text:
    Sherri Lynn SCHMITZ, Appellant, v. Paul Richard SCHMITZ, Appellee.
    Nos. 4D05-2991, 4D05-4166.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 2007.
    Rehearing Denied March 30, 2007.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for appellant.
    Nancy W. Gregoire and Joel L. Kirschb-aum of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., Fort Lauderdale, for appellee.
   TAYLOR, J.

In this appeal from a final judgment of dissolution, Sherri Lynn Schmitz, the wife, contends that the trial court erred in determining marital assets and liabilities as of the date of trial instead of the date of filing of the petition and by including the husband’s post-filing debts for litigation expenses in equitable distribution. Because these errors resulted in unequal distribution, we reverse and remand for further proceedings.

The parties were married for eighteen years and have three minor children. The husband, Paul Richard Schmitz, filed the petition for dissolution on July 8, 2003. When the action was filed, the parties' net marital worth was $3,294,400. By the time of trial, the parties’ net worth had decreased to $2,858,348 because of litigation fees and costs incurred in this case. The husband obtained lines of credit against jointly-owned properties to fund the litigation: $100,000 against the marital home and $418,966 against three rental properties. The evidence at trial showed that the husband had paid his attorneys $230,384 and his accountant $61,332. The wife, by contrast, received only one temporary fee award of $87,926 from these funds and still owed $234,910 to her attorneys, $78,165 to her accountant, and $48,657 to her expert psychologist. The marital debt was comprised solely of loans against the parties’ home, a mortgage for approximately $300,000 and a loan of $40,000 from the wife’s parents.

In the final judgment, the trial court determined the date of identification of marital assets and liabilities to be the first day of trial, October 4, 2004, rather than the date of filing of the dissolution petition, July 28, 2003. It identified the husband’s non-marital property as $212,453 equity in three rental properties, and $21,248 in contributions to his deferred compensation plans after the filing of the petition. The court did not identify any other non-marital assets or liabilities. Rather, the court deducted both the marital debt and the husband’s post-filing lines of credit as marital liabilities. The court awarded the husband $1,767,714 in gross assets, and the wife $1,864,193. It awarded the marital home encumbered by the $340,860 marital debt and the husband’s $100,000 post-filing line of credit to the wife. The court awarded the three rental properties encumbered by the husband’s post-filing lines of credit, $416,966, to the husband. Thus, the properties were distributed subject to all encumbrances and lines of credit. This, according to the wife, was error.

The wife argues that the trial court erred in identifying the marital assets and liabilities at the date of trial rather than the date of filing, and that this error resulted in an unintended inequitable distribution. She explains that she was awarded marital assets encumbered by liabilities incurred by the husband after the date of filing the petition, which decreased her marital equity by a substantial amount.

Section 61.075(6), Florida Statutes, states, in pertinent part:

The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.

This section provides a bright line rule for setting the date to be used for classifying marital assets and liabilities for the purpose of equitable distribution. See Rao-Nagineni v. Rao, 895 So.2d 1160, 1161 (Fla. 4th DCA 2005); Caruso v. Caruso, 814 So.2d 498, 504 (Fla. 4th DCA 2002). Here, because the parties did not have a separation agreement or agree on any alternative date in any other agreement, the trial court should have identified the assets and liabilities as marital as of the date of the filing of the petition for dissolution. See Byers v. Byers, 910 So.2d 336, 345 (Fla. 4th DCA 2005) (holding that the trial court abused its discretion in including a loan obtained by the husband during the dissolution proceedings as a marital liability); Leeds v. Adamse, 832 So.2d 125, 126 (Fla. 4th DCA 2002) (holding that trial court erred in classifying furniture debt incurred by the husband four days after the wife filed petition for dissolution as a marital liability for purposes of equitable distribution).

Under the trial court’s equitable distribution scheme, the husband’s post-filing debts were included as marital liabilities, which resulted in the wife’s incurring one-half of the husband’s debts for his attorney’s and accountant’s fees. See Smith v. Smith, 934 So.2d 636, 642 (Fla. 2d DCA 2006) (holding that mediation fees paid by the husband are not considered a marital liability and in any event should not have been included in the equitable distribution scheme because they were incurred after the date established for identification and valuation of marital liabilities).

Accordingly, we reverse and remand this matter for the trial court to identify marital assets and liabilities as of the date of filing of the petition for dissolution and reconsider equitable distribution consistent with this opinion. Because we find that the trial court did not abuse its discretion in awarding the wife only a portion of her attorney’s fees, in computing the award of attorney’s fees to the husband, and in denying the wife appellate attorney’s fees following remand in Schmitz v. Schmitz, 890 So.2d 1248 (Fla. 4th DCA 2005), we affirm as to those issues.

STEVENSON, C.J., and WARNER, J., concur.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    DEBT SETTLEMENT ADMINISTRATORS, LLC, Petitioner, v. ANTIGUA AND BARBUDA, etc., et al., Respondents.
    No. 3D06-1648.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Proskauer Rose, and Matthew Triggs, and Gary W. Kovacs, Boca Raton, and Bruce Gorman, Jr., for petitioner.
    Astigarraga Davis Mullins & Grossman, and Edward H. Davis, Jr., and Edward M. Mullins, and Amoldo B. Lacayo, Miami, for respondents.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

Debt Settlement Administrators, LLC, (“Debt Settlement”) petitions for a writ of certiorari to quash the trial court’s order denying its motion to dismiss a complaint for a pure bill of discovery. This Court has jurisdiction. See, e.g., Megaflight, Inc. v. Lamb, 749 So.2d 594 (Fla. 5th DCA 2000); JM Family Enters., Inc. v. Freeman, 758 So.2d 1175 (Fla. 4th DCA 2000). We grant the Petition for Writ of Certiora-ri.

Prior to the filing of the instant action for a pure bill of discovery in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, respondents, the governments of Antigua and Barbuda, sued Debt Settlement in Antigua for damages and injunctive and declaratory relief for alleged fraud involving a depletion of assets from an account at Wachovia Bank in Miami. Respondents then filed the present complaint for a pure bill of discovery against Debt Settlement and Wachovia Bank in Miami-Dade County, Florida, requesting, among other things, numbers of accounts and the names on accounts involving Debt Settlement, and for enforcement of an injunctive order, issued by the Antiguan and Barbudan Supreme Court, for restraint of funds. The trial court granted the motion for enforcement. Debt Settlement moved to dismiss the complaint for a pure bill of discovery. The trial court denied respondents’ motion to dismiss the action for pure bill of discovery. Debt Settlement petitioned this Court for a writ of certiorari to quash the trial court’s order denying the motion to dismiss. For the following reasons, we grant the petition and quash the order.

We reject the argument of the respondents that their complaint for a pure bill of discovery is not too speculative, and that the need for additional discovery regarding the Wachovia banking activities is necessary. Here, as in Trak Microwave Corp. v. Culley, 728 So.2d 1177 (Fla. 2d DCA 1998), there is a related cause of action pending in the jurisdiction of Antigua where discovery is available to the respondents. In Trak, the second district reversed the granting of a pure bill of discovery because there existed a related cause of action for age discrimination which was pending in the federal court where discovery was readily available at the time the plaintiff filed a complaint in the circuit court for a pure bill of discovery. A pure bill of discovery is only authorized in equity in the absence of an adequate legal remedy. A pure bill of discovery is a means of obtaining information such as the identity of a proper party defendant or the appropriate legal theory on which to base relief. See Trak, 728 So.2d at 1178, and cases cited. Here, the respondents seek information regarding bank records and activities of Wachovia Bank to support the fraud investigation ongoing in the Antiguan litigation. The lengthy and detailed complaint filed in Antigua shows that the respondents already possess the names on the bank accounts involved in the investigation which are material to the filing and maintaining of the lawsuit in Antigua. Additionally, discovery can be conducted in the pending action in Antigua. Further supplementary inquiry into these same areas by means of a pure bill of discovery within the jurisdiction of Dade County serves only as a “fishing expedition,” which is unauthorized where, as in this case, such discovery is otherwise readily obtainable. See Trak, 728 So.2d at 1178; ' see also Nat’l Car Rental v. Sanchez, 349 So.2d 829 (Fla. 3d DCA 1977); Mendez v. Cochran, 700 So.2d 46 (Fla. 4th DCA 1997).

The respondents rely upon the case of Otto’s Heirs v. Kramer, 797 So.2d 594 (Fla. 3d DCA 2001), for their position in favor of the issuance of the pure bill of discovery to explore “the potential assets belonging to Debt Settlement including [those] held in unknown accounts at Wa-chovia Bank....” The Otto’s Heirs case is distinguishable in that, in Otto’s Heirs, the pure bill of discovery was sought in Dade County in conjunction with a constructive trust to locate and pursue Florida assets to satisfy a judgment already entered for money damages in a Swiss court. This is not the situation here, where a judgment has not been entered by the Antiguan and Barbudan court and discovery is still maintainable in that action. The facts here are more in line with the Trak decision, and we follow its holding. Therefore, we conclude that the granting of the pure bill of discovery was unauthorized and quash the order denying the motion to dismiss.

Certiorari granted. Remanded for entry of an order dismissing the cause of action for a pure bill of discovery below.


author: BROWNING, C.J.

text:
    Marcus HILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3712.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2007.
    Nancy A. Daniels, Public Defender and Laura Anstead, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, C.J.

Appellant Marcus Hill challenges his judgment and sentence, alleging that the trial court abused its discretion in denying his motion to sever a count of resisting arrest without violence, and in denying his motion in limine to preclude testimony regarding his possession of a police scanner. The State concedes these points, and the concession is supported by the record on appeal and the law. See Rutherford v. State, 902 So.2d 211, 214 (Fla. 4th DCA 2005). The State has not demonstrated beyond a reasonable doubt that these errors did not contribute to the verdict. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Accordingly, we REVERSE Appellant’s convictions and sentences, and REMAND for a new trial.

WOLF and KAHN, JJ., concur.


author: HAZOUKI, J.

text:
    FLORIDA ENVIRONMENTAL SERVICES, INC., Appellant, v. Michael RENTOUMIS and Cher Rentoumis, Appellees.
    No. 4D06-2358.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.

      José D. Sosa of Arnstein & Lehr, LLP, West Palm Beach, Carlos F. Gonzalez, Jeffrey B. Shapiro, Joshua E. Young and Guy E. Quattlebaum of Arnstein & Lehr, LLP, Miami, for appellant.
    Michael C. Marsh, Carol C. Lumpkin and William J. Simonitsch of Kirkpatrick
      & Lockhart Nicholson Graham, LLP, Miami, for appellees.
   HAZOUKI, J.

Appellant, Florida Environmental Services, Inc. (“FES”), appeals the trial court’s non-final order compelling arbitration on three counts of FES’s eight-count complaint against appellees, Michael and Cher Rentoumis, and staying the claims pending the outcome of the arbitration. We affirm without discussion the order of arbitration as to subsection (b) of count I as appellant concedes that this subsection is covered in the arbitration clause in the Purchase Agreement. We reverse the order compelling arbitration as to counts 1(a), II and IV because the arbitration clause in question applies to accounting determinations used in calculating the Net Book Value Adjustment Amount or the Additional Payment which are not the subject of the aforementioned counts.

The complaint alleges the following facts. Michael Rentoumis (“Rentoumis”) was the sole shareholder of Envirodyne, a corporation in the business of environmental testing and analysis of materials, including wastewater, water, soil, and hazardous waste. He was approached by W. David Kimbrell, the sole shareholder of FES, regarding the purchase of Enviro-dyne assets. Rentoumis indicated he was interested in selling, and Kimbrell performed due diligence, spending over $150,000 over four months. Rentoumis insisted the sale remain confidential and forbade Kimbrell from contacting employees and regulatory agencies, otherwise Ren-toumis would terminate the negotiations.

In February 2005, Rentoumis provided Kimbrell with Envirodyne’s December 31, 2004 Balance Sheet reflecting a book value of $1,764,844.17 and represented it was accurate. This amount was relied upon in determining a purchase price. The purchase price was to be subject to certain post-closing adjustments, one of which was to take into account any decline in Enviro-dyne’s book value since the end of 2004. The adjustment was calculated according to the difference between the book value stated in the December 31, 2004 Balance Sheet and the book value as of the closing date. Before April 2005, Rentoumis told Kimbrell that the December 31, 2004 Balance Sheet was incorrect and provided the March 31, 2005 Balance Sheet indicating a book value of $1,274,704.17 and agreed it was to be used as a preliminary closing balance sheet. The formula for adjusting the purchase price was modified.

On May 6, 2005, FES and Rentoumis executed the Purchase Agreement for the sale of Rentoumis’s Envirodyne stock to FES. He conveyed the stock to FES in exchange for $2,590,140. FES paid $1,087,059 of that to discharge a debt encumbering certain Envirodyne property. Rentoumis was paid $1,503,081. This amount was subject to a post-closing adjustment based upon the increase or decrease of Envirodyne’s book value since the end of 2004. FES hired an accounting firm, approved by Rentoumis, which prepared the Closing Date Balance Sheet and found a book value of $858,502.

Under the terms of the Purchase Agreement, Rentoumis was to remain employed by the company through May 6, 2006. They executed a separate Employment Agreement.

After the sale, FES discovered that Rentoumis had misrepresented Enviro-dyne’s history and status in that over the years the Florida Department of Health had found numerous deficiencies including fraudulent proficiency testing results. By order of the Department of Health, Envi-rodyne had lost the necessary licenses and certifications to conduct several of the testing procedures it regularly performed.

Rentoumis was terminated for cause on October 7, 2005. FES found that he had altered test results and issued false laboratory reports.

FES attempted to compromise with the Department of Health in its decisions against Envirodyne but eventually FES was forced to enter into a stipulation and surrender its licenses and certifications, its most valuable assets, and then merge with another company.

In the Purchase Agreement, which was attached to the complaint, Section VII is entitled “Purchase and Sale.” In section 7.03, it defines the purchase price which included the Closing Payment plus or minus (A) the Adjusted Closing Payment, plus (B) the Additional Payment, if any. Other sections discuss how these amounts are to be determined and applied. Section 7.09 then provides:

7.09 Buyer and the Stockholder shall submit any dispute concerning the accounting determinations used in calculating the Net Book Value Adjustment Amount or the Additional Payment to a jointly selected accounting firm other than the Independent Accountant (the “Settlement Firm”) for resolution. If Buyer and the Stockholder cannot jointly agree on an accounting firm to serve as the Settlement Firm, each party shall submit the name of a national accounting firm (which firm shall not be either party’s accountants) to Buyer’s outside counsel, who shall select one of such firms by lot in the presence of a representative of the Stockholder. The determination of the Settlement Firm shall be final and binding on the parties and the award of the Settlement Firm (as accounting arbitrator) may be entered in any court of competent jurisdiction. The fees and expenses of the Settlement Firm shall be borne equally by the party whose stated position with respect [to] such disputed items is furthest in the aggregate from the final determination of the Settlement Firm. The Settlement Firm shall be provided with reasonable access to information necessary to resolve the dispute. The procedure described in this Section 7.09 is referred to herein as the “Dispute Resolution Mechanism.”

The trial court ordered arbitration on three counts of the complaint under this provision. Whether the trial court erred with respect to each count will be discussed in turn.

Count I of the complaint is an action for breach of contract and is divided into two parts. Part “a” is entitled “Breach of the Representations and Warranties” and contains nine subsections which name and describe each breach of the representations and warranties made by Rentoumis under section I of the contract. For example, FES first alleges that the contract represented and warranted that Rentoumis did not own directly or indirectly any interest or have any investment or profit participation in any corporation that was a competitor of or did business with Envirodyne. Rentoumis allegedly breached this warranty through his ownership or interest in a sanitary landfill located near Envirodyne’s property.

Subsection (a) of count I provides:

83. In paragraph 1.05 of the Purchase Agreement, Rentoumis represented and warranted that the Financial Statements were true, complete, correct, fairly presented the financial position and results of operations of the Company, and were prepared on a consistent basis with GAAP. In addition, Rentoum-is acknowledged that the December 31, 2004 Balance Sheet, which he provided, was relied upon by FES to value and analyze the financial condition of the Company and relied upon by FES in determining the Purchase Price.
84. Rentoumis breached the Representation and Warranty in paragraph 1.05 by, among other things: (a) misrepresenting that the figures presented in the December 31, 2004 Balance Sheet and/or other financial statements were accurate; (b) misrepresenting that the December 31, 2004 Balance Sheet and/or other financial statements fairly present the actual financial position and results of operations of Envirodyne; and (c) misrepresenting that the December 31, 2004 Balance Sheet and/or other financial statements were prepared in accordance with GAAP.
85. Rentoumis’ breach of the representation in paragraph 1.05 of the Purchase Agreement has caused FES to suffer damages.

The question of whether a disputed issue is subject to arbitration is a matter of contract interpretation, and our review is de novo. Ocwen Fed. Bank FSB v. LVWD, Ltd., 766 So.2d 248, 249 (Fla. 4th DCA 2000). In Citigroup, Inc. v. Boles, 914 So.2d 23 (Fla. 4th DCA 2005), this court discussed the application of arbitration provisions:

Notwithstanding that arbitration is favored in the law, construction of an arbitration clause remains subject to the contract law requirement “that the court discern the intent of the parties from the language used in their agreement.” Citigroup, Inc. v. Amodio, 894 So.2d 296, 298 (Fla. 4th DCA 2005). “[Arbitration is mandatory only where the subject matter of the controversy falls within what the parties have agreed will be submitted to arbitration.” Ocwen Fed. Bank FSB v. LVWD, Ltd., 766 So.2d 248, 249 (Fla. 4th DCA 2000). “[I]t is the language of the agreement that defines the scope of an arbitration agreement.” Amodio, 894 So.2d at 298.
Arbitration clauses are typically characterized as either narrow or broad; narrow clauses often use the language “arising under,” and broader clauses use wording such as “arising out of or relating to” in specifying covered disputes. CSE, Inc. v. Barron, 620 So.2d 808, 809 (Fla. 2d DCA 1993).

Boles, 914 So.2d at 25. “To determine whether a claim falls within the scope of an arbitration agreement, we must look beyond the legal cause of action and examine the factual allegations of the complaint.” Singer v. Gaines, 896 So.2d 851, 854 (Fla. 3d DCA 2005).

In Gale Group, Inc. v. Westinghouse Electric Corp., 683 So.2d 661 (Fla. 5th DCA 1996), Westinghouse sold its manufacturing business to Gale. Gale was to make post-closing payments to Westinghouse of a percentage of Gale’s collections from “ineligible accounts receivable” which were not defined by the contract. Gale refused to pay the disputed amounts. Upon suit being filed by Westinghouse, Gale filed a motion to compel arbitration which was denied. Gale also filed a motion to sever arbitrable issues which was denied because the court found that although the contract had an arbitration clause, there was no issue to arbitrate until the court determined the meaning of “ineligible accounts receivable.” The arbitration clause provided, “In the event that [Westinghouse] and [Gale] disagree with respect to the amount of any payment due [Westinghouse] pursuant to this Section 14(b)” then after certain time limits they were to choose a mutually agreeable “Big Six” accounting firm for determination. Id. at 662. In considering motions to compel arbitration, the trial court must determine “(1) whether the parties entered into a valid written agreement to submit to arbitration; (2) whether an arbitrable issue exists; and, (3) whether the moving party has waived the right to submit the arbitra-ble issue to arbitration.” Id. at 662-63. The district court disagreed with the trial court’s ruling and found that the broad language of the arbitration clause in Gale applied to post-closing payments and that is what each count of Westinghouse’s complaint was claiming. “The parties clearly intended to submit to arbitration all disputes regarding amounts owed to Westinghouse under Section 1.4(b). The parties did not limit the arbitration provision to any particular aspect of a dispute arising under Section 1.4(b).” Id. at 663. Therefore, the accountant could define “ineligible accounts receivable.”

In McDonnell Douglas Finance Corp. v. Pennsylvania Power & Light Co., 868 F.2d 825 (2d Cir.1988), there was a narrow and specific arbitration clause which called for the appointment of an independent tax counsel to resolve disputes over certain computations. The court found that the clause was intended to reach only tax issues, especially because the clause referred to the appointment of a tax counsel instead of an arbitrator of more general expertise.

The arbitration clause at issue here is limited to “any dispute concerning the accounting determinations used in calculating” the two amounts to be determined after closing. The arbitrator was to be an accounting firm. The arbitration clause is narrowly worded and does not provide for the accounting firm to determine whether the contract was breached by either party. We reverse the order compelling arbitration of count 1(a).

The trial court also found count II for breach of implied covenants of good faith and fair dealing was entirely intertwined with the breach of contract claim. We agree, and because we find that the breach of contract claim is not arbitrable under the parties’ contract, neither is the claim for breach of implied covenants of good faith and fair dealing.

The trial court also compelled arbitration of count IV which was for breach of the Employment Agreement entered into by the parties under which Rentoumis was to be employed as President of Envirodyne for twelve months following the execution of the Purchase Agreement. FES alleged that Rentoumis breached the Employment Agreement, a separate agreement from the Purchase Agreement, by acting in competition with FES and disclosing proprietary information contrary to the Employment Agreement’s provisions.

Although there may be some connection between the Additional Payment provided for in the arbitration clause in the Purchase Agreement and payments to Ren-toumis under the Employment Agreement, the Employment Agreement is a separate contract and does not contain an arbitration clause. Even if the arbitration clause was a part of the Employment Agreement, just as it was inapplicable to counts 1(a) and II, a determination of whether Ren-toumis breached the non-compete provision does not come within the parameters of the arbitration clause.

FES finally argues that because the arbitrable claims are severable, the trial court abused its discretion by staying the rest of the claims in its complaint until arbitration was complete. We find the trial court did not abuse its discretion.

Affirmed in Part; Reversed in Part.

GUNTHER and POLEN, JJ., concur.

      . The Net Book Value Adjustment Amount is the difference between the Net Book Value (total assets less total liabilities) of the Company as of the Closing Date and the Net Book Value of the Company as of December 31, 2004.


author: PER CURIAM.

text:
    Roderick COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-810.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.

    Rehearing Denied March 29, 2007.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hernandez v. State, 863 So.2d 484 (Fla. 4th DCA 2004) (holding that name and address printed on letter addressed to defendant that was taken from bedroom of his residence during search did not fall within statutory definition of hearsay).

WARNER, GROSS and TAYLOR, JJ., concur.


author: KLEIN J.

text:
    CITY OF HOLLYWOOD, Appellant, v. DIAMOND PARKING, INC., and Diamond on the Beach, Inc., Appellees.
    No. 4D05-4728.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Rehearing Denied March 29, 2007.

      Daniel L. Abbott, Hollywood, Jamie Alan Cole and Douglas R. Gonzales of Weiss Serota Helfman Pastoriza Cole & Boniske, P.A., Fort Lauderdale, for appellant.
    Martin B. Woods and Marissa D. Kelley of Stearns Weaver Miller Weissler Alha-deff & Sitterson, P.A., Fort Lauderdale, for appellee.
   KLEIN J.

The city appeals a judgment awarding damages of one million dollars because it breached contracts with a developer involving a lease of beach property for the construction and operation of a hotel and other commercial enterprises. The city argues that the trial court erred in not admitting evidence relating to the financing commitment, which the developer was required to have in order to comply with the contracts. We reverse for a new trial.

The lease and development agreements were executed on August 29, 1997, and the agreements required the developer to have obtained a financing commitment for the project, which was estimated to cost forty million dollars, within one year, or either party could terminate. On the last day of the one year period, August 31, 1998, the developer delivered what purported to be a commitment from GMAC Commercial Mortgage Corporation; however, the commitment contained the following conditions in bold letters:

IN ADDITION TO ANY OTHER CONDITIONS PRECEDENT SET FORTH HEREIN, THIS CONDITIONAL COMMITMENT IS EXPRESSLY SUBJECT TO THE APPROVAL OF THE CONSTRUCTION LOAN COMMITTEE OF GMAC COMMERCIAL MORTGAGE CORPORATION WHICH MAY BE GIVEN OR WITHHELD IN LENDER’S SOLE DISCRETION.
LENDER MAY AT ANY TIME, FOR ANY REASON OR NO REASON, TERMINATE THE PROCESSING OF THIS CONDITIONAL COMMITMENT ...

Because the commitment did not bind GMAC, the city believed it was entitled to terminate the contracts, and after several months, did so. In this lawsuit which followed, the developer alleged that the city had breached the contracts and obtained a partial summary judgment based on the failure of the city to give the developer notice and an opportunity to cure any de-feet in the commitment. The development agreement provided:

Each of the following events shall be an “Event of Default” here under:
(a) an Event of Default under the Ground Lease ... which results in a termination thereof;
(b) if Developer shall default in the observance or performance of any material term, covenant or condition of this Agreement on Developer’s part to be observed or performed and, if no cure period is expressly provided for herein, Developer shall fail to remedy Default within thirty (30) days after written notice by Owner of such Default (the “Default Notice”) ...
Notwithstanding the foregoing, no Event of Default shall be deemed to have occurred until such time as Owner shall have given Developer an Event of Default Notice ...

The city argues that, because there was a specific period of one year in which the developer could provide the commitment, the defect in the commitment was not a default under the above quoted provisions. The commitment was, however, a “material term, covenant or condition,” as provided in paragraph (b) above. We cannot agree with the city that it was not required to give notice and an opportunity to cure defects in the commitment.

We do agree with the city, though, that the trial court erred in excluding evidence involving the commitment. When the developer delivered the commitment to the city on the last day, it represented to the city that it had paid the one hundred thousand dollar financing commitment fee to GMAC, which was required by the commitment. When the city asked the developer for a copy of the check, the developer furnished the city with a copy of a check dated August 28, 1998, without disclosing that the check had not been delivered to GMAC until September 14, 1998, which was beyond the one year period. Nor did the developer disclose to the city that on October 21, 1998, GMAC withdrew the financing commitment and returned the check uncashed to the developer. In addition, the developer corresponded with the city on October 22 and December 2, 1998, in regard to what GMAC would or would not accept as part of the financing commitment, without disclosing that the commitment had been withdrawn. This information did not become known to the city until the city obtained it during discovery in this lawsuit. These facts were relevant to the issue of whether the developer met the one year deadline for the commitment.

The city also argues that the trial court erred in denying its motion to amend its answer to raise an additional defense of fraudulent misrepresentation by the developer as to the ownership interests in the developer. The motion to amend was filed three months before the trial date, but by the time it was heard, it was beyond the trial date and the case had neither been tried nor reset. Although the question is close, and we might not have reversed the denial of the motion to amend, if we were not reversing for another reason, we conclude that the amendment should be allowed on remand so that this case may be resolved on the merits. Carib Ocean Shipping, Inc. v. Armas, 854 So.2d 234 (Fla. 3d DCA 2003) (interests of justice were far better served by determining a case on its substantive merits, rather than a mistake in pleading).

Reversed.

HAZOURI and MAY, JJ., concur.


author: GROSS, J.

text:
    Bradley C. LEEDHAM, Appellant, v. STATE of Florida UNEMPLOYMENT APPEALS COMMISSION and Village Beach Market, Inc., Appellees.
    No. 4D06-476.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Thomas A. Kennedy of Benincasa & Kennedy, P.A., Vero Beach, for appellant.
    Josefa Perez Velis of Velis & Associates, P.A., Miami, for appellee Village Beach Market, Inc.
   GROSS, J.

Bradley Leedham challenges a final order rendered by the Unemployment Appeals Commission which affirmed the appeals referee’s determination that he was disqualified from receiving unemployment benefits because he was discharged for misconduct connected with work. We find no error and affirm.

Leedham was employed as a store manager at Village Beach Market. As a condition of employment, Leedham agreed to the terms of employment contained in an employee handbook.

On May 28, 2005, there was an incident between Leedham and one of his subordinate employees. The Chief Executive Officer of the market resolved the disagreement by deciding that both Leedham and the employee would be suspended with pay for one day. Leedham became upset. The appeals referee made the following findings of fact concerning the incident:

[Leedham] asked the CEO who would be escorting him off the property. The CEO said he would walk with him. The CEO asked [Leedham] if he had property in his briefcase. [Leedham] said, “Yes, I do.” The CEO told [Leedham] that they would have to sort through the briefcase to ensure that company property remained with the company. [Leedham] said that was not going to happen. The CEO asked [Leedham] two or three times to allow him to search his briefcase. [Leedham] refused and told the CEO that there were personal items mixed in with company property. [Leedham] picked up his cell phone, called the police, and stated that he was being prevented from taking his personal belongings. The police arrived and told the parties that it was a civil matter. [Leedham] took his briefcase and left. [Leedham] was discharged on May 30, 2005, for a violation of the employer’s policy, for refusing to cooperate with a search.

Leedham applied for unemployment benefits. He was denied benefits because the claims adjuster found that he was discharged for misconduct connected with work. Leedham appealed. After a hearing, the appeals referee concluded that Leedham was disqualified from receiving unemployment benefits because he was discharged for misconduct connected with work. The Commission affirmed the referee’s decision and adopted the referee’s findings of fact.

On appeal, the Commission’s order is entitled to a presumption of correctness and the burden is on the appellant to demonstrate error. See Gongaware v. State of Fla. Unemployment Comm’n, 882 So.2d 453, 454 (Fla. 4th DCA 2004). As stated in Maynard v. Florida Unemployment Appeals Comm’n, 609 So.2d 143, 145 (Fla. 4th DCA 1992),

[w]hile an agency may reject conclusions of law without limitation, neither an administrative agency nor a reviewing court may reject an administrative hearing officer’s findings of fact, as long as those findings are supported by competent, substantial evidence in the record.

Id. (citations omitted).

Leedham first contends that the referee erred in finding that the terms of the employer’s policy authorized a search of his briefcase, because the policy was ambiguous, so that Leedham was justified in refusing to allow the search. We find the policy clearly expresses what is expected of an employee.

The “Right to Search Policy” provides:

RIGHT TO SEARCH POLICY

We respect your privacy. However, for security purposes, we maintain the right to inspect certain personal belongings.
Each employee agrees to allow management to inspect personal property and purses on our premises. Any package brought into or taken out our premises may be inspected. Our premises and equipment, including vehicles, desks, computer files and equipment are subject to inspection at any time.
Wallets, purses, and briefcases will only be inspected in your presence.
Refusal to cooperate in an inspection or search will be considered a violation of your terms of hire and direct insubordination.

Leedham draws a distinction between a “search” and an “inspection,” arguing that “inspection” connotes a less intrusive, “hands-off’ examination than a “search.” However, whatever difference may exist between a “search” and an “inspection,” the only reasonable interpretation of the policy is that the employer had at least the right to view the contents of Leedham’s briefcase. As the referee correctly pointed out, the employer’s policy regarding “the employer’s right to search or inspect is unambiguous and left no room for judgment or discretion.” In this way, the policy language may not be fairly understood in more ways than one. See Friedman v. Va. Metal Prods. Corp., 56 So.2d 515, 517 (Fla.1952) (stating that “[a] word or phrase in a contract is ‘ambiguous’ only when it is of certain meaning, and may be fairly understood in more ways than one.”). A court must enforce the language of the policy according to its terms. Okeechobee Landfill, Inc. v. Republic Servs. of Fla., Ltd. P’ship, 931 So.2d 942, 944 (Fla. 4th DCA 2006) (providing that “[i]n the event that the language of a contract is clear and unambiguous, the court will enforce such contract according to its terms.”) (citing Avatar Dev. Corp. v. De Pañi Constr., Inc., 834 So.2d 873, 876 n. 2 (Fla. 4th DCA 2002)); see also Univ. of Miami v. Frank, 920 So.2d 81, 86 (Fla. 3d DCA 2006) (stating that interpretation of a faculty handbook is a question of contract interpretation).

Moreover, the referee’s interpretation of the policy is consistent with common sense. Leedham suggests that the term “inspection” means an exterior “hands-off’ examination, as in “inspecting the troops,” and does not include the concept of “opening” or “looking inside or going through” something. This interpretation would eviscerate the policy, which is to ensure that the employer’s goods do not leave the market secreted inside the employees’ things.

We reject Leedham’s assertion that the presence of personal items in his briefcase justified his refusal to allow the employer to inspect the contents of his briefcase. The policy language indicated that “each employee agree[d] to allow management to inspect personal property” and that wallets, purses, and briefcases were subject to “inspection.” Purses and wallets always contain personal property of the owner and yet the policy contemplated a search nonetheless.

For these reasons, we agree with the referee’s conclusion that the employer’s policy authorized a search of Leedham’s briefcase.

Leedham next contends that his refusal to allow the search of his briefcase did not rise to the level of misconduct connected with work. Leedham’s willful and deliberate violation of the policy, especially after admitting that he had company property in his briefcase, amounted to misconduct connected with work within the meaning of section 443.036(29), Florida Statutes (2005). A denial of benefits is warranted when the employee’s actions are in willful or wanton disregard of the employer’s interest as is found in deliberate violation of a standard of behavior which the employer has the right to expect of his or her employee. See Gongaware, 882 So.2d at 454 (providing that “[a]n employee’s refusal to perform an employer’s valid and reasonable work order amounts to misconduct.”); Sabolia v. Unemployment Appeals Comm’n, 747 So.2d 452, 452 (Fla. 4th DCA 1999) (concluding that the willful and intentional refusal to follow the superi- or’s valid and reasonable work order was sufficient to warrant disqualification for benefits); Fink v. Fla. Unemployment Ap peals Comm’n, 665 So.2d 378, 374 (Fla. 4th DCA 1996) (stating that “where an employee intentionally violates company policy ... or ignores standards of behavior which the company is entitled to expect from employee ... that employee will be disqualified from receiving unemployment compensation on grounds of misconduct.”); Nat’l Ins. Serv., Inc. v. Fla. Unemployment Appeals Comm’n, 495 So.2d 244, 246 (Fla. 2d DCA 1986) (holding that employees refusal to participate in clean-up duties where employees policy was found to be reasonable warranted a denial of unemployment benefits); see also Finish Line Feed, Inc. v. Acosta, 748 So.2d 1089, 1090 (Fla. 4th DCA 2000) (acknowledging that deliberate or intentional disregard of an employer’s policy amounts to misconduct).

WARNER and TAYLOR, JJ., concur.


author: POLEN, J.

text:
    Jagnarine BALKARAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4196.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Rehearing Denied March 30, 2007.

      Michael L. Cohen, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Jagnarine Balkaran, appeals the trial court’s sentence of fifteen years probation, claiming it exceeds the trial court’s in-court representations as to the length of the sentence he would receive if he pleaded guilty. We affirm Balkaran’s sentence, but write to order a modification of a condition of his probation.

Balkaran was.charged with shooting at or within a vehicle in violation of section 790.19, Florida Statutes. On the day in question, Balkaran was working at a fruit grove that he had a financial interest in, and saw two men picking fruit. Believing they were doing so without permission, Balkaran yelled at them to stop. The men got into a van and began driving through the grove, heading towards Balkaran. Balkaran tried to stop the vehicle by pointing a shotgun at the vehicle. The driver of the vehicle sped up and after the van had passed, Balkaran shot at the van, hitting the back of the van.

Initially Balkaran pleaded not guilty, but changed his plea to guilty/no contest in exchange for the prosecution agreeing to a sentence cap of one year and one day in prison. The plea agreement stated: “If court gives a sentence less than the cap— the court may impose probation and/or community control as part of sentence.” At the change of plea hearing, the trial court went over the plea with Balkaran, stating:

Okay. The State said that if you entered a plea today you — the most — we wouldn’t do sentencing today. We’d do sentencing in about 30 or 60 days or so. • You’d come back. The most you could get is a year and a day in prison and that’s the most you could get. I don’t know anything about you so I have to assume I’m going to give you that, but I don’t know. Maybe I’ll give you less. I don’t know. I have no idea ‘cause I don’t know you, sir. Does that make sense, sir?

Balkaran agreed that it did.

At the sentencing hearing, the trial court heard testimony from character witnesses for Balkaran, as well as from the driver of the van. The trial court stated it did not want Balkaran to be in possession of a firearm for quite some time. To accomplish this, the trial court sentenced Balkaran to fifteen years probation, which Balkaran’s attorney said he was willing to take. Following the entry of this sentence, Balkaran filed a 3.800(b)(2) motion, asserting that the sentence entered was drastically different than that represented by the trial court.

The proper method for preserving the issue of violation of a plea agreement is the filing of a motion to withdraw a plea. Barber v. State, 901 So.2d 364, 365 (Fla. 5th DCA 2005). “[A]n issue regarding a sentence that exceeds the terms of a plea agreement is not a sentencing error subject to relief under Rule 3.800(b).” Id. at 365. “[A] motion to withdraw a plea under similar circumstances must be made pursuant to rule 3.170(i), Florida Rules of Criminal Procedure, within 30 days after rendition of the sentence.” Id at 366. Based on the in-court representation by Balkaran’s counsel that the sentence was acceptable, and the fact that the sentence was not illegal, we are constrained to affirm.

However, we disagree with the trial court’s restriction on Balkaran’s use of his own property. As a condition of the community control and probation, the trial court refused to allow Balkaran to work in any groves or as a security officer in any fields unless he received court approval. “As a general rule, there must be a reasonable nexus between any special condition of probation and the crime committed by the offender. When a question is raised concerning the relevancy of a special condition of probation, the record must support the imposition of the condition.” Saidi v. State, 845 So.2d 1022, 1027 (Fla. 5th DCA 2003) (internal citations omitted).

In this case, we find that the condition on Balkaran’s use of his land is overly restrictive, unnecessary, and not supported by the record. See Saidi 845 So.2d at 1027. There is no reason why Balkaran should not be allowed to work on his own property based on the incident in this case. Balkaran’s record is free of any prior criminal activity, and the incident in this case does not support the trial court’s action in restricting Balkaran’s use of his land. While the restriction on Balkaran’s possession of a firearm is reasonably related to the crime in this case, not allowing Balkar-an to use his own land is not. We affirm Balkaran’s sentence but remand to the trial court to modify the probationary conditions to allow Balkaran to work on his own property.

GUNTHER and HAZOURI, JJ., concur.


author: KLEIN, J.

text:
    OCWEN FINANCIAL CORPORATION, and Ocwen Federal Bank, FSB, Appellant, v. Patti J. KIDDER and Katherine R. Dean, Appellees.
    Nos. 4D05-2466, 4D06-15.
    District Court of Appeal of Florida, Fourth District.
    Feb. 21, 2007.
    Rehearing Denied April 3, 2007.

      Daniel S. Rosenbaum and Laurel R. Wiley of Becker & Poliakoff, P.A., West Palm Beach, for appellant.
    William M. Julien of William M. Julien, P.A., Boca Raton, George P. Supran of Freeman & Supran, P.A., West Palm Beach, Edna L. Caruso and Dirán V. Sero-pian of Edna L. Caruso, P.A., West Palm Beach, for appellees.
   KLEIN, J.

Ocwen appeals a jury verdict awarding two of its former employees approximately $1 million dollars each in compensatory damages for violating the Florida Civil Rights Act, the Florida Whistleblower Act, and for negligent supervision and retention of an employee. We affirm on all issues and address two, whether the “send a message” closing argument was improper, and whether a new trial argument was preserved where there was an objection, but no motion for mistrial.

The factual basis for the main claim was that a male employee had been peeping through the ceiling of the women’s restroom, had made revealing videotapes, had shared the information with other employees, and that the employer had permitted the workplace to be turned into a hostile environment of sexual harassment. During closing argument, the plaintiffs suggested to the jury that it should send a message “loud and clear from this courtroom that you are not going to permit these corporations to treat these people this way.” The trial court overruled objections to the comments, and plaintiffs counsel continued to pursue that theme. The cases relied on by Ocwen for its argument that this was error include Kloster Cruise Ltd. v. Grubbs, 762 So.2d 652, 554-55 (Fla. 3d DCA 2000) (granting a new trial after counsel encouraged the jury to send a message to the defendant by its verdict), and Murphy v. Murphy, 622 So.2d 99, 102 (Fla. 2d DCA 1993) (closing argument encouraging the jury to “send a message” is “unquestionably improper and highly prejudicial”).

Plaintiffs respond by explaining that the cases relied on by Ocwen did not include punitive damage claims, and in the present case, although the jury did not award punitive damages, claims for punitive damages were submitted to the jury. In its reply brief Ocwen argues that the “send a message” is never proper, and relies primarily on language in this court’s opinion in Airport Rent-A-Car, Inc. v. Lewis, 701 So.2d 893 (Fla. 4th DCA 1997), in which plaintiffs counsel stated:

Tomorrow you get to go home and tell everyone about this ease that you sat on and I want you to tell them what you get in Broward County if a taxi driver runs a red light and injures somebody ... I wish you could punish them, but you can’t.

This court reversed, explaining:

We hold that this comment constituted an impermissible conscience of the community argument. A conscience of the community argument “extends to all impassioned and prejudicial pleas intended to evoke a sense of community law through common duty and expectation.” Blue Grass Shows, Inc. v. Collins, 614 So.2d 626, 627 (Fla. 1st DCA), rev. denied, 624 So.2d 264 (Fla.1993). Generally where an argument is not otherwise inflammatory or egregious, an isolated statement is only harmful if coupled with an argument for punitive damages. See Florida Crushed Stone Co. v. Johnson, 546 So.2d 1102 (Fla. 5th DCA 1989) ... Counsel’s caveat to the jury, “I wish you could punish [appellant], but you can’t,” did not mitigate the prejudicial impact of his statement. Rather, we conclude that counsel’s statement planted the seed to motivate the jury to include a punitive aspect in the damage award, (emphasis added.)

Ocwen reads the emphasized statement as prohibiting “conscience of community” or “send a message” arguments in punitive damage cases. Lewis, however, did not involve a claim for punitive damages. The point we were making in Lewis is that such an argument could motivate a jury to be punitive. Ocwen’s argument that this type of argument cannot be used in a punitive damage case ignores that “[pjunishment and deterrence are the policies underlying punitive damages.” W.R. Grace & Co. v. Waters, 638 So.2d 502, 504 (Fla.1994). Ocwen cites no punitive damage cases which prohibit this type of argument.

The second issue relates to a motion in limine by Ocwen to preclude any reference to the fact that the peeping employee had been arrested, which the court granted. When an Ocwen manager was testifying as an adverse witness during plaintiffs’ case, however, he blurted out that the employee had been arrested. Ocwen objected, asked the court for a curative instruction, and the court gave one. The arrest came out several additional times during the trial, and each time Ocwen’s objections were sustained and, if requested, a curative instruction was given. Significantly, Ocwen did not move for a mistrial, but now argues that this was so prejudicial as to require a new trial.

The plaintiffs argue that, because Ocwen did not move for a mistrial, any error involving the testimony about the employee’s arrest was not preserved. They cite cases such as Grau v. Branham, 761 So.2d 375 (Fla. 4th DCA 2000), and Weise v. Repa Film International, 683 So.2d 1128 (Fla. 4th DCA 1996), which hold that a motion for mistrial is necessary to preserve for review an issue relating to an improper comment, if an objection to the comment has been sustained in the trial court. See also Roundtree v. State, 362 So.2d 1347 (Fla.1978).

Ocwen argues that it is no longer necessary to move for a mistrial, if an objection has been sustained, because of section 90.104(l)(b), Florida Statutes (2003). The statute provides that “... if the court has made a definitive ruling on the record ... excluding evidence, either at or before trial, a party need not renew an objection ... to preserve a claim of error for appeal.” If Ocwen had believed that the reference to the employee having been arrested was so prejudicial as to be incurable by objection and curative instruction, it had the option of moving for a mistrial, a far more drastic remedy. The statute, however, only addresses objections, not motions for mistrial. If the legislature had meant to relieve a party from having to move for a mistrial it would have said so, and in the absence of such a statement we cannot assume that the cases requiring a motion for mistrial have been overruled.

We have considered the other issues raised by Ocwen and find that they are without merit.

Affirmed.

POLEN and MAY, JJ., concur.


text:
    Scott EARLE, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2228.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2007.
    Scott Earle, pro se, Petitioner.
    Kathleen Van Hoene, General Counsel, and Chris Korn, Assistant General Counsel, Department of Corrections, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari, insofar as it challenges the amount of gain time awarded to petitioner by the Florida Department of Corrections, is denied on the merits. Brown v. Moore, 800 So.2d 329 (Fla. 1st DCA 2001). However, we grant the petition to the extent it seeks review of the circuit court’s order that imposed a lien on petitioner’s trust account to recover circuit court filing fees for the proceedings below. The order of September 3, 2004, is quashed and the cause is remanded to the circuit court for reconsideration of petitioner’s request for indigency in accordance with section 57.081, Florida Statutes. The circuit court shall also order that any funds taken from petitioner’s trust account in accordance with the lien be refunded. Jackson v. McDonough, 31 Fla. L. Weekly D2299, — So.2d-, 2006 WL 2527244 (Fla. 1st DCA Sept.5, 2006).

PETITION GRANTED IN PART AND DENIED IN PART.

BROWNING, C.J., WEBSTER, and PADOVANO, JJ., CONCUR.


text:
    Julio ESCALONA, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-4860.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2007.
    Julio Escalona, pro se, Petitioner.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We find no merit to petitioner’s claim that the circuit court departed from the essential requirements of law in denying his request for mandamus relief, and therefore deny the petition for writ of certiorari on the merits as to that issue. However, as respondent correctly concedes, petitioner’s claim below constituted a “collateral criminal proceeding,” and the circuit court was therefore without authority to impose a lien on petitioner’s inmate trust account to recoup filing fees and costs. See Wagner v. McDonough, 930 So.2d 710 (Fla. 1st DCA 2006). Accordingly, we vacate the order imposing a lien and direct the circuit court to ensure the reimbursement to petitioner of any funds collected pursuant thereto.

BROWNING, C.J., KAHN and LEWIS, JJ., Concur.


text:
    Robin Lee WEEKS, Petitioner, v. James R. McDONOUGH, Respondent.
    No. 1D06-2973.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2007.
    Robin Lee Weeks, pro se, Petitioner.
    Bill McCollum, Attorney General, and Shelly L. Marks, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner’s argument that the circuit court erred in denying his petition for writ of mandamus is without merit and is rejected; however, because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2005), the circuit court improperly imposed a lien upon petitioner’s inmate trust account for payment of court costs and fees. See Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d—, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom. McDonough v. Cox, 924 So.2d 809 (Fla.2006); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash that portion of the circuit court’s order on indigency imposing a lien as a result of the filing of the petition for writ of certiorari/mandamus below. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

DENIED.

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


text:
    Kimberly ROSSI, Petitioner, v. UNITED PARCEL SERVICE, and Liberty Mutual Insurance Co., Respondents.
    No. 1D07-0576.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2007.
    Kenneth B. Schwartz, West Palm Beach, for Petitioner.
    Tara L. Said of Law Offices of Amy L. Warpinski, Jacksonville, for Respondents.
   PER CURIAM.

DENIED. Boyd v. Pheo, Inc., 664 So.2d 294 (Fla. 1st DCA 1995).

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


text:
    Troy C. GAVINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-2445.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   OPINION ON MOTION FOR CLARIFICATION

BROWNING, C.J.

We withdraw our previous opinion in Gavin v. State, 81 Fla. L. Weekly D3107, 2006 WL 3613108 (Fla. 1st DCA Dec. 13, 2006), and submit the following as the opinion of the court. We affirm, without comment, the trial court’s amended judgment and sentence, except as to a scrivener’s error, which we remand for correction. The trial court incorrectly awarded prison credit “for time served and unforfeited gain time previously awarded on counts VI, VII and VIII.” We reverse and remand with instructions to award credits earned while serving the sentences in counts I-V, IX, and X against the newly imposed sentences in counts VI-VIII.

AFFIRMED in part, REVERSED in part, and REMANDED.

KAHN and DAVIS, JJ., concur.


author: PER CURIAM. ERVIN, III, RICHARD W., Senior Judge.,

text:
    William Chester COLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5481.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    William Chester Cole, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

HAWKES and THOMAS, JJ., concur, ERVIN, III, RICHARD W., Senior Judge, concurs with written opinion.

ERVIN, III, RICHARD W., Senior Judge.,

concurring.

Inmate William Chester Cole seeks review of an order dismissing his petition for writ of mandamus challenging the Department of Corrections’s calculation of gain time credits applied to his sentences. Relying on Kalway v. Singletary, 708 So.2d 267 (Fla.1998), which had held that a petition for extraordinary relief must be filed within 30 days from the time that administrative remedies are exhausted, the lower court dismissed the petition as time-barred, noting that Cole had previously filed a petition for the same relief in the Leon County Circuit Court, resulting in the dismissal of the action for lack of jurisdiction on the ground that the relief sought constituted a collateral challenge to his sentence; as a consequence, the court in Leon County concluded that the sentencing court, which it was not, should entertain the petition.

The lower court’s order correctly noted that the dismissal was incorrect, citing Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004) (challenge to gain time determination is not a collateral challenge to a sentence). Because Cole did not appeal the prior dismissal, the lower court dismissed the challenge for the reason that it was untimely filed.

Notwithstanding the dismissal of his action, Cole retains the option of seeking relief from judgment via Florida Rule of Civil Procedure 1.540(b) in the Leon County Circuit Court at any time on the ground that the judgment entered was void.


text:
    Emanuel CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-170.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Emanuel Charles, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant Emanuel Charles appeals the trial court order dismissing his amended motion for postconviction relief, a third amended motion, a fourth amended motion, and a fifth amended motion, all for lack of jurisdiction. We affirm, without prejudice to his right to refile those motions once this court’s mandate issues in the pending appeal of his earlier motion for postconviction relief in our case number 03-3972. See Cross v. State, 834 So.2d 961 (Fla. 4th DCA 2003); Washington v. State, 823 So.2d 248 (Fla. 4th DCA 2002); Wells v. State, 362 So.2d 441 (Fla. 4th DCA 1978).

STEVENSON, C.J., STONE and GROSS, JJ., concur.


text:
    Henry S. DeMAYO, Appellant, v. CITIBANK (SOUTH DAKOTA) N.A., Appellee.
    No. 3D06-1415.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Sophie DeMayo, for appellant.
    Ruden, McClosky, Smith, Schuster Russell and Louis M. Ursini, III, Sarasota, for appellee.
    Before GREEN, RAMIREZ and SHEPHERD, JJ.
   ON CONFESSION OF ERROR

PER CURIAM.

Appellee’s, Citibank (South Dakota), N.A., motion for remand is treated as a confession of error. The final summary judgment on appeal is reversed.

Reversed and remanded.


text:
    P.R. a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1428.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

P.R., a juvenile, seeks to reverse an adjudication of delinquency and probation for trespass. We reverse. The State failed to present sufficient evidence that P.R. committed trespass or any conduct that could support a finding of delinquency. We therefore reverse P.R.’s adjudication of delinquency and remand with instructions to dismiss the case and discharge him.

Reversed and remanded with instructions.


author: HAZOURI, J. MAY, J.,

text:
    Jennifer BORDA, Appellant, v. EAST COAST ENTERTAINMENT, INC., a Florida corporation, d/b/a The Voodoo Lounge, Appellee.
    Nos. 4D06-1080, 4D06-840.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Rehearing Denied March 28, 2007.

      Roberta M. Deutsch of Roberta M. Deutsch, P.A., and Carey M. Fischer of Carey M. Fischer, P.A., Boca Raton, for appellant.
    James V. Facciolo, III, of The Law Offices of James V. Facciolo, III, P.A., Fort Lauderdale, for appellee.
   HAZOURI, J.

Appellant, Jennifer Borda, appeals from the trial court’s decision to grant appellee, East Coast Entertainment, Inc., d/b/a The Voodoo Lounge’s (“the Lounge”), motions for directed verdict and for remittitur. We reverse and remand for reinstatement of the verdict.

Borda filed a complaint against the Lounge alleging a cause of action for premises liability. A jury trial was had at which the following facts were adduced. On Saturday, March 6, 2004, at about 10:30 P.M., Borda and a female friend went to the Lounge. Borda parked her car in a parking lot by the Lounge. While in the Lounge, Borda was accosted by a woman who pushed her several times. Borda pushed back. Several of the Lounge’s bouncers approached them, and two of them took the woman away. Another bouncer approached Borda and asked what happened. She told him the woman had started pushing her. The bouncer asked if she had ever seen the woman before, and Borda responded that she had not. She did not know why the woman was pushing her. The bouncer spoke with other people in the vicinity and then told Borda not to worry about it. He said they had taken care of the woman, and she would not come back in.

Borda and her girlfriend ordered drinks and had taken one sip when Borda turned and saw the woman quickly approaching her again. The woman hit Borda in the face causing it to bleed and pulled Borda’s hair. Another person started hitting her from behind, and her clothes were being ripped off. Borda fell to the ground, and they beat her on her back. Different bouncers approached, and two of them got the woman off Borda. Another bouncer grabbed Borda around the waist and lifted her off the ground. In doing so, his thumb went inside her blouse and pulled the blouse so that her breast was exposed. He carried her out and ignored her pleas to let her fix her blouse.

The bouncer carried Borda out the Lounge’s front door and placed her on the other side of the sidewalk. The woman who attacked her was standing nearby. Borda pulled herself together and spoke to the police officer who was standing outside the door and speaking to the bouncers. This officer was paid by the Lounge to provide security. Borda told the officer that she was assaulted and pointed out the woman to him. He responded that he had not seen anything, and it was not his problem. She pleaded with him to help her, but he walked away.

Borda then realized that she had lost her purse and went to the bouncer at the front door. He went in and retrieved the purse, the contents of which were intact. Borda, who was upset and trying to cover herself with her ripped skirt, and her girlfriend walked down an alley toward the parking lot. The two women who attacked her and a man were sitting in the alley between the building and the parking lot where they were walking. Borda tried to rush by them, but the two women attacked her again. While trying to fight them off, the man came from behind and lacked her twice on her left knee. Four men who were leaving the Lounge ran up and helped Borda get away. She and her girlfriend got in her car and left.

Borda’s injuries required medical treatment, including arthroscopic surgery on her knee. She also has a scar on her eye and does not feel safe going out in public anymore.

After Borda presented her case, the Lounge moved for a directed verdict on the issue of its liability for injuries which resulted from the attack outside the Lounge. The trial court agreed but reserved ruling until after the jury returned its verdict. The jury was instructed on premises liability but was not instructed to make specific findings on which damages occurred inside and which occurred outside. The jury found the Lounge liable for premises liability and awarded Borda $150,000. After the verdict, the trial court granted the Lounge’s motion for directed verdict as to its liability for injuries which occurred outside the Lounge. The Lounge’s motion for remittitur was also granted reducing the award to $10,000 or, if Borda did not accept, ordering a new trial on damages limited to only those that occurred inside the Lounge. The trial court found that “[a]ny damages that occurred to the Plaintiff outside of the Defendant’s premises or any Verdict for damages awarded by the jury for what happened to her outside the Defendant’s premises is against the manifest weight of the evidence.” Borda appeals these post-verdict rulings.

The standard of review of a trial court’s ruling on a motion for directed verdict is de novo. Flagstar Cos., Inc. v. Cole-Ehlinger, 909 So.2d 320, 322 (Fla. 4th DCA 2005).

The power to direct a verdict should be exercised with caution, and it should never be granted unless the evidence is of such a nature that under no view which the jury might lawfully take of it, favorable to the adverse party, could a verdict for the latter be upheld. The movant admits every reasonable inference that a jury might fairly and reasonably arrive at favorable to the adverse party.

Little v. Publix Supermarkets, Inc., 234 So.2d 132, 133 (Fla. 4th DCA 1970).

In Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla. 4th DCA 1991), disapproved on other grounds, Angrand v. Key, 657 So.2d 1146 (Fla.1995), this court held:

Generally, the proprietor of a place of public entertainment owes an invitee a duty to use due care to maintain the premises in a reasonably safe condition commensurate with the activities conducted thereon. Although not an insurer of a patron’s safety, the proprietor of a bar or saloon is bound to use every reasonable effort to maintain order among the patrons, employees, or those who come upon the premises and are likely to produce disorder to the injury or inconvenience of patrons lawfully in the place of business. The risk of harm must be foreseeable, and the determination of a breach of this duty depends on the facts of each individual case.

Id. at 325 (citations omitted).

In Goldberg v. Florida Power & Light Co., 899 So.2d 1105 (Fla.2005), the court discussed the initial concern in an action for negligence, the duty of care:

The determination of the existence of a duty of care in a negligence action is a question of law. “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.”

Id. at 1110 (citations omitted). This duty-may arise from the general facts of the case. Id.

In McCain v. Florida Power Carp., 593 So.2d 500 (Fla.1992), the supreme court discussed the zone of risk:

Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida ... recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. As we have stated:
Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.

Id. at 503 (citations and footnote omitted).

In Shelburne, where injuries to the plaintiffs occurred off the premises of the Rodeo Bar and in an adjacent parking lot not owned by the hotel but used by its customers, this court relied upon an Indiana case which held:

An invitor’s duty normally extends only to its “premises.” However, we recognize that in this case “the premises” may not be limited to the area actually owned or leased by the Pub because its business activities extended beyond its legal boundaries.
A duty of reasonable care may be extended beyond the business premises when it is reasonable for invitees to believe the invitor controls premises adjacent to his own or where the invitor knows his invitees customarily use such adjacent premises in connection with the invitation. Here, the record supports a reasonable inference the Pub knew its parking lot was insufficient for its patron’s use; additionally, the Pub was aware its patrons customarily used the parking lot across the street while patronizing it. The initial confrontation occurred at the entrance to this lot, which had similarly overflowed.
Indeed, we are unconvinced either Ember or other patrons of the Pub lost their invitee status while waiting outside the Pub’s legal boundaries. In the recent case of Alholm v. Wilt (1984), Minn.App., 348 N.W.2d 106, the occurrence of an assault in a public alley behind the tavern did not bar the tavern’s liability. The Minnesota Appellate Court found a reasonable inference of foreseeability of the attack due to the aggressive conduct of the patrons involved preceding their departure from the tavern.

Shelburne, 576 So.2d at 329 (quoting Ember v. B.F.D., Inc., 490 N.E.2d 764, 772 (Ind.Ct.App.2d Dist.1986), reh’g denied, 521 N.E.2d 981 (1988) (emphasis added)).

The evidence presented proved that the Lounge’s duty of care to its invitees extended to the nearby parking lot which was one used by - the up to 2000 invitees patronizing the Lounge. It was a foreseeable zone of risk, especially when both patrons were ejected at the same time and placed in the same area.

In Hall v. Billy Jack’s, Inc., 458 So.2d 760 (Fla.1984), Hall, a patron at Billy Jack’s lounge, was assaulted by another patron. The fight moved outside and when it was over and Hall got up, he turned to face the lounge manager and another patron. That patron then hit Hall over the head with a pool cue he had taken out of the lounge in violation of its rules. Hall said the blow was without provocation, and the patron said it was in self-defense. The jury returned a verdict against Billy Jack’s and the patron, jointly. The district court reversed as to Billy Jack’s. In reinstating the verdict, the supreme court held:

A tavern owner is not required to protect the patron from every conceivable risk; he owes only a duty to protect against those risks which are reasonably foreseeable. Foreseeability may be established by proving that a proprietor had actual or constructive knowledge of a particular assailant’s inclination toward violence or by proving that the proprietor had actual or constructive knowledge of a dangerous condition on his premises that was likely to cause harm to a patron.... If the lounge management knew or should have known of a general or specific risk to Hall and failed to take reasonable steps to guard against that risk and if, because of that failure, Hall was injured, Billy Jack’s may be shown to have breached its duty and may be held financially responsible for Hall’s injuries.

Id. at 761-62 (citations omitted).

Because a proprietor of a lounge is bound to use every reasonable effort to maintain order among its patrons and that duty may be extended to outside the premises, if the proprietor knows his patrons normally use the adjacent premises in connection with the patronage of the Lounge, as was shown in this case, there is a duty of reasonable care.

With respect to proximate cause, the supreme court stated the principles in Goldberg v. Florida Power & Light Co., 899 So.2d 1105 (Fla.2005):

The issue of proximate cause is generally a question of fact concerned with “whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” This Court has stated that “harm is ‘proximate’ in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question.” The proper question is whether the individual’s conduct is “so unusual, extraordinary or bizarre (ie., so ‘unforeseeable’) that the policy of the law will relieve the [defendant] of any liability for negligently creating this dangerous situation.” In this Court’s words, “The law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience.” Where reasonable persons could differ as to whether the facts establish proximate causation, the issue must be left to the fact finder.

Id. at 1116 (citations omitted).

The jury reasonably found that the Lounge’s actions in placing Borda along with her assailant together outside, and the Lounge’s employee’s inaction in the face of Borda’s request for help were the proximate cause of Borda’s injuries.

Because the remittitur was based upon the trial court’s conclusion that Borda was not entitled to any damages resulting from injuries which occurred outside the Lounge, it also erred in granting the re-mittitur. We therefore reverse the trial court’s order granting the directed verdict and remand for the reinstatement of the jury’s verdict.

Reversed and Remanded.

KLEIN, J., concurs.

MAY, J., concurs specially with opinion.

MAY, J.,

concurring specially.

I concur in the holding based upon the unique facts of the case and the failure of the verdict form to apportion damages among the separate altercations that occurred. I write out of concern that this case is misinterpreted to carte blanche expand liability beyond the defendant’s premises.

“A tavern owner is not required to protect the patron from every conceivable risk; he owes only a duty to protect against those risks which are reasonably foreseeable.” Hall v. Billy Jack’s, Inc., 458 So.2d 760, 761 (Fla.1984) (citing Stevens v. Jefferson, 486 So.2d 33, 34 (Fla.1983)). Such “[Qorseeability may be established by proving that a proprietor had actual or constructive knowledge of a particular assailant’s inclination toward violence or by proving that the proprietor had actual or constructive knowledge of a dangerous condition on his premises that was likely to cause harm to a patron.” Id. (citing Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980)). As explained by the majority opinion, premises liability has been extended beyond the four corners of the premises when the plaintiff is within a foreseeable zone of risk. See Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla. 4th DCA 1991), disapproved on other grounds, Angrand v. Key, 657 So.2d 1146 (Fla.1995).

Here, the premises owner knew of two altercations that had occurred on the premises. The plaintiff testified that she requested the off-duty police officer employed by the premises owner to help her because her assailants were located within feet from the lounge between her and her car. The parking lot was located fifty yards from the front door of the lounge. Under these very specific and limited facts, I agree that the plaintiff was within a foreseeable zone of risk created by the premises owner’s invitation to patronize the lounge. I do not believe however that every premises owner is responsible for third-party attacks that occur once the patron has left the premises.

In addition, the verdict form failed to apportion the damages according to the separate altercations. The jury awarded the plaintiff $15,000 for past medical expenses, $7,000 for lost earnings, $100,000 for past and $28,000 for future pain and suffering. This verdict form prevented the trial court from knowing what damages were attributable to the various altercations. I therefore agree that the $10,000 remittitur was entered in error.

For these reasons, I concur with the majority.


text:
    Leif Eric JOHNSON, Appellant, v. Tracy FULTON, Appellee.
    No. 4D06-1501.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Leif Eric Johnson, Lauderdale Lakes, Pro Se.
    No appearance for appellee.
   PER CURIAM.

Leif Eric Johnson appealed the circuit court’s dismissal of his appeal from a county court judgment. The circuit court, sitting in its appellate capacity, properly dismissed the appeal as untimely. We treat this appeal as a petition for writ of certio-rari under Florida Rule of Appellate Procedure 9.030(b)(2) and deny the writ.

STEVENSON, C.J., STONE and TAYLOR, JJ., concur.


text:
    Kevin ANDROFF, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3560.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Kevin Androff, Cross City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Sanders v. State, 946 So.2d 953 (Fla. Oct. 12, 2006).

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


text:
    Leslie SHIVERS, Appellant, v. ENTERPRISE LEASING CO., Appellee.
    No. 4D06-799.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Diane H. Tutt of Diane H. Tutt, P.A. and Marla C. Aronson of Lawrence J. Bohannon, P.A., Fort Lauderdale, for appellant.
    Charles M-P George and Gary F. Bau-mann of George, Hartz, Lundeen, P.A., Coral Gables, for appellee.
   PER CURIAM.

The appellant, Leslie Shivers, was injured in an automobile accident while she was driving a vehicle that a friend had rented from Enterprise. The parties stipulated that the rental contract signed by the lessee complied with section 627.7263, Florida Statutes, in that it contained the appropriate language to make an authorized rental driver’s “valid and collectible” insurance primary for the limits of liability and personal injury protection (PIP) coverage. The lessee of the Enterprise vehicle had an automobile insurance policy through Aries Insurance Company. However, at the time of the accident, Shivers did not own a motor vehicle, nor did she reside in the same household with a relative who owned a motor vehicle. As a result, there was no PIP coverage for Shivers in her own household.

Shivers sued Enterprise for PIP benefits, but the trial court ruled that Aries, rather than Enterprise, was obligated to pay for Shivers’ PIP benefits. We reverse, because the Aries policy does not provide PIP coverage to Shivers. See Progressive Express Ins. Co. v. Devitis, 924 So.2d 878 (Fla. 4th DCA 2006); Allstate Ins. Co. v. Morgan, 870 So.2d 2 (Fla. 2d DCA 2003). The relevant provisions in the Aries policy are substantively indistinguishable from those at issue in Devitis and Morgan. Here, the Aries policy did not extend valid and collectible coverage to Shivers, nor was Aries required to provide PIP coverage to Shivers under section 627.736, Florida Statutes. Furthermore, we have considered, and rejected, Enterprise’s “statutory construction” argument that section 627.7263 requires Aries to provide PIP coverage under these circumstances. See Direct Gen. Ins. Co. v. Vreeman, 943 So.2d 914, 916 (Fla. 1st DCA 2006) (“The coverage shifting language of the rental car agreement cannot serve to create coverage where none otherwise exists.”). Consequently, Enterprise is obligated to provide PIP coverage to Shivers.

Reversed.

WARNER, GROSS and TAYLOR, JJ., concur.


author: FARMER, J.

text:
    Wesley SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2378.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Rehearing Denied April 5, 2007.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

One of the two offenses charged was burglary with an assault and battery. On that charge the jury convicted on the lesser included offense of burglary of a dwelling. By appeal defendant argues a lack of proof.

From trial evidence comes the following narrative. Wesley and Wendy had known each other since childhood. More recently they had been living together in Wendy’s second-floor apartment above a commercial establishment. He moved out after a quarrel. He still had a key to the apartment, where many of his possessions remained. Shortly after he moved out, he came to the building at 4:00 one morning accompanied by his sister. He did not know that Nadia, a new acquaintance, was staying overnight with Wendy.

Wendy heard him outside downstairs begging to let him talk to her. She yelled back that she did not want to talk to him or enter the apartment. She then heard him break the window on the downstairs entrance door and climb the stairs to the second-floor apartment.

The bedroom door is a thin, hollow interior door. Either he pushed it, or Wendy closed it before he could enter the bedroom. Either way, Wendy was struck in the face and arm by the door as it closed. He stood there and jiggled the door handle and banged and kicked the door while begging Wendy to let him talk to her. Investigators later noted a crack and black marks on the outside of the door. Wendy and Nadia both testified he could have broken the bedroom door down at any time while he banged on it, that his banging on the door stopped only when it was apparent the police were arriving. Wendy and Nadia heard his sister outside the door tell him that police were coming. Then they then heard him running back down the stairs and out the building.

At some point during the drama, Wendy made two 911 calls. During the first call, she told the operator, “I have an old boyfriend that just showed up at my house that does not need to be here.” She said he was “beating the door down.” On the second call, a male voice could be heard shouting profanities in the background. Most of the second call was an open line, with only a male voice audible. Wendy testified that she did not actually see Sanders at any time during the entire episode. She testified that he did not threaten the women. She made clear that Sanders did not intentionally touch her on the night in question. Both women testified they stayed in the bedroom while Sanders confronted law enforcement outside the residence.

The State argues that the offense intended by him during the break-in was criminal mischief. One commits a criminal mischief by willfully and maliciously damaging the property of another in any way. § 806.13(l)(a), Fla. Stat. (2006). The offense requires that the actor have a specific intent to damage property. J.A. v. State, 684 So.2d 264, 266 (Fla. 4th DCA 1996). We find evidence to support the offense. Testimony established that defendant already had a key to the building and apartment. Rather than use his key to gain entrance (in spite of her demand that he leave), he instead smashed the window and proceeded to bang threateningly on the bedroom door. A reasonable jury could have concluded that his entry without permission was for the purpose of committing the offense of criminal mischief inside to intimidate or force her into speaking to him.

Affirmed.

STONE and MAY, JJ., concur.

      . He was also charged and convicted of the crime of escape. The jury specifically found that there was no assault or battery. Each offense yielded a sentence of 15 years as a habitual felony offender and prison releasee offender.

      . The State argued to the trial judge that both assault and criminal mischief should be included in the instruction to the jury as the offense contemplated by defendant during the break-in. The jury found that no offense of assault was committed.


author: PER CURIAM. BENTON, J.,

text:
    Preveus PIERRE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-275
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Preveus Pierre, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD and POLSTON, JJ., concur.

BENTON, J., concurs in part and dissents in part with opinion.

BENTON, J.,

concurring in part and dissenting in part.

I would enter an order to show cause as to ground one.


author: PALMER, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. R.G., A Child, Appellee.
    No. 5D06-1376.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2007.

      Charles D. Peters, Orlando, for Appellant.
    Gerard F. Glynn, Orlando, Donald A. Meyers, Jr. of Bailey & Meyers, Maitland, and Heather Morcroft, Orlando, for Appel-lee.
   PALMER, J.

The Department of Children and Families (DCF) appeals the trial court’s order directing, among other things, that DCF disburse funds held in trust to appellee, R.G. We affirm.

R.G. was sheltered by DCF in 2000. In 2001, he was placed in a residential treatment facility by court order. R.G. remained in residential treatment facilities and in the legal custody of DCF until the end of 2005. While in sheltercare, R.G. received $597.00 per month from the Social Security Administration and $30.00 of that amount was deposited into a Master Trust Account by DCF for R.G.’s benefit. Over time, R.G.’s trust account balance grew to an amount in excess of $1,000.00.

In March 2006, a hearing was held regarding the services which were to be provided to R.G. by DCF once R.G. turned 18 years old. During that hearing, both DCF and R.G’s guardian ad litem (GAL) argued over a provision of the proposed order which provided that, upon R.G.’s eighteenth birthday, DCF could distribute the money in his Master Trust Account directly to R.G. DCF argued that it was required to send the money back to the Social Security Administration, and that the Social Security Administration would later disburse the funds to R.G. However, DCF cited no legal authority in support of its position. The GAL maintained that the funds should be dispensed directly to R.G. pursuant to section 402.17 of the Florida Statutes.

At the conclusion of the hearing, the trial court ordered DCF to disburse the money directly to R.G. The trial court did state that DCF could file a motion for rehearing to provide the trial court with any federal authority to support its request to return the money to the Social Security Administration; however, DCF filed no motion for rehearing.

On appeal, DCF claims that the trial court erroneously relied on section 402.17(7)(a) of the Florida Statutes when it issued its order directing DCF to disburse the money in R.G.’s Master Trust Account directly to R.G. We disagree. Section 402.17(7)(a) of the Florida Statutes expressly directs DCF to disburse money held in trust for a client to the client when he/she attains the age of 18.

DCF claims that section 402.17(7)(a) of the Florida Statutes is preempted by federal supremacy. Under the Supremacy Clause, a federal law may expressly or impliedly preempt state law. State v. Harden, 938 So.2d 480 (Fla.2006). In support of that argument, DCF cites to two cases, Philpott v. Essex County Welfare Bd., 409 U.S. 413, 93 S.Ct. 590, 34 L.Ed.2d 608 (1973), and Bennett v. Arkansas, 485 U.S. 395, 108 S.Ct. 1204, 99 L.Ed.2d 455 (1988). Neither of these cases directly applies to the matter at issue in this case.

In Philpott, the Supreme Court held that the State of New Jersey’s welfare agency was barred from recovering federal disability benefits retroactively paid to a recipient in a lump sum when, as a condition of receiving state assistance, the recipient had executed an agreement to reimburse the welfare agency with the federal funds. Philpott, 409 U.S. at 415, 98 S.Ct. 590. The Court quoted to the relevant statute: Title 42 U.S.C. § 407 provides:

The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.

Id. at 415 n. 3, 93 S.Ct. 590. The Court held that, on its face, the Social Security Act barred the State of New Jersey from reaching the federal disability payments paid to the beneficiary. Id.

Similarly, in Bennett v. Arkansas, 485 U.S. 395, 108 S.Ct. 1204, 99 L.Ed.2d 455 (1988), the Supreme Court held that the State of Arkansas could not attach social security benefits paid to individuals who were incarcerated in Arkansas prisons in order to defray the cost of maintaining its prison system.

Here, DCF asserts a tortured interpretation of 42 U.S.C. § 407, claiming that the use of the phrase “other legal process” means that the trial court could not order DCF to directly pay R.G. his funds. However, nothing in section 407 forbids DCF from distributing the money held in trust to R.G. once he turns 18 years old. In contrast, section 402.17(7)(a) of the Florida Statutes specifically directs DCF to return the funds held in trust to R.G. once he turns 18.

DCF has provided the court with two sections of the Code of Federal Regulations as supplemental authority in this case, although neither of these authorities were presented to, or argued before, the trial court. Section 404.2060 of the Social Security Act provides:

§ 404.2060 Transfer of accumulated benefit payments.
A representative payee who has conserved or invested benefit payments shall transfer these funds, and the interest earned from the invested funds, to either a successor payee or to us, as we will specify. If the funds and the earned interest are returned to us, we will recertify them to a successor representative payee or to the beneficiary.

20 C.F.R. § 404.2060 (2006).

Section 416.660 of the Act further provides:

§ 416.660 Transfer of accumulated benefit payments.
A representative payee who has conserved or invested benefit payments shall transfer these funds, and the interest earned from the invested funds, to either a successor payee or to us, as we will specify. If the funds and the earned interest are returned to us, we will recertify them to a successor representative payee or to the beneficiary.

20 C.F.R. § 416.660 (2006). Neither of these sections is sufficient authority to overturn the trial court’s order in this case. Both sections state that the funds will be transferred to “either a successor payee or to us, as we will specify.” Yet, there is no indication from DCF how these sections pertain to its standard policy of returning a beneficiary’s money to the Social Security Administration for subsequent disbursement to the beneficiary. As such, DCF has failed to demonstrate that the trial court committed reversible error by ordering that DCF disburse the money held in trust for R.G. directly to R.G. See Lazzari v. Lin, 884 So.2d 393 (Fla. 2d DCA 2004) (holding the judgment of a lower tribunal is presumed to be correct and the burden is on the appellant or petitioner to demonstrate reversible error).

AFFIRMED.

THOMPSON and MONACO, JJ., concur.

      . Section 402.17(7)(a) of the Florida Statutes (2005) provides, in relevant part:
      402.17. Claims for care and maintenance; trust property
      The Department of Children and Family Services and the Agency for Persons with Disabilities shall protect the financial interest of the state with respect to claims that the state may have for the care and maintenance of clients of the department or agency. The department or agency shall, as trustee, hold in trust and administer money and property designated for the personal benefit of clients. The department or agency shall act as trustee of clients' money and property entrusted to it in accordance with the usual fiduciary standards applicable generally to trustees, and shall act to protect both the short-term and long-term interests of the clients for whose benefit it is holding such money and property.

      (7) Disposition of money and property of clients upon attaining age 18 or discharge from care, custody, control, or services of the department.—
      (a) Whenever a client of the department for whom the department is holding money or property as a trustee attains the age of 18, and thereby will no longer be in the legal custody of the department, the department shall promptly disburse such money and property to that client, or as that client directs, as soon as practicable.
      § 402.17(7)(a), Fla. Stat. (2005)(emphasis added).