text:
    Robert E. BUCHMAN, Appellant, v. Nancy CANARD, Appellee.
    Nos. 3D04-2102, 3D04-1474.
    District Court of Appeal of Florida, Third District.
    Dec. 14, 2005.

      Michael A. Nuzzo, Miami; David B. Pa-kula, Weston, for appellant.
    Daniels, Kashtan, Downs, Robertson & Magathan and Madelyn Simon Lozano, Coral Gables, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

The Appellant, Robert Buchman (hereinafter “Buchman”), appeals from an Order granting the Appellee, Nancy Canard (hereinafter “Canard”), a one-third interest in Buchman’s homestead residence after the lower tribunal held, and this Court affirmed, that the property is a partnership asset, and is, therefore, not subject to the homestead exemption.

This case arises from a partnership between Buchman and Canard. In 1999, Mr. Buchman sold the partnership assets to a third party. After learning of the sale, Canard filed suit against Buchman, seeking an accounting, damages for breach of the partnership agreement, and dissolution of the partnership. Canard alleged that Buchman used partnership assets to improve and make mortgage payments on his residence, and sought the imposition of a constructive trust.

Incident to an arbitration, the lower court: 1) dissolved the partnership; 2) deemed Buchman a wrongfully dissociated partner due to his breach of the partnership agreement (Buchman represented and warranted himself as an individual seller possessing good and marketable ownership of the business in question, significantly breaching the partnership agreement); 3) declared the real property at 7325 S.W. 102nd Street to be a partnership asset; and 4) ordered Canard to wind-up the partnership, which included the sale of Buchman’s house. This Court affirmed the lower court’s damages award to Canard in an amount equal to her share of the partnership assets wrongfully transferred by Buchman and also awarded prejudgment interest on that amount from the date of the wrongful transfer. Buchman v. Canard, 863 So.2d 487, 488 (Fla. 3d DCA 2004).

After this Court’s decision, post-judgment proceedings to enforce the arbitration award commenced. Over Buchman’s homestead objection, the trial court vested title to Buchman’s residence in the partnership, and awarded Canard a one-third interest in real property. The court held that Canard was entitled to one-third of the business plus one-third of Buchman’s residence. The trial court entered an Order denying Buchman’s homestead claim on the ground that the property was a partnership asset. The court also can-celled and expunged from the Public Records the Quit Claim Deed by which Buch-man transferred title to an estate by the entirety with his wife, after the arbitration award. Buchman appeals.

Buchman claims that (1) the trial court erroneously declared that his “homestead property” is a partnership asset, (2) the trial court erroneously forced sale of his homestead property, (3) the trial court erroneously transferred title to the property without the consent of Mrs. Buchman, (4) the trial court erroneously voided the Quit Claim Deed by which Buchman conveyed title to himself and Mrs. Buchman, and (5) the trial court erred in denying Buchman’s motion to limit damages where the residence was not included as a business asset as part of the arbitration award. We affirm. '

The arbitration award was entered on June 13, 2002, and was amended to include the residence as “an asset of the Canard/Buchman partnership” on October 2, 2002. Additionally, the arbitration award was ratified by the trial court on March 24, 2003. Clearly in response to the arbitration award, Buchman subsequently filed his designation of homestead on April 3, 2003. On January 21, 2004, this Court affirmed the arbitration award, including the designation of the residence as a partnership asset. Buchman v. Canard, 863 So.2d 487 (Fla. 3d DCA 2004). The issue of designating the residence a partnership asset, but not the issue of homestead, was briefed in the original appeal.

In light of this Court’s affirmance of the arbitration award, the law of the case in the instant matter is that the residence is a partnership asset. Buchman’s arguments that the property is homestead property have no merit where the designation of homestead and the conveyance of the property by Buchman to himself and his spouse as tenants by the entireties occurred after the trial court ratified the arbitration award.

This Court in Bueno v. Khawly, 677 So.2d 3 (Fla. 3d DCA 1996), explained that points adjudicated in a prior appeal are binding on the parties. “A per curiam decision of the appellate court is the law of the case between the same parties on the same issues and facts, and determines all issues necessarily involved in the appeal, whether mentioned in the court’s opinion or not.” Bueno v. Khawly, 677 So.2d at 4 (quoting Mitzenmacher v. Mitzenmacher, 656 So.2d 178, 179 (Fla. 3d DCA 1995)). Thus, the finding that the property was a partnership asset is the law of the case with respect to Buchman and Canard.

The question then arises whether a partner may claim a homestead interest on partnership property. Property acquired by a partnership is property of the partnership, not the individual partners. Shephard v. Ouellete, 854 So.2d 251, 253-54 (Fla. 5th DCA 2003) (holding that partnership-owned real estate could not be partitioned because it was owned. by a single entity, the partnership, but leaving open the possibility of a judicial sale of the property as part of the winding up of the partnership). Thus, partnership property cannot constitute the homestead property of one partner prior to the dissolution of the partnership.

In light of the foregoing, the remainder of Buchman’s arguments, specifically the voided transfer to his spouse and the lack of consent from Mrs. Buchman, are moot. The property is partnership property and one partner, individually, may not claim an exemption against the property. Likewise, the property could not be legally transferred to Mrs. Buchman. Accordingly, the Orders on appeal are affirmed.

Affirmed.

LEVY and GREEN, JJ., concur.

RAMIREZ, J.

(concurring).

As the majority opinion states, Nancy Canard was awarded one-third of Robert Buchman’s real property (which was declared to be a partnership asset) and also was awarded an amount equal to her share of the partnership assets. Buchman has argued that this, in effect, allows Canard to double-dip. I agree that the issues raised on appeal have no merit based on the law of the case..

Buchman is basically arguing that the arbitration award erroneously awarded Nancy Canard her share in the partnership assets which Buchman wrongfully transferred (the evidence reflected that Buchman had used partnership assets to purchase his home) AND separately found that Buchman’s home is a partnership asset to which Canard is also entitled to her partnership share. Thus, Canard will receive one-third of the partnership assets twice.

The arbitration award was entered on June 13, 2002 and ratified by the trial court on March 24, 2003. Even if the arbitration award confers Canard her interest in the wrongfully transferred property AND an interest in Buchman’s house, this Court affirmed that arbitration award in its January 21, 2004 mandate. See Buchman v. Canard, 863 So.2d 487 (Fla. 3d DCA 2004). Apparently the double-dipping issue was never raised in the first appeal, which is when Buchman should have raised it. Consequently, he cannot raise this issue now because it is law of the case, pursuant to this Court’s mandate. See Florida Dep’t. Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (explaining that the doctrine of the law of the case requires that questions of law decided on appeal govern the case in that appellate court and in the trial court in all subsequent stages of the proceedings).


source: Caselaw Access Project

author: SUAREZ, J. RAMIREZ, J.

license: Public Domain

text:
    Gladys VARGAS, Appellant, v. Barbara ACOSTA, Appellee.
    No. 3D05-1083.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2006.
    Rehearing and Rehearing En Banc Denied April 6, 2006.
    Markowitz, Davis, Ringel & Trusty, Miami; Deutsch & Blumberg and James C. Blecke, Miami, for appellant.
    Gladys Balleste, for appellee.
    Before RAMIREZ, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

Gladys Vargas (“Vargas”) appeals the trial court’s emergency order relocating her husband, Cesar Vargas (“ward”), from a nursing facility in Miami-Dade County, Florida, to a rehabilitative center in Lee County where the guardian resides. The appellee, Barbara Acosta (“Acosta”), is the ward’s daughter and appointed guardian. She argues that the trial court did not err by relocating the ward to a rehabilitation center near Acosta’s home in Lee County because he was in grave need of immediate medical treatment. We affirm the trial court’s orders.

One of the rights typically delegated a guardian is the right to determine the ward’s residence. Section 744.2025, Florida Statutes (2004), requires prior court approval before a guardian may change a ward’s residence from one county to another non-adjacent county in Florida. The statute requires only that a court “shall, at a minimum, consider the reason for such relocation and the longevity of such relocation” before approving a request. § 744.2025(1), Fla. Stat. (2004).

Until March 1, 2005, the ward was living in a nursing facility in Miami-Dade County, Florida. The record shows that on February 28, 2005, attorney for Acosta received a telephone call from the judge’s office informing her that the nursing facility was going to discharge the ward the next day, March 1, 2005. Acosta arranged for the ward to be transferred from Miami-Dade County, Florida, to a nursing facility in Lee County, Florida, where Acosta resides.

On March 1, 2005, Vargas filed her Motion to Vacate the court’s order allowing the transfer of the ward. On March 4, 2005, Vargas served her Emergency Motion to Prevent Change of Ward’s Residence, and set the motion for a March 7, 2005 hearing. In response to the motion, Acosta filed a pleading stating that she had learned from the judge’s office, on February 28, that the ward was to be discharged on March 1, 2005. She further stated that Vargas had denied a previous request to permit the ward to reside within his own home with Vargas. Acosta also alleged that the ward’s current needs would be best met by living in a facility close to Acosta’s home.

On March 1, 2005, the court entered its order denying the Wife’s Emergency Motion to Prevent Change of Ward’s Residence, and granted Acosta’s request to change the ward’s residence to the Rehabilitation and Heart Care in Cape Coral, Florida. On March 7, 2005, the trial court heard argument from both sides on Vargas’ Motion to Vacate. On March 30, 2005, the court entered an order denying the Motion to Vacate.

We affirm the trial court’s orders. The court met the requirement of section 744.2025(1) by “[considering] the reason [given] for ... relocation.” There was no dispute that, at the time of the hearing, the ward was being discharged from his nursing facility in Miami-Dade County, and that the ward was in need of immediate nursing care. Additionally, there was no dispute that Vargas had previously refused to accept the ward in her home, and that the ward’s needs would be best met by living in a facility close to the guardian’s home.

Affirmed.

CORTIÑAS, J., concurs.

RAMIREZ, J.

(dissenting).

I respectfully dissent because the majority approves a procedure that denied the ward’s wife due process of law.

The animus between Gladys Vargas, the ward’s wife, and the guardian, Barbara Acosta, who is the ward’s daughter from a previous marriage, is obvious even from the sparse record before us. The court held a hearing on December 14, 2004, when the prior guardian, Michael Messer, filed a petition to resign as guardian. Messer apparently sought to resign in frustration after accumulating fees in excess of $20,000, and failing to mediate the adversarial positions of the Vargas and Acosta families.

At the time of the hearing, the wife was visiting with the ward Monday through Friday and the daughter on weekends, apparently to avoid each other. The daughter sought to be appointed successor guardian and the wife objected, preferring the court appoint someone neutral who would protect access to the ward by both sides. The court asked if the daughter could cope with the duties of guardian if the ward was in Miami and the daughter was on the west coast of Florida. The daughter’s attorney replied that Acosta was an hour and a half away and she had a cousin, Raymundo Tamayo, a doctor in Cuba who lived in Miami and was studying to take the medical boards. Tamayo was only five minutes away in case of an emergency. The court appointed Acosta because she had taken a guardianship course and was “only an hour and a half away.”

On February 4, 2005, the wife’s attorney, Candis Trusty, served an Emergency Motion for Reconsideration of the appointment of Acosta and an Emergency Motion to Stay Discharge. Counsel complained that counsel for the guardian, Gladys Bal-leste, had agreed to submit to Trusty a draft of the proposed order before submitting it to the judge for signature, only to discover on January 4, 2005, that an order had been entered. Not only was Trusty not consulted prior to its execution, she was not even served with a copy after it had been signed. The order did not address any of the wife’s concerns about access to the ward.

The Emergency Motion resulted in a hearing that same day. On February 7, 2005, the court entered an order stating that the court required medical evidence on the issue of whether the ward’s needs could be served in a private home. “If the medical evidence supports the best interest of the [w]ard being in a private home, then this Court will hear further testimony about where the [wjard can reside.”

For reasons not apparent on the record, the court, on February 28, 2005, entered an order sua sponte re-affirming the authority of the guardian and holding that the guardian “has the authority to do what is in the best interest of the [wjard.” The next day, the court entered an order denying the wife’s emergency motion to prevent a change of the ward’s residence and held that “Barbara Acosta is permitted to change the [wjard’s residence to the Rehabilitation & Heart Care of Cape Coral, Florida, forthwith.”

That same day, counsel for the wife served and filed a hand-written motion to vacate the March 1 order, (1) protesting that she had been denied access to the court, (2) that the order was entered without hearing any medical testimony or testimony from interested persons in direct contravention of the February 7th order; and (3) that the guardian had failed to comply with section 744.2025, Florida Statutes (2004).

Counsel for the guardian filed a handwritten response stating that she had received a call from the judge’s judicial assistant informing her that the ward’s facility was going to discharge him and that the guardian had to take the ward. She claimed that the wife had refused to have the ward reside with her at the ward’s home. She also argued that the court on its own had expanded the guardian’s authority to do what was in the best interest of the ward. The guardian had obtained placement for the ward at a facility a block away from the guardian’s home. Finally, counsel stated that the ward was scheduled to be transferred that same day at 1:00 p.m.

A fifteen-minute hearing was held, after the fact, on March 7, 2005, at which the parties were instructed that no evidence would be taken. The judge stated that he had placed a call to the ward’s doctor, but the doctor would not take the call, he was too busy. The judge was told that the ward was going to be removed from the facility within the hour. “When I entered the order [presumably the sua sponte February 28, 2005 order], they told me that he was absolutely going to be removed.” The hearing ended with the court asking the guardian how far away was Cape Coral and the guardian answering that it was two hours away. The transcript does not reflect any ruling, but on March 30, 2005, the court entered an order denying the motion to vacate.

Section 744.2025(1), Florida Statutes (2004), dealing with a change of a ward’s residence, states:

(1) PRIOR COURT APPROVAL REQUIRED. — A guardian who has power pursuant to this chapter to determine the residence of the ward may not, without court approval, change the residence of the ward from this state to another, or from one county of this state to another county of this state, unless such county is adjacent to the county of the ward’s current residence. Any guardian who wishes to remove the ward from the ward’s current county of residence to another county which is not adjacent to the ward’s current county of residence must obtain court approval prior to removal of the ward. In granting its approval, the court shall, at a minimum, consider the reason for such relocation and the longevity of such relocation. (Emphasis added).

The statute does not give any guidance as to what is the “minimum” a court should do before making the decision to change a ward’s residence, but I cannot agree that what occurred in this case satisfied either the language or intent of the statute. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Furthermore, courts should make their decisions based on a complete record after notice and an opportunity to be heard is given to all interested persons. Such was not the case here.

The trial court did not hold a hearing. Thus, there is no judicial record to support the change in the ward’s residence. The majority finds, without explanation, that the statutory requirements were met by “[considering] the reason [given] for ... relocation.” Op. at 394. Does this mean that the court “considered” the reasons in private? Or does the majority mean that the court “considered” the reasons at the after-the-fact hearing on March 7th? When did the trial court “consider” placing the ward in any local facility?

The majority states that there was no dispute that the ward’s needs would be best met by living in a facility close to the guardian’s home. I find no record support for that statement. I also find no record support for the contrary, but that is the problem. The merits of the move from Miami to Cape Coral were never discussed at the trial level. The only hearing, on March 7, was not to discuss the merits of the move, but to allow the wife an opportunity to vent. Only the process, or lack thereof, was discussed.

It is not clear whether Gladys Vargas was given any notice that her husband was being moved to Lee County. But it is clear that she never had an opportunity to be heard. The only hearing that was held was after the fact, and the transcript clearly shows that, despite its February 7th order, the court never spoke with any health care professional. The wife was prevented from presenting to the trial court any evidence regarding her husband’s needs, the availability of local facilities that could meet his needs, as well as any other evidence that would assist the trial court in making an informed decision on what would be in the ward’s best interest.

Furthermore, I find no authority for the court’s delegation of authority to the guardian in its sua sponte February 28th order “to do what’s in the best interest of the [w]ard.” On the contrary, section 744.2025(1), Florida Statutes, specifically provides that the “court” shall consider the reason for the relocation. See State Farm Mut. Auto. Ins. Co. v. Kendrick, 780 So.2d 231, 233 (Fla. 3d DCA 2001) (“A trial court cannot delegate the sole authority to perform ‘a purely judicial function.’ ”), quoting from Larson v. State, 572 So.2d 1368, 1371 (Fla.1991) (“Even without objection, ... a trial court could not delegate to a probation officer the sole authority to revoke that defendant’s probation, since this is a purely judicial function.”). To vest unfettered authority on the guardian in such a hotly contested case cannot possibly satisfy due process.

I can appreciate the exigencies of the situation where the medical facility was threatening to remove the ward, but it seems that the wife’s counsel filed a handwritten motion before the ward was removed. There was nothing to prevent an emergency hearing taking place at that moment. The right to due process cannot be so casually ignored. Neither appellee’s brief nor the majority opinion cite a single case to justify what happened at the trial level.

Therefore, because I believe the trial court erred in changing the ward’s residence without providing a hearing and without giving the ward’s wife notice and an opportunity to be heard, I respectfully dissent. I would reverse and remand for the trial court to hold a hearing pursuant to section 744.2025(1), Florida Statutes, “to consider the reason for such relocation and longevity of such relocation.”


author: SALCINES, Judge.

text:
    Thomas E. WEAVER, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1003.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2006.
    Rehearing Denied May 2, 2006.

      James Marion Moorman, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Thomas E. Weaver appeals his conviction for battery on a law enforcement officer. Weaver asserts that the instruction to the jury for the battery charge was fundamentally defective. This case is controlled by this court’s opinion reversing the conviction of Gregory Weaver in Weaver v. State, 916 So.2d 895 (Fla. 2d DCA 2005), as well as Vega v. State, 900 So.2d 572, 573 (Fla. 2d DCA 2004). We affirm in part and reverse in part.

Thomas Weaver and Gregory Weaver are brothers. The two men were each charged with battery of a law enforcement officer and were tried together. The charges against the brothers arose out of an incident at an apartment complex where Gregory resided. Thomas Weaver and other family members were assisting Gregory in moving his belongings out of the apartment when a dispute arose. A crowd began to gather, and the Hillsbor-ough County Sheriffs Office was called. One deputy who responded to the call testified that he told the crowd of fifteen to twenty people to disburse. The crowd did not comply.

The deputy approached Thomas Weaver and asked if he was a resident. Weaver responded that he was not but that his brother lived in the complex. The deputy instructed Weaver to leave or to go stand beside a vehicle approximately ten feet away. Weaver did not obey the instruction but instead started walking toward his brother’s apartment. The deputy quickly followed Weaver and grabbed the back of his shirt. The deputy testified that Weaver spun around and, in the process, “hot” coffee that Weaver was holding in his right hand was thrown over his left shoulder into the deputy’s face. The deputy grabbed Weaver in a bear hug and attempted to control him. According to the deputy, Weaver was not cooperating and a struggle ensued with Weaver throwing back his elbows and kicking. Weaver was eventually handcuffed and taken into custody. The officer did not testify that he was injured during the incident.

Thomas Weaver testified that when the officer grabbed him from behind he thought he and the officer were going to collide with a pole. He stated that he turned, his legs gave out, he fell to the ground, and the coffee he was holding accidentally spilled on the officer. Weaver testified that the “coffee was never hot,” and he did not resist the officer.

In closing argument, the State declared that Thomas Weaver had committed a battery by throwing coffee on the deputy and by hitting the deputy with his elbows and legs as they were struggling. The State did not argue that the deputy had been injured but focused on the evidence of intentional touching by Weaver.

The jury was instructed, without objection, that to prove the crime of battery on a law enforcement officer, the State had to demonstrate that Thomas Weaver intentionally touched or struck the deputy against his will or caused bodily harm to the deputy. The jury returned a general verdict of guilty to the charge without specifying which form of the offense had been proven.

Thomas Weaver correctly asserts that fundamental error occurred when the jury was instructed on the uncharged bodily harm form of battery. The information charged, in pertinent part, only that Thomas Weaver did knowingly, unlawfully, and intentionally touch or strike a law enforcement officer. See §§ 784.03(1)(a)(1), 784.07(1)(a), Fla. Stat. (2003). In Weaver; Vega, 900 So.2d at 573; and Dixon v. State, 823 So.2d 792, 794 (Fla. 2d DCA 2001), this court held that it was fundamental error to instruct the jury on the two alternate forms of committing a battery on a law enforcement officer when the information charged the defendant with only one form of the crime and the jury returned a general verdict.

Accordingly, we reverse Thomas Weaver’s conviction for battery on a law enforcement officer and remand for a new trial. The judgment and sentence for obstructing or opposing an officer with violence are affirmed.

For the reasons set forth in Weaver, we certify the following question of great public importance:

DOES A TRIAL COURT COMMIT FUNDAMENTAL ERROR WHEN IT INSTRUCTS A JURY REGARDING BOTH “BODILY HARM” BATTERY ON A LAW ENFORCEMENT OFFICER AND “INTENTIONAL TOUCHING” BATTERY ON A LAW ENFORCEMENT OFFICER WHEN THE INFORMATION CHARGED ONLY ONE FORM OF THE CRIME AND NO EVIDENCE WAS PRESENTED NOR ARGUMENT MADE REGARDING THE ALTERNATE FORM?

Affirmed in part, reversed in part, and remanded for further proceedings; question certified.

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

      . Thomas Weaver was also convicted of obstructing or opposing an officer with violence. He does not raise an appellate issue concerning his conviction for this offense, and we affirm that judgment and sentence without further discussion.

      . The same information charged that Gregory Weaver had committed a similar battery against a second law enforcement officer. See Weaver.


author: WELLS, J.

text:
    Scott A. FERRIS, Esq., and Scott A. Ferris, P.A., Appellants, v. SOUTH FLORIDA STADIUM CORPORATION d/b/a Pro Player Stadium, and Huizenga Holdings, Inc., a Florida corporation, Appellees. Contemporary Services Company, Intervenor.
    No. 3D05-177.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2006.
    Rehearing Denied May 3, 2006.

      Jugo & Murphy; Philip D. Parrish, Miami, for appellants.
    Akerman Senterfitt and Nina K. Brown and Michael Fertig and Carolina Mahar-biz, Miami, for appellees.
    Ford & Harrison and Pedro P. Forment and Rene F. Ruiz, Miami, for intervenor.
    Before FLETCHER, WELLS, and SHEPHERD, JJ.
   WELLS, J.

Scott A. Ferris, Esq. and Scott A. Ferris, P.A., appeal from a judgment on the pleadings on their tortious interference claims against South Florida Stadium Corporation d/b/a Pro Player Stadium and Huizenga Holdings, Inc. We affirm.

The complaint alleges that for approximately twelve years, in numerous lawsuits in Miami-Dade, Broward and Palm Beach Counties, attorney Ferris and his firm represented Contemporary Services, an entity that provides event staff and security at Pro Player Stadium. In 1999, James Ped-ersen sued Pro Player Stadium for injuries sustained while attending an event at the stadium. During discovery, the Stadium claimed that Contemporary Services was at fault because it failed to provide adequate security. Contemporary Services was joined as a defendant and hired Ferris to represent it in that action.

Ferris took the position in defending Contemporary Services that Contemporary Services was not liable because it was providing only event staff, not security services, at the time Pedersen was injured. To support this defense, Ferris deposed a member of the Stadium’s administrative staff to question him about whether the Stadium had paid sales tax associated with security (but not event) personnel. Within days of this deposition, Ferris and his firm were fired by Contemporary Services.

Ferris and his firm then brought suit claiming that the Stadium tortiously interfered with their relationship with Contemporary Services by insisting that Contemporary Services terminate the relationship because the Stadium was “upset by [Contemporary Services’] exposing its failure to pay sales tax.” This interference, it is alleged, was unjustified because Ferris and his firm “were simply providing Contemporary Services with a vigorous defense in litigation where [Contemporary Services] was brought in by the [Stadium’s] own affirmative defense pointing the finger at [Contemporary Services].”

As the trial court correctly recognized, these allegations will not support a claim for tortious interference. Intentional interference with a business relationship requires: (1) existence of a business relationship that affords the plaintiff with existing or prospective legal or contractual rights; (2) defendant’s knowledge of that relationship; (3) an intentional and unjustified interference with that relationship by the defendant; and, (4) damage to the plaintiff resulting from the breach of that relationship. See Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla.1995); Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1127 (Fla.1985).

The general rule is that an action for tortious interference will not lie where a party interferes with an at will contract such as the one involved here. See United States Sav. Bank v. Pittman, 80 Fla. 423, 86 So. 567, 573 (1920)(confirming that an attorney-client relationship is “at will” and may be terminated at any time with or without cause); see also Rosenberg v. Levin, 409 So.2d 1016, 1021 (Fla.1982)(confirming the attorney-client relationship is one in which the client enjoys a “greater freedom to change legal representatives than might be tolerated in other employment relationships”); Greenberg v. Mount Sinai Medical Ctr. Of Greater Miami, Inc., 629 So.2d 252, 255 (Fla. 3d DCA 1993)(noting that “[t]he general rule is that an action for tortious interference will not lie where a party tortiously interferes with a contract terminable at will”). It is only where interference with an at will relationship is direct and unjustified that such interference is actionable. See Perez v. Rivero, 534 So.2d 914, 916 (Fla. 3d DCA 1988).

Conceding the Stadium and Huiz-enga intended, as alleged, to interfere with the Ferris-Contemporary Services at will attorney-client relationship by insisting on Ferris’ termination, the inquiry becomes whether that interference was unjustified. As Ferris in his brief concedes, those who encourage or cause a rupture in the attorney-client relationship by means of fraud, coercion, or other wrongdoing are not justified in doing so. See Ellis Rubin, P.A. v. Alarcon, 892 So.2d 501, 503 (Fla. 3d DCA 2004)(concluding that an attorney could state a claim for tortious interference where the client and a third party had engaged in fraud and collusion by falsely representing that an action had been dropped while concealing a settlement that would have entitled the attorney to a contingency fee). However, in this case, no fraud, collusion or other wrongdoing is alleged.

The complaint alleges only that the Stadium and Huizenga were displeased with a legitimate defense Ferris had asserted on Contemporary Services’ behalf; that the Stadium and Huizenga insisted that Contemporary Services fire the attorney asserting this defense; and that the Stadium and Huizenga “knew that [Contemporary Services] would be forced to acquiesce to [their] demand rather than risk losing its lucrative business relationship with [the Stadium and Huizenga].” These allegations detail no wrongdoing on the Stadium and Huizenga’s part.

Voicing displeasure with the positions taken by a co-defendant does not constitute wrongdoing. Insisting that a co-defendant terminate an attorney for advancing certain unfavorable positions also constitutes no wrongdoing. This is so even where, as here, the demand is made with knowledge that the co-defendant will most likely agree rather than risk financial advantage. In short, the complaint fails to allege that the Stadium and Huiz-enga engaged in any conduct proscribed by statute, which constitutes an independent tort, or which might be described as “bad.” See GNB, Inc. v. United Danco Batteries, Inc., 627 So.2d 492, 494 (Fla. 2d DCA 1993) (Altenbernd, J., dissenting). Under the circumstances, we agree that Ferris did not state a cause of action for intentional interference with the instant at will relationship.

Affirmed.

      . Specifically, as to the Stadium, the complaint alleges:
      16. Ten days after ... [the] deposition [of the Stadium's administrative staff member], Plaintiffs were advised by [Contemporary Services] that it was terminating their long standing relationship ... because the Defendant, [the Stadium], had pressured [Contemporary Services] into terminating their relationship. Plaintiffs were advised that [the Stadium] was insisting on Plaintiffs’ termination because it was upset by Plaintiffs' exposing its failure to pay sales tax.
      17. The [Stadium's] actions in demanding that [Contemporary Services] terminate its relationship with Plaintiffs were done intentionally to punish Plaintiffs for having raised [the Stadium's] failure to pay required sales tax in the [personal injury] litigation, and to ensure that a similar line of questioning would not be used in future cases.
      18. The [Stadium's] actions in demanding that [Contemporary Services] terminate its relationship with Plaintiffs were unjustified in that Plaintiffs were simply providing [Contemporary Services] with a vigorous defense in litigation where [Contemporary Services] was brought in by the [Stadium's] own affirmative defense pointing the finger at [Contemporary Services].
      19. The [Stadium] knew that [Contemporary Services] would be forced to acquiesce to the [Stadium's] demand that Plaintiffs be terminated rather than risk losing its lucrative business relationship with [the Stadium].
      20. As a direct and proximate result of the [Stadium's] intentional and unjustified interference with Plaintiffs' business relationship with [Contemporary Services], the Plaintiffs have suffered a loss of income in the past, loss of prospective income, and great mental anguish in the past and in the future.
      The same allegations are asserted against Huizenga in paragraphs 31 through 35 of the complaint.

      . Ferris and his firm also sought to recover against both the Stadium and Huizenga for intentional infliction of emotional distress. Ferris and his firm do not seek appellate relief from the order dismissing those claims.


author: FLETCHER, Judge.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, as successor in interest to Florida Residential Property and Casualty Joint Underwriting Association, Appellant, v. Renee WISE; and Robin W. Luker and Judith K. Luker, etc., Appellees.
    Nos. 3D05-1352, 3D05-754.
    District Court of Appeal of Florida, Third District.
    Feb. 1, 2006.
    Rehearing Denied May 3, 2006.
    Colodny, Fass, Talenfeld, Karlinsky & Abate and Sandy P. Fay (Ft. Lauderdale), for appellant.
    Richard A. Friend; Langbein & Lang-bein and Evan J. Langbein (Miami), for appellees.
    Before FLETCHER, WELLS, and SHEPHERD, JJ.
   FLETCHER, Judge.

Citizens Property Insurance Corporation [Citizens] appeals a final summary judgment and attorney’s fee award.

Renee Wise owns property that she leased to Robin and Judith Luker for two years with an option to buy. The Lukers’ son was injured on the property and the Lukers filed a negligence claim for damages upon Wise’s homeowner policy issued by Citizens. Citizens filed for declaratory relief, seeking a declaration that Citizens was not obligated to indemnify Wise.

The trial court reviewed the insurance contract, specifically “Section II — Exclusions.” This section provides in pertinent part:

“1. Coverage E — Personal Liability and Coverage F — Medical payments to Others do not apply to ‘bodily injury’ or ‘property damage’:
c. Arising out of the rental or holding for rental of any part of any premises by an ‘insured.’ This exclusion does not apply to the rental or holding for rental of an ‘insured location’:
(1)On an occasional basis if used only as a residence;” [e.s.]

The argument in the trial court and here is over the use of “occasional” in the policy; that is, if Wise can be said to have been renting out her residential property occasionally, then there is coverage for the injury to the Lukers’ son.

The record reflects that Wise’s two year rental of the premises to the Lukers is the only time that it was rented out and that it was rented as part of Wise’s effort to sell the property. The trial court concluded that this one rental was occasional thus there was coverage for the injury to the Lukers’ son.

However, the issue as to the meaning of “occasional rental” in an insurance contract was befpre this court in Hess v. Liberty Mut. Ins. Co., 458 So.2d 71 (Fla. 3d DCA 1984). In Hess this court stated:

“The reasonable, practical and sensible interpretation of the language ‘any part of a premises occasionally rented to any insured for other than business purposes’ does not refer to the situation where a father co-signs a one year lease for his daughter. Rather it refers to rentals occurring now and then, such as vacation rentals.” [e.s.]

Id. at 72.

We conclude that as Wise did not rent her house “now and then,” there is no coverage for the injury to the Lukers’ son. Accordingly the judgment appealed is reversed, as is the order awarding attorney’s fees.

      . Wise remained on the property, living in a camper.

      . The interpretation accords with the Oxford English Dictionary's definition of "occasional” as "happening irregularly and infrequently.” The Oxford Encyclopedic English Dictionary, 1004 (3rd ed.1996).

      . We find the Lukers' remaining arguments to be without merit.


author: DEMERS, DAVID A., Associate Judge.

text:
    ALLISON TRANSMISSION, INC., Appellant, v. J.R. SAILING, INC., Appellee.
    No. 2D05-1425.
    District Court of Appeal of Florida, Second District.
    March 3, 2006.
    Rehearing Denied May 2, 2006.

      David B. Shelton, Charles P. Mitchell, and Steven I. Klein of Rumberger, Kirk & Caldwell, Orlando, for Appellant.
    Patrick S. Cousins of Cousins Law Firm, P.A., West Palm Beach, for Appellee.
   DEMERS, DAVID A., Associate Judge.

This appeal is from a final judgment in which J.R. Sailing, Inc. (Sailing), was awarded a refund against Allison Transmission, Inc. (Allison), pursuant to the Motor Vehicle Warranty Enforcement Act (the Act), Chapter 681, Florida Statutes (1999), popularly referred to as the “Lemon Law.” Allison, a subsidiary of General Motors Corporation, contends it is entitled to a new trial because of certain jury instructions given by the trial court over its objections and because the trial court overruled its objections to closing argument of Sailing’s counsel. We agree with Allison and reverse.

Sailing is a closely held corporation formed by Francis and Joyce Regan apparently for the sole purpose of taking title to their thirty-eight-foot recreational vehicle (RV), which they purchased in 1999, from a dealer at a price of $158,745. Allison’s only contribution to the manufacture of the RV was the transmission. Some weeks after the purchase, the Regans noticed a noise emanating from the transmission which Mr. Regan described as “serious,” “substantial,” and “loud enough to impair the value of the vehicle.” After several complaints by Sailing and corresponding unsuccessful attempts by Allison to alleviate the condition to Sailing’s satisfaction, the parties went to arbitration pursuant to section 681.1095(4) of the Act. Section 681.104(2)(a) requires the manufacturer to conform the motor vehicle to the warranty or repurchase the vehicle. The principal issue at arbitration was whether the vehicle had a “nonconformity” as defined in section 681.102(16), i.e., “a defect or condition that substantially impairs the use, value, or safety of a motor vehicle.”

If a consumer loses at arbitration, section 681.1095(12) provides that the consumer may file a civil action in circuit court and receive a trial de novo. In this case, the arbitrators decided that there was no transmission defect or nonconformity for which Allison was responsible. The arbitrators attributed the problem to the engine, which was not manufactured by Allison. Sailing then brought suit against Allison in the circuit court seeking its Lemon Law remedies in addition to damages under several other breach of warranty claims. The other breach of warranty claims were decided by the jury in favor of Allison and are not involved in the instant appeal.

During the trial, both parties offered expert testimony in án effort to convince the jury that there was, or was not, a “nonconformity,” as defined in the statute. A manager of an RV dealership testified on behalf of Allison that the noise would not have reduced the value of the vehicle and that he would have accepted the vehicle as a trade. Mr. Regan, one of the principals of Sailing, testified that after many work orders and two transmission changes, the noise was still evident and was “annoying” and “unacceptable.” With regard to the value of the vehicle, he testified it’s “worth zero to me the way it is, but if you had to put a value on it, $20,000, $15,000, whatever.” Urged by his counsel to specify a value, he settled on $15,000. He also testified that the RV had been stored for many months because he and his wife were afraid to use it.

During rebuttal closing argument, Sailing’s counsel referred to Mason v. Porsche Cars of North America, Inc., 688 So.2d 361 (Fla. 5th DCA 1997), a Lemon Law case in which the Fifth District reversed a trial court’s directed verdict in favor of the manufacturer, Porsche. The plaintiff, Mason, testified at the trial that the vehicle’s problems substantially impaired its use and value to him. His mechanic, David White, testified as an expert that the condition of the transmission was “annoying” and “unacceptable.” Id. at 369. In reversing the directed verdict of the trial court, the Fifth District stated that the testimony of Mason and White “is competent evidence of substantial impairment of use.” Id. In the instant case, Sailing’s counsel was permitted, over objection, to argue to the jury that “annoying and unacceptable” was the standard for determining a nonconformity and that the judge would instruct them accordingly.

The Mason decision was not part of the evidence, and counsel’s argument was not fair commentary. Improper closing argument may be grounds for granting a new trial. See Carlton v. Johns, 194 So.2d 670 (Fla. 4th DCA 1967). Here, counsel’s closing argument was improper and exacerbated by the trial court’s instruction to the jury. The trial court instructed the jury, over Allison’s objection, as follows:

Nonconformity means a defect or condition that substantially impairs the use, value or safety of a motor vehicle, but does not include a defect or condition that results from an accident, abuse, neglect, modification or alteration of the motor vehicle by persons other than the manufacturer or its authorized service agent. A condition that is annoying or tmacceptable to the owner can be evidence that the defect substantially impairs it use, value or safety.

(Emphasis added). While the first sentence of the instruction is simply a repetition of the statutory language of section 681.102(16), the final sentence of the instruction was a product of the Mason court’s language quoted above and was a clear emphasis of some of the evidence to the exclusion of other competing evidence. Allison reminds us of the Third District’s admonition in Sarduy v. State, 540 So.2d 203, 205 (Fla. 3d DCA 1989), that “[passages from appellate opinions, taken out of context, do not always make for good jury instructions.”

There are several significant factual distinctions between the Mason case and the instant case, but the key distinction is procedural: the Mason court was overruling the trial court’s directed verdict in favor of Porsche because Mason had presented sufficient evidence of a nonconformity for the issue to go to the jury. The court stated that “[w]hen viewed in the most favorable light, the above-discussed testimony of Mason and White was sufficient to establish that the alleged general problem, i.e. the shudder, constituted a nonconformity.” Mason, 688 So.2d at 368. When the Fifth District reversed and remanded it was directing only that the evidence be presented to the jury along with other competing evidence, not expressing a conclusion that a nonconformity had in fact been established. Once evidence is admitted, it is uniquely the province of the jury, not the trial court, to determine its weight and credibility. Tynan v. Seaboard Coast Line R.R. Co., 254 So.2d 209 (Fla.1971); Beard v. State, 104 So.2d 680 (Fla. 1st DCA 1958). “In ruling on [a motion for directed verdict], a trial court may not pass on the credibility of witnesses or weigh competing evidence.” Stringer v. Katzell, 674 So.2d 193, 195 (Fla. 4th DCA 1996).

Here, the trial court chose to highlight particular evidence in its instruction to the jury. This was error, especially since there was conflicting evidence on the issue. See Fenelon v. State, 594 So.2d 292 (Fla.1992) (holding that it was error to emphasize evidence of flight by giving a jury instruction on the significance of flight). The trial court chose to emphasize to the jury only the subjective opinion of Sailing’s witness, Mr. Regan. Furthermore, the trial court’s instruction was confusing to the jury — even more so because it seemed to cast judicial approval on counsel’s final argument. The jury could have believed that once Sailing introduced evidence that the transmission was “annoying or unacceptable to the owner,” that was all it needed to find a “nonconformity” in the transmission and that it did not need to consider Allison’s conflicting evidence. An instruction that emphasizes some particular evidence or which tends to confuse the jury and cause them to arrive at a conclusion that otherwise they would not have reached is cause for reversal and a new trial. Collins Fruit Co. v. Giglio, 184 So.2d 447 (Fla. 2d DCA 1966); 325 W. Adams St., Ltd., v. City of Jacksonville, 863 So.2d 380 (Fla. 1st DCA 2003), review denied, 876 So.2d 562 (Fla.2004); Sw. Ins. Co. v. Stanton, 390 So.2d 417 (Fla. 3d DCA 1980).

This court must address another issue. It deals with the Lemon Law statute, which provides in section 681.104(2)(a):

If the manufacturer ... cannot conform the motor vehicle to the warranty by repairing or correcting any nonconformity after a reasonable number of attempts, the manufacturer, within 40 days, shall repurchase the motor vehicle and refund the full purchase price to the consumer, less a reasonable offset for use.... The refund or replacement must include all reasonably incurred collateral and incidental charges. However, the consumer has an unconditional right to choose a refund rather than a replacement motor vehicle. Upon receipt of such refund or replacement, the consumer, lienholder, or lessee shall furnish to the manufacturer clear title to and possession of the motor vehicle.

The trial court instructed the jury on the foregoing statutory remedy, including the mandate that the consumer “shall furnish” title and possession to the manufacturer upon receipt of the refund. Allison contends that the jury should have clearly provided that it was entitled to title and possession, while Sailing argues that the jury could have awarded it both the refund and the title to the vehicle .as “damages,” citing King v. King Motor Co., 780 So.2d 937 (Fla. 4th DCA 2001). But King is inapposite because, in that case, ■ the Fourth District decided only the narrow question of whether a consumer had to furnish clear title to and possession of a motor vehicle in order to bring a circuit court action for “damages” under section 681.112. The court held that section applied only in “circumstances where a refund or replacement is not an option.” Id. at 941. That is not the circumstance presented here. The evidence here is that the RV has been stored for some time so there is nothing to prevent the tender of title and possession.

The law clearly mandates tender of title and possession in this case. The jury awarded a “total refund” to Sailing of $165,000, which presumably included “reasonably incurred collateral and incidental charges.” The verdict form did not provide for furnishing clear title and possession of the RV to Allison, nor did it purport to make such an award to Sailing. However, the statute is mandatory that the consumer “shall furnish” title and possession upon receipt of the refund. Thus neither the trial court nor the jury had the discretion to award title and possession to Sailing in addition to a refund. The statutory scheme is clear. The manufacturer must “repurchase” and “refund,” upon which occurrence the consumer “shall furnish” title and possession. If, following a new trial, the verdict is again in favor of Sailing, the trial court is directed to order that the statutory mandate requiring the tender of title and possession upon payment of the refund is carried out.

Reversed and remanded for a new trial.

FULMER, C.J., and NORTHCUTT, J., Concur.


author: PER CURIAM.

text:
    James L. FREDERICK, Petitioner, v. Monica DAVID, Chairman Florida Parole Commission, Respondent.
    No. 1D05-4353.
    District Court of Appeal of Florida, First District.
    March 7, 2006.
    Rehearing Denied April 26, 2006.
    Pro se, for Petitioner.
    Susan Schwartz, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

In this petition for writ of certiorari, James Frederick (Petitioner) argues the circuit court departed from the essential requirements of law by denying his petition for writ of mandamus, which sought a recalculation of his presumptive parole release date (PPRD). We deny the petition.

Petitioner was sentenced in January, 1979 to a life sentence for first degree murder, and a consecutive twenty-five year sentence for attempted first degree murder, which were both committed on August 12, 1978. He was also sentenced to a concurrent five year sentence for violation of probation on uttering a forged instrument, committed in 1976.

On June 5, 2002, the Florida Parole Commission (FPC) established Petitioner’s PPRD as June 12, 2018. FPC assessed two salient factor points, one for Petitioner’s prior conviction and one for probation revocation. When combined with a severity ranking of six for the capital felony first degree murder, Petitioner received a matrix range of 180-240 months. The FPC selected 240 months, and added a 120 month aggravator for the attempted murder sentence, a 60 month aggravator because the offense involved a firearm, and a 60 month aggravator for the uttering conviction. When the 480 months was added to a time begins date of June 12, 1978, the PPRD was established as June 12, 2018. A subsequent biennial interview in April 2004 resulted in no change to the PPRD.

Petitioner filed a petition for writ of mandamus, contesting the calculation of his PPRD, and denial of an administrative review following the subsequent biennial interview. Petitioner argued the salient factor should have been in the 0-1 range, and the attempted murder charge has a severity ranking of 4 in the matrix time range, and should not have been assessed as an aggravator. Petitioner sought a “time begins” date of August 20, 1978, based on his January 8, 1979 sentence for murder, less 141 days credit for time served. The circuit court denied the petition.

Review of a circuit court’s denial of a petition for writ of mandamus, when sitting in its appellate capacity, is limited to whether the circuit court afforded due process and observed the essential requirements of law. See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved, 720 So.2d 216 (Fla.1998); Bolden v. Fla. Dep’t of Corr., 865 So.2d 1 (Fla. 1st DCA 2003).

Florida Administrative Code Rule 23-21.007, provides the requirements for salient factor scoring. Specifically, if an inmate has one or two prior convictions, he receives one point, and if he has ever had one or more adult probation revocations, he receives one point. See Fla. Admin. Code R. 23-21.007(1), (5)(b). There is no provision for omitting a prior conviction due to its age. Here, Petitioner had a prior conviction for uttering, which was committed in 1976, and a violation of probation for uttering. Consequently, he was properly assessed two salient factor points.

Florida Administrative Code Rule 23-21.008, provides for scoring based on the severity of the offense. Specifically, it provides that the severity of the offense score reflect the present offense based on the degree of the offense, and if the present offense involved multiple separate offenses, the severity score is based on the most serious offense. Id. The other offense(s) can be used as aggravating factors, whether those commitments are active or expired. Id. Here, Petitioner’s most serious offense was the first degree murder, a capital felony. The FPC properly used that offense to provide the severity of the offense score.

Finally, Florida Administrative Code Rule 23-21.011, provides the mechanism for calculating the “time begins” date. Here, Petitioner was sentenced on January 8, 1979, with credit for 141 days of credit. Petitioner admits that, if he is given credit for 141 days, his time begins date would be August 20, 1978. However, the FPC gave Petitioner credit for 220 days, based on his time in custody on the uttering charge, resulting in a time begins date of June 12, 1978. The earlier date appears to be correctly calculated and, moreover, works to Petitioner’s benefit by permitting him to be released two months earlier.

Based on the foregoing, the circuit court did not depart from the essential requirements of law when it denied Petitioner’s petition for writ of mandamus. Accordingly, the petition for writ of certiorari is DENIED.

VAN NORTWICK, HAWKES, and THOMAS, JJ., concur.


text:
    Gary PARRISH and Joellen Parrish, etc., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 5D05-1523.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2006.
    Rehearing Denied April 13, 2006.
    Robert M. Moletteire of Graham, Molet-teire & Torpy, Melbourne, for Appellant.
    Alfred Washington, Jr., of Hassell, Moorhead & Carroll, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. Orhama, Inc., 907 So.2d 594 (Fla. 3d DCA 2005).

SAWAYA, PALMER, and LAWSON, JJ., concur.


text:
    Erroll M. JOHNSON, Appellant, v. Valerie F. ZIEGLER, Appellee.
    No. 2D05-1877.
    District Court of Appeal of Florida, Second District.
    March 8, 2006.
    Rehearing Denied May 2, 2006.
    Erroll M. Johnson, pro se.
    Valerie F. Ziegler, pro se.
   DEMERS, DAVID A., Associate Judge.

In this case, both parties had petitioned the trial court to modify an existing child custody decree under which the father had primary custody of the minor son and the mother had primary custody of the minor daughter. The father sought permanent custody of both children so they could move with him to an out-of-state location where he would be employed at significantly higher income. The mother sought sole custody of the children because the father intended to move out of Florida.

The trial court denied both petitions finding that neither party had met the legal test required for modifying child custody arrangements as expressed in Gibbs v. Gibbs, 686 So.2d 639, 641 (Fla. 2d DCA 1996), in which this court held that a party seeking a modification must meet “the two-prong extraordinary burden test” to overcome the presumption in favor of the existing custodial parent. The court held there that a parent attempting a change in custody must show (1) that there has been a substantial change in circumstances since the decree and (2) that not only would the custody change be in the best interest of the child, but maintenance of the status quo would be detrimental to the child.

The trial court did not have the benefit of the Florida Supreme Court’s recent decision in Wade v. Hirschman, 903 So.2d 928 (Fla.2005), in which the court disapproved the detriment factor discussed in Gibbs, holding that “[r]equiring proof of detriment is inconsistent with this Court’s prior holdings and is not an element of the substantial change test necessary to modify a child custody award.” Id. at 934.

Accordingly, we reverse and remand to the trial court with instructions to reconsider its order in light of Wade.

FULMER, C.J., and NORTHCUTT, J., Concur.


author: NORTHCUTT, Judge.

text:
    Michael Eugene AKINS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-763.
    District Court of Appeal of Florida, Second District.
    March 10, 2006.
    Rehearing Denied April 28, 2006.
    Michael Eugene Akins, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Michael Akins violated his probation and was sentenced to five years’ -imprisonment. He timely filed a motion to reconsider his sentence, which the court denied. See Fla. R.Crim. P. 3.800(c). Akins challenges that denial in this appeal. Such an order is not appealable, however, and Akins has shown no basis for invoking our certiorari jurisdiction. See Tsikuris v. State, 913 So.2d 1200 (Fla. 2d DCA 2005). Accordingly, we dismiss this proceeding.

We note that Akins has also raised a double jeopardy issue concerning a supposed amendment of his sentence. The circuit court originally sentenced him on November 19, 2004. In his brief, Akins claims that on April 29, 2005, the court entered an amended sentence designating him as a habitual offender, a provision not included in his original sentence. Akins’s motion to mitigate and this appeal from the denial of that motion were filed before the amended sentence was rendered. Moreover, our record does not establish that he has challenged the amendment in the circuit court. As such, we have no jurisdiction to review the double jeopardy issue in this proceeding. We express no opinion about whether Akins may be entitled to relief on that point. See Ashley v. State, 850 So.2d 1265 (Fla.2003); Evans v. State, 675 So.2d 1012 (Fla. 4th DCA 1996). But see Scanes v. State, 876 So.2d 1238 (Fla. 4th DCA), review denied, 892 So.2d 1014 (Fla.2004). But this opinion is without prejudice to his right, if any, to raise this issue in a motion pursuant to Florida Rule of Criminal Procedure 3.800(a).

Dismissed.

SALCINES, J., and DANAHY, PAUL W., Senior Judge, Concur.


author: BENTON, J.

text:
    Roy STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1824.
    District Court of Appeal of Florida, First District.
    March 14, 2006.
    Rehearing Denied April 20, 2006.

      Nancy A. Daniels, Public Defender; Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Roy Stewart appeals the revocation of his community control status on account of his termination from a drug treatment program. He contends the trial judge necessarily relied on hearsay in finding that he had willfully violated a condition of community control. We reverse the revocation order and ensuing prison sentence, and remand for further proceedings.

The condition at issue was imposed by checking a box on a form next to the phrase “Inpatient drug treatment.”' At the revocation hearing, the director of the drug treatment program testified that Mr. Stewart participated in inpatient drug treatment for a little over a month, before he was discharged after refusing to leave a building during a fire drill, saying he was cold and did not have anything warm to put on. Prior to this incident, moreover, the director testified, Mr. Stewart had been involved in “verbal altercations” with other residents and had demonstrated a “lack of tolerance of others.” But the director testified that she did not personally observe any of the behavior that she identified as the basis for his exclusion from the program.

Trial courts are not without discretion in revoking probation, see Bernhardt v. State, 288 So.2d 490, 495 (Fla.1974); Van Wagner v. State, 677 So.2d 314, 317 (Fla. 1st DCA 1996), and presumably in revoking community control, as well. But the rule is:

The trial court may revoke probation or community control only if the State proves by the greater weight of the evidence that the defendant willfully and substantially violated a specific condition of the probation or community control. Padelt v. State, 793 So.2d 30, 31 (Fla. 2d DCA 2001).

Yates v. State, 909 So.2d 974, 974-75 (Fla. 2d DCA 2005). Whether a violation is willful and substantial must be decided case by case. See State v. Carter, 835 So.2d 259, 261 (Fla.2002). This determination is

necessary because to revoke probation or community control, a violation must always be determined to have been willful and substantial. See generally Thomas v. State, 760 So.2d 1138 (Fla. 5th DCA 2000); McCray v. State, 754 So.2d 776 (Fla. 3d DCA 2000); Inman v. State, 684 So.2d 899 (Fla. 2d DCA 1996); Green v. State, 620 So.2d 1126 (Fla. 1st DCA 1993).

State v. Meeks, 789 So.2d 982, 987 (Fla.2001). “The State bears the burden of proving a willful and substantial violation of supervision” by competent evidence. Thompson v. State, 890 So.2d 382, 383 (Fla. 2d DCA 2004) (“Although hearsay evidence is admissible at the revocation hearing, the defendant’s probation or community control cannot be revoked solely on the basis of hearsay. Knight v. State, 801 So.2d 160 (Fla. 2d DCA 2001).”).

At the hearing, the learned trial judge acknowledged that findings essential to revocation could not be based solely on hearsay (not falling within some exception to the rule excluding hearsay), but that admissible evidence was required. The trial court ruled:

Well, you can’t find someone in violation on hearsay. However, we have some direct testimony from Mr. Stewart himself, where he admits that he did not successfully complete the program.
I find he willfully violated Condition 32 [“Inpatient drug treatment”].

Competent evidence unquestionably established that Mr. Stewart was expelled from the drug treatment program before the program ended. But the only evidence that the conduct that led to the discharge amounted to a “willful” or “substantial” violation of the conditions of community control was the director’s hearsay testimony.

The trial court impermissibly relied on this hearsay evidence. See Thompson, 890 So.2d at 383. See also Dawson v. State, 921 So.2d 763 (Fla. 1st DCA 2006); Meade v. State, 799 So.2d 430, 433 (Fla. 1st DCA 2001); Gammon v. State, 778 So.2d 390, 392 (Fla. 2d DCA 2001); Thomas v. State, 711 So.2d 96, 97 (Fla. 4th DCA 1998); Andrews v. State, 693 So.2d 1138, 1141 (Fla. 1st DCA 1997). As we said in Meade (in regard to revocation of probation), “[bjecause this hearsay evidence was the only evidence Appellant was terminated ... from the treatment program for willingly failing to participate, it is insufficient to support a finding of violation, of probation.” Meade, 799 So.2d at 433.

Reversed and remanded.

ALLEN and VAN NORTWICK, JJ., concur.


author: ALLEN, J. POLSTON, J.,

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a foreign corporation, Appellant, v. Barbara REIS and Joseph Reis, Appellees.
    No. 1D05-576.
    District Court of Appeal of Florida, First District.
    March 14, 2006.
    Rehearing Denied April 19, 2006.

      J. Wiley Horton and Leslie G. Street of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for appellant.
    David H. Burns and Talley Kaleko of Cox & Burns, P.A., Tallahassee, for appel-lees.
   ALLEN, J.

The appellant, State Farm Mutual Automobile Insurance Company, the insurer under an automobile insurance policy providing coverage to Robert, Barbara, and Joseph Reis, challenges a final judgment by which damages were awarded to appel-lees Barbara Reis and Joseph Reis pursuant to the policy’s uninsured/under-insured motorist provisions for their pain and suffering as a consequence of witnessing the death of Robert Reis in an Alabama automobile accident.- Robert Reis, whose death was caused by the negligence of an under-insured driver, was the husband of Barbara Reis and the father of Joseph Reis. State Farm does not challenge the trial court’s determination that the appel-lees’ damages were independently recoverable by the appellees under the applicable tort law of Alabama as part of their own bodily injuries arising from the accident. State Farm argues instead that the insurance proceeds available for these damages under the policy’s coverage provisions were exhausted when State Farm paid Robert Reis’s estate the policy limits for bodily injury for “Each Person.” Because the ambiguous coverage provisions of the policy may reasonably be read to provide coverage to the extent of the greater “Each Accident” coverage limit, we construe the coverage provisions as providing this greater amount of coverage and affirm the final judgment.

State Farm properly argues that the insurance policy should be construed under Florida contract law, and it also properly offers no argument that Florida tort law need be considered. See, e.g., Langston v. Personal Service Ins. Co., 377 So.2d 993 (Fla. 2d DCA 1979).

The standard of review in construing this insurance contract is de novo. Management Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627 (Fla. 1st DCA 1999). Insurance contracts are construed according to their plain meaning. But when the relevant language of an insurance policy is susceptible to more than one reasonable interpretation, one providing coverage and the other limiting coverage, the policy is considered ambiguous. An ambiguous provision is construed in favor of the insured and strictly against the drafter. Swire Pacific Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161 (Fla.2003); Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29 (Fla.2000).

The material contract provisions relating to uninsured/under-insured motorist coverages for bodily injury are set forth in the policy as follows:

Bodily Injury — means bodily injury to a person and sickness, disease or death which results from it.
We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle. The bodily injury must be sustained by an insured and must be caused by accident arising out of the operation, maintenance or use of an uninsured motor vehicle.
The amount of coverage is shown on the declarations page under “Limits of Liability — U—Each Person, Each Accident”. Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person ” includes all injury and damages to others resulting from this bodily injury. Under “Each Accident” is the total amount of coverage, subject to the amount shown under “Each Person”, for all damages due to bodily injury to two or more persons in the same accident.

State Farm argues that this policy language means that when one insured seeks damages for bodily injuries suffered in an automobile accident and a second insured seeks damages for bodily injuries suffered in the same accident, but with the bodily injuries to the second insured having causally resulted from the bodily injuries to the first insured, the total amount payable under the policy to these two insureds is the amount of coverage specified for “Each Person.” State Farm therefore sees the words “resulting from” as relating exclusively to causation and argues that when bodily injuries to a second insured would not have occurred “but for” the bodily injuries to the first insured, both insureds are subject to a single “Each Person” coverage limit.

State Farm relies upon the Eighth Circuit’s opinion in State Farm Mutual Automobile Insurance Co. v. Wolff, 926 F.2d 755 (8th Cir.1991), as support for its construction of the policy language. In that case, Ms. Wolff was rendered a quadriplegic in a North Dakota automobile accident due to the negligence of a driver insured by State Farm. The “Limits of Liability” language in the liability coverage portion of the driver’s policy was identical to the above-quoted “Limits of Liability” language in the appellees’ policy in the present case. Ms. Wolff sought damages for her injuries and her husband sought damages for his resulting loss of consortium. After State Farm paid out the “Each Person” limit to Ms. Wolff, it took the position that no further coverage was available to cover Mr. Wolffs consortium claim. But Mr. Wolff argued that the “resulting from” language was intended to refer to derivative claims and that since his consortium claim was not a derivative claim under North Dakota law, he was entitled to recovery for his loss of consortium up to the “Each Accident” limit. The Wolff court wrote:

Wolff contends that his loss of consortium claim is not derivative, but a wholly independent cause of action. This is apparently meant to get around the “resulting from” language in the “Each Person” section. This argument, however, is irrelevant, because Wolff is arguing the legal attributes of a loss of consortium claim, and ignoring the nature of the injury. He cannot deny that without his wife’s injuries, he would not have the cause of action. Therefore, his injury results from his wife’s injuries, and the “Each Person” limit of liability applies.
Wolff argues that the “Each Accident” limit applies because his loss of consortium claim includes a claim for bodily injury because of his emotional distress and psychological injury. State Farm responds that the “Each Accident” limit is inapplicable because under the plain language of the policy Wolff would have to have sustained a separate bodily injury in the same accident. Both parties have extensively argued the issue of whether a loss of consortium claim would be considered a separate bodily injury under North Dakota law. We need not decide this issue, however, because Wolffs claim fails the second requirement for “Each Accident” coverage, namely that the injury occur in the same accident. Under North Dakota law, the injury giving rise to a loss of consortium claim occurs after the accident.
In sum, the plain language of the policy does not require State Farm to cover Wolffs loss of consortium claim. The claim is subject to the “Each Person” limit of liability as an injury resulting from the bodily injury of another. The claim does not fall under the “Each Accident” limit of liability, however, because Wolffs injury occurred after the accident.

926 F.2d at 757 (citations omitted). The first paragraph of this excerpt from Wolff would seem to indicate that those injuries to Mr. Wolff which would not have occurred except for the injuries to Ms. Wolff were subject to the same “Each Person” coverage limit applicable to Ms. Wolffs injuries, and that Mr. Wolff therefore was not entitled to recover for these injuries up to the “Each Accident” coverage limit. Although this language seems to support State Farm’s argument in the present case, the Wolff court did not end its analysis at this point. Somewhat confusingly, the court instead proceeded to address arguments relating to whether the “Each Accident” coverage limit might nevertheless apply to the loss of consortium claim, with the court concluding that the “Each Accident” coverage limit was inapplicable, not because the consortium claim resulted from the wife’s injuries but because Mr. Wolffs injury “occurred after the accident.”

Although Wolff appears to be of dubious value in supporting the construction urged by State Farm in the present case, State Farm’s suggested interpretation of the insurance contract is nevertheless one possible reading of the policy language. Significantly, however, other constructions of the policy language would support the trial court’s ruling in this case.

As suggested by the husband’s argument in Wolff some courts have construed the “resulting from” language in the State Farm policy as referring to injuries and damages to additional persons which derive from the bodily injuries to the first injured person. In reading the policy language in this way, these courts limit the additional injured persons to the “Each Person” coverage amount only if their claims are “derivative” rather than “independent” in nature.

The unanimous decision of the Supreme Court of Montana in Treichel v. State Farm Mutual Automobile Insurance Co., 280 Mont. 443, 930 P.2d 661 (1997), typifies decisions construing the State Farm policy language in this way. In that case, Mr. Treichel was seriously injured and later died due to the negligence of a driver insured by State Farm. Ms. Treichel witnessed the accident and observed the severe head injuries her husband suffered as a consequence of the collision. The “Limits of Liability” language in the liability coverage portion of the driver’s policy was identical to the “Limits of Liability” language in the appellees’ policy in the present case. After State Farm paid Mr. TreichePs estate the amount of the “Each Person” coverage under the driver’s policy, Ms. Treichel brought an action against State Farm and the driver claiming that she was entitled to an additional recovery under the “Each Accident” coverage on her independent and non-derivative claim of negligent infliction of emotional distress. Because the court agreed with Ms. Treichel that her claim was independent and non-derivative under Montana law, it held that the “Each Accident” coverage limit applied.

In the present case, State Farm has not challenged the trial court’s determination that the appellees’ claims are independent and non-derivative claims. The trial court’s ruling here therefore accords with the Treichel construction of the policy language.

Yet another approach is revealed by the unanimous decision of the Supreme Court of Louisiana in Crabtree v. State Farm Insurance Co., 632 So.2d 736 (La.1994). In that case, Mr. Crabtree was seriously injured due to the negligence of a driver insured by State Farm. Ms. Crabtree witnessed the accident and observed the severe injuries her husband suffered as a consequence of the collision. The “Limits of Liability” language in the liability coverage portion of the driver’s policy was identical to the “Limits of Liability” language in the appellees’ policy in the present case. Mr. and Ms. Crabtree brought an action against State Farm, seeking damages for Mr. Crabtree’s injuries and for Ms. Crab-tree’s mental anguish as a consequence of witnessing the accident and her husband’s injuries. The court referred to Ms. Crab-tree’s cause of action as a “Lejeune ” claim. Although State Farm agreed that its driver’s negligence was the sole cause of the accident, that Mr. Crabtree’s damages exceeded the $25,000 “Each Person” coverage amount under the policy, and that Ms. Crabtree’s mental anguish claim was also worth or exceeded $25,000, State Farm argued that its total liability was limited to the $25,000 “Each Person” coverage amount rather than the $50,000 “Each Accident” coverage amount because Ms. Crabtree’s Lejeune claim was a derivative claim. Reading the policy language as a whole, the court concluded that the “Each Accident” coverage limit applied even if the Lejeune claim was derivative in nature. The court reasoned as follows:

The “resulting from” clause must be construed together with the policy language explaining the coverage for “Each Accident,” which provides as follows:
Under “Each Accident” is the total amount of coverage, subject to the amount shown under “Each Person”, for all damages due to bodily injury to two or more persons in the same accident.
The policy language explaining the coverage for “Each Person,” which includes the “resulting from” clause, provides:
Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person” includes all injury and damages to others resulting from this bodily injury.
In arguing Mrs. Crabtree’s Lejeune claim “resulted from” Mr. Crabtree’s bodily injuries and therefore falls within the per person policy limits even if Mrs. Crabtree’s mental anguish constitutes “bodily injury,” State Farm in effect construes the definition of “bodily injury to one person” to include “all injury, including bodily injury, and damages to others resulting from this bodily injury.” Under State Farm’s construction, all injuries including bodily injuries which “result from” another’s bodily injury would be subject to the single per person limit while all other bodily injuries would be covered under the aggregate per accident limit. Thus, if an oncoming car hit Mr. Crabtree while he was driving with Mrs. Crabtree, and the injury to him caused him to drive off the road and hit a tree resulting in external, physical injury to Mrs. Crabtree, the latter’s injury, under State Farm’s interpretation, would “result from” the former’s injury and therefore fall under the single bodily injury limit. Likewise, if, as a result of the impact, Mr. Crabtree was propelled off his motorcycle and into a pedestrian, the pedestrian’s external, physical injuries would “result from” Mr. Crabtree’s injuries and therefore fall under the single person bodily injury limits.
As illustrated by the foregoing hypo-theticals, State Farm’s construction of the policy language defining “bodily injury to one person” strains the meaning of the policy language, respectively enlarges and restricts the separate policy provisions beyond what is reasonably contemplated by the terms, and achieves an absurd result. If State Farm had intended “bodily injury to one person” to include “all injury, including bodily injury, and damages to others resulting from this bodily injury,” the policy could have so provided. Moreover, State Farm’s interpretation construes the “resulting from” clause in isolation at the expense of disregarding the clear and explicit language defining the aggregate coverage for “Each Accident” as “all damages due to bodily injury to two or more persons in the same accident.”
Construing the policy provisions in light of each other so that each is given the meaning suggested by the policy as a whole, we conclude the policy language defining “bodily injury to one person” to include “all injury and damages to others resulting from this bodily injury” does not reasonably encompass bodily injury to others under the single person limit. We interpret the policy to mean instead that where one person suffers bodily injury, or where one person suffers bodily injury and one or more other persons suffer injury and damages other than bodily injury as a result of the former’s bodily injury, the amount of coverage for bodily injury to one person applies ($25,000). This interpretation is consistent with State Farm’s contractual obligation to “pay damages which an insured becomes legally entitled to pay because of ... bodily injury to others.” On the other hand, where two or more persons suffer bodily injury in the same accident, the aggregate amount of coverage for each accident applies ($50,000) even if one or more persons’ bodily injury “results from” another’s bodily injury. Additionally, the coverage for each accident is “subject to the amount shown under ‘Each Person’,” referring to “the amount of coverage for all damages due to bodily injury to one person” ($25,000), up to the aggregate per accident limit ($50,000) for two or more persons.
In sum, because we conclude, for reasons which follow, that Mrs. Crabtree’s mental anguish constitutes “bodily injury” within the meaning of the policy, it follows under the clear and explicit terms of the policy construed as a whole that “bodily injury to one person” as defined therein does not encompass Mrs. Crabtree’s Lejeune claim. Mrs. Crab-tree’s Lejeune claim therefore is not subject to the single person policy limit applicable to her husband’s claim regardless of whether her mental anguish “results from” or “derives from” Mr. Crabtree’s bodily injuries.

632 So.2d at 742-43.

In the present case, State Farm does not challenge the trial court’s determination that the appellees’ damages were recoverable as part of their own bodily injuries arising out of the accident. The trial court’s ruling here therefore accords with the Crabtree construction of the policy language.

Because the ambiguous coverage provisions may reasonably be read to provide coverage to the appellees to the extent of the “Each Accident” coverage limit, the contract is properly construed as providing coverage in this amount. Swire Pacific Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161 (Fla.2003); Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29 (Fla.2000). The final judgment is accordingly affirmed.

VAN NORTWICK, J., concurs.

POLSTON, J., dissents with written opinion.

POLSTON, J.,

dissenting.

This case arises from a tragic automobile accident in Montgomery, Alabama that resulted in the death of Robert Reis, the husband of appellee Barbara Reis and the father of appellee Joseph Reis. Appellees were passengers in the car and were also injured. The Alabama tortfeasor’s insurance company paid its coverage limits, resulting in this under-insured motorist (UM) claim by the surviving Reises on their UM insurance policy issued by appellant State Farm. State Farm’s policy included a $50,000 per person/$100,000 per accident, stacking UM provision. Because two cars were insured, the limits were stacked to $100,000 per person/$200,000 per accident.

Immediately after Robert Reis’ death, State Farm paid the per person limit of $100,000 to the estate of Robert Reis in settlement of the estate’s claim. The issue in this case is whether State Farm’s payment of that $100,000 also limits the amounts that appellees can recover from State Farm for their pain, suffering, and mental anguish as a result of witnessing Robert Reis’ death during the automobile accident. State Farm argues that the plain language of the UM policy expressly limits the amount owed to $100,000 by the definition of “Bodily injury to one person:”

The amount of coverage is shown on the declarations page under “Limits of Liability — U—each Person, Each Accident.” Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person” includes all injury and damages to others resulting from this bodily injury. Under “Each Accident” is the total amount of coverage subject to the amount under “Each Person,” for all damages due to bodily injury to two or more persons in the same accident.

(Emphasis added). I agree with State Farm that the language is not ambiguous. Substituting the names of the Reises in the policy language demonstrates that it limits the policy benefits as argued by State Farm: ‘Bodily injury to one person [Robert Reis]’ includes all injury and damages to others [Barbara Reis and Joseph Reis] resulting from this bodily injury [to Robert Reis].” This language plainly includes the pain, suffering, and mental anguish to Barbara and Joseph Reis caused by the injury to Robert Reis and accordingly limits the policy benefits to $100,000. See Merriam-Webster’s Collegiate Dictionary 999 (10th ed.1998) (defining “result” as to “arise as a consequence, effect, or conclusion”); Mullen v. Walczak, 257 Wis.2d 928, 653 N.W.2d 529, 531-32 (2002) (holding that uninsured motorist policy unambiguously limits the insurer’s liability for all damages arising from one person’s bodily injuries to the “each person” limit; because Mullen’s emotional distress from witnessing his wife’s death arose from her bodily injury, it was limited by the policy’s language; the policy limit for “each person” was defined “for all damages sustained by all persons as the result of bodily injury to one person in any one accident”); Estate of Gocha v. Shimon, 215 Wis.2d 586, 573 N.W.2d 218, 219-22 (1997) (holding that identical State Farm policy language is unambiguous and that “each person” limitation applied because “the emotional stress of the Gochas would not have occurred but for the injury to Kyle”).

Appellees argue that the UM policy language should be read to limit the additional injured persons to the “Each Person” coverage amount only if their claims are “derivative” rather than “independent” in nature. Under Alabama law, appellees note that their claims are independent, citing Daniels v. East Alabama Paving, Inc., 740 So.2d 1033 (Ala.1999) (holding that where a person is physically injured in a motor vehicle collision and witnesses the death of a relative in that same collision, the injured person’s own bodily injury claim includes mental anguish damages for the grief and despair of witnessing that death). This argument, distinguishing between independent and derivative claims, is contrary to Florida law because it improperly makes the UM policy limits language dependent on the tort law of where an accident occurs (which may vary), instead of contract law. See State Farm Mut. Auto. Ins. Co. v. Olsen, 406 So.2d 1109, 1110-11 (Fla.1981) (applying significant relationships test in conflict of laws to tort cases, and noting that “[t]he state where the injury occurred would, under most circumstances, be the decisive consideration in determining the applicable choice of law”).

In this case, the UM insurance contract was made in Florida, and is interpreted by Florida law. In Sturiano v. Brooks, 523 So.2d 1126 (Fla.1988), the Florida Supreme Court analyzed choice of law rules to determine that lex loci contractus is the better rule for determining the applicable law governing the rights and liabilities of the parties in an issue of automobile insurance coverage. In that case, the Sturianos purchased their automobile insurance in New York but moved to Florida to live during the winter months. Id. at 1129. In ruling that the lex loci contractus rule governs contracts for automobile coverage, and thus finding that New York law applied instead of Florida law, the court provided the following analysis:

Sturiano argues that in this modern, migratory society, choice of law rules must be flexible to allow courts to apply the laws which best accommodate the parties and the host jurisdiction. She contends that the archaic and inflexible rule of lex loci contractus does not address modern issues or problems in the area of conflict of laws. While it is true that lex loci contractus is an inflexible rule, we believe that this inflexibility is necessary to ensure stability in contract arrangements. When parties come to terms in an agreement, they do so with the implied acknowledgment that the laws of that jurisdiction will control absent some provision to the contrary. This benefits both parties, not merely an insurance company. The view espoused in the Restatement fails, in our opinion, to adequately provide security to the parties to a contract.
Although lex loci contractus is old, it is not yet outdated. The very reason Stu-riano gives as support for discarding lex loci contractus, namely that we live in a migratory, transitory society, provides support for upholding that doctrine. Parties have a right to know what the agreement they have executed provides. To allow one party to modify the contract simply by moving to another state would substantially restrict the power to enter into valid, binding, and stable contracts. There can be no doubt that the parties to insurance contracts bargained and paid for the provisions in the agreement, including those provisions that apply the statutory law of that state.

Id. at 1129-30 (emphasis added).

The same rationale applied by the Florida Supreme Court in Sturiano applies in this case. If appellees’ argument prevailed, the insurance policy limits would be dictated by the tort law of any jurisdiction where the accident may occur — contrary to the parties’ right to know what the agreement they have executed provides. To allow one party to modify the contract simply by moving their automobile through another state would substantially restrict the power to enter into valid, binding, and stable contracts. Id.; see Lumbermens Mut. Cas. Co. v. August, 530 So.2d 293, 295 (Fla.1988) (ruling “that the rights and obligations of the parties under an insurance policy are governed by contract law since they arose out of an insurance contract;” “That the insured stands in a tort relationship to the uninsured motorist does not change the fact that an action by the insured against the insurer arises out of an insurance contract between the parties. Accordingly, the lex loci contrac-tus rule determines the choice of law for interpretation of provisions of uninsured motorists clauses in automobile insurance policies just as it applies to other issues of automobile insurance coverage.”); Barnier v. Rainey, 890 So.2d 357, 359 (Fla. 1st DCA 2004) (stating, “[i]n that the rights and obligations of parties under a policy of insurance arise out of a contract of insurance, they are governed by contract law”); compare Shapiro v. Associated Int’l Ins. Co., 899 F.2d 1116, 1119 (11th Cir.1990) (distinguishing a contract relating to real property, which remains stationary and immobile, to “a contract for automobile insurance where the location of the insured risk can vary as readily and as quickly as an automobile can move,” therefore requiring the lex loci contractus rule to determine the rights and risks of the parties to automobile insurance policies on the issue of coverage).

Moreover, the policy language does not make any distinction about how the claim for injury and damages to others is brought — whether it is through an independent cause of action or is derivative. Analyzing a very similar Allstate automobile insurance policy, defining “bodily injury sustained by one person,” to include “all damages sustained by anyone else as a result of that bodily injury,” the Seventh Circuit Court of Appeals held that sibling passengers who witnessed their brother’s death in an automobile accident were subject to the “each person” limits of liability. Allstate Ins. Co. v. Tozer, 392 F.3d 950, 953, 955 (7th Cir.2004). Rejecting the siblings’ argument that because their claim for emotional distress is a separate cause of action it is not limited by the “per person” limits of the policy, the court stated that “fundamentally, accepting the approach advocated by [the siblings] would require us to ignore the settled principle of Indiana law that the construction of an insurance policy is a matter of contract interpretation.” Id. at 954-55. The court reasoned:

The policy issued to the Tozers does not define “bodily injury” or the “each person” limit of liability with reference to whether the underlying claim is an independent or derivative tort action, or on whether the Keltner siblings state a valid claim of negligent infliction of emotional distress. These underlying questions of tort law are, therefore, irrelevant. Because the policy caps Allstate’s liability for all damages “resulting from” Kyle’s injuries at $100,000, and [the siblings’] emotional distress result from his injuries, the insurer’s liability for these claims is exhausted.

Id. at 955 (citations omitted).

Interpreting the contract language, the court concluded:

Under the plain language of the policy, Allstate’s liability for bodily injuries suffered by Kyle- and “damages sustained by anyone else as a result of’ his injuries is limited to a total of $100,000. It is clear that [the siblings’] emotional distress claims are for “damages sustained ... as a result of’ Kyle’s injuries: their state-court complaint alleges that they suffered emotional distress “as a result of seeing the injuries and death of their brother Kyle Keltner.” Accordingly, these claims are subject to the $100,000 cap applicable to Kyle’s injuries.

Id. at 953. In the instant case, whether the appellees’ claim is derivative or independent under tort law is likewise irrelevant, and the plain language limits the claims of the surviving Reises, for their pain, suffering, and mental anguish suffered as a result of witnessing Robert Reis’ death, to the $100,000 cap applicable to Robert Reis’ injuries.

Similarly, in Galgano v. Metropolitan Property & Casualty Insurance Co., 267 Conn. 512, 838 A.2d 993 (2004), the Connecticut Supreme Court rejected the argument that it matters whether the plaintiffs emotional injuries are independent or derivative. The relevant policy language and the limits of liability it provides ■ controls. Id. at 997. The court stated:

By the express terms of the policy, the bodily injury to the plaintiffs son includes all claims by all persons for damages for bodily injury resulting from the bodily injury to the plaintiffs son. It is beyond dispute that, but for the bodily injury to this son, the plaintiff would not have suffered any emotional injuries. In other words, the plaintiffs injuries are the natural and probable consequence of his having witnessed the accident that injured his son. Therefore, the measure of the plaintiffs recovery is not governed by the fact that this separate damages arose out of the same accident, but by the fact that they arose out of the same bodily injury to his son.

Id. at 997-98.

The nature of the injury, not the legal attributes of the claim that are controlled by varying states’ tort laws, applies to the policy’s limits. In State Farm Mutual Automobile Ins. Co. v. Wolff, 926 F.2d 755 (8th Cir.1991), the court analyzed the policy limits under an identical definition for “Bodily injury to one person.” The court noted that Wolffs argument, that his loss of consortium claim is a wholly independent claim rather than derivative and therefore not subject to the “per person” limits, relates to “the legal attributes” of the claim and ignores the nature of the injury. Id. at 757. “He cannot deny that without his wife’s injuries, he would not have the cause of action. Therefore, his injury results from his wife’s injuries, and the “Each Person” limit of liability applies.” Id.; see also Allstate Ins. Co. v. Clohessy, 32 F.Supp.2d 1333, 1334-35 (M.D.Fla.1998) (ruling that the claimants’ separate, independent, and non-derivative claims on the emotional distress they suffered as a result of witnessing their family member’s death were limited to the per-person amount of liability; the “per person” policy limit included “the damages sustained by anyone else as a result of that bodily injury, sickness, disease, or death”), question certified to Florida Supreme Court, 199 F.3d 1293 (11th Cir.2000), review dismissed, 763 So.2d 1042 (Fla.2000).

The reasons contained in the cases cited above are more persuasive to me than those in the cases cited by appellees and relied on by the majority. See Treichel v. State Farm Mut. Auto. Ins. Co., 280 Mont. 443, 930 P.2d 661 (1997) (holding that the policy language did not limit plaintiffs claim because it was independent); Crabtree v. State Farm Ins. Co., 632 So.2d 736, 742 (La.1994). The Crabtree decision is particularly unpersuasive because the court adds language in the policy not there: “We interpret the policy to mean instead that where one person suffers bodily injury, or where one person suffers bodily injury and one or more other persons suffer injury and damages other than bodily injury as a result of the former’s bodily injury, the amount of coverage for bodily injury to one person applies.” (Emphasis added). The express policy language, not that supplied by a court, should control the limits.

Because the policy language is unambiguous, I would reverse and remand to the trial court with instructions for entry of the judgment excluding the jury’s award of $100,000 in damages to Barbara Reis and Joseph Reis for their pain and suffering resulting from the death of Robert Reis. Therefore, I respectfully dissent.

      . Two intermediate appellate court decisions from Wisconsin not relied upon by State Farm in the present case, Estate of Gocha v. Shimon, 215 Wis.2d 586, 573 N.W.2d 218 (1997), and Mullen v. Walczak, 257 Wis.2d 928, 653 N.W.2d 529 (2002), provide superficial support for State Farm's argument, but the Supreme Court of Wisconsin has explained that these cases actually construe the policy provisions as distinguishing between "independent claims” and "derivative claims,” and only preclude overall recovery in excess of the "Each Person” coverage in the situation in which the claims of multiple insureds are based upon a single bodily injury. State Farm Mutual Automobile Insurance Co. v. Langridge, 275 Wis.2d 35, 683 N.W.2d 75 (2004). These decisions have no application in the present case because State Farm does not challenge the trial court's determination that the appellees’ damages were independently recoverable as part of their own bodily injuries arising out of the accident.

      . An independent right of recovery is derivative in the sense that it is "dependent upon a wrong committed upon another person.” See Geico Gen. Ins. Co. v. Arnold, 730 So.2d 782, 784 (Fla. 3d DCA 1999) (holding that the “per person” policy limits paid to the deceased minor child’s estate included the parents’ independent right of recovery for the value of the loss of support and services and for their own pain and suffering caused by his loss, and rejecting the parents' argument that the limitation did not apply because it was independent).

      . A new trial is not required because the special verdict form included questions asking the jury "What is the amount of damages for pain, suffering, and mental anguish sustained by Barbara Reis as a result of witnessing her husband’s death during the May 11, 2002 auto accident?” and "What is the amount of damages for pain, suffering, and mental anguish sustained by Joseph Reis as a result of witnessing his father's death during the May 11, 2002 auto accident?” The final judgment was limited by stipulation of the parties to the policy limits.


text:
    Matthew O’BRIEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-45.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2006.
    Rehearing Denied April 12, 2006.
    Matthew B. O’Brien, Lake City, pro se.

      No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Hitchcock v. State, 866 So.2d 23 (Fla.2004).

PALMER, MONACO and TORPY, JJ., concur.