author: PER CURIAM.

text:
    SDG DADELAND ASSOCIATES, INC., etc., et al., Appellants, v. Violet C. ANTHONY, Appellee.
    No. 3D05-2666.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2008.
    Rehearing and Rehearing En Banc Denied April 22, 2008.

      Luks, Santaniello, Perez, Petrillo & Gold and Paul S. Jones and Jack D. Luks and James P. Waczewski, Orlando, for appellants.
    Simon & D’Alemberte and Ronald Simon, Miami; Bambi G. Blum, Miami, for appellee.
    Before WELLS, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Appellants SDG Dadeland Associates, Inc. d/b/a Dadeland Mall, Unicco Service Company and Management Associates, Inc. (collectively “Dadeland”) appeal from a final judgment rendered in favor of Ap-pellee Violet C. Anthony, and request a new trial. For the following reasons, we reverse and remand for a new trial.

I. FACTS

On September 11, 2002, Anthony, a nurse accompanying a patient, sustained injuries when she fell to the ground while exiting Dadeland Mall with her patient. The cause of the fall was disputed at trial. Anthony admitted that she was not looking where she was walking, but was instead paying attention to her patient. Anthony asserted that she slipped on water, while Dadeland asserted that she tripped over a warning cone that had been placed to alert customers to the water.

Unfortunately, a simple slip and fall case unraveled into an improper attack on Dadeland, its witnesses, and its defense counsel. This Court has repeatedly denounced such litigation tactics. Beginning in voir dire and ending with rebuttal closing, Anthony’s counsel, Ronald Simon, Esq., engaged in a series of improper and unprofessional attacks on Dadeland and its counsel that included the following allegations:

(1) failure to produce an incident report;
(2) failure to produce all photographs depicting the scene of the accident;
(3) defense counsel’s collusion with witnesses; and
(4) a general frivolous defense argument.

Prior to trial, the trial court excluded any reference to a privileged incident report that had been prepared by Dadeland. The trial court further ruled that only witnesses who could independently recall the accident scene, without reference to the report, could testify as to what occurred. Notwithstanding this ruling, during his opening statement delivered moments after the trial court’s ruling, Mr. Simon began an assault on Dadeland’s pretrial discovery practices by telling the jury that an incident report existed, but that Dadeland failed to produce the report because it asserted that the report was privileged. Pursuant to a defense objection, the trial court ordered Mr. Simon to refrain from making further reference to the report. Despite this instruction, during the direct examination of a former Dade-land employee, Mr. Simon implied that Dadeland had violated its policies by not creating an incident report. Pursuant to an objection, the trial court found Mr. Simon’s statements to be harmless, but again cautioned him not to mention the report.

Continuing with his “hiding the evidence” theme, Mr. Simon during his opening told the jury that Dadeland likely had taken additional photographs but had not disclosed their existence. These alleged photographs were central to Mr. Simon’s attempt to persuade the jury that Dade-land had concealed evidence in this lawsuit. Further, Simon insinuated in his redirect examination of Dadeland employee John Aleman that defense counsel had instructed Aleman on how to describe the photographs to best suit the defense. Dadeland moved for a mistrial, which motion was denied.

The trial court further instructed both parties not to discuss any issue relating to discovery during closing argument. Mr. Simon, however, twice alluded to a possible violation by telling the jurors that “[w]e don’t know” if there really were only two photographs. And after pondering why witnesses would “try to come up with an excuse,” Mr. Simon referred the jury back to his voir dire comments regarding “frivolous defenses.” He told the jury, “[y]ou never read about frivolous defenses. Well you got to see one and hear one up close and personal.”

Further stressing the theme that Dade-land and its counsel had concealed evidence, Mr. Simon during closing argument provided the jury with his opinion that Dadeland had placed a warning cone next to Anthony after she fell and that Dade-land’s defense belonged in the “garbage.” He theorized that Dadeland had done so prior to photographing the scene in order to make it appear as if Anthony had tripped over the cone. Mr. Simon asked, “[c]an you come into a courtroom seeking the truth and start with one deceit and finish with a bigger one?” And in reference to testimony from Dadeland’s general manager, Mr. Simon told the jury that Dadeland employees had perjured themselves:

Their defense is in the toilet, and they’re trying to save the day by trying to change his testimony, changing everything he said under oath a few months ago.... And before that, ... when we propounded the discovery, you’ve heard about that, the interrogatories — remember the written questions? We ... asked them to please provide us with the incident reports or the names of the people who’ve fallen there before.

Mr. Simon continued his closing argument by telling the jury that defense counsel “knows they are liable,” but “[bje’s got to protect the wallet of the corporate defendant.” In rebuttal closing, Mr. Simon concluded by telling a story about a disabled boy who chooses to take care of an injured puppy (“the Puppy Story”):

How are you going to do that when you go back into the jury room? And I’m trying to think how do I convey this to you so you’ll understand what it is to go through what this lady has gone through and what she will have to go through when we all leave, when we go back to our families and ways of life and all of the Christmases and holidays she’s had to celebrate in casts and in therapy? How do I do that? How do you go back and make this right?
⅜ ⅜ ⅜ ⅜
A little boy got $8, and he wants a puppy, and he goes into a puppy store because it has a big sign that says puppies for sale. And the owner comes out, and the boys [sic] says, “I only have $8.” And the owner says, “Let me show you the puppies.” And he opens up the door, and five or six little white puffy puppies come running out except the one in the back. The one in the back comes limping out, and the owner goes, “Which one of these do you want?” The little boy says, “I want the one in the back that’s limping.” And the owner says, “Why would you want the one in the back that’s limping? Take one of these healthy puppies. That one has a bad leg. He’s been injected. He’s had surgery. It is no good.” The little boy says, “I want that one.” And the owner says, “Why?” And the boy lifted up his pant leg with a brace on it. “Because,” he says, “that puppy is going to need somebody that knows what it is like to feel that bad.”

II. STANDARD OF REVIEW

We review the denial of a motion for new trial for abuse of discretion. See Southwin, Inc. v. Verde, 806 So.2d 586, 587-88 (Fla. 3d DCA 2002); Salnave v. Pub. Health Trust of Dade County, 624 So.2d 282 (Fla. 3d DCA 1993); Jones v. Airport Rent-A-Car, Inc., 342 So.2d 104 (Fla. 3d DCA 1977). A trial court’s discretion regarding counsel’s improper arguments to the jury is guided by whether the comments and arguments were “highly prejudicial and inflammatory.” Hagan v. Sun Bank of Mid-Florida, N. A, 666 So.2d 580, 585 (Fla. 2d DCA 1996)(disapproved of on other grounds by Murphy v. Int'l Robotic Sys., Inc., 766 So.2d 1010, 1013 (Fla.2000)).

III. ANALYSIS

It is well settled that statements by counsel in closing argument which accuse opposing counsel of hiding evidence and of fraudulently preventing the presentation of relevant evidence constitute reversible error. See generally Wall v. Costco Wholesale Corp., 857 So.2d 975 (Fla. 3d DCA 2003) (reversal required because of comments made by defense counsel regarding the plaintiffs failure to call her daughter to testify where defense counsel knew daughter was estranged from parents); Hernandez v. Home Depot U.S.A., Inc., 695 So.2d 484, 485-86 (Fla. 3d DCA 1997) (reversal required because defense counsel, after succeeding in excluding proffered testimony of plaintiffs expert that defendant had created an unsafe condition, in closing argument “whipsawed the plaintiff for not producing that very testimony”); George v. Mann, 622 So.2d 151, 152 (Fla. 3d DCA 1993) (“Defense counsel repeatedly referred to Mrs. George’s lawsuit pain, and argued that she had set up the entire lawsuit, implying that she was a liar and was perpetrating a fraud upon the court. Defense counsel also argued to the jury that Mrs. George had concealed evidence and violated discovery orders. This line of argument, even if not objected to, constitutes reversible error.”); Emerson Elec. Co. v. Garcia, 623 So.2d 523 (Fla. 3d DCA 1993) (new trial ordered where plaintiffs' counsel accused defense counsel of fraud, hiding evidence, and putting up roadblocks to discovery).

We find that given the absence of any evidence showing that either Dade-land or its counsel hid evidence or acted improperly, any argument by Plaintiffs counsel implying that defense counsel was hiding evidence was both egregious and prejudicial to Dadeland. See Johnnides v. Amoco Oil Co., 778 So.2d 443 (Fla. 3d DCA 2001). Indeed, this Court in the past has characterized such an argument as “disingenuous” and “misleading” and has repeatedly disapproved of this type of approach to lawyering and litigation. See Hernandez, 695 So.2d at 486.

Although admonished by the trial judge not to raise discovery matters in his closing argument, Mr. Simon chose to relate to the jury the difficulties he had in scheduling the deposition of Jesus Teran, the security guard who first responded to the accident. Mr. Simon further ignored the trial court’s directive by arguing to the jury, without any evidentiary support, that Dadeland refused to turn over in discovery additional photographs that would have been harmful to its defense.

While contemporaneous objections were made to Mr. Simon’s comments regarding discovery matters, such an objection is not necessary if the comment constitutes fundamental error or extinguished Dadeland’s right to a fair trial. Owens Corning Fiberglas Corp. v. Morse, 653 So.2d 409, 410 (Fla. 3d DCA 1995). Here, no discovery violation was ever proven. Moreover, even if a violation had occurred, “an appropriate sanction was a matter for the court and not for the jury.” Emerson Elec. Co., 623 So.2d at 525. When viewed in the overall context of Mr. Simon’s closing argument, and those comments to which objections were made, we find that fundamental error did occur. See, e.g., Muhammad v. Toys “R” Us, Inc., 668 So.2d 254, 258 (Fla. 1st DCA 1996).

Moreover, Mr. Simon expressed his view that every testifying witness had lied regarding when the warning cone appeared at the accident scene. Indeed, Mr. Simon argued, without any evidentiary support, that the warning cone was placed in the area after Anthony’s slip and fall. It is axiomatic that an attorney may not provide such opinions to the jury without any evidentiary support. See Bloch v. Addis, 493 So.2d 539, 541 (Fla. 3d DCA 1986). Even Anthony was unsure as to whether the cone had been there before she fell. Disregarding the evidence, however, Mr. Simon offered his own opinion as to the warning cone’s placement and the likelihood of additional photographs. He further told the jury that it had witnessed a frivolous defense “up close and personal.” Standing alone, these personal opinions require a new trial. See, e.g., Kaas v. Atlas Chem. Co., 623 So.2d 525, 526 (Fla. 3d DCA 1993).

As in Morse, 653 So.2d at 411, Mr. Simon’s unsubstantiated comments accused Dadeland and its counsel of perpetuating a fraud upon the court by hiding evidence. Indeed, Mr. Simon told the jury that defense counsel “knows” Dadeland is liable, but must “protect the wallet of the corporate defendant.” “While attorneys are given broad latitude in closing arguments, remarks must be confined to the evidence and to the issues and inferences that can be drawn from the evidence.” Muhammad, 668 So.2d at 258. Even had no contemporaneous objection been made to any of these comments, this Court has long held that “arguments like these fall squarely within that category of fundamental error — requiring no preservation below — in which the basic right to a fair and legitimate trial has been fatally compromised.” Kaas, 623 So.2d at 526. See, e.g., Morse, 653 So.2d at 411; Carnival Cruise Lines, Inc. v. Rosania, 546 So.2d 736 (Fla. 3d DCA 1989); Borden, Inc. v. Young, 479 So.2d 850, 851-52 (Fla. 3d DCA 1985). Likewise, we find the “collective import,” of Mr. Simon’s comments to be unacceptable and unprofessional. Muhammad, 668 So.2d at 258; Martino v. Metropolitan Dade County, 655 So.2d 151, 152 (Fla. 3d DCA 1995). “As this court has stated on numerous occasions, these inflammatory and prejudicial remarks will not be condoned,” Morse, 653 So.2d at 411, and “we will not supinely ratify the result of a trial like the present one.” Borden, 479 So.2d at 852.

Finally, we also find that the Puppy Story, which Mr. Simon conveyed to the jury during closing, constituted an improper Golden Rule argument. A “Golden1 Rule” argument asks the jurors “to place themselves in the plaintiffs’ position and urge[s] them to award an amount of money they would desire if they had been the victims.” Coral Gables Hosp., Inc. v. Zabala, 520 So.2d 653 (Fla. 3d DCA 1988). Such arguments constitute reversible error, if a contemporaneous objection is made, because they strike at the very heart of our justice system:

It is hard to conceive of anything that would more quickly destroy the structure of rules and principles which have been accepted by the courts as the standards for measuring damages ... than for the juries to award damages in accordance with the standard of what they themselves would want if they or a loved one had received the injuries suffered by a plaintiff. In some cases, indeed, many a juror would feel that all the money in the world could not compensate him for such an injury.... Such a notion as this — the identifying of the juror with a plaintiffs injuries — could hardly fail to result in injustice under our law....

Bullock v. Branch, 130 So.2d 74, 76 (Fla. 1st DCA 1961), disapproved of on other grounds, Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1029 (Fla.2000).

The classic Golden Rule argument specifically requests the jurors to imagine themselves as the injured party, and to award damages as if they were the injured party. See State Farm Mut. Auto. Ins. Co. v. Curry, 608 So.2d 587 (Fla. 3d DCA 1992); Metropolitan Dade County v. Zapata, 601 So.2d 239, 241-42 (Fla. 3d DCA 1992). Even when an attorney does not explicitly ask the jurors how much money they would wish to receive in the plaintiffs position, comments may violate the Golden Rule if they implicitly suggest that the jury place itself in the plaintiffs position. E.g., Bocher v. Glass, 874 So.2d 701, 703 (Fla. 1st DCA 2004).

In Bocher, a wrongful death lawsuit, plaintiffs’ counsel told the jury that if plaintiffs were given the choice between millions of dollars and a “magic button” that could bring their child back, the plaintiffs would quickly push the button. Id. The First District held that the statement constituted reversible error, even though the comment, like the Puppy Story, did not directly ask the jury to place itself in the plaintiffs’ position. Id. However, just like the Puppy Story, “[t]he only conceivable purpose behind counsel’s argument was to suggest that jurors imagine themselves in the place of’ Anthony. Id. Moreover, Mr. Simon told this story while discussing damages and immediately after positing the question “[h]ow do you go back and make this right?” Within that context, there can be no doubt that the Puppy Story “str[uck] at the sensitive area of financial responsibility and hypothetically requested] the jury to consider how much they would wish to receive in a similar situation.” Zapata, 601 So.2d at 241.

Based upon a review of the record, we conclude that Dadeland was deprived of a fair trial by the collective import of Simon’s trial conduct. A new trial is, therefore, warranted.

Reversed and remanded for a new trial in accordance with this opinion.

      . Dadeland also asserted a comparative negligence defense, i.e., that Anthony may have simply slipped on the water without noticing that the cone was present.

      . During voir dire, Mr. Simon asked the prospective jurors whether they had heard of frivolous defendants, setting the stage for his trial strategy: impugning Dadeland's and its counsel’s character.

      . Prior to closing arguments, however, the trial court instructed the jury that it is common for witnesses to talk with the lawyers.

      . The Dadeland employee who photographed the accident scene could not remember how many photographs he took, and after a lengthy sidebar conference the trial court allowed Mr. Simon to ask if the employee had an independent recollection as to how many photographs were taken. The answer was "no.”

      . Dadeland did not contemporaneously object to this comment.

      . Dadeland objected to this comment, but the objection was overruled.

      . Specifically, Simon argued:
      Now, I don’t know how you all grew up, and I don't know where you all came from. But where I came from, you don't have to be under oath to tell the truth. And yet we're in a courtroom under oath and we're still not getting it.... [A]ll I can suggest to you all is that when you think about that and you think about their defense and you think about whether that cone was out there like they say and she tripped over it, you ought to put it in the garbage where it belongs.

      . Dadeland's objection to this comment was overruled.

      . Dadeland’s objection to these comments was sustained, but the trial court did not give a curative instruction.

      . Dadeland’s objection to this story as an improper Golden Rule argument was sustained, but Dadeland's pre-verdict motion for a mistrial and post-verdict motion for a new trial were denied.

      . The trial court sustained Dadeland's objection but did not give a curative instruction.

      . During rebuttal closing, Mr. Simon insinuated that photographs were taken but not provided to him.
      I don't know which one they took first. I don't know if there were five others that were bad for them. I don't know that. They said they usually take three to five. They take the ones that are best for their case'.
      The trial court sustained Dadeland’s objection and offered a curative instruction.

      .Specifically, the following argument was made during closing:
      MR. SIMON: [T]o come in here and know there is a spill and walk over after an accident and put the cone down because you know you can’t win the case if she falls on a spill that you didn’t clean up that you didn’t find, that you didn’t safeguard, you didn’t barricade, let’s put the cone there and she tripped over there.

      . Apparently, Mr. Simon has engaged in similar but less pervasive conduct before other courts. See Target Stores v. Detje, 833 So.2d 844, 846 (Fla. 4th DCA 2002) (Klein, J., dissenting) (Mr. Simon's arguments "were clearly improper and unethical”).


source: Caselaw Access Project

author: COPE, J.

license: Public Domain

text:
    Elias SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1321.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    Rehearing Denied April 25, 2008.

      John H. Lipinski, for appellant.
    Bill McCollum, Attorney General, Michele Samaroo and Laura Moszer, Assistant Attorneys General, for appellee.
    Before COPE and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   COPE, J.

This is an appeal from an order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). Defendant-appellant Elias Sanchez contends that he does not qualify for the agreed twenty-year mandatory minimum sentence imposed on him pursuant to the ten-twenty-life statute. We conclude that such a claim is not cognizable under rule 3.800(a).

The defendant was charged with multiple offenses arising out of a home invasion robbery. According to the judgment, two of the offenses were life felonies on which the defendant could have received a life sentence.

The defendant entered into a plea agreement for a twenty-year sentence with a twenty-year minimum mandatory term pursuant to the ten-twenty-life statute. The factual basis for the plea was stated on the record. As to the twenty-year mandatory minimum sentence, the factual basis was as follows. During a struggle between the defendant and one of the victims, the defendant pulled the trigger of the pistol (either accidentally or intentionally) but it did not fire because the webbing between the victim’s thumb and first finger was caught by the hammer of the pistol, thus preventing it from firing.

On February 4, 2002, the trial court conducted the plea colloquy and entered the sentencing order. The twenty-year mandatory minimum sentence was entered on counts one and two, both of which were life felonies, and count four, a first-degree felony. The twenty-year term and twenty-year mandatory minimum were, therefore, less than the legal maximum on those counts. The sentences imposed on counts one, two, and four were concurrent with each other.

In July 2004, the defendant filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The defendant argued that the facts stated in the plea colloquy are undisputed and that he does not qualify for the imposition of the twenty-year mandatory minimum sentence under the ten-twenty-life statute. The statute provides in part that there will be a twenty-year mandatory minimum sentence when, in the course of committing an enumerated felony, the defendant “discharged a ‘firearm’ ... as defined in s. 790.001 ....” § 775.087(2)(a)2, Fla. Stat. (1999). For present purposes we assume, but do not decide, that “discharged” means that the firearm discharged a projectile. Under those facts, the twenty-year mandatory minimum sentence does not apply to this defendant.

The trial court denied the rule 3.800(a) motion in an order stating that a motion to correct illegal sentence cannot be used to attack the factual basis for a plea. In so doing, the court relied on Spates v. State, 700 So.2d 445 (Fla. 1st DCA 1997). The rule 3.800(a) motion could not be treated as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 because the two-year time period for a rule 3.850 motion had expired. This Court affirmed without opinion. Sanchez v. State, 892 So.2d 1041 (Fla. 3d DCA 2004).

In 2005, the defendant retained counsel who filed another motion to correct illegal sentence. As amended, this motion reasserted the same ground, and also alleged that there was a violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The trial court denied relief and the defendant has appealed.

This Court has held that a challenge to the factual basis for a plea must be brought under Florida Rule of Criminal Procedure 3.850 (which provides a two-year time limit), not rule 3.800(a) (which provides no time limit at all). See White v. State, 935 So.2d 554, 555 (Fla. 3d DCA 2006). The underlying logic is that if the defendant is to be relieved of his obligations under the plea bargain, that must occur within the two-year time limit of rule 3.850 so that there is a realistic possibility of proceeding to trial if the plea is set aside.

In White, the plea involved a burglary charge and did not involve a mandatory minimum sentence. However, the logic of White is applicable where, as here, the plea includes an agreed mandatory minimum sentence as well as an agreed sentence on the substantive offenses. So long as the sentences do not exceed the legal maximum (there is no such claim here), rule 3.800(a) cannot be employed to challenge the factual basis for a plea, including an agreed mandatory minimum sentence.

The Florida Supreme Court has held that rule 3.800(a) cannot be used to challenge the factual basis for a mandatory minimum sentence where resolution of the issue required an evidentiary determination. State v. Mancino, 705 So.2d 1379, 1381 (Fla.1998) (approving Young v. State, 616 So.2d 1133 (Fla. 3d DCA 1993)). Arguably the present case can be distinguished from Mancino and Young, because in the present case the factual basis for the imposition of the twenty-year mandatory minimum was stated on the face of the plea colloquy, and no fact finding is necessary. As already stated, however, under White a challenge to the factual basis for a plea must be brought under rule 3.850. Rule 3.800(a) is not available where, as here, none of the sentences exceeds the legal maximum.

The defendant’s alternative argument is that there was an error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The decision in Apprendi is applicable where a sentence exceeds the legal maximum. 530 U.S. at 490, 120 S.Ct. 2348. A claim that a sentence exceeds the legal maximum is cognizable on a motion under Florida Rule of Criminal Procedure 3.800(a). The Ap- prendí claim is, however, without merit. The twenty-year mandatory minimum sentence is within the statutory maximum. See Apprendi 530 U.S. at 490, 120 S.Ct. 2348; Balkcom v. State, 789 So.2d 949, 950 (Fla.2000). The Apprendi decision is also inapplicable in the case of a plea, where “the defendant either stipulates to the relevant facts or consents to judicial fact finding.” Blakely v. Washington, 542 U.S. 296, 310, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). In this case the defendant stipulated to the factual basis and to the imposition of this specific sentence.

Affirmed.

      . The crime date was June 30, 2000.

      . The trial court imposed fifteen-year concurrent terms on counts three and five, both of which are second degree felonies. Those counts are not placed in issue by the defendant’s motion.

      . In the original sentencing proceeding the trial court suggested that the agreed twenty-year mandatory minimum sentence could be achieved by stacking two ten-year mandatory mínimums under the ten-twenty-life statute. We need not reach that issue.


text:
    R.L. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2543.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 2008.
    Rehearing Denied April 22, 2008.
    R.L. Williams, in proper person.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

We affirm the order denying appellant’s post-conviction relief motion under Florida Rule of Criminal Procedure 3.800(a). However, we reverse and remand this cause to the trial court for it to address the issue of the omission of the 125 days credit for time served in the corrected 1989 resentencing order or to otherwise provide such credit for county jail time served prior to the date of the original sentencing order. See § 921.161(1), (2), Fla. Stat. (1985).

Affirmed in part. Remanded in part with directions.


text:
    D.M. & D.M., Appellants, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES and the Guardian Ad Litem Program, Appellees.
    Nos. 3D06-2280, 3D06-2291.
    District Court of Appeal of Florida, Third District.
    Feb. 27, 2008.

      Kevin Coyle Colbert, Miami; E. Joseph Ryan, Jr., Sunny Isles Beach, for appellants.
    Hillary S. Kambour; Karla Perkins, Miami, for appellees.
    Before GERSTEN, C.J., and COPE and LAGOA, JJ.

      . Chief Judge Gersten did not hear oral argument but participated in the decision.

   PER CURIAM.

This is an appeal by the father (D.M.) and mother (D.M.) of a final judgment terminating their parental rights. We affirm.

At the time of the entry of final judgment, the minor child L.M. was three years old and the minor child J.D.M. was six months old. At trial, the father disclaimed any parental rights to the infant, J.D.M. Accordingly we affirm the termination of the father’s parental rights to J.D.M.

The parents maintain that the remainder of the termination judgment is not supported by competent substantial evidence. After careful consideration, we conclude that the evidence is legally sufficient.

As we interpret the final judgment, the trial court terminated the parental rights solely on the basis of paragraph 39.806(l)(c), Florida Statutes (2005). That statutory provision allows termination of parental rights when “the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental or emotional health of the child irrespective of the provision of services.”

In December 2004, the Department of Children and Family Services (“the Department”) received a report of domestic violence and child neglect. The Department placed the mother and the child L.M. in a shelter.

In late December 2004, the mother returned to the home. There was an argument between the mother and the father wherein the father hit the mother with a stick and the mother stabbed him in response. The police were called. L.M. was placed in foster care. Criminal charges were filed against both parents, including domestic violence and child neglect. Both parents were released on pretrial release.

The Department filed a dependency petition as to L.M. The dependency allegations included domestic violence, drug abuse, and child neglect. The mother was awarded supervised visitation. A case plan was approved by the court in April 2005.

On appeal, the mother maintains that the case plan should have been written in Spanish, but was written in English. The mother and case worker, however, testified that the case plan was explained to her in Spanish and she acknowledged that she understood it.

The parents were referred to the Spectrum Program for drug treatment. The father initially refused all services, saying he did not need them. Neither parent followed up the drug treatment referral with the Spectrum Program. The mother, however, attended the Alliance for Psychological Services, for domestic violence.

During 2005 the mother became pregnant with J.D.M. The mother subsequently was incarcerated for violation of pretrial release in her criminal case because of two positive tests for cocaine. In February 2006, she delivered J.D.M. while incarcerated. The evidence supported the conclusion that the mother used cocaine while pregnant with J.D.M.

In December 2005, the father was arrested for possession of cocaine. The father denied that J.D.M. was his child but scientific testing confirmed the father’s paternity of J.D.M. The father was also briefly transferred to a mental health facility for an evaluation of his competency.

The trial court found “that in light of all the facts, that irrespective of the services offered by the Department and those not offered, the Parents’ continuing involvement in the parent-child relationship threatens the life, safety, well being and physical, mental and emotional health of the children.” The parents argue that this finding is not supported by competent substantial evidence.

We have carefully considered the parents’ argument on this point, but conclude that under the circumstances of this case, the finding is adequately supported. Drug abuse was the key problem leading to the charges of child neglect. The record supports the conclusion that both parents failed to pursue the referral for drug abuse at the Spectrum Program.

Both parents were incarcerated for use of cocaine, which violated their pretrial release. The father was arrested for possession of cocaine and incarcerated. The mother had two positive tests for cocaine, which were at a time when she was pregnant, and her pretrial release was revoked. In light of the parents’ refusal to seek treatment pursuant to the referral, the record supports the “irrespective of the provision of services” termination judgment.

Alternatively, the parents argue that the judgment must be reversed for procedural error. The judgment indicates that the trial court performed independent research in legal periodicals regarding an issue in the case. The parents complain that they were not given notice that the trial court had obtained, and would consider, these materials. That argument is without merit. A trial court is allowed to conduct its own legal research in legal materials, such as case reporters, statutes, treatises, and law reviews. In this case, the trial court located a law review note and a website which collects the statutes of all states. Nothing precludes a trial court’s search for additional legal authorities not cited by the parties.

However, the trial court also located articles in Wikipedia, the British Medical Journal, and other medical or scientific treatises regarding a psychological issue in the case. It is clear that the trial court regarded this as being permissible background research and not information assembled to form the basis of a decision in the case. These articles were cited in the judgment. We agree with the parents that it was error for the court to conduct this independent research.

In this case the trial judge was sitting as the trier of fact. In making the rulings in the case, the court was necessarily confined to the record made by the parties. If the court desired further research regarding the psychological issue, then the correct procedure would have been to request that the research be done by the parties, or by the court-appointed psychologist (with notice to the parties).

While there was error, we are satisfied that it was harmless and that the trial court would have entered the judgment for termination of parental rights under paragraph 39.806(l)(c) whether or not this research had been done. We distinguish Guardian Ad Litem Program v. J.D., 920 So.2d 1225 (Fla. 3d DCA 2006), because in this case we are satisfied that the error was harmless. In J.D., the panel’s reversal necessarily reflects a conclusion that the error was harmful, not harmless.

We have carefully considered the other points on appeal, but conclude that no reversible error has been demonstrated.

Affirmed.

      .The petition for termination of parental rights also sought termination under paragraph 39.806(l)(e), which authorizes termination "when a child has been adjudicated dependent, a case plan has been filed with the court, and the child continues to be abused, neglected, or abandoned by the parents.” It appears that the trial court did not reach this issue.

      . The minor child J.D.M. had not yet been born.

      . The dependency petition also involved half siblings, but the proceedings relating to the half siblings are not relevant here.


author: GROSS, J.

text:
    William EHRMAN, Appellant, v. Thomas A. MANN, Appellee.
    No. 4D07-1402.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2008.
    Rehearing Denied May 19, 2008.
    Peter A. Sachs, C. Wade Bowden, and Jennifer G. Ashton of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellant.
    Jack J. Aiello and Meenu T. Sasser of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellee.
   GROSS, J.

Appellee, Thomas Mann, was an investor in a fund managed by appellant, William Ehrman. Mann requested the return of his money, but Ehrman did not comply. Mann filed a circuit court action. The circuit court entered a final judgment in Mann’s favor for $2,018,563.41. To collect the judgment, Mann filed a third-party action against Ehrman’s wife and daughter seeking to set aside fraudulent conveyances.

Ehrman moved to vacate the judgment. In December 2005, while this motion was pending, Mann and Ehrman entered into a settlement agreement. This agreement was intended to resolve all claims between all parties. The settlement required Ehr-man to pay Mann $725,000 in three scheduled payments. The circuit court action was stayed pending Ehrman’s full payment.

Twelve days after the execution of the settlement agreement, Ehrman notified Mann that he would not perform. The same day, Mann moved to set Ehrman’s motion to vacate judgment for hearing; the motion noted that Mann intended to proceed with the circuit court action “along with a cause of action against [Ehrman] for breaching the settlement agreement.” The circuit court granted Ehrman’s motion for relief from judgment and vacated the $2,018,563.41 judgment.

Once the court set aside the final judgment, Mann moved to enforce the December 2005 settlement agreement. After an evidentiary hearing, the circuit entered an order enforcing the settlement agreement. The judge entered a judgment for $791,640.04, which included prejudgment interest.

Ehrman argues that the doctrine of election of remedies precluded Mann from enforcing the settlement agreement; he contends that once Mann pursued the circuit court action by seeking a hearing on the motion to vacate, Mann irrevocably elected that remedy and was barred from proceeding on the settlement agreement.

The purpose of the election of remedies doctrine is to “prevent double recoveries for a single wrong.” Liddle v. A.F. Dozer, Inc., 777 So.2d 421, 422 (Fla. 4th DCA 2000). The supreme court described the parameters of the doctrine in Barbe v. Villeneuve, 505 So.2d 1331, 1332-33 (Fla.1987) (internal citations omitted):

The election of remedies doctrine is an application of the doctrine of estoppel and operates on the theory that a party electing one course of action should not later be allowed to avail himself of an incompatible course. Under Florida law, however, the election of remedies doctrine applies only where the remedies in question are coexistent and inconsistent. As this Court previously stated in American Process Co. [v. Florida White Pressed Brick Co., 56 Fla. 116, 122-23, 47 So. 942, 944 (1908)]:
If the allegations of facts necessary to support one remedy are substantially inconsistent with those necessary to support the other, then the adoption of one remedy waives the right to the other. A party will not be permitted to enforce wholly inconsistent demands respecting the same right[s]. It is not permissible to both approbate and reprobate in asserting the same right in the courts.... Where the law affords several distinct, but not inconsistent, remedies for the enforcement of a right, the mere election or choice to pursue one of such remedies does not operate as a waiver of the right to pursue the other remedies. In order to operate as a waiver or estoppel, the election must be between coexistent and inconsistent remedies.... If more than one remedy exists, but they are not inconsistent, only a full satisfaction of the right asserted will estop the plaintiff from pursuing other consistent remedies. All consistent remedies may in general be pursued concurrently even to final adjudication; but the satisfaction of the claim by one remedy puts an end to the other remedies.

Barbe involved a plaintiff who pursued coexistent and inconsistent remedies. The case involved competing claims to ownership of a yacht. The plaintiff recovered a judgment against the seller for civil theft of the purchase price of the vessel. Later, against the competing owner, the plaintiff was awarded title to the yacht. The theft judgment was predicated upon the assumption that the seller stole the purchase price from the plaintiff; the award of title assumed that the seller received the purchase price in exchange for the yacht. Id. at 1333. The supreme court held that this inconsistency triggered the election of remedies doctrine, so that the final judgment on the theft precluded the plaintiff from seeking title to the boat from the competing owner. Id. at 1332-33. The two remedies in Barbe were inconsistent because the plaintiff “could not logically assume to follow one without renouncing the other.” Klondike, Inc. v. Blair, 211 So.2d 41, 42 (Fla. 4th DCA 1968).

In this case, the two remedies were cumulative and not inconsistent. Mann had already obtained a final judgment. The settlement agreement provided that collection efforts on the circuit court judgment be stayed pending Ehrman’s performance of the settlement agreement. Contrary to Ehrman’s contention, the agreement did not “supersede” or “replace” the underlying judgment, but held it only in abeyance pending Ehrman’s payment of the $725,000. The settlement agreement thus allowed Mann to pursue the judgment if Ehrman failed to perform. After the judgment was vacated, there was no legal reason that prevented Mann from seeking to enforce the settlement agreement. Nothing in the settlement agreement precluded this approach or made the enforceability of the agreement contingent on the final judgment remaining in force. Mann essentially negotiated for the option of pursuing the settlement agreement if the final judgment collapsed.

We distinguish this case from Peoples v. Florida Insurance Guaranty Ass’n, 364 So.2d 79 (Fla. 2d DCA 1978), cited by Ehrman. There the second district held that the plaintiffs act of bringing a tort suit against an insurance company and its insured “constituted a rescission” of an earlier settlement agreement. Id. at 81. Here, Mann’s pursuit of the existing judgment was contemplated by the settlement agreement, so that Mann did not rescind the agreement by seeking to obtain a hearing on Ehrman’s motion to vacate the judgment.

Affirmed.

WARNER and FARMER, JJ., concur.


author: RAMIREZ, J.

text:
    Eusebio HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-379.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Rehearing Denied April 21, 2008.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   RAMIREZ, J.

Eusebio Hernandez appeals his final judgment of conviction and sentence arising from various charges related to his involvement in the murder of Dulce Diaz, Hernandez’s former spouse, and the attempted murder of Jorge Herrera. We affirm the final judgment of conviction because we find no abuse of discretion in the trial court’s admission into evidence of portions of a tape-recorded conversation that consisted of Hernandez’s own statements, which do not constitute a violation of Hernandez’s confrontation rights or the law of the case doctrine; but we remand with instructions that the trial court strike an additional count in its sentencing order consistent with the State’s confession of error in this appeal.

1. Factual and Procedural Background

The State charged Hernandez by indictment with first-degree murder, attempted first-degree murder, and conspiracy to commit first-degree murder. By amended information, the State charged Hernandez with attempted first-degree murder with a deadly weapon, and felony causing bodily injury.

Hernandez moved to suppress a taped phone conversation between himself and codefendant Henry Cuesta. He also moved to suppress any transcript prepared from that phone conversation, and or any testimony from any third party concerning the contents of that phone conversation. Hernandez argued that the introduction of the recorded phone conversation between himself and codefendant Cuesta constituted a violation of his right to confront witnesses, even if all statements codefendant Cuesta made were redacted from the taped conversation. The State filed a motion in limine. The trial court granted Hernandez’s motion, and denied the State’s motion in limine.

The State appealed, arguing that the call contained Hernandez’s adoptive admissions, that codefendant Cuesta was unavailable to testify, and that the admission of the call would not violate the Confrontation Clause of the Sixth Amendment. This Court treated the notice of appeal as a petition for writ of certiorari and denied the writ. See State v. Hernandez, 875 So.2d 1271 (Fla. 3d DCA 2004). We concluded that the trial court did not depart from the essential requirements of the law when it excluded codefendant Cuesta’s out-of-court statements. Id. at 1273-74. Consistent with the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we determined that the admission of Cuesta’s statements violated the Sixth Amendment Confrontation Clause because Cuesta’s statements were testimonial in nature and Hernandez had no opportunity to cross-examine codefen-dant Cuesta. Hernandez, 875 So.2d at 1273.

Furthermore, this Court held in Hernandez that codefendant Cuesta’s statements were not admissible as adoptive admissions, reasoning that the out-of-court statements were the direct product of police officers who directed codefendant Cuesta to make the statements so that Hernandez would incriminate himself, and the statements did not meet the requirements for admission as adoptive admissions. Id. at 1274.

The State appealed further. After granting the States petition for discretionary review, see State v. Hernandez, 894 So.2d 972 (Fla.2005), the Florida Supreme Court discharged jurisdiction. See State v. Hernandez, 911 So.2d 95 (Fla.2005).

On remand, the State argued that if codefendant Cuestas statements were redacted from the telephone conversation, the remaining statements of Hernandez would be admissible as statements of a party-opponent. Defense counsel argued that this issue already had been ruled on by the predecessor trial judge and by this Court, that the entire telephone conversation had been suppressed in those prior proceedings, and that re-litigation of the issue was barred by the law of the case doctrine. The State sought to prove that Hernandez hired codefendant Cuesta to kill Diaz and Herrera.

The trial court eventually ruled, over defense objection, that the redacted telephone conversation was admissible. The redacted tape then was played for the jury while the jury read along from a transcript that contained a translation of the tape. The redacted tape, as reflected in the transcript, indicated that Hernandez received a phone call during which he incriminated himself. During closing argument, the State urged the jury to consider the taped telephone conversation as the crucial link between Hernandez and codefendant Cuesta. The jury returned its verdict finding Hernandez guilty on: count 1 for the first-degree murder of Diaz; count 2 for the attempted first-degree murder of Herrera; and on count 3 for conspiracy to commit the first-degree murder of Diaz and Herrera.

2. Discussion

The issue before us is whether the trial court properly admitted Hernandez’s statements from the redacted tape-recorded conversation between himself and code-fendant Cuesta. We conclude that the trial court correctly admitted into evidence Hernandez’s own statements.

The admissibility of evidence lies within the sound discretion of the trial court. Ray v. State, 755 So.2d 604, 610 (Fla.2000); Council v. State, 691 So.2d 1192, 1194 (Fla. 4th DCA 1997). The trial court’s discretion is broad, and the decision to admit evidence will not be reversed unless there is a clear abuse of discretion. Ray, 755 So.2d at 610. We could find no abuse of discretion in the trial court’s decision to admit Hernandez’s statements.

The trial court did not abuse its discretion in admitting into evidence Hernandez’s statements because the admission of those statements did not violate the Confrontation Clause. See Preston v. State, 641 So.2d 169, 171 n. 4 (Fla. 3d DCA 1994). Hernandez’s statements were admissible as admissions under the evidence code. See State v. Elkin, 595 So.2d 119 (Fla. 3d DCA 1992). In Hernandez, 875 So.2d 1271 (Fla. 3d DCA 2004) this Court upheld the exclusion of codefendant Cuesta’s statements and discussed Globe v. State, 877 So.2d 663 (Fla.2004). Hernandez, 875 So.2d at 1273. In Globe, the Florida Supreme Court held that that the admission of codefendant statements as adoptive admissions did not violate the Confrontation Clause. Globe v. State, 877 So.2d 663 (Fla.2004). In Hernandez, we declined to rely upon Globe because it was based on Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) which was subsequently overruled by Crawford. Hernandez, 875 So.2d at 1273.

In the Florida Supreme Court’s decision in Globe, upon which we now rely, the Florida Supreme Court discusses Crawford. Globe, 877 So.2d at 672-73. It held that “admissions by acquiescence or silence do not implicate the Confrontation Clause.” Id. at 672. Accordingly, based on Globe, it is now clear that it would have been permissible for the trial court to admit into evidence any statements by code-fendant Cuesta that qualified as adoptive admissions by Hernandez. See § 90.803(18)(b), Fla. Stat. (reciting hearsay exception for “statement that is offered against a party and is: ... [a] statements of which the party has manifested an adoption or belief in its truth”).

Hernandez also argues that the law of the case doctrine barred the admission into evidence of any portion of the tape-recorded conversation. Under the law of the case doctrine, “questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001); Woolin v. Bernay, 920 So.2d 1151, 1153 (Fla. 3d DCA 2006). “[T]he trial court is bound to follow prior rulings of the appellate court on ‘issues implicitly addressed or necessarily considered’ by the appellate court so long as the facts on which the appellate court based its decision continue to be the facts of the case.” Id. at 1153.

We do not agree that the law of the case doctrine is applicable and barred the admission into evidence of Hernandez’s statements. In the prior appeal, this Court upheld the exclusion of the tape solely because it contained the statements of the non testifying codefendant Cuesta. The opinion never discussed nor decided the admissibility of a redacted version of the telephone conversation between code-fendant Cuesta and Hernandez. Likewise, the issue involving the admissibility of Hernandez’s statements, if codefendant Cuesta’s statements were redacted from the tape-recorded conversation, was not one which this Court implicitly addressed or necessarily considered in State v. Hernandez, 875 So.2d 1271 (Fla. 3d DCA 2004).

We recognize that in the reply brief in the certiorari proceeding, the State argued that “separate and apart from the question of adoptive admissions, and [sic] statements by Hernandez constitute qualifying admissions in their own right.” There is no inconsistency between that argument and this Court’s opinion, because this Court’s opinion addressed only the exclusion of codefendant Cuesta’s statements.

We turn now to the issue of whether the trial court erred when it sentenced Hernandez. The trial court orally sentenced Hernandez on count 1 to life imprisonment with a twenty-five year mandatory minimum for Diaz’s murder; on count 2 to thirty years imprisonment for the attempted murder of Herrera which was to run consecutive to count 1; and on count 3 to thirty years imprisonment on the conspiracy to commit first-degree murder which was to run consecutive to the other two terms of imprisonment.

The trial court thereafter entered a written order of judgment in which it adjudicated Hernandez guilty of: count 1, first-degree murder of Diaz; count 1, attempted first-degree murder of Herrera as set forth in the information; count 2, attempted first-degree murder of Herrera as set forth in the indictment; and count 4, conspiracy to commit first-degree murder as set forth in the indictment.

In its written sentencing order, the trial court imposed the following sentences: on count 1, life imprisonment with a twenty-five year minimum mandatory sentence for the first-degree murder of Diaz; count 1, thirty year sentence for the attempted first-degree murder of Herrera as set forth in the information; count 2, thirty year sentence for the attempted first-degree murder of Herrera as set forth in the indictment; and count 4, thirty year sentence for conspiracy to commit first-degree murder. The trial court further ordered that the sentence for count 1 of the information run consecutive to the sentence for count 2 of the indictment; and the sentence for count 4 of the indictment run consecutive to the sentence imposed for count 1 of the information.

We agree with Hernandez that the trial court committed error when it pronounced sentence. As the State properly concedes, the trial court incorrectly sentenced Hernandez to an additional count of attempted first-degree murder of Herrera.

3. Conclusion

We thus conclude that the trial court did not abuse its discretion in admitting into evidence portions of the tape-recorded conversation between Hernandez and codefen-dant Cuesta that consisted solely of Hernandez’s own statements. Therefore, we affirm Hernandez’s final judgment of conviction. We remand to the trial court, however, with instructions that the trial court strike an additional count in its sentencing order consistent with the State’s concession of error in this appeal.

Affirmed in part and reversed in part.


author: ROTHENBERG, J.

text:
    EAST COAST ELECTRIC, Appellant, v. Allen DUNN and Barbara Dunn, his wife; Clifford Stewart and Celestine Stewart, his wife; and General Electric Company, Appellees.
    Nos. 3D06-2211, 3D06-2213.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.

      Conroy, Simberg, Ganon, Krevans & Abel and Hinda Klein, Hollywood, for appellant.
    Shook, Hardy & Bacon and Hildy M. Sastre and Daniel B. Rogers and Todd L. Wallen, Miami, for appellee General Electric Company.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

In this consolidated appeal, defendant East Coast Electric (“East Coast”) appeals orders granting final summary judgment in favor of defendant General Electric Company (“General Electric”). We affirm.

Allen Dunn and Clifford Stewart (collectively, the “Plaintiffs”) filed lawsuits against General Electric and East Coast, alleging in their amended complaints as follows. In the course and scope of their employment with Florida Power and Light, they were seriously injured while testing an uncovered bus bar. The bus bar was manufactured by General Electric; shipped by General Electric to East Coast without the proper covers (“end caps”); and installed by East Coast, a licensed electrical contractor. The Plaintiffs asserted causes of action for strict liability against General Electric, alleging in part that General Electric breached its duty to the Plaintiffs by failing to immediately ship the proper end caps to East Coast when East Coast notified General Electric that it had initially shipped the wrong end caps, and that as a proximate and direct result of General Electric’s breach of its duty, the Plaintiffs were injured when a phase flash occurred. In addition, the Plaintiffs asserted negligence claims against East Coast.

General Electric filed motions for summary judgment, acknowledging that the end caps that were shipped to East Coast did not properly fit the bus bars. General Electric, however, argued that East Coast’s “recognition of the missing end cap and its decision to supply power to the building acts as a superseding and intervening cause; thereby extinguishing any liability on behalf of Defendant [General Electric].” Defendant East Coast opposed General Electric’s motion for summary judgment, arguing that it was foreseeable that East Coast “would have powered up the busway without the end caps in place” because General Electric knew that East Coast was under time pressures to complete the building.

At the hearing on the motions for summary judgment, it was undisputed that East Coast realized that General Electric had shipped the improper end caps; East Coast contacted General Electric, requesting that General Electric ship the proper end caps; the end caps were not sent to East Coast; and East Coast covered the bus bars with cardboard. In addition, before the busway system was energized, General Electric notified East Coast that it was voiding the busway system’s warranty due to water damage (unrelated to the missing end caps), and that the busway system should not be energized. Thereafter, although East Coast clearly knew that the bus bars were not properly covered, and had been warned by General Electric not to energize the busway, East Coast decided to energize the busway system. While the Plaintiffs were working in a small meter room where the electrified uncovered bus bars were located, a phase flash occurred, and the Plaintiffs were seriously injured.

The trial court entered final summary judgment in favor of General Electric and against the Plaintiffs. Defendant East Coast appeals these orders.

East Coast contends that the trial court erred by granting final summary judgment in favor of General Electric. We disagree.

A trial court may grant summary judgment only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). An appellate court’s review of the trial court’s order granting summary judgment is de novo. Id.

The trial court granted summary judgment in favor of General Electric on the basis that General Electric, the alleged original negligent actor, was relieved of liability for the Plaintiffs’ alleged damages because East Coast’s decision to energize the busway system was an unforeseeable, intervening cause. For an intervening cause to relieve the original tortfeasor of liability, the intervening cause must be unforeseeable and “completely independent of, and not in any way set in motion by, the tortfeasor’s negligence.” Townsend v. Westside Dodge, Inc., 642 So.2d 49, 50 (Fla. 1st DCA 1994). Although we recognize that foreseeability is usually a question to be determined by the trier of fact, “occasionally, when reasonable people cannot differ, the issue has been said to be one of law for the court.” Dep’t of Transp. v. Anglin, 502 So.2d 896, 898 (Fla.1987) (quoting Stahl v. Metro. Dade County, 438 So.2d 14, 21 (Fla. 3d DCA 1983)). Moreover, in Stahl, this Court stated:

Florida courts ... have for good reason been most reluctant to attach tort liability for results which, although caused-in-fact by the defendant’s negligent act or omission, seem to the judicial mind highly unusual, extraordinary, bizarre, or, stated differently, seem beyond the scope of any fair assessment of the danger created by the defendant’s negligence.

Stahl, 438 So.2d at 19.

In Anglin, the Florida Supreme Court reasoned that “ ‘the question of whether to absolve a negligent actor of liability is more a question of responsibility’ than simply one of factual causation.” Anglin, 502 So.2d at 899 (quoting Gibson v. Avis Rent-A-Car Sys., Inc., 386 So.2d 520, 522 (Fla.1980)). In quashing the district court’s decision in Anglin, which concluded that whether a motorist’s actions constituted an independent intervening cause, which would relieve the Department of Transportation of liability for its alleged negligence, was an issue of fact to be determined by the jury, the Florida Supreme Court held:

While it may be arguable that petitioners, by creating a dangerous situation ... could have reasonably foreseen that someone may attempt to provide such assistance, it was not reasonably foreseeable that DuBose would act in such a bizarre and reckless manner. Petitioners’ negligent conduct did not set in motion a chain of events resulting in injuries to respondents; it simply provided the occasion for DuBose’s gross negligence.

Anglin, 502 So.2d at 899-900 (citation omitted).

In the instant case, assuming that General Electric’s act of shipping the wrong end caps to East Coast created a dangerous situation, East Coast’s subsequent act of energizing the busway system was “so far beyond the realm of foreseeability that, as a matter of law and policy,” General Electric cannot be held liable for the Plaintiffs’ injuries. See Anglin, 502 So.2d at 899. East Coast, a licensed and experienced electrical contractor, decided to energize the busway system even though General Electric told East Coast not to energize the busway system, East Coast knew that the bus bars were not properly covered, and East Coast knew that the electrified uncovered bus bars would pose a threat to anyone working near them. Contrary to East Coast’s assertion, it was not reasonably foreseeable that East Coast would act in such a reckless manner, and therefore, General Electric was relieved from liability. As in Ang-lin, the original negligent actor’s “conduct did not set in motion a chain of events resulting in injuries to [the Plaintiffs]; it simply provided the occasion for [the intervening tortfeasor’s] gross negligence.” Id. at 900. Accordingly, we affirm the orders granting final summary judgment in favor of General Electric.

Affirmed.

      . A bus bar is a part of a busway system.

      . The Plaintiffs did not object to General Electric’s motions for summary judgment, and they did not appeal the trial court’s orders granting final summary judgment in favor of General Electric.


text:
    Claude LaROCHE, Appellant, v. Francois NEHAMA, Appellee.
    No. 3D07-1077.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Rehearing Denied April 22, 2008.

      Ruden, McClosky, Smith, Schuster & Russell and John H. Pelzer, Ft. Lauder-dale, Norman S. Segall, Miami and Robin F. Hazel, Ft. Lauderdale, for appellant.
    McConnell Lipton and H. Hugh McConnell, Coral Gables, for appellee.
    Before GERSTEN, C.J., and RAMIREZ and CORTINAS, JJ.
   PER CURIAM.

Claude LaRoche (“LaRoche”) appeals a final judgment granting specific performance for the sale of his home to Francois Nehama (“Nehama”). We reverse.

Nehama and LaRoche entered into a lease and option to purchase agreement. Nehama agreed to rent LaRoche’s home for a term of two years, with a security deposit and the first month’s rent due at signing. LaRoche granted Nehama the option to purchase the house pursuant to a sales contract attached to the agreement. The agreement required Nehama to notify LaRoche in writing of his intent to exercise the option ninety days before the lease expired.

Before the lease term began, the parties amended their agreement. LaRoche would remain in the house, and Nehama would not have to pay rent. The parties then signed an addendum to the lease/option agreement memorializing their new agreement. Thereafter, the parties signed a “cancellation agreement.”

The parties disagree as to their intent in signing the addendum and the cancellation agreement. LaRoche understood the cancellation to encompass the complete transaction, including the option. Nehama, on the other hand, intended to cancel the lease and retrieve his security deposit. Nehama thought the option remained valid. Through counsel, LaRoche wrote Ne-hama confirming cancellation of their agreement. Nehama refused to accept the cancellation, exercised the option, and sought specific performance of the sales contract.

On appeal, LaRoche asserts that even if the option to purchase survived cancellation of the agreement, no consideration supported the option. Thus, without consideration, the option constituted a revocable offer which LaRoche withdrew prior to acceptance. Nehama contends that the trial court properly granted specific performance because the option to purchase survived cancellation of the lease portion of the parties’ agreement. We agree with LaRoche.

A binding option to purchase real estate requires valuable consideration to support it. Otherwise, it is considered a mere offer which may be withdrawn at any time before it is accepted. Donahue v. Davis, 68 So.2d 163, 170 (Fla.1953). Here, the option was initially supported by consideration because Nehama obligated himself to lease the property for two years. However, when the parties amended their agreement terminating Nehama’s obligation to pay rent, the option was no longer supported by valuable consideration. At this point, the option was merely a revocable offer which LaRoche withdrew by his attorney’s letter prior to Nehama’s acceptance.

Accordingly, we reverse the final judgment granting specific performance, and remand for proceedings consistent with this opinion.

Reversed and remanded.


text:
    Pamela Cristina MARTINEZ, Maria Salvade, et al., Appellants, v. SOUTH BAYSHORE TOWER, L.L.L.P., Appellee.
    No. 3D07-340.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Katz, Barron, Squitero, Faust, Fried-berg, Grady, English, & Allen, Stephen P. Walroth-Sadurni, and Bernard Allen, Miami, for appellants.
    Baker & McKenzie and Lee E. Staple-ton and Effie D. Silva, Miami, for appellee.
    Before GERSTEN, C.J., and SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Appellants (“Purchasers”) seek reversal of an adverse summary judgment in favor of South Bayshore Tower, L.L.L.P. (“the Developer”). Based upon accord and satisfaction, we affirm.

The Developer and the Purchasers entered into pre-construction condominium contracts and the Purchasers gave the Developer a ten percent deposit of the total purchase price. Thereafter, the Developer abandoned the project. The Developer returned the Purchasers’ deposits with a letter stating that cashing the check would serve as an accord and satisfaction, terminating the parties’ rights and obligations under the contract. All of the Purchasers cashed their checks.

The Purchasers contend that there was no intent to settle an existing dispute and thus, no accord and satisfaction. The Developer asserts that there was an accord and satisfaction because the Purchasers relieved the parties of all rights and obligations under the contract by cashing their returned deposit checks. We agree with the Developer.

An accord and satisfaction results when: (1) the parties mutually intend to effect a settlement of an existing dispute by entering into a superseding agreement; and (2) there is actual performance in accordance with the new agreement. Compliance with the new agreement discharges the prior obligations. Rudick v. Rudick, 403 So.2d 1091, 1094 (Fla. 3d DCA 1981).

Here, cashing the checks satisfied the elements of accord and satisfaction. It showed that the Purchasers intended to effectuate a settlement of the dispute and also constituted actual performance of the new agreement.

Additionally, if an offer clearly serves as an accord and satisfaction, and the other party accepts the offer, then he or she is bound to the conditions attached. McGehee v. Mata, 330 So.2d 248 (Fla. 3d DCA 1976). Had the Purchasers intended the Developer to remain obligated under the contract, then they should not have cashed their checks.

Further, strong public policy supports the use of accord and satisfaction. Accord and satisfaction is a convenient and valuable tool for resolving disputes informally without litigation. Burke Co. v. Hilton Dev. Co., 802 F.Supp. 434 (N.D.Fla.1992). It would be unjust to allow a party to accept a check as an accord and satisfaction, and then later permit that party to sue under the same rights and obligations that the accord and satisfaction was intended to release. The person cannot “have his cake and eat it too.” 802 F.Supp. at 439.

Accordingly, we affirm the final summary judgment.

Affirmed.


author: SALTER, J.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. James BOESCH, Respondent.
    No. 3D07-3145.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Rehearing Denied April 18, 2008.

      Judson Chapman, General Counsel, and Thomas C. Mielke, Assistant General Counsel, for petitioner.
    Hal Schuhmacher, for respondent.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

The State of Florida, Department of Highway Safety and Motor Vehicles (“Department”) petitions for a writ of certiorari regarding a Monroe County Circuit Court order issued in a driving under the influence (“DUI”) case. The circuit court quashed an administrative hearing officer’s suspension of the Respondent’s driver’s license after he refused a lawful breath test. We grant the writ and quash the circuit court order.

The respondent, James Boesch, was driving an automobile on the Overseas Highway, Plantation Key, at about 11:30 p.m. on October 23, 2006. A Monroe County Sheriffs deputy reported that Boesch was driving at a slow speed, crossing over the middle yellow line, and weaving. He saw Boesch’s vehicle nearly strike an electrical pole. The officer further reported that Boesch’s automobile struck a curb, flattening the front right tire, and ultimately stopped in front of Coral Shores High School. As the circuit court found in its order, “the deputy noticed a strong smell of alcohol coming from Mr. Boesch’s breath, and Mr. Boesch exhibited red, bloodshot eyes, and slurred speech.” After Boesch failed roadside sobriety tests, the officer asked him to submit to a breath test. Boesch refused. He was read the applicable implied consent warning and again refused to have a breath test.

Boesch was charged with driving under the influence, and his driving privilege was suspended. At Boesch’s request, an administrative formal review hearing was conducted on December 22, 2006. At the hearing, the deputy testified that: “I immediately asked him if he’d submit to a lawful test of his breath and he said ‘no.’ ” The officer said again that after reading Boesch the implied consent warning, Boesch “still did not submit to a lawful test of breath.”

During further questioning by Boesch’s counsel, the deputy was asked if he read from the implied consent card. Counsel “asked” the deputy: “You’re requested to submit to breath, blood or — breath, urine or blood test, and if you refuse — [sic].” The deputy answered that he read implied consent via the card, and that he “asked [Boesch] to submit to a lawful test of the breath.” A bit later, Boesch’s counsel asked the question: “And once, once after [sic] you read him the breath, blood and urine, and he refused and you marked it as a refusal, correct?” The officer answered, “Yes, sir.”

After the cross-examination was concluded, the hearing officer asked for and obtained clarification, not new or additional information:

Hearing Officer: Okay. Officer, clarify something for me. What exactly did you ask the driver to do as far as testing?
Deputy: Outside of the car, I asked him if he’d submit to a lawful test of his breath—
Hearing Officer: Okay.
Deputy: —to determine the alcohol count.
Hearing Officer: Okay. Did you ask for anything else besides the breath? Deputy: No, I didn’t ask him for anything else at that time. I take [sic] him to the DUI room and then I read him implied consent.
Hearing Officer: Okay. Thank you very much, officer. Counsel, do you have any other questions for the officer?

The hearing officer sustained the suspension of Boesch’s driver’s license, and Boesch then sought certiorari to the Monroe County circuit court. By order entered October 12, 2007, that court granted the writ and found that:

In this case, the hearing officer departed from the role of a neutral and detached magistrate by questioning which results in the establishment of previously unestablished facts, to the benefit of one side or the other. The hearing officer’s questioning was apparently designed to create a legally sufficient record to sustain a suspension and to counteract the questioning already conducted by [Boesch’s counsel], in which the officer had not testified unequivocally that he had only requested the breath test. Accordingly, this Court finds that the hearing officer did impermissibly stray from her role as a neutral and detached magistrate in this case. See, DHSMV v. Pitts, 815 So.2d 738 (Fla. 1st DCA 2002)[sic]. The failure of a judge to remain neutral is fundamental error, and is not waived by the failure to make a contemporaneous objection.

Our review of circuit court orders on petitions for certiorari from administra-five orders, a “second-tier certiorari review,” is narrowly circumscribed. It is limited to deciding whether the circuit court afforded procedural due process and applied the correct law. We are to determine, in short, whether the circuit court “departed from the essential requirements of law,” amounting to “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003).

In this case, the circuit court unquestionably departed from the essential requirements of law, violated clearly established principles of law, and allowed a miscarriage of justice.

First, there is no sign that the administrative hearing officer sought anything other than clarification of the officer’s testimony. She obtained that clarification. She did not try to repair missing elements of a prima facie case for an unprepared prosecutor or interpose objections and “severely limit the direct examination of witnesses” such that the “impression of impartiality” might reasonably be in doubt. The deputy testified repeatedly that only the breath test implied consent warning was read to Boesch — not the blood or urine test warnings. Boesch’s counsel’s questioning interjected, on a later try, the possibility that the blood test implied consent warning might have been read as well, so the hearing examiner simply sought clarification. It cannot reasonably be argued that the hearing officer took over the prosecution or elicited new information essential to one party’s case. Florida law allows — and most would say, encourages — hearing officers and judges to seek and obtain clarification in such instances. The hearing officer is not a potted plant.

Second, the hearing officer was empowered by law to “administer oaths, examine witnesses and take testimony, receive relevant evidence ... question witnesses, and make a ruling on the suspension.” § 322.2615(6)(b), Fla. Stat. (2006) (emphasis added).

Third, the issue was not preserved by a contemporaneous objection or even raised in a post-hearing motion; it was raised for the first time in the circuit court review proceeding. The circuit court’s conclusion that the hearing officer’s two questions for clarification represent a “failure to remain neutral” and “fundamental error” is itself patently erroneous on this record.

For each of these independently sufficient reasons, we find that the circuit court violated clearly established principles of law, resulting in a miscarriage of justice. The circuit court orders granting Boesch’s petition (dated October 12, 2007), and denying rehearing of that order, are hereby quashed.

Petition granted.

      . As Boesch's counsel certainly seems to have known, the separate implied consent statute applicable to blood tests, subsection 316.1933(1), Florida Statutes (2006), did not warrant a blood test in this case. Although we have not ruled (and do not here) on this point, at least one district court of appeal has held that the erroneous inclusion of the blood test implied consent warning may invalidate the breath test warning, preventing suspension of the defendant's license. State, Dep’t of Highway Safety & Motor Vehicles v. Clark, 974 So.2d 416 (Fla. 4th DCA 2007).

      . Boesch cites McFadaen v. State, 732 So.2d 1180, 1183 (Fla. 4th DCA 1999) to support this argument.

      . Dep't of Highway Safety & Motor Vehicles v. Pitts, 815 So.2d 738, 741 (Fla. 1st DCA 2002), relied upon by Boesch and also cited by the circuit court in its order.

      . The implied consent warning form used and signed by the deputy contains separate advisories for each type of test; only the breath test section was checked.

      . We also acknowledge and agree with the Department's contention in its petition that if the ruling below were to stand, it would chill the "search for truth” expected of hearing officers.


text:
    Darryl CASH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-191.
    District Court of Appeal of Florida, Third District.
    March 5, 2008.
    Rehearing Denied April 18, 2008.
    Darryl Cash, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before COPE, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

Darryl Cash appeals a circuit court order denying his claims of ineffective assistance of counsel under Florida Rule of Criminal Procedure 3.850. The order was entered following an evidentiary hearing. The detailed findings of fact in the order are supported by competent substantial evidence, and we therefore defer to those findings. McLin v. State, 827 So.2d 948, 954 n. 4 (Fla.2002).

The circuit court’s well-reasoned order is also correct in its analysis of each of Cash’s three claims. After affording deference to the trial court’s factual findings, we agree with the trial court’s order that Cash has failed to demonstrate that his counsel was ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Affirmed.


text:
    The CITY OF MIAMI, Appellant, v. Miguel GUTIERREZ, as Personal Representative of the Estate of Susana Gutierrez, Appellee.
    No. 3D07-1892.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Rehearing Denied May 1, 2008.
    Jorge L. Fernandez, City Attorney, and Warren Bittner, Assistant City Attorney, for appellant.
    Mintzer, Sarowitz, Zeris, Ledva, & Meyers, LLP, and Addison J. Meyers, and Orlando Valle, Coral Gables, for appellee.
    Before COPE, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

The City of Miami appeals an order denying its motion for summary judgment based on worker’s compensation immunity. We affirm the order because the undisputed record evidence supports the trial court’s finding that the employee was engaged in a recreational activity, unrelated to the work she was hired to perform. § 440.092(1), Fla. Stat. (2003); Whitehead v. Orange County Sheriffs Dept., 909 So.2d 344 (Fla. 1st DCA 2005); Madden v. Walt Disney World Co., 711 So.2d 150 (Fla. 1st DCA 1998).

Affirmed.


text:
    Larry James BARBER, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D08-128.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Rehearing Denied April 18, 2008.
    Larry James Barber, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Larry James Barber filed a petition for writ of habeas corpus alleging ineffective assistance of appellate counsel. We find the petition for writ of habeas corpus has no merit and is denied.

Petition denied.


author: WELLS, J.

text:
    Robert J. DOYLE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-3230.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Rehearing Denied April 21, 2008.
    Robert J. Doyle, in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for respondent.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   WELLS, J.

On December 17, 2007, Robert J. Doyle filed a pro se Petition for Writ of Mandamus with this court seeking to compel the lower court to rule on his motion to correct an illegal sentence. Pursuant to an order of this court, the State responded that the criminal court docket sheet indicated that such a motion was filed on March 5, 2007, but that neither the trial court nor the State was in possession of the motion. The State also asked that this court recommend to the Department of Corrections that Doyle be sanctioned for filing numerous, frivolous collateral criminal proceedings with respect to his convictions and sentences in this case.

Based on the State’s representations that Doyle’s post-conviction motion cannot be located, we deny the petition without prejudice to file a new post-conviction motion in the lower court. We decline to recommend to the Department of Corrections that it sanction the defendant at this time. However, upon reviewing the recent flurry of meritless, successive, pro se filings challenging his convictions and sentences in this case, we caution the defendant that the continued filing of frivolous or abusive papers may not only result in a future recommendation to the Department of Corrections that it bring disciplinary procedures against him under paragraph 944.28(2)(a) and section 944.279, Florida Statutes (2007), but also a prohibition against any further pro se filings in this court. See O’Haver v. State, 944 So.2d 498 (Fla. 3d DCA 2006); Johnson v. State, 915 So.2d 682 (Fla. 3d DCA 2005).

Petition denied.


text:
    BANCO ESPIRITO SANTO INTERNATIONAL, LTD., et al., Appellants, v. BDO INTERNATIONAL, B.V., et al., Appellees.
    No. 3D07-599.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Rehearing Denied April 21, 2008.

      Billbrough & Marks and Geoffrey B. Marks, Coral Gables; Thomas, Alexander & Forrester and Steven W. Thomas and Emily S. Alexander; Gonzalo R. Dorta, Miami; Gamba & Lombana and Hector J. Lombana, for appellants.
    Broad and Cassel and Mark F. Raymond and Rhett Traband, Miami; Sheppard, Mullin, Richter & Hampton and Kevin W. Goering, for appellees.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

This is an appeal from an order granting a motion for directed verdict and a final judgment, each in favor of the appellee, BDO International, B.V. (“BDO International”). The trial court found that the appellants, Banco Espirito Santo International, Ltd., Banco Espirito Santo, S.A., and ESB Finance, Ltd. (collectively “the Banco Plaintiffs”), failed to present evidence of an agency relationship between BDO International and a member firm, BDO Seidman, LLP (“BDO Seidman”). Finding that the evidence presented by the Banco Plaintiffs was sufficient to create a jury issue, we reverse and remand.

I. Procedural History

The Banco Plaintiffs’ complaint below alleged that the two BDO defendants committed accounting malpractice and were grossly negligent in a series of financial statement audits. The Banco Plaintiffs also alleged that BDO International was vicariously liable as principal for the acts and omissions of BDO Seidman as agent.

The Banco Plaintiffs invested in E.S. Bankest L.C. (“Bankest”), a factoring company located in Miami. The parties acknowledge that Bankest engaged in a massive fraud, and that its principals fabricated records to conceal losses in the hundreds of millions of dollars. Bankest hired BDO Seidman, a New York limited partnership, to conduct the audit of Bank-est’s financial statements for the years 1998-2002.

In 2004, the Banco Plaintiffs discovered the fraud and commenced their lawsuit against BDO Seidman and BDO International. BDO International moved to dismiss the case for lack of personal jurisdiction, asserting that it was a Netherlands corporation, had its principal place of business in Brussels, Belgium, and did not have the requisite contacts with Florida to be sued here. The trial court denied BDO International’s motion, finding that there was an “expectation that BDO could be hailed into the State of Florida to answer for the allegations against its underlings,” and that BDO International conducted business in Florida through BDO Seidman. This Court affirmed. BDO Int’l B.V. v. Banco Espirito Santo Int’l, Ltd., 911 So.2d 1246 (Fla. 3d DCA 2005).

BDO International then filed a motion to dismiss the complaint. Again, the trial court denied the motion, but limited the Banco Plaintiffs’ claim against BDO International to “a theory of actual agency.” The liability phase of the trial was held in early 2007. Although the jury found that BDO Seidman was liable to the Banco Plaintiffs, as to BDO International, the trial court granted a motion for directed verdict. The trial court found that the Banco Plaintiffs failed to present evidence to show that an actual agency relationship existed between BDO International and BDO Seidman. This appeal followed.

II. Standard of Review

The standard of review for a directed verdict is de novo. See Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006). However, “[a]n appellate court reviewing the grant of a directed verdict must view the evidence and all inferences of fact in the light most favorable to the nonmoving party, and can affirm a directed verdict only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party.” Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 329 (Fla.2001) (citation omitted).

III. Vicarious Liability and Actual Agency

Vicarious liability may arise in various ways under Florida law. The parties agree that in this case, however, any such liability would only exist if there was an actual common law agency relationship between BDO International as principal, and BDO Seidman as agent. To establish an actual agency relationship, the Banco Plaintiffs were required to establish: “(1) acknowledgement by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” See Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.1990) (quoting Restatement (Second) of Agency § 1 (1957)). Unless the alleged agency relationship is to be proven exclusively by analysis of the contract between the principal and agent (in which case the question is an issue of law), the relationship is generally a question of fact and should be analyzed by looking at the totality of the circumstances. Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853-54 (Fla.2003).

IV.The Banco Plaintiffs’ Trial Evidence Regarding Agency A. Acknowledgment by BDO International

The first of the three requisite elements of an actual agency is the principal’s acknowledgment that the agent will act for the principal. At trial, the Banco Plaintiffs introduced four types of documents, as well as other evidence, tending to prove this element. First, the Articles of Association of BDO International include, as the objects of the company, “to manage and control” those other “companies, partnerships and other entities which form part of the international association of accountants, auditors, tax-advisers and business advisers.” BDO International’s international secretary, Mr. Paul van Elten, testified that BDO Seidman was a member of that international network and was “coordinated” and “monitored” by BDO International. Second, the “Member Firm Agreement” (“MFA”) between BDO International and BDO Seidman regulated not only traditional licensing and territorial issues, it also reserved to BDO International the ultimate ownership and modification of the “BDO Technical Manuals” and “BDO Software” utilized by BDO Seidman and other member firms to conduct their accounting and audit business. The definition of “BDO Technical Manuals” in the MFA states that these manuals “lay down accounting, auditing, investigation and other standards and practices to be adhered to by the Member Firm.” Revisions to those “manuals, guidelines or instructions” were issued by BDO International after approval by BDO International’s “Policy Board.”

Third, the Banco Plaintiffs introduced into evidence the BDO audit manuals promulgated by BDO International for use by BDO Seidman and other member firms. Fourth, the trial record included BDO annual reports describing the interrelationships and roles of the various group members. As to BDO International, for example, the 1999 Annual Report states that BDO International’s duties included “implementing international quality control and training programmes.”

This evidence is representative, and certainly not exhaustive, of the proof that could have been relied upon by a trier of fact to conclude that BDO International acknowledged that BDO Seidman would act as its agent within the assigned territory. Alternatively, the trial court could have determined that the requirements of acknowledgment and acceptance are fulfilled (as a matter of law) by the existence of the MFA itself, a contract signed by both BDO International and BDO Seidman. Daniel v. Fla. Residential Prop. & Cas. Joint Underwriting Ass’n, 718 So.2d 936, 938 (Fla. 3d DCA 1998). The trier of fact would then still have to decide, however, whether the agent’s alleged negligence occurred within the scope of the MFA.

B. Acceptance by BDO Seidman

There is also evidence that BDO Seid-man accepted the undertakings detailed in the MFA. BDO Seidman’s authorized representative signed the MFA, and section 15.1 of the MFA obligated BDO Seid-man to assure that all of its partners and subsidiaries would also agree to be bound by the MFA. BDO International’s Mr. van Elten testified that BDO Seidman also agreed to make BDO Seidman partners and employees available to BDO International’s committees to prepare reports and develop products for BDO International.

C. BDO International’s Rights of Control Over BDO Seidman

“When one considers an action based on actual agency, it is the right to control, rather than actual control, that may be determinative.” Villazon, 843 So.2d at 853. In this case, Article 2.c of BDO International’s Articles of Association included as one of the Company’s “objects” the management and control of the member firms (one of which was, without dispute, BDO Seidman). The MFA imposed operating directives and restrictions that extend far beyond those utilized in mere licensing agreements. Although the MFA regulated the use of the group name, logo, and software, the MFA also obligated BDO Seidman partners and employees to (among other things): provide professional services at the request of BDO International; assist in developing accounting products for BDO International; and comply with the BDO audit manuals promulgated by BDO International. BDO International also retained the right to review BDO Seidman’s management from time to time for conformance with the requirements of the MFA. BDO Seidman agreed to provide all information and documentation requested by BDO International in connection with any such review.

These rights and powers distinguish this case from those in which the issue of agency is determinable as a matter of law. In Gillet v. Watchtower Bible & Tract Soc. of Pa., Inc., 913 So.2d 618 (Fla. 3d DCA 2005), for example, we affirmed a summary judgment in favor of church entities alleged to have controlled church members in their door-to-door pamphleteering. When a church member’s vehicle backed into a pedestrian in the course of those activities, we concluded that “[t]here is no evidence that any church defendant instructed, advised or in any manner controlled the means by which [a church member] was to get to the place where they were to proselytize.” Id. at 621. Here, on the other hand, BDO International did control the means — the ' management, audit manuals, and software — used by BDO Seidman to conduct its work for the Banco Plaintiffs. The detailed standards and procedures set forth in the audit manuals are similar to the operations manual analyzed in Parker v. Domino’s Pizza, Inc., 629 So.2d 1026 (Fla. 4th DCA 1993) (noting a genuine and material question of fact raised by the manual and other documents). BDO International distributed annual reports, introduced at trial and as part of the record here, advertising its “strict quality control” over member firms including BDO Seidman and the “stringent conditions with which each member firm has to comply to be part of the BDO network.”

The Banco Plaintiffs introduced evidence at trial which, viewed as required in the light most favorable to them, created a triable issue on the question of actual agency.

Conclusion

Conflicting representations of an agency relationship present a question of fact that should be resolved by the trier of fact. Richard Swaebe, Inc. v. Sears World Trade, Inc., 529 So.2d 774, 775 (Fla. 3d DCA 1988). Considering the “totality of circumstances” and the “multiple relationships along with multiple practices and procedures” to be evaluated under Villazon, 843 So.2d at 853, we conclude that this record presented genuine and triable issues of material fact regarding the existence 1 (or non-existence) of an actual agency relationship between BDO International and BDO Seidman.

Reversed and remanded for further proceedings consistent with this opinion.

      . Apparent agency is not argued here.

      . Viewing the testimony of Mr. van Elten in the light most favorable to the Banco Plaintiffs, he also answered affirmatively to the question of whether "one of the member firms which BDO International oversees is BDO Seidman?” (emphasis added). "Oversight” is a very near cousin of "supervision.”

      . The MFA was also signed by six other BDO entities conducting accounting and consulting activities from BDO Seidman’s New York City offices.

      . Actual ownership of the technical manuals and software appears to reside in the "Foundation,” an entity known as BDO Stichting, but the MFA makes it clear that BDO International has the right to control and authorize the use of those items.

      . BDO International cited various Florida cases in which acknowledgment and acceptance were found lacking. These cases did not involve a valid, signed contract between the alleged principal and its alleged agent. When a contract exists between the principal and agent, the pertinent inquiry is whether the allegedly-negligent conduct occurred within the scope of the contract. Viewing the evidence in the light most favorable to the Banco Plaintiffs, the Bankest audit by BDO Seidman was an audit falling within the scope of the MFA.


text:
    Joseph SEME, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1712.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.
    Rehearing Denied May 1, 2008.

      Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Joseph Seme appeals a circuit court order denying his motion for post-conviction relief. Seme was convicted in September 2000, and his conviction was affirmed on direct appeal in 2001. Seme v. State, 790 So.2d 1271 (Fla. 3d DCA 2001).

In 2003, Seme filed a timely post-conviction motion asserting three claims of ineffective assistance of his trial counsel. Seme was represented by post-conviction counsel in this endeavor, and the trial court conducted an evidentiary hearing on the issue on June 23, 2004. Seme’s trial counsel testified regarding his reasoning and actions on each of the three matters alleged by Seme to have constituted ineffective assistance.

On January 20, 2005, the trial court entered an eight-page order carefully analyzing, but ultimately denying, each of Seme’s three claims. However, the date in the final “done and ordered” portion of the order erroneously said “2004” rather than the correct year, 2005. The trial court entered a corrected order on February 11, 2005 “nunc pro tunc ” as of January 20, 2005. Only the date, the adjective “corrected” in the caption, and a footnote explaining the inadvertent error in dating the original order “2004” were changed; all of the substantive findings and conclusions in the original order were unchanged.

Seme appealed the orders to this Court, which summarily affirmed the trial court on April 6, 2005. Seme v. State, 901 So.2d 135 (Fla. 3d DCA 2005). In that case, Seme was represented here by the same attorney who had represented Seme in the evidentiary hearing on the post-conviction ineffective assistance claims in the trial court. The 2005 per curiam affir-mance stated that it was an appeal under Florida Rule of Appellate Procedure 9.141(b)(2) rather than 9.141(b)(3). A transcript of the June 23, 2004 evidentiary hearing was not provided by the circuit court clerk or by Seme for consideration as part of the 2005 appeal, and the parties did not file briefs.

Thereafter, Seme filed a pro se petition for a belated appeal, docketed here as Case No. 3D06-949 on April 20, 2006. This Court granted the belated appeal the following month. Seme v. State, 934 So.2d 468 (Fla. 3d DCA 2006). Seme then filed his belated notice (docketed as this appeal, Case No. 3D06-1712) and the clerk transmitted a copy of the transcript of the 2004 evidentiary hearing. The parties have fully briefed the issues, and the Public Defender was appointed to represent Seme in responding to the issues raised by the State in its answer brief.

This extended procedural history is necessary to address the State’s argument that Seme’s present appeal is procedurally barred because the lower court orders were already affirmed by this Court in 2005. Seme is correct that the 2005 case did not bar this belated appeal. The transcript of the evidentiary hearing was not transmitted by the clerk of the lower court as required by Rule 9.141(b)(3), and the parties did not brief the merits. Accordingly, the State’s “procedural bar” argument is not well taken.

Upon consideration of the transcript, briefs, and merits of this belated appeal from the corrected order denying Seme’s post-conviction motion, however, we affirm the trial court’s conclusions in all respects. The trial court’s findings of fact are supported by substantial competent evidence, and Seme did not demonstrate that his trial counsel’s performance was deficient in any way.

Affirmed.

      . Although Seme's counsel takes the position that the corrected order was not appealed in 2005, the notice of appeal filed in that case attached a copy of both the original and corrected orders.

      . Rule 9.141(b)(2) relates to appeals from orders summarily granting or denying post-conviction relief without an evidentiary hearing, while 9.141(b)(3) provides a procedure for orders entered after an evidentiary hearing on the post-conviction motion.

      .Seme's counsel moved for rehearing and for withdrawal of the mandate to permit the transcript to be prepared and filed, but those motions were denied.

      . Seme filed his initial brief pro se.

      . This Court denied without prejudice the State’s motion to dismiss this appeal so that the parties could address the issue in their briefs.