author: ROTHENBERG, Judge.

text:
    Alberto CASTRO and Clara L. Castro, Petitioners, v. MIAMI-DADE COUNTY CODE ENFORCEMENT, Respondent.
    No. 3D06-1326.
    District Court of Appeal of Florida, Third District.
    July 18, 2007.
    Rehearing Denied Nov. 9, 2007.

      Carbonell Law Firm, and Alberto M. Carbonell, Plantation, for petitioners.
    R.A. Cuevas, Jr., Acting Miami-Dade County Attorney, and Diamela del Castillo, Assistant County Attorney, for respondent.
    Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Petitioners, Alberto Castro and Clara L. Castro (the “Castros”), via petition for writ of certiorari, seek review of a decision of the circuit court sitting in its appellate capacity denying their petition for writ of certiorari and finding that the doctrine of equitable estoppel does not preclude the Respondent, Miami-Dade County (the “County”), from enforcing its set-back requirements ordinance against the Castros. Because we find that the appellate division of the circuit court failed to apply the correct principle of law in resolving the issue, we grant the petition for writ of certiorari and quash the circuit court’s order.

The undisputed facts of this case, as set out in Judge Bernstein’s concurring opinion and contained in the record, are as follows. In 1983, the Castros purchased a townhouse that was built in 1980 as part of a townhouse development community, which, after a public hearing, was approved by the County with the requested special exceptions and non-use variances pursuant to Resolution No. 4-ZAB-448-78. At the time the Castros purchased their townhouse, it came with an already-built family room addition for which the prior owners had obtained the proper building permits. Judge Bernstein concluded that “the addition is located about five feet away from the rear property line, apparently violating the zoning ordinance in existence at that time.” The set-back ordinance at the time the addition was built provided that front and rear setbacks must be at least fourteen feet. Notwithstanding the addition’s “apparent” violation of the zoning ordinance, the County subsequently issued another building permit on February 23, 1993, for a hurricane re-roof, which included re-roofing of the addition. The County also issued a building permit on June 03, 2004, for iron works that again included the addition.

In 2003, the County passed section 33-50 of the Miami-Dade County Code (the “Code”) requiring twenty-five foot setbacks of both the front and rear of residential structures and setbacks of five to seven and one-half feet on the sides, within this zoning classification. This ordinance applied retroactively and contained no sunset provision. On April 16, 2004, more than twenty years after the Castros purchased their townhouse, which came with the family room addition, a Code Enforcement Officer issued a warning citation to the Castros for illegally constructing the addition in violation of section 33-50 of the Code. The Code Enforcement Officer referred the matter to the Miami-Dade Building Department. The Miami-Dade Building Department issued a report finding that the family room addition on the Castros’ property was completed prior to 1983 after the original owners had acquired the requisite permits, and that the case had been opened in error as no building violation existed. Not satisfied with this outcome, the Code Compliance Officer on September 9, 2004, cited the Castros with “maintaining the addition” in violation of the required setbacks of section 33-50 of the Code. After an evidentiary hearing, the Miami-Dade County Code Enforcement Board affirmed the citation. In her order, the administrative officer did not make any factual findings as to the validity of the permits, the actual set-back measurements of the property, or the applicable set-back ordinance pertaining to this particular property. Instead, the hearing officer only specified that the preponderance of the evidence established that the Cast-ros were responsible for violating section 33-50 of the Code.

The Castros challenged the hearing officer’s order via petition for writ of certio-rari to the circuit court sitting in its appellate capacity. The Castros argued on appeal, in pertinent part, that the County should be equitably estopped from enforcing section 33-50 of the Code against their property since the addition was already built when they bought the townhouse and the prior owners had obtained all of the required permits for the addition. The circuit court denied the petition without a written majority opinion. Judge Bernstein in his concurring opinion, however, specifically noted that although the majority’s approval of the Code Enforcement Board’s decision was “clearly inequitable” and “justice is thoroughly offended,” he was compelled to concur with the majority’s decision “as by law, equitable estoppel can not lie in this case.” Additionally, Judge Bernstein concluded that the building permits issued for the addition were invalid since the addition “apparently” violated the fourteen-foot set-back requirements when they were issued. He, therefore, concluded that the Castros could not, by law, invoke the doctrine of equitable estoppel against the County. The Castros seek quashal of the circuit court’s order and a finding by this court that the County should be equitably estopped from enforcing section 33-50 of the Code regarding the addition to their home, which was made over twenty-five years ago in reliance of the permits issued by the County.

We begin our analysis, acknowledging, as we must, that the “scope of the district court’s review on second-tier cer-tiorari is limited to whether the circuit court (1) afforded procedural due process, and (2) applied the correct law.” Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003); S. Group Indem., Inc. v. Humanitary Health Care, Inc., 32 Fla. L. Weekly D1396, D1397, — So.2d -, -, 2007 WL 1542019 (Fla. 3d DCA May 30, 2007)(“[T]he proper inquiry under second-tier certiorari review is whether the circuit court afforded procedural due process and whether it applied the correct law.”). However, while “the district courts are governed by a very narrow standard of review, discretionary use of its certiorari power must not be so narrowly applied as to deprive litigants and the public [of] essential justice.” S. Group Indem., 32 Fla. L. Weekly at D1397, — So.2d at -.

The sole issue before this court is whether the circuit court correctly applied the law of equitable estoppel in this case. The doctrine of equitable estoppel may be invoked against a governmental entity just as if it were an individual. Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10, 15 (Fla.1976). The doctrine of equitable estoppel may be invoked against a governmental entity where (1) a property owner in good faith reliance (2) upon some act or omission of the government (3) has made such a substantial change in position or has incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the right he or she acquired. Id. at 15-16; Sun Crux Casinos, L.L.C. v. City of Hollywood, 844 So.2d 681, 684 (Fla. 4th DCA 2003); Equity Res., Inc. v. County of Leon, 643 So.2d 1112, 1117 (Fla. 1st DCA 1994); see also Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1334 (11th Cir.2004)(applying Florida law).

The doctrine of equitable estop-pel, however, may only be applied against a governmental entity under exceptional circumstances. Monroe County v. Hemisphere Equity Realty, Inc., 634 So.2d 745, 747 (Fla. 3d DCA 1994). We find that the County’s issuance of the required permits to the original owners, well before the Castros purchased their home from them with the addition already built; the Cast-ros’ continued use of the addition; and, the Castros’ reliance upon the validity of the permits issued during a period of over twenty-five years, presents such an exceptional circumstance. We specifically find that it would be unconscionable to deny the Castros the protections afforded by the doctrine under the circumstances of this case. We agree with Judge Bernstein that under the circumstances of this case, “gross inequities are. at play” and “justice is thoroughly offended by the decision rendered by the Code Enforcement Board and approved by the majority.” The fact that the County initially issued permits for the construction of the family room addition, and subsequently issued additional permits for the improvement and maintenance of the family room addition over the last twenty-five years, with the knowledge that the Castros were incurring a substantial investment of time and money in reliance that the building permits were properly issued, establishes that it would be grossly unfair to deny the Castros the doctrine of equitable estoppel. At this stage of the game, it would be grossly inequitable to allow the County to repudiate its prior conduct and require the Cast-ros to demolish them family room addition.

As Florida courts have emphasized, “[t]he doctrine of equitable estoppel is- based fundamentally on ‘rules of fair play.’” Equity Res., 643 So.2d at 1119 (quoting Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 573 (Fla. 2d DCA 1975)). More broadly stated:

Stripped of the legal jargon which lawyers and judges have obfuscated it with, the theory of estoppel amounts to nothing more than an application of the rules of fair play. One party will not be permitted to invite another onto a welcome mat and then be permitted to snatch the mat away to the detriment of the party induced or permitted to stand thereon. A citizen is entitled to rely on the assurances or commitments of a zoning authority and if he does, the zoning authority'is bound by its representations, whether they be in the form of words or deeds....

Coral Springs St. Sys., 371 F.3d at 1334-35 (quoting Imperial Homes, 309 So.2d at 573)(applying Florida law); Equity Res., 643 So.2d at 1119-20 (quoting Imperial Homes, 309 So.2d at 573). The rules of fair play require us to conclude that under the facts of this case, the County is equitably estopped from enforcing section 33-50 of the Code against the Castros. Thus, we hold that the circuit court erred in failing to apply the doctrine of equitable estoppel to the circumstances of this case and thereby departed from the essential requirements of the law.

We, therefore, grant the petition for writ of certiorari and quash the order rendered by the circuit court.

PETITION GRANTED.

      . The Miami-Dade County Code applicable at the time defined “setback” as “[t]he minimum horizontal distance between the street, rear or side lines of the lot and the front, rear, or side lines of the building.” Miami-Dade County, Fla., Code § 33-1(96) (1978).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MILTON CONSTRUCTION COMPANY, Appellant, v. JMS DEVELOPMENT CONSTRUCTION, INC., Appellee.
    Nos. 3D06-2397, 3D06-2766.
    District Court of Appeal of Florida, Third District.
    Aug. 1, 2007.
    Rehearing Denied Nov. 1, 2007.

      Alain Leeusay, for appellant.
    James F. Comander, Miami, for appel-lee.
    Before RAMIREZ, and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

In this consolidated appeal, Milton Construction Company appeals an order that vacated a previous order discharging a construction lien recorded by appellee JMS Development Construction, Inc. Milton also appeals an order dismissing the underlying action altogether. We dismiss both cases as moot, because while Milton is entitled to have the construction lien discharged, JMS’s action was against a payment bond, and once the payment bond was in place, the construction lien had no legal effect.

JMS recorded a claim of lien against Milton’s payment bond. Upon learning of the claim of lien, Milton filed a complaint seeking to discharge the lien. Thereafter, a summons was issued and served upon JMS ordering it to show cause, within twenty days, why the claim of lien should not be enforced by action or vacated and canceled of record, pursuant to section 713.21(4), Florida Statutes (2006). When JMS did not respond within twenty days, the trial court vacated and canceled the construction lien. Upon receiving the discharge order, JMS moved to vacate it. JMS claimed that the trial court lacked subject matter jurisdiction to enter it because JMS had previously filed and served a separate action to enforce its claim of lien against Milton’s payment bond in another division of the circuit court.

The trial court ultimately granted JMS’s motion to vacate and then dismissed the matter entirely on rehearing, based upon findings that JMS had commenced a lawsuit in this matter in front of another division, and that there was already a payment bond in place pursuant to that lawsuit. Indeed, according to section 713.23(f)(2), Florida Statutes (2006):

The bond shall secure every lien under the direct contract accruing subsequent to its execution and delivery, except that of the contractor. Every claim of lien, except that of the contractor, filed subsequent to execution and delivery of the bond shall be transferred to it with the same effect as liens transferred under s. 713.24.

(emphasis added). That is, once the payment bond was in place, the claim of lien was secured under that bonded contract, and Milton’s complaint seeking to discharge the lien was unnecessary.

Therefore, the trial court correctly dismissed the case because the claim of lien was no longer “a cloud on the title.” Furthermore, as a matter of law, the construction lien had no legal effect.

Dismissed.


author: FLETCHER, Senior Judge.

text:
    David Dwayne BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2348.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2007.
    Rehearing and Rehearing En Banc Denied Nov. 8, 2007.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before COPE and ROTHENBERG, JJ, and FLETCHER, Senior Judge.
   FLETCHER, Senior Judge.

David Dwayne Brown seeks to reverse his judgment of conviction and sentences. We affirm in part and reverse in part.

Brown was arrested on July 26, 2003 and was charged by indictment with two counts of first degree felony murder, one count of attempted first degree murder, one count of possession of a firearm by a violent career criminal, and one count of use of a firearm in the commission of a felony. On March 25, 2004, he filed a demand for speedy trial. On May 20, 2004, during jury selection proceedings, the prosecutor indicated to the judge that the indictment did not charge Brown with first degree premeditated murder and that he would need additional time to obtain a new indictment. The court allowed the state to proceed, and on May 25, 2004, after the expiration of the speedy trial period, the state filed a new indictment charging two counts of first degree premeditated murder. After arraignment on the new indictment, the trial proceeded to conclusion with a different jury and the defendant was convicted of first degree murder as charged in the indictment, as well as of the charges that remained unchanged from the original indictment.

The record indicates that Brown never waived his right to a speedy trial. There is no dispute that the indictment which added the premeditation charges was filed by the state after the speedy trial period had expired. If the premeditation charges were new charges arising out of the same criminal event, then the amended indictment is indeed time barred. See State v. Naveira, 873 So.2d 300 (Fla.2004); State v. Williams, 791 So.2d 1088 (Fla.2001)(the State cannot wait until after the speedy trial period expires to charge a defendant.). The issue here is whether the post-speedy premeditation charges are truly “new” charges which would preclude the trial court from proceeding under the May 25, 2004 indictment.

In DuBoise v. State, 520 So.2d 260 (Fla.1988), the Florida Supreme Court stated that the failure to include an essential element of a crime does not necessarily render an indictment so defective that it will not support a judgment of conviction when the indictment references a specific section of the criminal code which sufficiently details all the elements of the offense. See also McClamrock v. State, 374 So.2d 1076 (Fla. 2d DCA 1979). DuBoise argued the state’s failure to include an essential element of the offense in the charging document, i.e., the use of actual physical force, rendered the indictment fundamentally defective for failure to charge a crime. DuBoise, 520 So.2d at 264. The Florida Supreme Court held that by referencing the statute under which DuBoise was charged, which defined all the elements of the offense including the element of use of physical force, the indictment gave adequate notice to Du-Boise of the specific crimes with which he was charged. DuBoise, 520 So.2d at 265.

The same analysis applies in this case. The original indictment of September 2003 and the amended indictment of November 2003 without tracking statutory language precisely, stated that counts one and two against Brown were for first degree murder, and cited to section 782.04(1), Florida Statutes (2003), which section encompasses the specific element of premeditation. The new, post-speedy indictment filed on May 25, 2004, adding the specific element of premeditation similarly did not track the statutory language exactly but included the same citation to section 782.04(1). Thus, under a DuBoise analysis, the statute cited in the original and amended indictments was sufficient to apprise Brown of the element of premeditation. It follows that the new, post-speedy indictment did not charge a “new” offense, rather, it merely more specifically elucidated the elements of the originally charged offense. Additionally, as we read the record, the defense was aware prior to expiration of the speedy trial period that the state intended to charge both premeditated and felony murder. Thus, we find that as the original indictment sufficiently apprised Brown of the premeditation element of the murder charges against him prior to expiration of the speedy trial period, there was no prejudice to him in proceeding under the May 25, 2004, indictment. See Pezzo v. State, 903 So.2d 960 (Fla. 1st DCA 2005)(“The state may amend an information after the speedy trial period expires so long as the amendment does not result in new charges.”)[e.s.]; State v. Clifton, 905 So.2d 172 (Fla. 5th DCA 2005)(“Filing an amended information that contains a new charge based on the same criminal episode as the previously filed charges is certainly prejudicial.”)[e.s.]. We affirm on this issue.

The trial court gave the jury the following instructions on first degree and attempted first degree murder:

I now instruct you on the circumstances that must be proven before the defendant may be found guilty of murder in the first degree or any lessor included crime and/or attempted first degree murder or any lessor included crime.
There are two ways in which a person may be convicted of first degree murder. One is known as premeditated murder and the other is known as felony murder.
Before you can find the - defendant guilty of first degree premeditated murder the state must prove the following three elements beyond a reasonable doubt. As to Count one, first Eric Williams is dead. Second, the death was caused by the criminal act of the defendant or another person acting as a principal. Third there is a premeditated killing of Eric Williams.
As to Count 2, Edward Leon Bernard is dead. Second, the death was caused by the criminal act of the defendant or another person acting as a principal. Third, there was a premeditated killing of Edward Leon Bernard.
⅜ * * * *
Before you can find the defendant guilty of attempted first degree murder premeditated murder the state must prove the following three elements beyond a reasonable doubt.
First, the defendant or another person acting as a principal did some act intended to cause the death of Lawrence Wade that went beyond just thinking or talking about it.
Second, defendant or another person acting as a principal acted with a premeditated design to kill Laurence Wade.
Third, the act would have resulted in the death of Lawrence Wade except that someone prevented the defendant from killing Lawrence Wade or he failed to do so.
[e.s.].

These instructions as modified by the trial court incorrectly implied that David Brown could be convicted of first degree premeditated murder and attempted first degree murder based solely on a finding that the criminal conduct of another person acting as a principal satisfied the elements of those offenses. As applied to Counts 2 and 3, we find this to be fundamental error. See Harris v. State, 937 So.2d 211 (Fla. 3d DCA 2006)(holding that including the “and/or” conjunction between the names of defendants in jury instruction results in fundamental error because it creates a situation in which the jury may have convicted the defendant based solely upon a finding that codefendant’s conduct satisfied an element of the offenses); Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005)(same); Cabrera v. State, 890 So.2d 506 (Fla. 2d DCA 2005); Concepcion v. State, 857 So.2d 299 (Fla. 5th DCA 2003); Williams v. State, 774 So.2d 841 (Fla. 4th DCA 2000).

Although the court applied the erroneous language to the jury instructions for Count 1, the murder of Eric Williams, we conclude no fundamental error occurred in that instance. Eric Williams was shot by a rifle, and eyewitnesses saw Brown with the rifle. The State made no argument that the jury should attribute guilt to Brown where some other person may have participated in Eric William’s shooting. The only claim was that Brown shot Williams, and for this reason we find no fundamental error as to the jury instructions for Count 1 of the indictment.

As applied to Counts 2 and 3 of the indictment, however, we agree with Brown that the trial court committed fundamental error when it modified the standard jury instructions for first degree murder and attempted first degree murder by using language that allowed the jury to convict Brown based solely on the criminal conduct of another, where the evidence supporting those counts did not directly implicate Brown. The evidence showed that Wade and Bernard were shot with a shotgun, and Williams was killed with a rifle. The state’s argument that Brown was a principal in the shotgun killings is based on an inference that Brown returned to the scene with a co-defendant who had the shotgun. With the modified instructions, all the jury had to do was conclude that the other man shot Wade and Bernard with the shotgun, and it could thereby convict Brown based on the criminal acts of another. As discussed above, this is error.

We thus affirm Brown’s conviction and sentence in Count 1 for the murder of Eric Williams, but reverse and remand for a new trial on Counts 2 and 3 for the murders of Edward Leon Bernard and Laurence Wade.

Affirmed in part and reversed in part.

      . See 14A Fla. Jur.2d Criminal Law § 1123.


text:
    Jerry POTTER, Appellant, v. Monte KENNEDY and Department of Environmental, etc., Appellee.
    No. 3D06-1530.
    District Court of Appeal of Florida, Third District.
    Aug. 15, 2007.
    Rehearing Denied Nov. 1, 2007.
    Jerry Potter, in proper person.
    Justin G. Wolfe, for the Department of Environmental Protection.
    Before GERSTEN, C.J., and RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See Agrico Chem. Co. v. Dep’t of Envtl. Regulation, 406 So.2d 478 (Fla. 2d DCA 1981).


author: SHEPHERD, J.

text:
    Ira D. GILLER, Appellant, v. CAFETERIA OF SOUTH BEACH LTD., LLP, etc., Appellee.
    No. 3D05-1397.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Rehearing and Rehearing En Banc Denied Nov. 8, 2007.

      Daniels, Kashtan, Downs, Robertson & Magathan, and Madelyn Simon Lozano, Coral Gables, for appellant.
    Holland & Knight, and James D. Wing, Miami, Miranda-Lin S. Gong, Houston, TX, and Lenore C. Smith, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

Ira D. Giller, a professional architect and principal in the firm of Giller & Giller, Inc., appeals a non-final order denying his verified motion to compel arbitration. See Fla. R.App. P. 9.130(a)(3)(C)(iv). The trial court denied the motion on the ground that Mr. Giller, individually, was not a party to the agreement under which architectural services were provided to Cafeteria of South Beach Limited, LLP, (Cafeteria), nor entitled to invoke the contract’s arbitration clause. We conclude that Mr. Giller is entitled to demand arbitration pursuant to the agreement and reverse the order on appeal.

The case involves a claim for professional malpractice brought in tort by Cafeteria, as the successor in interest to ALP Management, LLC, (ALP), against Ira D. Giller, individually. The controversy arises out of an Agreement between Owner and Architect for architectural services required in the construction of tenant improvements for the Cafeteria Restaurant in Miami Beach. ALP is identified in the agreement as “the Owner” and Giller & Giller, Inc. as “the Architect.” The agreement states, “[t]he Architect’s Basic Services shall include normal structural, mechanical, and electrical engineering services.” It recites that “[the t]erms of this Agreement shall have the same meaning as those in the edition of the AIA Document A201, General Conditions of the Contract for Construction, current as of the date of this Agreement.” Giller & Giller, Inc. is not a defendant in the action.

The arbitration provision in the agreement reads as follows:

Claims, disputes and other matters in question between the parties to this Agreement arising out of or relating to this Agreement that are not resolved by mediation shall be decided by arbitration. ... No arbitration arising out of or relating to this Agreement shall include, by consolidation or joinder or in any other manner, an additional person not a party hereto except by written consent containing specific reference to this Agreement signed by the Owner, Architect and any other person sought to be joined....

We review a denial of a motion to compel arbitration de novo. Turner Constr. Co. v. Advanced Roofing, Inc., 904 So.2d 466, 468 (Fla. 3d DCA 2005).

Applying this standard to the facts of this ease, we first find that Ira Giller, individually, is entitled to invoke the right to arbitrate under the contract. Although the corporation alone is expressly identified as “the Architect” in the architectural services agreement, a provision of the standard form A201 General Conditions incorporated into the agreement further defines the term “Architect” as follows:

The Architect is the person lawfully licensed to practice architecture or an entity lawfully practicing architecture identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term “Architect” means the Architect or the Architects authorized representative.

The trial court concluded and Cafeteria argues that Mr. Giller, individually is “an additional person not a party hereto” or “other person” under the terms of the agreement. We disagree. We find that the contract plainly and unambiguously includes Mr. Giller among those who can demand arbitration under the terms of the agreement. Gray v. D & J Indus., 875 So.2d 683 (Fla. 3d DCA 2004)(“The construction of a contract is a question of law for the courts to determine wheré the language used in the written contract is clear, unambiguous, and susceptible of only one interpretation.”).

Second, we reject Cafeteria’s argument that Mr. Giller cannot avail himself of the arbitration clause in the contract because it has not sued him for breach of contract. While the complaint against Mr. Giller sounds in tort, the duties alleged to have been breached are imposed by the architectural services agreement. Under the agreement, Giller & Giller, Inc. was obligated to provide the full range of “normal structural, mechanical, and electrical engineering” services. The complaint filed by Cafeteria alleges that Mr. Giller, individually, negligently failed to include proper electrical services on the architectural drawings, negligently designed the supporting beams for the structure, and “falsely certified a non-Code-confonning skylight.” There is an indisputable nexus between these claims and the professional services agreement. Cafeteria cannot avoid arbitration simply by choice of legal theory. See Seifert v. U.S. Home Corp., 750 So.2d 633, 639 (Fla.1999)(noting that “[t]he key element in determining whether tort claims are subject to an arbitration provision is the relationship between the claims asserted and the underlying contractual obligations”)(internal citations omitted). See also Cuningham Hamilton Quiter, P.A. v. B.L. of Miami, 776 So.2d 940 (Fla. 3d DCA 2000)(professional malpractice claim subject to arbitration where the claim arises out of or relates to the contract for services and is encompassed within the terms of the arbitration clause, even though there is no signed contract directly between the parties to the suit).

Finally, we conclude that Cafeteria is estopped from repudiating the obligation to arbitrate in this case. One cannot both take advantage of contract provisions to seek to impose liability on an individual professional and at the same time avoid another contract term or provision for which it has no use. See United Contractor’s Inc. v. United Constr. Corp., 187 So.2d 695, 701-02 (Fla. 2d DCA 1966)(“[T]he law is too well settled to admit of controversy that one may not accept the fruits of a contract and at the same time renounce, or repudiate, the burdens which that contract places upon him.”) (citing Warren v. Tampa Mortgage Investors’ Co., 112 Fla. 555, 150 So. 738, 741 (1933)); Hughes Masonry Co. v. Greater Clark County Sch. Bldg. Corp., 659 F.2d 836, 838-39 (7th Cir.1981)(“[W]e believe it would be manifestly inequitable to permit Hughes to both claim that J.A. is liable to Hughes for its failure to perform the contractual duties described in the Hughes-Clark agreement and at the same time deny that J.A. is a party to that agreement in order to avoid arbitration of claims clearly within the ambit of the arbitration clause. In short, (plaintiff) cannot have it both ways. (It) cannot rely on the contract when it works to its advantage, and repudiate it when it works to (its) disadvantage.”) (citations omitted).

We reverse the order denying the motion to compel arbitration under review with directions that the trial court order the claims in this case between Cafeteria and Mr. Giller, individually, be submitted to arbitration pursuant to the terms of the professional services agreement.

Reversed.


author: RAMIREZ, J.

text:
    PROFESSIONAL MEDICAL GROUP, INC., a/a/o Javier Moises Villegas, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D07-1118.
    District Court of Appeal of Florida, Third District.
    Aug. 29, 2007.
    Jose R. Iglesia & Associates, Inc., and Mari Sampedro-Iglesia, for petitioner.
    Michael J. Neimand, Miami, for respondent.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   RAMIREZ, J.

Professional Medical Group, Inc., petitions this Court for Writ of Certiorari concerning an order of the appellate division of the circuit court granting its motion to dismiss but denying an award of attorney’s fees from the respondent, United Automobile Insurance ' Company. This Court finds that certiorari jurisdiction exists under Florida Rule of Appellate Procedure 9.030(b)(2)(B) and grants review of the circuit court’s final order denying attorney’s fees.

Professional Medical Group provided care to Javier Moisés Villegas and was assigned the interest of his insurance policy. Professional Medical Group sought personal injury protection benefits from United Automobile. After failed preliminary attempts to obtain a copy of the United Automobile’s Personal Injury Protection (PIP) log, pursuant to section 627.736(6)(d), Florida Statutes (2006), Professional Medical Group filed a complaint for declaratory relief. United Automobile moved to dismiss and the trial court granted the motion.

On appeal, the Eleventh Circuit Appellate Division reversed the trial court’s decision. While the Eleventh Circuit agreed that Florida law provides for a mandatory award of attorney’s fees to the insured in any dispute which leads to judgment against the insurer, it ultimately denied Professional Medical Group’s motion for attorney’s fees. Professional Medical Group filed a motion for rehearing which the circuit court denied. This Petition for Writ of Certiorari follows.

First, we have jurisdiction to review the Eleventh Circuit’s order. Pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B), the district courts of appeal may review any final order of circuit courts acting in their review capacity. Because this Petition for Writ of Certiorari concerns a final order of the Eleventh Circuit Court’s Appellate Division, certio-rari jurisdiction is thus met. The standard of review for such a review is narrow. See Brunsman v. Nat’l Rent-A-Fence Co., 612 So.2d 719 (Fla. 5th DCA 1993). Therefore, we are limited to determining “whether the circuit court denied the petitioner procedural due process or departed from the essential requirements of law to cause a miscarriage of justice.” Stambaugh v. State, 891 So.2d 1136, 1138 (Fla. 4th DCA 2005).

We conclude that the Eleventh Circuit departed from the essential requirements of the law in its final order. Professional Medical Group correctly points out that for “an appeal hi which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.” § 627.428(1), Fla. Stat. (2006); See Ivey v. Allstate Ins. Co., 774 So.2d 679, 684 (Fla.2000). However, the Eleventh Circuit failed to award attorney’s fees to Professional Medical Group explaining only that “other issues still outstanding in this case preclude the award of the attorneys fees.” As such, the Eleventh Circuit’s decision departs from the mandatory requirement of the statute, and fails to support its finding with any corroborative authority. Fees should have been awarded conditioned upon the insured ultimately prevailing with a recovery on the policy. See Allstate Ins. Co. v. De La Fe, 647 So.2d 965 (Fla. 3d DCA 1994). We therefore grant the petition for writ of certiorari.


author: KAHN, J.

text:
    James R. HUFF, Jr., Appellant, v. LORAL AMERICAN BERYLLIUM CO., and its successor, Lockheed Martin Corp. and CNA ClaimPlus and ACE USA/ESIS, Appellees.
    No. 1D06-4466.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2007.
    Rehearing Denied Oct. 29, 2007.

      Keith A. Mann, Sarasota, and Bill McCabe, Longwood, for Appellant.
    James M. Hess and Margaret E. Sojourner, Maitland, for Appellees Lockheed Martin and ACE/ESIS, and Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Jo-hanessen & Kempner, L.L.P., Sarasota, for Appellees Loral American Beryllium Co. and CNA ClaimPlus.
   KAHN, J.

We have for review a workers’ compensation case brought under the prolonged exposure theory of injury. Our determination here turns upon our fleshing out the meaning of “injury,” as the term is used in the second prong of the well-known test formulated in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980). Because claimant has demonstrated an injury, we reverse the order of the judge of compensation claims (“JCC”), which found to the contrary.

BACKGROUND

Claimant James Huff began working for Loral American Beryllium (“LAB”) in 1979 as a tool cutter and grinder. Huff regularly worked on tools covered in beryllium dust. Huff remained in his position after Lockheed Martin purchased the plant in April 1996. On September 26, 1996, Lockheed closed the plant. Although Huff worked for various, subsequent employers, he was never exposed to beryllium dust after being laid-off by Lockheed.

In August 2004, the Department of Labor interviewed all former employees of LAB and Lockheed and offered to test the employees’ blood for potential work-related disorders. Huff tested positive for beryllium sensitivity. Dr. Stuart Brooks, an independent medical examiner for the employers, described beryllium sensitivity:

Beryllium sensitivity is the presence of an immunological responsiveness to a beryllium antigen by the body, which is characterized by what’s called a delayed hypersensitivity reaction. The lymphocytes have recognition. So to kind of put it in a different perspective, we have in our body clones of lymphocytes, and these clones can maybe recognize, you know, thousands of different things.

Each of the doctors in this case believes that Huff has beryllium sensitivity, as defined above, and as further characterized as an immunological responsiveness to a beryllium antigen by the human body. These doctors, however, differ upon whether Huff has the more serious condition of chronic beryllium disease. As a result of his beryllium sensitivity, Huff received two medical directives. First, he may no longer work in an occupation with risk of beryllium exposure. Second, he should undergo regular medical testing or monitoring to determine whether the beryllium sensitivity has advanced to a state of chronic beryllium disease.

By a petition for benefits, Huff claimed entitlement to monitoring and treatment of beryllium sensitivity. The employers raised various defenses, including a claim that Huff did not yet have chronic beryllium disease and, therefore, had not suffered an injury, for purposes of workers’ compensation law.

As discussed below, workers’ compensation claimants who have suffered exposure to deleterious substances, as opposed to a discrete industrial accident, may proceed on two different theories of accident — occupational disease or prolonged exposure. In the present case, Huffs attorney elected to go forward only on the prolonged exposure theory. Applying the law as established by this court in Festa, the JCC determined that Huff satisfied the first and third prongs necessary under a prolonged exposure theory: Huff demonstrated a prolonged exposure to beryllium, having worked around that substance for some seventeen years; and Huff demonstrated he was subjected to a greater hazard than that to which the general public is exposed. The JCC was then left to determine whether Huff had satisfied the second Festa prong — that the cumulative effect of prolonged exposure has been injury or aggravation of a pre-existing condition. As to this prong, the JCC concluded that Huff “has not established that he has suffered either an accident or an injury.” The JCC analogized the present claim to the case of Florida Power Corp. v. Brown, 863 So.2d 364 (Fla. 1st DCA 2003), where this court determined that exposure alone to asbestos did not result in a workplace injury.

ANALYSIS

As we have noted, Huff proceeds in this case solely on the theory of prolonged exposure under Festa. Huff abandoned his initial claim for compensation due to an occupational disease. An occupational disease claim is statutory. See § 440.15, Fla. Stat. (1995). Moreover, under a claim of occupational disease, a claimant must demonstrate disablement, as a threshold to any recovery. See City of Port Orange v. Seducca, 953 So.2d 727, 733 (Fla. 1st DCA 2007).

Examining the prolonged exposure theory, the JCC found that, as a result of exposure to beryllium, Huffs body has undergone physiological changes, described by the JCC as “a process by which lymphocytes demonstrate that exposure to beryllium has occurred.” The JCC also accepted the testimony that Huff may no longer work around beryllium. The JCC, however, determined that Huff does not have the pulmonary condition — chronic beryllium disease — sometimes associated with beryllium exposure. The undisputed medical testimony, not questioned by the employers on this appeal, establishes that Huff requires periodic monitoring and testing in the future in order to determine whether his beryllium sensitivity has progressed into chronic beryllium disease. Nevertheless, because Huff does not have the disease, the JCC concluded that no injury by accident had occurred. ■

In Florida Power Corp. v. Brown, the claimant proceeded under a theory of occupational disease. Reversing a JCC finding in favor of claimant, this court found “no evidence Brown has suffered any disability from his exposure [to asbestos].” Id. at 365. Brown, however, does not control for at least two reasons. First, Mr. Brown proceeded under an occupational disease theory and, accordingly, needed to demonstrate disability. Second, the Brovm opinion does not indicate any objective changes comparable to the lymphocytes noted by the physicians in the present case. This court characterized Brown’s claim as “exposure to asbestos, standing alone.” Id. Accordingly, the JCC was mistaken in her reliance upon Brotvn.

To support the theory of recovery here, claimant needed to provide proof that an injury has occurred. A mere exposure, standing alone, will not suffice. Here, Huff did not simply argue that he was exposed to beryllium. The various doctors unanimously agreed that Huff is inflicted with beryllium sensitivity, that this sensitivity is objectively determined and, as a consequence he may never again work around beryllium. The medical testimony also established, as a direct result of his beryllium sensitivity, a need for periodic medical monitoring. As Huff presented unrefuted medical testimony and evidence that his beryllium sensitivity caused an objective and verifiable change in his body that requires medical treatment, he has satisfied Festa’s “injury” prong.

Our finding of injury here is consistent with the statute delineating an employer’s responsibility to furnish workers’ compensation benefits. Under that statute, the injury “must be established to a reasonable degree of medical certainty, based on objective relevant medical findings.” § 440.09(1), Fla. Stat. (2005). Objective medical findings clearly exist in the present case. Although Huff does not complain of pain, he does assert that he is unable to work around beryllium, as he formerly did. Though subjective complaints alone will not support compensation, an award may be supported by objective relevant medical findings. Id. Further, under the statute, such objective findings are those “confirmed by physical examination findings or diagnostic testing.” Id. As detailed above, diagnostic testing has confirmed physiological changes determinative of beryllium sensitivity. Accordingly, the injury in this case falls within the contemplation of section 440.09(1), Florida Statutes (2005).

We REVERSE the order on appeal and REMAND this case for entry of an order finding compensability and awarding appropriate medical benefits.

BENTON and VAN NORTWICK, JJ., concur.


text:
    Jeffrey James MORRIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4330.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2007.
    Rehearing Denied Oct. 25, 2007.
    Jeffrey James Morris, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982).

BROWNING, C.J., ALLEN and THOMAS, JJ., concur.


author: CORTIÑAS, Judge.

text:
    Marjorie WOODRUFF, Appellant, v. TRG-HARBOUR HOUSE, LTD., and Robert Ragan and Chicago Title, Appellees.
    No. 3D07-150.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Stan L. Riskin, for appellant.

      Coffey Burlington and Susan E. Morten-sen, for appellees.
    Before SUAREZ, CORTIÑAS, and LAGOA, JJ.
   CORTIÑAS, Judge.

Appellant, Marjorie Woodruff, appeals from an order dismissing counts I, II, and IV of her Third Amended Cross-claim with prejudice. We affirm.

Appellant was a tenant at the Harbour House which had recently been purchased by TRG-Harbour House, Ltd. (“TRG”). TRG converted the property to condominiums and Appellant was given the right to purchase the rental unit in which she lived. Subsequently, on or about June 10, 2005, Appellant exercised her right to purchase the unit and entered into a Purchase Agreement with TRG. Section 22 of the Purchase Agreement prohibited Appellant from either assigning the agreement or its rights therein and also prohibited Appellant from listing the unit for resale without the prior written consent of TRG.

The record reflects that, at about the same time Appellant entered into the Purchase Agreement with TRG, she also entered into an agreement with Anne Kirsehner (“Kirsehner”), in which she allegedly assigned her rights and interest under the Purchase Agreement to Kir-sehner. Shortly thereafter, TRG became aware that Appellant had entered into an agreement with Kirsehner and that it was Kirsehner, not Appellant, who deposited the funds required to purchase the unit.

Upon learning of the agreement between Appellant and Kirsehner, TRG’s attorney, Robert Ragan (“Ragan”), visited Appellant. During this meeting, Appellant executed a letter (“Termination Letter”) affirmatively terminating the Purchase Agreement with TRG and forfeiting her deposit. Thereafter, Kirsehner filed a complaint for breach of contract against Appellant and Appellant filed a cross-claim against TRG.

Appellant’s Third Amended Cross-claim (“cross-claim”) against TRG sought relief under five counts. Relevant to this appeal are counts I and II, which seek specific performance and claim breach of contract, respectively, as well as count IV, which is an action for elder abuse pursuant to section 415.1111, Florida Statutes (2005). Counts I and II depend on allegations that the Termination Letter should be of no force or effect because Appellant executed the document “under duress, coercion, intimidation, misrepresentation and was not competent at the time.” To make a claim for duress in her counts for specific performance and breach of contract, Appellant alleged that when Ragan went to her home, he advised her that:

by making the agreement with Kir-sehner ... she [ ] had committed a fraud on TRG and couched his words in such a manner as to make [her] believe that she had committed an illegal act, even possibly a criminal act, and she would suffer unspecified adverse serious consequences for entering into the agreement with Kirsehner.

Further, Appellant claimed that Ragan used his superior position as an attorney and, “under the guise of helping [Appellant] to avoid the adverse serious consequences as put forth by Ragan[,] ‘offered’ to allow [Appellant] to cancel the purchase contract and forfeit the deposit.”

Thereafter, TRG filed a motion to dismiss the cross-claim arguing that, taking the allegations as true, Appellant failed to sufficiently allege duress, coercion, intimidation, misrepresentation, incompetence or elder abuse. Moreover, TRG contended that, by entering into the agreement with Kirsehner without TRG’s written consent, Appellant breached the Purchase Agreement and thereby excused further performance by TRG and foreclosed her ability to maintain an action for specific performance. The trial court granted TRG’s motion to dismiss the cross-claim. Appellant’s appeal followed.

Without addressing whether Appellant foreclosed her ability to maintain an action for specific performance as a result of her own breach of the Purchase Agreement, we find that the trial court properly dismissed the cross-claim counts on appeal with prejudice.

“Duress involves a step beyond mere illegality and implies that a person has been unlawfully constrained or compelled by another to perform an act under circumstances which prevent the exercise of free will.” See McLaughlin v. Fla., Dep’t of Natural Res., 526 So.2d 934, 936 (Fla. 1st DCA 1988). To state a cause of action for duress, a plaintiff must demonstrate “(1) that one side involuntarily accepted the terms of another, (2) that circumstances permitted no other alternative, and (3) that said circumstances were the result of coercive acts of the opposite party.” Id.

Here, a review of the three elements of duress reveals that counts I and II of the cross-claim were properly dismissed by the trial court. Addressing the first and third prong, these counts are devoid of any language demonstrating that Appellant signed the Termination Letter as a result of Ragan’s coercive behavior. As alleged, the only events that occurred during the meeting at Appellant’s home that were arguably improper were statements by Ragan that the Appellant had committed an illegal act and that, as a result, she may be confronted with legal action. Addressing the second prong, counts I and II of the cross-claim do not contain allegations sufficient to show that the circumstances surrounding the events that transpired gave the Appellant no other alternative but to sign the Termination Letter. Without more, Ragan’s act of “offer[ingj ” Appellant an opportunity to cancel the Purchase Agreement and, in so doing, making the Appellant subjectively “believe ” she had committed a fraud, do not indicate Appellant had no other alternative than to sign the Termination Letter in order to avoid other consequences. As such, these allegations are insufficient to show that Appellant signed the Termination Letter involuntarily and as a result of coercive acts.

Moreover, under the facts set forth in the cross-claim, Appellant cannot maintain a claim for elder abuse under section 415.1111, Florida Statutes (2005). Appellant has failed to set forth facts sufficient to state a claim that Appellant was a “vulnerable adult.” See § 415.102, Fla. Stat. (2005) (defining a “vulnerable adult” as “a person 18 years of age or older whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, long-term physical, or developmental disability or dysfunctioning, or brain damage, or the infirmities of aging”).

Because the allegations are insufficient to establish that Appellant signed the Termination Letter as a result of duress, coercion, intimidation, misrepresentation, or incompetency, Appellant failed to state a cause of action for specific performance. Additionally, Appellant failed to ' state a cause of action for elder abuse. Thus, the trial court properly granted TRG’s motion to dismiss the cross-claim.

Affirmed.

      . The trial court's dismissal of count III, which related to the escrow agent, and count V, which was an action for unfair trade practices, were not raised on appeal.

      . We note that Appellant failed to allege that Ragan knowingly made false statements and, therefore, she failed to establish the requisite elements of misrepresentation. Biscayne Inv. Group, Ltd. v. Guarantee Mgmt. Servs., Inc., 903 So.2d 251 (Fla. 3d DCA 2005).


author: CORTIÑAS, Judge. SHEPHERD, J.,

text:
    Francisco DE LA FUENTE, individually and as Trustee, and Barbara Lewis de la Fuente, Appellants, v. ADRIAN DEVELOPERS CORP., a Florida corporation, et al., Appellees.
    No. 3D06-2591.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Rehearing Denied Nov. 1, 2007.
    Greenberg Traurig and Elliot B. Kula, Miami, for appellants.

      Paul Morris; Brooks and Alayon and Gary Brooks, for appellees.
    Before RAMIREZ, SHEPHERD, and CORTIÑAS, JJ.
   CORTIÑAS, Judge.

The seller, Francisco de la Fuente, appeals from a non-final order denying his motion to discharge the third lis pendens placed by the buyer, Adrian Developers Corp., and granting the buyer’s motion to extend the third lis pendens on the property which is the subject of a disputed real estate agreement. We affirm.

In August 2001, the buyer entered into an agreement with the seller to purchase several acres of real property for approximately $3,000,000 in Miami-Dade County. Based on the buyer’s untimely deposit, the seller brought a declaratory action to quiet title. The buyer counterclaimed for specific performance and, in March 2003, filed an amended notice of lis pendens on the property. Subsequently, in Adrian Developers Corp. v. de la Fuente, 905 So.2d 155, 155-56 (Fla. 3d DCA 2004) (“Fuente /”), we affirmed the trial court’s determination that the seller’s attempt to terminate the agreement was improper but found that the trial court erred in not restoring the parties to the “status quo,” which was the position the parties were in prior to the seller’s unsuccessful attempt to terminate.

Thereafter, on August 16, 2005, the buyer recorded a third notice of lis pendens on the property. The record reflects that the buyer also attempted to finalize the sale by sending a letter to the seller waiving all of the impediments to closing, including title objections and the buyer’s rights to seek land approvals. However, the seller refused to close.

In July 2006, the buyer filed a separate action for specific performance, and filed a fourth notice of lis pendens on the property. Thereafter, the parties filed a series of motions, which included the seller’s motions to discharge the third and fourth lis pendens and the buyer’s motion to extend the third lis pendens. As a result of the parties’ motions, the trial court issued three orders. In its third corrected order, which was issued on September 25, 2006, the court held that: (i) the first lis pendens was a nullity; (ii) the amended lis pendens was discharged by Fuente I; (iii) the third lis pendens was valid and in full effect until August 16, 2007, and thus denied the seller’s motion to discharge the third lis pen-dens; and (iv) the fourth lis pendens was stricken as it was based on a duplicate lawsuit.

On appeal, the seller contends that the trial court abused its discretion in denying his motion to discharge the third lis pendens and granting the buyer’s motion to extend the third lis pendens until August 16, 2007. We disagree.

When an action is not founded on a duly recorded instrument, sections 48.23(2)-(3), Florida Statutes (2006), give the trial court discretion to consider the extension and duration of a lis pendens on a case by case basis. See Taylor v. Steckel, 944 So.2d 494, 497 (Fla. 3d DCA 2006) (citing Betsy Ross Hotel, Inc. v. A.G. Gladstone Assocs., 833 So.2d 211, 212 n. 1 (Fla. 3d DCA 2002)); see also Rodriguez v. Banco Indus. de Venezuela, C.A., 576 So.2d 870, 873 (Fla. 3d DCA 1991) (citing Am. Legion Cmty. Club v. Diamond, 561 So.2d 268, 272 (Fla.1990)). Section 48.23(3) states that, when the pleading does not show that the action is founded on a duly recorded instrument, the courts may control and discharge a notice of lis pendens as the courts may grant and dissolve injunctions. § 48.23(3), Fla. Stat. (2006). Section 48.23(2) provides that a notice of lis pendens, which is not founded on a duly recorded instrument, is ineffectual beyond one year from the commencement of the action. However, this section gives the courts authority to extend the effect of the notice beyond one year on reasonable notice and for good cause. § 48.23(2), Fla. Stat. (2006). Moreover, we recently held that this provision does not require a motion to extend a lis pendens to be filed within a year of commencement of the action. Taylor, 944 So.2d at 497. Similarly, we agree with the Second District that this statute does not bar the initial filing of a notice of lis pendens beyond one year from commencement of a legal action. Hallmark Builders, Inc. v. Hickory Lakes of Brandan, Inc., 458 So.2d 45, 47 (Fla. 2d DCA 1984).

Accordingly, we find that the trial court properly exercised its discretion in not discharging the third lis pendens.

Affirmed.

RAMIREZ, J., concurs.

SHEPHERD, J.,

dissenting.

The issue in this case is whether a third lis pendens filed in litigation arising out of an unrecorded purchase and sale contract for eighty-two acres of unimproved land in Miami-Dade County should be discharged. The lis pendens was filed on August 16, 2005, nearly three years after the commencement of this action, and thirty-four months after the filing by the defendant buyer, Adrian Developers Corp., of the specific performance counterclaim on which the lis pendens rests. Two earlier lis pendens and one subsequent lis pendens filed by Adrian either have been discharged by the trial court or voluntarily dismissed. The appellant sellers, Francisco de la Fuente, individually and as Trustee, and Barbara Lewis de la Fuente, contend that the lis pendens should be discharged because it was filed more than one year from the commencement of the action. I find this contention supported by the plain language of section 48.23 of the Florida Statutes.

Section 48.23 of the Florida Statutes (2006) reads, in relevant part:

(l)(a) No action in any of the state or federal courts in this state operates as a lis pendens on any real or personal property involved therein or to be affected thereby until a notice of the commencement of the action is recorded in the office of the clerk of the circuit court of the county where the property is, which notice contains the names of the parties, the time of institution of the action, the name of the court in which it is pending, a description of the property involved or to be affected, and a statement of the relief sought as to the property.
2) No notice of lis pendens is effectual for any purpose beyond 1 year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice requires.
(3) When the initial pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of chapter 713, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.

§ 48.23, Fla. Stat. (2006)(emphasis added).

The statute plainly states that where, as here, a notice of lis pendens is not founded on a duly recorded instrument, it is not valid for any purpose beyond one year from the commencement of the action unless the court extends the period. If a lis pendens is not valid for any purpose beyond one year from the commencement of the action except when a court extends the date, it necessarily follows that the lis pendens must have been filed at some time during that year. City of Miami v. Valdez, 847 So.2d 1005, 1008 (Fla. 3d DCA 2003)(“Familiar rules of statutory construction teach that when a law expressly describes a particular situation where something should apply, an inference must be drawn that what is not included by specific reference was intended to be omitted or excluded.”). Any contrary construction of this statute would render inoperative the phrase, “from the commencement of the action” in section 48.23(2). We are admonished to eschew such consequences. Goode v. State, 50 Fla. 45, 52, 39 So. 461, 463 (1905)(“It is the general rule, in construing statutes, that construction is favored which gives effect to every clause and every party of the statute, thus producing a consistent and harmonious whole. A construction which would leave without effect any part of the language used should be rejected, if an interpretation can be found which will give it effect.”)(internal citations omitted); Valdez, 847 So.2d at 1008)(“A court’s function is to interpret statutes as they are written and give effect to each word in the statute.”).

Taylor v. Steckel, 944 So.2d 494, 495 (Fla. 3d DCA 2006), relied upon by the majority in affirming the decision below, does not address this point on appeal. The notice of lis pendens in Taylor was timely filed “in conjunction with the action.” Id. at 497. The issue on the lis pendens in Taylor was whether a motion to extend a lis pendens can be filed more than one year after commencement of the action. Id.

I acknowledge the existence of contrary authority. Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So.2d 45, 47 (Fla. 2d DCA 1984)(“We do not interpret [section 48.23(2) ] as a bar to initially filing the notice of lis pendens beyond one year from commencement.”). I do not find it persuasive. I would reverse the order on appeal and certify conflict with Hallmark Builders. Because I would reverse on this ground, I do not find it necessary to consider other grounds raised by the de la Fuentes.

      . The buyer contends that due to significant changes in the real estate market in Miami-Dade County over the past several years, the subject property is presently worth approximately $40,000,000.

      . The buyer's first notice of lis pendens was filed in October 2002; however, it was ineffective because it was not properly recorded.

      .We find no merit in the seller's contention that the third lis pendens was fatally defective because it did not contain the time of commencement of the action. We note that the lis pendens contained the date of our decision in Puente I and strictly complied with all other aspects under section 48.23.

      . For a more complete factual background of this case, see Adrian Devs. Corp. v. de la Fuente, 905 So.2d 155, 155 (Fla. 3d DCA 2004).


author: GERSTEN, C.J.

text:
    Kathy L. KNOWLES, Appellant, v. Richard EDWARDS and Sabrina Edwards, Appellees.
    No. 3D06-1021.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Rehearing Denied Nov. 1, 2007.
    Shook, Hardy & Bacon L.L.P., and Lucinda A. Hofmann, for appellant.
    Akerman Senterfitt, and Oscar A. Sanchez, and Francisco A. Rodriguez, for ap-pellees.
    Before GERSTEN, C.J., and WELLS, J., and FLETCHER, Senior Judge.
   GERSTEN, C.J.

Kathy L. Knowles (“Knowles”) appeals an adverse final judgment quieting title to real property. We reverse and remand.

In this case, Knowles agreed to help her niece, Phylesia Mintz (“Mintz”), save her house from a judicially-ordered foreclosure sale. In order to obtain $90,000 to pay off the foreclosure, Knowles took out a mortgage on her own home. In return, Mintz promised to pay Knowles’ new mortgage payment directly to Knowles’ mortgage company.

By agreement, Mintz transferred her house to Knowles by quitclaim deed, and Mintz continued to live in the house. By further agreement, Knowles would convey the property back to Mintz if she repaid the $90,000 within a few years.

Later, Mintz stopped paying the monthly payment and forged a quitclaim deed from Knowles back to her. Mintz then sold the home to Richard and Sabrina Edwards (“the Edwards”). Thereafter, Knowles discovered that Mintz stopped making payments and that the Edwards occupied the house.

Knowles sued to quiet title to the property. Mintz answered the complaint, admitting that she transferred the property by quitclaim deed to Knowles in good faith. A two-day bench trial centered on the Edwards’ claim that Mintz’s quitclaim deed to Knowles was intended as a mortgage. Mintz, however, did not testify at trial as she had fled to Georgia.

The only competent testimony concerning Knowles’ and Mintz’s agreement came from Knowles. Knowles testified that when she re-mortgaged her home, in order to obtain the funds to purchase Mintz’s home, she intended to own Mintz’s house. The trial judge entered a final judgment devoid of any findings of fact or conclusions of law, determining that the Edwards were the rightful owners. Knowles appealed.

On appeal, Knowles asserts that she is the rightful owner of the property because the parties intended Mintz’s property conveyance to be a sale with Mintz’s right to repurchase upon repaying the $90,000. On the other hand, the Edwards contend that they are the rightful owners because the transaction between Mintz and Knowles was a loan, which does not convey title to Knowles. We agree with Knowles and reverse.

Here, the sole issue rests on the nature of the conveyance. To determine whether any particular transaction amounts to a mortgage or to a sale with a contract of repurchase, the court will look at the circumstances underlying the transaction. See Pineapple Orange Co. v. White, 113 Fla. 774, 152 So. 863, 864 (1934). A court also considers the parties’ real intentions. See Blanco v. Novoa, 854 So.2d 672, 674 (Fla. 3d DCA 2003); McLendon v. Davis, 131 So.2d 765, 767 (Fla. 3d DCA 1961).

Here, there was no competent substantial evidence that the conveyance from Mintz to Knowles by a quitclaim deed was a loan. On the contrary, the only competent substantial evidence was that this transaction was a sale of property.

Another important uncontested fact is that Mintz forged a quitclaim deed transferring the property back to her. This forged deed is evidence that Mintz believed she sold the property to Knowles. A forged deed is absolutely void and wholly ineffectual to pass title. See Moore v. Smith-Snagg, 793 So.2d 1000, 1002 (Fla. 5th DCA 2001). Therefore, any conveyances occurring after the forgery are void. See Moore, 793 So.2d at 1002.

Further, “where a conveyance of property is absolute upon its face, the burden of showing that it was, when executed, intended to be a mortgage to secure the payment of the money, is upon the grant- or.” Howard v. Goodspeed, 101 Fla. 699, 135 So. 294, 295 (1931); Barr v. Schlarb, 314 So.2d 609, 611 (Fla. 1st DCA 1975). Here, Mintz and Knowles executed a quitclaim deed to transfer the property, which is absolute on its face. Mintz failed to show that she intended the quitclaim deed as a mortgage.

Accordingly, we reverse and remand with instructions to the trial court to enter judgment in favor of Knowles.

Reversed and remanded.


text:
    Montreal BROWN, Petitioner, v. The STATE of Florida, Respondent.
    Nos. 3D06-2204, 3D05-2448.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    Rehearing Denied Nov. 9, 2007.
    Montreal Brown, in proper person.
    Bill McCollum, Attorney General, and Jill Kramer Traína, Assistant Attorney General, for appellee.
    Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, Judge.

Montreal Brown (“Brown”) was convicted and sentenced as a prison releasee reof-fender to life imprisonment after a finding of guilt for armed robbery and armed carjacking. This court affirmed the judgment and sentence on August 11, 2004. Brown v. State, 882 So.2d 389, 2004 WL 2295139 (Fla. 3d DCA 2004) (table). Since Brown’s direct appeal, he has filed (1) a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which was denied by the trial court in a detailed twenty-nine page order and affirmed by this court, Brown v. State, 912 So.2d 1234 (Fla. 3d DCA 2005) (table); (2) a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), which was denied by the trial court and affirmed on appeal by this court, Brown v. State, 915 So.2d 232, 232 (Fla. 3d DCA 2005); and (3) two petitions which have been consolidated and are the subject of our present review.

In the instant petitions, Brown raises several claims of ineffective assistance of appellate counsel for failure to raise various issues regarding the jury instructions, verdict forms, and the sentence imposed. Because we conclude that none of the claims raised are meritorious, appellate counsel cannot be faulted for failing to raise them. Groover v. Singletary 656 So.2d 424, 425 (Fla.1995).

Petitions denied.


text:
    Zachary JONES and wife, Juanita T. Jones, Appellant, v. Georgia M. KRATHWOHL-HOOD, as Personal Representative of the Estate of Alma Taber, Appellee.
    No. 1D07-3209.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Rehearing Denied Oct. 25, 2007.
    Matthew W. Burns, Destín, for Appellant.
    Richard H. Powell, Ft. Walton Beach, for Appellee.
   PER CURIAM.

Upon consideration of Appellants’ response to the Court’s order of July 23, 2007, the court has determined that the order on appeal is not final. Specifically, the Amended Final Summary Judgment’s reservation of jurisdiction over the issue of treble damages to be awarded under Count II for civil theft demonstrates that the lower tribunal’s judicial labor is incomplete. See S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla.1974). Accordingly, this appeal is hereby dismissed for lack of jurisdiction.

DISMISSED.

BROWNING, C.J., PADOVANO and THOMAS, JJ., concur.


text:
    Marie MENDEZ, Petitioner, v. Edmund C. JAMES, Respondent.
    No. 3D07-898.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Rehearing Denied Nov. 1, 2007.
    Marie Mendez, Royal Palm Beach, in proper person.
    Cunningham, Miller & Williams and Steve Williams, Marathon, for respondent.
    Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

We treat the notice of appeal filed in this case as a petition for writ of certiorari and deny the petition.


text:
    Loren SCHWECHTER, Appellant, v. Olga BACA, Appellee.
    No. 3D06-571.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Rehearing Denied Nov. 1, 2007.

      Grover M. Moscowitz, for appellant.
    A. Margaret Hesford, Margate, for ap-pellee.
    Before GERSTEN, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Gaylis v. Caminis, 445 So.2d 1063, 1065 (Fla. 3d DCA 1984).


text:
    Kai Uwe THIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2643.
    District Court of Appeal of Florida, Third District.
    Sept. 19, 2007.
    Rehearing Denied Nov. 9, 2007.
    Kai Uwe Thier, in proper person.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GREEN and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Because the Miami-Dade Circuit Court properly held that, although the petitioner was imprisoned in the county, it had no jurisdiction by habeas corpus to consider the validity of a Broward County conviction, see Johnson v. State, 947 So.2d 1192 (Fla. 3d DCA 2007); Broom v. State, 907 So.2d 1261 (Fla. 3d DCA 2005), the order of denial below is affirmed.

Affirmed.


author: TAYLOR, J.

text:
    John S. KAZANJIAN, as Personal Representative of the Estate of Kaitlin Ashley Kazanjian, deceased, Appellant, v. SCHOOL BOARD OF PALM BEACH COUNTY, Carlos Pozo and Jorge Fernando Pozo, Appellees.
    No. 4D05-4371.
    District Court of Appeal of Florida, Fourth District.
    Sept. 19, 2007.
    Rehearing Denied Nov. 2, 2007.

      Judy F. Hyman of Robert M. Montgomery, Jr. & Associates, P.L., West Palm Beach, for appellant.
    Mark Hendricks and Elizabeth L. Ped-ersen of Panza, Maurer & Maynard, P.A., Fort Lauderdale, for appellee School Board of Palm Beach County.
   TAYLOR, J.

John S. Kazanjian, as personal representative of the estate of Kaitlin Ashley Ka-zanjian, appeals an adverse summary judgment on his negligence claims against the School Board of Palm Beach County. This ease involves the tragic death of a Dwyer High School student in a car crash that occurred after she left campus without authorization. Kazanjian claims that his daughter and the driver in the fatal crash were habitually truant and that the School Board failed to follow habitual truancy policies, which might have prevented the accident. He also argues that the School Board owed a duty to prevent high school students from leaving campus without authorization.

We affirm the summary judgment, holding (1) the students were not habitually truant, as a matter of law; (2) in the context of a negligence action seeking damages for injuries sustained in a car crash away from school grounds, the School Board owed no duty to lessen the risk of such injuries by preventing high school students from leaving campus without authorization; and (3) in any event, the decision as to the appropriate campus security measures was a policy decision as to which the School Board enjoys sovereign immunity.

In November 2003, after their first-period class, eleventh-graders Courtney Law-rensen, Kaitlin Kazanjian, Carlos Pozo, Danny Shaw, and Chris Roon decided to skip school and go get breakfast. The students had no passes. They simply walked to their cars and left school grounds without being stopped. Kaitlin and Lawrensen left in Lawrensen’s car. They all met up at a Mobil station and Kaitlin got into Pozo’s car. They were planning to stop at Pozo’s house to get money and then drive on to the restaurant.

On the way to his house, Pozo was driving between 72 and 74 m.p.h. on wet roads in a residential area with a speed limit of 35 m.p.h. While fiddling with the radio, Pozo failed to navigate a curve in the road. He crashed his car into two trees, killing Kaitlin. The traffic homicide investigator, Officer Jeffery Main, described the accident as “horrific,” indicating that it had a larger debris field than any accident he had investigated in eighteen years.

Dwyer High School has 1,900 students in eight buildings on a 60-acre campus. The school has two police officers and one police aide. There is a fence around the campus with many entrances and exits. There are parking gate restrictions as to when students can come and go. A police aide monitors the parking area and staff members monitor the front gate of the campus. During the day, the gates leading to the athletic fields are open because ingress and egress is necessary to the fields.

The school is not a fortress; gates are open and it is possible to get out. Students are permitted to leave campus during the school day with prior permission of a parent. If a parent sends a note that the student has permission to leave during the day, the school issues an off-campus pass to leave. Also, some students do not have classes every school period; they are allowed to leave during school hours. Students exiting the school parking lot during the day are sometimes stopped by the police aide on the way to their cars for passes or schedules showing they are not supposed to be in class. One student testified that it is easy to forge a pass. If students are stopped trying to leave when they should be in class, they are taken to the campus police or an administrator. The campus police call the student’s parents. The students are not physically restrained; if a student wants to go, he or she can go. But, if administrators are aware of a student leaving without authorization, they will call his or her parents.

The Palm Beach County School Board has a written truancy policy, Policy 6Gx50-5.187. It defines an “absence” as not being present when attendance is checked, unless the student arrives in time to be counted “tardy.” “Habitual truancy” is defined as a child having fifteen unexcused absences within ninety calendar days. According to Dwyer High School Assistant Principal William Basil, this policy refers to fifteen full days of absence without excuse before the habitual truancy procedures are invoked. Under the policy, principals have the duty to report habitually truant students to the School Board and to the Department of Highway Safety and Motor Vehicles, as required by section 1003.27(2), Florida Statutes (2005). The DMV notification is automatic when a student accumulates fifteen unexcused absences in a ninety-day period. The policy also requires the filing of a truancy petition under section 984.151 or a child-in-need-of-services petition under section 1003.27(3) in all cases of habitual truancy.

Attendance is taken in every class. If a student does not attend a class, he or she is marked absent on a computerized form, and at the end of the day, a phone dialer places a call reporting the absence to the student’s home. The calls are placed even if a student misses only a single class. The calls are generally received at about 6:00 p.m. The message indicates that the student has been absent from one or more classes. Parents must write a note to get an absence excused. Notes from parents are periodically followed-up by phone calls to parents to verify them authenticity, but not every note is checked in this way. If the absence is unexcused, some teachers will allow the work to be made up, but others will not. Attendance is also indicated on the student’s grade card, which is sent home to parents.

When students are caught skipping school, the punishment can range from a call to the parents to suspension. The punishment is typically detention or in-school suspension. Parents are notified any time a student is disciplined in any manner. Teachers are asked to contact the assistant principal if a student has three unexcused absences. The school prints out a list of students who have excessive absences. The principal testified that he is alerted when a student accumulates ten absences, excused or unexcused, and a letter is mailed home to the parents. According to one student’s testimony, “[e]veryone skips” and the teachers know about it, but they don’t really stop it.

Kaitlin’s father, John Kazanjian, filed an affidavit indicating that the School Board did not notify him of his child’s truancy and that he did not give her permission to leave school with anyone other than family members. Kaitlin’s close friend testified that Kaitlin used to make sure she was home when the school called to intercept the school’s automated calls and delete them off the caller ID so that her parents would not find out that the school had called about her truancy. Principal Culp testified that Kaitlin did not have an excessive number of unexcused absences. She did not have ten absences, excused or unexcused, so a letter was never sent to her parents. She was never caught skipping school.

John S. Kazanjian, suing as the personal representative of the estate, brought a three-count complaint against Carlos Pozo, Jorge Fernando Pozo, and the School Board of Palm Beach County. On May 12, 2005, the School Board moved for summary judgment, arguing it owed no duty to supervise a truant student and, even if it did, a motor vehicle accident was not a foreseeable proximate cause of any such breach. It also argued that it was immune from suit for its discretionary policies.

A summary judgment presents a pure question of law, which is subject to de novo review. Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003).

Children have been skipping school “[sjince at least the days of Huck Finn and Tom Sawyer.” Hoyem v. Manhattan Beach City Sch. Dist., 22 Cal.3d 508, 150 Cal.Rptr. 1, 585 P.2d 851, 858 (1978). The primary purpose of Florida’s truancy laws appears to be the promotion of academic success. See § 1003.26, Fla. Stat. (2005). These statutes are distinguishable from the more recently adopted closed campus policies at many schools (apparently including Dwyer), which are intended, at least in part, to promote student safety. See Hoyem, 585 P.2d at 854. Although the students involved in this case were absent from their classes and, thus, truant, it is significant that they left campus without authorization.

The plaintiff argues that Kaitlin, Pozo, and Lawrensen were habitually truant and that the School Board failed to follow the habitual truancy statutes to ensure their attendance. By statute, a “habitual truant” is a student who accumulates “15 unexcused absences within 90 calendar days.” § 1003.01(8), Fla. Stat (2005). Though the statute does not. address what happens when a student misses only part of a day, it is clear that a student cannot accumulate more than one absence per day, no matter how many classes he or she misses that day. The plaintiffs argument that each missed class is a separate absence, so that missing one full day of school would count as several unexcused absences, is an incorrect construction of the statute. Although the Palm Beach County School Board policy is poorly worded in defining an absence as missing attendance, which is taken multiple times each day, it adopts the same “15 absences in 90 days” standard and is interpreted by school officials in conformity with the statute. At most, counting even one missed class as a full day’s absence, Courtney Lawrensen had only six absences in a ninety-day period; Carlos Pozo had seven absences in ninety days, and Kaitlin Ka-zanjian had eight absences in ninety days. These students were not habitually truant, as a matter of law. Therefore, the principal had no duty to report them to the School Board or DMV or to file truancy petitions.

The plaintiff also argues that the School Board failed in its general duty to supervise these students. “A public school, at least through the high school level, undoubtedly owes a general duty of supervision to the students placed within its care.” Rupp v. Bryant, 417 So.2d 658, 666 (Fla.1982). This duty is based on the school’s standing partially in place of the student’s parents. Id. “Mandatory schooling has forced parents into relying on teachers to protect children during school activity.” Id. While Florida recognizes a general duty of supervision, a school has no duty to supervise “all movements of all pupils all the time.” Id. at 668 n. 26.

To the extent that the plaintiff is arguing that the school owed a duty to supervise Kaitlin and/or Charles off school property, such an argument is foreclosed by both statute and case law. See § 1003.31(2), Fla. Stat. (2005) (“The duty of supervision shall not extend to anyone other than students attending school and students authorized to participate in school-sponsored activities.”); Rupp, 417 So.2d at 668 n. 26 (“The school also has no duty to supervise off-premises activities of students which are not school related.”); Matallana v. Sch. Bd. of Miami-Dade County, 838 So.2d 1191, 1192 (Fla. 3d DCA 2003) (holding that the school had no duty to supervise at the time of an incident which occurred off school premises and was unrelated to any school activity); Gross v. Family Servs. Agency, Inc., 716 So.2d 337, 339 (Fla. 4th DCA 1998) (stating that schools generally have not been held to have a duty of supervision when injuries occurred off-campus while students have been involved in non-school related activities); Palella ex rel. Palella v. Ulmer, 136 Misc.2d 34, 518 N.Y.S.2d 91, 93 (N.Y.Sup.Ct.1987) (holding that the school board had no duty to supervise once truant student was beyond its lawful control).

The plaintiff also seeks to impose liability upon the School Board for breaching a duty to prevent the students from leaving campus without authorization. A negligence cause of action is comprised of four elements; the first is a “duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003) (quoting W. Page Keeton et al., ProsseR and Keaton on the law of Torts 164-65 (5th ed.1984)). As we wrote in Biglen v. Florida Power & Light Co., 910 So.2d 405, 408 (Fla. 4th DCA 2005):

The supreme court has made foreseeability the polestar to finding both the existence of a legal duty and its scope; “whenever a human endeavor creates a generalized and foreseeable risk of harming others,” which the court describes as a “foreseeable zone of risk,” the law generally places a duty upon a defendant “ ‘either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.’ ” McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla.1992) (quoting Kaisner v. Kolb, 543 So.2d 732, 735 (Fla.1989)). The existence of a legal duty means that a defendant stands in a “ ‘relation to the plaintiff as to create [a] legally recognized obligation of conduct for the plaintiffs benefit.’ ” Palm Beach-Broward Med. Imaging Ctr., Inc. v. Cont’l Grain Co., 715 So.2d 343, 344 (Fla. 4th DCA 1998) (quoting Prosser and Keaton § 42, at 274). The absence of a foreseeable zone of risk means that the law imposes no legal duty on a defendant, and therefore defeats a negligence claim.

In determining the existence of a legal duty, which is a question of law, a court allocates risk by “balancing the foreseeability of harm, in light of all the circumstances, against the burden to be imposed.” Levy v. Fla. Power & Light Co., 798 So.2d 778, 780 (Fla. 4th DCA 2001) (quoting Vaughan v. E. Edison Co., 48 Mass.App.Ct. 225, 719 N.E.2d 520, 523 (1999)).

Cases from other jurisdictions hold that violation of a school’s closed campus or truancy policy will not support a negligence action against a school board for personal injuries to third parties occurring off campus.

In Collette v. Tolleson Unified School District, No. 211, 203 Ariz. 359, 54 P.3d 828 (Ariz.Ct.App.2002), the school was alleged to have negligently enforced a closed campus policy. The plaintiff was a motorist struck by a student who had left campus without authorization during a lunch break. The Arizona court affirmed summary judgment in favor of the school:

¶ 16 The only conduct of the District at issue here is the alleged negligent enforcement of its modified closed-campus policy. Nothing happened to Thomason while at school that affected his ability to drive a car. Nor was Thomason’s driving part of any school activity. The car Thomason was driving had not been provided to him by the District and the District had no reason to believe Thoma-son was an incompetent or dangerous driver. Thomason was driving on a public street with a valid driver’s license for a personal purpose.
¶ 17 Plainly, the District had no power to control Thomason’s actual operation of his vehicle. Appellants are really arguing that the District’s duty to supervise its students gave rise to a duty to appellants to keep Thomason from driving his car at the particular time this accident happened. We do not believe reasonable persons would agree that such a duty exists, and decline to impose such a duty in this case for both practical and policy reasons.

Id. at 832-33 (citation omitted).

Similarly, in Thompson v. Ange, 83 A.D.2d 193, 443 N.Y.S.2d 918 (1981), the student struck another motorist while driving off-campus in violation of school rules. The New York court affirmed a summary judgment in favor of the school, stating:

The uncontroverted proof was that Gra-ziano was a licensed driver. The schools’ awareness of reckless driving by some students and their concern for student safety is not sufficient to show that Gra-ziano was anything but the average 17-year old whom the Legislature has determined may be licensed to drive[]. There is no claim that the schools had notice that Graziano was an incompetent driver. The risk that Graziano would be involved in an automobile accident was no greater than the risk incurred by the operation of an automobile by any average 17-year old driver. Violation of the no-driving rule did not increase the risk of accident in any way; that risk existed regardless of any rule.
In short, although plaintiffs have been grievously injured in an automobile accident caused by a student driver violating a school rule and although driving by teenagers may be a matter of concern to schools and to the general public, we are not prepared to hold that these schools had the duty to shield the public from a student operating an automobile off the school grounds in violation of school rules.

Id. at 921.

We agree with Collette and Thompson that school rules relating to a student’s presence on campus do not impose a legal duty of care running from the school board to third parties who are injured as a result of the negligent driving conduct of a student who has violated the school’s policies.

A related question is whether the high school owed a duty to prevent Kaitlin from leaving school property without authorization to protect her from off-campus dangers such as ear crashes. The best Florida case for the plaintiff is Doe v. Escambia County School Board, 599 So.2d 226 (Fla. 1st DCA 1992). In that case the student was fourteen years old, but was performing mentally at a third or fourth grade level. A male student took her by the arm, walked her out to a car in the school parking lot, drove her off campus, and sexually assaulted her. The first district reversed a summary judgment for the school board, finding that the failure to supervise in both the school building and the school parking lot was actionable. We distinguish Doe because the student in that case was abducted rather than having left voluntarily.

Tollenaar v. Chino Valley School District, 190 Ariz. 179, 945 P.2d 1310 (Ariz.Ct.App.1997), is directly on point. The high school there had a closed campus policy, but its enforcement was lax. Shortly after arriving at school, the plaintiffs’ children got into a car with another student and left campus. A collision with a tractor-trailer killed the plaintiffs’ children. The Arizona court affirmed a summary judgment for the school, holding that the school exposed the students only to the ordinary risks of vehicular collision that “ ‘[mjembers of our mobile society face ... whenever they are in cars.’ ” Id. at 1311 (quoting Rogers ex rel. Standley v. Retrum, 170 Ariz. 399, 825 P.2d 20, 24 (Ariz.Ct.App.1991)). The Tol-lenaar court went on to hold that the exposure to that foreseeable risk did not amount to exposure to an unreasonable risk, creating no duty of care. Id.

New York and California have taken different stances on the precise question of duty presented by these facts. California has held that a duty exists, but emphasizes that the duty is one of “ordinary care, not fortresses; schools must be reasonably supervised, not truant-proof.” Hoyem, 585 P.2d at 857. New York, on the other hand, appears to recognize no such duty, at all. In Palella, a 14-year old skipped school and went joyriding with his friends, which ended in a police chase and a car crash with grievous injuries. The court granted the school’s motion for summary judgment, stating:

In this case, the infant plaintiff intentionally absented himself from the physical custody and control of the School District. Nothing short of a prison-like atmosphere with monitors at every exit could have prevented the infant from leaving the school grounds on the day in question. This court is not prepared to mandate that a school district must employ security measures to insure that its students comply with reasonable attendance policies.

518 N.Y.S.2d at 93; see also Glaser ex rel. Glaser v. Emporia Unified Sch. Dist. No. 253, 271 Kan. 178, 21 P.3d 573 (2001) (holding that a middle school owed no duty to a student who ran off campus into traffic).

Whether there is a duty to prevent a student from leaving campus without authorization depends on the age of the student. Such a duty seems clear at the elementary school level, yet is anything but clear at the high school level. See Rogers, 825 P.2d at 25 (“Nor do we suggest that a calculus of unreasonable risk will yield equivalent results at every level of the schools. We leave for resolution in other unsupervised egress cases such questions as whether parents’ supervisory expectations may reasonably differ at differing levels of the schools and whether the risks that may be deemed unreasonable may likewise differ with the age of the student involved.”).

Recently, in Clay Electric, the Florida Supreme Court quoted the elements of negligence from Prosser and Keeton on the Law of Torts, which quotes the duty element as follows:

A duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.

873 So.2d at 1185 (quoting Prosser and Keeton on the Law of Torts 164-65 (W. Page Keeton ed., 5th ed.1984)) (emphasis added). We conclude that, for a high school student, skipping school is simply not so dangerous as to pose an “unreasonable risk” of harm, and thus should create no duty of care.

Teenage drivers are statistically worse drivers than adults, as the insurance actuarial data shows. However, we as a society have determined that they are safe enough to be on the roads; riding with a licensed teenage driver should not be considered an unreasonably risky undertaking. See Tollenaar, 945 P.2d at 1311. According to the plaintiff, the legislature’s enactment of a law providing for the suspension of habitually truant students’ driver’s licenses demonstrates that our lawmakers recognize that habitually truant students are a safety risk on the roads. However, we can find no legislative history or statistics to support plaintiffs position. It seems far more likely that the legislature simply intended to use a driver’s license as a coercive tool to keep high school students in class. The statute does not signify a legislative determination that truant students are worse drivers than their contemporaries. In any event, as previously pointed out, none of these students were habitually truant.

In Palm Beach-Broward Medical Imaging Center, Inc. v. Continental Grain Co., 715 So.2d 343, 345 (Fla. 4th DCA 1998), we stated:

In applying the “foreseeable zone of risk” test to determine the existence of a legal duty, the supreme court has focused on the likelihood that a defendant’s conduct will result in the type of injury suffered by the plaintiff. This aspect of foreseeability requires a court to evaluate
whether the type of negligent act involved in a particular case has so frequently previously resulted in the same type of injury or harm that ‘in the field of human experience’ the same type of result may be expected again.
Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441, 443 (Fla.1961).

(emphasis omitted). Applying this standard, we hold that no duty exists. As the record demonstrates, high school students routinely skip school yet, as the paucity of reported cases shows, horrific car crashes while skipping school are exceedingly rare. See id. at 346. Placing liability on the school board for off campus automobile accidents involving high school students would encourage the imposition of hyper-restrictive conditions on high school campuses. The off-campus dangers confronting high school students are risks that should be confronted by students and their parents. We conclude that in the context of a negligence cause of action brought on behalf of a student injured off campus, a school may not be held liable for injuries suffered by a student who has violated the school’s campus attendance policies.

In any event, we believe that sovereign immunity bars the plaintiff’s suit against the School Board. The School Board is immune from suit for its discretionary planning level policies regarding parking permits, student parking, and penalties for student breaches of school attendance and parking rules. See Orlando v. Broward County, Florida, 920 So.2d 54 (Fla. 4th DCA 2005) (holding that school board’s decision as to school hours was a planning-level decision for purposes of school board’s entitlement to sovereign immunity in action by mother of child who was killed while crossing a street on his way home from school), review denied, 934 So.2d 450 (Fla.2006).

A high school may have sound educational reasons for wanting to treat its students with the dignity which comes with freedom of movement, rather than as young children or prisoners. See Wilson v. County of San Diego, 91 Cal.App.4th 974, 111 Cal.Rptr.2d 173, 178 (2001) (discussing decision not to make children’s center a lockup facility to avoid treating juveniles as if they had committed a crime). The decision whether to have an open campus, a “fortress,” or something in-between, is a policy decision that should be left to school professionals and not second-guessed by civil juries. Orlando v. Broward County, 920 So.2d at 57.

As to the plaintiffs other point on appeal concerning the School Board’s Renewed Motion for Protective Order, we find no abuse of discretion in the trial court’s granting such motion.

Affirmed.

WARNER and GROSS, JJ., concur.

      . We note that in Louis v. Skipper, 851 So.2d 895 (Fla. 4th DCA 2003), this court confronted a claim by a third party injured by an automobile driven by a student on a school sanctioned field trip. The injured party sued the school board, arguing that the student was an agent of the board at the time of the accident. We affirmed a summary judgment in favor of the school board, '‘[¡Inasmuch as the student [driver] was neither an employee of the school board, nor driving a school board vehicle.” Id. at 896. Louis involves a claim of agency, not a claim that violation of a school board policy amounted to negligence.

      . § 1003.27(2)(b), Fla. Stat. (2005).