author: PER CURIAM. BENTON, J.,

text:
    S.D.T., In the Adoption of: Infant Male T., a Minor, Appellant, v. BUNDLE OF HOPE MINISTRIES, INC., and Other Unknown Guardians, Appellees.
    No. 1D06-2137.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.

      Alexander R. Christine, Jr., Maureen Sullivan Christine, and Benjamin J. Rich of Alexander Christine & Maureen Sullivan Christine, P.A., St. Augustine, for Appellant.
    Rebecca Bowen Creed of Mills & Creed, P.A., and Judy Setzer, Jacksonville, for Appellees.
   PER CURIAM.

Appellant S.D.T., an unmarried biological father, appeals a final order denying his Motion to Intervene, Motion for Relief from Judgment and to Set Aside Judgment Terminating Parental Rights, and Motion for Rehearing. The issues raised on appeal are (1) whether the trial court possessed jurisdiction to terminate appellant’s parental rights because those rights had never been established in accordance with statutory procedures; (2) whether the trial court erred in entering a final judgment of adoption and denying appellant’s motions while a paternity action was pending; and (3) whether the trial court’s findings of fact are supported by the record. We affirm the trial court’s order.

On November 22, 2005, the appellee, Bundle of Hope Ministries, Inc., the “adoption entity” as defined in section 63.032(3), Florida Statutes (2005), filed its report with the trial court of its intended placement for adoption of the minor child, Infant Male T., who was born the same day in St. Johns County to M.T., the mother. Thereafter, on January 9, 2006, appellee filed in Duval County a petition for termination of parental rights pending adoption. Although appellant was named in the petition as the natural father of the child, he was not served with the petition. On February 8, 2006, judgment was entered terminating parental rights as to both the mother and appellant pending adoption. In so doing, the court expressly found that appellant “has not been established by court proceedings to be the father of the child.”

On February 9, 2006, appellant filed a paternity claim with the Florida Putative Father Registry. On February 21, 2006, appellant filed a petition for determination of paternity in the St. Johns County Circuit Court. The petition alleged that appellant provided the mother with reasonable financial support in the form of food and shelter while he lived with the mother; the mother promised she would contact him and provide the time and place of the child’s birth but did not do so; and when appellant located the mother, she advised him she was “adopting the child out” but was otherwise vague and misleading and would not reveal the child’s location. Appellant requested that the court establish the child’s paternity by ordering proper scientific testing, adjudicating parental responsibility, adding his name to the birth certificate, changing the child’s name, and awarding him sole parental responsibility.

On March 8, 2006, appellee filed its final post-placement report and recommendation, describing the infant as thriving and recommending that the prospective adoptive parents be approved for finalization of the adoptive process. The adoption entity and the prospective parents filed a petition for adoption of the child, which was granted by the final judgment of adoption filed March 8, 2006, in Duval County.

On March 9, 2006, appellant filed motions to intervene, for relief from judgment, to set aside the judgment terminating parental rights, and for rehearing. This was the first notice given to the Duval County Circuit Court of the paternity action previously filed in St. Johns County. Thereafter, the trial court conducted a hearing on appellant’s motions during which appellant’s counsel stipulated that appellant’s paternity claim was not timely filed but alleged that the late filing was due to the mother’s actions. According to appellant’s counsel, the mother promised appellant she would advise him as to the date, time, and place of the child’s birth, but she deliberately relocated and withheld her new location from him. When the child was born, the mother allegedly refused to disclose any information regarding the birth of the child until early December 2005. Counsel further stated the mother’s assertion that she was not cohabiting with a man during her pregnancy was not truthful because she was living with appellant at the time of her pregnancy. Both appellant and the mother subsequently testified regarding appellant’s level of involvement before and after the child’s birth.

Following the hearing, the trial court entered an order denying appellant’s motions. Based on the testimony presented, the trial court made factual findings concerning appellant’s lack of involvement with the child and the child’s mother. This appeal followed.

The issues raised by appellant involve questions of statutory interpretation. Therefore, we apply a de novo standard of review. See Wegner v. State, 928 So.2d 436, 438 (Fla. 2d DCA 2006) (“Statutory interpretation raises an issue of law, and we review the trial court’s ruling de novo.”). Because of the similarity between some of the facts in the instant case and those in In re Adoption of Baby A., 944 So.2d 380 (Fla. 2d DCA 2006), review denied, Gift of Life Adoptions, Inc. v. A.S., 944 So.2d 344 (Fla.2006), we adopt much of the same interpretation given the pertinent statutes by the Second District in Baby A, in which the court held that despite the provisions of section 63.054(1), Florida Statutes (2004), requiring that an unmarried biological father file a claim of paternity before the date a petition for termination of rights is filed, the father who files such a claim is nonetheless entitled to the resolution of such claim before the conclusion of an adoption proceeding.

In Baby A, as here, the father’s petition for parentage was filed after the adoption agency filed its petition seeking termination of the father’s rights but before the entry of an adoption order. If there had been no hearing conducted on appellant’s motions, we could be constrained to reverse because, similar to the facts in Baby A, at the time the order was entered terminating appellant’s parental rights, he did not fit into any of the categories of persons delineated in section 63.062(l)(b), Florida Statutes (2005), which specifies the conditions under which a father’s parental rights may be terminated without his written consent. As a consequence, appellant was then neither a parent nor a person whose consent to the adoption of the child was required by that statute as a prerequisite to a termination of parental rights, and because appellant could not then be deemed a statutory parent, under the reasoning of Baby A, he had no parental rights that could be terminated. See Baby A., 944 So.2d at 394; see also In re Baby R.P.S., 942 So.2d 906, 908 (Fla. 2d DCA 2006) (holding that the trial court erred in terminating the appellant’s parental rights given that the appellant, an unmarried biological father, was not a parent under the Florida Adoption Act). We nevertheless affirm the order appealed because, in our opinion, the subsequent hearing conducted on appellant’s motions established the fact that the minor was appellant’s child, as required by section 63.062(l)(b)3., thereby authorizing the court to confirm the previously entered order terminating appellant’s parental rights.

Despite the fact that no finding had been made that appellant was the child’s father at the time of the entry of the termination of rights order, the trial court was not precluded from making a finding to such effect following the hearing on appellant’s motions. Section 63.142(4), Florida Statutes (2005), provides that a judgment of termination on which the later judgment of adoption is based is voidable, not void, if it is found by the court in considering a motion for relief from judgment that the judgment did not comply with the requirements of chapter 63. Although there was no explicit finding by the court establishing appellant as the child’s statutory parent in its order denying appellant’s motions, we consider the court implicitly found, by addressing the motions on their merits and tracking the provisions of section 63.089(4), Florida Statutes (2005), relating to a father’s abandonment of his child, that appellant’s status in such regard had been established during the later proceeding. As this Court recognized in B.B. v. P.J.M., 933 So.2d 57, 59 (Fla. 1st DCA 2006), the requirement in section 63.062(l)(b)3. that the minor be established by court proceeding to be the father’s child is not limited to a formal paternity adjudication under chapter 742, Florida Statutes, but encompasses any court proceeding in which a material determination is made to such effect. We further pointed out that material facts may be established either by resolving disputed facts or by the presentation of undisputed facts, i.e., uncontested material facts that are judicially accepted as true, and such acceptance could “be implied or express.” Id. at 60.

Appellant’s status as the child’s parent was never in dispute. Appellant was identified in the petition seeking termination of his rights as the child’s biological father, and he confirmed such fact in both his pleadings and his testimony at the hearing conducted on the motions. Thus, any earlier lack of notice to appellant by reason of appellee’s failure to serve him with a copy of the petition for termination of his parental rights was cured by his appearance and testimony at the later proceeding, which, although designated as one seeking relief from judgment, met all the requisites essential for a hearing conducted on a petition to terminate parental rights pending adoption under section 63.089. Moreover, in making factual findings that track the provisions of the abandonment statute, the trial court essentially determined that appellant had, in fact, abandoned the child. Given that this determination is supported by competent, substantial evidence and that abandonment is a basis for the termination of parental rights, we affirm the trial court’s order.

AFFIRMED.

DAVIS, J., and ERVIN, III, RICHARD W., Senior Judge, concur; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

The majority points out that S.D.T.’s “status as the child’s parent was never in dispute.” Ante p. 1136. See B.B. v. P.J.M., 933 So.2d 57, 60 (Fla. 1st DCA 2006) (“Appellant’s identity as J.M.’s father ... was agreed to by all interested parties and accepted as true by the court throughout the ... proceedings.”).

S.D.T. was therefore entitled to notice of and full participation in the proceedings that led to termination of his parental rights. See In re Adoption of Baby A., 944 So.2d 380, 396 (Fla. 2d DCA 2006), review denied sub nom. Gift of Life Adoptions, Inc. v. A.S., 944 So.2d 344 (Fla.2006) (“Section 63.062(l)(b)(3) provides that a petition to terminate parental rights may be granted only after written consent or notice to a father’ under circumstances where ‘[t]he minor has been established by court proceeding to be his child.’ ”); B.B., 933 So.2d at 60.

S.D.T. received no such notice here. When he found out about the already ongoing proceedings and sought to intervene, moreover, the trial court denied his motion to intervene, ruling that he “ha[d] no legal rights in the instant action that would require the Court to allow him to intervene.” This was error.

The order denying motion to intervene, motion for relief from judgment and motion for rehearing should be reversed, and the cause should be remanded for further proceedings. Accordingly, I respectfully dissent.

      . The petition states in part:
      3-. Venue is proper in Duval County pursuant to § 63.087(4)(a)(3), Fla. Stat., as the location of the Adoption Entity is in said county and the birth mother has waived venue. The child is less than six (6) months old.
      6. The child's mother is M.T. and she has consented to the termination of her parental rights for the purpose of placing the child for adoption. Her consent is now binding and irrevocable. The consent is filed herein.
      7. The child’s biological father is S.T. The birth mother is not married and was not married at the time of conception or at the time of the birth of the child, and the biological father has not provided her with any financial or emotional support during the pregnancy. The biological father has not adopted or sought to adopt the child. The biological father has not been established by court proceedings to be the father of the child. The biological father has not filed an affidavit of paternity pursuant to Fla. Stat. 382.013(2)(c). The biological father has not filed an acknowledgment of paternity with the Office of Vital Statistics of the Department of Health.... Pursuant to § 63.062, Fla. Stat., the consent of the birth father is not required.

      .This provision states in part:
      (1) Unless supported by one or more of the grounds enumerated under s. 63.089(3), a petition to terminate parental rights pending adoption may be granted only if written consent has been executed as provided in s. 63.082 after the birth of the minor or notice has been served under s. 63.088 to:
      (b) The father of the minor, if:
      1. The minor was conceived or born while the father was married to the mother;
      2. The minor is his child by adoption;
      3. The minor has been established by court proceeding to be his child;
      4. He has filed an affidavit of paternity pursuant to s. 382.013(2)(c); or
      5. In the case of an unmarried biological father, he has acknowledged in writing, signed in the presence of a competent witness, that he is the father of the minor, has filed such acknowledgment with the Office of Vital Statistics of the Department of Health within the required timeframes, and has complied with the requirements of subsection (2).

      . In so saying, we reject appellee's argument that appellant did not preserve the issue of the trial court’s statutory authority to terminate his parental rights for the reason he never argued that he was not a parent for purposes of a termination proceeding. The burden of showing that an unmarried biological father meets the definition of a parent in order for his rights to be terminated is, in our judgment, placed on the party seeking termination. See § 63.089(2)(a)3., Fla. Stat. (2005).

      . Unlike the facts at bar, no finding was ever made in Baby A. of the father's status as a statutory parent. There, motions for summary judgment were filed by the father on his petition for determination of paternity and by the adoption agency on its petition for termination of parental rights. A simultaneous hearing was conducted in both cases, and the trial court considered first the adoption agency's motion, granted it because of the father’s failure to comply with chapter 63 requirements, and thereafter dismissed the parentage action as moot.

      . Neither section 63.088, Florida Statutes (2005), relating to proceedings to terminate parental rights, nor section 63.062(3)(a), pertaining to adoption proceedings, requires an adoption agency to provide notice of same to an unmarried biological father who does not have the status of parent as defined in chapter 63. Although appellant raised the issue of the statutes’ constitutionality before the lower court, he has not pursued those arguments in this appeal.


source: Caselaw Access Project

author: SCHWARTZ, Senior Judge.

license: Public Domain

text:
    UNDERWRITERS AT LLOYD’S OF LONDON, Appellant, v. Ken McCAUL and Elaine McCaul, individually, and as Personal Representatives of the Estate of Leeann McCaul, Juan Mendoza, Florida Department of Transportation, and Tunjos Trading Co. Inc., Appellees.
    No. 3D06-1407.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.

      Carlos A. Velasquez and Mara Shlack-man, Plantation, for appellant.
    Ver Ploeg & Lumpkin and R. Hugh Lumpkin and Michael F. Huber and Randall S. Goldberg; Panter, Panter & Sampedro and Mitchell J. Panter; Clark, Robb, Mason, Coulombe, Buschman & Ce-cere and James K. Clark, Miami, for ap-pellees.
    Before WELLS and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Leeann McCaul was killed when a car in which she was a passenger swerved off a roadway in Miami-Dade County, Florida, and struck a van owned by Tunjos Trading Company, Inc., parked on the side of the road while its employees were maintaining the area. Because the theory of liability stated in the ensuing wrongful death complaint was Tunjos’ alleged negligent failure to place traffic cones on the roadway to warn of the presence of the work and the vehicle, rather than the dangerous location of the van itself, the trial court ruled that Lloyd’s had the duty to defend and to indemnify Tunjos under its commercial general liability policy, notwithstanding the familiar automobile exclusion which provides that

[t]his insurance does not apply to:
“Bodily injury” ... arising out of ownership, maintenance, use or entrustment to others of any ... “auto” ... owned or operated by ... any insured. Use includes operation and “loading or unloading.”

We disagree and reverse the judgment below for entry of a contrary declaration of no coverage.

It is clear to us as a matter of common sense and of a plain reading of the policy, see Taurus Holdings, Inc. v. United States Fid. & Guar. Co., 913 So.2d 528, 532-33, 540 (Fla.2005)(noting that “the term ‘arising out of was unambiguous and is broader in meaning than the term ‘caused by’ and means ‘originating from,’ ‘having its origin in,’ ‘growing out of,’ ‘flowing from,’ ‘incident to’ or ‘having a connection with’ ” (quoting Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963, 965 (Fla. 5th DCA 1996)(en banc))), that however the basis of the claim may have been creatively characterized by the plaintiffs, the exclusion precludes coverage as a matter of law. See State Farm Fire & Cas. Co. v. Tippett, 864 So.2d 31, 35-36 (Fla. 4th DCA 2003)(“wording alone in a pleading does not create a duty to defend, regardless of its artfulness[;] ... coverage issue should turn on the merits — on whether a policy exclusion applies and not on creative pleading”), review denied, 885 So.2d 389 (Fla.2004); Nateman v. Hartford Cas. Ins. Co., 544 So.2d 1026, 1027 (Fla. 3d DCA 1989)(“ereation of the basic insurer-insured relationship and the ensuing duty to defend cannot be left to the imagination of the drafter of a complaint”), review denied, 553 So.2d 1166 (Fla.1989).

The overwhelming weight of authority, which so holds, is based upon an application of either or a combination of two perhaps analytically distinct but closely related analyses, both of which we find highly persuasive. The first views the failure to warn of the danger created by the presence of a vehicle as inseparable from the “use” of the vehicle itself. See Employers Mut. Cas. Co. v. St. Paul Ins. Co., 154 S.W.3d 910, 916 (Tex.App.2005)(no auto coverage when vehicle struck insured’s truck parked on highway during road work; “the failure to provide adequate warnings and traffic control were causes dependent upon the use or operation of the truck and were not independent causes of the accident”); see also Allstate Ins. Co. v. Safer, 317 F.Supp.2d 1345 (M.D.Fla.2004)(applying Florida law)(no auto coverage because negligent designation of parking spot for truck not independent of negligent parking of truck); Fireman’s Fund Ins. Co. v. Clarendon Am. Ins. Co., No. A105656, 2005 WL 1041128 (Cal.Ct.App. May 4, 2005)(unpub-lished)(auto exclusion applies to collision between truck and motorcycle; negligence of flagman in improperly warning of truck in roadway not independent cause of accident); United States Fire Ins. Co. v. N.Y. Marine & Gen’l Ins. Co., 268 A.D.2d 19, 706 N.Y.S.2d 377 (N.Y.App.Div.2000)(exclusion applies to collision between vehicle and pickup truck parked on roadway during tollgate maintenance despite allegations of negligent failure to limit speed on the bridge and to warn approaching drivers of stopped truck; accident arose from use of truck); Mut. Serv. Cas. Ins. Co. v. N. Lights Sports, Inc., No. C1-94-1877, 1995 WL 46308, at *2 (Minn.Ct.App. Feb.7, 1995)(unpublished)(“failure to provide spotters to warn of the presence of the van [parked on the roadside] and its occupants is inextricably intertwined with the use of a motor vehicle and thus is excluded from coverage under the general liability insurance policy’s motor vehicle exclusion”); Kanios v. Frederick, 10 Wis.2d 358, 103 N.W.2d 114 (1960)(liability for negligently hand signaling automobile driver to pass sweeper stopped in roadway arose from the use of the vehicle); but cf. Louis Marsch, Inc. v. Pekin Ins. Co., 140 Ill.App.3d 1079, 96 Ill.Dec. 386, 491 N.E.2d 432, 438 (1985). In a way, this conclusion reflects the broad principle of tort liability that the duty to use due care concerning a dangerous condition — in this case, the insured’s van — may be discharged either by correcting the danger or warning' of it. See McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla.1992); Kaisner v. Kolb, 543 So.2d 732, 735-36 (Fla.1989). Either way, it is the danger itself, the van, which is the basis of the insured’s liability and thus of the automobile exclusion.

The other approach more straightforwardly regards it as simply inconceivable that a collision with a motor vehicle may be deemed not to arise from its use or operation. See Safer, 317 F.Supp.2d at 1352 (truck was “but for” cause of accident: “injury was allegedly caused by obstruction of the intersection that was created by. the box truck itself’); Ohio Cas. Ins. Co. v. Cont’l Cas. Co., 279 F.Supp.2d 1281, 1284 (S.D.Fla.2003)(applying Florida law)(“The conditions of the roadway aside, the accident was ‘connected’ to the use of a vehicle in that it would not have occurred but for the use of the vehicle.”); Farmers Auto. Ins. Ass’n v. Country Mut. Ins. Co., 309 Ill.App.3d 694, 243 Ill.Dec. 159, 722 N.E.2d 1228, 1234 (2000)(motor vehicle exclusion applies if grain truck is determined to be a motor vehicle; numerous negligent acts alleged “but each involves the standard of care that operators of motor vehicles or other mobile equipment on a public highway must exercise for the safety of others”); Titan Indem. Co. v. Pope, 876 So.2d 1096 (Miss.Ct.App.2004)(auto exclusion forecloses coverage under general liability policy; passenger injured when car in which he was riding hit a trailer parked by county road crew without warning signs or flagmen to alert oncoming traffic); Employers Mut. Cas. Co., 154 S.W.3d at 916 (“But for the ‘use or operation’ of the truck, there would not have been an accident.”); see also Stevens v. Fireman’s Fund Ins. Co., 375 F.3d 464, 467 (6th Cir.2004)(applying Florida law)(noting that “majority of Florida’s district courts of appeal ... have held that general liability policies with auto exclusion clauses provide no coverage for injuries that would not have occurred but for the use of an auto”); Fidelity & Cas. Co. of N.Y. v. Lodwick, 126 F.Supp.2d 1375 (S.D.Fla.2000)(same); Penn-Star Ins. Co. v. Willis, No. M2005-899, 2006 WL 2105993 (Tenn.Ct.App. July 28, 2006)(exelusion applies where use of auto was predominant cause of injury and damages arose from use of auto despite failure to warn or to remove bystanders from the zone of danger).

In sum, under whatever deconstruction of the present facts and circumstances, the insured’s alleged liability arose from the use of its vehicle and thus falls within the pertinent exclusion. See also Alligator Enters., Inc. v. Gen. Agent’s Ins. Co., 773 So.2d 94 (Fla. 5th DCA 2000), review denied, 790 So.2d 1101 (Fla.2001); Hagen v. Aetna Cas. & Sur. Co., 675 So.2d 963 (Fla. 5th DCA 1996)(en banc), review denied, 683 So.2d 483 (Fla.1996); Atkins v. Bellefonte Ins. Co., 342 So.2d 837 (Fla. 3d DCA 1977); Nat’l Indem. Co. v. Corbo, 248 So.2d 238 (Fla. 3d DCA 1971).

Reversed.


author: PER CURIAM.

text:
    Robert McCURDY, Appellant, v. CITY OF HIALEAH and Cambridge Integrated Services Group, Appellees.
    No. 1D06-1109.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    Mark L. Zientz and Andrea Cox, Miami, for Appellant.
    Warren Brown and Damian H. Albert of Walton Lantaff Schroeder & Carson, LLP, Fort Lauderdale; Robert L. Teitler of Walton Lantaff Schroeder & Carson, LLP, Miami; and Carlos Martin, Miami, for Ap-pellees.
   PER CURIAM.

Robert McCurdy appeals an order denying permanent total disability (PTD) benefits and failing to award penalties and interest for permanent impairment benefits for an accident occurring on July 1, 1996. We find the denial of PTD benefits is supported by competent and substantial evidence, and thus we affirm that denial. See Chavarria v. Selugal Clothing, Inc., 840 So.2d 1071 (Fla. 1st DCA 2003). The employer and carrier correctly concede on appeal that claimant is entitled to penalties and interest on the award of permanent impairment benefits. Accordingly, the final order is reversed for failure to award penalties and interest pursuant to section 440.20, Florida Statutes (1995), and the cause is remanded for this limited purpose.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

BARFIELD, VAN NORTWICK, AND THOMAS, JJ., concur.


text:
    Ivory ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2827.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    Ivory Arnold, pro se, appellant.
    Bill McCollum, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800. Because the trial court failed to attach portions of the record that demonstrate the appellant’s motion was successive, we reverse.

In his motion for postconviction relief, the appellant alleges that the trial court failed to orally pronounce him a habitual felony offender as required by Ashley v. State, 850 So.2d 1265 (Fla.2003). The trial court summarily denied the appellant’s motion finding that it was successive because the appellant had raised this claim in a prior rule 3.800 motion. However, the trial court provided no record attachments to support its finding. Therefore, we reverse the lower court’s summary denial of the appellant’s motion and remand to the trial court to address the appellant’s claim on the merits or provide record attachments that demonstrate the successiveness of the appellant’s claim. See Maddox v. State, 870 So.2d 956 (Fla. 1st DCA 2004).

REVERSED AND REMANDED.

BARFIELD, BENTON, and POLSTON, JJ., concur.


text:
    Crystal HARRAH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4840.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    Crystal Harrah, pro se, 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 judgments and sentences rendered on December 12, 2005, in Bay County Circuit Court case numbers 03-0818CFMA, 03-0819CFMA, 03-0820CFMA, 05-2886CFMA, 05-3423CFMA and 05-3424CFMA. 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.

PETITION GRANTED.

ALLEN, PADOVANO, and LEWIS, JJ., concur.


text:
    Fred Joseph THOMPSON, Appellant, v. Melissa MILLENDER, Appellee.
    No. 1D06-5637.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    Fred Joseph Thompson, pro se, Appellant.
    John H. Sytsma, Apalachicola, for Ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

The appellant’s motion for rehearing, filed on January 9, 2007, is hereby granted. The Court’s opinion of December 27, 2006, dismissing the appeal as untimely is withdrawn and the appeal is hereby reinstated. The appellant shall ensure preparation and transmittal of record on appeal within thirty days of the date of this order. Fla. R.App. P. 9.200. The initial brief shall be served within thirty days thereafter.

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.


text:
    M & H PROFIT, INC, A Florida Corporation, Appellant, v. COMMISSION OF the CITY OF PANAMA CITY, and City of Panama City, a political subdivision of the State of Florida, Appellees.
    No. 1D06-6067.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    W. Douglas Harris, Ft. Walton Beach, for Appellant.
    David A. Theriaque, S. Brent Spain, and Timothy E. Dennis of Theriaque Vorbeck & Spain, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellee’s “Motion to Dismiss Appeal for Lack of Jurisdiction,” filed on December 4, 2006, as well as the appellant’s response thereto, the Court has determined that the order on appeal is not a final order. See generally Benton v. Moore, 655 So.2d 1272, 1273 (Fla. 1st DCA 1995). Accordingly, the ap-pellee’s motion is hereby granted and the appeal is dismissed for lack of jurisdiction.

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


author: WELLS, Judge.

text:
    Rafeal GADEA, Appellant, v. STAR CRUISES, LTD., et al., Appellee.
    No. 3D05-2300.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.

      Ralph 0. Anderson, Davie; Downs Brill Whitehead & Sage, Pembroke Pines, for appellant.
    Mase & Lara and Curtis Mase and Beverly D. Eisenstadt, Miami, for appellee, Star Cruises, Ltd.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   WELLS, Judge.

Rafael Gadea, appeals from an order granting with prejudice Star Cruises, Ltd.’s motion to dismiss for lack of personal jurisdiction. Because Gadea has failed to demonstrate jurisdiction over Star under either section 48.193(1) or 48.193(2) of the Florida Statutes, we affirm.

In March 2004, Gadea, an employee of Seaking, Inc. (“Seaking”), was allegedly injured while working on the M/V Superstar Leo. At the time, the vessel was owned and operated by Star and was located in international waters off the coast of China. Gadea was working on the vessel under a contract between Seaking and NCL (Bahamas), Ltd. (“NCL”), a Star subsidiary, which planned to acquire ownership of the vessel from Star for use in the American market.

Gadea sued Seaking, NCL, and Star claiming, as to Star, unseaworthiness and general maritime negligence. Jurisdiction over Star was asserted under sections 48.193(1) and 48.193(2) of the Florida Statutes. The court below, finding no basis for jurisdiction under either provision, dismissed the action. We agree with this assessment.

General Jurisdiction under Section 48.193(2) of the Florida Statutes

Section 48.193(2) of the Florida Statutes provides that “[a] defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” An assertion of general jurisdiction under this provision requires a “showing of ‘continuous and systematic general business contacts’ ” with this state. Carib-USA Ship Lines Bahamas Ltd. v. Dorsett, 935 So.2d 1272, 1275 (Fla. 4th DCA 2006) (quoting Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 416, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984)); Philip J. Padovano, Florida Civil Practice § 8.7 (2007 ed.) (stating that “[t]he phrase ‘substantial and not isolated activity’ in section 48.193(2) refers to a ‘continuous and systematic general business contact’ with the state").

Gadea cites to the following “contacts with Florida” as demonstrating that Star “engaged in substantial and not isolated activity” in this state:

1) Star’s acquisition of NCL, an entity doing substantial business in Florida;
2) Star’s installation of NCL’s top management upon acquiring NCL;
3) Star’s press releases and other public announcements representing NCL as an extension of Star and a critical component of Star’s global cruise line strategy;
4) Star’s use of NCL’s Miami headquarters as a booking agent for Star cruises; and
5) Star’s advertisement of its cruises in NCL’s brochures and its listing of NCL’s reservation number as a contact number for booking Star Cruises.

None of these contacts, taken individually or as a whole, constitutes substantial activity within this state on Star’s part to satisfy section 48.198(2) requirements.

There is no evidence in the record before us that Star itself engaged in business activities in this state. And the presence of NCL in Florida, without more, could not subject Star to the court’s general jurisdiction. As this court in Qualley v. International Air Service Co., 595 So.2d 194, 196 (Fla. 3d DCA 1992), confirmed, the “presence of a subsidiary corporation within Florida is not enough, without more, to subject a non-Florida parent corporation to long-arm jurisdiction within this state.”

Nor can NCL’s activity in Florida form the basis for a finding of general jurisdiction over Star. A substantial body of Florida law makes clear that it is only where a parent corporation exerts such extensive operational control over a subsidiary that the subsidiary is no more than an agent existing to serve only the parent’s needs, that jurisdiction over the parent exists. Sharing some officers and directors, having a unified or “global” strategy and goals, cross-selling in promotional materials, and performing services for one another is not sufficient to satisfy this test:

In Enic, PLC v. F.F. South & Co., Inc., 870 So.2d 888 (Fla. 5th DCA 2004), a plaintiff sought to obtain jurisdiction over the foreign parent corporation of a local subsidiary for misrepresentations connected with the sale of its business. The foreign parent moved to dismiss for lack of jurisdiction. The court examined whether the subsidiary could be said to be the agent of the parent so as to subject it to jurisdiction under section 48.193(l)(a). The court explained:
It is well settled in Florida that the mere presence of a subsidiary in Florida, without more, does not subject a non-Florida corporate parent to long-arm jurisdiction. See, e.g., Walt Disney Co. v. Nelson, 677 So.2d 400, 403 (Fla. 5th DCA 1996); Qualley v. International Air Service Co., 595 So.2d 194, 196 (Fla. 3d DCA 1992), cause dismissed, 605 So.2d 1265 (Fla.1992). However, when a parent exercises sufficient control over a subsidiary, that control establishes an agency and supports jurisdiction. E.g., State v. American Tobacco Co., 707 So.2d 851, 854-55 (Fla. 4th DCA 1998); see also Bell Atlantic Corp. v. Associated Data Consultants, Inc., 714 So.2d 523 (Fla. 4th DCA 1998). The amount of control exercised by the parent must be high and very significant. American Tobacco, 707 So.2d at 851 (Fla. 4th DCA 1998).
The instant case is analogous to Kramer Motors, Inc. v. British Leyland, Ltd., 628 F.2d 1175 (9th Cir.) cert. denied, 449 U.S. 1062, 101 S.Ct. 785, 66 L.Ed.2d 604 (1980). In Kramer Motors, the court found that there was insufficient control by the parent over the subsidiary despite: 1) some of the directors of the parent were members of the board of the subsidiary; 2) the president of the subsidiary served as a director of the parent; 3) the parent had a general executive responsibility for the subsidiary’s operation and reviewed and approved the major policy decisions of the subsidiary; 4) the parent guaranteed obligations of the subsidiary to United States banks; 5) executives of the parent worked closely with executives of the subsidiary on pricing and products and sometimes traveled to the United States for meetings; 6) the parent approved the subsidiary’s proposal to consolidate product distribution; and 7) the parent established goals and gave directives to the subsidiary. Id. at 1177. Despite the amount of involvement in Kramer Motors of the parent over the subsidiary, the court found that such contact was insufficient to establish an agency because no evidence was shown that the parent controlled the internal day-to-day affairs of the subsidiary. All goals and directives of the parent were “normal” and did not show “operational control” of the subsidiary by the parent necessary to establish personal jurisdiction. See also General Cigar Holdings, Inc. v. Altadis, S.A, 205 F.Supp.2d 1335 (S.D.Fla.), aff'd, 54 Fed.Appx. 492 (11th Cir.2002), (finding no personal jurisdiction over a parent with a Florida subsidiary where despite “regular and extensive contact” and a “very close working relationship” between the parent and the subsidiary, there was no evidence that the parent controlled the subsidiary’s daily “basic operation”).
Id. at 891-92. The court determined that Enic did not exercise that kind of control over its subsidiary and thus determined that jurisdiction over Enic did not exist.

Dev. Corp. of Palm Beach v. WBC Const., L.L.C., 925 So.2d 1156, 1161-62 (Fla. 4th DCA 2006)(coneluding that a foreign parent corporation which shared at least one officer with its subsidiary; which had authority to approve some expenditures of its subsidiary; which had to approve the purchase or sale by its subsidiary of any asset valued in excess of $25,000; which had to approve the purchase of vehicles by its subsidiary; which audited its subsidiary on an annual basis and reported the subsidiary’s profits and losses on a consolidated financial statement; which processed its subsidiary’s payroll; and which represented its relationship with its subsidiary as a “joint venture,” stating in a website article that it was acting through a subsidiary, was not engaged in substantial business activity in this state within the meaning of section 48.193(2) because the parent did “not exert sufficient control over [the subsidiary] to justify jurisdiction”); see Faro Techs., Inc. v. Cimcore Corp., 2006 WL 1119223 (M.D.Fla. Apr.27, 2006) (rejecting a claim that a Delaware parent corporation with two Florida subsidiaries was doing business in this state where the parent existed solely to hold stock in the subsidiaries; the parent and subsidiaries shared common officers and at least one director; the chief financial officer of both subsidiaries, with the assistance of subsidiary employees, prepared the parent’s tax returns because the parent had no employees of its own; one subsidiary paid for work performed for the parent by subsidiary employees; and one subsidiary provided office space for the parent, rent free); State v. American Tobacco Co., 707 So.2d 851, 856 (Fla. 4th DCA 1998)(confirming that statements which establish goals for subsidiaries “are normal for a sole shareholder to give its subsidiary” and “[do] not show the operational control of the subsidiary which is necessary to establish personal jurisdiction”); see also Abramson v. Walt Disney Co., 132 Fed.Appx. 273, 276-77 n. 2 (11th Cir.2005)(concluding that a foreign parent corporation did not conduct business in Florida so as to subject it to jurisdiction under section 48.193(2) even though the chairman of the foreign parent’s board of directors had stated in internet articles and letters to shareholders that he was directly involved in operations in Florida and that all of the parent-related enterprises were in the business of maximizing profits for the parent through their “interdependence”); Camp Illahee Investors, Inc. v. Blackman, 870 So.2d 80, 85 (Fla. 2d DCA 2003)(concluding that week-long annual visits to Florida by the owner/operator of a nonresident corporation for promotional purposes did not constitute substantial and not isolated activity within the forum state); Pfundstein v. Omnicom Group Inc., 285 N.J.Super. 245, 666 A.2d 1013, 1015-17 (1995) (holding that jurisdiction could not be asserted over the parent merely because the subsidiary had placed advertisements for the parent’s products in New Jersey).

Rather, it is where a subsidiary manifests no separate interests of its own, but in effect functions only as an agent to achieve the purposes of the parent corporation, that general jurisdiction over the foreign parent will be determined to exist. See Universal Caribbean Establishment v. Bard, 543 So.2d 447 (Fla. 4th DCA 1989)(affirming denial of a foreign parent corporation’s motion to dismiss because the Florida subsidiary advertised itself as the agent for its “own hotel” which was owned by the foreign parent and because the sole function of the Florida subsidiary was to act as a tour operator for the parent’s Antigua resort); see also Meier ex rel. Meier v. Sun Int’l Hotels, Ltd., 288 F.3d 1264, 1268-76 (11th Cir.2002)(finding long-arm jurisdiction under section 48.193(2) where two Florida subsidiaries existed solely to serve a Bahamian hotel and other resorts owned by a parent corporation by soliciting and coordinating reservations and all advertising and marketing; by purchasing all United States goods and providing all day-to-day accounting services, including collection services, for the parent owned hotel; by sharing bank accounts with the parent and invoicing themselves and writing checks for their services from those accounts); cf. Abramson, 132 Fed.Appx. at 276 (noting that “^Jurisdiction over the foreign corporation will not be exercised based on the subsidiary’s local activities where the subsidiary carries on its own business and preserves some independence from the foreign corporation”).

There is no evidence that NCL exists solely to serve its foreign parent. NCL has its own fleet of cruise ships which it operates. Thus, although NCL shares some officers and directors with Star, shares a common strategy, advertises Star cruises in its brochures, and takes bookings and payment for Star cruises, it cannot be said that NCL exists solely to serve Star. Instead, this case is more akin to those cases where jurisdiction over a foreign parent has been rejected because the subsidiary, while providing some services to the parent, and in some instances sharing goals and officers and directors, is sufficiently independent to act in its own, as well as in the parent’s, interests. See Kramer Motors, 628 F.2d at 1177; Faro Technologies, 2006 WL 1119228 at *6; WBC, 925 So.2d at 1162; Enic, 870 So.2d at 892; Nelson, 677 So.2d at 403; Qualley, 595 So.2d at 196.

The undisputed facts are that Star is a Hong Kong company that has no offices, no agents, and no employees in Florida. Although it does have a Florida subsidiary which it owns though a number of intermediary subsidiaries, it does not exercise the level of control over that subsidiary, which does substantial business of its own, to subject Star to jurisdiction in this state under section 48.193(2).

Specific Jurisdiction under Section 48.193(1) of the Florida Statutes

Gadea claims that Star is also subject to personal jurisdiction in Florida under section 48.193(l)(a) which “confers jurisdiction over parties who operate, conduct, engage in, or carry on a business or business venture in this state or have an office or agency in this state for any cause of action arising from the ‘doing of those acts.” Resource Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1143 (Fla. 2d DCA 2006)(emphasis added). According to Gadea, NCL was acting for itself and for Star when it contracted with his Florida-based employer and that because his injuries “arise from” that business activity, specific jurisdiction over Star has been demonstrated. We disagree.

As detailed above, there is no support for Gadea’s claim that NCL functioned as Star’s agent either regarding this contract or otherwise. See WBC, 925 So.2d at 1161-62 (“[T]he parent corporation, to be liable for its subsidiary’s acts under the ... agency theory, must exercise control to the extent the subsidiary ‘manifests no separate corporate interests of its own and functions solely to achieve the purposes of the dominant corporation.’ ”) (citations omitted). Star is not, therefore, subject to jurisdiction in this state because its subsidiary does business here and because that subsidiary contracted with a Florida company for work to be performed abroad.

Gadea’s reliance on Ship Construction & Funding Services (USA), Inc., 174 F.Supp.2d at 1320, where a nexus was found to exist in the breach of contract action between Star and the Florida-based broker with whom Star had directly contracted to acquire a Florida-based corporation, is misplaced. Here, there is no nexus between Gadea’s personal injury claims and any contract or business activities between Star and any Florida entity. “Although the term ‘arising from’ does not mean proximately caused by, it does require direct affiliation, nexus, or substantial connection to exist between the basis for the plaintiffs’ cause of action and the defendants’ business activity in the state. Citicorp Ins. Brokers (Marine), Ltd. v. Charman, 635 So.2d 79 (Fla. 1st DCA 1994); see also Christus [St. Joseph’s Health Systems v. Witt Biomedical Corp., 805 So.2d 1050, 1052 (Fla. 5th DCA 2002) ]; deMco Techs., Inc. v. C.S. Engineered Castings, Inc., 769 So.2d 1128 (Fla. 3d DCA 2000).” Nw. Aircraft Capital Corp. v. Stewart, 842 So.2d 190, 194 (Fla. 5th DCA 2003). No such direct affiliation, nexus, or substantial connection exists here.

Simply stated this claim arises from a personal injury that occurred in China, not Florida and has no connection to, that is, it did not arise out of, Star’s agreement to transfer ownership of one of its vessels to NCL. See Gerber Trade Fin. Inc. v. Bayou Dock Seafood Co., 917 So.2d 964, 967 (Fla. 3d DCA 2005)(stating that “for specific jurisdiction, the plaintiff [must] ... show that the defendant’s contact within the State resulted in, among several other options, a tortious act”).

Thus, on this record, it is clear that as to either a claim of general or specific jurisdiction, the requirements of section 48.193 have not been met. Because the long-arm statute must be strictly construed, and any doubts about applicability of the statute resolved in favor of the defendant and against a conclusion that personal jurisdiction exists, the order under review must be affirmed. See Seabra v. Int’l Specialty Imp., Inc., 869 So.2d 732, 733 (Fla. 4th DCA 2004) (noting that “courts are required to strictly construe the long-arm statute”).

Affirmed.

      . The relationship between NCL and Star is as follows:
      Star owns -* NCL, Corporation, Ltd. (Bermuda) owns -> Arrasas Ltd. (Isle of Man) owns -» NCL International, Ltd. (Bermuda) owns -» defendant NCL (Bermuda).

      . Moreover, the record does not establish that Star acquired NCL in Florida. The only evidence regarding Star’s acquisition of NCL and its presence here comes from an affidavit originally filed in a federal suit brought by a Florida brokerage company to obtain a fee for allegedly brokering a joint venture between Star and Carnival Corporation, a joint venture which allegedly resulted in Star’s acquisition of NCL. See Ship Constr. & Funding Servs. (USA), Inc. v. Star Cruises PLC, 174 F.Supp.2d 1320 (S.D.Fla.2001). That affidavit avers that Star representatives came to Florida twice in the 1990's, once in an attempt to negotiate charters for a related joint venture agreement with Florida-based Carnival Corporation, and once to inspect a Carnival vessel in Tampa, Florida. Neither visit resulted in Star doing any business in this state. Although during one of these visits Star and Carnival representatives discussed "their respective thoughts concerning NCL," they came to no agreement regarding acquisition of NCL. In fact, the press releases attached to the affidavit confirm that after this discussion, Star and Carnival engaged in a "battle” to take control of NCL with Star finally prevailing. Although Star ultimately acquired NCL, neither the affidavit nor the press releases attached to it detail where negotiations for that acquisition, or the acquisition itself, took place. In fact, the press releases suggest that it did not take place in Florida but elsewhere as Star gobbled up the stock in NCL’s parent company from shareholders around the world.

      . Section 48.193(l)(a) provides:
      (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: (a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.


text:
    Sherri L. PULCINI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1936.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Paul Morris, Miami, for appellant.

      Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Sherri L. Puleini, (“Puleini”), appeals the trial court’s order denying her petition to seal her criminal record pursuant to section 943.059, Florida Statutes (2004). We reverse.

In this case, where Puleini met all of the requirements of section 943.059, the trial court abused its discretion in denying her petition. The trial court’s stated reason, that the public's interest in having access to Pulcini’s criminal history record outweighs Puleini’s interest in sealing her record, is, on its own, insufficient. Although we recognize the trial court has discretion, a trial court’s discretion is not unfettered. Therefore, a trial court may deny the petition if there is good reason for the denial based on the facts and circumstances of the individual case. See Anderson v. State, 692 So.2d 250, 252 (Fla. 3d DCA 1997). Here, the record shows only counsel’s argument, filings, and Pulci-ni’s nolo contendere plea, which are not sufficient reasons to support the trial court’s denial. Accordingly, we reverse and remand with instructions to grant Pul-cini’s petition to seal her criminal record.

Reversed and remanded with instructions.


text:
    Garland WILSON, Appellant, v. Caroline FORD, III, f/k/a Caroline Wilson, Appellee.
    No. 3D05-761.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Chistopher C. Meyer, Monument, Colorado, for appellant.

      Jiulio F. Margalli, Key West, for appel-lee.
    Before COPE, C.J., and WELLS and ROTHENBERG, JJ.
   WELLS, Judge.

This is an appeal of a final judgment of dissolution of marriage. For present purposes we accept the former husband’s characterization that the post judgment motion he filed on June 16, 2004, included a motion for rehearing which the trial court denied without prejudice on July 27, 2004.

Thereafter, the former husband filed an “Amended Motion for Rehearing/Interpretation/Clarification.” On March 10, 2005, the trial court conducted a hearing on this motion and issued an order in which it concluded that after it entered the July 27, 2004 order, it had no further authority to rule on this matter. We agree.

The trial court’s use of the words “without prejudice” on its order dated June 27, 2004 did not open the door to the former husband to file a new motion for rehearing. This court long ago confirmed that a rehearing motion cannot be denied without prejudice:

The issue before this court is whether the trial court lost jurisdiction to rule on the resubmitted motion for new trial, upon its entry of the first order denying the motion for new trial. The leading case in this area is Capital Bank v. Knuck, 537 So.2d 697 (Fla. 3d DCA 1989). There, the plaintiff bank recovered a money judgment, and the defendant moved for rehearing under Florida Rule of Civil Procedure 1.530. The trial court held in its order that the motion “is denied without prejudice” and gave the defendant ten days to gather additional information to support his motion. 537 So.2d at 698. The plaintiff bank then sought a writ of prohibition, contending that the trial court did not have the authority to conduct additional proceedings. The Third District agreed:
It is apparent that the unqualified denial of Bulas’s appropriate post-judgment motion constituted a final disposition of that motion. [The fact that the order was purportedly “without prejudice” does not affect this conclusion.] Because, notwithstanding that the order undertook to do so, the trial court has no authority ... to permit the filing of any further motion for rehearing beyond the one authorized by Florida Rule of Civil Procedure 1.530....
537 So.2d at 698 & n. 1 (citations omitted).
In Arleo v. Garcia, 695 So.2d 862 (Fla. 4th DCA 1997), the Fourth District followed the reasoning set forth in Capital Bank. There, the trial court denied the motion for rehearing “without prejudice,” but the Fourth District held that the trial court did not have authority to proceed further: “[T]rial courts have no authority to permit the filing of any further motion for rehearing beyond the one authorized by rule 1.530.” 695 So.2d at 862. The court granted a writ of prohibition, holding that “[a]ll orders entered by the trial court after its denial of respondent’s first motion for rehearing are hereby vacated.” Id.; see also Trueblood v. State, 782 So.2d 508 (Fla. 1st DCA 2001).

McMahon v. Carter, 818 So.2d 560, 561 (Fla. 2d DCA 2002) (reversing an order granting a new trial entered several months after the trial court denied a rule 1.530 motion for new trial without prejudice and reserving jurisdiction to hold a formal evidentiary hearing).

The trial court was correct in concluding that it had no jurisdiction to consider the former husbands September 8, 2004 “Amended Motion for Rehearing/Interpretation/Clarification.” The final judgment of dissolution of marriage became final following the July 27, 2004 denial of his 1.530 motion for rehearing.

Affirmed.


text:
    Albert Russell FRANCIS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-2000.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Albert Russell Francis, in proper person.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for respondent.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Deny.


text:
    Anthrone McKINZY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2780.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Anthrone McKinzy, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

We dismiss the appeal from the denial on the merits of a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(c) as from a non-appealable order. See Clewis v. State, 715 So.2d 1129 (Fla. 3d DCA 1998)(an order denying a timely motion for reduction of sentence is not an appealable order); Dixon v. State, 616 So .2d 61 (Fla. 3d DCA 1993); Ziegler v. State, 380 So.2d 564 (Fla. 3d DCA 1980). The dismissal is without prejudice to McKinzy filing those claims which are cognizable via Florida Rule of Criminal Procedure 3.850.


text:
    CARNIVAL CORPORATION, Appellant, v. Digno Rivera MENDOZA, Appellee.
    No. 3D06-341.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Mase & Lara, P.A., and Curtis J. Mase, and Beverly D. Eisenstadt, Miami, for appellant.
    Downs Brill Whitehead, Pembroke Pines; Ralph 0. Anderson, Davie, for ap-pellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Carnival Corporation (“Carnival”) appeals a final judgment awarding its former seaman, Digno Rivera Mendoza, compensatory damages on his maintenance and cure claim after a bench trial. The damages were awarded based upon the trial court’s conclusion that Carnival had unreasonably refused payment for Mendoza’s back surgery. Mendoza injured his back while working aboard a Carnival vessel. On this appeal, Carnival raises three issues, one of which warrants a reversal. We therefore affirm in part and reverse in part.

First, Carnival argues that the trial court erred in its determination that Carnival was unreasonable in failing to provide back surgery to Mendoza and in terminating his maintenance and cure. We disagree. There is ample competent and substantial record evidence to support the trial court’s factual determination on this issue. See LRU, L.L.C. v. Kosmic of Key West, Inc., 792 So.2d 1269, 1270 (Fla. 3d DCA 2001)(quoting Lee v. Lee, 563 So.2d 754, 755 (Fla. 3d DCA 1990)(“Findings of fact by a trial judge in a non-jury proceeding will not be set aside on review unless totally unsupported by competent and substantial evidence.”)); Acosta v. Creative Group Investments, 790 So.2d 518, 518 (Fla. 3d DCA 2001)(same). Carnival’s unreasonable denial of maintenance and cure rendered it liable to Mendoza for compensatory damages. See Norwegian Cruise Lines, Ltd. v. Zareno, 712 So.2d 791, 794 (Fla. 3d DCA 1998)(if shipowner unreasonably rejects a claim for maintenance and cure payments it is liable not only for said payments but also for compensatory damages).

Carnival next assails the trial court’s award of compensatory damages for Mendoza’s future pain and suffering, asserting that this award was error because there was absolutely no evidence to support these damages. We agree that at this juncture of the proceeding, the record evidence does not support an award of compensatory damages for future pain and suffering. Therefore, we reverse this award without prejudice to litigate this issue during the remaining proceedings.

Finally, Carnival argues that the trial court erred when it permitted Mendoza to present evidence at trial in support of a punitive damages claim when no such claim had been pled. Given the fact, however, that the claim for punitive damages was withdrawn by the appellee at trial, this issue has become entirely moot. Accordingly, we decline to address it.

For all the foregoing reasons, we affirm in part, reverse in part, and remand.


text:
    Jennifer Denise HALPERN, M.D., Maria Mazzitelli Romano, C.R.N.A., and South Broward Hospital District d/b/a Memorial Regional Hospital, Appellants, v. Andrea HOUSER and Paul Houser, her husband, Appellees.
    No. 4D06-3083.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Nancy W. Gregoire and Charles A. Morehead, III of Bunnell Woulfe Kirschb-aum Keller McIntyre Gregoire & Klein, P.A., Fort Lauderdale, for appellants.
    Andrew M. Moss of Kutner, Rubinoff & Bush, P.A., Miami, for appellees.
   PER CURIAM.

The appellants, Jennifer Denise Hal-pern, M.D., Maria Mazzitelli Romano, C.R.N.A., and South Broward Hospital District d/b/a Memorial Regional Hospital, appeal a non-final order granting the ap-pellees’, Andrea and Paul Houser (the Housers), Motion for Relief from Judgment. We reverse and remand for the Housers to file a sworn Motion for Relief from Judgment and for the trial court to conduct an evidentiary hearing.

In May 2004, the Housers filed this medical malpractice action against the appellants, Jennifer Denise Halpern, M.D., Maria Mazzitelli Romano, C.R.N.A., and South Broward Hospital District d/b/a Memorial Regional Hospital. A year later, in July 2005, the trial court set the case for non-binding arbitration. On February 2, 2006, the arbitrator entered an arbitration award in favor of the appellants, finding that the appellants were not at fault and did not fall below the standard of care.

According to Florida Rule of Civil Procedure 1.820(h), a party has twenty days from service of the arbitrator’s decision to move for a trial de novo. However, the Housers failed to move for trial de novo within twenty days of the arbitrator’s decision, and consequently, on March 16, 2006, the trial court entered final judgment on the arbitration award and entered judgment in favor of the appellants.

On April 11, 2006, the Housers filed a Motion for Relief from Judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In their motion, the Housers alleged that they drafted and signed a Request for Trial De Novo, dated February 20, 2006, and while they “believed that the Request was mailed to opposing counsel and to the clerk of court, neither received the Request.” The Housers alleged that the Request for Trial De Novo was “either inadvertently not mailed or lost in the mail by mistake.” The Housers also alleged that on March 10, 2005, shortly after they were put on notice that the Request for Trial De Novo was not filed, they filed the Request with the clerk of the circuit court.

The trial court held a hearing on the Motion for Relief from Judgment, at which the Housers’ counsel admitted that the Request for Trial De Novo was not timely filed. Furthermore, at the hearing, neither testimony nor sworn affidavits were presented; the parties’ counsel merely presented their arguments to the court. The trial court held that the untimely Request for Trial De Novo was not jurisdictional and that the standards of Rule 1.540, “meritorious defense, excusable neglect and all” applied. Defense counsel argued that the Motion for Relief from Judgment did not satisfy the standards of Rule 1.540 because the motion was unverified. However, the trial court entered an order granting the Housers’ Motion for Relief from Judgment.

On appeal, the appellants argue that the Motion for Relief from Judgment did not meet the requirements of rule 1.540 for three reasons: (1) the motion was not verified, (2) the motion did not show excusable neglect, and (3) the motion did not establish a meritorious defense. The Housers argue that the trial court correctly granted their Motion for Relief from Judgment due to their mistaken belief that their Request for Trial De Novo was mailed. However, the Housers agree that if a sworn motion, affidavit, or evidentiary hearing is required, this matter should be remanded for the introduction of sworn testimony.

A showing of gross abuse of discretion is necessary on appeal to justify reversal of the lower court’s ruling on a motion to vacate. N. Shore Hospital, Inc. v. Barber, 143 So.2d 849, 852 (Fla.1962). Because the trial court granted relief, a higher standard is applied to overturn the decision than if the trial court had denied the motions. Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004).

A party against whom judgment has been entered pursuant to the rule requiring entry of judgment when the party fails to move for a trial de novo within twenty days of service of the arbitrator’s decision is entitled to file a motion to vacate judgment under rule 1.540(a), Florida Rules of Civil Procedure. Preferred Mut. Ins. Co. v. Davis, 629 So.2d 259, 260 (Fla. 4th DCA 1993). However, this Court held that pursuant to Florida Rule of Civil Procedure 1.540(b), in setting aside a default, the trial court must determine (1) whether the defendant has demonstrated excusable neglect in failing to respond, (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, has demonstrated due diligence in seeking relief. Schwartz v. Business Cards Tomorrow, Inc., 644 So.2d 611, 611 (Fla. 4th DCA 1994). This Court stated that the failure to satisfy any one of these elements must result in a denial of the motion to set aside the default. Id.

Furthermore, “Excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions of excusable neglect are insufficient.” Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004); see also Steinhardt v. Intercondominium Group, Inc., 771 So.2d 614, 614 (Fla. 4th DCA 2000). In Steinhardt, following two non-evidentiary hearings, the trial court denied a motion to dismiss a counterclaim finding that the counterclaim-ants’ delay in moving for substitution was the result of excusable neglect. 771 So.2d at 614. The trial court rejected counsel’s arguments that the counterclaimants were required to submit evidence, not mere representations of counsel, to show excusable neglect. Id. This Court reversed and remanded to the trial court to conduct an evidentiary hearing to determine whether the counterclaimants’ delay in moving to substitute was the result of excusable neglect. Id. at 615. Similarly, in Eden Park Management, Inc. v. Zagorski, 821 So.2d 1263, 1264 (Fla. 4th DCA 2002), this Court concluded that the trial court abused its discretion in granting the plaintiffs rule 1.540(b) motion to vacate dismissal of action where the pleading and the testimony in support of the motion to vacate were not sworn; however, this Court found that the trial court was not precluded from accepting evidence to support the claim of excusable neglect upon remand.

In this case, only unsworn assertions of excusable neglect were presented; The attorneys in this case merely presented their arguments while not under oath, and the Motion for Relief from Judgment was not sworn or supported by affidavits. The Housers even concede that they did not present a sworn motion, affidavit, or testimony before the trial court. Therefore, in accordance with our decisions in Steinhardt and Zagorski, we conclude that this matter must be remanded to allow the Housers’ counsel the opportunity to file a sworn Rule 1.540(b) motion and for the trial court to conduct an evidentiary hearing on the issue of excusable neglect.

We also find the cases cited by the Housers to be distinguishable. In Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983), this Court reversed the trial court’s denial of the defendant’s motion to set aside the default, finding that the mov-ant had demonstrated (1) excusable neglect, (2) a meritorious defense, and (3) due diligence upon learning of the default. This Court stated, “Although each case must be evaluated on its own facts, clerical or secretarial error has usually been found to constitute excusable neglect where there has been no substantial prejudice to the plaintiff.” Id. at 743. However, in Perdue, the defendant’s motion to set aside default was supported by various affidavits and testimony at a subsequent evidentiary hearing, both of which are lacking in this case. Id. Furthermore, in Somero v. Hendry General Hospital, 467 So.2d 1103, 1106 (Fla. 4th DCA 1985), where this Court stated that relief pursuant to Rule 1.540(b) should be granted due to “secretarial error, reasonable misunderstanding, a system gone awry or any other foibles to which human nature is heir,” a hearing was conducted at which plaintiffs counsel testified.

For these reasons, the trial court’s order granting the Housers’ Motion for Relief from Judgment is reversed and remanded for the Housers’ counsel to file a sworn motion and for the trial court to conduct an evidentiary hearing on the issue of excusable neglect.

Reversed and Remanded.

GUNTHER, POLEN and HAZOURI, JJ., concur.


author: STEVENSON, C.J.

text:
    Brian STREET, James Cohen and Boca Developers, Inc., Appellants, v. H.R. MORTGAGE & REALTY CO., Henry Rodstein, Deerfield Land Holdings III, Inc., Deerfield Beach Developers, Ltd., and Aventura Land Holding II, Ltd., Appellees.
    No. 4D05-4558.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Nancy W. Gregoire of Bunnell Woulfe Kirschbaum Keller McIntyre Gregoire & Klein, P.A., and Maurice M. Garcia of Greenspoon Marder, P.A., Fort Lauder-dale, for appellants.
    Joel S. Perwin of Joel S. Perwin, P.A., Miami, and Howard D. Dubosar of Dubo-sar & Dolniek, P.A., Boca Raton, for appel-lees H.R. Mortgage & Realty Co. and Henry Rodstein.
   STEVENSON, C.J.

The instant case involves a lawsuit to collect a mortgage broker’s commission. Appellees, H.R. Mortgage & Realty Co. and Henry Rodstein, sued Brian Street, James Cohen and Boca Developers, Inc., for breach of a contract to pay a commission for procuring financing from Bank United for a commercial real estate development project called “the Peninsula.” The jury found in favor of the brokers and awarded damages for the lost commission in the amount of $375,000 against all three appellants. After the jury verdict was rendered, the trial court denied the appellants’ motions to set aside the verdict and for new trial and granted the appellees’ motion for additur — increasing the award to $550,000. We reverse the order denying Street and Cohen a new trial on both damages and liability, and also find that Boca- Developers, Inc., was entitled to a directed verdict.

The brief factual summary which follows has been taken from the evidence at trial, interpreted in the light most consistent with the jury’s verdict. At the time of the trial, Rodstein owned H.R. Mortgage & Realty Co. and was in the business of procuring financing for commercial projects. Street and Cohen were involved together in a number of transactions to develop commercial property. Street and Cohen were also shareholders of Boca Developers, Inc., a Florida corporation that owns the trade name “Boca Developers.” As early as 1995, Rodstein had entered into an on-going relationship with Street and Cohen, who were “acting on behalf of various entities,” wherein Rodstein would be paid a commission of a certain amount whenever he was asked to obtain financing for any of Street and Cohen’s real estate projects. Later, during their business relationship, Street, on behalf of himself and Cohen, asked Rodstein to work on the acquisition of land and construction loans for the Peninsula project. The Peninsula is a 200-plus-unit condominium development project in Aventura, Florida. Because of Rodstein, Mr. Leider of Bank United became interested in the Peninsula, and through the continuing efforts of Rod-stein, Bank United became a participating lender in the $110,000,000 construction loan for the project. The evidence at trial suggested that the agreement between Rodstein, Street and Cohen was that Rod-stein would be paid a commission of $550,000 if he was successful in procuring the $110,000,000 in financing. The jury awarded Rodstein and his mortgage brokerage company $375,000 in damages.

After the jury verdict, appellants filed a motion for new trial and motion to set aside the verdict on the basis that the damages were inadequate and reflected a compromised verdict. At the hearing on the motion to set aside the verdict, appellants’ counsel conceded that a sum of $550,000 was “the only damages that could have been awarded.” However, appellants argued that the trial court’s only recourse was to set aside the verdict and grant a new trial on damages and liability because “it [wa]s plainly apparent from the record ... that the damages [wejre inadequate and that the issue of liability was hotly contested.” The trial court agreed that if the damages were inadequate and the issue of liability was hotly contested, appellants would be entitled to a new trial on liability and damages. The trial court determined, however, that whether the issue of liability was hotly contested did not depend on whether the parties hotly contested liability, but whether the jury did. The trial court stated: “This Court determines' that the evidence must show that liability was a hotly contested issue by the jury, which coupled with an inadequate award of damages, suggests that the jury compromised its’ verdict. Turning to the facts of this case, the Court cannot so find.” The court went on to deny the motion for new trial and motion to set aside the verdict, finding that “[[liability was never an issue with this jury which found both equitable and legal liability.” Subsequently, the trial court granted the appellees’ motion for additur and increased the damages award from $875,000 to $550,000.

Florida Statutes section 768.74(1) authorizes trial courts to review the amount of awarded damages “to determine if such amount is excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.” Section 768.74(4) further requires that “[i]f the party adversely affected by such remit-titur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.” The First District commented in 1661 Corp. v. Snyder, 267 So.2d 362, 364 (Fla. 1st DCA 1972), that

[t]o grant a new trial on the issue of damages alone, it must appear that on the evidence adduced at the trial the liability of the defendant was unequivocally established without substantial dispute and the inadequacy of the verdict was induced by a misconception of the law or the failure of the jury to consider all of the elements of damages submitted, and not as a result of a compromise by the jury on the issue of liability.

In Watson v. Builders Square, Inc., 563 So.2d 721, 722 (Fla. 4th DCA 1990), this court stated that a new trial on both liability and damages is appropriate “when a damage award is clearly inadequate and the issue of liability is hotly contested, [because] such circumstances give rise to a suggestion that the jury may have compromised its verdict.” “A trial court’s determination regarding additur may be reversed on appeal only where there is a clear abuse of discretion.” Aurbach v. Gallina, 721 So.2d 756, 758 (Fla. 4th DCA 1998).

In the instant case, since the parties essentially agree that the damages awarded were clearly inadequate, the issue becomes whether liability was hotly contested, thus suggesting that the jury compromised its verdict. See Watson. We disagree with the trial court’s determination that liability must be hotly contested by the jury and not simply by the parties. Although there is no precise definition for the phrase “hotly contested,” the cases support the appellants’ contention that a party seeking a retrial on both damages and liability is not limited to proving that liability was hotly contested by the jury. In Calloway v. Dania Jai Alai Palace, Inc., 560 So.2d 808 (Fla. 4th DCA 1990), Calloway was injured in a slip and fall at Dania Jai Alai Palace, and the jury awarded her less than half of her uncontroverted medical bills and lost wages. This court held that retrial on damages was necessary and further explained that “retrial of the liability issue is warranted in the light of that aspect of the case having been vigorously contested. There were no eyewitnesses to Calloway’s fall; she does not know what caused her to trip. Both sides presented conflicting expert testimony.” Id. at 809-10. The court went on to state that “the liability of the parties was equivocal, with the result that it is more than merely conceivable that the jury ‘interwove the issues of liability and damages on the verdict form in an inconsistent way, suggestive of a compromise on liability, possible confusion on the law of damages, or both.’ ” Id. at 810 (quoting Rivera v. Aldrich, 538 So.2d 1390, 1392 (Fla. 3d DCA 1989)). Although the jury’s probable struggle with the liability issue was noted, we do not read Calloway as having held that a party must show that liability was hotly contested by the jury, as well as by the parties.

Other Florida cases also support the conclusion that liability need only be hotly contested by the parties, and within the evidence in the record, in order for the trial court to grant a new trial where the damages are shown to be clearly inadequate. In Timmy Woods Beverly Hills, Ltd. v. Greenwald, 475 So.2d 256, 257 (Fla. 3d DCA 1985), the Third District reversed for a new trial on damages and liability where the damages were clearly inadequate and the question of liability was “a close one” since evidence in the record supported both parties’ arguments. In Newalk v. Florida Supermarkets, Inc., 610 So.2d 528 (Fla. 3d DCA 1992), the plaintiff sued when she slipped and fell in a Pantry Pride store. The jury evenly apportioned negligence between Newalk and Florida Supermarkets. In the face of undisputed evidence as to Newalk’s medical expenses, the jury awarded damages for past and future medical expenses and lost earnings. The trial court denied Newalk’s motion for additur. On appeal, the Third District concluded that the damages were clearly inadequate and that a new trial on damages and liability was necessary because “[t]he issue of liability was hotly disputed by the parties and struggled over by the jury.” Id. at 530. In concluding that a new trial was warranted on damages and liability, the Newalk court considered both the fact that the 50/50 verdict suggested the jury was “torn on the issue of liability” and the fact that the issue of liability was “hotly disputed” by the parties. Id. We acknowledge that Newalk stands for the proposition that the jury’s verdict itself could shed light on whether the issue of liability was hotly contested in a given case.

The appellees contend that since the instant case involves “a single measure of quantifiable damages,” we must presume the jury simply made a mistake. Here, it is impossible to know if the jury agreed to a compromise or made a mistake and accidentally gave the appellees $375,000 instead of $550,000. The court in Timmy Woods Beverly Hills stated:

A rule which requires a complete new trial when liability is close and damages clearly inadequate prevents appellate courts from having to engage in the type of post-hoc mind-reading which would be necessary to decide whether the jury was confused, in which case a new trial on damages alone would be adequate, or compromising, which would require a new trial on liability as well.

475 So.2d at 258 n. 5. Indeed, case law does not require actual proof that the jury did compromise its verdict. For example, in Broward County School Board v. Dombrosky, 579 So.2d 748 (Fla. 4th DCA 1991), the plaintiff, a student, sued the school board because he was struck and injured by a golf cart he alleged was being negligently driven by a teacher on school premises. The jury found in favor of the plaintiff, but awarded only $1,672 in medical expenses even though the unrefuted amount of his medical bills was $8,671. This court held that a new trial on liability and damages was necessary because “there [wa]s some suggestion” that the jury may have compromised on the verdict in light of the “hotly contested evidence of liability” and the jury’s decision to give just a small award of damages. Id. at 750; see also Cowen v. Thornton, 621 So.2d 684, 687 (Fla. 2d DCA 1993) (reversing for a new trial on damages and liability and stating that an inadequate award of damages when liability is “vigorously” contested “gives rise to a suspicion that the jury may have compromised its verdict”).

In the instant case, we must reverse the denial of the motion to set aside the verdict and motion for new trial because the trial court used the wrong standard in denying the motions based upon its determination that it could only grant a new trial on liability and damages if liability was hotly contested by the jury, and not simply by the parties or within the evidence. We do not know what conclusion the trial court would have reached had the proper standard been used since liability was indeed contested in this case. The parties disputed whether Rodstein was the procuring cause of the Peninsula construction loan and whether an oral contract even existed for this project. We do know that whatever conclusion the trial court would reach, using the proper -standard, would be subject to reversal only upon a clear abuse of discretion. See Aurbach, 721 So.2d at 758. Thus, we reverse and remand for the trial court to reconsider the motions for new trial and to set aside the verdict consistent with the discussion herein.

We also agree with appellants’ argument that the trial court should have granted a directed verdict on liability for Boca Developers, Inc., since there was no competent, substantial evidence that Boca Developers was formed by Cohen and Street for the Peninsula project or that Cohen and Street entered into their oral agreement to pay Rodstein a broker’s commission while acting on behalf of Boca Developers, Inc. Thus, there was simply no basis in the record to support the finding that Boca Developers was obligated to pay all or part of the broker’s commission to the appellees. We have carefully considered the myriad of other issues briefed in this appeal, but find no reversible error beyond that discussed herein. Accordingly, this case is remanded for further proceedings consistent with this decision.

Affirmed in part, Reversed in part, and Remanded.

KLEIN and SHAHOOD, JJ., concur.

      . H.R. Mortgage and Rodstein also sued Deerfield Land Holdings III, Deerfield Beach Developers and Aventura Land Holdings II, but those parties are not involved in this appeal.

      . In the instant case, the jury indicated in one of its notes to the judge that they were “firmly in agreement with [their] verdict.’’ We do not believe, however, that this comment precludes the idea that liability was hotly contested during the deliberations.


text:
    Virgie ARTHUR, Appellant, v. Richard C. MILSTEIN, Guardian Ad Litem for Dannielynn Hope Marshall Stern, and Howard K. Stern, Appellees.
    No. 4D07-715.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.

      Roberta G. Mandel of Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A., Miami, for appellant.
    Christopher S. Carver and Richard C. Milstein of Akerman Senterfitt, Miami, for Appellee-Riehard C. Milstein.
    June Galkoski Hoffman of Fowler White Burnett P.A., Miami, for Appellee-Howard K. Stern.
   PER CURIAM.

Virgie Arthur, as natural mother and next of kin of the decedent, Vickie Lynn Marshall a/k/a Anna Nicole Smith, has filed an emergency petition for writ of certiorari. Through the petition, she asks this court to quash the trial court’s February 22, 2007 order that granted Danniel-ynn Hope Marshall Stem’s motion to recognize her sole right to determine the disposition of Smith’s remains and the related ruling directing that the Guardian Ad Litem direct all aspects with respect to the handling of those remains consistent with the best interest of that child. We re-designate the ease as an appeal from a final order and have expedited relief accordingly. § 9.110(a)(2). Fla. R.App. P. We affirm the trial court’s decision and address the second of the three points raised.

The trial court found that Arthur and the Guardian Ad Litem, on behalf of the child, both qualified as a “legally authorized person” as that term is defined in Florida Statute section 497.005(37). In finding that both were legally authorized, Florida Statute section 406.50(4) directs that priority to the remains pass in accordance with section 732.103 of the probate code. Under section 732.103, the lineal descendants of the decedent have priority.

Arthur argues that she, alone, is the “legally authorized person” to take possession of the remains, and the trial court erred in finding that the Guardian Ad Li-tem is an additional “legally authorized person.” The phrase “legally authorized person” is found in Florida Statute section 497.005(37) (2006), which provides:

(37) “Legally authorized person” means, in the priority listed, the decedent, when written inter vivos authorizations and directions are provided by the decedent; the surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased; a son or daughter who is 18 years of age or older; a parent; a brother or sister who is 18 years of age or older; a grandchild who is 18 years of age or older; a grandparent; or any person in the next degree of kinship. In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; .... Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.

In the event more than one legally authorized person claims a body in the custody of the medical examiner for interment, section 406.50(4) provides that the requests shall be prioritized in accordance with section 732.103. Florida Statute section 732.103 of the Florida Probate Code provides that the part of the intestate estate not passing to the surviving spouse under section 732.102, or the entire intestate estate if there is no surviving spouse, descends first to the lineal descendants of the decedent, and if there is no lineal descendant, to the decedent’s father and mother equally, or to the survivor of them.

The trial court relied upon section 406.50(4) to determine that Dannielynn had priority over Arthur. Arthur’s position is that dependence on section 406.50(4) was error in this case as she is the sole “legally authorized person” as contemplated by section 497.005(37), and as such, she is entitled to make decisions regarding the disposition of the decedent’s remains.

We find that neither section 497.005(37), nor section 406.50, control the outcome of this case, which in essence involves private parties engaged in a pre-burial dispute as to the decedent’s remains. Otherwise stated, the trial court was not being asked to consider whether a funeral home or medical examiner was liable for its decision with respect to the disposition of a decedent’s remains. Compare Matsumoto v. American Burial and Cremation Services, 949 So.2d 1054, 2006 WL 3733310 (Fla. 2d DCA Dec.20, 2006) (addressing daughter’s suit against funeral home and recognizing that section 497.005 does not impose a due diligence requirement on the funeral home and that the applicable statutes dictate the funeral home’s duties); Andrews v. McGowan, 739 So.2d 132 (Fla. 5th DCA 1999) (lineal descendant sued funeral homes after one home released the decedent’s remains to another without the personal representative’s authorization); Jackson v. Rupp, 228 So.2d 916 (Fla. 4th DCA 1969) (next of kin sued medical examiner). See also McRae v. Booth, 938 So.2d 432 (Ala.Civ.App.2006). Collectively, those cases indicate that the intent of those statutes is to guide the funeral home operators by clearly delineating the priority of those persons who are legally authorized to make funeral arrangements for a deceased person. See also § 497.002(2), Fla. Stat. (2006) (noting the purpose and intent of Chapter 497 expressly provides that subject to certain interests in society, “the Legislature finds that every competent adult has the right to control the decisions relating to his or her own funeral arrangements.”).

In this case, common law is dis-positive. Kirksey v. Jernigan, 45 So.2d 188, 189 (Fla.1950); Cohen v. Guardianship of Cohen, 896 So.2d 950 (Fla. 4th DCA 2005); Leadingham v. Wallace, 691 So.2d 1162 (Fla. 5th DCA 1997). Generally, in the absence of a testamentary disposition, the spouse of the deceased or the next of kin has the right to the possession of the body for burial or other lawful disposition. Kirksey. In Cohen, we held that a written testamentary disposition is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body. Cohen looked to decisions of other states which determined that whether to enforce the will provisions regarding disposition of the testator’s body depends upon the circumstances of the case.

Having recognized certain property rights in dead bodies, many courts have announced the rule that a person has the right to dispose of his own body by will. However, courts, while paying lip service to the doctrine of testamentary disposal, have in certain instances permitted the wishes of the decedent’s spouse or next of kin to prevail over those of the testator. In other instances, courts have accepted and acted upon evidence that indicated that the decedent’s wishes concerning the disposition of his body had changed since the execution of his will.

Id. at 958 (quoting B.C. Ricketts, Annotation, Validity and Effect of Testamentary Direction as to Disposition of Testator’s Body, 7 A.L.R.3d 747 § l[b] (1966)).

Cohen noted that there were “no cases in Florida or across the country in which a testamentary disposition has been upheld even though credible evidence has been introduced to show that the testator changed his or her mind as to the disposition of his/her body.” 896 So.2d at 954. There, we found no abuse of discretion associated with the trial court’s finding of the decedent’s intent. See also Leading-ham. We note that even under section 497.005(37), the first priority is to the wishes of the decedent “when written inter vivos authorizations and directions are provided” and that the remaining list of legally authorized persons are those who are most likely to know and follow those wishes. To the extent sections 497.005(37) and 406.05(4) provide guidance, the priorities therein could set forth a presumption, rebuttable by clear and convincing evidence of the decedent’s intent, as was the will in Cohen, and as found here.

The “tipsy coachman” doctrine, allows an appellate court to affirm a trial court that “reaches the right result, but for the wrong reasons” so long as “there is any basis which would support the judgment in the record.” Robertson v. State, 829 So.2d 901, 906 (Fla.2002)(citing Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999)), which cited Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979).

Herein, the trial court found that “Anna Nicole Smith’s last ascertainable wish with respect to the disposition of her remains was that she be buried in the Bahamas next to her son Daniel Wayne Smith.” This finding is not essentially disputed. In light of the trial court’s extensive findings and comments associated with Smith’s intent, coupled with the Guardian Ad Li-tem’s representation and commitment to a burial in the Bahamas, we conclude that there is no need to remand the case for further proceedings.

Affirmed.

No rehearing will be entertained and the Clerk of the Court is directed to issue the mandate forthwith.

STONE, POLEN and SHAHOOD, JJ., concur.

      . The parties in their filings and at oral argument stipulated to treatment of the case either as a certiorari proceeding or a final appeal. See § 9.040(c), Fla. R.App. P.


author: CANADY, Judge.

text:
    John Allen PARVIN, Appellant, v. VALHALLA PROPERTIES ON SAND KEY, LLC, a dissolved Kentucky limited liability company; Marilyn J. Johnson; Jo Ann Kilgore; and Marion Roland, Appellees.
    No. 2D05-5022.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2007.
    John Allen Parvin, pro se.
    Christopher Smith, Sarasota, for Appel-lee Marion Roland.
    No appearance for Appellees Valhalla Properties on Sand Key, LLC, Marilyn J. Johnson, and Jo Ann Kilgore.
   CANADY, Judge.

John Alen Parvin appeals a nonfinal order (1) granting a motion to vacate an arbitration award and (2) denying a motion to reinstate a previously vacated arbitration award. Because we lack jurisdiction to consider an appeal of this nonfinal order, we dismiss Parvin’s appeal.

The Florida Constitution “permits district courts of appeal to review non-final orders only to ‘the extent provided by rules adopted by the supreme court.’ ” Loewenstein, Inc. v. Draheim, 898 So.2d 1129, 1130 (Fla. 4th DCA 2005) (quoting art. V, § 4(b)(1), Fla. Const.). Florida Rule of Appellate Procedure 9.030(b)(1)(B) grants the district courts of appeal jurisdiction with respect to “non-final orders of circuit courts as prescribed by rule 9.130.” The order at issue in this appeal does not fall within the scope of the appealable non-final orders listed in rule 9.130.

Rule 9.130(a)(3)(C)(iv) provides for the appeal of nonfinal orders that “determine ... the entitlement of a party to arbitration.” The order at issue here, however, does not address the issue of entitlement to arbitration.

Parvin contends that his appeal is authorized by the provisions of section 682.20(l)(c), Florida Statutes (2005), that purport to create a right of appeal from an order “confirming or denying confirmation of an [arbitration] award.” “But only the supreme court is empowered to grant interlocutory jurisdiction to the district courts of appeal, which it has done with respect to the nonfinal orders listed in [rule] 9.130.” Friendly Homes of the S., Inc. v. Fontice, 932 So.2d 634, 636 (Fla. 2d DCA 2006). Under article V, section (4)(b)(l) of the Florida Constitution, jurisdiction of the' district courts to consider appeals of nonfinal orders may not be established by statute.

Accordingly, the nonfinal order appealed by Parvin is a nonappealable order. See Loewenstein, Inc., 898 So.2d at 1130 (holding that “order vacating an arbitration award” was a “non-appealable, non-final order”); Fontice, 932 So.2d at 636 (holding that district court lacks jurisdiction to consider appeal of nonfinal “orders denying motions to confirm arbitration awards”). The appeal is dismissed because this court has no jurisdiction to consider it.

Dismissed.

NORTHCUTT and SALCINES, JJ., Concur.


text:
    George A. PEOPLES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D07-0071.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Geoffrey R. Mason of Schackow, Merca-dante & Edwards, Gainesville, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the notice of appeal was filed more than 30 days after rendition of the order, the court is without appellate jurisdiction. See Fla. R.App. P. 9.110(b). Accordingly, this appeal is dismissed for lack of jurisdiction.

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