, we affirm.

Appellee, R.D. Michaels, Inc., as general contractor for construction of a building in Boynton Beach, contracted with appellee, Oceanview Construction Corporation, for the masonry work of constructing the concrete block walls. Oceanview uses Staff Leasing, Inc., another defendant, to process checks for its employees. Staff Leasing provided employees to Oceanview but had no control over the employees or the jobsite.

Oceanview hired Arthur Pendergrass as a mason tender a few days before the tragic incident involved in this case. A mason tender is an unskilled laborer who assists the masons, totes the concrete block and cement, and generally provides the unskilled labor that the masons need to construct a concrete block wall.

Oceanview was constructing the four walls of the building during January 2000. The walls took from seven to ten days to finish. To lay the blocks, scaffolding is erected and remains in place until the masonry is complete. Then the scaffolding is removed, the area is cleaned up, and the walls are braced before the tie beam is poured. All four walls of the building had been completed on the Friday of the accident and were tied together at the corners by rebar, ready for the tie beam to be poured the following week.

On that day the weather was windy. The scaffolding was being removed, as the walls, which were fourteen feet high, were finished. Jim Shaw, Michaels’ superintendent, discussed with Oceanview’s owner, Lee Schaeffer, the necessity of bracing the walls due to the possibility of windy weather over the weekend. Materials were ordered and delivered for bracing, and a crew was to arrive at 4:00 p.m. to brace the walls. The employees, including Pen-dergrass, were cleaning up the site in preparation for the bracing when the north and south walls collapsed around 3:00 p.m. The east and west walls did not collapse. Pendergrass was killed in the collapse of the north wall. While the exact cause of the collapse is unknown, the evidence suggests that a strong gust of wind must have toppled the wall.

The Occupational Safety and Health Administration investigated the accident and cited both Michaels and Oceanview for OSHA violations. OSHA cited Michaels for: (1) failing to establish a limited access zone prior to the start of construction on the masonry wall and (2) failure to adequately brace masonry walls over eight feet in height to prevent collapse until permanent elements of the structure were in place. Both violations were classified as “serious.”

Oceanview was issued four citations by OSHA for: (1) failing to initiate or maintain a safety program for its employees; (2) failing to instruct each employee in the recognition and avoidance of unsafe conditions; (3) failing to establish a limited access zone prior to the start of construction of a masonry wall; and (4) failing to adequately brace masonry walls over eight feet in height to prevent collapse until permanent supporting aspects of the structure were in place. The first three violations were classified as “serious,” while the fourth was classified as “willful.”

In support of the willful violation, the OSHA report found that Oceanview had knowledge of OSHA’s regulation that masonry walls in excess of eight feet required bracing. Oeeanview’s contract with Mi-chaels made Oceanview responsible for the bracing. According to the report, the nature and extent of the violation constituted plain indifference to the safety and health of its employees. The OSHA report further found that Oceanview intentionally disregarded its health and safety responsibility because there was no safety program, and the employees were not trained for the task. However, OSHA settled the citation with Oceanview for a fine based upon serious violations, and it deleted the willful classification for the violation of the bracing requirement.

The Estate of Arthur Pendergrass filed suit against Michaels, Oceanview, and Staff Leasing. The Estate asserted that Staff Leasing was an employer of Arthur Pen-dergrass, that Oceanview was an employer of Arthur or otherwise in control of both the job site and Arthur, and that Michaels was the general contractor of the job site. Against both Michaels and Oceanview, the Estate alleged that the defendants were negligent for: failure to provide a limited access zone around the wall prior to the start of construction, failure to brace the walls until permanent support was in place, deliberate determination not to comply with a standard, failure to provide a safety program, and failure to instruct Arthur Pendergrass in safety precautions and recognition of dangers. Against Staff Leasing, the Estate alleged: deliberate disregard of a standard, failure to instruct Pendergrass in recognition and avoidance of unsafe conditions, and failure to provide a safety program. Finally, the Estate alleged that the defendants knew or should have known that these acts were substantially certain to cause injury or death.

The defendants answered alleging that they were entitled to workers’ compensation immunity, because Pendergrass’ survivors had received workers’ compensation benefits. After discovery, all defendants moved for summary judgment on the workers’ compensation immunity defense, relying on depositions of Richard Lillard, the president of Michaels; Jim Shaw; Mi-chaels’ superintendent; and Lee Schaeffer, Oceanview’s owner, as well as the contracts between the parties.

In the depositions, Lillard, Shaw, and Schaeffer testified that they had never experienced a wall collapse in all their years of contracting. Lillard testified that it was not unusual in the industry for walls to progress without being braced where there was a limited access area around them. Schaeffer testified that Oceanview did not have a specific safety program but generally told its employees to use common sense and to be careful. The mason tenders were required to wear hard hats at all times. Pendergrass would have received these instructions.

On this job the walls had reached a height of eight feet about two days prior to the accident. They had not been braced, because the scaffolding around the walls was satisfactory bracing. They were connected by rebar, but the tie beam had yet to be poured. A limited access area was' created and only workers on the wall had access to it. Schaeffer testified that Pen-dergrass was a mason tender who cleaned up the area in preparation for the bracing that was to occur on the afternoon of the accident. He testified that OSHA rules acknowledge that scaffolding was sufficient. A wall cannot be braced as it is built but is only braced after the scaffolding comes down. The method followed for building the wall was the same method followed when the wall was rebuilt and is the method he has always followed and is customary in the industry. He saw no potential for danger.

In opposition, the Estate filed the OSHA report, various OSHA guidelines and materials, and an affidavit of an expert which, for his opinion, simply recited the allegations of negligence in the complaint. The filings with respect to the OSHA report include OSHA Standards Interpretation and Compliance letters of February 6, 1989, and October 7, 1988. They reveal that OSHA considers that a masonry’s contractors actively engaged in the construction of a wall are permitted in the limited access area and that the limited access area is only necessary when the walls are not braced. Further, if the wall is over eight feet but the employer determines that the wall is adequately supported under prevailing conditions, then no bracing will be required.

At the hearing, the Estate argued that the defendants were not entitled to workers’ compensation immunity based upon both the criminal acts exception of the workers’ compensation law and the intentional tort exception to workers’ compensation immunity. The court carefully considered the law and the evidence and granted summary judgment to all parties. The Estate appeals, claiming that workers’ compensation immunity does not shield the defendants under the criminal acts and intentional tort exceptions. We disagree and affirm the summary judgment.

Florida’s Workers’ Compensation Act, Chapter 440, creates a system to compensate employees for work-related injuries and is intended to provide a “quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” § 440.015, Fla. Stat. (2000). See also Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000). “Essentially, under this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits.” Id. at 686. As noted by the supreme court in Turner, the Legislature specifically provided that:

the facts in a workers’ compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Additionally, the Legislature hereby declares that disputes concerning the facts in workers’ compensation cases are not to be given a broad liberal construction in favor of the employee on the one hand or of the employer on the other hand, and the laws pertaining to workers’ compensation are to be construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer.

§ 440.015, Fla. Stat. Thus, while remedial legislation is generally interpreted liberally in favor of the errors to be corrected, the Legislature has specifically rejected such an interpretation for the workers’ compensation law. These principles must be kept in mind as we examine this case.

Criminal Acts Exception

Section 440.11(1) provides the employer with immunity from civil suit by the worker if the employer complies with the provisions of the workers’ compensation law and secures compensation for its employees. That section also extends immunity to fellow employees unless the fellow employee acts towards the injured worker with willful or wanton disregard, physical aggression or gross negligence. The statute then provides for immunity to sole proprietors, partners, officers, directors, and managing agents so long as their acts do not constitute a violation of law carrying a jail term of sixty days or longer. Specifically, the statute provides:

The same immunity provisions enjoyed by an employer shall also apply to any sole proprietor, partner, corporate officer or director, supervisor, or other person who in the course and scope of his or her duties acts in a managerial or policymaking capacity and the conduct which caused the alleged injury arose within the course and scope of said managerial or policymaking duties and was not a violation of a law, whether or not a violation was charged, for which the maximum penalty which may be imposed does not exceed 60 days’ imprisonment as set forth in s. 775.082.

§ 440.11(1), Fla. Stat.

The Estate claims that all three corporate defendants are not entitled to workers’ compensation immunity because the willful OSHA violation for which Oceanview was cited was punishable by a jail term of at least sixty days. However, we need not delve into what the punishment for OSHA violations is, because the criminal acts exception set forth in the statute on its face does not apply to the corporate defendant itself, only to individuals who are officers, directors, or managing agents, i.e., actual persons. Here, the Estate has sued only the corporate employers themselves. Thus, the statutory exception for criminal acts does not apply.

Gerth v. Wilson, 774 So.2d 5 (Fla. 2d DCA 2000), upon which the Estate relies, is distinguishable from this case. Although Gerth held that an OSHA violation which provides for an incarceration penalty ought to deprive the employer from immunity just as those crimes subject to imprisonment under section 775.082, Gerth involved an action against a sole proprietor. Thus, as a sole proprietor of a business, the employer came within the specific terms of the exception. Consequently, we do not need to determine whether we agree or disagree with Gerth.

Based upon the clear and unambiguous language of the statute, the criminal acts exception does not apply to the corporate defendants. The defendants were entitled to summary judgment on this claim.

Intentional Tort Exception

Despite the tort immunity provided by the workers’ compensation law, our supreme court has carved an exception to that immunity where the employer has committed an intentional tort against the employee. See Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000). Relying on cases such as Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882 (Fla.1986), receded from in part by Turner, 754 So.2d at 687 n. 4, the court in Turner held that “in order to prove an intentional tort, the employer must be shown to have either ‘exhibited] a deliberate intent to injure or engaged] in conduct which is substantially certain to result in injury or death.’ ” Id. at 687 (quoting Fisher, 498 So.2d at 883). “The first alternative employs a subjective test. The second alternative applies an objective test to determine whether a reasonable employer should have known that its intentional conduct was substantially certain to result in injury or death.” FCCI Ins. Co. v. Horne, 890 So.2d 1141, 1143 (Fla. 5th DCA 2004) (citing Turner ).

In Turner, the employer, PCR, was developing a replacement coolant for Freon. One of the compounds it was using was highly reactive and subject to explosions. In fact, the company which manufactured the compound notified PCR that it was taking it off the market because of its explosive qualities. Even with that knowledge, PCR continued to use it but did not inform its employees of this danger. Two experts opined that the processes and facilities that PCR was using were fundamentally unsafe and substantially certain to result in explosions. And PCR had experienced prior explosions, some of which included the use of the suspect compound.

The supreme court determined that the evidence was sufficient to present material issues of fact supporting the objective test that a reasonable employer would, know that its intentional conduct was substantially certain to result in injury or death. Specifically, it pointed to the prior explosions and the modification of facilities which PCR knew were unsuitable for the purposes. One expert also stated that PCR’s chief technician believed that an explosion was imminent. Thus, prior warnings and knowledge of earlier incidents together with concealment from employees of the danger made the court conclude that the conduct was sufficient to raise an issue of fact for the jury to determine.

Other cases finding a substantial certainty of injury or death from the employer’s intentional conduct concentrate either on knowledge of prior incidents or an employer’s concealment of knowledge of the dangers. In Connelly v. Arrow Air, Inc., 568 So.2d 448 (Fla. 3d DCA 1990), an employee pilot was killed in an airplane crash. There was evidence that the plane was routinely overloaded and improperly maintained. Repairs were never done except at the plane’s base of operations because of cost. Further, the employer withheld this information from its pilot. The court found that this conduct was sufficient to show that the employer’s intentional conduct was substantially certain to result in injury or death. Likewise, the first district found the intentional torts exception applicable in Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla. 1st DCA 1990), which involved toxic substances and the removal of warning labels by the employer to prevent knowledge by the employees. In addition, the employer redirected smokestacks in the plant to increase the toxic fumes breathed by the employees. This too was sufficient to support proof of the objective test of intentional conduct substantially certain to cause injury or death.

The Turner court also concluded that the facts of Fisher v. Shenandoah Gen. Constr. Co., 498 So.2d 882 (Fla.1986) and Lawton v. Alpine Engineered Products, Inc., 498 So.2d 879 (Fla.1986) were both sufficient to meet the objective test of substantial certainty. Fisher involved the exposure of employees to deadly gases in an underground pipe and the employer’s intentional avoidance of OSHA safety inspections by conducting some of the dangerous work at night. Similarly, Lawton met the objective test where the employee was injured when his hand was crushed by a punch press, and the employer had failed to provide operation guards and training to the operators even after having been specifically advised of this necessity by the machine’s manufacturer. See also EAC USA Inc. v. Kawa, 805 So.2d 1 (Fla. 2d DCA 2001). Again, the supreme court stressed the prior warnings or knowledge coupled with concealment or inaction in the face of such warnings.

Both our court and the second district have held that knowingly placing an employee in direct contact with specific, violent individuals without warning the employee of the danger meets the intentional tort exception to workers’ compensation immunity. See Patrick v. Palm Beach County Sch. Bd., 927 So.2d 973 (Fla. 4th DCA 2006); Sierra v. Associated Marine Insts., Inc., 850 So.2d 582 (Fla. 2d DCA 2003). Again, in those cases the employer had prior specific knowledge of dangerous conditions, yet exposed its employees to the danger without sufficient warnings or training.

In reviewing the many cases in which the substantial certainty test has been met and those in which it has not, the courts have highlighted two factors which show the type of intentional conduct which a reasonable person would consider resulting in the substantial certainty of injury or death: 1) knowledge of prior accidents or defects and 2) intentional conduct to prevent the employee from learning and appreciating the risks involved in the work specifically known by the employer.

In Bourassa v. Busch Entm’t Corp., 929 So.2d 552 (Fla. 2d DCA 2006), the court determined that the employer could not be liable under the intentional tort exception where an animal trainer lost her arm when working with a lion. Although the employer knew the lion was extremely dangerous, it had a comprehensive training program for employees working with the lion and no incident had ever happened before with any of its lions. Thus, there was no showing of deliberate indifference to known hazards which were substantially certain to cause injury.

In Fleetwood Homes of Florida, Inc. v. Reeves, 833 So.2d 857 (Fla. 2d DCA 2002), quashed on other grounds, 889 So.2d 812 (Fla.2004), an employee was killed when a roll of metal slid off a forklift. The employer knew that the aisle where the forklift operated was narrow and difficult to maneuver. It instructed employees in the area to move when the forklift operator honked the horn. The deceased employee was working in the area for the first time and it was unclear whether he had been warned about the forklift. As the forklift passed by the employee’s station, the roll hit an obstruction and fell on the employee, killing him. The second district noted that there were undoubtedly safer procedures for carrying materials by forklift in the area but this method had been used for years without incident.

The second district analyzed the case as follows:

[A]ny modestly dangerous activity at a workplace that is repeated often enough or long enough will eventually result in an accident. Although the concept of “gross negligence” examines the combination of circumstances to evaluate the relevant risk, it does not add together or cumulate the individual probabilities of an accident on each occasion to reach a conclusion that an accident is inevitable or that a risk is inordinately high. The tortfeasor’s conduct must be evaluated in the context of the particular occurrence. In this case, if anything, the numerous successful performances of the challenged procedure show that a risk of accident on April 1, 1991, was far from imminent. This is not a case in which the employer continued to use the procedure after earlier mishaps or after it received warnings from other governmental or nongovernmental entities.

Id. at 868. The court concluded that the substantial certainty of injury test had not been met. Although the supreme court later quashed the second district’s opinion based upon the court’s lack of jurisdiction to hear the issue as a non-final appeal, its analysis of the substantial certainty test is instructive.

In Casas v. Siemens Energy & Automation, Inc., 927 So.2d 922 (Fla. 3d DCA 2006), an employee was injured when he put his hand into a punch press. The court found that the evidence did not rise to the level of intentional conduct substantially certain to cause injury or death. Although the employee alleged that the machine was not equipped with the necessary guards, the evidence was undisputed that this was not the case. The employee had received training on the use of the machine. More importantly, the punch presses at this employer had been operated for at least twenty years without serious injury until Casas’ incident.

Finally, in Allstates Fireproofing, Inc. v. Garcia, 876 So.2d 1222 (Fla. 4th DCA 2004), an employee was killed when scaffolding he was moving tipped over and hit him. He had been instructed on how to move the scaffolding and had moved it successfully several times before. Nevertheless, on this occasion he moved it incorrectly, causing it to topple. Our court held that the decedent’s estate had not alleged facts constituting intentional conduct which was substantially certain to result in death or. injury. The decedent had been trained in how to move the scaffolding, and we noted that the danger should have been obvious to the decedent. Thus, Allstates did not prevent the decedent from making an informed decision regarding the risks. Similar to the other cases finding no liability, the court found that Allstates had not concealed or failed to warn about known dangers of moving the scaffolding.

In this case, neither the factor of prior knowledge nor the factor of concealment of risks is present. The complaint alleged a lack of training on safety measures, the lack of a limited access area around the wall, and the failure to brace the wall over eight feet as constituting intentional conduct substantially certain to cause injury. However, neither the mason nor the contractor had ever had a wall fall. Thus, no prior accidents would indicate to them a need to change their construction practices or increase their training.

As to training, although the training was rudimentary, the employees were told to use their common sense and to be aware of their surroundings. Furthermore, the mason tenders in this case were not using any machinery that required specialized training. As in Allstates, it seems fairly obvious that the employees should be aware that walls and bricks might fall. Moreover, the Estate has not suggested what alternative training procedures should have been used. At most, the lack of training is an act of negligence, not intentional conduct affirmatively designed to prevent the employee from learning the actual dangers and risks to which he was exposed.

With respect to the failure to establish a limited access work area, even if one had been established, OSHA regulations in the record permitted the masonry’s contractors actively engaged in construction of the wall to be within its boundaries. See 29 C.F.R. § 1926.706(a)(4). The job of cleaning up the area so that someone else can brace the walls seems self-evident. That is part of the construction process. Therefore, even by OSHA standards, the limited access area would not have precluded the masonry employees from entering that area to do their jobs. Further, our supreme court has stated, “failure to provide a safe work place or to follow OSHA guidelines does not constitute an intentional tort.” Fisher, 498 So.2d at 883.

Finally, the walls above eight feet were not braced. Although it is unclear as to whether scaffolding was in place at the time of the accident, the defendants have never had an unscaffolded, unbraced wall fall in the past. Thus, there was no evidence that the failure to brace the wall was substantially certain to result in injury.

The fact that OSHA cited Ocean-view for a willful violation in failing to brace the walls above eight feet does not change the result in this case or create a material issue of fact for the jury to resolve. A serious violation under OSHA is one where “there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” 29 U.S.C. § 666(k) (emphasis added). A serious violation would not of itself constitute an intentional tort, because it only requires a substantial probability, not certainty, of injury or death.

A willful violation, on the other hand, is one of either intentional disregard to an OSHA rule or order or plain indifference to the regulation. See, e.g., Chao v. Occupational Safety & Health Review Comm’n, 401 F.3d 355 (5th Cir.2005). The difference between the willful violation and the serious violation is not the nature or probability of the injury which might occur but of the plain indifference to an OSHA regulation. See Nat’l Steel and Shipbuilding Co. v. Occupational Safety & Health Review Comm’n, 607 F.2d 311 (9th Cir.1979). Thus, OSHA’s citation of Ocean-view for a willful violation indicates a plain indifference to a regulation, not substantial certainty that such violation will result in injury or death. The citation for willful violation therefore does not raise a material issue of fact as to whether such intentional conduct is substantially certain to result in injury or death.

Although the Estate filed an expert affidavit to counter the depositions and evidence brought forth by the defendants, the affidavit is unavailing. It merely parroted the allegations of the complaint and opined that the defendants were negligent. In Folds v. J.A. Jones Constr. Co., 875 So.2d 700 (Fla. 1st DCA 2004), the court held that an employee failed to allege the commission of an intentional tort where he alleged merely that the employers engaged in negligent conduct. Thus, here the expert’s affidavit which opines only negligence on the part of the defendants fails to raise a material issue of fact.

As did the trial court, we conclude that no material issues of fact remain. The defendants are entitled to workers’ compensation immunity. They are not subject to suit under the criminal acts exception, nor are they subject to suit under the intentional tort exception to that immunity. We therefore affirm the judgment of the trial court.

KLEIN, J., concurs.

HAZOURI, J., concurs specially.

HAZOURI, J.,

concurring specially.

I agree with the result because the facts do not support that the appellees’ actions meet the substantial certainty test. However, I do not agree that an employee must prove that the employer intentionally prevented the employee from learning and appreciating the risk involved specifically known by the employer. Turner does not require concealment of the risk. If concealment were necessary, then an employer could expose an employee to the most extreme of hazardous circumstances and escape tort liability so long as the hazard was not concealed.

      . In 2003, the Florida Legislature effectively overruled Turner when it amended section 440.11 to codify the intentional tort exception recognized by Turner by mandating that the plaintiff/employee prove the intentional tort exception by clear and convincing evidence. Moreover, it changed the substance of the exception by replacing the “substantial certainty” standard with the "virtually certain” standard and required that "the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee.” See § 440.11 (l)(b), Fla. Stat. (2003); see also Feraci v. Grundy Marine Constr. Co., 315 F.Supp.2d 1197, 1205 n. 11 (N.D.Fla.2004). However, for purposes of this appeal, because the incident occurred in 2000, the test set forth in Turner requiring "substantial certainty” is the proper standard to apply.

        . In fact, if no one could go in the limited access area, then it would be equally improper for the crew sent to brace the wall from going in to do their work. The deposition testimony indicated that there was no way to brace the wall while the scaffolding was in place. No contrary evidence of a more safe practice or procedure was offered.


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    HOLLY RIDGE LIMITED PARTNERSHIP, Appellant, v. Larry PRITCHETT, as Putnam, etc., et al., Appellees.
    No. 5D05-1697.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Rehearing Denied Sept. 1, 2006.

      M. Stephen Turner, P.A. and David K. Miller, P.A., of Broad & Cassel, Tallahassee, and John P. Harllee, III, of Harllee & Bald, Bradenton, Of Counsel, for Appellant.
    Loren E. Levy, of The Levy Law Firm, Tallahassee, for Appellee Larry Pritchett.
    Victoria L. Weber of Hopping, Green & Sams, P.A., Tallahassee, for Amicus Curiae, Coalition of Affordable Housing Providers, Inc.
    Wellington H. Meffert II, General Counsel, Florida Housing Finance Corporation, Tallahassee, for Amicus Curiae Florida Housing Finance Corporation.
   EVANDER, J.

The issue in this case is whether Putnam County’s property appraiser complied with the requirements of sections 193.011 and 420.5099, Florida Statutes, in assessing the value of Holly Ridge L.P.’s (Holly Ridge) property for the years 2002 and 2003. The trial court ruled in favor of the property appraiser. However, we find the property appraiser failed to comply with the law in determining just valuation and therefore reverse the final judgment and remand for a new trial.

Holly Ridge owns 120 senior rental apartments and amenities built with tax credit financing under the Low Income Housing Tax Credit (“LIHTC”) program administered by the Florida Housing Finance Corporation. The LIHTC program was created by Congress as part of the Tax Reform Act of 1986. Pub.L. No. 99-514, 100 Stat. 2085 (1986). The purpose of this program is to encourage the private sector to develop affordable rental housing. Each state receives an annual allotment of low income housing tax credits. Tax credits equate to a dollar-for-dollar reduction of the holder’s federal tax liability, which can be taken for up to ten years if the project satisfies governmental requirements each year.

Florida Housing Finance Corporation is the statutorily-created agency responsible for the allocation and distribution of tax credits to Florida applicants. The tax credits are awarded to qualified applicants through a competitive process. The tax credits provide a financing mechanism for the developer to pay most of the project construction costs. Upon receiving the tax credits, the developer typically sells them to a banking institution that qualifies to use the credits and pays the developer approximately eighty cents for each dollar of tax credit purchased. The banking institution that purchases the tax credits then becomes a limited partner in the entity owning the development and the developer becomes the general partner. Once construction is completed and the project is placed in service, the banking institution may use one-tenth of the tax credits each year for ten consecutive years. After ten years, the tax credits are exhausted.

The tax credit sales proceeds are used to minimize project debt and thereby enable the project to be economically feasible given the substantial and long-term - restrictions placed on the developed property. These restrictions are set forth in a Land Use Restriction Agreement (“LURA”). The LURA is recorded in the public records to insure compliance. The developer must submit annual compliance reports and projects are audited every year to enforce compliance. Tax credits may be disallowed or recaptured if a project is out of compliance.

In the present case, the Florida Housing Finance Corporation allocated approximately $8 million in income tax credits to Holly Ridge’s developer/general partner, Picerne Holly Ridge, LLC. The developer sold the tax credits for approximately $6.4 million to investor limited-partner entities affiliated with PNC Bank. The developer used the tax credit sales proceeds to pay most of the construction costs. Holly Ridge used a construction loan mortgage of $1.5 million to pay construction costs that were not paid by tax credit sales proceeds.

In exchange for tax credits, the developer/general partner placed the property under a LURA that substantially restricts its use for fifty (50) years. The developer is obligated to build and manage the project in accordance with the LURA restrictions and to deliver the tax credits upon the agreed schedule. Among the numerous restrictions set forth in the LURA (which runs with the land and inures to successors and assigns of the owner), is that fifteen percent of the units must be set aside for tenants whose income is at or below forty percent of Putnam County’s median income, twenty-five percent of the units are to be set aside for tenants whose income is at or below fifty percent of the County’s median income, and sixty percent of the units must be reserved for tenants whose income is at or below sixty percent of the County’s median income. Such tenants may be charged not more than thirty percent of their maximum monthly income as gross rent for the apartments. Rent cannot be changed during a tenancy and rental rates cannot be increased even if expenses or taxes increase. The property can only be used for rental apartments. The size of units and rooms and the type of furnishings and facilities are specified in detail in the LURA. Tenant services and programs must be provided by the owner, including on-site health care, regular health screening, food and clothing assistance, and activities such as computer courses and credit counseling. The project manager must be approved by the Florida Housing Finance Corporation and can be removed at its direction. The property cannot be sold without written consent of the Florida Housing Finance Corporation.

Article VII, section 4 of the Florida Constitution provides:

By general law regulations shall be prescribed which shall secure a just valuation of all property for ad valorem taxation, ....

Just valuation has been determined by the Florida Supreme Court to be synonymous with fair market value, to-wit, the amount a purchaser willing but not obliged to buy, would pay a seller who is willing but not obliged to sell. See Valencia Center, Inc. v. Bystrom, 543 So.2d 214, 216 (Fla.1989); Walter v. Schuler, 176 So.2d 81 (Fla.1965). The framers of the Constitution delegated to the Legislature the responsibility for deciding the specifics of how “just valuation” would be secured. Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 932 (Fla.2005).

Section 193.011 sets forth various factors which a property appraiser is required to take into consideration in determining just valuation. Of particular significance in this case is subsection (2), which provides, in part, that a property appraiser shall consider the effect that any local or state land use regulation will have on the value of the assessed property. Section 420.5099 sets forth additional directives which the property appraiser is required to follow in determining just valuation for LIHTC apartments. In 2002, the applicable statute provided:

For purposes of implementing this program in Florida and in assessing the property for ad valorem taxation under s. 193.011, neither the tax credits, nor financing generated by tax credits, shall be considered as income to the property, and the rental income from rent restricted units in a low-income tax credit development shall be recognized by the property appraiser.

§ 420.5099(5), Fla. Stat. (2001). Section 420.5099 was amended, effective January 1, 2003. The amendment changed the language of subsection (5) and added a new subsection (6). These subsections provided:

(5) For purposes of implementing this program in Florida and in assessing the property for ad valorem taxation under s. 193.011, neither the tax credits, nor financing generated by tax credits, shall be considered as income to the property, and the actual rental income from rent restricted units in a low-income tax credit development shall -be recognized by the property appraiser. In considering or using the market or cost approaches under s. 193.011, neither the costs paid for by tax credits nor the costs paid for by additional financing proceeds received because the property is in the program shall be included in evaluation.
(6) For the further purpose of implementing this program in Florida and in assessing the property for ad valorem taxation under s. 193.011, any extended low income housing agreement and all amendments and supplements thereto which are recorded and filed in the official public records of the county where the property is located shall be deemed a land use regulation during the term of any such agreement, amendment, or supplement.

We find the amendment was enacted to clarify (and emphasize) that the value of the tax credits was not to be utilized by property appraisers in determining just valuation for LIHTCs and that the LURA restrictions were to be considered land use regulations.

In this case, we find the property appraiser did not comply with the clear dictates of section 420.5099. There are three traditional methods utilized to appraise property — cost, income and market. Both the property appraiser and Holly Ridge’s expert determined the income approach was the most appropriate method to use in valuing the Holly Ridge property. In utilizing an income approach, an appraiser must determine the net operating income and then divide such number by the capitalization rate. In determining the net operating income amount, the property appraiser seemingly complied with section 420.5099. He utilized the project’s actual income, not market income. Furthermore, as required by the statute, he did not include tax credits, nor financing generated by tax credits, as income. However, in determining the capitalization rate, the property appraiser admitted he factored in the impact of the tax credits in deriving a capitalization rate. By his own admission, he did not use a market capitalization rate. This methodology, which was accepted by the trial court, was improper. As a result of the property appraiser’s erroneous consideration of the tax credits, he derived an unreasonably low capitalization rate. The result of using an unreasonably low capitalization rate was that the appraised value was significantly higher than the fair market value. To permit the property appraiser to use his derived capitalization rate would permit him to circumvent the requirements of section 420.5099 by indirectly considering the tax credits as income. A public official cannot do indirectly that which he is prohibited from doing directly. Green v. Galvin, 114 So.2d 187, 189 (Fla. 1st DCA 1959). Additionally, the methodology used by the property appraiser, if permitted, would frustrate the legislative intent to utilize tax credits in order to encourage development of low-income housing. § 420.5099(2), Fla. Stat.

The property appraiser implicitly suggests the effect of complying with a literal interpretation of section 420.5099 would result in an appraised value below “just valuation” in contravention of Article VII, section 4 of the Florida Constitution. We disagree. Statutes come before the court “clothed with a presumption of constitutionality.” Sunset Harbour, 914 So.2d at 929. The Legislature is given the responsibility to determine the specifics of how just valuation is determined. Id. at 932. Section 420.5099 can be interpreted as a valid effort by the Legislature to recognize the impact on the fair market value of LIHTC properties by the substantial and long-term land use restrictions placed on this type of property. The fact that these restrictions were imposed as a result of Holly Ridge’s agreement to participate in the LIHTC program does not alter, in any way, the clear mandate of the statute that these restrictions are to be considered land use regulations. Furthermore, the statute would appear to be an effort by the Legislature to define these tax credits as intangible personal property and thereby exempt from ad valorem taxation. The Florida Constitution prohibits local government entities from levying ad valorem taxes on intangible personal property. The power to tax intangible personal property is available only to the state. Havill v. Scripps Howard Cable Co., 742 So.2d 210, 212 (Fla.1998). See also Wilkinson v. St. Jude Harbors, Inc., 570 So.2d 1332 (Fla. 2d DCA 1990) (where transferable development rights were determined to be not appurtenant to real property, and therefore not subject to ad valorem taxation by local government entities).

We recognize, as the trial judge did, that normally a property appraiser’s valuation is presumed correct. Mazourek v. Wal-Mart Stores, Inc., 831 So.2d 85, 89 (Fla.2002). However, such presumption is lost when the property appraiser misapplies the statutory criteria in determining just valuation. Havill, 742 So.2d at 212.

Accordingly, the final judgment is reversed and this cause is remanded for a new trial.

REVERSED and REMANDED.

THOMPSON and MONACO, JJ., concur.

      . The property appraiser and Holly Ridge's expert agreed that the market approach could not be utilized because there were no comparable sales of LIHTC projects in Florida. The property appraiser used a cost approach in 2002 to "confirm” the valuation he had reached under the income approach. However, in utilizing the cost approach, the property assessor acknowledged that he had chosen an arbitrary reduction number to take into account the effect of the rental income restrictions. This number did not take into account the economic obsolescence resulting from the other substantial and long-term restrictions set forth in the LURA. In any event, the property assessor admitted that he did not independently use the cost approach to determine assessed value. His cost approach served largely to reconcile value derived under his income approach. The property assessor did not utilize a cost approach for the 2003 year — finding that such an approach would be inappropriate under section 420.5099, as amended, effective January 1, 2003.

      . The property appraiser determined the fair market value of the Holly Ridge property to be $4,759,353.00 for 2002 and $4,798,388.00 for 2003.

      . Courts in other states have found tax credits created by the LIHTC program to constitute intangible property. See Cascade Court Ltd. Partnership v. Noble, 105 Wash.App. 563, 20 P.3d 997 (2001); Maryville Properties, L.P. v. Nelson, 83 S.W.3d 608 (Mo.Ct.App.2002); Cottonwood Affordable Housing v. Yavapai County, 205 Ariz. 427, 72 P.3d 357 (2003). But see Rainbow Apartments v. Illinois Property Tax Appeal Board, 326 Ill.App.3d 1105, 260 Ill.Dec. 875, 762 N.E.2d 534 (2001).


author: SAWAYA, J.

text:
    Robert C. FREE, Appellant, v. Marion FREE, f/k/a Marion Moore, Appellee.
    No. 5D05-2393.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 2006.
    Rehearing Denied Sept. 1, 2006.

      Kenneth D. Morse, of Kenneth D. Morse, P.A., Orlando, for Appellant.
    August J. Stanton, III, of Stanton & Gasdick, Orlando, for Appellee.
   SAWAYA, J.

The final judgment presented to us for review grants to Appellee, Marion Free, the equitable relief of specific performance of a “Contract for Sale and Purchase” and an attached “Land Contract” (collectively referred to as the contract). The judgment is founded on three rulings by the trial court alleged to be erroneous by Appellant, Robert Free, who purchased the property subject to the contract: 1) the contract is valid and enforceable despite the lack of attestation by two witnesses; 2) Marion Free was not in default of the contract and was, therefore, not precluded from seeking specific enforcement of its provisions; and 3) Robert Free was ordered to pay the closing costs associated with the conveyance of the real property despite provisions in the contract requiring that some of the costs be paid by Marion. We do not believe the first two rulings are erroneous, but conclude that it was error to require Robert to pay all of the closing costs in contravention of the express terms of the contract.

In July 1996, Ron and Marion Free entered into a “Contract for Sale and Purchase” with Mr. and Mrs. Leibeck regarding property the Leibecks were offering for sale. The purchase price was $150,000, and the transaction concluded without the assistance of a real estate agent or broker. Attached to the contract was a handwritten agreement entitled “Land Contract,” also signed by all parties, which required payments of $1,000 per month and set forth the following pertinent terms:

$108,000.00 Note at 7% — $42,000.00 Existing Bank Note paid by Buyer. The final payment to be made on or before August 1,1998
John & Janet Leibeck will occupy property until contract is paid in full with 90 days notice from buyer to vacate property. At that time good and marketable title and deed will be turned over.
Buyer and Seller will split closing costs, and title insurance. Mobile dwelling will be turned over for a fee of $1.00 (one dollar). Land taxes to be paid by buyer.

The signatures on the handwritten contract were notarized, but there were no witnesses.

Ron and Marion moved onto the property and made improvements at a cost of approximately $30,000. They were occasionally unable to pay the full monthly amount to the Leibecks on time, but the Leibecks accepted the late payments without complaint. To accommodate Ron and Marion’s financial situation, the Leibecks had extended the date for the final balloon payment twice.

Ron and Marion were experiencing severe marital problems by early 2002. Three days after Marion had Ron arrested on domestic violence charges, Ron’s father, Robert Free, discussed with Mr. Leibeck the possibility of purchasing the “note and mortgage,” advising Mr. Leibeck that he was attempting to help Ron and Marion’s marriage. Robert subsequently bought the property via a warranty deed executed by the Leibecks for the amount of $82,000, which was close to the existing balance owed by Ron and Marion. Robert then offered to allow Ron and Marion to make 120 monthly payments of $1,000 each at 7% interest.

Marion refused the offer and filed suit for specific performance of the contract previously entered into with the Leibecks. Robert answered the complaint, asserted affirmative defenses, and counterclaimed. Among his many contentions, Robert asserted that the contract was unenforceable because it did not have the signatures of two witnesses required by section 689.01, Florida Statutes, and because the contract had been breached by Marion. Robert’s counterclaim sought $24,625 for money he had loaned to Marion, a writ of ejectment to remove Marion from the property, and to quiet his title claim.

Following a trial, the trial court made extensive findings of fact and settled many issues of credibility against Robert. The court concluded that the original Land Contract had twice been extended and was not in default; that chapter 689, Florida Statutes, was inapplicable to the contract;, and that even if the contract was in default, Robert was required to foreclose Marion’s interest in the property. The’ court ordered Robert to transfer the property to Marion for $82,000 within thirty days and denied his claim for interest and closing costs. Regarding Robert’s counterclaim, the trial court awarded Robert $5,000, but denied his claims for ejectment and to quiet title in him. Robert appeals, arguing that the remedy of specific performance is wholly inappropriate for the reasons previously stated.

The decision whether to decree specific performance of a contract is a matter that lies within the sound judicial discretion of the trial court and it will not be disturbed on appeal unless it is clearly erroneous. Bliss v. Hallock, 113 So.2d 889 (Fla. 3d DCA 1959); Martin v. Albee, 93 Fla. 941, 113 So. 415 (1927); Jordan v. Boisvert, 632 So.2d 254, 256 (Fla. 1st DCA 1994); Henderson Dev. Co. v. Gerrits, 340 So.2d 1205, 1206 (Fla. 3d DCA 1976) (citing Molina v. Reiss, 254 So.2d 853 (Fla. 3d DCA 1971)); see also Rybovich Boat Works, Inc. v. Atkins, 585 So.2d 270, 272 (Fla.1991). The exercise of that discretion is, governed by consideration of all of the facts and circumstances of the case and application of well-settled legal and equitable principles. Bliss; Stein v. Brown Props., Inc., 104 So.2d 495 (Fla.1958); Martin; Humphrys v. Jarrell, 104 So.2d 404, 410 (Fla. 2d DCA 1958). These considerations and applications make for the advancement of justice and fairness, which are the ultimate goals to be achieved by invocation of this equitable remedy. Rybovich, 585 So.2d at 272 (“[T]he court contemplating an order of specific performance is obligated to consider whether this remedy, based on the facts of the case, would achieve an unfair or unjust result. If so, specific performance is not permitted.”) (citing Todd v. Hyzer, 154 Fla. 702, 18 So.2d 888 (1944)).

The relief requested in a suit for specific performance may be granted if it is first established that the contract is valid and enforceable. See Hembree v. Bradley, 528 So.2d 116 (Fla. 1st DCA 1988); Parker v. Weiss, 404 So.2d 820, 821 (Fla. 1st DCA 1981). This is one of those well-settled legal principles previously alluded to, and its status as a legal issue requires that we resolve it based on the de novo standard of review. Robert asserts the contract is invalid because it was not executed in the presence of two subscribing witnesses. He bases this argument on the provisions of section 689.01, Florida Statutes, which essentially require that for a transfer of real estate or an interest in it to be valid, the instrument of conveyance must be in writing and signed by the grantor in the presence of two subscribing witnesses. Because this statute and its provisions regulate the mode of conveying real property or of creating an estate in it, the statute does not apply to documents that are not instruments of conveyance. Thus we must next determine whether the contract at issue here constitutes an instrument of conveyance within the meaning of the statute.

Our analysis of the contract leads us to the inevitable conclusion that it constitutes an agreement for deed, which is typically defined as an agreement that requires the seller to convey legal title to the buyer after the buyer pays all of the installments of the purchase price. White v. Brousseau, 566 So.2d 832 (Fla. 5th DCA 1990). An agreement for deed is primarily utilized as a security device and an alternative to immediate conveyance of title to the buyer with a purchase money mortgage back to the seller. Id.; see also Muina v. Canning, 717 So.2d 550 (Fla. 1st DCA 1998); Purcell v. Williams, 511 So.2d 1080 (Fla. 1st DCA 1987). The Legislature and this court have declared that such agreements are essentially mortgages with attendant rights and remedies provided to mortgagors and mortgagees, which include the seller’s remedy of foreclosure if the buyer defaults and the buyer’s right of redemption. § 697.01, Fla. Stat. (2005); Vandenberg v. Wells, 721 So.2d 453 (Fla. 5th DCA 1998) (and cases cited therein); see also Muina; Luneke v. Becker, 621 So.2d 744 (Fla. 2d DCA 1993).

A mortgage creates a lien under Florida law, and because it does not convey an interest in real property, the requirements associated with its execution are not as exacting as those of instruments of conveyance, such as a deed. § 697.02, Fla. Stat. (2005); Marcus v. Hull, 142 Fla. 306, 195 So. 170 (1939); Wertkin v. Wertkin, 763 So.2d 461 (Fla. 4th DCA 2000); Martyn v. First Fed. Sav. & Loan Assn., 257 So.2d 576 (Fla. 4th DCA 1971); see also Great Southwest Fire Ins. Co. v. DeWitt, 458 So.2d 398 (Fla. 1st DCA 1984). Therefore, section 689.01 does not apply to mortgages, see Walker v. Franklin, 669 So.2d 1088 (Fla. 4th DCA 1996) (rejecting appellant’s argument that the contract for deed failed because it was not signed by two witnesses); Rosenthal v. Finger & Margolis, P.A., 460 So.2d 993 (Fla. 4th DCA 1984); Carroll v. Dougherty, 355 So.2d 843 (Fla. 2d DCA 1978); Kroner v. Esteves, 245 So.2d 141 (Fla. 3d DCA 1971), and because the contract (agreement for deed) executed by Marion is a mortgage, the fact that it does not contain the signatures of two subscribing witnesses is no impediment to the equitable relief decreed by the trial court. See Walker.

In anticipation that the law might well be as we have stated it, Robert takes the alternative position that even if the contract is valid, Marion was late in her installment payments and therefore was in default of the very document she seeks to have him specifically perform. He claims that possession and ownership of the property are therefore rightfully his. We acknowledge that a party who has failed to comply with his or her contractual commitments is generally not entitled to require the other party to specifically perform the contract, unless the noncompliance was excused or waived. See JNC Enters., Ltd. v. ICP 1, Inc., 777 So.2d 1182, 1185 (Fla. 5th DCA 2001) (“JNC was not entitled to specific performance because it was in default.”) (citing Hooper v. Breneman, 417 So.2d 315 (Fla. 5th DCA 1982) (holding that specific performance was properly denied where buyer had not complied with its contractual obligations)); see also Robinson v. Abreu, 345 So.2d 404 (Fla. 2d DCA 1977). Robert’s argument overlooks the fact that the late payments were accepted by the Leibecks without complaint and that they granted two extensions of the. contract to Marion. If there was noncompliance by Marion, it was certainly, excused or waived by the Lei-becks.

Moreover, Robert’s argument is premised on vestiges of strict common law principles of rather ancient vintage that allowed forfeiture upon default and the seller to automatically reenter and resume ownership of the property. Application of these principles resulted in very harsh consequences in many cases and so the courts discarded them long ago by requiring that mortgages in default be foreclosed in legal proceedings and that the mortgagor have a right of redemption. Therefore, if Robert had a remedy, it was foreclosure of the mortgage. See Muina; Luneke. Hence the trial court was correct in holding that the contract was not in default and that even if it had been, Robert failed to pursue the correct remedy. We conclude that the trial court did not abuse its discretion when it decreed specific performance of the contract. This is the just and fair result here.

Robert argues that if this is so, it was unfair and unjust for the trial court to require him to pay all expenses and costs associated with the sales transaction when the clear and unambiguous provisions of the contract require Marion to pay a portion of them. We agree. The illogic and unfairness that emanates from fashioning a decree for specific performance that requires Robert to perform all of his contractual commitments with portions of Marion’s heaped upon him is readily apparent and we will not condone it. Moreover, the legal principles we have previously discussed say we should not. As a prelude to granting the relief requested, the trial court held that the contract was valid and enforceable: logic and the law dictate that the trial court may not declare its validity and then refuse to require the parties, including the party seeking the equitable relief, to honor all of their contractual commitments. See Anthony James Dev., Inc. v. Balboa St. Beach Club, Inc., 875 So.2d 696, 698 (Fla. 4th DCA 2004) (“The purpose of specific performance is to compel a party to do what it agreed to do pursuant to a contract.”). We also note that a corollary to the rule requiring Marion to demonstrate her willingness and ability to perform all of her contractual commitments is the prohibition of relieving her from one or more of those commitments while requiring Robert to comply with all of his. See Anthony James. We, therefore, reverse that portion of the final judgment and remand this case to the trial court to require the parties to pay their costs and expenses as required by the provisions of the contract.

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER and LAWSON, JJ., concur.

      . The record clearly reveals that Robert had notice of the contract and purchased the property with that knowledge. He therefore acquired the property subject to the contract executed by Marion. See Harris v. Requa, 105 Fla. 312, 140 So. 911, 914 (1932) ("The rule is well settled that 'one purchasing property with notice that the grantor had contracted to convey it to another may be compelled to perform the contract in the same manner and to the same extent as his grantor would have been liable to do, had he not transferred the legal title.' ") (quoting Drake v. Brady, 57 Fla. 393, 48 So. 978, 979 (1909)); McDonald v. McGowan, 402 So.2d 1197, 1200 (Fla. 5th DCA 1981) ("The law in this jurisdiction is well established that a person purchasing property with notice that the seller had contracted to convey it to another may be compelled to perform the contract in the same manner as the seller would have been required to do, had he not transferred the legal title.”).

        . Although Robert also appeals raising several issues regarding his counterclaim, we believe no error was committed by the trial court as to those issues and so we affirm that part of the judgment without further elaboration.


author: PER CURIAM.

text:
    James S. BLAIR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3092.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2006.
    James S. Blair, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

KAHN, C.J., BARFIELD, and ALLEN, JJ., concur.


text:
    Rodney THOMAS, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-3121.
    District Court of Appeal of Florida, First District.
    Aug. 7, 2006.
    Rodney Thomas, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Higueras v. Crosby, 924 So.2d 18 (Fla. 1st DCA 2005); Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

KAHN, C.J., BARFIELD and ALLEN, JJ., concur.


author: BROWNING, J.

text:
    Siddiq B.A. ASAD, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-3861.
    District Court of Appeal of Florida, First District.
    Aug. 8, 2006.

      Siddiq B.A. Asad, pro se, Petitioner.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   BROWNING, J.

Because the circuit court both applied the correct law and gave procedural due process, we deny the petition for writ of certiorari. See Sheley v. Florida Parole Comm’n, 720 So.2d 216 (Fla.1998).

DENIED.

ERVIN and BENTON, JJ., concur.


text:
    Ruben DIAZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1406.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2006.
    Ruben Diaz, pro se, Petitioner.
    Charlie Crist, Attorney General, and Diego Puig, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

KAHN, C.J., BARFIELD, and ALLEN, JJ., concur.


author: TAYLOR, J.

text:
    Steven CARROLL, Appellant, v. Cristiane Goncalves CARROLL, Appellee.
    No. 4D05-4564.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Rehearing Denied Sept. 13, 2006.

      Michael H. Gora of Shapiro, Blasi, Was-serman & Gora, P.A., Boca Raton, for appellant.
    Robert L. Bogen of the Law Offices of Robert L. Bogen, Boca Raton, for appel-lee.
   TAYLOR, J.

Steven Carroll (Husband) appeals an award of temporary attorney’s fees to Cristiane Goncalves Carroll (Wife). This award appears to be based primarily on the parties’ financial affidavits. These affidavits were in the court file and were argued extensively at the hearings, without objection, but were never formally placed into evidence.

We agree with the Wife that the failure to place the financial affidavits in evidence, while technically improper, was waived by the lack of a contemporaneous objection when the Wife’s counsel argued extensively as to their contents at the hearing. See Reddick v. Reddick, 728 So.2d 374, 375 (Fla. 5th DCA 1999) (holding that the rule precluding fact-finding based on unsworn statements of counsel is subject to the contemporaneous objection rule).

Our decision in Brown v. School Board of Palm Beach County, 855 So.2d 1267, 1269 (Fla. 4th DCA 2003), is distinguishable because, there, the attorneys’ arguments were not based on sworn affidavits contained in the court file.

We have considered the Husband’s other arguments for reversal and find them to be without merit.

Ajfirmed.

KLEIN and SHAHOOD, JJ., concur.


author: WARNER, J.

text:
    Betty WEINBERG, Appellant, v. Harvey Jay WEINBERG and Kenneth Alan Weinberg, Appellees.
    No. 4D06-1665.
    District Court of Appeal of Florida, Fourth District.
    Aug. 9, 2006.
    Rehearing Denied Sept. 8, 2006.

      Lawrence R. Metsch of Metsch & Metsch, P.A., Aventura, for appellant.
    Adam G. Heffner of Law Offices of Adam G. Heffner, P.A., and Law Offices of Steven H. Shulman, P.A., Boca Raton, for appellees.
   WARNER, J.

Betty Weinberg appeals a non-final order denying her motion to dismiss the plaintiffs’ complaint for improper venue. We affirm because the plaintiffs’ initial selection of venue in Palm Beach County was proper.

In 1992, Sidney Weinberg and his wife, Betty Weinberg, executed a revocable trust agreement in Palm Beach County, Florida. The trust corpus consisted of the Palm Beach County condominium unit in which Sidney and Betty resided, as well as certain personal property. The trust instrument provided that upon Sidney’s death, Betty would receive a fee simple interest in the couple’s condominium and fifty percent of the remaining trust assets. The trust also provided that Sidney’s adult sons from a prior marriage were to receive monetary distributions from the trust at the time of his death. The adult sons are residents of Tennessee.

Sidney Weinberg died on August 17, 2005. On August 23, 2005, Betty executed a document in which she purported to revoke the trust and take title to all property previously held in the trust. A few days later, she recorded this document in Palm Beach County. On February 1, 2006, Betty moved from Palm Beach County to Miami-Dade County. Several days later, Sidney’s adult sons filed suit against Betty in Palm Beach County. The sons’ complaint sought declaratory relief, as well as damages for breach of trust and breach of fiduciary duty. The gravamen of the sons’ complaint was that the provisions of the trust regarding distributions to them were irrevocable upon the death of Sidney.

Betty moved to dismiss the complaint for improper venue, noting that she was a resident of Miami-Dade County at the time the plaintiffs filed this lawsuit. The trial court denied the motion, prompting this appeal.

The standard of review for an order on a motion to transfer or dismiss for improper venue is abuse of discretion. Carr v. Stetson, 741 So.2d 567, 568 (Fla. 4th DCA 1999). However, where there are no disputed facts and the venue order turns on a question of law, there is no judicial discretion to be exercised and appellate review is de novo. See Dive Bimini, Inc. v. Roberts, 745 So.2d 482, 483-84 (Fla. 1st DCA 1999).

Section 47.011, Florida Statutes, the general venue statute, provides as follows: “Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” It is the prerogative of the plaintiff to select the venue of his or her suit, and when that choice is one of the three statutory alternatives, it will be honored. See A & M Eng’g Plastics, Inc. v. Energy Saving Tech. Co., 455 So.2d 1124 (Fla. 4th DCA 1984).

Here, the sons chose to bring their suit where the cause of action accrued. In Tucker v. Fianson, 484 So.2d 1370, 1371 (Fla. 3d DCA 1986), the Third District explained that a tort claim accrues for venue purposes “where the last event necessary to make the defendant liable for the tort took place,” or where the harmful effect of the defendant’s acts first took effect, (citation omitted). Stated another way, a tort accrues where the plaintiff first suffers injury. Wincor v. Cedars HealthCare Group, Ltd., 695 So.2d 924, 925 (Fla. 4th DCA 1997); see also Harb v. Commerce Realty Group, Inc., 881 So.2d 35, 36 (Fla. 4th DCA 2004) (“For purposes of venue, a tort accrues in the county where the plaintiff first suffers injury.”).

In this case, Palm Beach County was the situs of the trust and its assets, the trust was administered in Palm Beach County before Betty purported to revoke it, and the distributions would have been made by the trustee in Palm Beach County upon Sidney’s death. When Betty attempted to revoke the trust in its entirety and take title to all of the trust property, the last event necessary to make her liable for breach of trust took place. That is where the injury to the sons first took place. We therefore hold that the cause of action for breach of trust accrued in Palm Beach County, where Betty purported to revoke the trust.

Our resolution of this issue makes it unnecessary to decide whether venue was proper on any other basis.

Affirmed.

KLEIN and GROSS, JJ., concur.


text:
    Joel LEWIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2870.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2006.
    Joel Lewis, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Upon consideration of the Florida Parole Commission’s order vacating the order revoking petitioner’s conditional release and directing that a de novo violation hearing be conducted, the petition for writ of mandamus is denied as moot.

KAHN, C.J., BARFIELD, and ALLEN, JJ., concur.


text:
    Ronald E. TERRY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-3216.
    District Court of Appeal of Florida, First District.
    Aug. 11, 2006.

      Ronald E. Terry, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

BENTON, PADOVANO, and LEWIS, JJ., concur.


text:
    Ronald E. TERRY, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-3217.
    District Court of Appeal of Florida, First District.
    Aug. 11, 2006.
    Ronald E. Terry, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

BENTON, PADOVANO, and LEWIS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Charles Quincy DAWKINS, a/k/a Charlton Qunicy Dawkins, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2683.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Judge.

Charlton Quincy Dawkins appeals the revocation of his community control and the imposition of a new sentence. Although we disapprove of the procedures used in this case, we affirm the revocation of Mr. Dawkins’ community control and the sentence imposed. We conclude that there was competent, substantial evidence supporting the trial court’s finding that Mr. Dawkins twice violated condition twelve of his community control. We remand for entry of an order revoking community control that reflects a revocation based only on the two violations of condition twelve and not on the other grounds orally announced by the trial court.

We describe the forms and procedures used in this case because they are common in this district and do not seem to be in accordance with the Florida Rules 'of Criminal Procedure. On December 8, 2004, Mr. Dawkins was charged by information with uttering a forged instrument and grand theft. He entered a written, negotiated guilty plea in exchange for a true split sentence of thirty-six months’ incarceration, all of which was suspended to be served on community control followed by probation. A proper judgment, sentence, and order of community supervision were entered on this plea on January 12, 2005.

In March 2005, two affidavits of violation of community control were filed, alleging that Mr. Dawkins violated condition seven by testing positive for cocaine, condition twelve on two occasions by failing to remain confined to his residence, condition two by' changing his residence without permission, and condition one by failing to account for his daily activities.

At the hearing on the violation of community control, the trial court found no willful violation of condition seven but found that Mr. Dawkins willfully violated conditions one, two, and twelve. The trial court orally revoked Mr. Dawkins’ community control and sentenced him to the thirty-six months’ imprisonment originally imposed in the true split sentence.

No final order revoking Mr. Dawkins’ community control was entered. Instead, on April 21, 2005, the trial court entered a second judgment of conviction for the two offenses. In connection with this repetitive judgment, the trial court entered the new sentence. We suspect that this odd procedure is brought to us by the wonder of computers. It appears likely that the word processor that creates a sentence in the Thirteenth Judicial Circuit always creates a judgment at the same time. Apparently, the system has not established a method to create an order of revocation in compliance with the form contained in Florida Rule of Criminal Procedure 3.995.

Without a rendered order of revocation, Mr. Dawkins appeals only his sentence. Nevertheless, the issues that he has raised on appeal are issues relating only to the revocation of probation. In this context, this court often relinquishes jurisdiction to the trial court by nonpublished order to enter an order of revocation. Occasionally, we require that the order be entered on remand from this court. See, e.g., Dolinger v. State, 779 So.2d 419 (Fla. 2d DCA 2000).

We candidly are not aware of any rule or statute that expressly permits a circuit court to enter multiple judgments of conviction for the same offense in one case. An order revoking probation (including community control) is expressly appealable under section 924.06(l)(c), Florida Statutes (2005). Without such an order in the record, at least in the absence of a transcript of the violation hearing, a criminal court file contains no document demonstrating the legal authority of the trial court to impose a new sentence.

Technically, an order revoking probation is not appealable until it is rendered. When a judge renders such an order, he or she is required to inform the defendant concerning the right of appeal. See Fla. R.Crim. P. 3.670. By failing to enter an order of revocation, the trial court is leaving a case in limbo. By entering a second judgment of conviction, the trial court may be restarting the two-year period for post-conviction relief under Florida Rule of Criminal Procedure 3.850. The second judgment may also create confusion in the public record as to the number of prior offenses committed by the defendant.

In this case, Mr. Dawkins has not argued that the second judgment was not adequate to serve as an order of revocation. To avoid delay and any possible prejudice to him, we treat the second judgment as a final appealable order effectively revoking probation. We disregard any procedural error or defect in the failure of the notice of appeal to challenge the order. See Fla. R.App. P. 9.040(d).

Turning to the merits of this appeal, we conclude that the trial court did not err in finding that the State proved by the greater weight of the evidence that Mr. Dawkins committed willful and substantial violations of condition twelve on two occasions by being absent from his confined residence without permission. See Glasier v. State, 849 So.2d 444, 445 (Fla. 2d DCA 2003). However, we conclude that the trial court erred in finding violations of conditions one and two.

The affidavit of violation of community control alleged that Mr. Dawkins violated condition two by “changing his residence or making himself unavailable without first procuring the consent of the probation officer.” However, condition two of Mr. Daw-kins’ community control does not prohibit this behavior; rather, it requires him to pay $40 per month. We recognize that this allegation could have been described in the affidavit as a violation of condition three, but in light of our holding as to the two violations of condition twelve, we see no need for the trial court to correct this on remand.

The affidavit also alleged that Mr. Dawkins violated condition one by “failing to submit an hourly accounting of activities on the designated daily activity log” because he failed to complete his daily activity log for the week of March 8, 2005. However, condition one only required Mr. Dawkins to make a truthful monthly report. It was not alleged that Mr. Dawkins failed to submit a monthly report, and no evidence was presented in this regard at the revocation hearing.

Because we conclude the trial court would have exercised the discretion to revoke Mr. Dawkins’ community control based solely on the two violations of condition twelve, we affirm the revocation of community control and the new sentence. We reverse the second judgment and remand for proper entry of an order of revocation.

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . We are aware that the trial court file often contains a "case progress report” prepared by the clerk that reflects such events, but we doubt that this report is sufficient to support a new sentence that may send a defendant to prison for many years.


author: CASANUEVA, Judge.

text:
    S.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5050.
    District Court of Appeal of Florida, Second District.
    Aug. 11, 2006.
    Jackson S. Flyte, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Deborah Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

S.P. was found guilty of battery on a law enforcement officer and battery. The juvenile court withheld adjudication of delinquency and sentenced him to a term of probation. S.P. appeals only the imposition of two surcharges. Following State v. J.C., 916 So.2d 847 (Fla. 2d DCA 2005), the juvenile court felt constrained to impose as a condition of his probation a surcharge of $201 pursuant to section 938.08, Florida Statutes (2005), to fund programs in domestic violence, and $151 pursuant to section 938.085, to fund rape crisis centers.

In J.C., this court approved the imposition of these surcharges in cases involving juvenile defendants, aligning this district with our sister court in V.K.E. v. State, 902 So.2d 343 (Fla. 5th DCA 2005). Subsequent to briefing in this case, our supreme court disapproved the Fifth District’s opinion in V.K.E. and held that the legislature did not intend that these surcharges be assessed against juvenile defendants. V.K.E. v. State, 934 So.2d 1276 (Fla.2006). Accordingly, we reverse the imposition of these surcharges in this case.

Reversed and remanded with instructions to strike these surcharges as a condition of S.P.’s probation.

ALTENBERND and STRINGER, JJ„ Concur.


text:
    George VAZQUEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2600.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2006.
    George Vazquez, pro se, Petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, POLSTON, and HAWKES, JJ., concur.


text:
    Rayvon BOATMAN, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, et al., Appellee.
    No. 1D06-2761.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2006.
    Rayvon Boatman, pro se, Appellant.
    Charlie Crist, Attorney General; Rosa Carson, General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of June 19, 2006, the Court has determined that the “Order Denying ‘Motion to Amend’ and All Related Motions,” entered by the lower tribunal on May 10, 2006, is not an appeal-able order. Fla. R.App. P. 9.130(a)(4). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

DAVIS, POLSTON, and HAWKES, JJ., concur.


text:
    Randall C. WHITNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3087.
    District Court of Appeal of Florida, First District.
    Aug. 15, 2006.
    Randall C. Whitney, pro se, Appellant.
    Charlie Crist, Attorney General, for Ap-pellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of July 5, 2006, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on June 6, 2006, appealing the order denying the appellant’s motion to correct illegal sentence rendered on March 23, 2006, is untimely. Because the notice of appeal was filed more than 30 days after rendition of the order and the untimely motion for rehearing did not delay rendition, this Court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). This appeal is hereby dismissed.

DISMISSED.

DAVIS, POLSTON, and HAWKES, JJ., concur.