author: RAMIREZ, J.

text:
    AMERICAN EXPRESS INSURANCE SERVICES EUROPE LIMITED, Appellant, v. Johanna DUVALL, Helen Duvall, and Vincent Sansalone, Appellees.
    No. 3D07-1194.
    District Court of Appeal of Florida, Third District.
    Jan. 16, 2008.

      Mase & Lara, Miami and Joel V. Lumer; Kahan Shir and Paul E. Heimberg, Boca Raton, for appellant.
    Roy D. Wasson and Annabel C. Majew-ski, Miami; Brett Weinberg, Coral Gables, for appellees.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

American Express Insurance Services Europe Limited (“AEISEL”) appeals the denial of its motion to dismiss based upon waiver of jurisdiction and/or Florida’s long arm statute. We reverse because we conclude that AEISEL is not subject to personal jurisdiction in Florida for claims that arose in Florida, based on an insurance policy issued in the United Kingdom, and AEISEL did not waive its objection to personal jurisdiction.

I. Factual Background

AEISEL acts as intermediary between insurance companies and retail customers for the sale and purchase of traveler’s insurance policies. The decedent Johanna Duvall was one of those retail customers. She purchased a policy in the United Kingdom effective from May 27, 2004 to May 26, 2005. In the policy section titled “Policy Information,” under the subheading “[t]he insurers,” Viator agreed to “provide the insurance benefits and AXA Assistance (UK) Ltd. the services described in the Policy booklet during the period of insurance.” The insurance policy was “effected in England and governed by the laws of England and Wales.” The insurance policy automatically renewed each year.

Duvall subsequently suffered a stroke in Florida and requested the benefits due under the policy. On her return commercial flight from Florida to Great Britain, Duvall suffered severe permanent injuries for which she sued numerous defendants, including counts for breach of contract and negligent entrustment against AEISEL. The complaint alleged that AEISEL conducted business worldwide, and more specifically in Miami-Dade County, Florida.

The plaintiff served process on American Express Company. Attorney Debra M. Cohen filed a motion to dismiss American Express, explaining that the service had been effected on the wrong party. Meanwhile, plaintiffs counsel sent notices of depositions of two employees of defendant AXA Assistance USA: Hector Ojeda and Rodolfo Medina. AEISEL was served with process on May 15, 2006. The next day, the circuit court signed an agreed order dismissing American Express. The depositions took place on May 23, 2006, with various defendants attending via telephone. Attorney Cohen, who had represented American Express, attended in person, on behalf of AEISEL. On June 6, she filed a motion to dismiss attacking personal jurisdiction over AEISEL.

II. Jurisdiction

In support of its motion to dismiss, AEISEL filed the affidavit of its general manager, Graham P. Setterfield. Setter-field testified that AEISEL is a United Kingdom corporation with its principal offices located in London. It does not issue or underwrite insurance policies, and it functions as a regulated insurance intermediary or insurance agent of the insurer. Setterfield further testified that AEISEL is not registered in Florida as a foreign corporation or foreign insurer qualified to transact business in Florida; has not transacted business in Florida; has never had any directors, officers, employees, or agents in Florida; has not maintained any offices in Florida; does not own, lease, manage, or otherwise have any interest in real property in Florida; does not sell, consign or lease tangible or intangible personal property, directly or indirectly, in Florida; has never had any bank accounts in Florida; has not had any monies sent to it in Florida; has not received mail in Florida; does not market itself or its services directly or indirectly in Florida; and it has not received any pecuniary benefits from or in Florida.

In opposition to AEISEL’s motion to dismiss, Duvall introduced the affidavit of attorney Brett A. Weinberg. Weinberg testified that AEISEL maintains a web page on the internet, showing that it is owned by American Express Company, the former defendant.

The standard of review is de novo whenever a case, such as this, arises from the trial court’s decision on a motion to dismiss for lack of personal jurisdiction. Wendt v. Horowitz, 822 So.2d 1252, 1256-57 (Fla.2002); Enic, PLC v. F.F. S. & Co., 870 So.2d 888, 889 (Fla. 5th DCA 2004).

We conclude that the trial court did not have personal jurisdiction over AEIS-EL. In determining whether long-arm jurisdiction is appropriate in a given case involves a two-step inquiry. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). If the requirements of the first prong are met, the next inquiry is whether sufficient “minimum contacts” are demonstrated. Id.

Duvall attempts to satisfy the first prong through section 48.193(l)(d), Florida Statutes (2006), which provides, in relevant part, as follows:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(d) Contracting to insure any person, property, or risk located within this state at the time of contracting.

There is nothing in the record of this case to intimate that the insurance contract was entered into anywhere other than the United Kingdom. At the time that the contract of insurance was entered into, there was no person, property or risk located within the State of Florida.

Failing the first prong, we need not reach the second. But as to minimum contacts, Duvall’s argument is even weaker. There are insufficient contacts here to permit the trial court to exercise personal jurisdiction over AEISEL under the well-established principles that govern personal jurisdiction over non-residents as enunciated in Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984). The test is whether “the defendant’s conduct and connection with the forum are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

The evidence establishes that AEISEL only acts as an agent for retail customers within the United Kingdom. Certainly some of these customers may turn up in Florida, but also in France, Germany and Spain. A company like AEISEL that services customers within the United Kingdom acting as an insurance agent for policies that specifically provide that they are subject to “the laws of England and Wales” cannot reasonably anticipate being haled into court anywhere in the world where its customers may travel.

Duvall relies upon Dollar Systems, Inc. v. Elvia, 863 So.2d 378 (Fla. 4th DCA 2003), where Elvia, a Swiss company with its main office in Germany, sold travel insurance through a German tour operator, C.A. Ferntouristik (“CAF”), which- in turn marketed tour packages to German citizens traveling in the United States. CAF contracted with Dollar for Dollar to provide rental cars in Florida to the tourists. Id. at 379. Through CAF, Elvia provided excess liability insurance over the insurance provided by Dollar. Id.

After some of the tourists were involved in accidents in Florida while driving Dollar vehicles, Dollar sued Elvia seeking declaratory relief as to the priority of coverage. Id. Elvia argued that it was not subject to personal jurisdiction under section 48.193(l)(d) because, when it entered into this contract with CAF in Germany, there was no “risk located within this state at the time of contracting.” Id. The court reasoned, however, that Elvia’s contract with CAF was merely a contract to provide insurance in the future. Id. The contract to insure contemplated by the statute was the insurance coverage which did not become effective until the insured rented the car. Id. The premium charged was a specific amount per car per day. Id. When that coverage became effective, Elvia knew that the car was being rented in Florida. Id.

In contrast, there is no indication that AEISEL knew that Duvall, a British national, was traveling to Florida or that its customers were regularly finding themselves within this state more than any other popular tourist destination. The choice-of-law provision in the policy can be viewed as indicating the intent of the parties to submit any future litigation to the courts of England or Wales.

Likewise, in Glovegold Shipping Ltd. v. Sveriges Angfartygs Assurans Forening, 791 So.2d 4 (Flá. 1st DCA 2000), a foreign insurer had insured a foreign vessel which the insurer knew would be sailing in Florida waters. Following an accident off the coast of Jacksonville, the insured brought suit against the insurer in Florida. Id. at 8. The First District Court concluded that the foreign insurer had contracted to insure a risk located in Florida under section 48.193(l)(d). Id. at 11. Our case differs in that there is no evidence that Duvall was located in Florida when she was issued the insurance policy.

Duvall relies upon AEISEL’s maintenance of a web page on the internet wherein it holds itself to be and owned by American Express Company. This fact does not confer in personam jurisdiction to the courts in Florida. As the Fifth District stated in Westwind Limousine, Inc. v. Shorter, 932 So.2d 571, 574 n. 7 (Fla. 5th DCA 2006), “merely posting] a passive website” does not constitute the solicitation of business in this state, or the transaction of business in this state for purposes of a due process jurisdictional analysis.

Similarly, the fact that Florida courts have jurisdiction over American Express Company does not confer jurisdiction over its subsidiary, AEISEL. To support some alter-ego theory of liability, Duvall would have to allege that the corporations were formed or used for some illegal, fraudulent, or other unjust purpose. See McFadden Ford, Inc. v. Mancuso, 766 So.2d 241, 243 (Fla. 4th DCA 2000). “[Ojwnership of a subsidiary corporation by an out-of-state parent corporation, without more, does not support a finding that long-arm jurisdiction exists.” Extendicare, Inc. v. Estate of McGillen, 957 So.2d 58, 64 (Fla. 5th DCA 2007). The corollary is also true — jurisdiction over a parent company does not, .without more, confer jurisdiction over the subsidiary. “A parent corporation and its wholly — owned subsidiary are separate and distinct legal entities.” Am. Int’l Group, Inc. v. Cornerstone, Businesses, Inc., 872 So.2d 333, 336 (Fla. 2d DCA 2004); Molenda v. Hoechst Celanese Corp., 60 F.Supp.2d 1294, 1300 (S.D.Fla.1999) (stating that subsidiary corporations are generally independent entities, and that a corporate veil will be pierced only in certain circumstances).

III. Waiver

A more difficult issue is whether AEIS-EL waived its jurisdictional objection by participating in the depositions of Medina and Ojeda. During Medina’s deposition, AEISEL objected several times, and it asked at least one question. During Oje-da’s deposition, AEISEL requested a stipulation that one defense attorney’s objections apply for all of the defendants. AEISEL objected approximately nineteen times, and its counsel was the only defense attorney who questioned Ojeda during cross-examination. Some of the questions involved the nature and quality of the transportation services AXA Assistance provided Duvall and Duvall’s family.

At the motion to dismiss, AEISEL argued that its counsel only attended the depositions and questioned the witness as a defensive measure, in case the witness became unavailable for trial. AEISEL further argued that the questions were, only for clarification purposes, did not relate to the merits of the ease, related to fact questions already asked, and did not relate to the issue of jurisdiction. When questioned on the issue of waiver, counsel for AEISEL argued that she did not have to stipulate to a limited appearance or to object to jurisdiction prior to the depositions. AEISEL argued that, at the time the depositions took place, it did not know what defenses it was going to raise.

In her amended affidavit, AEISEL’s defense attorney Debra M. Cohen testified that she was compelled to attend the depositions in light of statements by Duvall’s counsel that he intended to use Ojeda’s videotaped deposition at trial if Ojeda could not be produced for trial; Ojeda’s statements that he intended to leave the United States; and the statement by counsel for AXA Assistance that his client could only agree to produce Ojeda for trial if he remained an AXA Assistance employee.

Cohen further testified before the trial court at the hearing on the motion to dismiss. She again reiterated that she decided to ask questions of Ojeda during cross-examination for clarification purposes; she did not ask for affirmative relief; and that she merely defended a factual deposition.

Although the better practice would have been for Cohen to announce its objection to jurisdiction at the start of the depositions, we conclude that under the facts of this case, AEISEL did not waive its objections to personal jurisdiction. We recently stated that a party that seeks “true affirmative relief before moving to dismiss on the basis of lack of personal jurisdiction,” or who fails “to challenge personal jurisdiction at the earliest opportunity” can be deemed to have waived the issue. Marcos v. Haecker, 915 So.2d 703, 705 (Fla. 3d DCA 2005). We do not see how a party can challenge personal jurisdiction at a deposition. Thus, the only issue is whether AEISEL’s attendance and limited participation at the two depositions can be deemed to have been seeking true affirmative relief. We do not believe that attending and participating, to a limited extent at two depositions that were scheduled by Duvall before AEISEL was required to respond to Duvall’s complaint constitutes affirmative relief.

There are various types of conduct that constitute a waiver of the defense of lack of personal jurisdiction, such as “seeking affirmative relief ... [that] is inconsistent with an initial defense of lack of personal jurisdiction” or “filing of permissive counter-claims and cross-claims, or requests that a court take jurisdiction of a proceeding.” See Alvarado v. Cisneros, 919 So.2d 585, 587-88 (Fla. 3d DCA 2006). In this case, AEISEL raised the issue at its first responsive pleading, a motion to dismiss for lack of personal jurisdiction. It did not file a counterclaim or cross-claim and did not request that the trial court take jurisdiction over the proceeding. Cohen testified that her actions at the depositions were purely defensive in nature. If a party does not seek affirmative relief and, instead, it defends a lawsuit, the party does not waive the defense of lack of personal jurisdiction. Id. at 588. Our situation is analogous to the Motion for Enlargement of Time filed in Barrios v. Sunshine State Bank, 456 So.2d 590, 591 (Fla. 3d DCA 1984), where we held that the motion did not constitute a general appearance and hence a waiver of the defense of lack of personal jurisdiction.

Florida Rule of Civil Procedure 1.140(h)(1) specifically allows the defense of lack of jurisdiction over the person to be presented in a responsive pleading. Rule 1.140(h)(1) states: “(1) A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).” It is undisputed that AEIS-EL disputed the court’s jurisdiction in its first responsive pleading.

III. Conclusion

In sum, the trial court’s finding that jurisdiction over AEISEL could be based upon section 48.193(l)(d) for an insured risk in this state is simply unsupported. Additionally, there are insufficient contacts between AEISEL and Florida to permit a court of this state to assume personal jurisdiction. To hold otherwise would be contrary to due process requirements. See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, '62 L.Ed.2d 490 (1980); Int’l Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Furthermore, the evidence does not show that AEISEL’s appearance at the depositions constituted a waivér' of the defense of lack of personal jurisdiction. We therefore reverse the trial court’s denial of AEISEL’s motion to dismiss.

Reversed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David HULBERT and Marion Bailey, Appellants, v. Sharon VOGT, Re/Max Horizons Realty, Wells Fargo Mortgage Corporation, Wells Fargo Insurance, Inc., New Horizon Financial Corp. d/b/a New Horizon Financial, Thomas R. Keeven Appraisals, Grant Hobart, CLU, and State Farm Florida Insurance Company, Appellees.
    No. 1D07-1406.
    District Court of Appeal of Florida, , First District.
    Jan. 18, 2008.
    Keith W. Weidner of Taylor, Warren, & Weidner, P.A., Pensacola, for Appellants.

      R. Scott Traweek, Phillip S. Howell, and Thomas L. Robinson, of Galloway, Johnson, Tompkins, Burr, and Smith, P.L.C., Pensacola, for Appellees.
   PER CURIAM.

Because the trial court erred in determining, on summary judgment, that the actions of Appellees were not the proximate cause of Appellants’ damages, we reverse and remand this case for further proceedings. See, e.g., Fla. Power & Light Co. v. Periera, 705 So.2d 1359, 1361 (Fla.1998) (“Foreseeability, as it relates to the proximate cause, generally is a question of fact left for the fact-finder.”); McCain v. Fla. Power Corp., 593 So.2d 500, 504 (Fla.1992) (“Unlike in the ‘duty’ context, the question of foreseeability as it relates to proximate causation generally must be left to the fact-finder to resolve. Thus, where reasonable persons could differ as to whether the facts establish proximate causation — i.e., whether the specific injury was genuinely foreseeable or merely an improbable freak — then the resolution of the issue must be left to the fact-finder. The judge is free to take this matter from the fact-finder only where the facts are unequivocal, such as where the evidence supports no more than a single reasonable inference.” (citations omitted)). Similarly, the question of intervening cause is also generally left for the jury. See, e.g., Gibson v. Avis Rent-A-Car Sys., Inc., 386 So.2d 520, 522 (FIa.1980) (“If an intervening cause is foreseeable the original negligent actor may still be held liable. The question of whether an intervening cause is foreseeable is for the trier of fact.”).

REVERSED AND REMANDED.

BROWNING, C.J., KAHN and ROBERTS, JJ., concur.


text:
    STATE FARM FLORIDA INSURANCE COMPANY, Appellant, v. Joe J. KING and Sandra E. King, Appellees.
    No. 1D07-3205.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2008.
    Elizabeth K. Russo, of Russo Appellate Firm, P.A., Miami; Daniell, Upton, Perry & Morris, Daphne, Alabama, for Appellant.
    James F. McKenzie, of McKenzie, Taylor & Zarzaur, Pensacola, for Appellees.
   PER CURIAM.

REVERSED and REMANDED. See Fla. Farm Bureau Cas. Ins. Co. v. Cox, 967 So.2d 815 (Fla.2007).

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    Bettye PITTMAN, Appellant, v. PALM BEACH COUNTY SCHOOL DISTRICT and F.A. Richard & Associates, Appellees.
    No. 1D07-0117.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2008.

      Randall T. Porcher of Gonzalez, Porch-er, Garcia, Albear & Roca, Lake Worth; Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
    Jerry K. McKim and Kurt A. Wyland of Walton, Lantaff, Shroeder & Carson, L.L.P., West Palm Beach, for Appellees.
   PER CURIAM.

AFFIRMED. See Lundy v. Four Seasons, 932 So.2d 506 (Fla. 1st DCA 2006), revieio denied, 939 So.2d 93 (Fla.2006); Murray v. Mariners Health/ACE USA 946 So.2d 38 (Fla. 1st DCA 2006); review granted., No. SC07-244, 969 So.2d 1014, 2007 WL 3342762 (Fla. Oct. 30, 2007).

DAVIS, LEWIS, and ROBERTS, JJ., concur.


text:
    Nelis PENA, Petitioner, v. TAMPA MAID FOODS, INC. and Liberty Mutual Insurance Company, Respondents.
    No. 1D07-4535.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2008.
    Harold E. Barker, Lakeland, for Petitioner.
    Charles E. Bentley of Boswell & Dunlap, LLP, Bartow, for Respondents.
   PER CURIAM.

Because respondents correctly and commendably concede error, the petition for writ of certiorari is GRANTED, and the order of the judge of compensation claims is quashed. The JCC shall authorize claimant to undergo a psychiatric examination by an independent medical examiner at the employer/carrier’s expense.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Steven B. GUIDRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-5768.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2008.
    Jack Behr, Public Defender, and James W. Tongue, Assistant Public Defender, Shalimar, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, we are constrained to dismiss this appeal for lack of jurisdiction. Although the trial court entered an order purporting to grant appellant leave to pursue a belated appeal,, jurisdiction to entertain a request for belated appeal lies with the appropriate appellate court, rather than the trial court. See Bailey v. State, 845 So.2d 259 (Fla. 2d DCA 2003); Fla. R.App. P. 9.141(c)(2). Our dismissal of this appeal is without prejudice to appellant’s right to seek a belated appeal by filing a proper petition with this court in accordance with Florida Rule of Appellate Procedure 9.141(c).

APPEAL DISMISSED.

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


author: STEVENSON, J.

text:
    WEDGEWOOD HOLDINGS, INC., a Florida corporation, Appellant, v. Alvin WILPON, an individual, and Evelyn Wilpon, an individual, Appellees.
    No. 4D07-1731.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.

      Robert A. Stok of Stok & Associates, P.A., Aventura, for appellant.
    Lawrence Bunin of Lawrence Bunin, P.A., Plantation, for appellees.
   STEVENSON, J.

Wedgewood Holdings, Inc. (“Wedge-wood”) was the plaintiff and Alvin and Evelyn Wilpon were the defendants in this breach of contract and fraud in the inducement action arising out of a commercial real estate transaction. The trial court referred the case to non-binding arbitration and, in its notice of court-ordered arbitration, directed the arbitrator to determine the amount of costs to be awarded, if any. The arbitrator’s decision named the Wilpons as prevailing parties, but was silent as to costs. The parties accepted the decision of the arbitrator, and the trial court entered final judgment in favor of the Wilpons. Wedgewood appeals the trial court’s order finding that the Wilpons were entitled to costs and attorney’s fees, and its subsequent order awarding those costs and attorney’s fees. Having carefully considered the arguments raised in the appellate briefs, we find that we have jurisdiction. We reverse the award of costs because the trial court relinquished its authority to award costs under the terms of its notice of court-ordered arbitration and the Wilpons failed to timely seek correction of the arbitrator’s failure to include costs before the arbitrator’s decision became final. We reverse the trial court’s award of attorney’s fees and remand for a new evidentiary hearing to determine the amount of the Wilpons’ attorney’s fees because the amount of those fees was determined at an ex parte hearing that Wedgewood did not attend due to inadequate notice.

The trial court referred this case to nonbinding arbitration. Paragraph 15 of the notice of court-ordered arbitration states that “[t]he arbitrator(s)’ decision shall also indicate if a party is required to pay the costs of the suit and the amount of the costs to be awarded.” The arbitrator issued a written decision in which it determined that the Wilpons were the prevailing parties. Notwithstanding the trial court’s referral of the costs issue, the arbitrator’s decision made no mention of costs. Neither party requested modification or correction of the arbitrator’s decision, or a trial de novo.

Approximately 45 days after the arbitrator’s decision was filed, the Wilpons moved for entry of final judgment in their favor. In paragraph 5 of said motion, the Wilpons stated:

At the conclusion of the arbitration proceeding, the- parties agreed to defer the issue of attorney’s fees until after the arbitrator rendered his decision; and, therefore, pursuant to the contract sued upon, Defendants have also served the attached Motion for Attorney’s Fees and Costs. (Emphasis added).

In its order on said motion, the trial court held that the twenty-day period in which to request a trial de novo had passed and that no motion or request for a trial de novo had been filed. See Fla. R. Civ. P. 1.820(h). Accordingly, the trial court entered final judgment in favor of the Wilpons in accordance with the arbitrator’s decision. In that same order, the trial court “reserved jurisdiction” to award attorney’s fees and costs against Wedge-wood. Following an ex parte evidentiary hearing on attorney’s fees and costs, the trial court issued a “final judgment against plaintiff and in favor of defendant awarding costs and attorney’s fees” in the total amount of $16,518.30. The judgment consists of $11,360.00 in attorney’s fees and $5,158.30 in costs. In response thereto, Wedgewood moved to vacate the costs and fees award and moved for a rehearing, arguing that it did not attend the hearing on the amounts because it had not received adequate notice. At the hearing on Wedgewood’s motions, the trial court made an oral finding that Wedgewood did not receive proper notice of the hearing and orally ruled that Wedgewood was entitled to a new hearing on the amount of the Wilpons’ attorney’s fees and costs. That ruling, however, was never memorialized in writing, the trial judge thereafter retired, and Wedgewood’s motion requesting a written order was mislabeled as a “motion for execution of the order on the hearing” and ultimately denied by a successor trial judge.

First, we hold that since the arbitrator’s decision was silent as to costs, a matter that the trial court had expressly referred to the arbitrator, the Wilpons are procedurally barred from recovering their costs because they did not seek timely modification or correction of the arbitration decision before it became final. Cf. Connell v. City of Plantation, 901 So.2d 317, 320 (Fla. 4th DCA 2005) (holding that a prevailing party in court-ordered arbitration is entitled to costs where the costs issue had not been previously submitted to the arbitrator by the trial court). “[A] party desiring changes to the arbitration award is required to seek timely modification or clarification from either the arbitrator, pursuant to section 682.10, or the court, pursuant to sections 682.13 or 682.14; otherwise, the award becomes ripe for confirmation.” A-l Duran Roofing, Inc. v. Select Contracting, Inc., 865 So.2d 601, 604 (Fla. 4th DCA 2004).

While we accept Wedgewood’s argument that the trial court referred the issue of costs to the arbitrator, we reject Wedgewood’s contention that the trial court’s directive encompassed the issue of attorney’s fees. Paragraph 15 of the notice of court-ordered arbitration, which requires the arbitrator to determine entitlement to “the costs of the suit,” does not expressly mention attorney’s fees and we find no basis upon which to infer that such “costs” include attorney’s fees. Attorney’s fees will not be regarded as “costs” unless they are specifically designated as such in a statute, by agreement or by contract. Fla. Patient’s Comp. Fund v. Moxley, 557 So.2d 863 (Fla.1990); Dorner v. Red Top Cab & Baggage Co., 160 Fla. 882, 37 So.2d 160, 161 (1948); see also Price v. Tyler, 890 So.2d 246, 251 (Fla.2004) (holding that section 57.041, Florida Statutes, which entitles a prevailing party in a civil action to costs, does not encompass attorney’s fees). We conclude that the most reasonable interpretation of the trial court’s referral order is that it did not include attorney’s fees in the term “costs.”

Wedgewood further argues that paragraph 15 should be read to incorporate paragraph 18 of the referral order and that paragraph 18 defines “costs” to include attorney’s fees. We disagree. Paragraph 18 applies only where a party has requested a trial de novo and states that “[i]f the judgment from the trial de novo is not more favorable than the arbitration decision, the party having filed for the trial de novo may be assessed the arbitration costs; additional court costs; and other additional reasonable costs of the other parties, including attorneys’ fees.... ” We find Wedgewood’s argument unpersuasive. First, paragraph 18 expressly applies only where a party has requested a trial de novo. Second, in that context, attorney’s fees are authorized by statute. See § 44.103, Fla. Stat. (2006).

Based upon the foregoing, we reverse the trial court’s order denying Wedgewood’s motion to vacate the trial court’s final judgment awarding costs and attorney’s fees. With regard to the attorney’s fees, we hold that the trial court retained the authority to award attorney’s fees to the prevailing party in the arbitration and that the recovery of attorney’s fees is authorized by section XIX of the parties’ real estate contract. In light of the trial court’s finding that Wedgewood did not receive adequate notice of the evi-dentiary hearing on the amount to be awarded, we reverse the order awarding attorney’s fees and remand for a new hearing limited to the amount of attorney’s fees to be awarded to the Wilpons. With regard to costs, we reverse the trial court’s order reserving jurisdiction to award costs as well as its order awarding costs, based upon our holding that the Wilpons are procedurally barred from obtaining an award of costs from the trial court.

Affirmed in part; Reversed in part; Remanded for further proceedings in accordance with this opinion.

STONE, J., and TRAWICK, DARYL EVAN, Associate Judge, concur.

      . The Wilpons argued below that the parties mutually agreed to defer the costs issue until after the arbitrator’s decision became final. We find this claim, which is contested by Wedgewood, to be unsupported by the record. In paragraph 5 of their written motion to the trial court for entry of final judgment, supra, the Wilpons represented only that the parties agreed to defer the issue of "attorney’s fees.” Their motion made no mention of an agreement by the parties to defer the issue of costs, and they submit no evidence of such an agreement.


author: ROTHENBERG, Judge.

text:
    Timothy NEALS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2076.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.

      Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lane Hodes, Assistant Attorney General, for appellee.
    Before COPE, RAMIREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

Timothy Neals (“Neals”) appeals his convictions for burglary of an occupied conveyance and petit theft, arguing that the trial court reversibly erred by precluding counsel from introducing evidence during the cross-examination of the lead detective that after Neals’ arrest there was “a rash” of robberies on the other side of Homestead. We find no error, and affirm.

During trial, Neals’ counsel attempted to elicit from Detective Barker on cross-examination that after Neals was arrested, there was “a rash” of robberies on the other side of Homestead, allegedly committed by an African-American male in his thirties. Neals is an African-American male in his thirties. After conducting a hearing outside the presence of the jury, the trial court sustained the State’s objection. Neals argues that the trial court reversibly erred in sustaining the State’s objection. We disagree as: (1) defense counsel failed to provide a sufficient proffer to establish relevancy; (2) the evidence did not qualify as reverse Williams rule evidence; (3) the evidence was inadmissible hearsay; and (4) the questions counsel sought to ask were outside the scope of the direct examination of the witness.

Neals’ counsel was unable to establish that the evidence of other “robberies” committed on the other side of Homestead was relevant as to whether Neals committed the charged burglary. When asked by the trial court if he could provide any other information or details regarding these other incidents, other than that they were allegedly committed by an African-American male in his thirties, Neals’ counsel was unable to do so. Based upon Neals’ counsel’s inability to proffer sufficient evidence to establish relevancy of the evidence Neals sought to introduce, we find that the trial court did not abuse its discretion in precluding the admission of the evidence. See Moore v. State, 701 So.2d 545, 549 (Fla.1997) (holding that on review by an appellate court, a trial court’s limitation of cross-examination is subject to an abuse of discretion standard); see also § 90.104(l)(b), Fla. Stat. (2006) (holding that to preserve the preclusion of evidence for appellate review, counsel must make an offer of proof of how the witness would have responded if allowed to answer the question); Morrison v. State, 818 So.2d 432, 448 n. 8 (Fla.2002) (holding that when a trial court excludes testimony due to an objection, the proponent of the excluded testimony must make a formal proffer to preserve any rights on appeal); Lucas v. State, 568 So.2d 18, 22 (Fla.1990) (same).

The failure of Neals’ counsel to make a sufficient proffer is not, however, as problematic as the fact that the evidence Neals sought to introduce, as the trial court aptly noted, was not relevant. For other crimes to be relevant as evidence that the defendant did not commit the charged offense(s) (reverse Williams rule evidence), a close similarity of the facts is required. State v. Savino, 567 So.2d 892, 893-94 (Fla.1990) (stating that reverse Williams rule evidence may be introduced for exculpatory purposes if relevant, and for the evidence to be relevant, a close similarity of facts, a unique or “fingerprint” type of evidence, is required); see also Gore v. State, 784 So.2d 418, 431 (Fla.2001); Rivera v. State, 561 So.2d 536, 539 (Fla.1990). The only alleged similarities between the crimes Neals was charged with committing and the crimes committed after he was arrested and while he was in custody, were that the crimes were committed in Homestead (albeit on differing ends of the city) by an African-American male in his thirties. Not only was counsel unable to provide any specific information as to the circumstances surrounding the commission of these other crimes, or as to the individual(s) who allegedly committed these offenses, Neals’ counsel admitted that the modus operendi of these other crimes differed from the offenses Neals was charged with committing. Thus, by counsel’s own admission, the evidence he sought to introduce did not qualify as reverse Williams rule evidence and was properly excluded by the trial court.

The evidence Neals’ counsel sought to introduce was also inadmissible hearsay and was outside the scope of the direct examination of the witness. See Crump v. State, 622 So.2d 963, 969 (Fla.1993) (holding that the substance of witness interviews was inadmissible hearsay and did not constitute reverse Williams rule evidence because it would not have been admissible if the suspect of the uncharged crime had been on trial for that offense); Lambrix v. State, 494 So.2d 1143, 1147-48 (Fla.1986) (finding that the trial court properly denied cross-examination where appellant sought to inquire about issues not raised on direct examination and was attempting to use cross-examination as a vehicle for presenting defensive evidence).

Affirmed.

      . Williams v. State, 110 So.2d 654 (Fla. 1959).


text:
    Adolfo RODRIGUEZ, Appellant, v. Roberto J. LAGOMASINO, Appellee.
    No. 3D06-1956.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.
    Robbins & Reynolds and Robert A. Robbins, Miami, for appellant.
    Bernstein, Chackman & Liss and Neil Rose, Hollywood, for appellee.
    Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Plaintiff Adolfo Rodriguez appeals a judgment entered on a defense verdict in an automobile accident case. The plaintiff maintains that the trial court erred by failing to strike two jurors for cause. We agree that both jurors should have been stricken for cause and reverse for a new trial.

The plaintiff was involved in two auto accidents. The first was a minor car accident on May 1, 1999. The plaintiff saw a doctor for treatment two days later for complaints of neck and back pain. After leaving that appointment, the plaintiff was struck by a vehicle driven by defendant. As a result of this second accident, the plaintiff received treatment from paramedics and was transported to Hialeah Hospital, where he was treated in the emergency room, underwent a series of x-rays, and was given a CT scan. He received further treatment subsequently. The plaintiff filed his lawsuit against the defendant for injuries sustained in this second accident.

During voir dire, prospective juror Mr. Gutierrez advised that his wife had been involved in an accident where she rear-ended a vehicle and although her car had no damage and “she just touched” the other vehicle, the other driver filed a claim against them. Defense counsel asked:

[Defense counsel]: Is that experience going to affect you in any way in this kind of case or not?
Mr. Gutierrez: In that accident I feel a little bad because the insurance that we have just sent me a letter and let me know that they’re going to raise my insurance up to the double, I think.
[Defense counsel]: Oh, is that right?
Mr. Gutierrez: And I called in and I tell them that that claim is fraud because nothing happened at all.
[Defense counsel]: Right.
Mr. Gutierrez: We know that, but we can’t do anything about it.
[Defense counsel]: Okay.
Mr. Gutierrez: That’s what the answer they give me. Okay. I canceled my insurance.
[Defense counsel]: Well, you’re going to hear testimony about how an accident occurred in here and then what they’re claiming and what the injuries that they’re claiming are. Would you be able to put aside what happened in your wife’s situation and listen to the testimony here in this case, can you do this?
Mr. Gutierrez: I still feel a little bad about that car insurance company, but I don’t know. The problem is with the insurance company.
[Defense counsel]: I understand that your problem is with the insurance company.
Mr. Gutierrez: Yeah. What happened with my—
[Defense counsel]: You’re not going to hear anything in this case about insurance companies. So I just want to know when we start, are you going to be — before we even start, are you going to be favoring the Plaintiff, or are you going to be favoring the Defendant, or are you going to be right down the middle before we even start?
Mr. Gutierrez: I’m going to be in the middle.

Another juror, Mr. Hillberry, in discussing caps on damages expressed the following during voir dire:

[Plaintiffs counsel]: Let me just ask another question of the panel.... How many people here believe in caps, that there should be caps on damages?
Mr. Hillberry: (Indicating)
[Plaintiffs counsel]: And Mr. Hillberry, tell what your feelings are in that regard?
Mr. Hillberry: Well, I believe that there should be caps on damages because there has been — we live in a litigious society where there have been a lot of frivolous lawsuits that cost millions of dollars to corporations and individuals, and basically that would be attributed to a rise in our cost of living. As a person such as myself, I have to pay higher insurance rates for fraud and, you know, things like that.
[Plaintiffs counsel]: Sir, let me just ask you this: Given your strong thoughts about this, do you think that that— those feelings could come into play in this particular case? I mean, you’re going to go back to the jury room. You know that you’re going to think these same beliefs that you’ve just expressed. Do you think that they could influence what you do in this particular case, honestly?
Mr. Hillberry: Well, of course, honestly it would because that’s part of my make up. It all depends on the evidence presented.
[Plaintiff’s counsel]: All right. But if you think it’s marginal case, that’s your view, you would tend to think that it falls into that category that, you know, this is why insurance rates are going up and so forth and so on, and that would influence your decision?
Mr. Hillberry: I don’t have enough information about the case to understand whether or not my decision would be influenced. However, when you mentioned previously that we’re not looking at a sizeable sum of money or whatever, I don’t know that that would affect me.
[Plaintiffs counsel]: Okay. Well, that’s my concern—
Mr. Hillberry: Yes.
[Plaintiffs counsel]: — for my client. I mean, you know, ... if you were representing a client, you would want to have somebody on a jury who would be fair and open minded and not think, well, gee, we’re going to go back there and say, “oh, my goodness, this is this type of case, that’s why my insurance rates are going up and so I’m not going to buy into this and I’m going to say no.” You wouldn’t — I wouldn’t want that mind set in the jury room.
[Plaintiffs counsel]: So do you think, having said all that, that if you’re selected as a juror, that these thoughts that you have would come into play in this particular case when you deliberate?
Mr. Hillberry: I doubt that they would.
[Plaintiffs counsel]: But they could?
Mr. Hillberry: I suppose so. It is a possibility.

The trial court denied plaintiffs challenges for cause as to both Mr. Gutierrez and Mr. Hillberry. Plaintiff used his last peremptory challenge to strike Mr. Gutierrez and then requested an additional peremptory challenge which was ultimately granted and plaintiff struck Mr. Hillberry. Plaintiff requested another peremptory challenge to strike Ms. Wilson who was a manager at Target. The trial court denied plaintiffs request and Ms. Wilson ultimately sat on the jury. Prior to the jury being sworn, plaintiff renewed his objection to the jury. Plaintiffs motion for new trial was denied because the trial court opined that based upon the responses given by Mr. Gutierrez and Mr. Hillberry they were rehabilitated and that the challenges for cause were not appropriate.

We respectfully disagree that these jurors were rehabilitated and believe that both jurors should have been stricken for cause. ‘When any reasonable doubt exists as to whether a juror possesses the state of mind necessary to render an impartial verdict based solely on the evidence submitted and the instructions on the law given to her by the court, she should be excused.” Nash v. Gen. Motors Corp., 734 So.2d 437, 440 (Fla. 3d DCA 1999). Here, Mr. Gutierrez had been sued as a result of a similar accident which caused his insurance rates to double. He clearly expressed his negative feelings about the claim made against him and his wife. Although he later stated, “I’m going to be in the middle,” that statement was insufficient to indicate unequivocally that he could set aside his feelings and be fair and impartial in this case. Id.

It was also error to fail to strike Mr. Hillberry for cause because he was not rehabilitated from his statement that his beliefs regarding damages would possibly-come into play during deliberations. Based upon his responses during voir dire, he remained equivocal about his impartiality. As a result of the court’s failure to strike either of these jurors for cause, plaintiff was forced to use peremptory challenges and then had to accept Ms. Wilson, an objectionable juror, because he had exhausted his peremptory challenges. This court has consistently held that “it is error for a court to force a party to exhaust his peremptory challenges on persons who should be excused for cause since it has the effect of abridging the right to exercise peremptory challenges.” Tizon v. Royal Caribbean Cruise Line, 645 So.2d 504, 506 (Fla. 3d DCA 1994); Diaz v. State, 608 So.2d 888, 890 (Fla. 3d DCA 1992); Jefferson v. State, 489 So.2d 211 (Fla. 3d DCA 1986); Anderson v. State, 463 So.2d 276 (Fla. 3d DCA 1984).

Because we reverse for a new trial on the juror issue, we need not address the remaining issue on appeal regarding damages.

Reversed and remanded for a new trial.


text:
    Luis GASPARINI and International Trading and Financial Corp., Appellants, v. Miguel Villar PORDOMINGO and Vitala, S.A., Appellees.
    No. 3D06-1913.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.

      Dirk Lorenzen; Elizabeth Fernandez Pinero, for appellants.
    Gustavo D. Lage, for appellees.
    Before GREEN, ROTHENBERG, and SALTER, JJ.
   PER CURIAM.

This is an appeal from an amended final judgment finding Luis Gasparini and International Trading and Financial Corporation “jointly and severably” hable for treble and compensatory damages under theories of unjust enrichment, civil theft and conversion. We affirm in part, reverse in part.

Appellee, Miguel Villar Pordomingo, wanted to sell a group of failing Wendy’s Restaurants located in the Dominican Republic. Carmen Perez offered to buy the restaurants. In recognition of the intent to purchase, Pordomingo transferred his shares in Vítala, S.A. (the entity under which he owned the restaurants) in escrow to Perez. The parties then began to seek financing for the purchase of the restaurants.

Perez and Pordomingo were introduced to Gasparini who is the President of International Trading. The parties reached an agreement whereby International Trading would arrange for the lease of a standby letter of credit for Perez which could then be used to obtain financing for the purchase of the restaurants. Perez’s assets and the assets of the Wendy’s restaurants were to be used to collateralize the letter of credit.

Pursuant to the agreement, Vítala, S.A., paid a $300,000 fee to International Trading for the procurement of the letter of credit. With payment received, International Trading began to undertake the steps necessary to complete the transaction. Through its investigation, International Trading found that Perez did not have the assets she represented on her audited financial statement, and that the restaurants were in a poor financial state. Accordingly, International Trading decided that it could not issue the letter of credit.

Pordomingo and Yitala, S.A., sued International Trading, Gasparini, and others for the return of the $300,000 that it paid to International Trading. Following a two-day bench trial, the court found International Trading and Gasparini jointly and severably liable for unjust enrichment, conversion, and civil theft. Gasparini and International Trading brought the instant appeal.

On appeal, Gasparini and International Trading claim that the trial court erred in finding: 1) Gasparini personally liable; and 2) that Pordomingo and Vitala, S.A. had legally cognizable claims for conversion and civil theft. We agree.

A general principle of corporate law is that a corporation is a separate legal entity, distinct from the persons comprising them. Am. States Ins. Co. v. Kelley, 446 So.2d 1085, 1086 (Fla. 4th DCA 1984). To “pierce the corporate veil” three factors must be proven:

(1) the shareholder dominated and controlled the corporation to such an extent that the corporation’s independent existence, was in fact non-existent and the shareholders were in fact alter egos of the corporation;
(2) the corporate form must have been used fraudulently or for an improper purpose; and
(3) the fraudulent or improper use of the corporate form caused injury to the claimant.

Seminole Boatyard, Inc. v. Christoph, 715 So.2d 987, 990 (Fla. 4th DCA 1998) (quoting In re Hillsborough Holdings Corp., 166 B.R. 461, 468 (Bankr.M.D.Fla.1994)).

In this case, none of these factors were alleged or proven. Moreover, the mere fact that Gasparini is a stockholder and officer of International Trading does not, without more, create personal liability. The law is clear that the mere ownership of a corporation by a few shareholders, or even one shareholder, is an insufficient reason to pierce the corporate veil. See Lipsig v. Ramlawi 760 So.2d 170, 187 (Fla. 3d DCA 2000). “[E]ven if a corporation is merely an alter ego of its dominant shareholder or shareholders, the corporate veil cannot be pierced so long as the corporation’s separate identity was lawfully maintained.” Id. Since the agreement in this case was made with International Trading, the trial court clearly erred in holding Gasparini liable for the damages in this case.

We also agree with the appellants that International Trading cannot be held hable for conversion or civil theft. It is well-established law in Florida that a simple debt which can be discharged by the payment of money cannot generally form the basis of a claim for conversion or civil theft. See, e.g., Fla. Desk, Inc. v. Mitchell Int’l, Inc., 817 So.2d 1059, 1060 (Fla. 5th DCA 2002); W.C.P.S. of Fla., Inc. v. Standard Brands of Am., 707 So.2d 416 (Fla. 4th DCA 1998); Rosen v. Marlin, 486 So.2d 623, 626 (Fla. 3d DCA 1986).

This is not to say that there can never be a claim for civil theft or conversion if there is a contractual relationship between the parties, but rather that the civil theft or conversion must go beyond, and be independent from, a failure to comply with the terms of a contract. See Ginsberg v. Lennar Fla. Holdings, Inc., 645 So.2d 490, 495 (Fla. 3d DCA 1994)(“[A] plaintiff may not circumvent the contractual relationship by bringing an action in tort.”). For money to be the object of conversion “there must be an obligation to keep intact or deliver the specific money in question, so that money can be identified.” Futch v. Head, 511 So.2d 314, 320 (Fla. 1st DCA 1987)(quoting Belford Trucking v. Zagar, 243 So.2d 646 (Fla. 4th DCA 1970)).

Here, the parties did not contemplate that International Trading would keep the $300,000 in a separate account, nor was International Trading obligated to hold the funds that it received from Vítala, S.A. in a trust or escrow account. Cf. Masvidal v. Ochoa, 505 So.2d 555 (Fla. 3d DCA 1987)(civil theft and conversion can be asserted where a party embezzles funds from an escrow account). At the time that International Trading received the funds, it had every right to do with them as it pleased. Accordingly, as a matter of law, there was no conversion.

Similarly, there is not a claim for civil theft. To establish a claim for civil theft, a party must prove that a conversion has taken place and that the accused party acted with criminal intent. See Gersh v. Cofman, 769 So.2d 407, 408 (Fla. 4th DCA 2000). Since we have found that there was no factual basis to support a claim for conversion, it stands to reason therefore, that there can be no cause of action for civil theft.

Based on the foregoing, we vacate that portion of the judgment which holds Gas-parini personally liable, and reverse the treble damage awards for civil theft and conversion. We affirm the judgment in all other respects.

      . In fact, the trial court specifically found that no fraud had occurred.


text:
    Claudychel LEYVA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1641.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.

      Rene A. Sotorrio, Coral Gables, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendant, Claudychel Leyva (“Ley-va”), appeals his convictions for the first degree murder and aggravated child abuse of his girlfriend’s two-year-old son, Marco Antonio Uti, Jr. (“Marco” or “the child”). As the evidence overwhelmingly supports the jury’s verdict, and we find Leyva’s arguments meritless, we affirm.

Leyva’s arguments revolve around three major premises: (1) the indictment did not adequately put the defendant and the jury on notice as to the State’s theory of prosecution; (2) the trial court erred in denying his motion to suppress his pre-trial statements; and (3) the trial court erred in denying his motions for mistrial.

FELONY MURDER

Leyva’s first argument branches off into several sub-arguments. He claims that because Count I of the indictment does not include the elements of aggravated child abuse, it provided insufficient notice to charge and for the jury to convict him of first degree felony murder. Based upon this premise, Leyva argues that the trial court erred in: (1) permitting the State to prosecute him for first degree felony murder; (2) denying his request to provide the jury with a special verdict form to reflect whether their verdict was based on premeditation or felony murder; and (3) denying his motion for judgment of acquittal because the evidence did not establish premeditation beyond a reasonable doubt. Because the premise upon which Leyva’s arguments rest is flawed, so too are his arguments which flow therefrom.

The indictment charged Leyva as follows:

[Count I: First Degree Murder]
[T]hat between the 6th day of May, 2000, and the 7th day of May, 2000 ... CLAUDYCHEL LEYVA did unlawfully and feloniously kill a human being, to wit: MARCO ANTONIO UTI, JR., from a premeditated design to effect the death of the person killed or any human being, or while engaged in the perpetration of, or in an attempt to perpetrate any aggravated child abuse, by beating the said MARCO ANTONIO UTI, JR., in violation of s. 782.04(l)(a) and s. 775.078, Florida Statutes_
[Count II: Aggravated Child Abuse] [T]hat between the 6th day of May 2000, and the 7th day of May, 2000 ... CLAUDYCHEL LEYVA did unlawfully, feloniously commit an aggravated battery upon and willfully torture and maliciously punish MARCO ANTONIO UTI, JR., a child of two (2) years of age, by beating and/or burning and/or biting MARCO ANTONIO UTI, JR., and during the commission of such felony, the defendant committed an aggravated battery, in violation of s. 827.03(1), Florida Statutes....

(Emphasis added).

Leyva’s claim of insufficient notice regarding the State’s intent to prosecute him for felony murder is incomprehensible in this case. First, the State simply could have charged Leyva with first-degree premeditated murder and, without charging him in the alternative with first-degree felony murder, have proceeded on a felony murder theory of prosecution at trial. That is because the State is not required to provide the defendant with its theory of prosecution as to first-degree murder in the indictment. See Williams v. State, 967 So.2d 735, 758 (Fla.2007) (“[T]he State need not charge felony murder in an indictment ... to prosecute a defendant under alternative theories of premeditated and felony murder when the indictment charges premeditated murder”) (quoting Kearse v. State, 662 So.2d 677, 682 (Fla. 1995)); Hannon v. State, 941 So.2d 1109 (Fla.2006); Mansfield v. State, 911 So.2d 1160 (Fla.2005); Parker v. State, 904 So.2d 870, 382-83 (Fla.2005).

Second, although the State was not required to disclose its theory of prosecution for first-degree murder in the indictment, it did so in this case. The State charged Leyva with first-degree murder by premeditation and/or felony murder and put Leyva on notice that its felony murder prosecution would be based upon the underlying felony of aggravated child abuse. Additionally, in Count II, the State told him that it intended to prove the aggravated child abuse by proving that he committed an aggravated battery upon and willfully tortured and maliciously punished this two-year-old child by beating and/or burning and/or biting him while committing an aggravated battery upon him. The State,' therefore, provided Ley-va with more information than it was required to provide, and clearly put him on notice as to the charges he was facing.

Third, the extent of this child’s injuries was undisputed at trial, as was the identity of the person who inflicted them. The following is a non-exhaustive summary of the child’s injuries. Approximately fifty percent of Marco’s body was burned from either hot liquids or a hot surface. The liquid burns were all over Marco’s body, and the hot surface burns were. found along his right arm, right knee, and along his inner thigh. His hair was burned off. There were blunt injuries to his head and face, with bruising around his eye, cheek, chin, neck, upper chest, and behind his left ear. There was a laceration in his scalp along his forehead and lacerations at the edge of his mouth and under his lip. The force of the head injuries dislodged Marco’s teeth from their sockets. His jaw was broken, seven ribs were fractured, and his backbone was fractured. There was ex-sanguinated bleeding to his upper chest, right breast muscle, and into his belly cavity. His liver was severed, his lungs and heart were bruised, and his heart was lacerated. His pancreas was torn in half. His diaphragm was bruised and contused and there was bleeding around his esophagus. His spleen reflected a two-and-one-half inch laceration. Marco’s skull was fractured in several locations, and his brain was torn. There were several lacerations, punctures, and linear abrasions on his penis. He had several human bite marks on his body.

Leyva’s claim of insufficient notice of the charges is incomprehensible because: (1) the indictment charges Leyva with first-degree felony murder and names the underlying felony as aggravated child abuse; (2) Count II explains that the aggravated child abuse is based upon the commission of an aggravated battery, willful torture, and malicious punishment of the child by beating, burning, and biting him; and (3) Leyva was aware of the nature and extent of Marco’s injuries and admitted to inflicting them.

We also reject Leyva’s argument that the trial court reversibly erred in denying his request for a special verdict form containing interrogatories to indicate which theory of first-degree murder the State had proven beyond a reasonable doubt, because the jury could have been confused as to what the State needed to prove to convict Leyva of felony murder with aggravated child abuse as the underlying felony. The jury was properly instructed as to the elements of aggravated child abuse; the jury rejected Leyva’s defense that the injuries were the result of his attempts to “revive an unresponsive child”; and the jury found Leyva guilty of aggravated child abuse. The evidence in this case was overwhelming that Marco died during the commission of, and as a result of, the aggravated child abuse.

THE MOTION TO SUPPRESS

Several officers responded to the house that Marco, Marco’s mother, and Leyva lived in after receiving a 911 call from Leyva, who reported that the child had wandered off and was missing. Marco’s mother was at work at the time. When a search of the apartment and the apartment building did not produce the child, the search expanded to the surrounding neighborhood and parked cars in the vicinity. Marco’s body was eventually found in a dumpster, covered by a garbage bag containing a partially burned sweater belonging to Leyva.

Leyva and Marco’s mother, who had been notified that her son was missing and had returned to the apartment, agreed to accompany the officers to the station to assist them with their investigation. Ley-va was placed in an unlocked interview room. He was not handcuffed nor restrained as he waited to speak to Detective Sanchez. When Detective Sanchez entered the interview room and told Leyva that Marco had been found, Leyva told Detective Sanchez that he had not been truthful with the police, and that although he had told them that Marco disappeared while he was sleeping, what really occurred was that he had gone for a walk and when he returned he discovered that Marco was missing. Detective Sanchez did not attempt to interview Leyva.

Later that morning when Officer Martinez entered the interview room, Leyva, who had fallen asleep, awoke and spontaneously stated, “If — ed up my life. I shouldn’t have done it.” He then asked to speak to a detective. Officer Martinez relayed this information to Detective Za-charias, who responded to the interview room. When he entered the room, Leyva stated, “[L]ook, I really f — ed up now. I realize that but I got scared.” Detective Zacharias gave Leyva his Miranda warnings, and Leyva stated that he understood them and he agreed to speak to the detective. Leyva then admitted that he had lied about the child’s disappearance because he did not know what to do; asked how many years he was going to get; and inquired whether he could post a bond. Leyva changed his story again and told Detective Zacharias that he had left the baby alone and when he returned he found him laying on his back with a dazed look, and that he tried to give him CPR with negative results. He admitted that he was responsible for Marco’s injuries, but he claimed that they were inflicted after the child was already dead.

After a recess, where Leyva was given lunch and used the restroom, he was re-advised of his Miranda rights, and he provided a tape-recorded statement wherein he stated that he had left the baby in the bathtub and when he returned he found him lying face up with a dazed look on his face. When his attempt at CPR was unsuccessful, he panicked and began shaking, hitting, scratching, and biting the child to get a reaction. He wrapped the child in his sweater and layed him on the oven door to “get him warm.” A neighbor came by looking for drags. Leyva answered the door and when he returned, he found his sweater on fire. Leyva stated that he disposed of the child’s body in the dumpster and began cleaning the apartment because there was blood everywhere.

At trial, Leyva admitted that he agreed to accompany the police to the police station and admitted that he agreed to speak to Detective Zacharias. Leyva testified that he initiated the interview with Detective Zacharias. Leyva also admitted that he was orally advised of his Miranda rights and that he also received his Miranda rights on a printed form, which he signed. Although Leyva claimed that when he was being advised of his rights he was not really paying attention, he testified that his lack of attention was irrelevant, as he wanted to tell Detective Zacha-rias what happened.

Although Leyva claimed that he was coerced by the police, who he claimed promised to release him if he provided them with a statement, the trial court found that this claim lacked credibility. In light of Leyva’s admitted lies to the police and his admission at trial that it was he who initiated the interview with Detective Zacharias because he wanted to tell him what happened, we find no fault with the trial court’s ruling denying Leyva’s motion to suppress his statement.

CONCLUSION

Although we have not addressed all of the issues raised by Leyva in this appeal, we have carefully reviewed each, and we find that none have merit. Accordingly, we affirm the convictions and sentences imposed.

Affirmed.

      . Leyva’s defense at trial was that the child was unresponsive and that the injuries were as a result of Leyva’s attempts to "revive” him. The hot surface burns, he explained, were caused when he wrapped Marco up in his sweater and laid him on the oven door to "warm him,” and left him momentarily while he answered the door (the visitor was a man seeking to purchase drugs). When he returned he found the sweater on fire.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: WALLACE, Judge.

text:
    Leon WEAVER, Appellant, v. Erin Patricia HOTCHKISS, Appellee.
    No. 2D07-1856.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 2008.

      Leon Weaver, pro se.
    Erin Patricia Hotchkiss, pro se.
   WALLACE, Judge.

Leon Weaver appeals the circuit court’s order that denied his motion to enforce an award of tangible personal property in the final judgment that dissolved his marriage to Erin Patricia Hotchkiss, f/k/a Erin Patricia Weaver. Because the circuit court inexplicably erred in concluding that it lacked jurisdiction to consider and determine Mr. Weaver’s enforcement motion, we reverse the order denying the motion and remand for further proceedings.

The Pacts and Procedural Background

In August 2006, the Polk County Circuit Court entered a final judgment that dissolved the marriage of the parties. The final judgment included a paragraph awarding specifically identified items of tangible personal property to each party. In the last paragraph of the final judgment, the circuit court retained jurisdiction for enforcement purposes and ordered both parties “to take such reasonable action and conduct themselves in such a manner as to carry out the intents and purposes of this Final Judgment.”

Mr. Weaver subsequently filed his motion in the Polk County Circuit Court. The motion was entitled “Motion to Enforce Final Judgment.” The caption of the motion was substantially similar to the caption of the dissolution proceeding, and it bore the same case number as the case number that had been assigned to the dissolution proceeding. In his motion, Mr. Weaver alleged that Ms. Hotchkiss had not delivered to him some of the items of tangible personal property that he was to receive under the provisions of the final judgment. Mr. Weaver requested the entry of an order compelling Ms. Hotchkiss to comply with the provisions of the final judgment in this regard. Our limited record does not reflect that Ms. Hotchkiss responded to the motion.

On March 26, 2007, the circuit court— acting on its own motion — entered an order denying Mr. Weaver the relief that he had requested. The circuit court offered the following rationale for its ruling:

THIS CAUSE came before the Court on [Mr. Weaver’s] Motion to Enforce Final Judgment filed on January 19, 2007. [Mr. Weaver] is seeking to obtain property that was awarded to him in the parties’ divorce. Upon reviewing the motion, the court file, and applicable case law, the Court denies [Mr. Weaver’s] motion without prejudice as this Court is not the Court of proper jurisdiction. [Mr. Weaver] is free to refile his grievance in the appropriate civil court.

Unfortunately, the circuit court did not identify the court that it believed to be “the appropriate civil court” where Mr. Weaver could properly file his motion. This omission has hindered this court’s review of the circuit court’s order.

Discussion

Mr. Weaver filed his motion in the Polk County Circuit Court. This was the same court that had entered the final judgment of dissolution of marriage less than a year before. The caption of Mr. Weaver’s motion was substantially similar to the caption of the dissolution proceeding and bore the correct case number. The circuit court readily located “the court file” and identified the final judgment that Mr. Weaver sought to enforce. Based on our limited record, it does not appear that Ms. Hotchkiss contested the circuit court’s jurisdiction to proceed. Under these circumstances, we do not understand how the circuit court reached the conclusion that it lacked jurisdiction in the matter. The circuit court had inherent jurisdiction to enforce the dissolution judgment. See Smilack v. Smilack, 858 So.2d 1072, 1075 (Fla. 5th DCA 2003); Huml v. Collins, 739 So.2d 633, 634 (Fla. 3d DCA 1999); Seng v. Seng, 590 So.2d 1120, 1121 (Fla. 5th DCA 1991).

We may speculate that the judge who signed the order denying Mr. Weaver’s motion was presiding in a division of the circuit court other than the family court division to which the dissolution proceeding was assigned. However, this possibility would not have deprived the judge of jurisdiction. “The internal operation of the court system and the assignment of judges to various divisions [do] not limit a particular judge’s jurisdiction.” In the Interest of Peterson, 364 So.2d 98, 99 (Fla. 4th DCA 1978). “If an action is filed in the incorrect division, the proper remedy is to transfer the case to the correct division, subject to the payment of any filing fee and subject to the requirements of any local administrative rule.” Fort v. Fort, 951 So.2d 1020, 1022 n. 2 (Fla. 1st DCA 2007). That said, it does not appear that anything Mr. Weaver did caused his enforcement motion to be assigned to an incorrect division of the circuit court.

Conclusion

For these reasons, the circuit court erred in concluding that it lacked jurisdiction to hear Mr. Weaver’s enforcement motion. We reverse the circuit court’s order, and we remand this case to the circuit court with directions to entertain Mr. Weaver’s motion on its merits. If necessary, the circuit court shall promptly transfer Mr. Weaver’s motion to the correct division.

Reversed and remanded with directions.

WHATLEY and LaROSE, JJ., Concur.


author: KLEIN, J.

text:
    James TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3238.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 2008.

      Michael Salnick of Salnick, Fuchs & Bertisch, P.A., West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

Appellant was convicted of attempted first degree murder among other crimes, and argues that the trial court committed fundamental error in giving the forcible felony exception as part of the self defense jury instruction. We reverse for a new trial.

Appellant shot two people, one intentionally, and the other, according to appellant, accidentally. The intended victim had allegedly threatened to kill appellant, and appellant testified when he heard that the victim was being released from jail he started carrying a gun because he was afraid. When appellant saw the victim, he observed the victim reach behind his back as if to pull a gun. Appellant then pulled his gun and shot the victim, and accidentally shot another person standing next to the victim.

With the agreement of the parties, the court instructed the jury, as part of the self defense instruction:

A person is justified in using force likely to cause death or great bodily harm, if he or she reasonably believes that such force is necessary to prevent:
One, imminent death or great bodily harm to himself or another. Or two, the imminent commission of a felony against himself or another; however, the use of force likely to cause death or great bodily harm is not justifiable if you find:
One James Tucker III was attempting to commit, committing or escaping after the commission of a felony. Or two, James Tucker III initially provoked the use of force against himself, [emphasis added.]

The state recognizes that this instruction can constitute fundamental error if the only forcible felony is the charged offense, because it negates the defense of self-defense. McJimsey v. State, 959 So.2d 1257 (Fla. 4th DCA 2007); Estevez v. State, 901 So.2d 989 (Fla. 4th DCA 2005). The state argues that this case is distinguishable because appellant was charged with two forcible felonies, the attempted murder of the intended victim and the aggravated battery of the accidental victim. The problem with this argument is that there was no evidence to reflect that the shooting of the unintended victim was anything other than accidental and the jury, if properly instructed, could have found appellant not guilty as to both victims based on self defense. Nelson v. State, 853 So.2d 563 (Fla. 4th DCA 2003). As the fifth district explained in Sloss v. State, 965 So.2d 1204, 1206 (Fla. 5th DCA 2007):

The question turns on whether the defendant claims that he acted against both victims in self-defense; if so, the forcible felony instruction constitutes fundamental error.

In this case appellant’s theory of innocence was that all of the shots were fired in self-defense of the victim who threatened him.

Reversed for a new trial.

WARNER and FARMER, JJ., concur.


text:
    Oza B. JENKINS, Appellant, v. LENNAR CORPORATION and Duane Morris & Heckscher, Appellees.
    No. 3D07-1858.
    District Court of Appeal of Florida, Third District.
    Jan. 23, 2008.

      Oza B. Jenkins, in proper person.
    Kirkpatrick & Lockhart Preston Gates Ellis, LLP, and William P. McCaughan and Melissa D. Sanchez, Miami; Duane Morris and Harvey W. Gurland, Jr. and Warren D. Zaffuto, Miami, for appellees.
    Before WELLS, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, Judge.

The plaintiff, Oza B. Jenkins (“Jenkins”), appeals from a final order granting summary judgment in favor of the defendants, Lennar Corporation (“Lennar”) and Duane Morris & Heckscher (collectively, “the defendants”). We affirm the judgment of the trial court in all respects.

The instant case represents Jenkins’ third attempt to re-litigate a final judgment of foreclosure entered against her in a December 2000 lawsuit brought by Universal American Mortgage Company (“Universal”), a subsidiary of Lennar. In 2002, this Court affirmed that final judgment of foreclosure. Jenkins v. Universal Am. Mortgage Co., 807 So.2d 146 (Fla. 3d DCA 2002). Jenkins pursued her appeal to the Florida Supreme Court, and shortly thereafter, to the United States Supreme Court, but was denied certiorari on both occasions.

In 2004, Jenkins sued Universal and a host of other entities in state court, raising allegations based upon the original foreclosure action. The trial court dismissed the complaint with prejudice and Jenkins did not appeal. In 2005, Jenkins brought a federal lawsuit against the defendants based upon the same issues involved in the previous actions. The district court granted the defendants’ motion for summary judgment on res judicata grounds, and Jenkins appealed. The Eleventh Circuit remanded, instructing the district court to dismiss Jenkins’ complaint for lack of jurisdiction. The district court proceeded as instructed, and Jenkins’ subsequent appeal was dismissed.

In March 2007, Jenkins returned to state court to pursue allegations against the same defendants based upon the same operative facts involved in each of the previous actions. The trial court granted the defendants’ motion for summary judgment and determined that the instant lawsuit and the two preceding lawsuits, in 2004 and 2005, amounted to vexatious litigation. On September 4, 2007, the trial court issued a final summary judgment in favor of the defendants, and this appeal followed.

The defendants contend that the trial court’s final summary judgment should be affirmed because res judicata bars Jenkins’ arguments. We agree.

The doctrine of res judicata bars re-litigation of a cause of action for claims that were raised and could have been raised in a prior action. The elements under the doctrine are: (1) identity of the things sued for; (2) identity of the cause of action; (3) identity of the parties and (4) identity of the quality in the person for or against whom the claims are made.

Johnson v. Young, 964 So.2d 719, 721 (Fla. 3d DCA 2007); see also Topps v. State, 865 So.2d 1253, 1255 (Fla.2004) (holding that application of res judicata requires that a prior adjudication include a ruling on the merits). The record clearly indicates that Jenkins’ present allegations — that she was improperly evicted, that Lennar filed a fraudulent IRS form 1099, and that the clerk of the court made an erroneous docket entry — either were raised and decided on the merits, or could have been raised, in one of the four previous actions.

For res judicata purposes, identity of the thing sued for and identity of the cause of action are present because the relief requested and the theories of action m each of Jenkins lawsuits are indistinguishable. Because Universal is a subsidiary of Lennar, they are privies, and thus, the parties to each of the previous lawsuits are identical. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1259 (Fla.2006) (holding that judgments on the merits in former proceedings are binding on the original parties as well as their privies). Finally, because the defendants were sued in the same capacity vis-á-vis Jenkins in each of the lawsuits, identity of the quality of the person against whom the complaint was made clearly exists.

Accordingly, the trial court was correct in entering summary judgment in favor of the defendants. In addition, we specifically reaffirm the trial court’s directive that Jenkins shall refrain from filing any further action stemming from the original foreclosure judgment without first obtaining approval from the trial court.

Affirmed.


text:
    Steven GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5547.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.
    Nancy Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We conclude that the trial court erred in denying the defendant’s motion for post-conviction relief under rule 3.850 of the Florida Rules of Criminal Procedure. The lawyer representing the defendant at trial failed to provide adequate assistance of counsel by neglecting to request a jury instruction on the illicit nature of the substance, which was then an element of the crime of possession of marijuana. See Garcia v. State, 901 So.2d 788 (Fla.2005); Scott v. State, 808 So.2d 166 (Fla.2002). The record does not support the state’s argument that the failure to request this instruction was a strategy. Trial counsel did not testify that he consciously chose not to request the instruction. Rather, it appears from the record that in retrospect he did not believe the instruction would have helped his client’s case. For these reasons, we reverse the order denying the postconviction motion and hold that the defendant is entitled to a new trial.

Reversed.

WEBSTER, PADOVANO, and POLSTON, JJ., concur.


text:
    D.A., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2153.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.
    Nancy Daniels, Public Defender, Judith Dougherty Hall, Assistant Public Defender, and Glen P. Gifford, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Giselle Lylen Rivera, Assistant Attorney General, and Donna A. Gerace, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the amended restitution order but remand the case with instructions to strike the language indicating that the payments shall begin on April 1, 2007, and substitute in its place a provision that restitution shall begin when the child obtains employment. See J.M.H. v. State, 589 So.2d 394 (Fla. 1st DCA 1991).

Affirmed in part and reversed in part and remanded.

WOLF, BENTON, and PADOVANO, JJ., concur.


text:
    Roland CARLISLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3272.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.
    Michael Rayne of the Law Office of Michael Rayne, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from- the January 22, 2007, judgment and sentence in Bay County Circuit Court case number 2005-4343. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

VAN NORTWICK, PADOVANO, and ROBERTS, JJ., concur.


text:
    Ralph HARDY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3693.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.
    Ralph Hardy, pro se, Petitioner.
    Bill McCollum, Attorney General; Philip W. Edwards and C. Bowen Robinson, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Ralph Hardy is granted belated appeal from the order of the Circuit Court for Clay County denying postconviction relief in that court’s case number 1994-CF-1410. See Mosley v. State, 932 So.2d 564 (Fla. 1st DCA 2006); Jenkins v. State, 603 So.2d 641 (Fla. 5th DCA 1992). Upon issuance of mandate in this cause, a copy of the opinion will be provided-to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). PETITION GRANTED.

WOLF, KAHN, and LEWIS, JJ., concur.


text:
    Teddy HICKS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4523.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.
    Teddy Hicks, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General; Philip W. Edwards and C. Bowen Robinson, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Teddy Hicks, Jr., is hereby afforded a belated appeal from judgment and sentence in Es-cambia County case numbers 05-5495-CFA, 05-5546-CFB, 05-5751-CFA, 05-5753-CFA, and 05-5755-CFA. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). Counsel shall be appointed to represent petitioner in the appeal if he qualifies for such an appointment.

PETITION GRANTED.

WOLF, KAHN, and LEWIS, JJ., concur.


text:
    Leroy L. WATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5382.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.
    Leroy L. Watson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the June 17, 2007, order which denied a motion to correct illegal sentence in Duval County Circuit Court case number 16-1995-CF-7532-AXXX. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

VAN NORTWICK, PADOVANO, and ROBERTS, JJ., concur.


text:
    Troy MERRIWEATHER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-0272.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2008.
    Bill White, Public Defender, and Ward L. Metzger, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See McKinney v. Yawn, 625 So.2d 885 (Fla. 1st DCA 1993).

KAHN, WEBSTER, and ROBERTS, JJ., concur.