author: EVANDER, J.

text:
    BOATWRIGHT CONSTRUCTION, LLC, Appellant, v. Scott R. TARR, Appellee. Scott R. Tarr, Appellant, v. Boatwright Construction, LLC, Appellee.
    Nos. 5D06-1210, 5D06-1963.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2007.

      Larry C. Oldham of Oldham & Reece, Cumming, GA., and J. Brock McClane and Valentyna L. Scherbey of McClane II Tes-sitore, Orlando, for Boatwright Construction, LLC.
    Patrick C. Crowell of Patrick C. Cro-well, P.A., Orlando, for Scott R. Tarr.
   EVANDER, J.

These are consolidated appeals in which Boatwright Construction, LLC (“Boat-wright”), the plaintiff below, appeals from an order granting Scott R. Tarr’s (“Tarr”), motion for judgment on the pleadings and Tarr appeals from an order denying his motion for attorney’s fees. We affirm, in part, and reverse, in part.

For purposes of this appeal, we must accept all well-pled factual allegations of Boatwright’s amended complaint as true. See Plumbing Serv. Co. v. Progressive Plumbing, Inc., 952 So.2d 1211 (Fla. 5th DCA 2007); Covert v. South Florida Stadium Corp., 762 So.2d 938, 939 (Fla. 3d DCA 2000). The moving party carries a heavy burden and must be clearly entitled to relief based on the facts pled. Covert. The applicable standard of review of a trial court’s decision granting a judgment on the pleadings is de novo review. Thompson v. Napotnik, 923 So.2d 537 (Fla. 5th DCA 2006).

On October 23, 2000, Boatwright entered into a contract with GMRI, Inc. (“GMRI”), whereby GMRI agreed to pay Boatwright 1.4 million dollars to construct a restaurant on property owned by GMRI. The property was located in Orlando, Florida. Prior to entering this contract, Boat-wright had constructed restaurants throughout the United States. However, Boatwright was not licensed as a contractor in Florida. Boatwright was aware that it would need a contractor licensed in the State of Florida to act as its qualifying agent.

In November, 2000, Boatwright and Tarr entered into an agreement whereby Tarr, who was a Florida-licensed contractor, would obtain the necessary building permits for this project. Tarr would be paid $2,500 for his agreement to serve as Boatwright’s “qualifying agent,” and for his services in obtaining the necessary building permits.

In December, 2000, Tarr successfully obtained the permits necessary to commence construction of the restaurant. Boatwright paid Tarr the agreed-upon fee.

By April 27, 2001, the project was approximately 98% complete. As of that date, Tarr had not performed any supervisory duties at the job site.

Around this time, the Florida Department of Business and Professional Regulation contacted Boatwright and Tarr as part of its investigation of a complaint that Boatwright was illegally performing construction work without a Florida contractor’s license. On May 2, 2001, Tarr submitted an affidavit to the Department of Business and Professional Regulation, averring that he had “unknowingly pulled a permit for which [he was] not authorized to pull on behalf of Boatwright Construction.” He further acknowledged in his affidavit that he had not performed the duties required of a qualifying agent. Specifically, as the qualifying agent, Tarr had a legal obligation to supervise the field work.

The responsibilities of a qualifying agent are set forth in section 489.1195, Florida Statutes (2000). It is clear from the pleadings that the contract between Tarr and Boatwright did not contemplate that Tarr would perform the statutorily-required duties of a qualifying agent.

When GMRI learned of the investigation, it sought to ensure that the project would be completed without undue delay. As a result, three agreements were entered into. The first agreement titled “Acknowledgment and Affirmation,” was entered into by GMRI and Tarr. Pursuant to the terms of this agreement, Tarr agreed, for “good and valuable consideration,” to complete the project as the general contractor. Tarr also agreed to be responsible for any construction defects in the project to the same extent as if he had been the original general contractor. The second agreement, titled “Guaranty of Performance,” was executed by GMRI, Boat-wright and Tarr. For “good and valuable consideration,” Boatwright agreed to guaranty the performance of Tarr’s obligation under the Acknowledgment and Affirmation. Paragraph 2 of the Guaranty of Performance, specifically provided:

If for any reason whatsoever, TARR shall fail or refuse to fully perform all duties, responsibilities and obligations under the Acknowledgment, then BOATWRIGHT agrees to fully reimburse GMRI, immediately upon demand for same, for any and all expenses or costs incurred by GMRI as a result of such breach by TARR, including but not limited to all attorneys’ fees and costs expended by GMRI in such endeavors.

The third agreement was a verbal agreement between Boatwright and Tarr. Pursuant to this agreement, Tarr agreed to endorse all checks it received from GMRI to Boatwright, in return for Boat-wright’s agreement to hold Tarr harmless from any and all claims arising from Tarr’s involvement in the project. Although this agreement was not reduced to writing, Tarr did send a letter to GMRI on May 25, 2001, stating:

As per my discussion with [Boat-wright] all final payments due to Boat-wright Construction must be made payable to me. Once I receive my hold harmless agreement from Mr. Boat-wright, I will then endorse the final check over to Boatwright Construction.

Boatwright subsequently provided Tarr with the hold harmless agreement and Tarr endorsed the first three checks it received from GMRI to Boatwright. (These three checks total approximately $868,000.) However, Tarr refused to endorse the final check it received from GMRI to Boatwright. This check was in the amount of $201,740.94.

Boatwright commenced this litigation on August 30, 2004. The amended complaint included counts for 1) breach of contract, 2) breach of fiduciary duty, 3) unjust enrichment, and 4) breach of a contract of which Boatwright was a third party beneficiary.

Tarr filed an answer generally denying the allegations of the amended complaint. As one of its affirmative defenses, Tan-pled that “any alleged agreement, new agreement or novation between the parties was illegal or void and unenforceable as being against public policy.” Tarr also filed a motion for judgment on the pleadings, contending that Boatwright’s amended complaint “fails to state and cannot state a cause of action.” (emphasis added).

After considering the parties’ arguments, the trial court entered a very detailed and thorough order. We note that the trial court’s job was made more difficult because Boatwright’s amended complaint can, at best, be described as “inart-fully drafted.” In particular, it is difficult to ascertain whether Boatwright’s breach of contract count was based on Tarr’s alleged breach of the initial contract whereby Tarr agreed to obtain the building permits for a $2,500 fee, or whether the count was based on an alleged breach of the subsequent agreement whereby Tarr agreed to endorse to Boatwright all checks it received from GMRI in return for a hold harmless agreement.

In its order, the trial court correctly noted that a motion for judgment on the pleadings must be decided solely upon review of the pleadings, and may be granted only if the moving party is clearly entitled to judgment as a matter of law. Tanglewood Mobile Sales, Inc. v. Hachem, 805 So.2d 54, 55 (Fla. 2d DCA 2001). The trial court found that pursuant to section 489.128, Florida Statutes (2000), the initial contract between Boatwright and GMRI was unenforceable because Boatwright was not a licensed contractor. Citing to Deep South Systems., Inc. v. Heath, 843 So.2d 378 (Fla. 2d DCA 2003), the trial court correctly observed that Boatwright could not have successfully brought an action against GMRI to recover monies for work performed by Boatwright on the project. The trial court then concluded that regardless of the theory advanced by Boatwright, it could not recover for work performed on the project. Specifically, the court stated that Boatwright could not “recover indirectly what it could not recover directly.” The trial court recognized that the effect of its decision would be to arguably grant a windfall to another wrongdoer.

We agree with most, but not all, of the trial court’s conclusions. First, we affirm the trial court’s order granting judgment on the pleadings as to the breach of fiduciary duty, unjust enrichment, and third party beneficiary counts. However, we reverse the trial court’s order as to the breach of contract count. For the reasons set forth below, we find that the second contract alleged to have been entered into by Tarr and Boatwright was a legal and enforceable contract.

Section 489.128, Florida Statutes (2000) provides:

As a matter of public policy, contracts entered into on or after October 1, 1990, and performed in full or in part by any contractor who fails to obtain or maintain a license in accordance with this part shall be unenforceable in law or in equity.

Thus, as observed by the trial court, Boat-wright could not have successfully brought an action against GMRI to recover monies for work allegedly performed under their contract. See Deep South Systems, Inc.; Kvaerner Const., Inc. v. American Safety Cas. Ins. Co., 847 So.2d 534 (Fla. 5th DCA 2003). Furthermore, it is questionable whether GMRI could have successfully brought an action against Boatwright if Boatwright had failed to properly perform its contractual obligations. See, e.g., Castro v. Sangles, 637 So.2d 989 (Fla. 3d DCA 1994).

Boatwright’s initial contract with Tarr was also illegal and unenforceable. See § 489.127(4)(a) and (b), Fla. Stat. (2000); RTM General Contractors, Inc. v. G/W Riverwalk, LLC, 893 So.2d 583 (Fla. 2d DCA 2004), rev. denied, 902 So.2d 791 (Fla.2005). However, merely because Boatwright’s initial contracts with GMRI and Tarr were illegal, it does not necessarily follow that the second contract between Boatwright and Tarr was illegal. Indeed, according to the amended complaint, GMRI, Boatwright, and Tarr entered into new agreements in May, 2001, for the purpose of remedying the situation caused by their initial illegal contracts.

As the individual who obtained the building permit, Tarr had potential liability to any third persons who suffered personal injuries as a result of any defects resulting from the negligent construction of the restaurant. See ABD Const. Co. v. Diaz, 712 So.2d 1146 (Fla. 3d DCA 1998)(contractor acting as qualifying agent for out-of-state company generally liable for injuries arising from construction, citing section 489.105(4), Florida Statutes (2000)). Furthermore, as a result of the Acknowledgement and Affirmation agreement entered into by GMRI and Tarr, Tarr was potentially liable to GMRI for any failure by Boatwright and/or Tarr to construct the restaurant in accordance with the terms of the original construction contract.

Prior to entering into the second contract with Tarr, Boatwright was not obligated to hold Tarr harmless from all potential claims made against Tarr by GMRI or an injured third party. Therefore, Boatwright’s agreement to hold Tarr harmless for any and all claims that might be brought against Tarr arising from Tarr’s involvement with the project was new and legal consideration given in return for Tarr’s promise to endorse to Boat-wright any checks it might receive from GMRI. Although GMRI may not have been obligated to pay Tarr any monies, it did so. Once Tarr received these monies, he was obligated to pay the monies to Boatwright. The consideration for these monies was not work illegally performed by Boatwright on the project. The consideration for these monies was the hold harmless agreement given to Tarr by Boatwright. Again, we emphasize that our conclusions are based on the assumption that Boatwright’s factual allegations are true and correct.

We find Tarr’s appeal to be without merit. On remand, Boatwright should be given the opportunity to amend its breach of contract count so that it is clear Boat-wright’s cause of action is based on the alleged second contract between Boat-wright and Tarr.

AFFIRMED, in part; REVERSED, in part; REMANDED.

GRIFFIN and PALMER, JJ„ concur.

      . Tarr sought attorney's fees pursuant to section 57.105, Fla. Stat. (2004).

      . Effective July 1, 2000.

      . Section 489.128 was amended effective April 13, 2007. See Ch.2007-5, 2007, Fla. Session Law Service. The section now provides:
      As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor, (emphasis added)


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    Daniel PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3405.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2007.
    James S. Purdy, Public Defender and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Daniel Perez, DeFuniak Springs, pro se. No Appearance for Appellee.
   PALMER, J.

Daniel Perez appeals from the trial court’s order revoking his probation and sentencing him to a term of 40 months in prison. Although the trial court issued a ruling from the bench finding that the defendant had violated his probation and stating the conditions which had been violated, the trial court failed to enter an order that set forth in writing the conditions that were found to have been violated. Since the trial court’s findings are supported by competent, substantial evidence and, if reduced to writing, would be adequate to sustain the trial court’s conclusion of a willful and substantial violation of probation, we affirm the revocation of probation, but remand the matter for entry of a proper order. See Patt v. State, 876 So.2d 1278 (Fla. 5th DCA 2004).

AFFIRMED, REMANDED for entry of proper order.

PLEUS, C.J. and TORPY, J., concur.


author: WALLACE, Judge.

text:
    Michael C. WELLS and Shontell D. Kelley, Appellants, v. CITY OF ST. PETERSBURG, Florida, Appellee.
    No. 2D06-3270.
    District Court of Appeal of Florida, Second District.
    June 15, 2007.

      Nancy A. Lauten of Yaka, Larson & Johnson, P.L., Tampa, for Appellants.
    John C. Wolfe, City Attorney, and William N. Drake, Jr., Assistant City Attorney, St. Petersburg, for Appellee.
   WALLACE, Judge.

Michael C. Wells and Shontell D. Kelley (the Appellants) appeal a summary final judgment that dismissed their action against the City of St. Petersburg (the City) for injuries they sustained when a motorist who was fleeing from one of the City’s police cruisers collided with their vehicle. The circuit court concluded, as a matter of law, that the City’s police officers did not conduct a pursuit of the fleeing vehicle but instead initiated what amounted to “an unsuccessful traffic stop.” Because there were genuine issues of material fact about the manner in which the officers responded to the fleeing vehicle, we reverse the summary final judgment.

I. The Facts and Procedural History

On December 17, 2002, the Appellants were both seriously injured when the vehicle in which they were riding was struck by a vehicle that was being driven by Anthony Harrington. Just before colliding with the Appellants’ vehicle, Mr. Harrington had run a stop sign. The record does not reflect the speed of the Harrington vehicle at the moment before the crash occurred, but it must have been going very fast. The force of the collision was so great that the Harrington vehicle became airborne and landed nose first. After coming to rest, the Harrington vehicle burst into flames. Shortly before the crash, police officers employed by the City had attempted to stop Mr. Harrington for running a red light.

The Appellants subsequently filed an action against the City. In their complaint, the Appellants alleged that their injuries resulted from the actions of a City police officer who “negligently operated or maintained [his] motor vehicle by unreasonably pursuing the motor vehicle being operated by [Mr. Harrington] at a high rate of speed, so that it went out of control and collided” with their automobile. After the action was at issue, the City filed a motion for summary judgment. In the motion, the City contended that “no conduct of the Defendant City which could be characterized as either misfeasance or nonfeasance created a foreseeable zone of risk for the [Appellants]. Thus, the Defendant City had no common law duty to the [Appellants] and is protected by reason of the Public Duty Doctrine.”

The City filed the depositions of two police officers in support of its motion. Both of these officers had participated in the attempt to stop Mr. Harrington. In opposition to the motion, the Appellants filed the affidavit of D’Angelo Hutchinson. Mr. Hutchinson had been a passenger in the Harrington vehicle during the incident. Unfortunately, the details about the events that preceded the collision were not fully developed either in the officer’s depositions or in Mr. Hutchinson’s affidavit. For example, there is no evidence of the speed at which either the police cruiser or the Harrington vehicle was traveling. Furthermore, neither the City nor the Appellants filed any affidavits or depositions from either an accident reconstruction expert or a police pursuit expert.

The officers on whose depositions the City relied were both members of the City’s street narcotics unit. According to the officers, the incident occurred in a residential area of St. Petersburg at approximately 10:30 p.m. The two officers— along with a third officer — were riding in an unmarked police cruiser that was equipped with a siren and interior flashing lights. At the time, the officers were on routine patrol and were not engaged in any particular law enforcement operation. Instead, they were preparing to finish their shift and to return to the police station.

The incident began when the officers saw the Harrington vehicle run a red light approximately two blocks ahead of them. They decided to stop the vehicle and to issue a citation to the driver for the traffic violation. The officers followed the Harrington vehicle for three to four blocks to catch up to it. Then the officers turned on their cruiser’s siren and flashing lights.

At this point in the chain of events, the accounts given by the officers and by Mr. Hutchinson diverge sharply. The officers testified that very soon after they turned on their siren and flashing lights, the Harrington vehicle accelerated and began to pull away from them instead of slowing down and stopping. The officers pursued the Harrington vehicle for a very short distance — only far enough for the officers to shine their spotlight on the vehicle’s license tag and note the number. Then, acting in accordance with departmental policy regulating vehicle pursuits, the officers pulled over to the curb, stopped, and turned off their siren and flashing lights. They watched as the Harrington vehicle continued to speed away from them until it ran a stop sign and collided with the Appellants’ vehicle. Only then did they drive to the scene of the collision.

Mr. Hutchinson offered a different version of what happened. In Mr. Hutchinson’s account, as Mr. Harrington fled, the officers pursued him for a substantially greater distance than that to which they had testified. Moreover, Mr. Hutchinson said that “the police car continued pursuing/chasing the vehicle I was a passenger in continuously until the traffic crash occurred.”

II. The Circuit Court’s Order

The officers’ deposition testimony and Mr. Hutchinson’s affidavit were in conflict about the manner in which the officers had responded to Mr. Harrington’s fleeing vehicle. Moreover, there was no direct evidence about the rate of speed at which either the police cruiser or the Harrington vehicle was traveling. The circuit court resolved these conflicts and gaps in the evidence as follows:

[The Court finds] that the record facts do not support the contention that a pursuit occurred on the part of the Defendant City of St. Petersburg’s police officers, but rather, show an unsuccessful attempted traffic stop, and that the entire incident involved only a period of seconds during which the police followed the vehicle that was subsequently involved in the intersection collision with the [Appellants’] vehicle a relatively short distance and the speed was not excessive; and the court further [finds] that during the brief interval the record discloses no undue risk to the public posed by the police officers’ actions....

Based on this analysis, the circuit court entered the summary final judgment, and it dismissed with prejudice the Appellants’ action against the City.

III. The Standard of Review

Review of a summary judgment is de novo, requiring a two-pronged analysis. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). First, a summary judgment is proper only if there is no genuine issue of material fact, viewing every possible inference in favor of the party against whom summary judgment has been entered. Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000). Second, if there is no genuine issue of material fact, a summary judgment is proper only “if the moving party is entitled to a judgment as a matter of law.” Aberdeen at Ormond Beach, 760 So.2d at 130.

IY. Discussion

The legal principles pertinent to the Appellants’ claims against the City are well established. A law enforcement agency is not liable for injuries sustained dur-

ing a hot pursuit of a fleeing offender on the basis that the hot pursuit itself is per se negligence. See City of Miami v. Horne, 198 So.2d 10, 12-13 (Fla.1967). Instead, “the rule is that the officer should take such steps as may be necessary to apprehend the offender but, in doing so, not exceed proper and rational bounds nor act in a negligent, careless or wanton manner.” City of Pinellas Park v. Brown, 604 So.2d 1222, 1226 (Fla.1992) (citing Horne, 198 So.2d at 13). Thus “[t]he liability of a law enforcement agency for injury caused during a high speed chase depends on the manner in which the chase is conducted.” Porter v. Dep’t of Agric. & Consumer Servs., 689 So.2d 1152, 1155 (Fla. 1st DCA 1997).

Here, the conflicts between the officers’ deposition testimony and Mr. Hutchinson’s affidavit created genuine issues of material fact concerning the central liability issue in the case — the manner in which the officers had acted after Mr. Harrington accelerated and began to speed away from them. By finding that the officers had not pursued the Harrington vehicle, the circuit court resolved material disputed facts against the Appellants. The circuit court evidently concluded that the Appellants’ claims against the City were so doubtful that they could not be won at trial. But a motion for summary judgment “is not a substitute for a trial on the merits. Hence, a trial court is precluded from resolving disputed issues of fact when considering such a motion.” Hervey v. Alfonso, 650 So.2d 644, 646 (Fla. 2d DCA 1995). “A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985) (citing Shaffran v. Holness, 93 So.2d 94 (Fla.1957)). “If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Id. (citing Williams v. Lake City, 62 So.2d 782 (Fla.1953), and Crovella v. Cochrane, 102 So.2d 307 (Fla. 1st DCA 1958)). The summary final judgment under review in this case violates these basic principles. Accordingly, we reverse the summary final judgment, and we remand for further proceedings.

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.


author: PER CURIAM.

text:
    Raquel RIOS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2720.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges her judgment and sentence imposed upon her violations of probation. She contends the trial judge erred in denying her motion for rehearing filed by her trial counsel subsequent to sentencing. We REVERSE and REMAND.

Appellant pled guilty to violating probation and was sentenced to seven years’ imprisonment. Approximately five days after sentencing Appellant wrote to her trial counsel requesting that he “get [her] back into court for a sentencing reduction[.]” She told counsel that she suffered from a “shrinking brain tumor” and other medical ailments which require medication that she had been without for more than three weeks. She claimed that, combined with the fact that English is her second language, she “was unaware of what was being said to [her] by the judge and not even aware what anyone was speaking.”

Trial counsel filed a motion to conduct hearing, requesting the court bring Appellant into court “for the purpose of allowing her a full opportunity to be heard on the issues raised Pro Se and appropriate inquiry conducted and to grant or deny relief sought as appropriate.” The court held a hearing but Appellant was not present. Counsel explained that when he had filed the motion Appellant had been housed at the jail but had subsequently been moved to prison. He stated he did not file a motion to transport her to court because he considered the hearing as one to discuss how Appellant should proceed, and not a hearing on a motion to withdraw her plea. Counsel then told the court he styled the motion as a motion for hearing rather than as a motion to withdraw plea because he could not, in good faith, assist Appellant with withdrawing her plea. He stated he had “stood by [Appellant’s] side when she entered the plea,” and he did not believe that her medical condition interfered with her ability to understand the proceedings and the plea agreement. Counsel further stated he did not believe Appellant did not understand English well enough to comprehend the plea agreement because he previously utilized her at the jail as an interpreter when he spoke with other clients. The court denied the motion for hearing but told counsel that the appellant could file a pro se pleading to pursue her claim. Counsel stated that he would prepare a draft order and a cover letter to Appellant explaining she could file a pro se motion seeking relief. Instead of filing a pro se motion, Appellant filed a timely notice of appeal. Appellant argues the trial court abused its discretion by failing to appoint conflict-free counsel to represent her in the proceedings before the court. We agree.

In Garcia v. State, 846 So.2d 660 (Fla. 2d DCA 2003), Garcia wrote a letter to the trial court seeking to withdraw his plea based upon a claim that his trial counsel misled him into pleading guilty. The trial court treated the letter as a motion to withdraw plea and during an informal hearing when the appellant was not present, questioned Garcia’s trial counsel about the allegation. Counsel stated he could not conceive of how he misled Garcia, and the trial court denied the motion. The appellate court concluded that the allegation could be construed as a facially sufficient challenge to the voluntariness of the plea, which, thus, warranted a hearing. See id. at 661. The appellate court also found it significant that trial counsel had taken an adverse position to Garcia’s interests. Id. The court held that once it became clear that counsel was in conflict with Garcia’s interests, the court was required to appoint conflict-free counsel to represent him. Id.

Similarly, in the instant case, counsel argued against Appellant’s interests and did so while she was not present at the hearing. Once it became clear counsel’s position was adverse to Appellant’s and he was refusing to file a motion to withdraw the appellant’s plea, the court should have appointed conflict-free counsel to represent the appellant. We therefore reverse and remand with instructions that the trial court appoint conflict-free counsel to represent Appellant and to consider the appropriate path through which to address Appellant’s claim.

REVERSED AND REMANDED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    STATE of Florida, ex rel., Elmer MARSH and Richard Storm, qui tam, Appellants, v. Theodore R. DORAN, individually, Doran, Wolfe, Rost & Ansay, P.A., a Law Firm incorporated under the laws of the State of Florida, Appellees.
    No. 1D06-3323.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Paul M. Meredith and N. Kate Estes, of The Meredith Law Firm, St. Augustine, for Appellants.
    Theodore R. Doran, Michael Ciocchetti, and Audrie M. Harris, of Doran, Wolfe, Ansay, & Kundid, Daytona Beach; and David H. Burns, Tallahassee, for Appel-lees.
   PER CURIAM.

The primary issue in this case is whether the appellees were “prevailing parties” under section 68.086(3), Florida Statutes (2002). We hold that a defendant is entitled to recover attorney’s fees under section 68.086(3), which awards fees to the prevailing party, after the plaintiff takes a voluntary dismissal without prejudice. The refiling of the same suit after the voluntary dismissal does not alter the appellees’ right to recover prevailing party attorney’s fees incurred in defense of the first suit. Caufield v. Cantele, 837 So.2d 371 (Fla.2002); Alhambra Homeowners Ass’n, Inc. v. Asad, 943 So.2d 316 (Fla. 4th DCA 2006). We find no error in the trial judge’s denial of the motion for recusal.

AFFIRMED.

BARFIELD, WOLF, and VAN NORTWICK, JJ., concur.


author: BROWNING, C.J.

text:
    Christine JENNINGS, Ellen Fedder, Lance Jones, Ernest Lasche a/k/a/ Mike Lasche, Barbara Klein, Lois Harmes, John Minder, Dovie Murray, John McBride, Susan Gaar, Gary Lamer, and Charles Clifton (Collectively, “Voter Plaintiffs” or “Petitioners”), Petitioners, v. ELECTIONS CANVASSING COMMISSION OF the STATE OF FLORIDA; Sarasota County Canvassing Board; Kathy Dent, as Sarasota County Supervisor of Elections; Sue M. Cobb, as Secretary of the State to Florida; Dawn K. Roberts, as Director of the Division of Elections of the State of Florida; Vern Buchanan; and Election Systems & Software, Inc., Respondents.
    No. 1D07-0011.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Kendall Coffey, of Coffey & Wright, L.L.P., Miami; Mark Herron, of Messer, Caparello & Self, P.A., Tallahassee; and Donald B. Verrilli, Jr., Sam Hirsch, Jessica Ring Amunson, of Jenner & Block, L.L.P., Washington, DC, for Petitioner Jennings. Matthew J. Zimmerman, Electronic Frontier Foundation, San Francisco, CA; Rebecca Harrison Steele & Zeina N. Salam, A.C.L.U. Foundation of Florida, Tampa; and Reginald J. Mitchell, P.F.A.W. Foundation, Tallahassee, for Joinder Petitioners.
    Peter Antonacci and Allen Winsor, of GrayRobinson, P.A., Tallahassee, for Respondents Kurt S. Browning, Amy K. Tuck, and Elections Canvassing Commission. Miguel A. DeGrandy & Stephen M. Cody, of Miguel DeGrandy, P.A., Miami; and Harry O. Thomas & Jeffrey L. Frehn, of Radey, Thomas, Yon & Clark, Tallahassee, for Respondent Election Systems & Software, Inc. Glenn T. Burhans, Jr., Hayden R. Dempsey & M. Hope Keating, of Greenberg Traurig, P.A., Tallahassee, for Respondent Vern Buchanan.
   BROWNING, C.J.

The petitioners seek certiorari review of the trial court’s non-final order denying motions to compel discovery, including a request to order the respondents to disclose trade secrets, including the source code and other proprietary technology associated with certain voting machines used in the Florida Thirteenth Congressional District in the November 2006 election, which Petitioner Christine Jennings lost to Respondent Vern Buchanan by fewer than 400 votes, according to the certified election results. We have jurisdiction. See Art. V, § (4)(b)(3), Fla. Const.; Fla. R.App. P. 9.030(b)(2)(A). “We recognize that an order denying discovery is ordinarily not reviewable by certiorari because the harm from such orders, as a general rule, can be rectified on plenary appeal.” Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992). This is such a situation. Because the petitioners have not met their extraordinary burden to demonstrate that the trial court departed from the essential requirements of law, resulting in irreparable, material injury for the remaining trial proceedings that cannot be rectified on direct appeal, we deny the petition for writ of certiorari. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987); S.Y. v. McMillan, 563 So.2d 807, 809 (Fla. 1st DCA 1990) (denying petition for writ of certiorari, where petitioner failed to show that the trial court departed from “a clearly established principle of law resulting in a miscarriage of justice which cannot be remedied on direct appeal”).

PETITION FOR WRIT DENIED.

POLSTON and HAWKES, JJ., concur.


text:
    Erik Forrest HALL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D01-3082.
    District Court of Appeal of Florida, Second District.
    June 18, 2007.

      Joseph Beeler and H. Eugene Lindsey of Ferrell Schultz Carter & Fertel, P.A., Miami, for Appellant/Cross-Appellee.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock and C. Suzanne Bechard, Assistant Attorneys General, Tampa, for Appellee/Cross-Appellant.
   ORDER ON PETITION FOR WRIT OF MANDAMUS AND/OR MOTION FOR ENFORCEMENT OF MANDATE

PER CURIAM.

This court issued mandate in this case affirming Erik Forrest Hall’s manslaughter conviction and 9.25-year prison sentence on March 30, 2007. The State of Florida has filed a petition for writ of mandamus and/or motion for enforcement of mandate. The State asserts that the circuit court has declined to enforce our mandate by continuing Hall’s release on bond apparently pending the possible acceptance of discretionary review of his case in the supreme court. The circuit court held a hearing in April at which it set a future date for a hearing on “execution of sentence.”

The circuit court is without the authority to continue bond after mandate has issued because such an act has the effect of staying mandate, which the circuit court is not authorized to do. State v. Broom, 526 So.2d 158, 159 (Fla. 2d DCA 1988). Only the district court and Florida Supreme Court have the authority to stay the district court’s mandate pending review in the supreme court. See State v. Roberts, 661 So.2d 821, 822 (Fla.1995). This court denied Hall’s motion to stay mandate on March 29, 2007. The supreme court has not issued any stay.

The trial court had no statutory or procedural authority to continue its stay of sentence after we denied the motion to stay mandate. Under Florida Rule of Criminal Procedure 3.810, the trial court was obligated to “forthwith commit” the defendant after the stay of sentence terminated. Although a trial court may have some discretion to establish an orderly process by which a defendant is committed following an unsuccessful appeal, the delay in this case is not for that purpose. Indeed, it appears that Hall could have been committed in April at the earlier hearing.

Accordingly, the State’s petition for writ of mandamus and/or motion to enforce mandate is granted. The circuit court judge assigned to this case shall immediately issue an order requiring the sheriff of Lee County to take Hall into custody and to transfer him to the appropriate authority for the service of his sentence. This order shall be effective immediately and shall not be delayed due to any pending motions for rehearing directed to this order.

ALTENBERND, SALCINES, and STRINGER, JJ., concur.


text:
    Joey JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2754.
    District Court of Appeal of Florida, First District.
    June 18, 2007.

      Joey Johnson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    Artis McCALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2755.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Artis McCall, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, PADOVANO, and THOMAS, JJ., concur.


text:
    Scott C. BOTKA, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3584.
    District Court of Appeal of Florida, Fifth District.
    June 19, 2007.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 373 So.2d 898 (Fla.1979); Byrd v. State, 419 So.2d 725 (Fla. 5th DCA 1982).

PLEUS, C.J., ORFINGER and MONACO, JJ., concur.


author: DAVIS, Judge.

text:
    Glenn BEASLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4427.
    District Court of Appeal of Florida, Second District.
    June 20, 2007.
   DAVIS, Judge.

Glenn Beasley appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm all claims but one without comment. Because the record is insufficient to refute Beasley’s claim of an involuntary plea based on counsel’s alleged misadvice, we reverse and remand that single claim for further proceedings.

Beasley pleaded nolo contendere to a count of robbery in 1992. Beasley contends that, although he received twenty years’ prison with a three-year minimum mandatory, his counsel, the assistant state attorney, and the trial judge informed him that he would serve only ten years — at which point his earned gain time would provide for his release as a “free man” with no conditions. Beasley claims he served nine years, ten months, and seven days in prison, and then he was released with conditions. Sometime thereafter, Beasley violated the conditions of his release and was returned to prison.

Beasley asserts that on April 7, 2004, the Department of Corrections (DOC) informed him that his earned gain time would be revoked and that he would serve a total of approximately sixteen years in prison (including the time already served). In his rule 3.850 motion and amended motion, Beasley contends that this April 7, 2004, discovery constitutes newly discovered evidence to demonstrate ineffective assistance of counsel due to both counsel’s affirmative misadvice as to the length of Beasley’s imprisonment and counsel’s failure to advise him of the possible forfeiture of gain time following a violation of a condition of release. Beasley further contended counsel’s errors rendered his plea involuntary because he would have insisted on going to trial had he been correctly advised.

The postconviction court summarily denied Beasley’s motions, finding that they were untimely filed. In response to this court’s order, the State concedes that this was error.

[T]he triggering event for the two-year period in which to file a rule 3.850 motion is not the date of the judgment in the criminal proceeding in which the prisoner pleaded, but the date on which the DOG informed the prisoner of the gain time forfeiture and that the DOC determination of gain time constituted newly discovered information within the meaning of rule 8.850(b)(1).

Galindez v. State, 909 So.2d 597, 598 (Fla. 2d DCA 2005) (reviewing prisoner’s claim of ineffective assistance of counsel due to counsel’s failure to adequately inform him that the DOC could forfeit his earned gain time based on a violation of probation); see also Hall v. State, 891 So.2d 1066 (Fla. 2d DCA 2004); Spradley v. State, 868 So.2d 632 (Fla. 2d DCA 2004). Consequently, Beasley’s September 28, 2004, motion and his September 29, 2005, amended motion are not untimely with respect to this claim. Moreover, the limited record before this court is insufficient to conclusively refute Beasley’s claim of misadvice. Accordingly, we reverse the denial of this claim and remand. On remand, the postconviction court may attach portions of the record to conclusively refute Beasley’s claim or, if necessary, hold an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

SALCINES and WALLACE, JJ., Concur.


text:
    Willie McCRAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3843.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse and remand this cause to the trial court with directions to enter a written Order of Drug Offender Probation for one year with the special conditions of six months in-patient treatment, six months out-patient treatment, and payment of drug testing fees, consistent with the trial court’s oral pronouncement at sentencing.

Reversed and Remanded.

STEVENSON, C.J., POLEN and TAYLOR, JJ.


author: WARNER, J.

text:
    Joseph B. ELKIND, Appellant, v. John BENNETT, Net Management Services, L.L.C., Breakers Asset Holdings, A.V.V., I-Bill.Com, Inc., Epic/Paycom, Inc., CC Bill.Com, Inc., Steven Workman, Kenneth Knox, Fisher & Phillips, L.L.P., Richard J. Alan Cahan, and Becker & Poliakoff, P.A., Appellees.
    No. 4D06-25.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Rehearing Denied July 19, 2007.

      Edward T. Dinna of Law Office of Edward T. Dinna, L.L.C., Fort Lauderdale, for appellant.
    John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellees.
   WARNER, J.

The trial court dismissed Joseph El-kind’s complaint against attorney Kenneth Knox for failure to state a cause of action. In the complaint, Elkind alleged that Knox had represented him in a matter and then relayed confidential information to El-kind’s business associates which resulted in the loss of Elkind’s employment. The trial court dismissed the action because the confidential information was not relayed during the course of the representation. We hold that a lawyer breaches a legal duty owed to a client when the lawyer discloses confidential communications, and that an action for malpractice lies when the disclosure causes damage to the client. Although the trial court erred in its reasoning, the complaint was properly dismissed because Elkind failed to allege the disclosure of any confidential information. However, we reverse to give Elkind a last opportunity to amend his complaint.

A motion to dismiss is utilized to determine whether the complaint has alleged a cause of action upon which relief can be granted. Provence v. Palm Beach Taverns, Inc., 676 So.2d 1022, 1024 (Fla. 4th DCA 1996). When considering the merits of a motion to dismiss, a court is limited to the four corners of the complaint. Fresh Capital Fin. Servs., Inc. v. Bridgeport Capital Servs., Inc., 891 So.2d 1142, 1144 (Fla. 4th DCA 2005). The facts alleged in the complaint must be accepted as true and all reasonable inferences must be drawn in favor of the pleader. Id. Therefore, we recite the allegations of the complaint essential to determine the issue presented.

Elkind and a business associate, John Bennett, started a joint venture called Netvision Audiotext, now known as Net Management, which provides internet-related services. The venture hired the law firm of Fisher & Phillips, and specifically Kenneth Knox, to represent the venture, Bennett, and Elkind in a labor dispute brought by Victoria Garrett against the company, Bennett, and Elkind. The suit was one for harassment. Knox entered into an attorney-client relationship with the venture and with Elkind and Bennett individually. The matters involving Garrett were settled, and Knox signed the settlement on behalf of Elkind.

Elkind alleged that Knox had a duty to keep information learned from Elkind through the Garrett investigation confidential and not to use the information to El-kind’s detriment. Rather than keeping this information secret, approximately six months after the Garrett matter concluded, Knox wrote a letter to the trustees of Net Management, in which Knox revealed confidential information he learned from the prior representation of Elkind in the Garrett matter. Net Management, in turn, used this information to have Elkind fired from Net Management and removed from the venture, causing him damage. Elkind attached the offending letter to the complaint.

In dismissing the complaint, the trial court determined that Elkind had not stated a cause of action for legal malpractice because Knox had disclosed the confidential information obtained from Elkind after his representation of Elkind, and thus was not in privity with Elkind at the time of the disclosure. As privity is an essential element of a cause of action for legal malpractice, the trial court reasoned that the complaint should be dismissed for failure to allege privity. Elkind appeals.

“For a party to recover for legal malpractice, three elements must be proven: (1) the attorney was employed by or in privity with the plaintiffis); (2) the attorney neglected a reasonable duty to the client(s); and (3) the negligence proximately caused any loss to the plaintiffis).” Gresham v. Strickland, 784 So.2d 578, 580 (Fla. 4th DCA 2001). See also Brennan v. Ruffner, 640 So.2d 143, 145 (Fla. 4th DCA 1994) (“In a legal malpractice action, a plaintiff must prove three elements: the attorney’s employment, the attorney’s neglect of a reasonable duty and that such negligence resulted in and was the proximate cause of loss to the plaintiff.”).

Although Knox disputes employment, Elkind alleges that Knox was employed to be both his and the venture’s attorney and signed the Garrett release as his attorney. Therefore, at the time of the receipt of Elkind’s confidential information during the course of the Garrett matter, Knox was in privity with Elkind. Contrary to the trial court’s position, we find no authority which states that Knox must still have been in privity with Elkind when he disclosed the confidential information. Rather, Knox had a continuing duty to his client not to disclose confidences. See R. Regulating Fla. Bar 4-1.6 & 4-1.9(b). This duty continued even past the termination of the matter for which representation was sought.

In refusing to rely on the Bar rules as establishing a legal duty on Knox, the trial court noted that the Preamble to the Rules of Professional Responsibility provide that “[violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.” However, the Preamble also states, “[Nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty.” In other words, one must look to the substantive law to determine whether an attorney owes a legal duty to the client.

The relationship between an attorney and his or her client is a fiduciary relationship of the very highest character. Forgione v. Dennis Pirtle Agency, Inc., 701 So.2d 557, 560 (Fla.1997), receded from on other grounds, Cowan Liebowitz & Latman, P.C. v. Kaplan, 902 So.2d 755 (Fla.2005); In re Estate of Marks, 83 So.2d 853, 854 (Fla.1955) (“An attorney and client relationship is one of the closest and most personal and fiduciary in character that exists”). Our supreme court has recognized that disclosure of confidential information from a fiduciary relationship may state a cause of action. See Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002) (“Florida courts have previously recognized a cause of action for breach of fiduciary duty in different contexts when a fiduciary has allegedly disclosed confidential information to a third party. See Barnett Bank of Marion County, N.A. v. Shirey, 655 So.2d 1156 (Fla. 5th DCA 1995) (plaintiff entitled to damages for breach of fiduciary duty because bank employee disclosed sensitive financial information to a third party).”).

Other jurisdictions have also imposed liability on attorneys for disclosure of confidential information from a client. In Bevan v. Fix, 42 P.3d 1013 (Wyo.2002), the court held that breach of the fiduciary duties of confidentiality and loyalty gives rise to potential civil liability to the former client, and that breach of these duties should be treated as a malpractice action. Id. at 1029-30. See also Griffith v. Taylor, 937 P.2d 297 (Alaska 1997); Apple v. Hall, 412 N.E.2d 114 (Ind.App.1980); West Virginia Canine College, Inc. v. Rexroad, 191 W.Va. 209, 444 S.E.2d 566 (1994). In fact, the Bevan court addressed the very issue of this case and provisions of the Wyoming Rules of Professional Conduct which are nearly identical to those in Florida:

Appellee argues that paragraph [6] of the “Scope” section of the Rules of Professional Conduct prevents this court from recognizing those duties embodied within them when it proclaims:
Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached....
W.R.Prof.Cond. Scope ¶ 6.
We respond to this argument simply, by stressing “it is important to remember that attorneys’ fiduciary obligations substantially pre-date the ethical codes.” Mallen and Smith, Legal Malpractice, Adverse Representation § 17.3 Ethical Considerations. (5th ed. 2000) In fact, preservation of a client’s confidences has been described as the “bedrock principle of the Anglo-American legal system.” Id. at § 17.5 (quoting In re Complex Asbestos Litigation, 232 Cal.App.3d 572, 283 Cal.Rptr. 732 (1991)).

Id. at 1028. After an extensive examination of the history of the legal duty of attorney confidentiality, the court concluded that the duty of confidentiality constituted a legal duty of an attorney to a client long before it was included in the ethical rules, and its inclusion as an ethical rule did not thereby eliminate the tort. Id. (citing Maritrans GP Inc. v. Pepper, Hamilton, & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992)). The Bevan court also concluded that violation of this duty could be enforced through a claim of legal malpractice. Id. at 1029-30.

Because Florida also recognizes the fiduciary obligation of an attorney, we agree with Bevans that the mere inclusion of the duty of confidentiality in the Rules of Professional Responsibility does not prevent the breach of this duty from being enforced as a tort. Further, we also agree with Bevans that it may be enforced as an aspect of legal malpractice, as an essential element of the claim is the breach of a reasonable duty. See Gresham, 784 So.2d at 580. Therefore, we hold that a breach by an attorney of a duty of confidentiality to his or her client which causes damage to the client may be enforced by way of an action for legal malpractice.

Although the trial court erred in its reasoning, we conclude that the complaint in this case did not state a cause of action because it failed to allege the breach with particularity. Elkind states that Knox disclosed confidential information he learned in his representation of Elkind in the Garrett matter, and he specifically alleges those confidences were set forth in a letter from Knox to Net Management. The letter, however, does not appear to contain confidential information. The information relayed in the letter either occurred after the conclusion of the Garrett matter or was information disclosed to others by El-kind. Elkind must allege what confidence was breached and how its disclosure damaged Elkind. While Elkind has previously amended his complaint, he should be given one last opportunity, in light of our holding that a cause of action for disclosure of confidential information can be stated.

While Knox raises the issue of privity, the complaint sufficiently alleges employment to survive a motion to dismiss. Knox represented the joint venture, Elkind, and Bennett in the Garrett matter. Under Rule of Professional Conduct 4-1.7 such joint representation is not prohibited unless the representation is directly adverse between the clients, which the complaint does not allege. Further, the mere fact that Elkind may not have personally paid for Knox does not prevent the formation of an attorney-client relationship. See, e.g., R. Regulating Fla. Bar 4-1.7(e) (upon undertaking the representation of an insured client at the expense of the insurer, a lawyer has a duty to ascertain whether the lawyer will be representing both the insurer and the insured as clients); see also R. Regulating Fla. Bar 4 — 1.8(f) (stating requirements to be met before a lawyer may accept compensation from a third party for representation of client).

However, we do not address the extent to which any information obtained from Elkind regarding the Garrett matter and received by Knox is confidential with respect to the other clients. For instance, if Knox obtained information from Elkind that he had in fact harassed other employees, that information would be relevant to the defensibility of the Garrett suit and the liability of the company, making it questionable that disclosure of such information could ever be a breach of duty on the part of the attorney. The resolution of these issues must await an amended complaint which describes what information Elkind claims was disclosed in violation of the duty of confidentiality.

For these reasons, we reverse the dismissal of Elkind’s complaint and remand for entry of an order dismissing the complaint with leave to permit one final amended complaint.

GROSS and TAYLOR, JJ., concur.

      . Elkind also attempted to state a cause of action based upon conflict. However, his complaint is deficient on this ground, and he has not alleged how he was damaged other than by the disclosure of confidential information.


text:
    James David RITTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4859.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Richard F. Della Fera of Entin & Della Fera, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, James David Ritter, appeals his conviction and sentence for one count of grand theft of $20,000 or more, but less than $100,000. We affirm. However, our affirmance is without prejudice to Ritter raising his ineffective assistance of counsel claims in a post-conviction motion under Florida Rule of Criminal Procedure 3.850.

Affirmed.

WARNER, KLEIN and HAZOURI, JJ., concur.


author: GROSS, J.

text:
    Dominick CASAMASSINA, as Trustee and on behalf of the Marital Trust, and Lillian Casamassina, individually and as Personal Representative of the Estate of John Casamassina, deceased, Appellants, v. The UNITED STATES LIFE INSURANCE COMPANY IN the CITY OF NEW YORK and Judith Sams, Appellees.
    No. 4D05-4008.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Lawrence I. Bass of Law Office of Lawrence I. Bass, North Palm Beach, John P. Wiederhold of Wiederhold <⅞ Moses, P.A., West Palm Beach, and John L. Maloney of John L. Maloney, P.A., St. Petersburg, for appellants.
    Wendy S. Leavitt and Barbara Bolton Litten of Squire, Sanders & Dempsey, L.L.P., West Palm Beach, for appellee, The United States Life Insurance Company in the City of New York.
    Michael R. Holt of Rumberger, Kirk & Caldwell, Miami, for appellee, Judith Sams.
   GROSS, J.

United States Life Insurance Company issued a $500,000 life insurance policy to John Casamassina on November 6, 1997. Less than two weeks later, Casamassina was diagnosed with a brain tumor; he died on December 4, 1997. After U.S. Life denied the policy claim, the trust beneficiary of the policy and the widow filed suit. The circuit court granted summary judgment in favor of the defendants, concluding that the undisputed facts demonstrated that John “knowingly and intentionally made multiple, material misrepresentations regarding his medical history and condition and that, absent these multiple, material misrepresentations, U.S. Life would not have issued the Policy or would have issued the Policy on different terms.”

Finding that issues of fact remain as to the claim against U.S. Life, we reverse. We affirm the judgment in favor of another defendant, Judith Sams, who was sued for negligence, holding that she owed no legal duty to either John or appellants.

We state the facts in the light most favorable to appellants, Dominick Casa-massina, as Trustee of the John D. Casa-massina Marital Trust and Lillian Casa-massina, John’s widow and the personal representative of his estate.

Until December, 1996, John was an officer of a communications company. After John became self-employed, in May or June, 1997, Lillian requested that U.S. Life send her information about a life insurance policy to replace the former employer’s group life coverage that John had lost. Unrelated to this search for life insurance, in July, 1997, Lillian scheduled an appointment for John with her personal physician, Dr. Mark Rattinger. At his prior job, John underwent annual physical examinations. Lillian believed that John should continue with physicals after becoming self-employed. John did not have a personal physician, because, according to Lillian, “he was never sick with anything.”

8/5/97 Visit to Dr. Poet

In August, 1997, John experienced headaches and sinus congestion. While vacationing in New Jersey, Lillian scheduled an August 5 appointment for John with Dr. Albert Poet, an ear, nose and throat specialist. Lillian noticed that John was “all congested” and “sneezing every minute.” She thought that the doctor might give her husband a prescription that would relieve his symptoms for the drive home to Florida.

On Dr. Poet’s medical history form, John checked off that he had nasal discharge, sinus problems, and a frequent sore throat. He also indicated that he had experienced dizziness and blurred or double vision. On a separate dizziness questionnaire, John disclosed that he first began to experience daily “attacks or episodes” of dizziness three weeks before; the attacks occurred in the morning and lasted one to two hours. During the dizziness episodes, John indicated that he experienced the following sensations when dizzy: lightheadedness, swimming sensation in the head, tendency to fall to the right and the left, balance problems when walking, headache, nausea or vomiting, and pressure in the head.

Dr. Poet suspected that John was suffering from benign positional vertigo, discussed this diagnosis with him and gave him a “Vertigo booklet.” The doctor also gave John a nose spray and said “You’ll be okay.”

8/11/97 Appointment with Dr. Rattinger

After his return to Florida, John saw Dr. Rattinger for the physical that Lillian had previously scheduled. The doctor had never before treated John. He told the doctor that he felt congested, that he had moderate to severe headaches, and that he wondered whether his symptoms had to do with his eyes. In his record of this visit, Dr. Rattinger reported:

[John Casamassina] [i]s a very pleasant 43 year old white gentleman who for the past three to four weeks has been having moderate to severe posterior occipital headaches. Initially waking him up from sleep though they are not at the present time. He has also noticed there has been some decrease in visual acuity in his right eye for about six weeks. He initially had nausea and vomiting though this, too has improved. There is no history of head trauma or prior history of serious headaches in him or his family-

Dr. Rattinger formed an impression that the headaches were “probably stress tension” and prescribed Flexeril, a muscle relaxer. However, he also “[n]eed[ed] to rule our other etiologies,” so he recommended that John undergo a “head MRI with special attention to the posterior occipital region.” The doctor also ordered blood work and a chest x-ray and sent John to an eye doctor to try and eliminate another potential cause of headaches. Dr. Rattinger then wrote:

I will see John back in several weeks. In the meantime, I am trying to do my best to get him to do hot massages at night, relaxation therapy and will have him take Flexeril tablet at bedtime.

8/13/97 Appointment with Eye Doctor Costello

John’s appointment with the eye doctor, S.L. Costello produced no information related to the headaches. The doctor diagnosed John with mild astigmatism in the right eye.

St. Mary’s MRI

John was not enthused about going for the MRI recommended by Dr. Rattinger. He told Lillian that the test was “just doctors looking to make money. There is nothing wrong with me.”

Shortly after the office visit with Dr. Rattinger, John went to St. Mary’s Hospital for an MRI. However, he refused to complete the test, stating that he was claustrophobic. Back at home, Lillian called Dr. Rattinger’s office to ask if the MRI should be rescheduled since John was no longer experiencing headaches. The office told Lillian that it would not be necessary to reschedule the MRI; as Dr. Rattinger later remembered

[s]ince Mr. Casamassina’s symptoms had completely resolved, and since he gave a history of severe claustrophobia when he attempted to get an MRI, I did not press him to proceed with this, but merely told him to contact me should his symptoms recur.

9/19U997 Visit to Dr. Rattinger

On September 19, 1997, John returned to Dr. Rattinger for a follow-up appointment. He told the doctor that he was feeling fine. The doctor noted in his records that John’s “headaches had resolved. He is feeling well. He was unable to do the MRI because of claustrophobia. He has no complaints today.” Lillian asked whether the MRI should be rescheduled; the doctor said that it was not necessary unless John’s headaches returned.

9/19/1997 Meeting With Judith Sams for Life Insurance Medical Examination

On the same day as the Rattinger appointment, the Casamassinas met at their home with Judith Sams for the basic medical examination and to complete part B of his life insurance application with U.S. Life. Sams was a licensed medical assistant working for Portamedic, a company that provides medical examination services to U.S. Life and other companies in connection with life insurance applications. After receiving an examination request, Portamedic typically would contact one of its examiners, who would arrange with the insurance applicant for an appointment.

Sams had completed many health history reports for U.S. Life. Although she did not remember anything about her meeting with John, Sams testified at her deposition that it was her practice to read the health questions on an application form verbatim and to record an applicant’s full and complete response to each question; if discrepancies existed between answers on the form, she would not have attempted to reconcile them.

In response to question 1(c) of the application, John responded that he saw Dr. Rattinger for headaches in August, 1997 and was prescribed Flexeril.

Question 7 on the form asked whether John had ever been treated for or had any known indication of various physical conditions. “Headache” was one of the conditions listed in question 7.a. John asked for clarification on how to answer that question, since he had already indicated in response to question 1 that he had consulted with Dr. Rattinger for headaches, and that he did not have convulsions, epilepsy or paralysis. Sams replied that in answering application questions, John “did not have to repeat conditions previously mentioned or disclosed.” She explained that what U.S. Life was looking for was whether John had had a long history of headaches; since the headaches he experienced had only recently begun, he did not need to respond affirmatively to question 7.a.

After Sams’s explanation, John’s response to question 7 indicated that he had never “been treated for” or “had any known indication of’:

a. convulsions, epilepsy, paralysis, neuritis, sciatica, nervous breakdown, headache, dizziness, fainting spells, speech defect, nervous or mental disorder[.]
d. recurrent indigestion, ulcer, colitis, diverticulitis, hernia, internal bleeding, appendicitis, disorder of stomach, liver, digestive or abdominal orgaiis[.]
g. impairment of vision or hearing or disorder of eyes, ears, nose or throat[.]

John’s answer to question 7.a. failed to take into account the dizziness that John described for Dr. Poet on August 5. Also, in response to question 10, John responded that within the past 5 years, he had not (a) had not had any mental or physical disorder not listed above, (b) had a checkup, consultation, illness, injury, or surgery, and (c) been advised to have any diagnostic test other than an HIV test, hospitalization, or surgery which was not completed.

John signed the application with this declaration:

I hereby declare that, to the best of my knowledge and belief, the information given above is correctly recorded, complete, and true, and I agree that the Company [US Life], believing it to be true, shall rely and act upon it accordingly.

(Emphasis added).

11/6/97 Issuance of Policy

On November 6, 1997, U.S. Life issued John a $500,000 life insurance policy.

11/7/97 Follow Up Visit to Dr. Rattinger

One day after the policy issued, John met with Dr. Rattinger for a follow-up visit. He complained that for “the last month,” when he woke up in the morning and sat up, he got dizzy and nauseated; the feeling went away gradually and he then felt fíne for the rest of the day. Dr. Rattinger was concerned that if the symptoms continued, he might recommend a head MRI to rule out posterior circulation abnormalities. The doctor sent John for an upper GI series and a gall bladder scan, which came back negative.

11/19/97 MRI

A November 19 MRI revealed that John had a large brain tumor. Dr. Rattinger told the Casamassinas that the tumor was the cause of John’s symptoms. This was the first time that the Casamassinas learned of the seriousness of John’s medical condition.

12/1/97

John died following an unsuccessful operation to remove the tumor.

Policy Claim and U.S. Life’s Declination

The trustee of John’s marital trust, the beneficiary of the policy, submitted a claim for policy benefits. After investigating the claim, U.S. Life rescinded the policy on the ground that John had made material misrepresentations in his application. The company’s letter to the trustee’s attorney explained that had John disclosed that he had been experiencing headaches, nausea, vomiting, a decrease in visual acuity and that he had been ordered to undergo an MRI, U.S. Life would have “required the results of the MRI before a decision was made and once the results were received,” ultimately would not have issued the policy.

The Lawsuit

By an amended complaint, appellants sued U.S. Life and Judith Sams. Count I is a breach of contract claim against U.S. Life. Count II is a negligence claim against Judith Sams and U.S. Life, contending that U.S. Life is vicariously liable for the actions of Sams.

The nut of the negligence claim against Sams concerned her failure to correctly record John’s responses at the September 19, 1997 interview. The count alleged Sams’s legal duty to John to “correctly record the responses” John gave to the application questions and claimed that Sams “negligently failed to record the answers” John gave. The pleading specified the negligence as Sams’s report that John’s response to question 7a was that he had not been treated for headache, when John actually told Sams that “he had recently seen Dr. Rattinger for a physical and that during the physical he revealed ... recent episodes of headaches for which Dr. Rattinger prescribed Flexeril.” The count alleged that U.S. Life refused to honor the policy as a result of these incorrect answers.

The Circuit Court Properly Considered John’s Medical Records in Ruling on the Summary Judgment

Appellants’ first attack the trial court’s reliance on John’s medical records in granting summary judgment. They argue that “the alleged records of Dr. Poet, Dr. Costello and Dr. Rattinger, as well as the alleged records of Harbourview Imaging, Dr. Grabel, Good Samaritan Medical Center and Palm Beach Pathology should not have been considered.”

We reject this argument. Appellants filed their case in October, 1999. John’s medical condition and what he knew about it have always been the central fact issues in the case. There is no indication that the records at issue are not what they purport to be. See Mims v. Old Line Life Ins. Co. of Am., 46 F.Supp.2d 1251, 1260 (M.D.Fla.1999). “[A]uthentication or identification of evidence is required as a condition precedent to its admissibility.” § 90.901, Fla. Stat. (2006). “Evidence is authenticated when prima facie evidence is introduced to prove that the proffered evidence is authentic.” ITT Real Estate Equities, Inc. v. Chandler Ins. Agency, Inc., 617 So.2d 750 (Fla. 4th DCA 1993). Authentication by circumstantial evidence is permissible; “evidence may be authenticated by appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with the circumstances.” Id. at 751. A court may consider circumstances of discovery in determining prima facie authenticity. See U.S. v. Elkins, 885 F.2d 775 (11th Cir.1989); U.S. v. Dumeisi, 424 F.3d 566 (7th Cir.2005). The trial court has great latitude in determining whether the proponent of evidence has met the burden of establishing a prima facie case of authenticity. E.g., State v. Love, 691 So.2d 620 (Fla. 5th DCA 1997). Appellants released some of the records in their original claim to U.S. Life. Dr. Poet’s records were produced in response to a court-ordered authorization form. Declarations of authenticity filed by U.S. Life complied with the requirements of section 90.803(6)(a), Florida Statutes (2006), which provides that the foundation for the admission of business records may be shown “by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.” Florida Rule of Civil Procedure 1.510(e) allows “affidavits to be supplemented.” This was not a case where the party opposing summary judgment had never seen the exhibits relied upon to grant summary judgment.

The Circuit Court Erred in Entering Summary Judgment for U.S. Life

Pursuant to Rule 1.510(c) of the Florida Rules of Civil Procedure, an entry of summary judgment is proper “if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact, for the purpose of a summary judgment motion, “ ‘is a fact that is essential to the resolution of the legal questions raised in the case.’ ” Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 302 n. 4 (Fla. 4th DCA 1995) (quoting Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991)). Because the propriety of the entry of summary judgment is a question of law, the applicable standard of review is de novo. See Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001); Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla.2000). Where credibility issues impact the determination of material facts, summary judgment is not appropriate. See Kuczkir v. Martell, 480 So.2d 700 (Fla. 4th DCA 1985).

Under section 627.409, Florida Statutes (1997), an insurer may rescind an insurance policy on the grounds of misrepresentation if it can prove:

(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by the insurer.
(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.

U.S. Life cites federal cases favorable to its position. However,

[t]o the extent that the federal cases permit summary judgment based on Federal Rule of Civil Procedure 56 as interpreted in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), they are of limited prece-dential value in Florida summary judgment cases. Florida places a higher burden on a party moving for summary judgment in state court, requiring the movant to: “[S]how conclusively that no material issues remain for trial.”

Byrd v. BT Foods, Inc., 948 So.2d 921, 923-24 (Fla. 4th DCA 2007) (quoting Visingardi v. Tirone, 193 So.2d 601, 604 (Fla.1966)).

Under the statute, the general rule is that “a misstatement in, or omission from, an application for insurance need not be intentional before recovery may be denied pursuant to 627.409.” Kieser v. Old Line Life Ins. Co. of Am., 712 So.2d 1261, 1263 (Fla. 1st DCA 1998). If this rule applied, we would affirm. However, the general rule is inapplicable here because John’s signed application contained the declaration that the information given was “correctly recorded, complete, and true” “to the best of my knowledge and belief.”

Because of this wording in the application, under Green v. Life & Health of America, 704 So.2d 1386 (Fla.1998), the “less stringent ‘knowledge and belief standard set forth in the insurance application controls over the strict standard set forth in section 627.409(1).” GRG Transport, Inc. v. Certain Underwriters at Lloyd’s London, 896 So.2d 922, 925 (Fla. 3d DCA 2005). Application of this standard means that an omission or misrepresentation in an insurance application, when the application is completed to the best of the applicant’s knowledge and belief, is not a basis for rescission of a policy. Like fraud cases, summary judgment is rarely proper in “knowledge and belief’ cases because the issue usually “turns on the axis of the circumstances surrounding the complete transaction, including circumstantial evidence of intent and knowledge.” Cohen v. Kravit Estate Buyers, Inc., 843 So.2d 989, 991 (Fla. 4th DCA 2003). “[C]onflicting inferences from the record about intent or understanding are best left for the jury and [are] not appropriate for summary judgment.” Bruno v. Destiny Transp., Inc., 921 So.2d 836, 844 (Fla. 2d DCA 2006).

There is authority stating that the “knowledge and belief’ test under Green requires a showing that an insured intentionally made the representations that an insurance company claims as grounds for rescission. See Kieser, 712 So.2d at 1263; Mims, 46 F.Supp.2d at 1254. This test misses the mark — a person’s misrepresentations or omissions from an insurance application may fail to meet the knowledge and belief standard, without being intentional.

Green cited with approval William Penn Life Insurance Co. of New York v. Sands, 912 F.2d 1359 (11th Cir.1990); we agree with the test set forth in Sands for evaluating whether an insured’s responses to questions in an insurance application were given according to the best of his knowledge and belief:

[T]he twin qualifiers [knowledge and belief] require[] that knowledge not defy belief ... What the applicant in fact believed to be true is the determining factor in judging the truth or falsity of his answer, but only so far as that belief is not clearly contradicted by the factual knowledge on which it is based. In such event, a court may properly find a statement false as a matter of law, however sincerely it may be believed. To conclude otherwise would be to place insurance companies at the mercy of those capable of the most invincible self-deeeption — persons who having witnessed the Apollo landings, still believe the moon is made of cheese.

Sands, 912 F.2d at 1365 (quoting Skinner v. Aetna Life & Cas., 804 F.2d 148, 151 (D.C.Cir.1986)).

The circumstances surrounding John’s insurance application certainly raise questions about what he knew and when he knew it. One view of the record is that appellants have filled in gaps to manufacture a case to avoid summary judgment. Still, we are precluded from passing on the credibility of Lillian’s version of the facts and find that application of the “knowledge and belief’ standard in this case is a jury question. In the light most favorable to appellants, John’s answers to question 7.a. were impacted by Sams’s explanation that the question did not call for conditions disclosed in answer to another question or for which there had not been a long history. The failure to disclose the St. Mary’s MRI episode could fall within the “knowledge and belief’ standard due to Dr. Rat-tinger’s withdrawal of the MRI order in light of John’s complete absence of physical complaints on September 19. In the light most favorable to John, on the day of the insurance application all his symptoms had resolved, he had no complaints, and he was a picture of perfect health. A jury could find that the failure to disclose the Dr. Poet visit in response to question 10.b., taken alone, would not be fatal to the claim, since adequate disclosure — that John received nose drops after consulting Poet for congestion and sneezing — would not have put a careful insurer on notice that further inquiry was warranted to adequately gauge the risk of issuing a policy.

The Circuit Court Properly Entered Summary Judgment in Favor of Sams

We affirm the circuit court’s grant of summary judgment as to Sams, concluding that Sams owed no legal duty to John or appellants. One “way of framing the issue of duty is to ask whether a defendant stood in a ‘relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiffs benefit.’ ” Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co., 715 So.2d 343, 344 (Fla. 4th DCA 1998) (quoting W. Page Keeton ET. AL., PROSSER AND KEETON ON THE LAW OF Torts § 42, at 274 (5th ed.1984)).

Sams acted as an agent of the insurance company to fill in the insurance application. Her “act in doing so [was] the act of the company.” Stix v. Cont'l Assur. Co., 147 Fla. 783, 787, 3 So.2d 703, 704 (1941). If Sams negligently misled John in the application process, the insurance company is “estopped” from relying on resulting errors in the application to deny or revoke coverage. Columbian Nat. Life Ins. Co. v. Lanigan, 154 Fla. 760, 767, 19 So.2d 67, 70 (1944); see Mass. Bounding & Ins. Co. v. Williams, 123 Fla. 560, 566-68, 167 So. 12, 14-15 (1936). As an agent for the insurance company in what amounts to a contract negotiation, Sams did not owe any negligence-based duty to persons negotiating on the other side. See City of Miami Beach v. Dickerman Overseas Contracting Co., 659 So.2d 1106 (Fla. 3d DCA 1995); Assad v. Mendell, 511 So.2d 682 (Fla. 3d DCA 1987); Adams v. Chenowith, 349 So.2d 230 (Fla. 4th DCA 1977).

We find. the undertaker’s doctrine of Clay Electric Cooperative v. Johnson, 873 So.2d 1182, 1186 (Fla.2003) to be inapplicable; this is not a case involving “physical harm” within the meaning of Section 323 of the Restatement (Second) of Torts (1965). Also, we distinguish this case from the “contract-based negligence claims” referred to in Clay, id. at 1186, n. 6, because Sams was neither engaged to perform a service reasonably expected to be relied upon by a stranger to the engagement, see First Am. Title Ins. Co. v. First Title Serv. Co. of the Florida Keys, Inc., 457 So.2d 467, 472 (Fla.1984); A.R. Moyer, Inc. v. Graham, 285 So.2d 397 (Fla.1973); Smith Eng’g & Constr. Co. v. Cohn, 94 So.2d 826, 828 (Fla.1957), nor does this case fall under Section 552 of the Restatement (Second) of Torts, see First Fla. Bank, N.A. v. Max Mitchell & Co., 558 So.2d 9, 12 (Fla.1990).

The final summary judgment in favor of Judith Sams is affirmed; the judgment in favor of U.S. Life is reversed and remanded to the circuit court.

WARNER and TAYLOR, JJ., concur.

      . "When reviewing a ruling on summary judgment, an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party.” Byrd v. BT Foods, Inc., 948 So.2d 921, 923 (Fla. 4th DCA 2007) (quoting City of Lauderhill v. Rhames, 864 So.2d 432, 434 n. 1 (Fla. 4th DCA 2003)).


author: SHAHOOD, J.

text:
    Avi NUNEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3077.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Ronald S. Lowy and Clayton R. Kaeiser of Lowy & Cook, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, James J. Carney and Claudine M. LaFranee, Assistant Attorneys General, West Palm Beach, for appellee.
   SHAHOOD, J.

Avi Nunez (“appellant”) was found guilty by a jury of burglary with a battery and lewd or lascivious molestation. The charges followed an incident in which appellant entered a neighbor’s apartment while only the fourteen-year-old daughter was home and attempted to have sex with her. Appellant raises challenges based on allegedly improper collateral crimes evidence, the court’s decision to sustain an objection by the State during defense counsel’s closing argument, and the trial court’s failure to hold a Richardson hearing prior to the admission of photographic evidence. We find no reversible error and affirm.

Appellant claims that the trial court erred in allowing the victim to testify that appellant offered her cocaine prior to making sexual advances. Appellant contends that this was improper collateral crimes evidence with no connection to the charge the jury had to resolve. We disagree.

The victim testified that appellant knocked on the door and made his way past her inside the apartment after she opened it. Appellant offered the victim cocaine and she refused. Appellant then asked her if she wanted to have sex with him. The victim refused, but appellant chased her into the bedroom, pushed her onto the bed, and committed the sexual touching. Under the facts in this case, we hold that appellant’s offer of cocaine to the victim immediately prior to the molestation was inextricably intertwined with the charged crime. See Griffin v. State, 639 So.2d 966, 968 (Fla.1994); Vail v. State, 890 So.2d 373, 376 (Fla. 3d DCA 2004). The trial court did not abuse its discretion in admitting the testimony.

Appellant also argues that the trial court erred in failing to hold a Richardson hearing after the prosecution introduced photographs into evidence at trial that it had not provided to the defense during discovery. The photographs depicted the apartment where the crime took place and the victim’s injuries. Having reviewed the photographs in question, we hold that the defense was not procedurally prejudiced by the State’s discovery violation and any error was harmless. See Scipio v. State, 928 So.2d 1138, 1143 (Fla.2006); State v. Schopp, 653 So.2d 1016, 1020-21 (Fla.1995).

Appellant’s final argument is that the trial court erred in sustaining the State’s objection to defense counsel’s comment during closing arguments that the victim must have had some experience with cocaine. This issue was not preserved and we therefore decline to address it.

Affirmed.

GROSS and MAY, JJ., concur.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


text:
    Christopher MATHEWS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-562.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Christopher Mathews, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Christopher Mathews appeals the trial court’s summary denial of his motion for leave to re-file his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court denied relief on the basis that the motion was untimely. Because a factual question exists as to whether appellant’s motion was timely filed, we reverse and remand for the trial court to hold an evidentiary hearing.

On November 28, 2000, appellant was found guilty by jury of dealing in stolen property and giving false information to a pawnbroker. His judgment and sentence, entered on January 19, 2001, became final when this court issued a mandate affirming his judgment and sentence on March 22, 2002. Thus, the time for filing a rule 3.850(a) motion expired on March 22, 2004.

On September 14, 2006, appellant filed a motion to “re-file” his motion for postcon-viction relief. He alleged that he originally filed a timely motion for relief by delivering it to prison officials on March 8, 2002. The trial court could find no record of appellant having filed any postconviction motions in this case. However, the record contained two inquiries appellant sent to the Clerk of Court claiming that he had filed a postconviction motion. In one inquiry sent to the clerk on August 25, 2006, appellant claimed that he had filed a post-conviction motion on August 2, 2004 “under the mailbox rule.” In another inquiry, sent on September 5, 2006, appellant asserted that the date of his postconvietion motion was February 8, 2004. The trial court determined that “more than four years have passed since the defendant s judgment and sentence became final. More than two years passed before the Defendant inquired into the status of the postconviction motion he claims to have filed.” Citing Parker v. State, 907 So.2d 694 (Fla. 4th DCA 2005), the court found that good cause did not permit appellant to file an untimely 3.850 motion and that his failure to file a timely motion was not a result of excusable neglect.

Parker explained the good cause and excusable neglect standards which must be met for a defendant to be granted leave to file a belated rule 3.850 motion after the two-year deadline. Here, however, appellant is not requesting to file a belated rule 3.850 motion. Rather, he is claiming to have timely filed a rule 3.850 motion and, in this motion, is requesting to re-file it because it was apparently lost or misplaced after he delivered it to prison officials. He alleges that his father has a certificate of service for the motion dated March 8, 2002.

Because appellant’s allegation that he timely filed the original motion under the mailbox rule is a facially sufficient claim requiring an evidentiary hearing, we reverse and remand for the trial court to hold an evidentiary hearing. See Pagan v. State, 899 So.2d 1203 (Fla. 2d DCA 2005); Jones v. State, 785 So.2d 561 (Fla. 2d DCA 2001); Bray v. State, 702 So.2d 302 (Fla. 1st DCA 1997).

Reversed and Remanded with directions.

POLEN, TAYLOR and MAY, JJ., concur.

      . In his motion for rehearing, appellant stated that the certificate of service is dated February 8, 2004.


text:
    Royal JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1836.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Royal Jackson, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order denying appellant’s motion for postconviction DNA testing as being legally insufficient. Appellant in fact alleges that DNA testing was done but that the results were negative and not shown to the jury. His motion appears to go more to a potential claim for postconviction relief under Rule 3.850, yet it is untimely for that relief. See Fla. R.Crim. P. 3.850(b).

WARNER, FARMER and TAYLOR, JJ., concur.


text:
    Theodore WILLIAMSON a/k/a Theodore Jaworski, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1840.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Theodore Williamson a/k/a Theodore Ja-worski, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, David M. Schultz and Melanie Dale Surber, Assistant Attorneys General, West Palm Beach, for appellee.
   On Mandate from the Florida Supreme Court.

PER CURIAM.

The opinion of October 9, 2002, is withdrawn and the following is substituted therefor.

Theodore Williamson, also known as Theodore Jaworski, entered a guilty plea on February 11, 1993, in exchange for a time-served sentence and one year of probation. Thereafter, the State used this prior conviction to enhance a subsequent conviction sentenced on December 3, 1993. In March 2001, Williamson sought a writ of error coram nobis, claiming, in part, that his attorney affirmatively misadvised him of the future, collateral consequences of the February 1993 plea. In Jaworski v. State, 828 So.2d 1046 (Fla. 4th DCA 2002), quashed by State v. Williamson, 957 So.2d 558 (Fla.2007), we reversed and noted conflict as to this issue. The State sought review in the supreme court.

The supreme court recently granted relief to the State, quashed our ruling, and remanded for further consideration in light of Bates v. State, 887 So.2d 1214 (Fla.2004), and State v. Dickey, 928 So.2d 1193 (Fla.2006). See State v. Williamson, 957 So.2d 558 (Fla.2007). We recognize the claim of affirmative misadvice concerning the collateral consequences of the plea has no merit under Dickey, but we affirm the denial of the petition because it was untimely filed under Bates. Because Williamson was in custody from December 1993 until the time he filed his petition, he was required to comply with the two-year limitations period under rule 3.850. The petition, filed in 2001, was untimely under rule 3.850 and could not be considered as a petition for writ of error coram nobis.

Affirmed.

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


text:
    David Michael PAYNE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2001.
    District Court of Appeal of Florida, First District.
    June 21, 2007.
    David Michael Payne, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to this Court’s order of May 9, 2007, the appeal is hereby dismissed for lack of jurisdiction. See Frazier v. State, 766 So.2d 459 (Fla. 1st DCA 2000).

DISMISSED.

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    Michael TAYLOR, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-0363.
    District Court of Appeal of Florida, First District.
    June 21, 2007.
    Michael Taylor, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee; and Connie L. Beach, Holly N. Simcox, and Chris Korn, Assistant General Counsels, Department of Corrections, Tallahassee, for Appellees.
   PER CURIAM.

The appellee has conceded that under Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), the circuit court erred in ordering a lien on the appellant’s inmate trust account for filing fees associated with his petition for writ of mandamus challenging his award of basic gain time. The denial of the motion to vacate the lien is therefore REVERSED and the case is REMANDED to the trial court with instructions to vacate the lien.

BARFIELD, KAHN, and PADOVANO, JJ., concur.


text:
    W.T. PARKER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4858.
    District Court of Appeal of Florida, First District.
    June 21, 2007.
    W.T. Parker, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied on the merits. We also deny petitioner’s request to quash the circuit court’s order on indigency for filing the petition for writ of mandamus below. There is nothing in the record to show that petitioner requested relief from that order by filing a proper motion in the circuit court, therefore, petitioner waived the issue. Norman v. Fla. Parole Comm’n, 957 So.2d 697 (Fla. 1st DCA 2007); Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007).

However, pursuant to Florida Rule of Appellate Procedure 9.430, we quash the circuit court’s order imposing a lien for costs and fees incurred in this appellate proceeding and direct the circuit court to order reimbursement of any funds that have been withdrawn from petitioner’s inmate trust account to satisfy the improper appellate fee lien order. Wheeler v. McDonough, 957 So.2d 94 (Fla. 1st DCA 2007); Reddick v. McDonough, 938 So.2d 595 (Fla. 1st DCA 2006). Because petitioner challenged the loss of gain time, the proceeding below qualified as a “collateral criminal proceeding” under Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), and there is no authority for imposing a lien under section 57.081, Florida Statutes (2006), the general indigency statute. Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    Robert JOHNSON, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-5291.
    District Court of Appeal of Florida, First District.
    June 21, 2007.
    Robert Johnson, pro se, Petitioner.
    Kim M. Fluharty, General Counsel, and Connie Lynn Beach, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the denial of a petition for writ of habeas corpus under Sheley v. Florida Parole Commission, 720 So.2d 216 (Fla.1998). Because the facts of this case are substantially similar to Mathis v. Florida Parole Commission, 944 So.2d 1182 (Fla. 1st DCA 2006), we grant the petition for writ of certiorari.

Petitioner was placed on conditional release supervision until May 3, 2007. The Department of Corrections issued a violation report asserting that petitioner violated a condition of supervision on May 18, 2006, when he attempted to remove a satellite radio from his employer’s place of business. Petitioner admitted to the violation stating that he took the radio because he was in desperate need of money. Although petitioner was found guilty of the violation, the hearing examiner cited petitioner’s two-year record of no violations and recommended that petitioner be reinstated to supervision with six months of community control and GPS monitoring. Nonetheless, the Parole Commission revoked petitioner’s conditional release.

Neither the hearing examiner’s disposition recommendation nor the Parole Commission’s revocation order contained a finding that petitioner’s action constituted a willful violation of a substantial condition of conditional release supervision. In Mathis, this court held that absent such a finding, the circuit court could not have reviewed the proceedings and determined that they were supported by competent substantial evidence and, because the circuit court did not apply the correct law, it could not have observed the essential requirements of the law. Accord Houck v. Fla. Parole Comm’n, 958 So.2d 692 (Fla. 1st DCA 2007); Williams v. Fla. Parole Comm’n, 949 So.2d 1180 (Fla. 1st DCA 2007); Crosby v. Fla. Parole Comm’n, 949 So.2d 1181 (Fla. 1st DCA 2007). Accordingly, we grant the petition, quash the circuit court’s order and remand for further proceedings.

PETITION GRANTED.

KAHN, LEWIS, and HAWKES, JJ„ concur.


text:
    James P. ANDERSON, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-6303.
    District Court of Appeal of Florida, First District.
    June 21, 2007.
    James P. Anderson, pro se, Petitioner.
    Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petitioner seeks to invoke this Court’s certiorari jurisdiction to challenge the Department of Corrections’s recalculation of his maximum sentence expiration date following revocation of his conditional release supervision. The petitioner has not demonstrated that the circuit court departed from the essential requirements of the law by denying his petition for writ of mandamus and we therefore deny the petition on this ground.

However, the petitioner’s argument that the circuit court departed from the essential requirements of the law when it ordered a lien placed on his inmate trust account to pay the mandamus petition filing fee has merit. The petitioner’s challenge to the recalculation of his maximum sentence expiration date, which effectively lengthened his sentence, is a collateral criminal proceeding which thus exempts the petitioner from the Prisoner Indigency Statute. See Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2004) (“It is clear that the Supreme Court has refused to be bound by the variations in terminology used in various challenges to the computation of an inmate’s sentence. Instead, it has looked to the effect the challenged action had on the amount of time an inmate has to actually spend in prison.”)

Accordingly, the petitioner’s petition is DENIED in part, GRANTED in part, and REMANDED with directions to remove the lien from the petitioner’s inmate trust account and to refund any funds removed from the account to pay the mandamus petition filing fee.

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    Rhonda and Ronald WEBB, Petitioners, v. THOMAS MAY CONSTRUCTION COMPANY, Respondent.
    No. 1D07-1021.
    District Court of Appeal of Florida, First District.
    June 21, 2007.
    Benjamin E. Richard, Esquire, Curry G. Pajcic, Esquire, and Stephen J. Pajcic, Esquire of Pajcic & Pajcic, P.A., Jacksonville, for Petitioners.
    David A. Corso, Esquire of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is granted and the order requiring Rhonda Webb to submit to a psychological evaluation is quashed. See Fla. R. Civ. P. 1.360(a)(1) (2007) (“A party may request any other party to submit to ... examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.”) (emphasis supplied). See also Olges v. Dougherty, 856 So.2d 6, 12 (Fla. 1st DCA 2003) (“[O]nce [Mrs. Webb] abandoned h[er] original efforts to recover damages for mental anguish ..., h[er] mental condition ceased to be ‘in controversy’ as contemplated by [Rule 1.360(a)(1) ].”).

ALLEN, WEBSTER, and BENTON, JJ., concur.