author: COPE, C.J.

text:
    The STATE of Florida, Appellant, v. Donald T. ROY, Sr., Appellee.
    No. 3D04-2573.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 2006.
    Rehearing and Rehearing En Banc Denied Jan. 11, 2007.
    Charles J. Crist, Jr., Attorney General; and William J. Selinger, Assistant Attorney General, for appellant.

      Harry M. Solomon, Miami, for appellee.
    Before COPE, C.J., SHEPHERD and ROTHENBERG, JJ.
   COPE, C.J.

The State of Florida appeals the dismissal of the information filed against Donald T. Roy, Sr. (“Roy”) pursuant to a sworn motion to dismiss. We remand for further proceedings.

The criminal charges in this case arose out of a confrontation which occurred when two police officers entered the fenced and posted back yard of defendant/appellee Roy at 1:15 a.m. The officers had been dispatched to investigate a disturbance call complaining of loud talking, and entered defendant’s property illegally. An altercation ensued between defendant and the officers, resulting in the defendant being charged by information with two counts of battery (counts 1 and 2), one count of battery on a law enforcement officer (count 3), and one count of resisting an officer with violence (count 4).

The defendant filed a sworn motion to dismiss the charges. The defendant asserted that the officers’ entry into his fenced back yard without a warrant was illegal. According to the defendant, the fact that the entry was illegal meant that the officers were not engaged in the lawful execution or performance of a legal duty. The defendant contended that this meant the state could not establish an essential element of the two felony charges. The defendant maintained that the illegal entry also tainted the misdemeanor counts.

The defendant’s sworn motion to dismiss stated the facts as follows:

Factual Background
2.This incident began on January 7, 2004 at about 1:15 a.m. when Officer Antoine, backed up by Officer Condy, was dispatched on a disturbance call of loud talking at an address located at 12002 NE 8th Avenue, Biscayne Park, Florida.
3. When Antoine and Condy arrived at that address, the lights were out and nothing was going on. Antoine and Condy heard voices coming from a home one or two houses away and decided to investigate.
4. Antoine and Condy walked south on 8th Avenue and ultimately heard the voices coming from the backyard of Roy’s house, located at 11942 NE 8th Avenue, Biscayne Park. They went to the front door where Officer Antoine, choosing to ignore the lighted doorbell, knocked with his flashlight. After receiving no response, Antoine and Condy proceeded to walk to the left side of the home, since they had determined that the noise was coming from the back yard.
5. In order to enter the back yard of the home, it is necessary to open a gate which is part of a fence that shields the back yard from public view. This gate contains three or four signs warning against trespassing. Antoine and Condy ignored the warnings, opened the gate and walked into the back yard.
6. According to Antoine, he ignored the “no trespassing” signs because “as a police officer in the scope of my duties, that sign doesn’t apply to me.” Antoine testified that he had a right to enter the property notwithstanding the signs to investigate the allegations of “disturbance, loud talking”.
7. Once inside the back yard, upon inquiry by Roy as to the reason for their presence on his property, the police informed him and his friend, Rodney Simpson, who had been sitting on the back porch, that they were police officers responding to a disturbance call. Roy responded: “Well, I’m in my yard. Get the fuck out of my yard.”
8. According to Antoine, he replied to Roy’s statement with the following: “We’re here on a disturbance call and we are conducting an investigation and there’s a complaint that there’s loud talking in this area and this is the only house that there is loud talking coming from.” Antoine testified that Condy also told Roy: ‘We’re here for a reason, and we have every right to be here ...”
9. In response to Roy’s continuous requests to the officers that they leave his property, Antoine continued to confront him because “there was a problem at hand and as a police officer I have my job, my duties ...” According to Antoine, he remained and explained to Roy “approximately 8 times that the loud talking coming from his yard was bothering his neighbors.”
10. Antoine then told Roy: “[Yjou’re being disorderly ... you’re making this a serious issue ... you can be arrested for it.”
11. According to Antoine, in response Roy again told Antoine to “get the fuck out” and then “slapped [Antoine’s] left hand with the back of his right hand with force.”
12. As Antoine reached for his handcuffs to begin the arrest process: “[Roy] walked up and bumped me with his chest.”
13. According to Officers Antoine and Condy, it took both of them to arrest Roy by getting him on the ground and handcuff him behind his back, during which time Roy continued to resist violently and forcefully.
14. Finally, as Antoine was putting Roy in the back seat of his patrol car: “[Roy] turned around and faced me and threw up his knee and his knee hit me ... on my right upper thigh” ... “he did it twice”.

The sworn motion included as exhibits the arrest affidavit, the offense report, and the deposition of Officer Antoine. These make clear that the first two times the defendant struck the officer (once on the hand and once on the chest), see ¶¶ 11-12, the officer had not yet attempted to arrest the defendant. After the bump on the chest, the defendant resisted while being handcuffed, see ¶ 13, and struck the officer with his knee while being placed in the patrol car. Id. ¶ 14.

The trial court ruled that the officers’ entry into defendant’s property was illegal and that all of the officers’ actions were outside the scope of their authority. The court concluded that the officers were not engaged in the lawful performance of their duty, which was fatal to the felony charges, and that the illegal entry also tainted the misdemeanor counts. The court dismissed all charges. The State has appealed.

The trial court’s determination that the officers’ entry was illegal is supported by applicable law. The defendant’s backyard was clothed with a reasonable expectation of privacy from unreasonable governmental intrusion. See State v. Morsman, 394 So.2d 408, 409 (Fla.1981); Potts v. Johnson, 654 So.2d 596, 599 (Fla. 3d DCA 1995); State v. Parker, 399 So.2d 24, 28 (Fla. 3d DCA 1981).

While this case was pending on appeal, the Florida Supreme Court announced Tillman v. State, 934 So.2d 1263 (Fla.2006), which clarifies the law applicable here. The trial court did not have the benefit of Tillman at the time of the hearing below.

Under the Tillman case, proper analysis of the felony counts depends on whether the defendant’s use of force occurred (a) before he was placed under arrest, or (b) during or after the arrest. We must therefore begin by examining which acts correspond to the separate counts of the information.

As we interpret the information and sworn motion, the simple battery counts apply to the defendant’s striking of the officer in the hand, and bumping him in the chest (counts 1 and 2). After this, the officer informed the defendant that he was under arrest.

As set forth in the sworn motion, the charge of resisting an officer (count 4) is based on the defendant’s violent resistance to being handcuffed. Sworn motion ¶ 13. The charge of battery on a law enforcement officer (count 3) is based on the defendant’s striking the officer with his knee while the officer was placing the defendant in the patrol car.

We first consider the felony counts, battery on a law enforcement officer (count 3) and resisting an officer with violence (count 4). Under both statutes, an element of the crime is that the officer must have been engaged in the lawful performance or execution of a legal duty at the time of the incident. See Tillman, 934 So.2d at 1268.

The defendant argues that because the officers’ entry was illegal, the officers were not engaged in the lawful execution of their duties. The trial court agreed and granted the sworn motion to dismiss counts 3 and 4.

We must respectfully disagree with the trial court insofar as the felony counts relate to the defendant’s blows, or resistance with violence, occurring during and after the arrest. Florida has a special statutory provision which states:

776.51 Use of force in resisting or making an arrest; prohibition.—
(1) A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

§ 776.051(1), Fla. Stat. (2003).

This statute has been construed to prohibit the use of violence in resisting an arrest, even if the arrest is illegal. “[Cjourts have consistently read section 776.051(1), Florida Statutes (1995), in pari materia with section 843.01 to eliminate [the requirement] that [the arrest be legal] as to the offense of resisting arrest with violence.” State v. Espinosa, 686 So.2d 1345, 1347 (Fla.1996) (footnote and citations omitted); see Tillman, 934 So.2d at 1269 n. 4. As we read the information, count 4 covers the defendant’s resistance with violence while the defendant was being handcuffed after being informed he was under arrest. Count 3, charging battery on a law enforcement officer, covers the defendant’s striking of the officer with his knee while being placed in the patrol car. Since both acts occurred after the officer told the defendant he was under arrest, section 776.051 applies and prohibits the defendant from using violence to resist the arrest, even if the arrest was illegal. We therefore reverse the dismissal order on counts 3 and 4 to the extent that counts 3 and 4 allege violent conduct by the defendant after the officer informed him that he was under arrest.

We also conclude that we must reverse the dismissal of counts 1 and 2, simple battery. The elements of simple battery are:

784.03 Battery; felony battery.—
(l)(a) The offense of battery occurs when a person:
1. Actually and intentionally touches or strikes another person against the will of the other; or
2. Intentionally causes bodily harm to another person.

§ 784.03(l)(a), Fla. Stat. (2003).

For the charge of simple battery, it is not necessary for the State to establish that the officers were engaged in the lawful performance or execution of their duties. That being so, counts 1 and 2 should not have been dismissed. We reverse the dismissal order as to those counts.

For the stated reasons the dismissal order is reversed and the cause remanded for further proceedings consistent herewith.

      . The sworn motion to dismiss and demurrer did not make clear which acts correspond to the four counts of the Information. The sworn motion to dismiss used the arrest affidavit, offense report, and officer’s deposition as the factual basis for the motion.

      . The offense of battery on a law enforcement officer occurs when a person knowingly commits "an assault or battery upon a law enforcement officer, ... while the officer ... is engaged in the lawful performance of his or her duties ...." 784.07(2), Fla. Stat. (2003) (emphasis added).
      The offense of resisting an officer with violence occurs when a person "knowingly and willfully resists, obstructs, or opposes any officer ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person....” § 843.01, Fla. Stat. (2003) (emphasis added).


source: Caselaw Access Project

author: STONE, J. FARMER, J.,

license: Public Domain

text:
    FLORIDA POWER & LIGHT COMPANY, Appellant, v. James MORRIS, Appellee.
    No. 4D04-4884.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 2006.
    Rehearing Denied Jan. 8, 2007.

      Jane Kreusler-Walsh of Jane Kreusler-Walsh, P.A., West Palm Beach, and Cheryl A. Kempf of Florida Power & Light Company, Juno Beach, for appellant.
    Patrice A. Talisman of Hersch & Talisman, P.A., Coconut Grove, and Feinstein & Sorota, P.A., Miami, for appellee.
   STONE, J.

Florida Power and Light (FPL) appeals a personal injury judgment. The plaintiff, Morris, aggravated a knee injury while “shooing cows” that had wandered onto his property from adjacent property owned by FPL.

The cows were owned by Jose Ruiz who occupies the FPL property under a written license from FPL containing the following provisions:

4. Company’s Rights: ... Licensee’s use of the Land shall always be subordinate to Company’s rights in the Land. Company reserves the right to enter upon the Land at any time, for its purposes.... Company and its contractors will not be responsible or liable for any damage or loss to Licensee resulting from Company’s use thereof for such purposes. Further, Company may at its discretion install or permit others to install upon the Land overhead or underground facilities.
5. Restrictions on Use: Licensee shall not use the Land in any manner which, in the opinion of Company, may tend to interfere with Company’s use of the Land or may tend to cause a hazardous condition to exist. Specifically, Licensee shall not perform any excavation on the Land, except such excavation necessary for generally accepted agricultural practices, installing and maintaining an irrigation system, and for the construction and maintenance of fencing ... without prior written permission of Company. Licensee shall keep the land clean and clear of debris so as to prevent it from becoming unsightly and shall not store materials and will see to it that no debris or trash is dumped or deposited thereon. Licensee shall drill no well on the Land nor construct or erect any building, structure, fixture, shelter, attachment, or other improvement, whether the same be permanent or temporary, without prior written permission of Company in accordance with Company specifications.
7. Fencing: Fences may be installed on, over or across the Land upon obtaining prior written permission from Company, provided Licensee installs gates of adequate size to provide Company vehicles with ingress and egress to its facilities at all times. Such gates shall be provided at all locations where the fences cross Company patrol and finger roads and at all locations otherwise specified by Company. Fences and gates are to be grounded according to Company’s specifications.
9. Compliance with Laws: Licensee agrees ... to comply with all laws ... for the purpose for which this license is granted and for the protection of the land.

The two properties are separated by a wire and post fence. There is no evidence that FPL was engaged in any active use of the property. At the time Ruiz took over the property, the fence was in good condition. Ruiz testified that the fence had been cut on several occasions since he put his cows on the land, allowing some to wander beyond the fence; each time, he fixed the fence at his own expense. Ruiz stated that it is his responsibility to keep the cows within the fenced area.

Meeker, of FPL’s land management department, who negotiated the license for FPL, testified in deposition that, typically, the livestock licensee maintains the fence. However, another witness, a FPL real estate representative, testified that he did not know who bore the responsibility to maintain the fence. FPL real estate manager, Douglass, when asked in deposition who was responsible for the maintenance of the fence, stated, without further explanation or application to the facts of this case, “If the fence is our fence and it’s on our land, not an easement, then it would be ours.” We note, however, that Douglass’ testimony was in response to a hypothetical Morris’ counsel posed and is out of context. The witness testified in context, as follows:

Q: As you sit here today, as the project manager of FPL, who is responsible for the maintenance of the fencing on the property?
A: I don’t know.

In an earlier appeal in this case, we reversed a trial court order that had dismissed Morris’ case. The complaint alleged that both Ruiz and FPL had a duty to maintain the fence in a safe condition. The trial court had dismissed the complaint with prejudice on the ground that the complaint failed to state a cause of action against FPL, reasoning that a landowner that neither owned nor had control of livestock had no duty to erect or maintain a fence and no liability for injuries caused by the livestock. Morris v. Florida Power & Light Co., 753 So.2d 153 (Fla. 4th DCA 2000) (Morris I).

In Morris I, we concluded that “[although plaintiff may not ultimately be able to prove a case against FPL, his complaint should not have been dismissed with prejudice for failure to state a cause of action against FPL at this early juncture,” because the terms of the license were not in their complaint. Id. at 154. We cited and discussed Bowen v. Holloway, 255 So.2d 696 (Fla. 4th DCA 1971), and Davidson v. Howard, 438 So.2d 899 (Fla. 4th DCA 1983), rev. denied, 450 So.2d 486 (Fla.1984), as the two cases primarily relied on by the parties, and stated:

We conclude that the trial court’s dismissal as to FPL was premature in light of the fact that the terms of the agreement between Ruiz and FPL are not, so far as this record shows, known. If there were an agreement, and if the agreement required Ruiz to maintain the fence and not FPL, FPL would not be liable according to Davidson. The complaint does allege that Ruiz complained to FPL that the fence was in disrepair, which suggests that FPL may-have agreed that it would maintain the fence. If FPL did, it may be liable.

Id. at 154-55 (emphasis added).

Essentially, Moms I applied this court’s Davidson opinion adversely to Morris, but recognized that FPL could be found liable if it had agreed to maintain the fence. Following our remand, Morris filed an amended complaint, adding a count of nuisance against FPL. The case went to trial and the jury found both FPL and Ruiz liable. The court denied FPL’s motions for directed verdict and new trial.

The question of whether a defendant in a negligence action owes a duty to the plaintiff is one of law. Robert-Blier v. Statewide Enter., Inc., 890 So.2d 522, 523 (Fla. 4th DCA 2005).

Morris asserts that the law of general premises liability with respect to a landowner’s duty applies:

Although a landowner will not be responsible for injuries caused solely by the lessee’s actions, the owner may be liable to a third party if, under the terms of the lease, he retains responsibility for maintenance and inspection, or where if the owner retains a possessory interest in the property. Thus, it is not ownership of the property which determines the duty of care, but rather, the failure of a person who is in actual possession and control (be it the owner, an agent, a lessee, a construction contractor, or other possessor with authority or control), to use due care to warn or to exclude, licensees and invitees from areas known to the possessor to be dangerous because of operations or activities or conditions.

Worth v. Eugene Gentile Builders, 697 So.2d 945, 947 (Fla. 4th DCA 1997) (internal citations omitted). Generally, control and responsibility are issues of fact to be resolved by the jury. Thompson v. Gallo, 680 So.2d 441, 443 (Fla. 1st DCA 1996) (citation omitted).

A landlord’s duty in livestock fencing cases, rather than focusing on a foreseeable zone of risk analysis, is governed by what FPL deems a “unique set of statutory and common law rules establishing legal duties.” In Davidson, the plaintiff was killed when his truck hit a cow. 438 So.2d at 900. The cow was owned by Weiser and Freidheim, Inc. Id. The Collier Company, who owned the land upon which the cow was grazing, had leased the property to W.D. Ranch for grazing purposes; W.D. Ranch allowed Weiser and Freidheim, Inc. to graze cattle on the property. Id. Under the lease agreement, Weiser and Freid-heim, Inc. were to maintain the fences around the property; in addition to Weiser and Freidheim’s cattle grazing, W.D. Ranch also used the property for recreational purposes. Id.

The plaintiff brought suit against Collier, W.D. Ranch, and Weiser and Freid-heim, Inc. In Davidson, we said:

During the trial the parties were primarily concerned with applicability of Chapter 588, Florida Statutes (1975). A portion of this chapter, Sections 588.12-588.26 (Chapter 25236, Laws of Florida (1949)), is known as the Warren Act whereby the legislature in 1949 declared it necessary to have a statewide uniform livestock act embracing all public roads. § 588.12, Fla. Stat. It was the purpose of the act to place a duty upon all owners of livestock to prevent their stock from running at large or straying upon the public roads of this state. § 588.14, Fla. Stat. If an owner of livestock either willfully, intentionally, carelessly, or negligently allowed his stock to run at large or stray upon public roads he became liable for any damage to persons or property. § 588.15, Fla. Stat. The act defines an “owner” of livestock as any person “owning or having custody of or in charge of livestock.” § 588.13(2), Fla. Stat.
Confusion has prevailed in this case because the plaintiffs have proceeded upon the theory that Section 588.11, Florida Statutes (Chapter 25357, § 7, Laws of Florida (1949)), which reads as follows:
The owner of legally enclosed land shall maintain in reasonable good condition the fence or enclosure around such land and shall maintain in legible condition any and all posted notices as required by §§ 588.09, 588.10, but a substantial or reasonably effective compliance with the provisions of §§ 588.011, 588.09, 588.10, disregarding minor or inconsequential differences, in the size, shape, or condition thereof, shall be sufficient for the purpose of evidencing the legal enclosure of said land.
requires all owners of land to fence their property. Thus, the plaintiffs contended throughout that the Collier Company as the owner of the land had a continuing duty to maintain adequate fencing on the property though the Collier Company neither owned nor had custody or control of any livestock on said property. We hold that is an improper construction of Section 588.11 and is a misunderstanding of the Warren Act. The latter imposes a duty not on land owners but on owners of livestock. They are enjoined to keep their livestock off the public roads whether by fence or wall or simple tether, it matters not.
All Section 588.11 does (or rather did at the time it was passed) is to impose a conditional legal duty upon a landowner to maintain legal fences and legal signs around his land if that land is to have the protection of criminal trespass statutes.
* * *
Thus, we conclude that the liability plaintiffs seek to impose must be visited upon the owner of the cow in question as defined by Section 588.13, viz., the legal owner or the person having custody of or in charge of the animal, and not the person who is merely the legal owner of the land on which the cow was grazing.
Although the complaint herein charged the Collier Company with owning the property and having custody of the cow in question the record is devoid of any proof of custody or control by Collier. At trial the plaintiffs never contended Collier had custody or control of the cow; rather they traveled on the theory that as the owner of the land Collier was obligated to maintain the fences. Accordingly, there was no basis for submitting the case against the Collier Company to the jury and said defendant’s motion for directed verdict should have been granted.
:|c * *
The evidence is clear that W.D. Ranch was a permittee or lessee under a written contract with the Collier Company. One paragraph of that contract provided that W.D. Ranch was to fence the outer boundaries of the land while another paragraph provided no fence was to be constructed without prior approval of the owner. During the period of time involved here W.D. Ranch did not graze cattle on the property. Its use of the property was for recreational purposes. W.D. Ranch allowed Weiser and Freid-heim to graze cattle and required Weiser and Freidheim to maintain the fences. W.D. Ranch had no interest in the cattle Weiser and Freidheim grazed there nor did W.D. Ranch exercise any control over them. Therefore, W.D. Ranch had no liability to the plaintiffs, and the court should have granted its motion for directed verdict.

Id. at 901-02.

Davidson was cited favorably in Rotolante v. Dasilva, 460 So.2d 560, 561 (Fla. 3d DCA 1984), holding,

The appellant is the owner of real property upon which her lessee operates a boarding stable for horses, and from which a horse which was neither owned nor controlled by the appellant wandered onto a public road causing damage to the appellee. The judgment against the appellant is reversed with directions to enter judgment in her favor upon a holding that the owner of land, who neither owns nor has custody or control of any livestock on the property, has no duty to erect or maintain a fence upon the land.

Morris tries to distinguish Davidson on the basis that the lessee in Davidson used the land for recreational purposes, not grazing, and the lease there more explicitly imposed the obligation to provide fencing on the lessee. However, Morris misreads Davidson. The lease between Collier and W.D. Ranch provided in one paragraph that W.D. Ranch was to fence the outer boundaries. In another paragraph, the lease provided that no fence could be installed without Collier’s approval. W.D. Ranch allowed Weiser and Freidheim to graze cattle on the property. Weiser and Freidheim agreed to maintain the fences on the property.

In Davidson, this court held that Collier had no duty to erect or maintain a fence, as that duty belonged to Weiser and Freidheim, the owner or custodian of the cows. Despite the fence-related lease provisions between Collier and W.D. Ranch, this court also reversed the judgment as to W.D. Ranch, who had no interest in the cows and was not grazing the cows on the property.

We note that Davidson is also consistent with the law in other states. See, e.g., Supchak v. Pruitt, 232 Ga.App. 680, 503 S.E.2d 581, 584 (1998) (stating, “If the landowner is neither the owner nor keeper, he has no duty to confine or restrain the animal. If an animal is allowed by its keeper to escape from its confinement and harm results, that damage results from negligent confinement, not from the condition of the land. To the extent that the condition of the land made it inadequate or unsuitable for confinement, the responsibility for selecting an adequate method of confinement is upon the keeper, not upon the landowner who neither owned nor kept the animal.”); Evancho v. Baker, 196 Ga. App. 903, 397 S.E.2d 166 (1990) (citing Rotolante, 460 So.2d at 560) (holding that a common law negligence theory against the landowner has no merit); Heyen v. Willis, 94 Ill.App.2d 290, 236 N.E.2d 580, 584 (1968) (refusing to recognize a common law duty of the landowner in livestock-at-large cases, and stating that “[t]he likelihood of injury or damage from estrays, and the attendant duty to use care to prevent such injury or damage, lies not in the place where animals may be kept but in their propensity to roam, their wanderlust”).

In any event, we need not resolve here whether Davidson is controlling, as that issue was resolved in Moms I, in which we recognized that FPL had no liability in this case absent its assuming such in the written document. This conclusion established the law of the case and precluded any argument on remand that premises liability concepts imposed a duty on FPL. See Pinnock v. Sugar Cane Growers Coop, of Fla., 791 So.2d 1135, 1137 (Fla. 4th DCA 2001) (holding appellate court’s prior decision in case forecloses reconsideration by trial court on same operative facts); see also Schultz v. Schickedanz, 884 So.2d 422 (Fla. 4th DCA 2004); Dicks ex rel. Montgomery v. Jenne, 740 So.2d 576 (Fla. 4th DCA 1999). We also reject Morris’ contention that the law of the case doctrine does not apply where the complaint is dismissed, the dismissal reversed, and a subsequent trial is had. The law of the case barred Morris from reasserting the same causes of action previously dismissed and ruled upon in the pri- or appeal. See Wells Fargo Armored Servs. Corp. v. Sunshine Sec. & Detective Agency, Inc., 575 So.2d 179, 180 (Fla.1991).

The written “license” is now before the court and its terms do not impose a duty upon FPL to construct, repair, or maintain the fence. Further, at trial, Morris failed to establish that FPL assumed a contractual duty to repair the fence. To the contrary, all of the evidence as to the FPL/Ruiz license is that Ruiz had the duty to maintain the fence. Nothing in the license shifts this duty to FPL, and Douglass’ testimony does not change the plain language of the license. Absent evidence of FPL assuming this obligation, Morris could not prove a prima facie case against FPL.

It was Ruiz’s obligation to control his cows. Ruiz expressly agreed in paragraph 9 of the license “to comply with all laws ... for the purpose of which this License is granted and for the protection of the Land.” Consistent with the purpose of the license, the agricultural license allowed Ruiz to install a fence. The presence of an existing fence surrounding the property did not impose a duty on FPL to maintain it. It simply meant Ruiz did not have to install a fence which he was entitled to do under the terms of the license. As Ruiz admitted, it was his responsibility to keep the cows within the fenced area.

Morris’ additional contention that FPL’s having a right to enter the premises created a duty to third parties is incorrect. Indeed, this court effectively so held in its prior opinion in this case. See Morris I, 753 So.2d at 154-55. Further, even premises liability principles recognize that a landlord’s right to enter the premises does not, itself, constitute control of the premises so as to impose a duty on the landlord to protect third parties. See Narvaez v. Pestaña, 780 So.2d 267, 268 (Fla. 4th DCA 2001) (finding right to enter does not create duty to protect tenant’s patrons from acts of third parties). This is because a landowner is not, by that status alone, responsible for injuries caused solely by a lessee’s operations and activities. See City of St. Petersburg v. Competition Sails, Inc., 449 So.2d 852, 853-54 (Fla. 2d DCA 1984); Bovis v. 7-Eleven, Inc., 505 So.2d 661, 663-64 (Fla. 5th DCA 1987).

We have considered Bowen, relied on by Morris, and deem it inapplicable. In Bowen, we reversed a summary judgment in favor of the owner/operator of a stable in which stalls were individually leased to horse owners. 255 So.2d at 697. A horse escaped from a stall with a broken latch and wandered onto a road via an unfenced section of the property, causing an accident. Id. In that case, there was no question that the landowner was active in operating the facilities. No consideration was given in that opinion to Warren Act issues and, in any event, in Bowen, the landowner was also in control of the premises.

Therefore, we reverse the final judgment against FPL.

MAY, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

In the previous appeal in this case, we reviewed a dismissal in favor of FPL. In that decision we confronted two precedents. Plaintiff argued that under Bowen v. Holloway, 255 So.2d 696 (Fla. 4th DCA 1971), he had a good cause of action against FPL as the owner of the land. FPL contended that under Davidson v. Howard, 438 So.2d 899 (Fla. 4th DCA 1983), it was entitled to judgment because any liability for straying cattle was on the licensee. In harmonizing these authorities to the issues in the case, we reversed the judgment and explained:

“We conclude that the trial court’s dismissal as to FPL was premature in light of the fact that the terms of the agreement between [licensee] and FPL are not, so far as this record shows, known. If there were an agreement, and if the agreement required [licensee] to maintain the fence and not FPL, FPL would not be liable according to Davidson. The complaint does allege that [licensee] complained to FPL that the fence was in disrepair, which suggests that FPL may have agreed that it would maintain the fence. If FPL did, it may be liable.”
“Because it is not clear from the facts alleged in the complaint that the plaintiff ‘could prove no set of facts’ in support of his claim, the complaint should not have been dismissed with prejudice. Although we do not agree with plaintiff that this complaint establishes that FPL breached a duty, we do agree with plaintiff that he should be allowed to amend.”

753 So.2d at 154-55. It is rather plain that our holding was that plaintiff could prove a cause of action satisfying both Bowen and Davidson if he showed that under their agreement FPL remained in control of the land and the licensee was not required to maintain the fences.

Well, now we know what the license says. It does not in any sense require the licensee to maintain the fences previously built and maintained by FPL. In fact it is utterly silent on that point. It does provide that the licensee may install new fences, but if he does so, he should provide gates for FPL to enter with its trucks and equipment “at all times.” Obviously the license did not shift any duty as to the existing fences by requiring the licensee to maintain them, as under a true lease.

Nor does the license require FPL to give up any of its plenary rights of control as owner of the property. By the “always be subordinate” language in the license, FPL forever retained its consummate rights of ownership. The license did not purport to relieve FPL of its owner’s duty to maintain its property. Nothing in the license barred it from stepping in at any time if its fences need mending. As FPL’s manager for real estate testified, “if the fence is our fence and it’s on our land, not an easement, then it would be ours.” Because FPL’s exclusive right of control of the land was never transferred to anyone under the license, there is no reason to inquire whether FPL might have later assumed such rights of ownership. It could not newly take on responsibility for that which it was already responsible.

The licensee is not a tenant exclusively occupying FPL’s land under a lease agreement. He is just a licensee, with but a restricted, revocable, non-exclusive, specific right of a defined use on the land owned by FPL. He does not have a general right to occupy FPL’s land. His presence there is not at all sole and exclusive, as a tenant’s would be. In the plain words of their agreement, this licensee’s use “shall always be subordinate to [FPL’s] rights in the Land.” Even if it were true, it would not matter that FPL has not “engaged in any active use of the property” because it has always kept the principal right to do so. Cattle or horses, four-legged creatures or two, any nuisance emanating from its land is controllable by FPL “at all times.”

It is said that our prior opinion governs this appeal. I agree. FPL argues under the law of the case doctrine that one of the two precedents discussed in our opinion— Davidson — requires a reversal. I disagree.

The law of the case doctrine has different but limited effects. Our supreme court long ago explained that:

“ ‘While undoubtedly an affirmance of a judgment is to be considered an adjudication by the appellate court that none of the claims of error are well founded— even though all are not specifically referred to in the opinion — yet no such conclusion follows in case of a reversal. It is impossible to foretell what shape the second trial may take, or what questions may then be presented. Hence the rule is that a judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided. An actual decision of any question settles the law in respect thereto for future action in the case.’ ”

Fla. East Coast Ry. Co. v. Geiger, 66 Fla. 582, 64 So. 238, 240 (1914) (quoting Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 553, 24 S.Ct. 538, 48 L.Ed. 788 (1904)); see also Sax Enterprises v. David & Dash Inc., 107 So.2d 612, 613 (Fla.1958) (“A judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided; [c.o.] if, however, a particular holding is implicit in the decision rendered, then it is no longer open for discussion or consideration.”). More recently, the supreme court stressed that even with affir-mances, the law of the case doctrine is confined to “rulings on questions of law actually presented and considered [e.o.] on a former appeal.” Fla. Dep’t of Trans, v. Juliano, 801 So.2d 101, 106 (Fla.2001); U.S. Concrete Pipe v. Bould, 437 So.2d 1061, 1063 (Fla.1983). In the words of Wells Fargo Armored Services Corporation v. Sunshine Security and Detective Agency Inc., 575 So.2d 179, 180 (Fla.1991): “the law-of-the-case doctrine was meant to apply to matters litigated to finality, not to matters that remain essentially unresolved due to the erroneous ruling of a lower court.”

Juliano holds that the prior decision is binding “as long as the facts on which such decision [is] based continue to be the facts of the case.” 801 So.2d at 106. The facts in our prior decision were that the agreement would control the issue. Our decision necessarily upheld liability under both Bowen and Davidson if the proof showed that FPL remained in control of the premises. By the terms of the license, FPL remained in control of the premises. Under Bowen and Davidson the landowner is liable under the facts of this ease. To hold otherwise on this appeal is itself to violate the law of the case doctrine.

The previous appeal resulted in a reversal. The only thing decided was that it was possible under both Bowen and Davidson for plaintiff to have a cause of action against FPL if the license did not shift the duty of maintaining fences to the licensee. Manifestly the language of their agreement had no such effect, so our previous decision is no bar to FPL’s liability under the judgment now being reviewed.

      . Although there are differences between a lease and a license, we can discern no basis to treat the obligations of a landowner to insured third parties differently depending upon whether the document in this case is termed a "lease” or a "license.” Morris has also urged that we analogize the liability of a lessor to the liability of a licensor.

      . The statutory sections noted remain in force today, with the exception of section 588.14. Section 588.15 now provides ''[ejvery owner of livestock who intentionally, willfully, carelessly, or negligently suffers or permits such livestock to run at large upon or stray upon the public roads of this state shall be liable in damages for all injury and property damage sustained by any person by reason thereof.”

      . Accordingly, as we find Bowen to be inapplicable to the facts of this case, we reject Morris' contention that the trial court properly denied the motion for directed verdict as to the nuisance count. It would be legally inconsistent to hold FPL liable for nuisance for failure to erect or maintain a fence, where there was no statutory or contractual duty to do so.

      . Morris v. Florida Power & Light, 753 So.2d 153 (Fla. 4th DCA 2000).

      . From the evidence at trial, it appears that FPL is not very good at mending its fences.

      . The limited function of a license to go upon realty has been long recognized in Florida and remains important:
      "An easement is chiefly distinguished from a license in that an easement implies an interest in land, which ordinarily is created by a grant and is often permanent, whereas a license does not imply an interest in land, but is simply a personal, unassigna-ble, and ordinarily revocable privilege or permit to do something on the land of another."
      20 Fla Jur. 2d, Easements and Licenses in Real Property, § 3. A license is therefore distinguished from those consensual transfers that do convey an interest in land. See Dance v. Tatum, 629 So.2d 127 (Fla.1993) (reversing where court’s holding obliterated distinction between an easement, which runs with the land, and a license, which “may generally be revoked at the pleasure of the grantor”).


author: PER CURIAM.

text:
    Osvaldo VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 05-2733.
    District Court of Appeal of Florida, Third District.
    Oct. 25, 2006.
    Rehearing and Rehearing En Banc Denied Jan. 4, 2007.
    Ana M. Davide, Miami, for the appellant.
    Charles J. Crist, Jr., Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before GERSTEN, and FLETCHER, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ottesen v. State, 862 So.2d 30 (Fla. 2d DCA 2003).


author: LAWSON, J.

text:
    Jarvis Ramon HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-458.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.
    Rehearing Denied Dec. 20, 2006.

      Terrence E. Kehoe of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

LAWSON, J.

We grant rehearing, vacate our original decision, and substitute the following.

Jarvis Ramon Haynes appeals from an order holding him in direct criminal contempt and sentencing him to six months of incarceration. Appellant contends that there was insufficient evidence to prove that he was in direct criminal contempt for failure to testify and that his direct contempt conviction must be vacated because the trial court failed to comply with the procedural requirements of Florida Rule of Criminal Procedure 3.830. We disagree and affirm the finding of contempt. However, because the trial court did not provide Appellant with an opportunity to offer evidence or argument in mitigation before pronouncing the contempt sanction, we vacate the sentence and remand for a new sentencing proceeding.

On May 10, 2005, the State filed an indictment against Appellant, Charlie Hamilton and Taveress Webster, charging each with felony murder in the first degree, robbery with a firearm, and dealing in stolen property. The State tried Appellant separately, and Appellant was found guilty of a lesser included offense of third-degree felony murder and guilty as charged on the remaining two counts. As to the other two co-defendants, the State tried them together, and Appellant was subpoenaed to testify in that trial. During his short appearance as a witness, and at the contempt proceedings that followed, Appellant was represented by an experienced and well-regarded private criminal defense attorney.

At his co-defendants’ trial, the following exchange occurred between Appellant and the court, after both the State and the court explained to Appellant that his testimony at trial was subject to immunity, and that it could not be used against him in the event his appeal was successful:

THE COURT: As to testifying here today and responding to the State’s questions, what is your position?
APPELLANT: I’m going to exercise my Fifth Amendment right.
THE COURT: All right. So if the Court directs that you must respond and orders you to respond, your answer to that?
APPELLANT: I’m going to exercise my Fifth Amendment right.
THE COURT: And if I direct, under the powers of the Court for Contempt of Court that you must respond, you understand that you could be exposed to a maximum 179 days incarceration as part of any sentence or disposition for refusing to respond? Do you understand that?
APPELLANT: Yes, I do. But I’m going to exercise my Fifth Amendment right also.
THE COURT: So under no terms, even if you’re court-ordered by the Court to do so, you will not respond? APPELLANT: Under no terms.
THE COURT: I am ordering you to testify truthfully; ivhat is your response?
APPELLANT: I exercise my Fifth Amendment right.
THE COURT: Refusing to testify; is that right?
APPELLANT: Yes.
THE COURT: State ask anything?
PROSECUTOR: I would just ask that [Appellant] be held in contempt, Your Honor.
THE COURT: [Appellant] you’ve been advised by counsel. You’ve been explained in court as to your obligations to testify truthfully. The Court has ordered and directed you to respond. You have indicated that you will not respond even after court order. I do find that you’re in violation of this Court’s order, direct violation, and that you be sentenced as a direct violation, as a criminal contempt, in court, to 179 days in the Orange County Jail, and that this will be consecutive to any times that you’re currently serving on any other offense.

(emphasis added). The trial court subsequently entered an order finding Appellant in direct contempt of court for refusing to testify. This appeal ensued.

First, Appellant contends that there was insufficient evidence to prove he was in direct criminal contempt for failure to testify as there is no proof that he was served with a valid subpoena. The State correctly points out that Appellant’s refusals to answer questions at his co-defendants’ trial were all made in the presence of the trial court and after extensive advice and warnings by the court and the prosecutor, and as such the trial court was within its discretion to summarily hold Appellant in direct criminal contempt. See Fla. R.Crim. P. 3.830 (“A criminal contempt may be punished summarily if the court saw or heard the conduct constituting the contempt committed in the actual presence of the court.”); Costello v. Fennelly, 681 So.2d 926 (Fla. 4th DCA 1996) (holding use of court’s contempt power to compel testimony is proper); Pendley v. State, 392 So.2d 321 (Fla. 1st DCA 1980) (recognizing that when a defendant’s refusal to testify occurs during an ongoing trial, the refusal disrupts and frustrates an ongoing proceeding and summary contempt must be available to vindicate the authority of the court); McDonald v. State, 321 So.2d 453 (Fla. 3d DCA 1975) (concluding the trial court acted properly in dealing summarily with appellant’s refusal to testify).

Alternatively, Appellant contends his direct contempt conviction must be vacated because the trial court failed to comply with the procedural requirements of Florida Rule of Criminal Procedure 3.830. More specifically, Appellant contends the trial court failed to give him an opportunity to show cause why he should not be held in contempt and failed to make any findings of fact. As to the contention that the trial court failed to give Appellant an opportunity to show cause why he should not be held in contempt, the colloquy between the trial court and Appellant reveals that the trial court on two occasions gave Appellant the opportunity to show cause why he should not be held in contempt. The court first asked Appellant for an answer as to why he refused to follow the court’s order to testify, then asked essentially the same question again. Although the trial court did not use the words “show cause,” technical deviations from the procedural rule on direct criminal contempt may be excused on consideration of the totality of the record. E.g., Walker v. State, 559 So.2d 1164 (Fla. 4th DCA 1990) (recognizing that a judgment of contempt is generally entitled to a presumption of correctness and that technical deviations from Florida Rule of Criminal Procedure 3.830 may be excused upon consideration of the totality of the record).

We also find Appellant’s contention that the trial court failed to make any findings of fact to be without merit. The trial court’s written order states: “Witness Jarvis Haynes, DOB 8/19/1977, inmate # 05049672, was found in direct contempt of court for refusing to testify.” This was a sufficient recital of the facts upon which Appellant’s adjudication of guilt was based. Cf Hutcheson v. State, 903 So.2d 1060 (Fla. 5th DCA 2005) (holding trial court’s order which failed to include any recitation of facts upon which the direct criminal contempt adjudication was based did not comply with the requirement of rule 3.830).

However, the trial court did err by failing to permit Appellant to present evidence in mitigation, as authorized by rule 3.830. This is fundamental error. See, e.g., Hibbert v. State, 929 So.2d 622 (Fla. 3d DCA 2006). We believe that the proper remedy under the facts of this case is reversal of the sentence and remand for a new sentencing proceeding.

Accordingly, we affirm the judgment of contempt, reverse the sentence, and remand for re-sentencing.

JUDGMENT OF CONTEMPT AFFIRMED; REVERSED and REMANDED FOR RE-SENTENCING.

GRIFFIN and PALMER, JJ., concur.

      . Appellant's appeal of his convictions for third-degree felony murder, robbery with a firearm and dealing in stolen property is pending before this court.

      . The State presented a return of service for filing, which counsel objected to on hearsay grounds, citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We do not believe that Crawford has any application here, because the return of service was not used as part of the criminal contempt proceeding itself. "[A] return of service which is regular on its face is presumed valid unless clear and convincing evidence is presented to the contrary. Furthermore, a defendant cannot impeach a summons by simply denying service, but must present 'clear and convincing evidence’ to corroborate his denial of service.” Lazo v. Bill Swad Leasing Co., 548 So.2d 1194, 1195 (Fla. 4th DCA 1989) (citations omitted). Appellant did not deny that he had been served, much less attempt to make the showing required to impeach a return of service. Therefore, the trial court was justified in determining that the State’s subpoena provided immunity, and in ordering Appellant to testify. At that point, the return of service was no longer relevant. Once the court ordered him to testify based upon the State’s representation that immunity had been provided, none of the testimony provided could have been used against Appellant. See Grant v. State, 832 So.2d 770, 773 n. 1 (Fla. 5th DCA 2002) ("[A] promise of use immunity is binding and the State is ‘prohibited from making any such use of compelled testimony and its fruits.' ”) (quoting Murphy v. Waterfront Comm., 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964)). It was only after Appellant refused to comply with the trial court's order that contempt proceedings were initiated. Significantly, Appellant was held in contempt for refusing to obey the court’s order, not for failure to appear in compliance with the subpoena.

      . E.g., Thomas v. State, 752 So.2d 679 (Fla. 1st DCA 2000) (recognizing that an appellate court reviews an order of direct criminal contempt under an abuse of discretion standard).


author: GRIFFIN, J. THOMPSON, J.,

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Michael Thomas RAINES, Appellee/Cross-Appellant.
    No. 5D04-2706.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.
    Rehearing Denied Dec. 20, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellant/Cross-Appellee.
    Roy Black, Christine M. Ng and Mark A. J. Shapiro, of Black, Srebnick, Kornspan & Stumpf, P.A., Miami, for Appel-lee/Cross-Appellant.
   GRIFFIN, J.

The State appeals an order of the trial court suppressing statements made by appellant Michael Thomas Raines [“Raines”] on the ground that the police had used misleading tactics in dealing with Raines’s counsel, David Smith. Raines cross appeals, contending the trial court erroneously denied his motion to dismiss based on the State’s interference with his right to present a witness. We affirm the order on the cross-appeal, but reverse the suppression order.

On February 20, 2002, Bernard Gibson was shot in Cocoa Beach. On February 22, 2002, while en route back home from Cocoa to Indiana, defendant Raines stopped at a police station in Nashville, Indiana, and told a deputy: “I shot and killed a guy in Florida and it was self-defense and I wanted to turn myself in.” The deputy called the Cocoa Beach police to report this conversation.

On the same day, Raines sought legal advice from Attorney Roy Graham [“Graham”] in Bloomington. Graham, in turn, contacted Attorney David Smith [“Smith”], an experienced Indiana attorney who practiced criminal law and who was also licensed to practice in Florida. Raines and Graham went to Smith’s office and conferred. The record does not reflect what Smith was told at that meeting because Raines invoked attorney/client privilege. We do know Smith was told that Detective Washburn [“Washburn”] of the Cocoa Beach police department wished to speak to Raines.

Smith called Washburn. He described the purpose of the call:

I had been asked to make contact with Detective Washburn to let him know that Mr. Raines wanted me to assist him in answering questions.

When Washburn returned the call, he told Smith:

As I recall, he indicated he was working on some sort of homicide investigation. He needed to speak with Mr. Raines as soon as possible. He wanted to talk to him about — I mean, I didn’t get any information about the case other than it was my understanding he was in urgent need to speak with Michael as soon as he could.

Smith said he couldn’t quote what Wash-burn said, but it was his understanding of the conversation that Raines was a witness in a pending investigation. When asked if Washburn told him Raines was a possible suspect, his response was: “Not that I recall.”

After the call, Smith contacted Raines, who later came back to Smith’s office. He met with Raines and his mother. He advised them: “It’s probably the only way to do this, is to hit it square on and see what they’ve got.” A call was then placed to Washburn. Washburn began the telephone interview by asking: “I was wondering if you could explain to me what happened and what your involvement was in it.” Raines then described the event from his point of view, readily admitting that he shot the victim, just as he had already told the Nashville, Indiana, deputy.

When asked if he knew, prior to picking up the phone to call Washburn, that Raines had shot and killed somebody, Smith said: “I can’t say for sure....” He conceded, however, that very quickly during the conversation, it was clear that Raines had done the killing. On page three of the taped telephone interview, the question was asked:

Q: Okay, go ahead, sir. What happened next? You went to grab the gun and it went off?
A. Yeah, it went off. Somehow I got it from his hands and within a few seconds he threw something and I shot.”

At no point did Smith make any effort to advise Raines not to continue answering Washburn’s questions.

Based on these facts, Raines puts forth the following legal argument:

Here, Mr. Raines’ statements were the direct result of Detective Washburn’s deception. As attorney Smith testified, had he been advised of the true status of his client he would have advised Mr. Raines to remain silent. Moreover, because Detective Washburn deliberately deceived Mr. Raines’ attorney, Mr. Raines could not and did not have a full awareness that he was waiving his rights or the consequences of that waiver.

The trial court framed the issue to be:

Although an officer can make misrepresentations to a defendant to elicit the facts of the situation the issue is whether or not he can make those representations or misinformation of facts to a lawyer to get the lawyer to allow the client to be interviewed by the detective.

The answer to the question, no doubt, is: “It depends,” but the question has very little to do with the undisputed facts present here.

Raines had already admitted the killing to Indiana police. He had consulted with two attorneys and was personally accompanied and advised throughout the telephone interview by an attorney licensed in both Indiana and Florida. The suggestion that the law would allow, much less require that this criminal’s confession be suppressed because the Cocoa Beach police department detective failed to inform Smith that Raines was the target of this investigation is nonsense. This case is nothing like Haliburton v. State, 514 So.2d 1088 (Fla.1987), where police subterfuge prevented the suspect from communicating with his lawyer. Here, the lawyer was fully involved and had no right or expectation of being told what the policeman was thinking. No matter how many epithets Raines hurls at Washburn and his conduct, and there are many, including “fraud”, “lies”, “misrepresentation”, “deceit”, the facts do not change and these facts do not give rise to a constitutional violation in obtaining Raines’s statement.

Even if it is true that Smith was bamboozled by Washburn’s failure to disclose (or, if you will, “concealment”) that Raines was more than a witness to the Florida homicide, his bamboozlement is not a basis for suppression. There is no fiduciary duty of full disclosure between police and criminal defense counsel. Besides, Washburn certainly had the right to expect that Raines had told his lawyer that he was the shooter, since he had made this admission to the Indiana police. If Smith knew Raines was the shooter, he had enough facts to properly advise his client. If he did not know, Washburn is not the one to blame.

AFFIRMED in part; REVERSED in part.

MONACO, J., concurs.

THOMPSON, J., concurring in part, dissenting in part, with opinion.

THOMPSON, J.,

concurring in part, dissenting in part, with opinion.

I concur that the order on cross-appeal should be affirmed. However, I respectfully dissent from the decision to reverse the suppression order.

The State challenges the trial court’s suppression of admissions deemed involuntary due to Detective Washburn’s use of misleading and deceptive tactics that interfered with Michael Raines’s right to counsel regarding a charge of first-degree premeditated murder. Raines responds that statements made by law enforcement to mislead his attorney deprived him of due process as guaranteed by the Florida Constitution, article I, section 9. I agree with Raines and would affirm the trial court’s suppression of his statements.

First, we all agree the Bloomington statement is not suppressed by this opinion. The Nashville, Indiana, statement is the basis of the suppression hearing. Second, Detective Washburn’s behavior was more egregious than the majority benignly described. During the suppression hearing, Detective Washburn testified that he telephoned 17-year-old Dustin Ginter in Indiana and spoke with him and his father concerning the crime. Ginter had been staying with Raines in the apartment where the shooting occurred. Washburn commenced his conversation with remarks that he was ready to issue warrants for murder and everything “is gonna depend on what you are gonna have to tell me.... ” Washburn advised Ginter’s father that whether one or two warrants issued for premeditated murder depended on what his son said. Based on his review of the two young men’s history, Washburn said he didn’t think Ginter did it. Ginter’s version, that the victim pointed a gun at them and demanded all their money, was consistent with the story Raines had provided the Indiana authorities.

Pressured to tell the truth, Ginter changed his story and told the detective that Raines had a gun. The revised story elicited various comments and warnings from the detective about lying. At the suppression hearing, Washburn admitted he used threats and mistruths as interrogation tools. He also admitted that his threat to issue a warrant for Ginter for first-degree murder was intended to mislead and frighten him. Ginter told Wash-burn that Raines shot Gibson almost as soon as he entered the apartment. Raines told Gibson he had messed with the wrong guy, retrieved a gun, wrapped it in a pillow, and shot him in the back. Washburn recovered the gun after Ginter told him where it had been discarded. Washburn knew Raines had counsel when he asked Ginter to make a controlled telephone call to Raines to elicit incriminating statements. Ginter agreed. Washburn discussed how Ginter would pretend everything was cool — that Ginter had given the police the self-defense story and he had covered for Raines. Washburn coached Ginter how to handle the police-initiated phone call. The detective explained that he would make Raines feel comfortable to speak openly by portraying him as a witness, not a suspect. Washburn did not recall whether he told the state attorney’s office that he was going to have Ginter tape record Raines in his lawyer’s presence. After Ginter made the telephone call to Raines and reassured him about the self-defense story, Smith and Raines called Washburn. Raines gave his self-defense version of the events. Smith testified that he remained silent throughout this interview because he was told that Raines was only a witness in the case, not a target of an investigation. Had he known Wash-burn’s intentions, he would not have allowed Raines to speak to the detective. During the conversation, Washburn pretended he had not already recovered the gun, but instead asked Raines its whereabouts.

The detective asked Raines as a favor to return to Florida with his mother to show him the gun’s location. Washburn offered to pay for gas and a hotel. He suggested that after Raines took him to the spot where he threw the gun, the detective could get “you all out of here.” Washburn insisted that it would demonstrate Raines’s good faith and that it would go a long way with the state attorney’s office. Washburn employed a rase to discourage Raines from cleaning their rental car of any possible evidence. Washburn urged Raines to leave with his mother as soon as possible; the phone call took place at 3:00 p.m., and the detective inquired whether Raines and his mother could be on the road by 5:00 or 6:00 p.m. that same night. Washburn asked them as soon as they arrived the next day to report directly to the Cocoa Police Department to immediately look for the gun; then he’d cut them all loose to the hotel.

With these additional facts before the trial court, the question presented was whether the statement should be admitted after considering the investigator’s behavior. Raines contended the actions of Washburn violated his due process rights. The trial court articulated reasons for suppressing the statement after listening to the testimony at the hearing. It ruled that Raines’s statements were rendered involuntary by tactics that misled defense counsel in order to obtain admissions without benefit of legal advice. The court explained:

The only armor between an individual suspected of a crime and the formidable power of the State is legal counsel. A lawyer is bound by a strict code of ethics and conduct and is an officer of the Court. While the law allows latitude and use of deception and untrue statements as an investigative technique speaking to a suspect not in custody and unrepresented, the rule changes when the interrogator knows the suspect has availed himself of his right to counsel. The interrogator misled Raines’s attorney to get admissions without benefit of legal advice based upon the true status of Defendant. The Detective even tried to entice Raines to return to Florida under false pretenses in the presence of Raines’s attorney. This practice is condemned by this Court and renders the statements involuntary.

The comments of the majority notwithstanding, rulings by the Florida Supreme Court are dispositive in this case. In Halliburton v. State, 514 So.2d 1088, 1090 (Fla.1987), the court quoted Justice Stevens’ dissent from Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986): “Any ‘distinction between deception accomplished by means of an omission of a critically important fact and deception by means of a misleading statement, is simply untenable.’ ” Haliburton, 514 So.2d at 1090, quoting Burbine, 475 U.S. at 453, 106 S.Ct. 1135. As Justice Stevens so aptly expressed in Burbine:

[D]ue process requires fairness, integrity, and honor in the operation of the criminal justice system, and in its treatment of the citizen’s cardinal constitutional protections.... Police interference in the attorney-client relationship is the type of governmental misconduct on a matter of central importance to the administration of justice that the Due Process Clause prohibits.... Burbine, 475 U.S. at 467, 106 S.Ct. 1135.

In Walls v. State, 580 So.2d 131, 133 (Fla.1991), the Florida Supreme Court, again quoted the above paragraph from Burbine. Further, the court quoted from Scull v. State, 569 So.2d 1251 (Fla.1990): “The term ‘due process’ embodies a fundamental conception of fairness that derives ultimately from the natural rights of all individuals.”

Washburn’s conduct embodies the improper use of subterfuge and deception to gain information for the prosecution’s case. Detective Washburn deceived Raines’s counsel by portraying his client as a witness and not as the undisputed suspect in the murder investigation. The elaborate scheme involved many misleading statements and included threatening and intimidating Ginter to mislead Raines. The deception interfered with the attorney-client relationship and rendered the statements involuntary. The detective’s conduct violated due process and was a deliberate attempt to interfere with Raines’s ability to obtain effective assistance of counsel. It deprived Raines of his constitutional protections. Whether Attorney Smith was bamboozled or inept does not diminish Raines’s right to protection under the law. This court should neither countenance nor encourage such police behavior.

I would affirm the trial court’s suppression of Raines’s statements.

      . As the State points out in its reply, Raines not only alleges misconduct by Washburn in failing to disclose that he was the target of the investigation, but by suggesting that Raines's explanation that he was acting in self-defense exonerated him from liability. Even if there were evidence of this in the record, this assertion is meritless. Raines’s "explanation” could not exonerate him; only the facts would exonerate him. Raines’s counsel could not reasonably have relied on such a proposition of law.


text:
    John H. BALDWIN and Gina N. Woodward, Appellants, v. Domenico M. IDONI, Appellee.
    No. 5D06-1474.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.
    Rehearing Denied Dec. 15, 2006.
    Douglas R. Beam of Douglas R. Beam, P.A., Melbourne, for Appellant.
    Jack A. Kirschenbaum, of Gray Robinson, P.A., Melbourne, for Appellee.
   PER CURIAM.

We affirm the trial court’s temporary order. Where there was a legitimate dispute as to the ownership of the vehicle, the trial court had the inherent authority to grant an injunction so as to preserve the property until a final resolution of the case. McRae v. McRae, 52 So.2d 908, 910 (Fla.1951).

AFFIRMED.

PLEUS, C.J., LAWSON and EVANDER, JJ., concur.


text:
    Derrick GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3342.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 16, 2007.

      Derrick Gibson, Bowling Green, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Derrick Gibson appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He was sentenced as a prison releasee reoffender (PRR) to fifteen years in prison for robbery. In this motion to correct illegal sentence, he argued that he did not qualify as a PRR because he did not commit the robbery within three years of being “released from a state correctional facility” as provided in the PRR statute. See § 775.082(9)(a)l, Fla. Stat. He argued in his motion that he was released from the prison term of his last conviction, and placed on control release in August 1990, but that the trial court erroneously based PRR sentencing in this case on his release from temporary detention in 1997. That temporary detention was for a charge of violation of control release. He did not state the outcome of that charge.

Gibson argued in his motion that the trial court erred in finding his release from temporary detention was a valid release date for purposes of PRR sentencing. The trial court summarily denied this motion based on the state’s response, which attached a copy of a statement from the chief of the Bureau of Central Records, Department of Corrections, simply stating that Gibson’s last release date for a 1989 and 1990 case was December 31, 1997. However, neither this document, nor the state’s response, addressed Gibson’s claim that the release on that date was a temporary release date.

We find that the law supports Gibson’s challenge. See Wencel v. State, 915 So.2d 1270 (Fla. 4th DCA 2005); Brinson v. State, 851 So.2d 815 (Fla. 2d DCA 2003). We also hold that the records of the Department of Corrections and Parole Release Commission should be considered part of the record and that the trial court should review such records in ruling on this motion on remand. Wencel, 915 So.2d at 1271-72; Phillips v. State, 839 So.2d 893 (Fla. 4th DCA 2003); Nelson v. State, 760 So.2d 240 (Fla. 4th DCA 2000).

Reversed and Remanded.

STONE, POLEN and HAZOURI, JJ„ concur.


author: STONE, J.

text:
    PALM BEACH COUNTY HEALTH DEPARTMENT, an agency of the State of Florida, Appellant, v. Angela WILSON, Appellee.
    Nos. 4D05-2397, 4D05-3594.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 8, 2007.

      Carri S. Leininger of Williams, Leininger & Cosby, P.A., West Palm Beach, for appellant.
    Isidro M. Garcia of Garcia Law Firm, P.A., West Palm Beach, and Marcia K. Lippincott of Marcia K. Lippincott, P.A., Lake Mary, for appellee.
   STONE, J.

Palm Beach County Health Department (“Department”) appeals a final judgment entered in favor of its former employee, Angela Wilson (Wilson), on a whistleblower complaint. We reverse, concluding that it was an abuse of discretion to deny Department’s motion for new trial based on juror misconduct in failing to disclose a pending lawsuit.

During voir dire, each panel member was asked, “Have you or any member of your immediate family ever been a witness or a party to a lawsuit (sued or been sued)?” By way of example, the trial judge gave a sample answer. In response to the question, several prospective jurors responded in the affirmative, describing their involvement in personal injury suits, criminal matters, worker’s compensation cases, commercial litigation, and domestic violence issues. Prospective juror Smir-cich responded “no” to the question.

Department’s counsel later asked the ve-nire panel, “Can I see a show of hands of anyone that has brought any claim for damages? When I say claim, that doesn’t have to rise to the level of lawsuit. You may have filled out a piece of paper. You may have made a call. But you made some kind of claim for damages. It can be property damage, personal injury. All kinds of different things can be claimed for damages.” Smircich failed to respond to this inquiry as well and was ultimately seated as a juror.

After the verdict was rendered, the court granted leave to interview juror Smircich because she had failed to disclose that she was a defendant in an eminent domain action brought by Palm Beach County.

At the hearing on the motion, Smircich said she had joined a class action suit against Palm Beach County regarding property the county had taken through eminent domain. Smircich reported the property was taken from her in 2004. As far as she knew, the eminent domain proceeding was still pending. She stated that during voir dire, she did not remember the eminent domain suit.

When, Smircich was asked, “And in terms of you holding any bitter feelings against the Palm Beach County Health Department, did you make any connection between the Palm Beach County Health Department and Palm Beach County itself?”, she responded, “No, because I had forgotten all about it.” She was also asked, “Are you happy that you were sued by Palm Beach County for this eminent domain proceeding?”, to which she said, “No. I’m not happy that they took my property and gave me less than what I paid for it.”

Subsequent to the hearing, the court denied Department’s motion for new trial.

We review an order on a motion for new trial based on juror concealment of information for abuse of discretion. Taylor v. Magana, 911 So.2d 1268, 1267 (Fla. 4th DCA 2005).

Courts employ a three-part test in determining whether a new trial should be granted as a result of juror non-disclosure. “First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Roberts v. Tejada, 814 So.2d 334, 339 (Fla.2002) (citing De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995)).

“Nondisclosure is considered material if it is substantial and important so that if the facts were known, the defense may have been influenced to peremptorily challenge the juror from the jury.” Id. at 341 (citations omitted). “Remoteness in time is one aspect to consider in determining the impact, if any, of a juror’s prior exposure to the legal system on his present ability to serve in a particular case.” Id. at 342 (citations omitted). “Other factors may include the character and extensiveness of the litigation experience, and the juror’s posture in the litigation.” Id. (citations omitted). “To be material, a prospective juror’s litigation history does not necessarily have to involve an action similar to the one in which he or she may be required to serve.” Id. at 341.

“[A] juror’s nondisclosure need not be intentional to constitute concealment.” Id. at 343. “[R]esolution of [the] ‘diligence’ issue requires a factual determination regarding whether the explanations provided by the judge and counsel regarding the kinds of responses which were sought would reasonably have been understood by the subject jurors to encompass the undisclosed information.” Id.

Here, Smircich’s nondisclosure, though apparently unintentional, certainly meets the concealment prong. We are further satisfied that the due diligence prong was also met in the case at bar. See Roberts, 814 So.2d at 343-44; Taylor, 911 So.2d at 1269-70. Consequently, the only prong we are left to resolve is the .materiality of the nondisclosure.

In this case, we find that the defense indeed may have been influenced to peremptorily challenge Smircich had the facts of her eminent domain suit been known. The class action suit was ongoing and, thus, was not remote in time to the voir dire questioning. Smircich was both a plaintiff in the class action suit against Palm Beach County and a defendant in the underlying eminent domain suit; her posture in this litigation was, therefore, at some point in accord with Wilson’s posture as a plaintiff in her suit against Department. The fact that a whistleblower action is unrelated to an eminent domain action is, under these facts, of little import.

Our conclusion is supported by case law construing the materiality requirement, wherein most instances of nondisclosure have been found material. See Murphy v. Hurst, 881 So.2d 1157 (Fla. 5th DCA 2004) (providing a compilation of cases where Florida courts have found materiality present or lacking). We find the cases deeming nondisclosure immaterial inapposite to this case. See, e.g., Leavitt v. Krogen, 752 So.2d 730 (Fla. 3d DCA 2000) (finding immateriality where juror in a medical negligence action stated she had seen a debt collection complaint filed on her behalf over ten years ago, but did not know if the complaint had been filed); Garnett v. McClellan, 767 So.2d 1229 (Fla. 5th DCA 2000) (holding nondisclosure immaterial where juror in automobile negligence case failed to reveal she had been in an automobile accident involving only property damage).

Additionally, we conclude that the trial court did not err in failing to grant summary judgment on the issue of failure to exhaust administrative remedies, where, as a matter of law, the Florida Commission on Human Relations had dismissed Wilson’s complaint, providing her with a statutory basis to file the civil suit.

Therefore, we reverse and remand for a new trial. As to all other issues, we find no reversible error or abuse of discretion.

SHAHOOD and HAZOURI, JJ., concur.


text:
    STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. Dawn AMORA and Rick Amora, as parents and guardians of Marissa Amora, a minor child, Appellees.
    No. 4D05-3346.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.

      Kara Berard Rockenbach and Stephen F. Radford of Gaunt, Pratt, Radford, Methe & Rockenbach, P.A., West Palm Beach, for appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, and Marc C. Brotman and Joseph N. Nusbaum of Brotman Nusbaum Fox, Boca Raton, for appellees.
   PER CURIAM.

The Department of Children and Family Services (DCF) appeals the trial court’s final judgment against DCF finding DCF negligent and awarding the plaintiffs, Dawn and Rick Amora, as guardians and adoptive parents of Marissa Amora, the sum of $26,849,849.06. DCF raises several issues on appeal that we affirm without comment. We address only DCF’s argument that the plaintiffs failed to prove a prima facie case of negligence. We affirm the final judgment because the plaintiffs presented competent substantial evidence that DCF was negligent and that the negligence was the proximate cause of the injuries sustained by two-year-old Marissa Amora.

The vast majority of the material facts in this case are undisputed. DCF first became involved in this case on December 9, 2000 when representatives at the Miami Children’s Hospital (MCH) called the DCF hotline because Marissa’s biological mother failed to come to the hospital on December 8, 2000, the date of the child’s discharge. Shirley Arias, the DCF protective investigator assigned to the case, began her formal investigation on December 9, 2000. Arias testified that she was concerned that the mother did not show up to the hospital on the date of Marissa’s discharge because she was more interested in getting her boyfriend out of jail, that the mother hardly ever visited or called the hospital while Marissa was hospitalized for a month, that the hospital had difficulty getting the mother to come to the hospital and sign consents, that when the mother did come to the hospital the child would cry and the mother spanked the child in her hospital bed while the child cried, and that the hospital informed Arias that the child did not appear very bonded to the mother. In her testimony, Arias expressed concern because Marissa’s x-ray-results showed a fractured clavicle, for which the mother had no explanation. Arias also testified that the mother’s boyfriend was living with the mother and Marissa, and in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child’s natural father and have been responsible for abuse situations.

Due to concerns that the mother was not going to be able to provide the necessary follow-up care for her child, Arias, the mother, and Dr. Biehler, the head of the child advocacy team (CAT) at MCH, met at the hospital on December 11, 2000. Dr. Biehler testified that clavicle fractures are usually low risk and not of great concern; however, he was concerned because it was an unexplained injury. Although Dr. Biehler testified that he had no recollection or notes of CAT reporting a concern of physical abuse to DCF, he wrote in his CAT consult that “this is a high risk child who should not be released to home until we can more fully insure that the environment is safe and nurturing.” Arias admitted in her testimony that Dr. Biehler advised her that a home study should be completed first before the child was returned to her home. Arias also testified that after meeting with Dr. Biehler, she suspected physical abuse.

Arias then met with her DCF supervisor in Miami, Robert Boyack, because she wanted to share with him her concerns about Marissa. They agreed that the Miami DCF office could not place a hold on Marissa because the Miami office lacked jurisdiction as Marissa was a resident of Lake Worth. They agreed that an out of town inquiry (OTI) was necessary and that the case should be transferred to the Lake Worth DCF office. The following day, on December 12, 2000, Arias received a phone call from Arlene Padilla, a social worker at MCH. Arias informed Padilla that the Miami DCF office would not place a hold on the child, that the child could be released to the mother, and that the Lake Worth DCF office would follow up. However, according to Arias’s testimony, Padilla informed her that a hold was appropriate at that time because of all of the concerns regarding the child’s safety. Arias testified that she shared these concerns with Padilla.

Arias testified that Padilla then consulted with her supervisor at MCH, and both Padilla and her supervisor called Arias again on December 12, 2000, which was the second phone call that day from Padilla to Arias. Arias testified that Padilla and her supervisor were very concerned with the child being released and that they would feel much more comfortable if they had the name and number of the protective investigator in Lake Worth who would be following up on the case so that they could speak with that person. Ten minutes later, Arias called the DCF office in Lake Worth and was informed that before the case could be reassigned to an investigator in the Lake Worth office, Arias would have to update the computer with all of the information concerning the case. While updating the computer, Arias received a third phone call from Padilla, who again sounded concerned. Arias testified that she had nothing new to tell Padilla because she was still in the process of updating the computer and that no investigator in Lake Worth had been assigned to the case at that point. After completing the update, Arias called DCF in Lake Worth, informing them that the update had been completed, and Arias was given the name of the protective investigator in Lake Worth assigned to do the OTI. Arias testified that she told the Lake Worth office that the case was “urgent” because there were many concerns about the mother’s ability to care for the child. Arias also testified that she then called Padilla and informed her that the case had been reassigned and gave her the name of the DCF protective investigator in Lake' Worth, Evelyn Diez.

Arias testified that that same day, December 12, 2000, she met with Steve Estes, Boyaek’s supervisor, and Estes informed Arias that his supervisor received a phone call from the hospital expressing concerns about the child’s release. Furthermore, on December 13, 2000, Estes called Arias and informed her that they had two options at that point. First, if the hospital was comfortable, the child could be released to the mother and the case would be followed up in Lake Worth. Second, if the hospital was not comfortable with allowing the child’s release, DCF would staff the case with the legal department for the possibility of filing a petition for detention. Because Arias knew that the hospital was not comfortable with allowing Marissa to return home, the case was staffed with legal.

Thereafter, a DCF attorney advised Arias that DCF must complete the following four tasks before the child could be .sent home: (1) contact the father of Marissa’s half-sister in New Jersey, (2) run criminal checks on the mother and boyfriend, (3) staff the case with the Child Protection Team (CPT), and (4) complete a home study. Arias testified that as of December 20, 2000, she did not contact the father in New Jersey nor did any other witness testify that this task was completed. Evelyn Diez, the DCF investigator in the Lake Worth office, testified that she conducted criminal background checks on the mother and boyfriend, which revealed no criminal records for either the mother or her boyfriend.

As for the CPT review, which is the process of reviewing records and assessing the child by medical professionals to determine abuse, the testimony at trial was that none was completed. Boyaek testified that CPT did not do a complete investigation and that the child should not have gone home until CPT did their work. Dr. Bieh-ler also testified that he was not serving in any official capacity as part of a CPT. Dr. Miller, DCF’s own retained expert, testified that there was no CPT or equivalent review of this child’s medical records to look into the issue of abuse either before she left the hospital on December 15, 2000 or before the child sustained massive brain injuries on January 'll, 2001. Dr. Miller agreed that a CPT review of Marissa’s available charts and medical history would have shown that Marissa more likely than not was the victim of abusively-inflicted injuries. Furthermore, Dr. Miller agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that this child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse.

As for the home study, which is the review of the child’s living situation, Diez testified that she was never requested to do a home study nor was she told by DCF in Miami that a home study or CPT was required before the child could be sent home. Diez did go to the mother’s apartment on December 13, 2000 and noticed that there was no crib, toys, baby clothes, or any evidence of a child living there. However, she admitted that had she completed a home study, she would have spoken with people who were allegedly responsible for watching the child, and most certainly the live-in boyfriend, but she never did. Boyaek also testified that a home study was not done in this case. Furthermore, although Estes testified that he was advised on the day of the child’s release that there was a positive home study, he conceded that a home study report was never actually completed.

Despite DCF’s failure to contact the father, to staff the case with a CPT team, and to conduct a home study, Marissa was released from the hospital on December 15, 2000. It is undisputed that on January 11, 2001, the mother’s boyfriend physically abused Marissa and caused her permanent and serious injuries. She sustained traumatic brain and spinal cord injury. Her brain damage prevents her from swallowing properly, and she has weakness in all of her extremities as well as a significant degree of cognitive delay. Furthermore, it is improbable that she will ever be able to walk independently, she will most likely need a feeding tube, and in one doctor’s opinion, she will never have the ability to have a meaningful two-way conversation due to the impact on her speech. Marissa also takes numerous medications and requires speech, occupational, and physical therapy five days a week. Her injuries will require her dependency on caregivers for the rest of her life.

The Amoras, who adopted Marissa near the end of 2001, sued for negligence, alleging, inter alia, that DCF negligently failed to adequately and reasonably investigate the matter involving Marissa and that DCF’s negligence was the proximate cause of the injuries sustained by Marissa. The jury reached a verdict for the plaintiffs and found DCF 75% responsible for causing Marissa’s catastrophic injuries, MCH 20% responsible, and the mother 5% responsible. Final judgment was entered against DCF for $26,849,849.06.

On appeal, DCF argues that the trial court erred in denying its motion for directed verdict because the plaintiffs failed to show that the alleged negligence of DCF was the legal cause of the injuries sustained by Marissa, and that any finding of causation could be based only on a stacking of inferences. According to DCF, the inferences that would need to be stacked to reach a finding of causation are that had DCF completed its investigations, DCF would have uncovered the boyfriend’s abuse of Marissa, that the discovery of abuse would have led to Marissa’s removal from the mother’s custody, and thus, prevented the abuse perpetrated by the boyfriend on January 11, 2001.

The standard of review on appeal of a trial court’s ruling on a motion for directed verdict is de novo. See Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006). A motion for directed verdict should be granted only when the evidence viewed in the light most favorable to the non-moving party shows that a jury could not reasonably differ as to the existence of a material fact and that the mov-ant is entitled to judgment as a matter of law. See Brown v. Kaufman, 792 So.2d 502, 503 (Fla. 4th DCA 2001). If there is any evidence to support a possible verdict for the non-moving party, a directed verdict is improper. See id. A jury verdict must be sustained if it is supported by competent substantial evidence. See Richey v. Modular Designs, Inc., 879 So.2d 665, 667 (Fla. 1st DCA 2004).

Concerning DCF’s argument that the plaintiffs failed to establish that the alleged negligence was the legal or proximate cause of Marissa’s injuries, the issue of proximate cause is generally a question of fact concerned with “whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1116 (Fla.2005) (quoting McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992)). Where reasonable persons could differ as to whether the facts establish proximate causation, the issue must be left to the fact finder. See id. Furthermore, to constitute proximate cause, there must be such a natural, direct, and continuous sequence between the negligent act and the injury that it can reasonably be said that but for the act the injury would not have occurred. See Bryant v. Jax Liquors, 352 So.2d 542, 544 (Fla. 1st DCA 1977).

After reviewing the record in a light most favorable to the plaintiffs, we conclude that this case was properly submitted to the jury as there is competent substantial evidence in the record to support a finding that DCF’s failure to adequately and reasonably investigate the matters involving Marissa foreseeably and substantially caused the injuries sustained by her. The plaintiffs presented evidence that there is a natural, direct, and continuous sequence between DCF’s negligence and Marissa’s injuries such that it can reasonably be said that but for DCF’s negligence, the abuse to Marissa would not have occurred. For example, Arias testified that she suspected physical abuse several days before the child’s release, and the Initial Child Safety Assessment form, which Arias completed on December 14, 2000, indicates that it was “suspected” that Marissa exhibited behaviors that may be indicative of abuse or neglect. Arias also testified that in her training and experience as a DCF protective investigator, boyfriends who live in the home with the child and are not related by blood or marriage to the child are a safety risk to the child because they are not the child’s natural father and have been responsible for abuse situations. Padilla, the social worker at MCH, testified that she was concerned about the child being released to the mother, and she communicated these concerns to Arias and the Lake Worth office before the child was discharged. As a result of Padilla’s concerns, DCF’s Legal Department ordered that the child could not go home until four tasks were accomplished. However, the record indicates that three of these tasks were not completed prior to Marissa’s release. Both Arias and Boyack testified that Marissa should not have gone home until the tasks were completed, yet DCF failed to prohibit the release of Marissa to her mother.

We find support for our decision in Department of Health and Rehabilitative Services v. Yamuni, 529 So.2d 258, 259 (Fla.1988), where the supreme court affirmed a verdict against the Department of Health and Rehabilitative Services (HRS), now DCF, for negligence. In Yamuni, HRS received numerous reports that the infant was being physically abused. Id. HRS investigated, but the infant was allowed to remain in the custody of its natural mother, and HRS failed to place the infant under protective supervision as it was directed to do by court order in January 1980. Id. In August 1980, the infant was admitted to the hospital with severe burns and two fractures to his arm. Id. The arm was medically amputated the following day. Id. The jury found HRS negligent and returned a verdict of 3.1 million dollars, which was reduced to $50,000 pursuant to section 768.28(5), Florida Statutes. Id. The supreme court affirmed, explaining “whether HRS was actually negligent was a jury question and we are satisfied that the record supports the jury verdict.” Id. at 262. The record showed that a court order was entered releasing the infant to his natural mother pending further investigation by HRS, and that the mother had agreed to protective supervision by HRS. Id. HRS conceded that because of an “internal breakdown,” it closed the case without assigning it to the protective supervision unit and that the court order was not carried out. Id. The supreme court also explained that “HRS is not a mere police agency and its relationship with an abused child is far more than that of a police agency to the victim of a crime ... the primary duty of HRS is to immediately prevent any further harm to the child and that the relationship established between HRS and the abused child is a very special one.” Id. at 261. Although not specifically addressed in Yam-uni, implicit in the supreme court’s opinion affirming the verdict is that DCF’s negligent failure to place the infant in protective supervision was the proximate cause of his injuries.

Furthermore, we conclude that there is no impermissible stacking of inferences in this case. We find that there is competent substantial evidence that is susceptible to the inference that had DCF adequately and reasonably investigated the matter involving Marissa, the abuse to Marissa would not have occurred. Under the facts of this case, the jury could conclude that DCF’s inaction unreasonably exposed Marissa to physical abuse leading to traumatic brain and spinal injury requiring dependency on caregivers for the rest of her life. Dr. Miller, DCF’s own expert, agreed that a CPT review of Marissa’s available charts and medical history would have shown that Marissa more likely than not was the victim of abusively-inflicted injuries. Furthermore, Dr. Miller agreed that medical information was available before December 15, 2000 that could have allowed the health care professionals to determine that this child had suffered physical injuries of a fractured left clavicle and left scapula due to abuse. This evidence could lead a jury to reasonably conclude that it was foreseeable to DCF that if Marissa was released to her mother without further investigation, she could sustain more abuse.

We conclude that the trial court did not err in denying DCF’s motion for directed verdict. The plaintiffs made a prima facie case on the issue of legal causation, which issue was properly submitted to the jury. As the supreme court declared in Yamuni, “HRS [now known as DCF] is not a mere police agency and its relationship with an abused child is far more than that of a police agency to the victim of a crime ... the primary duty of [DCF] is to immediately prevent any further harm to the child and that the relationship established between [DCF] and the abused child is a very special one.” Id. at 261.

Affirmed.

GUNTHER, FARMER and GROSS, JJ., concur.