text:
    Karl BEHM and Marilyn Behm, Appellant, v. Timothy CAMPBELL, Michael Kelly, et al., Appellee.
    No. 5D05-2200.
    District Court of Appeal of Florida, Fifth District.
    March 10, 2006.
    Michael W. Woodward, of Keyser & Woodward, Interlachen, for Appellant.

      John W. Jolly, Jr., of Jolly & Peterson, Tallahassee, for Appellee.
   SHARP, W., J.

Karl Behm and his wife, Marilyn, appeal from a final summary judgment in favor of the Sheriff of Putnam County and Putnam County Deputies Michael Kelly, Timothy Campbell and Joseph Azula. The Behms sued the Sheriff and deputies for battery, false arrest/imprisonment and trespass after Behm was arrested by one of the deputies. However, because Behm entered a no contest plea to resisting the arrest, in the criminal case, he is foreclosed from suing the Sheriff and deputies in a civil action for damages arising from the same incident.

The record reflects that on December 12, 2000, the deputies responded to a disturbance call involving possible gunshots. According to their reports, the deputies saw Behm’s truck leaving the area and attempted to stop him. Behm did not stop and instead drove to his residence. The deputies told Behm he was going to be detained until they finished their investigation. Behm told the deputies they were trespassing.

The deputies spotted a rifle in Behm’s truck and what appeared to be a bullet hole on the passenger side. Behm said he was going inside his house and turned to leave. Campbell stepped in front to prevent Behm from leaving and Behm tried to hit Campbell. The deputies then forced Behm to the ground. He resisted and they pepper sprayed him.

Behm was arrested for resisting arrest with violence. Later an information was filed charging him with resisting Deputy Campbell “in the lawful execution of a legal duty.” Behm entered a plea of no contest to the lesser included offense of resisting arrest without violence, in violation of section 843.02, and adjudication of guilt was withheld.

Behm and his wife then sued the Sheriff and deputies Campbell, Kelly and Azu-la, for battery, false arrest/imprisonment and trespass. The Behms sought damages arising out of the same incident as the one involved in the criminal case against Behm. Both sides ultimately moved for summary judgment.

At the summary judgment hearing, Behm argued the deputies had no probable cause, no reasonable suspicion and no legal basis for staying on his property after he asked them to leave. Defense counsel argued that Behm’s no contest plea estopped him from contending the underlying arrest was unlawful.

The trial court granted the defendants’ motion for summary judgment but allowed Behm to amend his battery count to allege excessive force. Behm apparently chose not to amend his complaint and final judgment was entered in the defendants’ favor.

Under Florida law, Behm’s no contest plea constituted a “conviction” even though adjudication of guilt was withheld. See Montgomery v. State, 897 So.2d 1282 (Fla.2005) (defendant’s no contest pleas with adjudication of guilt withheld constituted prior “convictions” under the sentencing guidelines); § 960.291(3), Fla. Stat. (“Conviction” means a guilty verdict by a jury or judge, or a guilty or nolo contendere plea by a defendant, regardless of adjudication of guilt).

A judgment of conviction is conclusive evidence of probable cause, unless the judgment was obtained by fraud, perjury, or other corrupt means. Moody v. City of Key West, 805 So.2d 1018 (Fla. 3d DCA 2001); Carter v. City of St. Petersburg, 319 So.2d 602 (Fla. 2d DCA 1975). Here there is no evidence or even an allegation that Behm’s plea was obtained by any corrupt means. Thus Behm’s conviction established probable cause for his arrest.

By virtue of his criminal conviction for resisting arrest, Behm is foreclosed from collaterally attacking the legality of that arrest in a civil action. See Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In Heck, the Supreme Court held that a plaintiff could not bring an action under 42 U.S.C.1983 after having been convicted of a criminal offense stemming from the same act that is the basis of the civil lawsuit:

We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. (footnote omitted)

512 U.S. at 486-487, 114 S.Ct. 2364.

As an example of a situation involving a claim for damages caused by actions “whose unlawfulness would render a conviction or sentence invalid,” the Court cited the following:

An example of this latter category — a § 1983 action that does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply that the plaintiffs criminal conviction was wrongful — would be the following: A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest. (This is a common definition of that offense. See People v. Peacock, 68 N.Y.2d 675, 505 N.Y.S.2d 594, 496 N.E.2d 683 (1986); 4 C. Torcía, Wharton’s Criminal Law § 593, p. 307 (14th ed.1981).) He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judi-cata, see n. 2, supra, the § 1983 action will not lie.

512 U.S. at 487, n. 6,114 S.Ct. 2364.

This is precisely the situation here. Behm was convicted of resisting arrest without violence, a conviction which established the legality of his arrest. In order to prevail in his civil action for false arrest/imprisonment, trespass and battery, he would have to negate an element of the offense of which he has been convicted. Such a collateral attack on the conviction through the vehicle of a civil suit is not permitted. Heck. See also Abella v. Ru-bino, 63 F.3d 1063 (11th Cir.1995) (Court’s purpose in Heck was to limit the opportunities for collateral attack on state court convictions because such collateral attacks undermine the finality of criminal proceedings and may create conflicting resolutions of issues).

Since Behm was convicted of resisting arrest, he cannot now sue the Sheriff and deputies claiming that very arrest was unlawful. Thus summary judgment was properly entered in the defendants’ favor. See Moody v. City of Key West, 805 So.2d 1018 (Fla. 3d DCA 2001) (summary judgment in favor of defendants was properly entered insofar as plaintiff based his section 1983 claims and state law claims on wrongful arrest or wrongful detention where plaintiff pled to battery and resisting arrest in the criminal case, plaintiff cannot now sue the police alleging that very arrest and detention were wrongful); Epstein v. Toys-R-Us Delaware, Inc., 277 F.Supp.2d 1266 (S.D.Fla.2003), affirmed, 116 Fed.Appx. 241 (11th Cir.2004) (in action against police officers and others by customer who was arrested for disorderly conduct at store, officers were entitled to final summary judgment on state law claims for false arrest/false imprisonment where plaintiff had pled no contest to a charge of resisting arrest without violence arising from the incident).

Contrary to Behm’s argument, his claims against the deputies are all related to the lawfulness of his arrest. Since the lawfulness of the deputies’ actions has been established by the criminal proceeding, Behm has no claim for false arrest or trespass. And, as pleaded, Behm’s battery claim involves acts that are simply part of the arrest process and thus does not involve a separate tort. Lester v. City of Tavares, 603 So.2d 18 (Fla. 5th DCA 1992) (acts taken by police officer to make physical arrest and officer’s preparation of arrest affidavit did not give rise to independent tort claims for battery and libel since acts were no more than ordinary incidents of arrest).

We also reject Behm’s argument that section 90.410 prohibits consideration of his criminal case as a defense to this lawsuit. This section provides:

90.410. Offer to plead guilty; nolo contendere; withdrawn pleas of guilty
Evidence of a plea of guilty, later withdrawn; a plea of nolo contendere; or an offer to plead guilty or nolo contendere to the crime charged or any other crime is inadmissible in any civil or criminal proceeding. Evidence of statements made in connection with any of the pleas or offers is inadmissible, except when such statements are offered in a prosecution under chapter 837 [perjury].

We could not locate any Florida cases directly on point but rely on cases construing comparable federal and state rules. For example, in Alatraqchi v. City and County of San Francisco, 2001 WL 637429 (N.D.Cal. May 30, 2001), the plaintiff was arrested on several charges and entered a no contest plea to a charge of disturbing the peace. The plaintiff then filed suit against the arresting officer Payne and others for false arrest and false imprisonment.

The district court granted the officer’s motion for summary judgment. In so doing, the court rejected the plaintiffs argument that Federal Rule of Evidence 410 barred consideration of his plea:

Plaintiff argues that his “no contest” plea is irrelevant and cannot be considered by the court, because under Federal Rule of Evidence 410, a nolo conten-dere plea is not admissible at trial as evidence against him. Plaintiffs argument misstates the law. Rule 410 prohibits the use of a “no contest” plea, against the defendant who made the plea, as an admission or as evidence of guilt in another proceeding. In this case, however, Payne does not seek to use plaintiffs plea against plaintiff as an admission or as evidence of guilt. Under Heck, plaintiffs “no contest” plea is significant merely by the fact of its existence, and by the fact that it resulted in a criminal conviction. The Supreme Court has ruled that a plaintiff has no § 1983 claim if such claim would neees-sarily imply the invalidity of the plaintiffs conviction.

2001 WL 637429, p. 2.

In Walker v. Schaeffer, 854 F.2d 138 (6th Cir.1988), the plaintiffs entered no contest pleas (one to disorderly conduct and the other to reckless driving), were found guilty and sentenced to pay a fine in state court. The plaintiffs later sued the arresting officers in federal court for false arrest, detention, and imprisonment.

The Court of Appeals held that the pleas in state court and the finding of guilt and imposition of fines by that court estopped the plaintiffs from asserting in federal court that the police officers acted without probable cause. The court also held that Federal Rule of Evidence 410 did not bar consideration of the plaintiffs’ pleas:

We do not consider our conclusion to be barred by Fed.R.Evid. 410, which provides that evidence of “a plea of nolo contendere” is not, “in any civil or criminal proceeding, admissible against the defendant who made the plea.” This case does not present the kind of situation contemplated by Rule 410: the use of a nolo contendere plea against the pleader in a subsequent civil or criminal action in which he is the defendant. See, e.g., United States v. Manzella, 782 F.2d 533 (5th Cir.), cert, denied, 476 U.S. 1123, 106 S.Ct. 1991, 90 L.Ed.2d 672 (1986) (use of nolo contendere plea to impeach defendant in subsequent criminal prosecution). In this case, on the other hand, the persons who entered prior no-contest pleas are now plaintiffs in a civil action. Accordingly, use of the no-contest plea for estoppel purposes is not “against the defendant” within the meaning of Fed.R.Evid. 410. This use would be more accurately characterized as “for” the benefit of the “new” civil defendants, the police officers.
We find a material difference between using the nolo contendere plea to subject a former criminal defendant to subsequent civil or criminal liability and using the plea as a defense- against those submitting a plea interpreted to be an admission which would preclude liability. Rule 410 was intended to protect a criminal defendant’s use of the nolo contendere plea to defend himself from future civil liability. We decline to interpret the rule so as to allow the former defendants to use the plea offensively, in order to obtain damages, after having admitted facts which would indicate no civil liability on the part of the arresting police, (emphasis in original)

854 F.2d at 143.

In Delong v. State ex rel. Oklahoma Dept, of Public Safety, 956 P.2d 937 (Okla. Civ.App.1998), the court held that the plaintiffs no contest pleas to the charges of resisting arrest and attempted escape from detention were admissible defensively in her lawsuit for false arrest/imprisonment. The plaintiffs pleas admitted the validity of the charges, established probable cause for her arrest on those charges, and waived any irregularities in the criminal proceedings including lack of probable cause. As to the plaintiffs claim her pleas were inadmissible, the court stated:

In [Irwin v. SWO Acquisition Corp., 830 P.2d 587 (Okla.App.1992)], the Court of Appeals first recognized that the Oklahoma Evidence Code indeed proscribed admission of such a plea against a former criminal defendant. See, 12 O.S.1991 § 2410. See also, 22 O.S.1991 § 513. However, the Court of Appeals in Irwin, persuaded by a similar holding of the Sixth Circuit Court of Appeals, interpreted the purpose of these exclusionary rules to proscribe “offensive” use of a nolo contendere plea admission of the underlying facts to establish the criminal defendant’s subsequent potential civil liability, not to proscribe “defensive” use of the admission against the criminal defendant in a case where the criminal defendant sought to recover damages for an alleged unlawful arrest, having admitted facts indicating no civil liability of the arresting officers. See, Walker v. Schaeffer, 854 F.2d 138, 142, 143 (6th Cir.1988). The Court of Appeals in Irwin thus held a nolo com tendere plea admissible.

956 P.2d at 938.

We conclude that section 90.410, like its federal and state counterparts, would not bar consideration of Behm’s conviction simply because it was based on a no contest plea. Section 90.410 seems intended to protect the criminal defendant who pleads no contest from future liability. It does not appear to us that it was intended to shield a defendant from his own actions in entering a no contest plea in a criminal setting and then repudiating that declaration in a civil setting. See Starr Tyme, Inc. v. Cohen, 659 So.2d 1064, 1068 (Fla. 1995) (section 90.410 speaks only to the admission into evidence of the plea itself; it does not address the collateral estoppel effect of a final judgment resulting from the plea).

AFFIRMED.

TORPY and LAWSON, JJ„ concur.

      . According to Behm, he told the deputies they were trespassing and asked them to leave. They refused to do so. When Behm turned to go to his house, they grabbed him, struck him and pepper sprayed him.

      . 843.02. Resisting officer without violence to his or her person
      Whoever shall resist, obstruct, or oppose any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; county probation officer; parole and probation supervisor; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
      Resisting arrest without violence is a permissive lesser included offense of resisting arrest with violence. Kirk v. State, 708 So.2d 636 (Fla. 5th DCA 1998).

      . At the time Behm filed his lawsuit, Taylor Douglas was the Sheriff. Daniel Kelly was later elected Sheriff and was substituted for Douglas.

      . Marilyn’s claims were for loss of consortium.

      . Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements
      Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
      (1) a plea of guilty which was later withdrawn;
      (2) a plea of nolo contendere;
      (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
      (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
      However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William Harold GIDNEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-1437.
    District Court of Appeal of Florida, Fourth District.
    March 15, 2006.
    Rehearing Denied May 3, 2006.
    William Harold Gidney, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

William Gidney appeals the dismissal of his rule 3.850 motion. In dismissing his motion, the circuit court concluded that his ineffective assistance of counsel claim was insufficient because he did not allege that but for counsel’s deficient performance he would not have entered the plea and would have insisted on proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The court concluded appellant’s other claims could not be raised in a 3.850 motion because they could have been raised in a rule 3.170(Z) motion to withdraw plea.

To the extent that appellant is attempting to go behind the plea and raise issues that were known when he entered the plea, we agree that these claims cannot be raised in a rule 3.850 motion. See Stano v. State, 520 So.2d 278, 280 (Fla.1988); Dean v. State, 580 So.2d 808 (Fla. 3d DCA 1991). For example, defendant alleges that his confession was coerced, that a phone conversation with his wife regarding the victim in this case was illegally recorded, and that his arrest was illegal. Challenges to his confession and evidence flowing from his arrest were possible defenses that he abandoned when he entered his plea.

However, appellant’s failure to file a 3.170(0 motion does not bar him from raising claims of ineffective assistance of counsel or claims that affected the volun-tariness of his plea. Dooley v. State, 789 So.2d 1082 (Fla. 1st DCA 2001).

Nevertheless, we agree that appellant’s motion should have been dismissed because he did not demonstrate prejudice. In his request for relief in the trial court, appellant did not ask to withdraw his plea and he did not indicate where in his motion or supporting memoranda of law he alleged that but for counsel’s deficiencies or the state’s alleged Brady violation, he would not have entered a plea and would have elected to go to trial. Hill, supra; Taylor v. State, 848 So.2d 410, 412 (Fla. 1st DCA 2003).

Florida Rule of Criminal Procedure 3.850(c)(6), requires the post-conviction motion to include a “brief statement of the facts (and other conditions) relied on in support of the motion.” Appellant’s motion and supporting memoranda of law are excessively verbose. The memoranda of law are not simply a discussion of relevant case law, but an exceedingly long and repetitious discussion of the facts supporting his claims. Because he did not paginate his memoranda of law, we can only estimate that the filing exceeds 250 pages. Considering that Gidney entered a plea in this case and that the issues he raises are not complex, his excessive motion is an abuse of procedure. There is no reason it should take several hundred pages for him to explain his claims.

We affirm the trial court’s order without prejudice for appellant to file, in the time remaining under rule 3.850(b), a rule 3.850 motion that succinctly states the facts relied on to support his motion and that sufficiently demonstrates prejudice.

Appellant should be aware that if he successfully moves to withdraw his plea, the state can try him on all of the original charges, including the three counts of capital sexual battery, which would require a sentence of life in prison if he is convicted. §§ 794.011(2)(a), 775.082(1), Fla. Stat.

GUNTHER, STONE and SHAHOOD, JJ., concur.

      . By way of comparison, we note that post-conviction motions in death penalty cases cannot exceed 75 pages. Fla. R.Crim. P. 3.851(e)(1).

      . In addition to his excessive post-conviction motion, Gidney has filed a 176-page initial brief, a 22-page supplement to the initial brief, a 51-page second supplement to the initial brief and additional documents or pleadings in this court. He acknowledges that he has filed more than 500 pages worth of facts and law in the circuit court and this court.


author: STEVENSON, C.J.

text:
    William S. DAMES, Sr. and Joy Carlista Dames, Appellants, v. 926 COMPANY, INC., Wachovia Bank, N.A., Delray Beach Community Redevelopment Agency and IR and AR, Inc., a Florida corporation, Appellees.
    No. 4D05-372.
    District Court of Appeal of Florida, Fourth District.
    March 15, 2006.
    Rehearing Denied May 9, 2006.

      Temple Fett Kearns, Sidney C. Callo-way and Edward J. O’Sheehan of Shutts & Bowen LLP, Fort Lauderdale, for appellants.
    Michael D. Brown of Brown & Associates, P.A., Riviera Beach, for appellee 926 Company, Inc.
   STEVENSON, C.J.

This appeal arises from the tenants’ claim for apportionment of proceeds paid the property owner following the exercise of eminent domain powers and the taking of the property. The trial court denied the tenants’ claim for apportionment finding they had no compensable interest in the property. We reverse.

The Proceedings Below

In December 2002, the Delray Beach Community Redevelopment Agency (“CRA”) filed an eminent domain petition directed to property located at 910 W. Atlantic Avenue and 926 W. Atlantic Avenue. The owner of the two buildings was 926 Company, Inc., and it and the tenants of both buildings, IR and AR, Inc., and William S. and Joy Carlista Dames (hereinafter “the Dames”), were named respondents. On July 8, 2003, the trial court rendered an Agreed Order of Taking, providing the CRA was entitled to the “vesting of title and possession” of the two buildings upon its deposit of the good faith estimate of the property’s value ($567,163) into the court’s registry, but allowing the tenants to remain on the premises through September 1, 2003. On July 17, 2003, the CRA filed notice of its deposit of the $567,163 into the court’s registry. Subsequently, a stipulated final judgment was entered, providing the property owner would be paid $615,000 for the taking of the property.

The Dames, who operated Delray Coin Laundry out of the 910 W. Atlantic Avenue building, claimed they were entitled to a portion of the compensation paid the property owner, insisting they held a leasehold interest in the premises as a consequence of their October 1998 purchase of Delray Coin Laundry, Inc., and its assets. Lloyd and Marian Millanise, the couple from whom the Dames purchased Delray Coin Laundry, Inc., were permitted to intervene in the apportionment proceedings. In purchasing the laundry, the Dames signed a $75,000 promissory note secured by a chattel mortgage and, in December 2003, the Millanises sought to foreclose upon the mortgage.

The property owner took the position that the Dames were entitled to no portion of the $615,000, arguing the Dames, individually, held no leasehold interest in the premises as the lease was actually assigned to Delray Coin Laundry, Inc. The property owner further argued that, even if it could be said the Dames, individually, held a leasehold interest, they still were not entitled to compensation because they abandoned the premises, thereby breaching the lease. The Dames insisted they did hold the lease and were operating the laundry at all relevant times. An eviden-tiary hearing was held on the parties’ respective claims, following which the trial court determined the Dames were not entitled to any portion of the compensation paid the property owner. The court found the Dames never individually held the lease and, even if they had, were nonetheless not entitled to compensation because (1) they abandoned the business and the premises prior to the time required by the order of taking and (2) the foreclosure action had resulted in the Millanises retaking possession of the lease. Additionally, the trial court struck the testimony of the Dames’ expert real estate appraiser, finding, among other things, that he misapplied the “scope of the project” rule.

The Holder of the Leasehold Interest

The first aspect of the trial court’s ruling we must address is the finding that the Dames, individually, never held a leasehold interest in the property. The evidence on this issue came from the documents executed in connection with the purchase of the laundry. The “Asset Purchase Agreement” provides that William and Joy Dames were purchasing not only all of Delray Coin Laundry, Inc.’s assets, but also the corporate entity itself. The documentary evidence is equally clear the lease of the premises from which Delray Coin Laundry was operated was assigned to William and Joy Dames, individually. The “Assignment and Acceptance of Lease” unequivocally states the Seller, defined as Delray Coin Laundry, Inc., is assigning the lease to the buyers, defined as William and Joy Dames. When the words of a contract are clear and unambiguous, the contract must be enforced as written. See, e.g., Avatar Dev. Corp. v. De Pani Constr., Inc., 834 So.2d 873, 876 n. 2 (Fla. 4th DCA 2002). Thus, as a matter of fact and law, we must conclude that the Dames held a leasehold interest in the premises.

The Abandonment & the Foreclosure of the Chattel Mortgage

Absent express language to the contrary in the lease, a lessee is entitled to compensation if his interest in the property is taken through the exercise of eminent domain. See USA Independence Mobilehome Sales, Inc. v. City of Lake City, 908 So.2d 1151, 1155-56 (Fla. 1st DCA 2005). In this case, however, the trial judge determined that even assuming the Dames had held a leasehold interest in the property, they were not entitled to compensation because they abandoned the premises pri- or to the time required by the order of taking and because the foreclosure of the chattel mortgage had resulted in the Mil-lanises retaking possession and/or ownership of the lease.

Under Florida law, the time for assessing the value of property that was the subject of a taking is the earlier of the date of trial or the date that title passes. See § 73.071(2), Fla. Stat. (2005); Dep’t of Transp. v. Finkelstein, 629 So.2d 932, 933 (Fla. 4th DCA 1993), aff'd, 656 So.2d 921 (Fla.1995). Where a hearing is requested on the petition for eminent domain, the trial court may, prior to the entry of the final judgment, enter an order of taking requiring the respondents to surrender possession provided the petitioner deposits the estimated value of the property into the court’s registry. See § 74.051, Fla. Stat. Title to the property vests in the petitioner upon such deposit. See § 74.061, Fla. Stat. Here, the hearing was held in December 2004 and the property’s estimated value was deposited into the court’s registry on July 17, 2003. Thus, the date for valuation of the property was July 17, 2003. Since July 17, 2003, was the relevant date for purposes of determining the property’s value, it follows that the relevant time for determining compensable interests in the property can occur no later. It is true, as the trial court found, that the coin laundry business was beginning to fail even before the condemnation proceedings, that the Dames had made plans to purchase a new laundry in West Palm Beach and had stopped making payments under the mortgage in June 2003, and that a foreclosure action was filed in December 2003. Yet, none of those facts matter in determining whether the Dames had a compensable interest in the property for the purposes of apportionment of the eminent domain proceeds since it was undisputed that as of July 17, 2003, the Dames’ lease of the premises in the 910 W. Atlantic Avenue building was in full force and effect. Consequently, neither the claimed abandonment of the business or premises nor the foreclosure action can provide justification for failing to compensate the Dames for their leasehold interest.

The Striking of the Expert Testimony

Having concluded the Dames did have a compensable interest in the property, we now turn to the propriety of the trial court’s ruling striking the testimony of Grant Austin, the real estate appraiser called by the Dames to value their interest and the only witness to testify on the subject of valuation. In support of the decision to strike Austin’s testimony, the trial court cited Austin’s misunderstanding and misapplication of the “scope of the project” rule, his failure to provide testimony regarding the “breakout of the rental rates,” and his ignorance of the facts that the Dames did not have a personal interest in the lease, that the foreclosure had dispossessed the Dames of their laundry equipment and the lease, and that the CRA had a relocation policy that, if applied for, would have provided the Dames financial assistance in relocating their business. We find none of the cited grounds support the striking of Austin’s testimony and write to address the “scope of the project” rule.

In conducting his valuation analysis, Austin excluded comparable properties located within the redevelopment area, citing the “scope of the project” rule. The trial judge determined Austin’s failure to consider comparable properties located within the redevelopment area rendered his valuation unsound as the “scope of the project” rule required consideration of such property in arriving at a valuation for the subject property. The “scope of the project” rule provides that any increase or decrease in the value of any property to be acquired which occurs after the scope of the project and its location are known and which is solely attributable to knowledge of the project’s scope and location shall not be considered in arriving at the value of the acquired property. See § 73.071(5), Fla. Stat. The rule does not, however, preclude the consideration of an increase in value that results from anticipation of the project and occurs prior to the announcement of the project’s precise location. See Dep’t of Transp. v. Nalven, 455 So.2d 301 (Fla.1984); 325 W. Adams St., Ltd. v. City of Jacksonville, 863 So.2d 380 (Fla. 1st DCA 2003), review denied, 876 So.2d 562 (Fla.2004). To the extent the values of property within the redevelopment area either increased or decreased only after the scope of the project became known and solely because of the project, such increases or decreases should not have been considered as a factor in arriving at the fair market value of the subject property. On the other hand, it would be appropriate to consider increases in the values of property within the redevelopment area if the increases resulted from anticipation of the project and took place prior to the time the precise location of the property was made known, or was wholly unrelated to the project that necessitated the taking. Thus, neither Austin nor the trial judge was wholly correct in their statement of the rule. Despite having failed to accurately state the boundaries of the rule during cross-examination, Austin’s exclusion of comparable properties within the redevelopment area does not compel a conclusion that he violated the rule or that his valuation analysis is necessarily flawed. Consequently, his testimony should not have been stricken.

Having found the Dames did have a compensable leasehold interest in the premises and nothing that took place subsequent to the July 17, 2003 taking served to divest them of such interest and their right to compensation, we reverse the order appealed and remand the case to the trial court for further proceedings. On remand, the trial court should re-evaluate Austin’s testimony in light of this court’s opinion and, if necessary, take additional evidence concerning valuation.

Reversed and Remanded.

GUNTHER and FARMER, JJ„ concur.

      . To the extent the abandonment of the premises and the foreclosure action represented a breach of the lease, they likewise could not provide grounds for denying the Dames the right to compensation as such breaches took place only after July 17, 2003. Further, while there was evidence the Dames were in breach of the lease as of July 17, 2003, as a consequence of their failure to pay property taxes— treated as rent under the terms of the lease, the lessor acknowledged he never took steps to legally terminate the lease.

      . The scope of the project “shall be presumed to be known in the market on or after the condemnor executes a resolution which depicts the location of the project.” § 73.071(5), Fla. Stat.


author: ORFINGER, J.

text:
    RDC GOLF OF FLORIDA I, INC., et al., Appellant, v. George P. APOSTOLICAS, Appellee.
    No. 5D05-2597.
    District Court of Appeal of Florida, Fifth District.
    March 17, 2006.
    Rehearing Denied April 19, 2006.

      Major B. Harding, of Ausley & McMul-len, Tallahassee; John M. Brennan and Richard E. Mitchell of GrayRobinson, P.A., Orlando; James E. Cecchi of Carella, Byrne, Bain, Gilfillan, Cecchi, Stewart & Olstein, Roseland, New Jersey, for Appellant.
    Michael R. Levin, of Baker & Hostetler, LLP, Orlando, for Appellee.
   ORFINGER, J.

RDC seeks review of a final judgment confirming an arbitration award removing it as general partner of Heathrow Golf Company Limited Partnership. RDC alleges the trial court erred by rejecting its claim of evident partiality on the part of one of the arbitrators. We find no error and affirm.

Heathrow Golf is a Florida limited partnership formed to acquire and operate the Heathrow Country Club. George P. Apos-tólicas and the Schiavone Trust are the limited partners of Heathrow Golf, each owning approximately one-half of the limited partnership interest. RDC was the sole general partner of Heathrow Golf. Pursuant to the parties’ agreement, Apos-tolicas initiated arbitration against RDC, claiming mismanagement of the Heathrow Country Club. RDC and Heathrow counterclaimed, asserting that Apostólicas breached his fiduciary duty to the partnership by misappropriating Heathrow members for a competing golf club he owned. The issues were heard before a panel of three (3) arbitrators, including Chief Arbitrator Jim Grodin, that ultimately issued an arbitration award expelling RDC as the sole general partner of Heathrow.

Apostólicas petitioned to confirm the arbitration award. RDC and Heathrow filed a counter-petition, which sought to vacate the arbitration award, alleging that Chief Arbitrator Grodin was not impartial because he and Apostolicas’s counsel, Michael Levin, were, while the arbitration was pending, involved in volunteer work for their synagogue relating to the renewal of the synagogue’s contract with its Rabbi. After an evidentiary hearing, the trial court rendered an order confirming the arbitration award, concluding that the relationship between Grodin and Levin was not substantial; that no reasonable person could conclude that the relationship would tend to bias Grodin’s judgment; that there was no ex parte communication between Grodin and Levin regarding the subject matter of the arbitration; that the Rabbi’s contract transaction was synagogue volunteer work; that Levin’s action did not curry favor with Grodin in the arbitration proceeding; and that RDC failed to establish the facts concerning the Rabbi’s contract that “might create an impression of possible bias” towards Apostólicas or Lev-in.

Of particular relevance to our consideration, the trial court made the following relevant findings of fact and conclusions of law:

6. The case was set for Arbitration before Arbitrators James Grodin, James R. Lussier, and Joseph I. Goldstein. James Grodin was selected as the Chief Arbitrator.
7. On January 13, 2003, Mr. Grodin made the following initial disclosure regarding Apostólicas’ counsel, Michael Levin:
I have known Mike Levin for over ten years. He and I have been on opposite sides of a case. He has represented religious organizations on whose board I served where I advocated his retention to represent the organization in litigation matters. His family and mine belong to the same Synagogue, and when I was Synagogue president, his wife served on the Executive Committee and Board over which I presided. I served as the sole arbitrator on a matter in which Mike Levin represented one of the sides.
Neither party objected to Mr. Grodin serving as arbitrator after receiving this disclosure. The parties agreed to Gro-din, Lussier, and Goldstein serving on the arbitration panel.
8. Over one year after Mr. Grodin’s initial disclosure, the arbitration hearing was held on May 3, 4, 5, 6, 7, 12, 14, and 21, 2004. On the first day of the arbitration hearing, Chief Arbitrator Grodin made the following disclosure:
As I stated off the record, the arbitrators and the attorneys here know each other. And my guess is that we wouldn’t have been picked as arbitrators if the attorneys did not know the arbitrators. So long as the litigants understand that, we have no problem proceeding.
No party objected to the panel serving after this disclosure was made.
9. Closing arguments were made on May 21, 2004. After the arbitration hearing concluded and as the participants were exiting the arbitration room towards the elevator, Chief Arbitrator Grodin said to Attorney Levin, “When you review the Rabbi’s contract, please look at the footnotes because I may have made a mistake in the footnotes.” Attorney Levin apologized that he had not yet had an opportunity to review the contract but told the Chief Arbitrator that he would review the contract on the plane. The court accepts Mr. Grodin’s testimony regarding this conversation as credible. This conversation took place publicly between the Chief Arbitrator and Attorney Levin in a manner so that others present could hear them speaking to each other. This was not a secretive conversation “overheard” by Attorney Cecchi.
10. The parties submitted their proposed Memorandum of Arbitration Decision to the Arbitration Panel on June 18, 2004. The panel of arbitrators, Grodin, Lussier, and Goldstein, declared the arbitration hearing closed on July 7, 2004.
11. The panel of arbitrators, Grodin, Lussier, and Goldstein, unanimously issued the Interim Arbitration Award on August 6, 2004. In the Interim Arbitration Award, the panel of three arbitrators, among other things, found that RDC mismanaged Heathrow Golf and that the Heathrow Golf and Country Club suffered from RDC’s lack of professional business management. The panel of three arbitrators expelled RDC as the general partner of Heathrow Golf. Apostólicas’ claim for damages against RDC was denied. RDC’s counterclaim that Apostólicas’ development and marketing of Red Tail Golf and Country Club was a breach of a general fiduciary obligation of loyalty to Heathrow Golf was denied.
12. Three days later, on Monday, August 9, 2004, RDC filed its Petition to Vacate with the court, seeking to have the court vacate the Interim Arbitration Award that was issued in favor of Apos-tólicas.
13. RDC’s Petition to Vacate raised the following objections to the Interim Arbitration Award in favor of Apostóli-cas: The arbitrators exceeded their powers and the Chief Arbitrator demonstrated evident partiality.
14. Regarding Chief Arbitrator Gro-din’s relationship with Attorney Levin, the Petition to Vacate, in relevant part, states as follows:
Upon information, the Chief Arbitrator, James Grodin, has a professional relationship with Apostólicas’ counsel, Michael Levin that was not properly disclosed to RDC or its Counsel. During the hearing, RDC overheard conversations suggesting that the Messrs. Grodin and Levin either represented the same person recently, or were working together on the same matter involving a Rabbi and Synagogue at the very same time the arbitration was pending. This relationship was never disclosed.
15. The conversation referenced in the Petition to Vacate between Chief Arbitrator Grodin and Attorney Levin was heard by RDC’s counsel, James E. Cecchi, on May 21, 2004. Attorney Cec-chi heard this conversation and took no action regarding the conversation until after RDC received the adverse award on August 6, 2004.
16. On August 11, 2004, RDC’s counsel wrote to the AAA and provided the AAA with a copy of the Petition to Vacate filed on August 9, 2004, in circuit court and requested a full disclosure by Chief Arbitrator Grodin of his entire relationship with Attorney Levin.
17.On August 27, 2004, the parties received Chief Arbitrator Grodin’s supplemental disclosure which stated, in relevant part, as follows:
I drafted our Rabbi’s employment contract for a Synagogue committee, which is negotiating it with Mr. Levin who serves as the Rabbi’s representative. I advised the committee at the outset that I would not and could not have any contact with Mr. Levin on this matter.
37. Because there are no allegations of actual conflict or bias in this case, to vacate an arbitration award on the theory that undisclosed facts establish “evident partiality,” RDC must show that the undisclosed circumstances would reasonably tend to bias the judgment of Chief Arbitrator Grodin. See Deen v. Oster, supra; Boyhan v. Maguire, supra. In this case, the undisclosed facts do not show circumstances which would reasonably tend to bias the judgment of Chief Arbitrator Grodin in favor of Michael Levin or his client, Apostólicas.
38. On January 31, 2003, Mr. Grodin made his initial disclosure that he and Attorney Levin were members of the same Synagogue. Approximately one year later, unbeknown to RDC, Messrs. Grodin and Levin’s Synagogue, the COS [Congregation Ohev Shalom], decided to renew its engagement contract with its Rabbi. In February of 2004, the Executive Board of COS held a meeting and appointed Bill Sholk and Jim Grodin to negotiate the Rabbi’s new employment contract.[FN] Bill Sholk was present at this meeting. Jim Grodin was not. When Bill Sholk called Jim Grodin about the Rabbi’s new contract, Jim Grodin told Bill Sholk that he would not work with Michael Levin because of this pending arbitration and that Bill Sholk would have to negotiate the contract for the Synagogue. It is clear from the evidence that Bill Sholk agreed to negotiate the turns of the contract for the Synagogue and that Jim Grodin agreed to draft the contract.
[FN] The Rabbi has an existing four year employment contract with COS that ends in August of 2005. Jim Grodin drafted this contract and the Rabbi’s earlier contract with COS dating back to 1995. COS wanted to negotiate a new contract with the Rabbi before the existing contract expired.
39. The Court accepts the testimony of Bill Sholk as credible. The term sheets for the Rabbi’s contract were negotiated by Bill Sholk and Michael Levin from March to April of 2004. Bill Sholk was not set up as a “Middle-man,” as argued by RDC but, in fact, served as the negotiator on behalf of the Synagogue. Jim Grodin provided legal counsel to Bill Sholk and drafted the Rabbi’s contract on behalf of the Synagogue. Jim Grodin prepared all of the drafts of the Rabbi’s contract.
40. Jim Grodin was not a decision-maker with respect to the Rabbi’s new contract. The congregation and Executive Board of COS and the Rabbi were the decision-makers.
41. It is uncontroverted that by April 18, 2004, Bill Sholk and Michael Levin reached complete agreement on all issues regarding the Rabbi’s new 15 year ... contract. On April 18, 2004, the renewal of the Rabbi’s contract was taken before the COS at its Annual Meeting and the congregation voted to renew the Rabbi’s contract for 15 years ..., with the terms as negotiated by Bill Sholk and Michael Levin. The same evening as the COS Annual Meeting, the Executive Board of the COS met and also approved the 15 year ... contract as presented. After the April 18th meetings, when the business deal was negotiated and agreed upon by the Rabbi, the COS, the COS’s Executive Board, the new contract terms were sent by Bill Sholk to Jim Grodin for Jim Grodin to “plug in terms.”
42. The first draft of the Rabbi’s contract as prepared by Jim Grodin was e-mailed to Bill Sholk on April 27, 2004. This draft was forwarded by Bill Sholk to Michael Levin on April 29, 2004. The April 27th contract was complete and included all of the negotiated terms. On April 27, Bill Sholk e-mailed Michael Levin and told him that this contract was going to be taken to the Board on April 28th at a special meeting for the sole purpose of the congregation formally agreeing on the contract. Bill Sholk ended this e-mail to Michael Levin by stating as follows, “We will get the blessing tomorrow night and after you look at and approve the contract, both sides can sign and put this to bed.”
43. The arbitration hearing in this case began several days later on May 3, 2004, and concluded on May 21, 2004. It was on May 21, 2004, at the end of the arbitration hearing as everyone was leaving that Chief Arbitrator Jim Grodin generally said to Michael Levin in the presence of, at least, Attorney Cecchi, “When you review the Rabbi’s contract, please look at the footnotes because I may have made a mistake in the footnotes.” Michael Levin apologized that he had not yet had an opportunity to review the contract, but told the Chief Arbitrator he would review the contract on the plane.
44. On June 11, 2004, Michael Levin began contract negotiations again by raising severance and disability issues. Disability became a contentious issue between Bill Sholk and Michael Levin ■for two reasons: (1) Bill Sholk thought Michael Levin was trying to change their previous agreement which had already been voted on and approved by the COS and (2) Bill Sholk was irritated by Michael Levin’s strident and “obnoxious” e-mails. The e-mails produced by Jim Grodin reveal that Jim Grodin and Michael Levin were directly and indirectly receiving and sending e-mails regarding the Rabbi’s employment from June 11th to June 18th and from July 2nd to July 8th. The direct e-mails between Jim Grodin and Michael Levin occurred because Bill Sholk and Michael Levin began “sparking” with each other.
46. On June 16, 2004, Jim Grodin called Michael Levin on the telephone to tell him to “cut the crap,” come up with a new suggestion and that the contract was going nowhere, that he needed to be positive, and to explain to Michael Levin the history behind the language in an earlier rabbi’s contract with COS. The court accepts Jim Grodin’s testimony regarding this telephone conversation with Michael Levin as credible. Jim Grodin and Michael Levin did not discuss the substantive terms of the current Rabbi’s contract renewal during this telephone call. The evidence establishes that Jim Grodin and Michael Levin did not discuss the pending arbitration during this telephone call.
47. On June 18, 2004, the parties submitted their proposed Memorandum of Arbitration Decision to the Arbitration Panel.
48. From July 2 through July 8, 2004, the disability and severance issues were resolved. Severance was not a contentious issue and was not included in the Rabbi’s contract. Disability was a contentious issue between Bill Sholk and Michael Levin. Bill Sholk sought counsel from Jim Grodin on how to deal with Michael Levin during this time frame. Ultimately, Bill Sholk and Michael Levin reached agreement on the disability issue on July 8, 2004.
49. On July 7, 2004, the Arbitration Panel declared the arbitration closed.
50. From July 8, 2004, until August 9, 2004, Michael Levin had no contact with anyone regarding the Rabbi’s contract, except the Rabbi.
51. On August 6, 2004, the three-member Arbitration Panel issued the Interim Arbitration Award.
56. Florida requires that “evident partiality” be found only where a reasonable person would conclude that the undisclosed circumstances would tend to bias the judgment of a neutral arbitrator. The alleged partiality must be direct, definite, and capable of demonstration rather than remote, uncertain, and speculative. A reasonable person looking at the undisclosed circumstances in the instant case would conclude that Jim Grodin’s involvement with the renewal of the Rabbi’s engagement contract and relationship with Michael Levin would not “tend to bias his judgment” in the arbitration proceeding.
57. RDC argues that Jim Grodin’s undisclosed involvement with the Rabbi’s engagement contract renewal requires vacatur because it was: (a) concurrent with the arbitration; (b) fraught with numerous opportunities for ex-parte contact and favoritism; and (c) material as to time, value and relationship.
58. The Rabbi’s contract renewal did occur during the parties’ arbitration proceeding. The Rabbi’s contract renewal began in early 2004 and ended on September 9, 2004, when the Synagogue and Rabbi signed the new engagement contract. The parties’ arbitration began on October 2, 2002, and ended with the rendition of the Final Arbitration Award on October 25, 2004. Clearly, the undisclosed relationship between Jim Grodin and Michael Levin occurred during the arbitration proceedings, including the arbitration hearing, deliberation and rendition of the Arbitration Award.
59. While Jim Grodin’s undisclosed relationship with Michael Levin was concurrent with the arbitration proceedings, this relationship was not a substantial relationship. There were no ex-parte communication between Jim Grodin and Michael Levin regarding the subject matter of the arbitration proceeding. The arbitration was mentioned in the Rabbi’s contract renewal one time in an e-mail from Michael Levin to Bill Sholk dated June 11, 2004 which stated-, in relevant part, as follows: “I have been immersed in an arbitration immediately followed by a family trip to England ... Because of the delay and the possibility that you are now on vacation, I am taking the liberty of forwarding this draft to Burt Chasnov, Jim Grodin and Jeff Bornstein, all of whom I understand to be involved on your side of the negotiations.” This e-mail was also copied to Burt Chasnov, Jim Grodin and Jeff Bornstein by Michael Levin. The arbitration was also mentioned by Jim Gro-din to Bill Sholk at the beginning of the contract renewal process as the reason that Jim Grodin would not negotiate the Rabbi’s new contract with Michael Lev-in.
60. RDC correctly argues that the Rabbi’s contract that was renewed for 15 years ... was a material contract. While this clearly was a material contract for the COS and the Rabbi, this material contract did not create a substantial relationship between Jim Grodin and Michael Levin. Both attorneys were volunteering their time and their talents to help their Synagogue renew its contract with its Rabbi. Jim Grodin already had previous COS engagement contracts on his computer because he had produced several other employment contracts on behalf of the COS for this Rabbi and other rabbis and cantors.
61.By the time Jim Grodin became involved with the instant contract renewal, both the congregation of COS and its Executive Board had already voted to approve a 15 year ... engagement contract for its Rabbi and these material terms were never an issue. While the disability issue was also a material issue, a contentious issue and an issue with which Jim Grodin had some involvement, it is uncontroverted that the disability issue could not have been a deal breaker. Bill Sholk testified that the Rabbi was staying, that one item would not be a deal breaker, and that they just needed to reach an agreement. The court accepts this testimony as credible and assigns little weight to the fact that the disability issue became a contentious issue for a period of time during the June llth-18th and July 2nd-8th negotiations and to the fact that Jim Grodin had some involvement with the disability issue or any of the contract issues. The Rabbi’s written engagement contract was going to be finalized, it was just a matter of when. The COS had already voted to keep their Rabbi for fifteen years, until the Rabbi retired. The length and salary had already been agreed upon by both the COS and the Rabbi. The terms of the contract, even material ones, were going to be worked out because the congregation wanted this Rabbi as their Rabbi until he retired. This was volunteer Synagogue work and Jim Grodin wanted to expeditiously finalize the Rabbi’s new engagement contract.
62. Michael Levin did not do anything in the Rabbi’s contract renewal that curried favor with Jim Grodin in the arbitration proceeding: There were no real life opportunities for a “quid pro quo” created by the undisclosed circumstances in this case. The “Thanks Mike” e-mail from Jim Grodin to Michael Levin on June 16, 2004, for making a different proposal on the disability issue proposal is not evidence that Michael Levin had curried favor with Jim Grodin in the arbitration proceeding. A review of Jim Grodin’s relationship with Michael Levin in the Rabbi’s contract renewal would not lead a reasonable person to believe that a potential conflict exists in the arbitration proceeding.
63. RDC argues that former Chief Arbitrator Grodin’s nondisclosure was designed to conceal his relationship with Attorney Levin. The court disagrees. The court notes that Jim Grodin made a general disclosure that he and Michael Levin were members of the same Synagogue. There is no evidence to establish that the Chief Arbitrator’s non-disclosure in this case was calculated to conceal his involvement in the Rabbi’s contract renewal. The court bases this conclusion in part on the fact that Chief Arbitrator Grodin spoke openly to Attorney Levin in front of, at least, Attorney Cecchi about the Rabbi’s contract renewal. This is not conduct consistent with a plan to conceal Jim Grodin’s involvement with the Rabbi’s contract renewal. The court concludes from all the evidence that former Chief Arbitrator Grodin did not disclose his involvement in the Rabbi’s contract renewal because he thought his involvement was trivial.
64. A reasonable person, considering all the undisclosed evidence in this case, would not conclude that Jim Grodin’s involvement with Michael Levin in the Rabbi’s contract renewal would tend to bias his judgment in favor of Apostólicas or Michael Levin in the arbitration proceeding. RDC has not established that the undisclosed facts in this case “might create an impression of possible bias” towards Apostólicas or Michael Levin in the arbitration proceeding. There is no “evident partiality” in this case.
65. The evidence establishes that Chief Arbitrator Grodin drafted the Rabbi’s contract on behalf of the Synagogue and served as the attorney for the Synagogue and that Bill Sholk negotiated the terms of the contract on behalf of the Synagogue. Michael Levin represented the Rabbi in the contract negotiations. The drafting and negotiation of the Rabbi’s contract occurred concurrent with the arbitration proceedings, including the arbitration hearing and deliberations. RDC was unaware of the roles Messrs. Grodin and Levin played in the renewal of the Rabbi’s contract until RDC filed its Petition to Vacate the Interim Arbitration Award.
67. The court concludes that Chief Arbitrator Grodin should have fully disclosed his involvement with Michael Levin in the renewal of the Rabbi’s engagement contract. The Chief Arbitrator did not do so in a timely manner during the arbitration proceeding.
68. As stated by the Fourth District in Weinger v. State Farm Fire & Casualty, 620 So.2d 1298, 1299 (Fla. 4th DCA 1993), “It is now clear that an arbitrator has an affirmative duty to disclose any dealings that might create an impression of possible bias.” The Weinger court continued, “Failure to disclose such an association undermines the appearance of propriety and the confidence of the fairness of the proceedings and requires the vacation of the award.” Id. [sic]. While the undisclosed circumstances in this case do not rise to the level of “might create an impression of possible bias,” Chief Arbitrator Grodin should have fully disclosed them anyways [sic]. For the reasons stated in this order, former Chief Arbitrator Grodin’s nondisclosure does not warrant vacating the Final Arbitration Award.

(Most internal footnotes omitted).

DISCUSSION

RDC argues that it did not have the benefit of an impartial arbitration panel because during critical phases of the arbitration proceeding, Chief Arbitrator Gro-din and Apostolicas’s counsel, Levin, were both involved in a material contract transaction. RDC claims that Grodin and Lev-in failed to disclose, actively concealed, and then misrepresented the existence and extent of their relationship with respect to the contract transaction. RDC further asserts that this relationship “might create an impression of possible bias” to a reasonable party in the position of RDC and Heathrow, and, consequently, the arbitration award should be vacated.

STANDARD OF REVIEW

A high degree of conclusiveness attaches to an arbitration award. Deen v. Oster, 814 So.2d 1065, 1068 (Fla. 4th DCA 2001); see Charbonneau v. Morse Operations, Inc., 727 So.2d 1017, 1019 (Fla. 4th DCA 1999). To vacate an arbitration award, a party must establish one of the five statutory grounds set forth in section 682.13(l)(a)-(e), Florida Statutes (2004). See Commc’ns Workers of Am. v. Indian River County Sch. Bd., 888 So.2d 96, 99 (Fla. 4th DCA 2004). When the party moving to vacate fails to prove one of the five statutory grounds, “neither a circuit court nor a district court of appeal has the authority to overturn the award.” Schnurmacher Holding, Inc. v. Noriega, 542 So.2d 1327, 1328 (Fla.1989). Appellate review of orders granting or denying a motion to vacate an arbitration award are governed by “the same standards as in any ordinary case, whereby findings of fact are reviewed under a competent and substantial evidence standard and legal questions are reviewed de novo.” See Boyhan v. Maguire, 693 So.2d 659, 662 (Fla. 4th DCA 1997); see also Noriega (explaining that in reviewing an arbitration award, the reviewing court may not comb the record of the arbitration hearing for errors of fact or law inherent in the decision-making process).

EVIDENT PARTIALITY

Both Florida and federal law hold that evident partiality is a basis to vacate an arbitration award. § 682.13(l)(b), Fla. Stat. (2004); 9 U.S.C. § 10(a)(2). Because Florida’s arbitration statute is modeled after the Federal Arbitration Act, federal decisions are highly persuasive. See Seretta Constr., Inc. v. Great Am. Ins. Co., 869 So.2d 676, 679 (Fla. 5th DCA 2004). However, while decisions of federal courts are persuasive, we are bound only by decisions of the United States Supreme Court. See Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32, 35 (Fla. 2d DCA 2005); Raymond James Fin. Servs., Inc. v. Saldukas, 851 So.2d 853, 856 (Fla. 2d DCA 2003).

Here, the trial court determined that Grodin should have fully disclosed his involvement with Levin in the contract proceedings. Nevertheless, the trial court confirmed the arbitration award based on its conclusion that the undisclosed circumstances did not create an impression of possible bias. RDC argues that the trial court applied the wrong legal standard, erroneously relying on Lifecare International, Inc. v. CD Medical, Inc., 68 F.3d 429, 432 (11th Cir.1995), which held that the “mere appearance of bias or partiality is not enough to set aside an arbitration award.” RDC contends that the standard established in Lifecare conflicts with the more recent Eleventh Circuit case of University Commons-Urbana Ltd. v. Universal Constructors, Inc., 304 F.3d 1331, 1339 (11th Cir.2002), as well as Florida law set forth in Weinger v. State Farm Fire & Casualty Co., 620 So.2d 1298, 1299 (Fla. 4th DCA 1993).

A. Florida Law

Section 682.13(l)(b), Florida Statutes (2004), provides that a “court shall vacate an award when ... ” “ ‘[t]here was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.’ ” Deen, 814 So.2d at 1068; see Int’l Ins. Co. v. Schrager, 593 So.2d 1196, 1197 (Fla. 4th DCA 1992); see also Weinger, 620 So.2d at 1299 (holding that in arbitration cases, “it is clear that an arbitrator has an affirmative duty to disclose any dealings that might create an impression of possible bias”). However, an arbitration award may only be set aside upon the “showing of circumstances which would reasonably tend to bias the judgment of an impartial arbitrator.” Boyhan, 693 So.2d at 662.

B. Federal Law

The Federal Arbitration Act likewise authorizes the court to vacate an arbitration award “where there was evident partiality ... in the arbitrators, or either of them.” 9 U.S.C. § 10(a)(2). However, “evident partiality, like obscenity, is an elusive concept: one knows it when one sees it, but it is awfully difficult to define in exact terms. No jurist has yet coined an exacting legal standard for ‘evident partiality,’ although many have tried.” Cont’l Ins. Co. v. Williams, No. 84-2646-CIV-MARCUS, 1986 WL 20915, *3-4 (S.D.Fla. Sept.17, 1986) (citations omitted). The definitional difficulties of “evident partiality” notwithstanding, it is settled that the evident partiality inquiry is a case-specific and fact-intensive one. See Lifecare, 68 F.3d at 435 (stating that the question of evident partiality is “fact intensive” and “highly de-pendant on the unique factual settings of each particular case”).

The leading United States Supreme Court case concerning claims of arbitral evident partiality is Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968). Thus, any inquiry must begin there. In Commonwealth Coatings, the United States Supreme Court addressed the circumstances under which 9 U.S.C. § 10(a)(2) authorizes the vacation of an arbitration award for failure to disclose the existence of a close financial relationship between a neutral arbitrator and a party to the arbitration. 393 U.S. at 146-48, 89 S.Ct. 337. In that case, one arbitrator of a three-arbitrator panel failed to inform the plaintiff that the defendant had been a sporadic customer of the arbitrator’s business, and that the relationship went so far as to include the rendering of services on the very projects involved in the arbitration. After the arbitration panel made a unanimous decision in favor of the defendant, the plaintiff learned of the business relationship between the arbitrator and the defendant and challenged the award on the basis that the arbitrator’s failure to disclose his prior business relationship resulted in “evident partiality,” thereby, warranting a vacation of the award. The Supreme Court held that the arbitrator’s failure to disclose these facts justified vacation of the arbitration award, noting that it is not only actual bias, but the appearance of bias that must be excluded from judicial and arbitral forums. Id. at 146-50, 89 S.Ct. 337.

In delivering the Court’s opinion in Commonwealth Coatings, Justice Black wrote:

It is true that arbitrators cannot sever all their ties with the business world, since they are not expected to get all their income from their work deciding cases, but we should, if anything, be even more scrupulous to safeguard the impartiality of arbitrators than judges, since the former have completely free rein to decide the law as well as the facts and are not subject to appellate review. We can perceive no way in which the effectiveness of the arbitration process will be hampered.by the single requirement that arbitrators disclose to the parties any dealings that might create an impression of possible bias.

Id. at 149-50, 89 S.Ct. 337 (emphasis supplied). To us, it appears that the Supreme Court in Commonwealth Coatings envisioned that an arbitrator’s award could be challenged on the basis of bias, when the challenging party presented facts that, viewed reasonably, gave rise to an “impression of possible bias.” 393 U.S. at 149-50, 89 S.Ct. 337.

Following Commonwealth Coatings, the interpretation of what has come to be referred to as the “reasonable impression of partiality” standard has varied somewhat among the different federal courts considering it. The Eleventh Circuit has said that an arbitration award may be vacated due to the “evident partiality” of an arbitrator only when either (1) an actual conflict exists, or (2) the arbitrator knows of, but fails to disclose, information that would lead a reasonable person to believe that a potential conflict exists. Univ. Commons-Urbana Ltd., 304 F.3d at 1339; Middlesex Mut. Ins. Co., 675 F.2d 1197, 1202 (11th Cir.1982). The. party challenging the. arbitration award must demonstrate that the undisclosed information creates a “reasonable impression of partiality,” Lifecare, 68 F.3d at 433 (citation omitted), or put another way, “information which would lead a reasonable person to believe that a potential conflict exists.” Gianelli Money Purchase Plan & Trust v. ADM Investor Servs., Inc., 146 F.3d 1309, 1312 (11th Cir.1998). The alleged partiality must be “direct, definite and capable of demonstration rather than remote, uncertain, and speculative.” Id.; see Scott v. Prudential Sec., Inc., 141 F.3d 1007, 1015 (11th Cir. 1998) (holding that “to vacate an arbitration award for evident partiality, the moving party must present evidence that would support a ‘reasonable impression of partiality’ on the arbitrator’s behalf ... [t]he assertion of partiality, however, must be ‘direct, definite and capable of demonstration rather than remote, uncertain and speculative’ ”). Whether these conditions have been met ordinarily requires a fact-intensive inquiry. Lifecare, 68 F.3d at 435. In general, “the mere appearance of bias or partiality is not enough to set aside an arbitration award.” Id. at 433 (citing Consol. Coal Co. v. Local 164.3, United Mine Workers of Am., 48 F.3d 125, 129 (4th Cir.1995)). If, however, the moving party can show that an arbitrator failed to disclose a substantial relationship between himself and a party, then the less demanding “appearance of bias” standard applies. Park v. First Union Brokerage Servs., Inc., 926 F.Supp. 1085, 1088 (M.D.Fla.1996) (citing Commonwealth Coatings, 393 U.S. at 151-52, 89 S.Ct. 337 (White, J., concurring)).

Other courts have reached similar conclusions, ie., that the party challenging the arbitration award is required to present admissible, credible evidence that created an impression of bias that is direct, definite, and capable of demonstration, rather than a mere appearance of a remote, uncertain, and speculative bias. See, e.g., Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 626 (6th Cir.2002) (“The alleged partiality must be direct, definite, and capable of demonstration, and the party asserting evident partiality must establish specific facts that indicate improper motives on the part of the arbitrator.”); Peoples Sec. Life Ins. Co. v. Monumental Life Ins. Co., 991 F.2d 141, 146 (4th Cir.1993) (stating that the alleged partiality must be direct, definite, and capable of demonstration rather than remote, uncertain, and speculative); Employers Ins. of Wausau v. Nat’l Union Fire Ins. Co. of Pittsburgh, 933 F.2d 1481, 1489 (9th Cir.1991) (a' party “must demonstrate more than a mere appearance of bias to disqualify an arbitrator”); Washburn v. McManus, 895 F.Supp. 392, 398 (D.Conn.1994) (stating that there must be more than mere appearance of bias to vacate arbitrator’s award); Health Servs. Mgmt. Corp. v. Hughes, 975 F.2d 1253, 1264 (7th Cir.1992) (determining that evident partiality within the meaning of subsection (a) of the FAA means more than the mere appearance of bias; to set aside an award for arbitration partiality, the interest or bias must be direct, definite, and capable of demonstration rather than remote, uncertain, or speculative); Waverlee Homes, Inc. v. McMichael, 855 So.2d 493 (Ala.2003) (holding that under “reasonable impression of partiality standard,” party challenging arbitration award was required to present admissible, credible evidence that created an impression of bias that is direct, definite, and capable of demonstration, rather than a mere appearance of a remote, uncertain, and speculative bias); see also Consol. Coal Co., 48 F.3d at 129 (determining that to demonstrate evident partiality under the FAA, the party seeking vacation has burden of proving that a reasonable person would have to conclude that the arbitrator was partial to the other party to the arbitration, and the reasonable person standard requires a showing of more than the appearance of bias); Morelite Constr. Corp. v. New York City Dist. Council Carpenters Benefit Funds, 748 F.2d 79, 84 (2d Cir.1984) (holding that “ ‘evident partiality’ within the meaning of 9 U.S.C. § 10 will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration”); Metro. Prop. & Cas. Ins. Co. v. J.C. Penney Cas. Ins. Co., 780 F.Supp. 885, 891 (D.Conn.1991) (stating that the party alleging impropriety “must establish facts that create a reasonable impression of bias or misconduct”) (citations omitted).

We conclude that the weight of authority developed after Commonwealth Coatings requires a review of the evidence utilizing the “reasonable impression of partiality” standard. As such, we find that the trial court properly weighed RDC’s allegations of Grodin’s evident partiality by considering whether RDC made a showing through credible evidence, giving rise to a “reasonable impression of partiality” that was “direct, definite, and capable of demonstration,” as distinct from a “mere appearance” of bias that was remote, uncertain, and speculative.

C. Application of the Prevailing Law

Commonwealth Coatings does not establish a per se rule requiring vaca-tur of an award whenever an undisclosed relationship is discovered. See Lucent Techs. Inc. v. Tatung Co., 379 F.3d 24, 30 (2d Cir.2004). Instead, only dealings that “might create án impression of possible bias” must be disclosed. Lifecare, 68 F.3d at 433; Weinger, 620 So.2d at 1299. This does not require arbitrators to provide the parties with a “complete and unexpurgated business biography.” Commonwealth Coatings, 393 U.S. at 151, 89 S.Ct. 337 (White, J., concurring). “Whether ties are so indirect or remote that they could not reasonably create an impression of bias is a question that must be answered by reference to the facts of the particular case.” Sanko S.S. Co. v. Cook Indus., Inc., 495 F.2d 1260, 1264 n. 3 (2d Cir.1973).

As the trial court determined, Grodin should have disclosed his involvement with Levin in the renewal of the Rabbi’s employment contract.. Nevertheless, as the trial court found, it does not appear that Grodin’s non-disclosure created a reasonable impression of partiality, thereby, warranting the vacation of the final arbitration award. There was no evidence that Levin did, or could have done anything in the negotiations of the Rabbi’s contract renewal to curry favor with Gro-din in the arbitration proceedings, or that Grodin’s contact with Levin regarding the Rabbi’s contract renewal was substantial. Although Grodin and Levin’s relationship did exist at the same time as the arbitration proceeding, Grodin had no financial interest in the Rabbi’s contract. The trial court’s findings, supported by substantial, competent evidence, establish that the Rabbi’s contract was substantially negotiated between Levin and Bill Sholk between February 2004 and April 2004, before the arbitration was heard. While the disability issue arose during the course of the arbitration proceedings, it was not an essential term, and it was only on this issue that there was any contact between Grodin and Levin. This limited contact falls short of evidence demonstrating that Levin curried favor with Grodin in the arbitration proceeding.

Further, contrary to RDC’s assertion, it does not appear that Grodin’s non-disclosure was designed to conceal his relationship with Levin. Grodin made a general disclosure that he and Levin were members of the same synagogue. Grodin also spoke openly to Levin about the Rabbi’s contract renewal in the presence of RDC’s attorney. As the trial court concluded, this is not conduct that is consistent with a plan to conceal.

Here, RDC asks this Court to conclude that because Grodin failed to disclose his involvement with Levin in the renewal of the Rabbi’s employment contract, the arbitration award should be vacated. We cannot reach that conclusion. The facts of this case do not show bias or partiality that is direct, definite, and capable of demonstration. Lifecare, 68 F.3d at 433; see Local 530, AFSCME, Council 15 v. City of New Haven, 9 Conn.App. 260, 518 A.2d 941, 947 (1986) (holding that even under the “appearance of bias” standard, that appearance must be reasonable; “[t]he mere speculative statement of bias by a participant in the arbitration proceeding does not in and of itself justify a claim of disqualification”).

Because we conclude that the trial judge’s findings of fact are supported by competent, substantial evidence, and that the correct rule of law was applied, we affirm.

AFFIRMED.

GRIFFIN and THOMPSON, JJ„ concur.

      . RDC does not challenge the findings of fact. It does, however, challenge the application of the facts to the law.

      . Whether Commonwealth Coatings is a plurality opinion or a majority opinion is an open question. Most courts; including the Eleventh Circuit, have concluded, that Commonwealth Coatings is a plurality opinion. See, e.g., Middlesex Mut. Ins, Co. v. Levine, 675 F.2d 1197 (11th Cir.1982); Nationwide Mut. Ins. Co. v. Home Ins. Co., 429 F.3d 640 (6th Cir.2005); Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1358 n. 19 (6th Cir.1989); Merit Ins. Co. v. Leatherby Ins. Co., 714 F.2d 673, 681-82 (7th Cir.1983); Austin South I, Ltd. v. Barton-Malow Co., 799 F.Supp. 1135, 1141 (M.D.Fla.1992) (stating that Commonwealth Coatings is a plurality opinion, and, therefore, the Court’s holding may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds). Other courts have found to the contrary. See, e.g., Positive Software Solutions, Inc. v. New Century Mortg. Corp., 436 F.3d 495 (5th Cir.2006); Schmitz v. Zilveti, 20 F.3d 1043, 1045 (9th Cir.1994) (stating that Commonwealth. Coatings is not a. plurality opinion because Justice White joined in the majority opinion although he wrote "additional remarks”).

      . Several courts have remarked on the muddled state of the law concerning evident partiality, due in part to this decision. See Morelite Constr. Corp., 748 F.2d at 82-84; Merit Ins. Co., 714 F.2d at 681-82; see also Burlington N. R.R. v. TUCO, 960 S.W.2d 629, 634 (Tex.1997) (commenting on the two conflicting standards that the federal courts have adopted in wake of Commonwealth Coatings).

      . The burden of proof with regard to claims of evident partiality and arbitrator misconduct or misbehavior prejudicing the rights of a party rests with the party raising such allegations. That burden is substantial, extending beyond the mere appearance of impropriety to something approximating clear and convincing evidence of material wrongdoing. Thus, in the absence of substantial, direct proof that one or more of the types of misconduct addressed in section 10(a)(2) of the Federal Arbitration Act has transpired, coupled with a demonstrated link between that the untoward behavior and the challenged arbi-tral result, the prospects for the vacation of the arbitration award are doubtful. Stephen L. Hayford, Law in Disarray: Judicial Standards for Vacatur of Commercial Arbitration Awards, 30 GALR 731, 748-49 (1996) (internal citations omitted).

      . RDC relies on cases from other jurisdictions that contravene the rule adopted in Florida and the Eleventh Circuit. See, e.g., Henry v. Halliburton Energy Servs., 100 S.W.3d 505, 509 (Tex.App.2003) (finding that the evident partiality is established from the nondisclosure itself, regardless of whether the nondis-closed information necessarily establishes partiality or bias); Valrose Maui, Inc. v. Maclyn Morris, Inc., 105 F.Supp.2d 1118 (D.Hawai’i 2000) (concluding that the mere appearance of bias created by even good faith ex parte communications was sufficient to show "evident partiality”); Kern v. 303 East 57th Street Corp., 204 A.D.2d 152, 611 N.Y.S.2d 547 (1994) (holding that the appearance of impropriety or partiality is sufficient to warrant vacature of an arbitration award; it is only necessary to demonstrate the potential for bias to find misconduct). Because these cases are not consistent with the standard articulated by Florida courts and the Eleventh Circuit, they are not controlling.


author: ROTHENBERG, J.

text:
    Barbaro FERNANDEZ, etc., et al., Appellants, v. FLORIDA NATIONAL COLLEGE, INC., et al., Appellees.
    No. 3D04-357.
    District Court of Appeal of Florida, Third District.
    March 29, 2006.

      Lauri Waldman Ross, Miami; and Friedman & Friedman and John S. Selig-man, Coral Gables, for appellants.
    Kubicki Draper and Caryn L. Bellus, Miami, for appellee Florida National College, Inc.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   ON MOTION FOR REHEARING AND REQUEST TO ISSUE WRITTEN OPINION

ROTHENBERG, J.

We grant the appellants’ request to issue written opinion, withdraw our per cu-riam affirmance filed on September 14, 2005, and substitute the following in its place. Based upon the substitution of a written opinion, we make no ruling as to the appellants’ motion for rehearing.

The plaintiffs, Barbaro Fernandez, etc., et al., appeal from an order granting final summary judgment in favor of defendant Florida National College, Inc. (“FNC”). We affirm.

The plaintiffs filed a Second Amended Complaint (“Complaint”) against Jorge Luis Cisneros (“Mr. Cisneros”), FNC, and others. The Complaint alleges that on August 13, 1999, Mr. Cisneros was negligently operating a motor vehicle when it was involved in an accident, and that as a result of the accident, Iris Yadira Fernandez (“Mrs. Fernandez”) was injured and her daughter, Claudia Lorena Fernandez (“Claudia”), died. The Complaint further alleges that, at all material times, Mr. Cisneros was employed by FNC, and that at the time of the accident, he “was on a college and/or quasi-college related function” and was acting “in the course and scope of his employment” with FNC.

FNC answered the Complaint, denying all material allegations. FNC further asserted that it was not responsible for Mr. Cisneros’ actions because, at the time of the accident, Mr. Cisneros, who was on an excursion with Mrs. Fernandez, Claudia, and others, was not acting within the course and scope of his employment with FNC.

FNC moved for summary judgment, arguing that the excursion had no educational purpose; FNC did not authorize the trip; and the term had ended the day before the accident occurred. In opposing the motion for summary judgment, the plaintiffs argued, in part, that there were issues of material fact as to whether Mr. Cisneros was FNC’s actual or apparent agent. At the summary judgment hearing, although FNC’s counsel stated that apparent agency was not pled in the Complaint, he addressed this theory. The trial court granted FNC’s motion for summary judgment, and this timely appeal followed.

In ruling on a motion for summary judgment, the trial court “must view the evidence and draw all inferences in favor of the opposing party.” Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006); see also Sierra v. Shevin, 767 So.2d 524 (Fla. 3d DCA 2000)(“The standard of review of a summary judgment order is de novo and requires viewing the evidence in the light most favorable to the non-moving party”). In addition, a trial court is permitted to grant summary judgment only “if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Hallock v. Holiday Isle Resort Marina, Inc., 885 So.2d 459, 463 (Fla. 3d DCA 2004).

A review of the record indicates that it is undisputed that FNC is a two-year college, with its main campus located in a shopping plaza in Hialeah. One of the classes that FNC offers is English for Speakers of Other Languages (“ESOL”). During orientation, FNC informs its ESOL students that they will be required to attend field trips so that they can learn and speak English outside of the classroom setting.

During the deposition of Mr. Cisneros, he testified as to the procedure he was required to follow in order to take students on field trips sponsored by FNC. His testimony, which is not contradicted by any other portion of the record, demonstrates that prior to any field trip, he was required to submit a field trip authorization form to FNC, and that after approval is granted, each student was then required to submit a signed form releasing FNC from liability. Moreover, Mr. Cisneros testified that field trips can only take place during the scheduled class period; a student’s participation in the field trip would affect his/her grade; and prior to any field trip, he would contact the selected destination so that he could ensure that someone who speaks English would be present to attend to his students. Moreover, each student was required to pay the costs associated with the field trip and provide them own transportation. Following the field trip, he would discuss in class what they had learned during the field trip.

The undisputed facts also show that Mrs. Fernandez enrolled in FNC’s ESOL class for the term beginning in January 1999, and ending on Thursday, August 12, 1999. This particular class met four times a week, Monday through Thursday, from 8:30 a.m. to 1:00 p.m., and was taught by Mr. Cisneros. About a week before the term ended, Mr. Cisneros announced in class that there would be a trip to a beach in Key West on Friday, August 13, 1999; the fare for the trip was $15; the students could bring their friends and family members; and the trip would begin and end at the parking lot at the FNC campus. It is also undisputed that the students paid Mr. Cisneros during a scheduled class period; only approximately ten of the seventeen to nineteen students participated in the excursion to Key West; Mr. Cisneros did not inform FNC of the trip; he did not ask the students to sign a release form; and the excursion did not affect the students’ grades as Mr. Cisneros had turned in his grades on August 12,1999.

It is also undisputed that on the morning of Friday, August 13, 1999, Mr. Cisne-ros, Mr. Maximo Suarez, who is another FNC teacher, and Javier Aragon, who is a student at FNC, went to Thrifty Rent-A-Car, where Mr. Cisneros rented two vans using his personal credit card. One van was driven by Mr. Cisneros, and the second van was driven by Mr. Aragon because Mr. Suarez had forgotten his driver’s license. The vans left the FNC parking lot between 7:00 and 7:30 a.m., with Mrs. Fernandez and Claudia riding in the van driven by Mr. Cisneros. While attempting to pass a pickup truck, Mr. Cisneros lost control of the van, and the van rolled over. Mrs. Fernandez sustained injuries and Claudia died when she was ejected from the van.

The plaintiffs contend that the trial court erred by granting final summary judgment in favor of FNC. As we conclude that, based upon the record before this court, the plaintiffs cannot establish an agency relationship between Mr. Cisneros and FNC, we affirm the summary judgment entered in favor of FNC.

In opposing the motion for summary judgment, the plaintiffs argued that there were genuine issues of material fact as to whether, at the time of the accident, Mr. Cisneros was either FNC’s actual agent or apparent agent, or whether Mr. Cisneros was acting within the course and scope of his employment. Although the existence of an agency relationship is usually a question of fact that must be resolved by the trier of fact, when

a party bearing the burden of proof on an issue, fails to produce any supportive evidence, or when ... all of the evidence presented by both parties is so unequivocal that reasonable persons could reach but one conclusion, a question that is ordinarily one of fact becomes a question of law, to be determined by the court.

Gillet v. Watchtower Bible & Tract Soc’y of Pennsylvania, Inc., 913 So.2d 618 (Fla. 3d DCA 2005)(quoting Eberhardy v. Gen. Motors Corp., 404 F.Supp. 826, 830 (M.D.Fla.1975)); see also Jaar v. Univ. of Miami, 474 So.2d 239, 242 (Fla. 3d DCA 1985)(“The existence and scope of an agency relationship are generally questions of fact to be resolved by the factfinder, unless the evidence is susceptible of only one interpretation.”) (citations omitted). Moreover, whether an employee is acting within the course and scope of his employment is also a question of law when there are no factual disputes. See Sussman v. Fla. E. Coast Props., Inc., 557 So.2d 74, 76 (Fla. 3d DCA 1990).

First, we will address whether, at the time of the accident, Mr. Cisneros was acting within the course and scope of his employment with FNC. For the plaintiffs to establish that Mr. Cisneros’ conduct was within the course and scope of his employment with FNC, the plaintiffs must establish that: “(1) the conduct is of the kind the employee is hired to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part by a purpose to serve the master.” Sussman, 557 So.2d at 75-76; see also Iglesia Cristiana La Casa Del Señor, Inc. v. L.M., 783 So.2d 353, 357 (Fla. 3d DCA 2001).

In the instant case, the undisputed evidence showed that Mrs. Fernandez was enrolled in an ESOL class that met from 8:30 a.m. to 1:00 p.m., Monday through Thursday, and that the term ended on Thursday, August 12, 1999. Moreover, FNC’s policy was that field trips could only take place during scheduled class periods. As the accident occurred on Friday, August 13, 1999, which was after the term had ended and on a Friday, the plaintiffs cannot satisfy the second element, which requires that the “conduct oceur[] substantially within the time ... limits authorized or required by the work to be performed.” In addition, the plaintiffs cannot establish the third element because, at the time of the accident, the term had ended and Mr. Cisneros had turned in his grades. Therefore, the purpose behind the excursion to Key West in no way “serve[d] the master.” Based upon these undisputed facts, the plaintiffs cannot demonstrate that, at the time of the accident, Mr. Cisneros was acting within the course and scope of his employment with FNC.

As stated earlier, the plaintiffs also argued that FNC was liable because, at the time of the accident, Mr. Cisneros was FNC’s actual agent. To establish an actual agency relationship, the following elements must be established: “(1) acknowledgment by the principal that the agent will act for him, (2) the agent’s acceptance of the undertaking, and (3) control by the principal over the actions of the agent.” Goldschmidt v. Holman, 571 So.2d 422, 424 n. 5 (Fla.l990)(citing Restatement (Second) of Agency § 1 (1957)); see also Gillet, 913 So.2d at 620 (quoting Gold-schmidt, 571 So.2d at 424 n. 5).

In the instant case, there is no doubt that Mr. Cisneros was, at one point, employed by FNC. However, the undisputed testimony showed that, at the time of the accident, the term had ended; FNC had not authorized this excursion; and that this excursion in no way benefited FNC. In fact, Mrs. Fernandez’s testimony reflects that they were taking this excursion because the course had ended. Therefore, based upon these undisputed facts, the plaintiffs cannot establish that Mr. Cisneros was FNC’s actual agent on the day of the accident.

Next, we address the issue of apparent agency. FNC contends that the plaintiffs have waived this theory by failing to assert this ground in the Complaint. Although the plaintiffs did not assert this ground in the Complaint, in opposing the motion for summary judgment, the plaintiffs argued that there were issues of material fact as to whether Mr. Cisneros was FNC’s apparent agent. At the summary judgment hearing, FNC’s counsel argued that apparent agency was not pled in the Complaint.

A review of the Complaint demonstrates that the plaintiffs failed to allege that Mr. Cisneros. was FNC’s apparent agent at the time of the accident. We agree with FNC that issues that are not pled in a complaint cannot be considered by the trial court at a summary judgment hearing. Am. Title Ins. Co. v. Carter, 670 So.2d 1115 (Fla. 5th DCA 1996)(holding that at summary judgment hearing, trial court erred by considering theory not raised in the pleadings); Hemisphere Nat’l Bank v. Goudie, 504 So.2d 785 (Fla. 3d DCA 1987)(holding that “under Florida law a court hearing a case on a motion for a summary judgment can only consider those issues raised by the pleadings”); Reina v. Gingerale Corp., 472 So.2d 530, 531 (Fla. 3d DCA 1985)(“At the summary judgment hearing, the court must only consider those issues made by the pleadings.”). In addition, although FNC’s counsel argued that apparent agency was not pled in the Complaint, the plaintiffs did not at any time move to amend the Complaint. Therefore, we find that apparent agency was waived by the plaintiffs.

Although we find that apparent agency was waived, we will nonetheless address the merits. To establish that an apparent agency exists, the following elements must be present: “(a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.” Roessler v. Novak, 858 So.2d 1158, 1161 (Fla. 2d DCA 2003); see also Gillet, 913 So.2d at 620 n. 1; Amstar Ins. Co. v. Cadet, 862 So.2d 736, 742 (Fla. 5th DCA 2003). In the instant case, the only representation that FNC made to its students was that their ESOL teachers, such as Mr. Cisneros, were authorized to take them on field trips during the term in which they were enrolled. Therefore, as the field trip occurred after the term had ended, Mr. Cisneros was not FNC’s apparent agent when the accident occurred. Accordingly, we affirm the trial court’s order granting final summary judgment in favor of FNC.

Affirmed.

      . Mrs. Fernandez testified as follows in her deposition:
      [MS. POST MASSION]: What kind of an excursion were you on?
      [MRS. FERNANDEZ]: An excursion for the reason of the end of course.
      [MS. POST MASSION]: End of course where?
      [MRS. FERNANDEZ]: Of the classes of English that I was taking.


text:
    Jorge MANCILLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-386.
    District Court of Appeal of Florida, Fourth District.
    March 29, 2006.
    Rehearing Denied May 9, 2006.
    Jorge Mancilla, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed; see Gordon v. State, 863 So.2d 1215 (Fla.2003).

FARMER, SHAHOOD and HAZOURI, JJ., concur.


text:
    Frank A. NESBITT, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2912.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2006.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Daniels v. State, 587 So.2d 460 (Fla.1991).

SHARP, W„ THOMPSON and MONACO, JJ., concur.


text:
    Michael WEIR, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4431.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2006.
    James T. Miller, Jacksonville, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

THOMPSON, ORFINGER and TORPY, JJ., concur.


text:
    C.S., Mother of R.V., Jr. and C.V., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D05-3068.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2006.
    Diana K. Simpson, of Diana K. Simpson, P.A., Ocala, for Appellant.
    Ralph J. McMurphy, of Department of Children and Families, Wildwood, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See L.F. v. Dept of Children & Families, 888 So.2d 147 (Fla. 5th DCA 2004).

THOMPSON, SAWAYA and LAWSON, JJ., concur.


text:
    Lionel BOWDEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2916.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2006.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

PLEUS, C.J., SHARP, W., and PALMER, JJ., concur.


text:
    Robert STABAK, Appellant, v. TROPICAL BREEZE ESTATES, INC., a Florida corporation, Appellee.
    No. 4D05-2509.
    District Court of Appeal of Florida, Fourth District.
    April 5, 2006.
    William M. Winkel', West Palm Beach, (withdrawn as counsel after filing brief), and Robert Stabak, Boynton Beach, Pro Se.
    John R. Sheppard of Becker & Poliakoff, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The trial court entered a default judgment against the appellant, Robert Stabak, for failure to comply with discovery requests. Sanctioning a party for discovery violations is within the sound discretion of the trial court, and we will not overturn penalties imposed absent an abuse of discretion. Ham v. Dunmire, 891 So.2d 492, 495 (Fla.2004).

The Florida Supreme Court has cautioned that dismissal of an action because of violation of a discovery order is an abuse of discretion per se, if the trial court does not make express written findings of fact of willful or deliberate disregard of the trial court’s order. Id. at 495; see Commonwealth Fed. Savings & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990). The court reasoned:

Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation.

Ham, 891 So.2d at 496. Although no particular “magic words” are necessary, the Ham court emphasized that “the trial court must make a ‘finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard.’ ” Id. (quoting Tubero, 569 So.2d at 1273).

Here, the trial court made no findings regarding willful or deliberate disregard, or their equivalent, by the defendant. The court merely stated that Stabak failed to serve plaintiffs counsel with responses to the discovery requests, and that he failed to provide any reasonable excuse for his failure to comply with the court’s orders at the hearing on the plaintiffs motion. Accordingly, we reverse and remand for further proceedings.

Reversed.

POLEN, SHAHOOD and TAYLOR, JJ„ concur.


text:
    Leroy JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-890.
    District Court of Appeal of Florida, Fourth District.
    April 5, 2006.
    Rehearing Denied May 9, 2006.
    Leroy D. Jones, Lowell, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant filing a motion that includes the oath required by Florida Rule of Criminal Procedure 3.850(c) within the time remaining under Rule 3.850(b).

SHAHOOD, GROSS and MAY, JJ„ concur.