author: WALLACE, Judge. CASANUEVA, Judge,

text:
    Ramiro COMPANIONI, Jr., Appellant, v. CITY OF TAMPA, Appellee.
    No. 2D05-688.
    District Court of Appeal of Florida, Second District.
    March 30, 2007.
    Rehearing Denied May 15, 2007.

      Dominic O. Fariello, Tampa, for Appellant.
    Richard M. Zabak of GrayRobinson, P.A., Tampa, for Appellee.
   WALLACE, Judge.

After Ramiro Companioni, Jr., obtained a jury verdict for a substantial amount in his personal injury action against the City of Tampa, the City moved for a new trial. The trial court granted the City’s motion on the ground that two members of the jury were not qualified to serve because they had previously been convicted of felonies and had not had their civil rights restored. Because the City failed to establish that it was not accorded a fair and impartial jury or that its substantial rights were prejudiced by the participation of the two unqualified jurors, we reverse the order granting the City a new trial.

Facts and Procedural Background

The unfortunate event which began this case was a collision between a motorcycle driven by Mr. Companioni and a water truck owned by the City. The collision occurred on the morning of November 22, 1996, on Hillsborough Avenue in Tampa. Mr. Companioni was thrown to the pavement by the force of the collision, and he sustained serious injuries as a result. After giving the required notice of intent to sue, Mr. Companioni filed a personal injury action against the City.

The case went to trial in March 2004. The trial court qualified the prospective jurors in a central juror assembly room prior to the beginning of the trial. The prospective jurors had been required to complete and bring to court a standard “Juror Voir Dire Questionnaire.” Completing the form with a ballpoint pen created multiple copies so that copies of the completed questionnaires could be furnished to counsel at trial. During the voir dire examination, neither of the attorneys for the parties asked the prospective jurors any questions about prior felony convictions or any other questions pertaining to the prospective jurors’ statutory qualifications to serve on a jury. Instead, the questions the attorneys directed to the venire related mainly to the types of employment pursued by the prospective jurors and their family members and — quite understandably — the prospective jurors’ experiences with motorcycles.

At the conclusion of the trial, the jury returned a verdict in favor of Mr. Compa-nioni for a substantial amount. The trial court subsequently entered final judgment in favor of Mr. Companioni and against the City in accordance with the verdict. The City timely served a motion for remittitur and a motion for new trial that raised multiple issues. After the final judgment was entered against it, the City filed a motion to alter or amend judgment asking the trial court to limit execution and the amount of the judgment in accordance with section 768.28, Florida Statutes (Supp.1996).

Next, the City filed an amendment to its motion for new trial. In the amendment, the City alleged that two members of the six-person jury had failed to disclose prior felony convictions and had not had their civil rights restored. In particular, Juror No. 250 had been convicted of obtaining property by worthless check on May 26, 1988, and possession of cocaine on May 27, 1988. Juror No. 1188 had been convicted of grand theft on June 18, 1996. The City attached certified copies of the felony convictions to its amended motion, along with certificates under seal from the Office of Executive Clemency stating that neither of the two jurors had had their civil rights restored. The City concluded that since two of the six jurors were disqualified from serving on the jury by reason of their prior felony convictions, the trial court was required to set aside the jury verdict and reschedule the matter for a new trial. The City did not supplement its motion for new trial with a motion to interview any of the jury members. See Fla. R. Civ. P. 1.431(h); R. Regulating Fla. Bar 4-3.5(d)(4). None of the members of the jury testified at the hearing on the motion for new trial.

In addition to the certified copies of the judgments of conviction and the certificates from the Office of Executive Clemency, the City attached to its amendment to the motion for new trial copies of the “Juror Voir Dire Questionnaires” that had been completed by each member of the jury panel. In pertinent part, the questionnaire asked the prospective jurors to answer ‘Tes” or “No” to the following question: “Have you or a member of your family or a close friend ... been accused of a crime?” Juror No. 250 answered this question “No”; Juror No. 1183 responded “Yes” to this inquiry. The juror questionnaire also contained the following legend in bold print near the bottom of the form just below the line provided for the prospective juror’s signature: “Juror must be a U.S. and Florida Citizen and a Hillsborough County Resident; and not convicted without Governor’s pardon of a felony crime.” However, the questionnaire did not ask the prospective jurors to indicate whether they had ever been convicted of a felony and had not had their civil rights restored.

The trial court conducted a hearing on the City’s motions. The evidence presented by the City at the hearing was limited to the certified copies of the judgments of conviction, the certificates under seal from the Office of Executive Clemency, and the copies of the juror questionnaires. At the conclusion of the hearing, the trial court granted the City a new trial and set aside the verdict and the judgment on the basis of the disqualification of the two jurors by reason of their prior felony convictions. The trial court made findings of fact and conclusions of law in support of its order as follows:

In the Thirteenth Judicial Circuit, when jurors are qualified as a group each Monday and Wednesday, they are specifically asked if they have been convicted of a felony and not had their civil rights restored. Potential jurors are advised that if they respond affirmatively, they are not qualified to serve as jurors. By shear [sic] coincidence, the undersigned made this inquiry of this particular panel. Thus, the two jurors at issue responded falsely to this inquiry. While the Florida Courts are reluctant to set aside a juror [sic] verdict once a panel is sworn, this Court cannot permit perspective [sic] jurors who provide false answers concerning their qualifications to participate in the jury process.
Further, in response to the jury questionnaires, while one juror did indicate an arrest, the other stated he had no arrests.[] The Courts have overlooked disqualification based upon the partial disclosure of information or the ability to observe the information by counsel, e.p.[,] State v. Ro[d]gers, 347 So.2d 610 (Fla.1977). However, it is clear that at least one juror failed to disclose this critical information.
There is no doubt that the Constitution of this State requires a jury to be conducted by those qualified by law and the law provides that no person may serve as a juror “who has been convicted in this state ... of ... any offense that is a felony ..., unless restored to civil rights.” While the Court has no desire to retry this case, the plain reading of the Constitution and Section 40.013(1) do not provide any latitude.

Because it considered the juror disqualification issue to be determinative, the trial court did not address the other grounds raised in the City’s motion for new trial. For the same reason, the trial court did not rule on the City’s motion for remittitur or the motion to alter or amend judgment.

Framing the Issue

The Florida Constitution provides that “[t]he qualifications and the number of jurors, not fewer than six, shall be fixed by law.” Art. I, § 22, Fla. Const. With regard to the disqualification of certain categories of persons from jury service, section 40.013, Florida Statutes (2003), provides:

(1) No person who is under prosecution for any crime, or who has been convicted in this state, any federal court, or any other state, territory, or country of bribery, forgery, perjury, larceny, or any other offense that is a felony in this state or which if it had been committed in this state would be a felony, unless restored to civil rights, shall be qualified to serve as a juror.
(2)(a) Neither the Governor, nor Lieutenant Governor, nor any Cabinet officer, nor clerk of court, or judge shall be qualified to be a juror.
(3) No person interested in any issue to be tried therein shall be a juror in any cause; but no person shall be disqualified from sitting in the trial of any suit in which the state or any county or municipal corporation is a party by reason of the fact that such person is a resident or taxpayer within the state or such county or municipal corporation.

Thus persons who have been convicted of bribery, forgery, perjury, larceny, or any other offense that is a felony are disqualified from jury service unless they have had their civil rights restored. In accordance with other provisions of the statute, certain other categories of persons may be excused or exempt from jury service for a variety of reasons. § 40.013(2)(b), (4)-(9). However, these grounds for excusal or exemption from jury service should not be confused with the entirely separate grounds mandating disqualification. In this case, Juror No. 250 and Juror No. 1183 were disqualified from jury service by reason of their prior felony convictions.

The judge who tried this case also happened to qualify the jurors in the jury assembly room prior to trial. Based on what he had personally seen and heard at the qualification proceeding, in the order granting the City a new trial, the trial judge made a finding of fact that the two jurors in question had responded falsely to the inquiry made in the jury assembly room about prior felony convictions. On appeal, Mr. Companioni challenges this finding. He argues that “[tjhere is no record of these particular jurors responding falsely in the main jury assembly [room], and it is debatable whether each properly heard the judge’s instructions.” Mr. Companioni’s argument on this point raises a number of issues, including the following: May a trial court properly order a new trial based on the judge’s personal observations about an event that happened prior to trial during a proceeding at which neither the parties nor their attorneys were present? Would it make any difference if the parties had been given notice of the time and place of the jury qualification proceeding from which the jurors who would hear the case would be drawn? What impact would the existence of a transcript or a videotape of the jury qualification proceeding have on the analysis? These are interesting questions, but we need not address them here because Mr. Companioni did not raise this issue in the trial court. Mr. Companioni’s failure to raise the issue in the trial court precludes him from raising it for the first time on appeal. See Cuevas v. Kelly, 873 So.2d 367, 373 (Fla. 2d DCA 2004). For purposes of our analysis in this case, we will accept the trial court’s finding of fact that both Juror No. 250 and Juror No. 1183 concealed their prior felony convictions during the jury qualification proceeding.

Having disposed of these preliminary matters, we are now in a position to frame the issue raised by the facts of this case as follows: When a juror who is disqualified by statute from jury service by reason of a prior felony conviction conceals the facts pertinent to his or her disqualification and is seated on the jury, what factors — if any — warrant granting a new trial for that reason upon a timely motion?

We emphasize that our focus in this case is on juror concealment of facts pertinent to a statutory disqualification. Unlike many other reasons that would support a challenge to a juror for cause or that might lead to the exercise of a peremptory challenge, statutory disqualifications are generally based on the juror’s status or other reasons that are independent of bias or prejudice for or against a party.

We also note that we are not concerned here with a case in which the party seeking a new trial had knowledge of a fact disqualifying a juror and failed to assert it until after the verdict. Under such circumstances, the absence of a timely challenge to the juror results in a waiver. See Willacy v. State, 640 So.2d 1079, 1082-83 (Fla.1994); Porter v. State, 160 So.2d 104, 109 (Fla.1963). By contrast, this case involves juror concealment of the pertinent facts. Indeed, Mr. Companioni does not claim that the City made a knowing waiver of the statutory disqualification of the two jurors.

We now turn to the consideration of the issue that we have framed. To promote clarity in our analysis, we will explore this issue by examining separately the three distinct legal theories offered by the trial court, by Mr. Companioni, and by the City.

The Trial Court’s Theory

The trial court’s order granting the City a new trial is based on the theory that the concealment of prior felony convictions by two of the six jurors warranted overturning the jury’s verdict without any additional showing. Under this theory, the participation of one or more disqualified jurors in the trial — at least where the facts pertinent to the disqualification have been concealed — renders the verdict and judgment voidable. The trial court did not cite any Florida statutes or case law in support of this theory, and our independent research has not disclosed any either. In its brief, the City does not defend the legal theory reflected in the order granting a new trial. Instead, the City raises different legal arguments in support of the trial court’s order. The parties agree that something more than service on the jury by one or more jurors subject to a statutory disqualification is required to warrant granting a new trial. However, they differ concerning the nature of the additional showing that is required to set aside such a jury’s verdict. In light of the parties’ positions, we need not devote further attention to the legal theory reflected in the order granting a new trial. Accordingly, we turn now to a consideration of the competing theories advanced by Mr. Companioni and by the City.

Mr. Companioni’s Theory

Mr. Companioni argues that the City is not entitled to a new trial on account of the failure of the two jurors to disclose prior felony convictions unless the City can establish actual bias or prejudice resulting from the service of the two disqualified jurors. Neither of the parties has directed our attention to any Florida case on the point involving jurors disqualified by reason of prior felony convictions. However, we do note that the federal cases support Mr. Companioni’s position. See Raub v. Carpenter, 187 U.S. 159, 163-64, 23 S.Ct. 72, 47 L.Ed. 119 (1902); Coughlin v. Tailhook Ass’n, 112 F.3d 1052, 1057-59 (9th Cir.1997); United States v. Humphreys, 982 F.2d 254, 260-61 (8th Cir.1992); United States v. Boney, 977 F.2d 624, 632-35 (D.C.Cir.1992); United States v. Uribe, 890 F.2d 554, 561-62 (1st Cir.1989); United States v. Currie, 609 F.2d 1193, 1194 (6th Cir.1979); Ford v. United States, 201 F.2d 300, 301-02 (5th Cir.1953). In the absence of any Florida cases involving jurors disqualified from jury service by reason of prior felony convictions, we look for guidance to Florida cases that have addressed the problem of service by jurors who were disqualified from jury service for other reasons.

Mr. Companioni relies primarily on the decision of the Supreme Court of Florida in State v. Rodgers, 347 So.2d 610 (Fla.1977) (Rodgers II) In Rodgers II, the defendant had been tried and convicted of second degree murder. Id. at 611. One of the six jurors was, at the time of trial, only seventeen years of age. Id. The juror was seated after she had lied about her age during voir dire. Id. Under the controlling statute, the juror was disqualified from jury service because of her minority. Id. at 612. After the verdict was rendered, defense counsel moved for a new trial on account of the juror’s statutory disqualification. Id. at 611. The trial court denied the motion, and the defendant appealed to the Fourth District. Id.

On appeal, the Fourth District concluded that the defendant was not afforded a fair and impartial jury because “one of the jurors, by virtue of being a minor, was legally incompetent to serve as a juror.” Rodgers v. State, 338 So.2d 1121, 1122 (Fla. 4th DCA 1976) {Rodgers I). In reaching its decision, the Fourth District considered and rejected the proposition that a new trial was not warranted in the absence of a showing of actual prejudice to the defendant’s rights. Id. Based on this reasoning, the Fourth District reversed the defendant’s judgment and sentence and remanded the case for a new trial. Id. After denying rehearing, the Fourth District certified the following question to the Supreme Court of Florida:

Where a jury member has been seated on the jury after lying about her age, where she is only 17 years old, and this fact is introduced to the trial court after the jury verdict was rendered, must a new trial be granted even without a showing of actual prejudice to the defendant?

Rodgers II, 347 So.2d at 611.

The Supreme Court of Florida answered the certified question in the negative, quashed the Fourth District’s decision, and remanded with directions that the judgment of conviction be reinstated. Id. at 613. In answering the certified question in the negative, the court emphatically rejected the notion that service by a juror who concealed facts pertinent to her statutory disqualification warranted a new trial in the absence of a showing of actual prejudice to the defendant. The court’s reasoning on this point is instructive and is worth quoting at length:

While recognizing that the Legislature has authority under Article I, Section 22, Florida Constitution, to require that jurors have qualifications of age, residence and voter registration, and may statutorily disqualify others by reason of criminal activity, occupation and infirmity, we are of the opinion that the seating of an unqualified or disqualified juror will not result in a reversal of a guilty verdict in the absence of a showing that such qualification deficiency affected the verdict or prevented a fair trial. There is nothing sub judice to demonstrate that the juror’s condition of non-age affected her ability to render a fair and impartial verdict or that she failed to do so.
It is contended by [the defendant] that the age requirement is different than other statutory juror qualifications. This argument proceeds on the premise that a person below the age specified by law lacks competence to serve as a juror. The argument is reinforced by the citation of many statutes imposing restrictions on activities of those who have not attained the threshold age. The premise on which [the defendant’s] argument is based is faulty, and we reject it. A person who is less than eighteen years of age is not, by reason of age alone, lacking in competence. The legislative mandate that jurors be persons who are no less than eighteen years of age imposes the duty of preventing those below that age from being included on a panel of prospective jurors. If a person below that age is somehow included, he or she should not be accepted for duty and may be successfully challenged for cause. However, non-age does not equate with incompetence, and a verdict rendered by a jury with an underage member may be valid.... [A]n objection to a juror with less than complete qualifications comes too late after acceptance of the jury and verdict, unless it can be shown that the deficiency affected the juror’s ability to render a verdict.
We hold that, in the absence of evidence that the defendant was not accorded a fair and impartial jury or that his substantial rights were prejudiced by the participation and misconduct of the unqualified juror, he is not entitled to a new trial.

Id. at 613.

The City attempts to distinguish Rodgers II on the basis that the defendant’s attorney was advised shortly before the jury returned its verdict of the possibility of the juror’s minority but did not raise the issue until after the verdict was returned. See Rodgers I, 338 So.2d at 1121. But this fact was not included in the question that the Fourth District certified to the Supreme Court of Florida, and the supreme court did not restate the question to include the purported distinguishing fact. Moreover, the supreme court’s reasoning in Rodgers II was based on much broader grounds. The supreme court declined to treat the attorney’s possible knowledge of the juror’s disqualification prior to the verdict as being dispositive in the face of a dissent by Justice Hatchett in which he contended that “[s]uch a disposition would be proper and just.” Rodgers II, 347 So.2d at 614. Furthermore, the supreme court’s analysis in Rodgers II is consistent with its two earlier decisions that involved juror disqualification.

The first of these two earlier decisions is Ex parte Sullivan, 155 Fla. 111, 19 So.2d 611 (1944). In Sullivan, a defendant who had been convicted of first-degree murder and sentenced to death brought a habeas corpus proceeding. Id. at 611. The defendant contended that his conviction was void because one of the jurors who had rendered the verdict was disqualified by reason of the juror’s status as a deputy sheriff. Id. The defendant alleged that he did not learn about the juror’s employment as a deputy sheriff until months after the defendant’s conviction. Id.

The court denied the defendant’s habeas corpus petition. Id. In explaining its decision, the court said:

The fact of being a deputy sheriff is a ground of challenge for cause, Section 913.03, Florida Statutes 1941, F.S.A., but if the right to challenge for cause is not exercised before the juror is sworn to try the cause it is lost, Section 913.04, Florida Statutes 1941, F.S.A. If one of the jurors was in fact a deputy sheriff, it was a matter of record available to the petitioner at the trial and should have been seasonably raised. He should have been challenged for cause and exception taken on refusal of the challenge. The challenged error could have then been reviewed on appeal.

Id. The court concluded by noting that the defendant had not alleged “that the juror in question was biased or prejudiced or that he did not receive a fair and impartial trial.” Id. In Rodgers II, the court cited Sullivan as authority for its decision. Rodgers II, 347 So.2d at 612.

Another case that the court cited in Rodgers II is Leach v. State, 132 So.2d 329 (Fla.1961). See Rodgers II, 347 So.2d at 612-13. In Leach, two defendants had been convicted of first-degree murder and sentenced to death. 132 So.2d at 329. On appeal, the defendants argued that three members of the jury that convicted them were disqualified because the jurors were not registered voters of the county at the time of trial. Id. at 333. On voir dire examination, the jurors “apparently stated that they were registered voters.” Id. The defendants claimed that they did not learn of this fact pertinent to the disqualification of the three jurors until after their conviction. Id.

In a decision affirming the defendants’ convictions, the court addressed and rejected the defendants’ argument on this issue. Once again, the court’s reasoning is worth quoting at length:

Appellants further contend that they were convicted by a jury panel, three members of which were not registered voters of the county at the time of trial. Section 40.01, Florida Statutes, F.S.A. They state that they did not learn of this fact until after their conviction. On voir dire the jurors apparently stated that they were registered voters. While this would have been a valid objection to the jurors when examined on voir dire, it comes too late after acceptance of the jury and the verdict. The jurors could have been challenged for cause during the examination, but having failed to assert the cause, the objection was waived when the appellants accepted the jury. The rule might be otherwise if the disqualification of the jurors, unknown to the defendant at the trial, was subsequently revealed to be one affecting their ability to render a fair and impartial verdict. For example, if after the trial it should develop that a juror was closely related by blood to deceased and had announced his conviction regarding the guilt of the accused and had misrepresented his position when examined, such a disqualification would enter into the very fundamentals of the trial itself. This is not so with reference to the failure of the juror to be a registered voter. The [defendants] make no contention that they were not fairly heard with an unprejudiced mind by the jurors in question. Their position offers no ground for reversal.

Id. Thus in Leach, as in Sullivan and Rodgers II, the jurors’ concealment of the facts pertinent to their statutory disqualification did not warrant granting a new trial in the absence of a showing of actual bias or prejudice or that the complaining party did not receive a fair and impartial trial.

The court’s reasoning in Rodgers II, Sullivan, and Leach supports Mr. Companion's argument concerning what must be established to warrant granting a new trial where a juror conceals facts pertinent to his or her statutory disqualification. However, all three of these cases address the problem of juror disqualification in the context of reasons other than felony convictions. This requires us to consider whether there is something about a juror disqualification on account of a felony conviction that would support a per se rule requiring a new trial in the absence of a showing of bias or prejudice. A per se rule of this type would be consistent with the theory underlying the order granting the City a new trial in this case. Such a per se rule would be supportable only if one could conclude that the service of a juror with a prior felony conviction — no matter how old the conviction or however unrelated to the matter to be tried — would deprive one or both of the parties of a fair and impartial jury. The per se rule assumes that the felon juror harbors an “inherent bias.”

The notion that felon jurors have an “inherent bias” has generally been expressed in the context of criminal cases, not civil cases like the one before us. One can make the argument that a convicted felon “might well harbor a continuing resentment against ‘the system’ that punished him and an equally unthinking bias in favor of the defendant on trial, who is seen as a fellow underdog caught in its toils.” Rubio v. Superior Court, 24 Cal.3d 93, 154 Cal.Rptr. 734, 593 P.2d 595, 600 (1979) (en banc). On the other hand, criminal defendants who have gone to trial and have been convicted are the parties who complain about service by felon jurors, not the prosecution. See, e.g., Humphreys, 982 F.2d at 260-61. Moreover, it is a relatively easy task to attribute motives to the felon juror that favor the prosecution. One federal judge proposes two hypotheses to explain why the felon juror could be prejudiced towards a guilty verdict. Boney, 977 F.2d at 642 (Randolph, J., dissenting). First, the felon juror “may have developed a callous cynicism about protestations of innocence, having no doubt heard many such laments while incarcerated.” Id. Second, a felon juror’s “desire to show others — and himself — that he is now a good citizen might lead him to display an excess of rectitude, both in his deliberations and in his vote.” Id.

However, we may decide this civil case without resolving these competing speculations about the possible motivations of felon jurors. To the extent that the theory that felon jurors have an “inherent bias” has any validity at all, its applicability is limited to criminal cases. It has no application to civil cases such as the one before us. Here, there is no reason to assume that either Juror No. 250 or Juror No. 1183 was prejudiced for or against either of the parties in this relatively routine personal injury dispute. For this reason, we conclude that — at least in the context of a civil dispute such as this one — a juror’s statutory disqualification on account of a prior felony conviction should be treated no differently than similar disqualifications on account of age, residence, official position, and the like. Thus we agree with Mr. Companioni’s theory that the City was not entitled to a new trial on account of the jurors’ prior felony convictions in the absence of a showing of actual bias or prejudice or that the City did not receive a fair and impartial trial. However, before applying the law to the facts of this case, we must give due attention to the City’s theory.

The City’s Theory

In the trial court, the City argued that the rule of law dispositive of its motion for new trial on account of the concealment by two jurors of prior felony convictions was the three-part test that applies in cases of juror nondisclosure:

In determining whether a juror’s nondisclosure of information during voir dire warrants a new trial, courts have generally utilized a three-part test. First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.

Roberts v. Tejada, 814 So.2d 334, 339 (Fla.2002) (quoting De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995)). Here, the City makes the same argument in support of the order granting a new trial. According to the City, “[t]he record in this case plainly demonstrates that the three-part test was satisfied.” We note that the three-part test approved in De La Rosa is more favorable to the City’s position than the actual prejudice or bias test stated in Rodgers II, Sullivan, and Leach. Assuming that the other two prongs are satisfied, the City need establish only the materiality of the concealed information under the three-part test. Prejudice “is not a part of the De La Rosa test.” Roberts, 814 So.2d at 342.

We have made a thorough review of the Florida cases involving juror concealment of facts pertinent to statutory disqualification and the Florida case law concerning the application of the three-part test to instances of juror nondisclosure. Based on this review, we conclude that the City is trying to pound a square peg into a round hole by arguing for the application of the three-part test to this case. A brief comparison of the different circumstances in which each line of cases properly applies will demonstrate the flaw in the City’s argument.

Rodgers II, Sullivan, and Leach all involve service by jurors who concealed facts pertinent to their disqualification by statute from jury service. Facts disqualifying a juror from jury service might include minority, official position, the lack of a voter registration, or — as in this case — a prior felony conviction. The disqualification of a juror from jury service does not ordinarily give rise to an inference of bias or prejudice. Stated differently, a person’s disqualification from jury service because of his or her status does not generally reflect on the juror’s ability to be fair. For example, judges are disqualified from jury service by reason of their official position. § 40.013(2)(a). But that fact alone does not indicate that a judge would be an unfair or a partial juror. To state the point more generally, service on a jury by a juror who is subject to a statutory disqualification will not — absent some other reason — result in a trial that is not fair and impartial. Cf. Mobil Chem. Co. v. Hawkins, 440 So.2d 378, 380-81 (Fla. 1st DCA 1983) (discussing Rodgers II and noting that a juror’s minority “will not ordinarily support an inference of bias for or against a particular party in a particular case”).

On the other hand, the three-part test approved by the Supreme Court of Florida in De La Rosa applies to juror nondis-closures of an entirely different kind of information. In De La Rosa, the court considered circumstances “where jurors allegedly failed to disclose a prior litigation history or where other information relevant to jury service was not disclosed.” De La Rosa, 659 So.2d at 241. Such information could include facts demonstrating a prospective juror’s actual bias or prejudice for or against one of the parties. It could also include facts about the prospective juror’s employment, opinions, experiences, associations, or other factors not demonstrating actual bias or prejudice but that might bear on an attorney’s ability to make an informed judgment about exercising a peremptory challenge against the prospective juror. Neither De La Rosa nor Roberts addressed the problem of juror concealment of facts pertinent to the juror’s statutory qualifications. In fact, both of these cases concerned nondisclosure of a juror’s prior claims history. See Roberts, 814 So.2d at 336-39; De La Rosa, 659 So.2d at 240. In this regard, the De La Rosa court’s choice of the prior district court cases selected as examples of the problem under consideration in that case is instructive. The six cases cited all involved either a juror’s failure to disclose prior claims history or other experiences and relationships material to the juror’s service in the case. Id. at 241. None of the cited cases involved nondisclosure of facts pertinent to the juror’s statutory disqualification.

A comparison of the disparate impacts of service by a juror who is disqualified by statute from jury service with service by a juror who fails to disclose prior claims history or other facts material to service in the case explains the difference in the legal standards that are applied to determining the complaining party’s right to a new trial in each of these different situations. Because service by a juror who is disqualified does not establish prejudice for or against a party, a greater showing is required to obtain a new trial in cases involving juror disqualification than in other cases where juror nondisclosure is a factor. In the disqualification cases, actual bias or prejudice to the complaining party must be shown to warrant granting a new trial. On the other hand, juror nondisclosure of facts material to the juror’s service in the case is likely to result in service by a juror who is biased or prejudiced in fact. Under these circumstances, a lesser showing for granting a new trial is warranted. Thus, if the other two parts of the three-part test are shown, the complaining party need only establish the materiality of the undisclosed information to obtain a new trial, not bias or prejudice in fact.

Thus the juror disqualification eases and the three-part test cases do not conflict or overlap. Instead, each line of cases is applicable to a different kind of juror nondisclosure. Since this case concerns juror nondisclosure of facts pertinent to a statutory disqualification, the City’s argument that the three-part test applies here lacks merit.

Applying the Test of Prejudice

In its fallback argument, the City contends that it is also entitled to a new trial under Rodgers II because it was “denied a fair and impartial jury or its substantial rights were otherwise prejudiced.” The only circumstance that the City points to in support of this contention is “[t]he enormous amount of the jury’s verdict against the City.” We are not persuaded by the City’s argument. The injuries that Mr. Companioni sustained in the accident were grave. In addition, the jury’s verdict allocated ten per cent of the fault for the collision to Mr. Companioni. At the very least, these facts suggest that the jury gave thoughtful consideration to the issues before it. For reasons that are unexplained in our record, the City never sought to interview Juror No. 250 or Juror No. 1183. Neither of these jurors testified at the hearing on the motion for new trial. In fact, the City did not call any witnesses at the hearing. Thus we know nothing of the circumstances surrounding the jurors’ nondisclosure of their prior felony convictions or what impact — if any — the prior convictions had on their jury service. Furthermore, the City did not present any evidence at the hearing on the motion for new trial tending to establish that the two jurors were biased against it or that it did not receive a fair and impartial trial. The City was entitled to a fair trial, but it cannot insist on a perfect one. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). Accordingly, we conclude that the trial court erred in granting the City a new trial on the ground of the concealment by the two jurors of their prior felony convictions.

Conclusion

The principle of law that we apply in this case is necessary to promote some measure of stability and finality in jury trials. In Florida, jury lists are compiled primarily from the records maintained by the Department of Highway Safety and Motor Vehicles of persons who have either a driver’s license or an identification card record. § 40.011. Thus jury venires are composed of a broad cross-section of the population. Many of the persons reporting for jury duty in the trial courts of this state will have prior felony convictions. Although prospective jurors are asked to disclose if they have a prior felony conviction and have not had their civil rights restored before being qualified to serve, we would be naive to assume that such self-reporting of prior felony convictions is always complete. See Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 Am. U.L.Rev. 65, 110-13 (2003) (discussing the problem of nondisclosure of felony convictions by prospective jurors and the variety of reasons underlying this phenomenon); see also Forbes v. State, 933 So.2d 706 (Fla. 4th DCA 2006) (affirming judgment and sentence for criminal contempt against prospective juror who failed to disclose both a prior juvenile arrest and a pending criminal charge). As in this case, many persons with prior felony convictions undoubtedly serve on juries in this state. At least in civil cases where this occurs, it is entirely appropriate to require a showing of actual bias or prejudice before setting aside a verdict. As the Supreme Court of Florida said in Sullivan, “[t]o hold otherwise would render trials interminable and impose an undue burden on the taxpayer.” Sullivan, 19 So.2d at 611. A contrary rule would also unfairly reward a strategic decision not to challenge a juror if one of the parties had knowledge of the juror’s prior felony conviction. See Kalt, 53 Am. U.L.Rev. at 163. Counsel who are concerned about jury service by unqualified jurors can and should thoroughly examine the prospective jurors during voir dire about their qualifications to serve. Such a thorough examination should reduce — if not entirely eliminate — the instances of service by unqualified jurors.

For these reasons, we reverse the order granting the City a new trial, and we remand this case for the reinstatement of the jury’s verdict and the judgment. On remand, the trial court must conduct further proceedings to dispose of the City’s motion for remittitur, its motion to alter or amend the judgment, and the other grounds raised by the City in its motion for new trial.

Reversed and remanded for further proceedings.

FULMER, C.J., Concurs.

CASANUEVA, J., Concurs specially with an opinion.

CASANUEVA, Judge,

Concurs specially.

Because I conclude that the City of Tampa has failed to meet the three-prong analytical test established in De La Rosa v. Zequeira, 659 So.2d 239, 241 (Fla.1995), reiterated in Roberts ex rel. Estate of Roberts v. Tejada, 814 So.2d 334, 343 (Fla.2002), and State Farm, Fire & Casualty Co. v. Levine, 837 So.2d 363 (Fla.2002), I concur with the determination that the trial court’s order granting the City a new trial should be reversed.

I.

Although the majority has masterfully identified and sought to reconcile the two lines of cases, for several reasons I am not persuaded that the rationale expressed in State v. Rodgers, 347 So.2d 610, 614 (Fla.1977), should be extended. First, Rodgers required that in order to obtain a new trial based on juror misconduct, the recipient of an unfavorable verdict in which a statutorily disqualified juror concurred must show prejudice. Dissenting in Rodgers, Justice Hatchett expressed concern with the practical application of the majority rule requiring evidence demonstrating that a criminal defendant was not afforded a fair and impartial jury or that the accused’s substantial rights were prejudiced by the participation and misconduct of any unqualified juror. 347 So.2d at 614 (Hatchett, J., dissenting). This concern, in my view, remains valid today.

Next, I have some reservations regarding the continued vitality of Rodgers. In Lowrey v. State, 705 So.2d 1367 (Fla.1998), three justices suggested that the supreme court recede from Rodgers. In a special concurrence, Justice Anstead observed, “This Court did not explain in Rodgers, and has not explained today, the practical implications of its requirement that an innocent litigant demonstrate actual prejudice when an unqualified juror is permitted to decide the case.” Id. at 1370 (Anstead, J., specially concurring).

Ultimately, Lowrey created an exception to Rodgers that limited, rather than extended, its scope. In carving out the exception, the court found that “the very foundation of our criminal justice process is compromised when a juror who is under criminal prosecution serves on a case that is being prosecuted by the same state attorney’s office that is prosecuting the juror.” 705 So.2d at 1370.

Third, I believe that following the De La Rosa analysis rather than the Rodgers rule allows the judiciary to enforce the public policy established by our legislature rather than to nullify the public policy without exercising the power of constitutional judicial review. The Florida Legislature has drawn a line between those who qualify to sit as jurors and those who do not. It is the legislature’s prerogative to set the floor for juror qualifications and courts should not blithely disregard its decision. See Rodgers, 347 So.2d at 614 (Hatchett, J., dissenting) (“It is the legislature’s job to make the law, and in the absence of a finding that the statute is unconstitutional, it should not be effectively stricken. The court today completes the repeal of Section 40.01(1), Florida Statutes.”); Lowrey, 705 So.2d at 1371 (Anstead, J., specially concurring) (commenting on Justice Hatchett’s dissent in Rodgers: “The logic and clarity of Justice Hatchett’s opinion is striking. Obviously, and at a minimum, Florida citizens are entitled to a jury composed of persons who are statutorily competent to serve as jurors.”). It is, in my view, a better judicial policy to craft a rule that does no violence to the statute. De La Rosa fits this requirement.

As the majority notes, jurors today are called to serve from the rolls of licensed drivers. They are then preliminarily qualified en masse by the duty judge, as Judge Baumann did in this case, generally without the presence of either party’s counsel or a court reporter. When a voir dire is later being conducted in the courtroom where trial will be held, it is unlikely the trial judge will allow counsel to repeat qualifying questions previously posed to the entire venire. Thus, the parties and their trial counsel are presented with a perilous situation. They can repeat the questions asked earlier, and possibly incur the wrath of the trial judge or jurors, or proceed without a record, and run the risk that a verdict will be reached with the participation of a statutorily unqualified juror.

Finally, I share the majority’s view of finality as a judicial value. Litigation should and must come to an end. But I also believe that if the legislature has prescribed requirements for jury service, both fairness and the law mandate that a party receive that to which it is entitled — a properly qualified jury.

Our legislature has established the minimum qualifications for juror service. As the majority notes, prejudice from the service of an unqualified juror may favor one side or the other, and it is impossible to establish that prejudice without delving into the deliberative process of the jury. Therefore, should a juror serve in violation of section 40.013(1), Florida Statutes (2003), inherent prejudice should be presumed. Thereafter, the party receiving the benefit of the verdict gained with the service of the improperly qualified juror or jurors should have the burden of overcoming this presumption by showing that no prejudice existed. Allocation of the burden in this way gives appropriate judicial difference to the legislative enactment rather than, as previously noted, effectively repealing a duly enacted and constitutional statute.

Because it does not require a party to demonstrate actual prejudice, the three-prong De La Rosa test, in my view, is a superior analysis for deciding whether a new trial should be granted when an unqualified juror has served. De La Rosa was a medical malpractice action in which the jury returned a verdict in the doctor’s favor. In a motion for new trial, the plaintiff asserted that the jury foreperson’s failure to divulge his participation in numerous prior lawsuits constituted material misconduct that entitled the plaintiff to a new trial. The trial court granted the motion, but the Third District, by a two-to-one vote, reversed and reinstated the jury’s verdict. Zequeira v. De La Rosa, 627 So.2d 531, 533 (Fla. 3d DCA 1993). On further review, the supreme court outlined the analytical test for granting a new trial when one party claims juror nondisclosure, basing its reasoning on the three-part test enunciated in Skiles v. Ryder Truck Lines, Inc., 267 So.2d 379 (Fla. 2d DCA 1972):

First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence. [Skiles, 267 So.2d] at 380. We agree with this general framework for analysis and note that the trial court expressly applied this test in its order granting a new trial.

De La Rosa, 659 So.2d at 241.

The continuing viability of the De La Rosa three-prong test was reaffirmed in Tejada, 814 So.2d 334. In Tejada, the court concluded that a juror’s prior litigation history, which she failed to disclose upon initial questioning, was material and thus could have been the basis for a peremptory challenge. The court cautioned the lower courts not to confuse materiality with prejudice, as prejudice is not part of the De La Rosa test. 814 So.2d at 342. Addressing the attorney’s due diligence requirement, the court further held that trial counsel was not required to conduct a public records search of venire members prior to trial. 814 So.2d at 344-45.

Applying the first prong to this case— whether the information is relevant and material to jury service — I conclude that the fact of prior convictions undisclosed by the two jurors is both relevant and material. This conclusion is based upon two considerations. First, the Florida Legislature, by enacting section 40.013(1), has specifically precluded certain convicted felons from jury service. Second, the defendant is the City of Tampa, which operates a police department whose officers may be required to arrest people. It is thus logical and important for the City to ascertain whether a prospective juror harbors any prejudice against the government or its law enforcement arm. The withholding of this information becomes material if counsel is denied the opportunity to make an informed decision about challenging a juror, either for cause or peremptorily. A juror’s concealment of a material fact that is relevant to the pending controversy, as here, is legally prejudicial because it impairs a party’s right to exercise an appropriate juror challenge. See Taylor v. Magana, 911 So.2d 1263, 1267 (Fla. 4th DCA 2005) (“ ‘A juror who falsely misrepresents his interest or situation, or conceals a material fact relevant to the controversy, is guilty of misconduct, and such misconduct is prejudicial to the party, for it impairs his right to challenge.’ ’’) (quoting De La Rosa, 659 So.2d at 241). The City has satisfied the first prong of the De La Rosa test.

The next consideration is whether the jurors concealed the desired information during questioning. See, e.g., Taylor, 911 So.2d at 1271 (holding that a juror’s failure to disclose that he and his mother were defendants in a pending personal injury action constituted concealment, and such concealment did not have to be purposeful to constitute misconduct sufficient to entitle the moving party to a new trial). Here, the trial judge’s order granting the City a new trial provides the necessary facts to answer this question. The trial judge realized that he had propounded this precise inquiry at the initial mass qualification proceeding and received no affirmative response to the question whether any prospective juror had been previously convicted of a felony. Furthermore, the suspect jurors’ questionnaires showed that one juror had checked the “yes” box indicating that he or a member of his family or a close friend had been accused of a crime, but the other juror had checked the “no” box in response to this same question. Thus, the trial judge concluded that at least one juror clearly failed to disclose this critical information. This evidence demonstrates that the information about prior criminal accusations and convictions was directly requested but not provided. See Birch ex rel. Birch v. Albert, 761 So.2d 355, 358 (Fla. 3d DCA 2000) (holding that information is considered concealed for purposes of the three-part test when the information is squarely asked for and not provided; but it is not concealment when the juror’s answer is ambiguous and counsel fails to follow up with further questioning). Even if it is assumed that Juror No. 1183 and Juror No. 250 were present to hear the prior felony question during the mass qualification proceeding, their silence in the face of direct questioning by the trial judge created no ambiguity requiring clarification. Therefore, the City has satisfied the second prong.

■ To satisfy the third and final prong, the complaining party must demonstrate that the failure to disclose the disqualifying information was not attributable to its lack of due diligence. De La Rosa, 659 So.2d at 241. The record compels me to conclude that the City failed to establish its due diligence. Despite Juror No. 1183’s affirmative disclosure on the written questionnaire regarding the accusation of a crime, the City did not direct a single question on that disclosure to Juror No. 1183. Nothing on this record suggests that the City would have followed a different procedure as to Juror No. 250. Plainly, the City was alerted to a problem with at least one of the jurors but failed to follow through or to demonstrate a concern.

Because I conclude that the City did not satisfy the three-prong test enunciated in De La Rosa, 659 So.2d at 241, a test that is appropriate in both criminal and civil cases, I concur in result only.

      . Because the court reporter did not arrive until after the trial had already begun, the transcript of the voir dire examination is incomplete. Nevertheless, neither of the parties claims to have asked any of the prospective jurors questions about prior felony convictions during voir dire examination.

      . Although the point is not material to our disposition of this case, the trial court’s order is factually inaccurate to the extent that it suggests that the questionnaire asked jurors about prior “arrests.” In fact, the questionnaire asked about prior accusations of a crime. One may be accused of committing a crime without being arrested.

      . The hearing on the City's motion for new trial was conducted in two sessions on different days. On the first day of the hearing, the trial court announced its factual findings about the failure of the two jurors to disclose their prior felony convictions. Mr. Compa-nioni’s trial counsel, who does not represent Mr. Companioni in this appeal, made the following response to the trial court’s ruling: "So we got that established.” Thereafter, Mr. Companioni's trial counsel did not challenge the adequacy of the record to support the trial court’s findings of fact.

      . We consider the City’s arguments under the “tipsy coachman” doctrine. See Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002); Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999).

      . We refer to the Fourth District's opinion in Rodgers v. State, 338 So.2d 1121 (Fla. 4th DCA 1976), as “Rodgers I.”

      . Notably, the Fourth District’s conclusion that the juror's concealment of facts pertinent to her statutory disqualification warranted a new trial in the absence of a showing of actual prejudice is identical to the theory expressed in the trial court’s order that granted the City a new trial.

      . For purposes of this discussion, we are referring to jurors with disqualifying convictions who have not had their civil rights restored.

      . For a detailed consideration of the "inherent bias” issue, see Brian C. Kalt, The Exclusion of Felons from Jury Service, 53 Am. U.L.Rev. 65, 73-75, 105-08 (2003).

      . For an exception to this general proposition, see Lowrey v. State, 705 So.2d 1367 (Fla.1998). Under section 40.013(1), “[n]o person who is under prosecution for any crime ... shall be qualified to serve as a juror.” In Lowrey, the Supreme Court of Florida held that "where it is not revealed to a defendant that a juror is under prosecution by the same office that is prosecuting the defendant’s case, inherent prejudice to the defendant is presumed and the defendant is entitled to a new trial.” Id. at 1368. ”[T]he purpose of disqualifying a person who has a pending prosecution is to avoid the possibility that that person might vote to convict in the hope of getting more favorable treatment from the prosecution in his own case.” Thompson v. State, 300 So.2d 301, 303 (Fla. 2d DCA 1974). Thus a person who is facing a pending criminal prosecution is disqualified from jury service — at least in a criminal case — not because of his or her status but on account of the potential for actual bias or prejudice inherent in the situation. In Low-rey, the supreme court stated that it was not overruling its prior decision in Rodgers II but was, instead, "simply carving out an exception based on the unique circumstances presented.” 705 So.2d at 1370.

      . We realize that counsel may be understandably reluctant to press prospective jurors with questions about prior felony convictions during voir dire. Some members of the veni-re may find such questions to be insulting or demeaning. However, the extent to which such inquiries should be pursued is only one of many strategic decisions that counsel routinely make during a jury trial.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Joseph J. FROHNHOEFER, Georgia Frohnhoefer and Mitchell A. Stein, Appellants, v. Duke PONTIN d/b/a Spirit Towing and Sea Tow Services Florida Keys, Appellees.
    No. 3D06-1921.
    District Court of Appeal of Florida, Third District.
    April 4, 2007.
    Rehearing Denied June 18, 2007.

      Thomas M. Bates, West Palm Beach, for appellants.
    Mitchell J. Cook, Summerland Key, for appellees.
    Before SHEPHERD, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

Joseph J. Frohnhoefer, Georgia Frohn-hoefer (collectively “Frohnhoefers”) and Mitchell A. Stein (“Stein”), appeal the trial court’s order denying their motion to dismiss the suit filed against each of them individually by Duke Pontin d/b/a Spirit Towing (“Pontin”) and Sea Tow Services Florida Keys (“Sea Tow”), for lack of personal jurisdiction. We have jurisdiction, Fla. R.App. P. 9.130(a)(3)(C)®. We reverse.

Pontin, the owner of Spirit Towing, entered into a licensing agreement with Sea Tow, a New York company, whereby Pon-tin’s company would be the exclusive Sea Tow operator within certain waters off of the Florida Keys. Pontin sued Sea Tow for breach of contract in 2001, alleging that Sea Tow failed to prevent another Sea Tow franchisee from encroaching on Pontin’s exclusive territory. In the third amended complaint, Pontin added individually as defendants Sea Tow’s CEO (Joseph Frohn-hoefer), the executive vice-president (Georgia Frohnhoefer), and general counsel (Mitchell Stein), claiming against each fraud and conspiracy to commit fraud, tor-tious interference with contractual relationship (as to the Frohnhoefers only), and breach of fiduciary duty. The Frohnhoe-fers and Stein moved to dismiss the counts against them in their individual capacities alleging that the court lacked personal jurisdiction under Florida’s long-arm statute, section 48.193, Florida Statutes (2005). The trial court denied the motion to dismiss. This timely appeal followed.

Florida courts use a two-step analysis to determine whether Florida has jurisdiction over a non-resident defendant under Florida’s long-arm statute, section 48.193, Florida Statutes (2005). “First, the court must determine whether the plaintiffs complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the long-arm statute. Second, it must determine whether there are sufficient minimum contacts between the defendant and Florida to satisfy the Fourteenth Amendment’s due process requirements.” OSI Indus., Inc. v. Carter, 834 So.2d 362 (Fla. 5th DCA 2003).

We find the third amended complaint alleges no basis for personal jurisdiction over the Frohnhoefers and Stein. The Frohnhoefers and Stein each submitted an affidavit with their motion to dismiss. Each is a resident of New York, has never owned personal or real property in Florida, and has never had a Florida driver’s license, owned or operated a business in Florida, solicited business on their own behalf in Florida, or performed services or sold goods in Florida. Pontin filed an affidavit in response stating that he negotiated the Sea Tow contract with the Frohn-hoefers and entered into a contract and other written agreements with Sea Tow that Stein drafted. Pontin also alleges that Stein has communicated with other Sea Tow operators in Florida and that Frohnhoefers had previously been involved in Florida lawsuits.

The so-called “corporate shield” doctrine protects a non-resident corporate representative from being sued in Florida for acts or omissions performed on behalf of the corporation. See Doe v. Thompson, 620 So.2d 1004 (Fla.1993). All of the acts alleged against the Frohnhoefers and Stein in the third amended complaint were acts committed by them in their corporate capacities on behalf of the Sea Tow company. None of the allegations rise to the level that would remove the corporate shield protection. In addition, Pontin has failed to meet the second prong minimum contacts requirement of the analysis. The third amended complaint fails to plead the existence of any contact between the Frohnhoefers or Stein and the State of Florida such as to satisfy federal due process requirements. Tramel v. D’Angel, 917 So.2d 982 (Fla. 3d DCA 2005)(insufficient facts to satisfy the statutory requirements of section 48.193, Florida Statutes, and insufficient allegation of minimum contacts where corporate officer made two business trips to Florida in his corporate capacity.)

Reversed and remanded.

      . No party disputes that there is jurisdiction over Sea Tow.

      . For example, in the third amended complaint for fraud and conspiracy to commit fraud, the allegations are that Sea Tow International, by and through its officers and directors and Stein, as general counsel made certain false representations.


author: PER CURIAM.

text:
    Alfredo MURCIANO, Appellant, v. Miguel I. GARCIA and Shelton & Associates Realtors, Inc., Appellee.
    No. 3D06-194.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Rehearing Denied June 19, 2007.
    Benitez & Associates and Leo Benitez and Lizette Benitez, for appellant.
    Stephen J. Finta, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Alfredo Murciano, the seller under a residential real estate purchase and sale agreement, appeals an adverse summary judgment in an action against him for recovery of a deposit made for the purchase of his residence. Having carefully reviewed the record, we conclude that the buyer, Miguel I. Garcia, failed to carry his burden of demonstrating conclusively the absence of any genuine existence of material fact. Accordingly we reverse.

The law regarding summary judgment is well-established:

[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.
If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.

Moore v. Morris, 475 So.2d 666, 668 (Fla.1985)(internal citations omitted).

For Garcia to prevail on a breach of contract action, he must prove (1) a valid contract; (2) a material breach; and (3) damages. Abbott Labs., Inc. v. Gen. Elec. Capital, 765 So.2d 737, 740 (Fla. 5th DCA 2000). Here, limiting ourselves to an examination of the record as it existed before the trial court, we find the evidence presented by Garcia insufficient to demonstrate the existence of a material breach by Murciano to the exclusion of all other inferences. On the morning the transaction was to close, Garcia declared the seller in default by letter alleging incurable zoning or building code violations. Three weeks later, apparently at the instigation of Garcia, the City of Coral Gables cited Murciano for zoning violations relating to “interior construction, alterations and repairs without approval and permit(s).” Murciano also was cited for “areas below flood grade built out without approval and permits.” Murciano in sworn proofs disputes the alleged violations, disputes that they are incurable, and urges that the City did not do an inspection before citing him.

On the facts presently of record, we cannot conclusively find that there is no genuine issue in the record. Summary judgment necessarily is precluded. The conflicting facts in this case should be submitted to a jury. Wallace v. Pensacola Rent-A-Wreck, Inc., 616 So.2d 1048, 1050 (Fla. 5th DCA1993).

Reversed and remanded with directions.


text:
    Norris COCHRAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-249.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Norris Cochran, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, C.J., and SUAREZ and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. RApp. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the post conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Freddie Lee WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1701.
    District Court of Appeal of Florida, First District.
    April 19, 2007.
    Rehearing Denied June 21, 2007.

      Freddie Lee Williams, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, DAVIS, and THOMAS, JJ., Concur.


text:
    Wellington FARMER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1933.
    District Court of Appeal of Florida, First District.
    May 2, 2007.
    Rehearing Denied June 22, 2007.
    Wellington Farmer, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, KAHN, and PADOVANO, JJ., concur.


author: SHEPHERD, J.

text:
    Peggy Ann PHILLIPS, et al., Appellants, v. Janice HIRSHON, etc., et al., Appellees.
    Nos. 3D05-620, 3D05-619.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.

      Ruden, McClosky, Smith, Schuster and Russell and John H. Pelzer and Brigid F. Cech, Fort Lauderdale; King and Lancaster and Kenneth G. Lancaster, Miami, for appellant.
    Jay M. Levy, Miami; Golden, Cowan & Toister, for appellee.
    Before SHEPHERD, J., and SCHWARTZ and LEVY, Senior Judges.
   SHEPHERD, J.

David J. Levine, a minor, through his natural guardian and mother, Peggy Ann Phillips, together with his brother, Joseph A. Levine, appeal identical orders dismissing their petitions to impress a co-operative residential apartment located in Miami-Dade County with the character of protected homestead for purposes of the devise and descent provision of Florida’s homestead law, Article X, section 4(c) of the Florida Constitution (2003). That provision prohibits the devise of homestead property where the owner is survived by a spouse or minor child. The Levine brothers urge that because their father occupied the co-operative apartment under a long-term proprietary lease received in conjunction with his purchase of his interest in the co-op, the property is protected homestead property under Florida law. Applying the principle of stare decisis, we affirm the decision of the trial court on authority of In re Estate of Wartels v. Wartels, 357 So.2d 708 (Fla.1978), which expressly holds “that a cooperative apartment may not be considered homestead property for the purpose of subjecting it to Florida Statutes regulating the descent of homestead property.” Id. at 711 (construing Article X, section 4(a)(1), Fla. Const.). At the same time, we certify to the Florida Supreme Court as a question of great public importance under Article V, section 3(b)(4) of the Florida Constitution, whether its decision in Wartels has continuing vitality in light of subsequent legislative action. We also find certifiable, direct conflict between our decision today and the decision of the Fourth District Court of Appeal in S. Walls, Inc. v. Stilwell Corp., 810 So.2d 566 (Fla. 5th DCA 2002), which construed the same section of Article X, section 4 of the Florida Constitution upon which the Wartels court relied to deny the benefit of homestead to an heir in the devise and descent context of Article X, section 4(c) to nevertheless afford the benefit of homestead protection from a forced sale under Article X, sections 4(a) and 4(b) of the same constitutional provision.

FACTUAL AND PROCEDURAL BACKGROUND

Robert M. Levine died testate on April 1, 2003, survived by two children, Joseph Levine and David Levine. When Robert died, David was a minor. Robert resided in a penthouse suite in the Island House, a high rise cooperative apartment building in Key Biscayne, Florida. His will, admitted to probate, devised the co-op property as follows: “I give to my lifetime friend, KAREN J. ORLIN, a life estate in my coop located at 200 Ocean Drive, Apartment PA3, Key Biscayne, Florida.”

After their father’s death, Joseph and David filed separate petitions to determine homestead. The thrust of their argument to the trial court was that the co-op was homestead property in the hands of their father at the time of his death and therefore not subject to devise by him under Article X, section 4(c) of the Florida Constitution, which declares that “homestead shall not be subject to devise if the owner is survived by a spouse or minor child.” The brothers contend that because David was a minor, the bequest under the will fails and the property passes outside of the estate, and therefore, the brothers now share the father’s interest in the co-op on an equal basis as a matter of law. Cutler v. Cutler, 32 Fla. L. Weekly D583, D585, — So.2d -, -, 2007 WL 601866 (Fla. 3d DCA Feb. 28, 2007)(including cases colleeted)(“[I]t is the settled law of this state that upon the death of a decedent, ‘protected homestead’ passes outside the estate.”)(internal citation omitted); §§ 732.101(1), 732.103(1), 732.104, Fla. Stat. (2003)(“Any part of the estate of a decedent not effectively disposed of by will passes ... if there is no surviving spouse ... to the lineal descendants of the decedent ... per stirpes.”). Ms. Orlin’s motion to dismiss each petition on the ground that the co-op was not homestead property within the meaning of Article X, section 4 of the Florida Constitution was granted with prejudice. From these orders, the brothers appeal.

ANALYSIS

As the Florida Supreme Court noted in Snyder v. Davis, 699 So.2d 999, 1001-02 (Fla.1997), homestead under Florida law is given meaning in three different contexts: taxation, exemption from forced sale, and devise and descent. See also Cutler, 32 Fla. L. Weekly at D584, — So.2d at -(“[TJhere are three kinds of homestead with one purpose: preserving the family home for its owner and heirs.”). The legal parentage for the first benefit accruing to the owner of homestead property — an exemption from taxation — is Article VII, section 6 of the Florida Constitution. The legal parentage of the latter two — forced sale and devise and descent — is Article X, section 4. This section reads, in its entirety:

§ 4. Homestead; exemptions.—
(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.
(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

Art. X § 4, Fla. Const. (2003). A cursory reading of Article X, section 4 reveals that while the constitutional benefits of the forced sale exemption and devise and descent restriction are voiced in different subsections of Article X, section 4 — compare Article X, § 4(a); (b)(forced sale) with Article X, § 4(c)(devise and descent) — these protections have in common Article X, section 4(a)(1), which defines the physical extent of the benefit if allowable.

It was in reliance upon this common subsection that the Florida Supreme Court thirty years ago in Wartels concluded “that a cooperative apartment may not be considered homestead property for the purpose of subjecting it to Florida Statutes regulating the descent of homestead property.” Wartels, 357 So.2d at 711. The Wartels Court stated:

The words contained in Article X, Section 4(a)(1) “to the extent of one hundred sixty acres of contiguous land” and the words “if located within a municipality, to the extent of one-half acre of contiguous land” have been repeatedly defined to mean that homestead property must consist of an interest in realty.

Id. at 710 (emphasis added)(internal citations omitted).

The brothers concede that unless Wartels is distinguishable, their appeal lacks merit. They argue that following the date of the operative factual scenario under which Wartels was decided, the Florida legislature adopted a new Cooperative Act, Chapter 719, Florida Statutes (1977) et seq., 76-222, Laws of Florida (effective January 1, 1977), which places co-ops on equal footing with all other “interest[s] in realty”, as defined by Wartels, which have long been eligible to be impressed with the character of homestead for purposes of devise and descent if, of course, they otherwise meet the requirements necessary to be afforded such a benefit. Cutler, 32 Fla. L. Weekly at D584, — So.2d at - (setting forth requirements). The brothers have standing to make this argument because, unlike the decedent in Wartels, the decedent in this case died subsequent to the effective date of Chapter 719. See In re Estate of Geringer, 300 So.2d 710, 711 (Fla. 3d DCA 1974)(stating that probate is governed by law in effect at time of decedent’s death).

Although at common law the term “real property” was deemed “co-extensive with lands, tenements, and hereditaments,” Ammerman, 222 So.2d at 425, the meaning and application of the term can be varied by legislative action. Id. As the Florida Supreme Court stated in Ammer-man:

[T]the term may be defined in different statutes or for different purposes. See 73 C.J.S. Property s. 2, p. 152. For example, Fla. Stat., s. 421.03(12), F.S.A. defines ‘real property' for the purposes of the housing authorities law; Fla. Stat., s. 475.01(11), F.S.A. defines ‘real property’ for the purposes of the real estate license law; Fla. Stat., s. 713.01(14), F.S.A. defines ‘real property for the purposes of the mechanics lien law. These definitions vary, because the statutory definitions usually apply only to the term as used in the particular statutory provision.

Id. (emphasis added). We have recognized this legal principle. Miami Country Day Sch. v. Bakst, 641 So.2d 467, 469 (Fla. 3d DCA 1994)(holding that a houseboat in a fixed location connected to a dock was a “dwelling house” within the meaning of section 222.05 of the Florida Statutes (1993), defining when certain homesteads located on leased properties are entitled to protection from forced sale under Article X, section 4(a)).

Applying this principle, the brothers argue that by adopting Chapter 76-222 of the Laws of Florida, the legislature intended to separate out from Chapter 711 of the Florida Statutes, which then governed both condominiums and co-operative apartments, see Ch. 711, Fla. Stat. (1975)(“Condominiums and Cooperative Apartments”), those provisions pertaining to condominiums from those pertaining to cooperative apartments, and imbue both with the same dignity as “interests in realty.” Cf. Op. Att’y Gen. 071-19 (February 9, 1971)(opining that absent “express legislative definition,” a co-op “would not [fall] within the provision of Art. X § 4, State Const., restricting devise of a homestead under stated conditions”). To that end, the brothers point out that the purpose of the new Cooperative Act, Ch. 719, Fla. Stat. (1977), was “to give statutory recognition to the cooperative form of ownership of real property,” see § 719.102, Fla. Stat. (1977), a provision paralleling section 718.102 of the new Condominium Act, Ch. 718, Fla. Stat. (1977), which reconfirmed that the purpose of the Condominium Act was to “give statutory recognition to the condominium form of ownership of real property.” § 718.102, Fla. Stat. (1977). Cf. § 711.02, Fla. Stat. (1975)(“The purpose of this law is to give statutory recognition to the condominium form of ownership of real property.”). They further point out that section 719.103(a) of the Cooperative Act has, since the date of the adoption of the Act, defined a “cooperative” as “that form of ownership of improved real property in which there are units subject to ownership by one or more owners, and the ownership is evidenced by an ownership interest in the association and a lease or other muniment of title or possession granted by the association as the owner of the cooperative property.” 76-222 Laws of Florida, § 2. It is well recognized that a condominium is homestead property that is subject to protection under Article X, section 4 of the Florida Constitution. See, e.g., Braswell v. Braswell, 890 So.2d 379 (Fla. 3d DCA 2004).

Although the brothers’ argument is intriguing, we consider that our proper institutional role obligates us to adhere to Wartels. See Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973)(cautioning the District Courts of Appeal to always be mindful of their institutional place). In so doing, we note that the language of the Florida Supreme Court in Wartels is of relatively recent vintage and sweeping in its tone. If we were to exhibit disagreement with Wartels — a sentiment that should not be taken from this opinion — we potentially would throw the law of this state into havoc. Id. (“To allow a District Court of Appeal to overrule controlling precedent ... would be to create chaos and uncertainty in the judicial forum, particularly at the trial level.”). The better course is to affirm and certify.

Finally, we certify direct conflict under Article V, section 4(b)(4) of the Florida Constitution between our decision today and the Fifth District Court of Appeal’s post-Wariefe decision, S. Walls, Inc. v. Stilwell Corp., 810 So.2d 566 (Fla. 5th DCA 2002). In S. Walls, that court asked “whether a co-op constitutes a homestead under Florida law so as to render it exempt from forced sale under Article X, section 4(a)(1) [of the Florida Constitution]” id. at 568 (emphasis added), the same subsection under which Wartels found that a co-op is not exempt for the purpose of the devise and descent subsection of Article X, section 4. Wartels, 357 So.2d at 711; Article X, § 4(a)(flrst paragraph); Article X, § 4(b). The Fifth District in S. Walls found that the same provision that failed to provide a devise and descent benefit transmuted itself when applied to a forced sale. Drawing upon the law of homestead as it applies to taxation, the Fifth District pronounced that “homestead will be given different meanings depending upon the context in which it is used.” S. Walls, 810 So.2d at 568-69. The court continued:

It is inconceivable that the owner of a co-operative apartment can receive the relatively nominal benefit of the exemption for tax purposes while fac[ ]ing the seizure of the property by creditors. The public policy underlying the homestead exemption from forced sale is clearly more compelling than the public policy underlying the tax exemption. The homestead exemption should ensure more protection from forced sale than it receives from the tax exemption, not less as the Trustee contends.

Id. at 571 (citing In re: Dean, 177 B.R. 727, 729-30 (Bankr.S.D.Fla.1995)). Although we agree that homestead can be given different meanings in different contexts, see S. Walls, 810 So.2d at 568-69, we respectfully submit that the courts may not diverge when interpreting the same subsection of the Florida Constitution, even if it seems to make good policy. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 618, 117 S.Ct. 1590, 137 L.Ed.2d 852 (1997)(Thom-as, J., dissentingXruing the ultimate mischief caused, in his view, by the misuse of the Commerce Clause by courts “to make policy-laden judgments that we are ill equipped and arguably unauthorized to make”). That is the circumstance here.

As the Florida Supreme Court noted but ten years ago in granting certiorari in Snyder, 699 So.2d at 1001, “[t]he circumstances under which a homestead may be devised while still retaining its protections against creditors present a significant issue for both the legal profession and the public in general. All Floridians need to fully understand.... ” Similarly here, we believe it important for all Floridians to fully understand the extent to which cooperative apartments — a relatively recent but not unusual method of holding property in this state — are subject, if at all, to the burdens and benefits of Florida’s homestead law. For this reason, we certify the following questions to the Florida Supreme Court as questions of great public importance:

DOES THE FLORIDA SUPREME COURT’S DECISION IN IN RE ESTATE OF WARTELS V. WARTELS, 357 So.2d 708 (Fla.1978), HAVE CONTINUING VITALITY IN LIGHT OF THE ADOPTION BY THE FLORIDA LEGISLATURE OF THE COOPERATIVE ACT, CHAPTER 76-222, LAWS OF FLORIDA?
IF THE ANSWER IS YES, IS IT LEGALLY PERMISSIBLE TO INTERPRET ARTICLE X, SECTION 4(a)(1) OF THE FLORIDA CONSTITUTION DIFFERENTLY FOR FORCED SALE PURPOSES THAN DEVISE AND DESCENT PURPOSES UNDER ARTICLE X, SECTION 4 OF THE CONSTITUTION?

Decision below affirmed; questions certified; direct conflict certified.

      . We do not address whether the conveyance made by the decedent to his friend, Karen J. Orlin, was legally effective.

      . We have jurisdiction. See Cutler, 32 Fla. L. Weekly at D586, n. 2, - So.2d at -, n. 2.

      . It is well appreciated in the case law concerning homestead that the definition of homestead property for Article VII, section 6 purposes is not the same as Article X, section 4 of the Florida Constitution. See, e.g., Wartels, 357 So.2d at 710-11 (approving sentiment expressed in In re: Estate of Wartels v. Wartels, 338 So.2d 48 (Fla. 3d DCA 1976), that denial of the protection of homestead in devise and descent section of Article X, section 4(c) of the Florida Constitution "does not conflict with the decision in Ammerman v. Markham, 222 So.2d 423 (Fla.1969), which provides that the homestead exemption is applicable to cooperative apartments solely for the purpose of taxation”); S. Walls, 810 So.2d at 570 (“homestead provisions relating to taxation do not necessarily control the determination of homestead as it relates to the exemption from forced sale”).


author: GROSS, J.

text:
    Raymond ESSEX, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1467.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Rehearing Denied June 28, 2007.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We write to address one issue — whether the trial court erred in allowing the state to offer the former testimony of a witness from an earlier trial. Finding no error in the trial court’s ruling that the state had met its burden of establishing the witness’s unavailability, we affirm.

We reversed Raymond Essex’s convictions for false imprisonment, robbery, and aggravated battery on a pregnant female, and remanded for a new trial. See Essex v. State, 917 So.2d 953 (Fla. 4th DCA 2005).

At the first trial, Essex’s fifteen-year-old niece, B.D., testified as an eyewitness. At the second trial, B.D.’s testimony from the first trial was read into evidence. On appeal, Essex attacks the admissibility of the former testimony, arguing that under section 90.804(1), Florida Statutes (2006), and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the state did not make a sufficient showing that B.D. was unavailable.

In Crawford, the United States Supreme Court held that “[wjhere testimonial [hearsay] evidence is at issue, ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” 541 U.S. at 68, 124 S.Ct. 1354. Under the Florida Evidence Code, former testimony is admissible “provided that the declarant is unavailable as a witness.” § 90.804(2)(a), Fla. Stat. (2006). Section 90.804(1) defines the concept of “[u]navailability of a witness.” A finding that a witness is unavailable within the meaning of section 90.804(1) satisfies the unavailability requirement of Crawford. See Corona v. State, 929 So.2d 588, 595 (Fla. 5th DCA 2006) (applying section 90.804(l)(e) to decide whether a witness was “unavailable” for the purposes of the Confrontation Clause).

Whether the state made a sufficient showing of B.D.’s unavailability to admit her former testimony is a preliminary question “concerning ... the admissibility of evidence” under section 90.105(1), Florida Statutes (2006). “The trial court’s determination that a witness is ‘unavailable’ for confrontation purposes involves a mixed question of law and fact which this court reviews de novo, giving deference to the basic, primary or historical facts as found by the trial court.” Corona, 929 So.2d at 594 (citations omitted).

Under section 90.804(1), one of the ways that a witness is unavailable is if she “is absent from the hearing, and the proponent of [her] statement has been unable to procure [her] attendance or testimony by process or other reasonable means.” As the party seeking to introduce the former testimony, the state had the burden of showing that it exercised due diligence in making a good faith effort to secure the appearance of B.D. See McClain v. State, 411 So.2d 316 (Fla. 3d DCA 1982).

Here we find no error in the trial court’s determination that the state satisfied its burden of demonstrating B.D.’s unavailability. See Foster v. State, 614 So.2d 455, 459 (Fla.1992). Investigators from the state attorney’s office unsuccessfully tried to locate B.D. The state attorney’s office also contacted the Arcadia Police Department, which was unable to find B.D. at either her old or new address. The prosecutor informed the trial court that the state called all prior phone numbers associated with B.D., without locating her. As the prosecutor explained at trial, B.D. is “a 20-year-old woman now who probably doesn’t own property or cars. Every effort has been used to locate” her.

Affirmed.

WARNER and TAYLOR, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Robert S. FINE and Isabel Fine, Petitioners, v. CITY OF CORAL GABLES, Respondent.
    No. 3D06-3149.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Rehearing Denied June 19, 2007.
    Robert S. Fine, Edward G. Guedes, and Paul C. Savage, Miami, for petitioners.
    Robert S. Glazier, Miami; Elizabeth M. Hernandez, City Attorney, for respondent.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The petitioners, Robert S. Fine and Isabel Fine (“the Fines”), petition for second-tier certiorari review of an order entered by the circuit court, sitting in its appellate capacity, which affirmed the decision of the Coral Gables City Commission (“the Commission”), denying the Fines’ request for a variance. We deny the petition.

The Fines applied for a variance with the City of Coral Gables (“City”), seeking to have a metal roof placed on their single-family home. Following a hearing before the City’s Board of Adjustment (“Board”), the Board adopted a resolution denying the variance. Thereafter, the Fines appealed to the Commission, and the Commission entered a resolution denying the Fines’ appeal and affirming the Board’s decision. The evidence presented before the Board and Commission demonstrates that the City has not granted variances for metal roofs to other homeowners in the Fines’ immediate neighborhood.

The Fines filed a timely first-tier petition for writ of certiorari in the appellate division of the circuit court, seeking review of the Commission’s resolution. Without issuing an order to show cause to the City or granting oral argument, the circuit court denied the Fines’ petition. Thereafter, the circuit court entered an order denying the Fines’ motion for rehearing, stating that the petition for writ of certio-rari was denied pursuant to Florida Rule of Appellate Procedure 9.100(h).

The scope of our review on second-tier certiorari is whether the circuit court afforded procedural due process and whether it applied the correct law. Dusseau v. Metropolitan Dade County Bd. of County Comm’rs, 794 So.2d 1270, 1273 (Fla.2001). In this petition, the Fines raise several arguments, which we address individually in this opinion.

The Fines assert that the circuit court failed to apply the correct law by not issuing an order to show cause to the City or granting oral argument. We disagree. The reviewing court, which in this case was the circuit court acting in its appellate capacity, reviews the petition to determine whether it demonstrates a preliminary basis for relief. If the petition demonstrates a preliminary basis for relief, the reviewing court will either issue a rule to show cause or order a response to the petition.

Rule 9.100(h) of the Florida Rules of Appellate Procedure provides that:

If the petition demonstrates a preliminary basis for relief, a departure from the essential requirements of law that will cause material injury for which there is no adequate remedy by appeal, or that review of final administrative action would not provide an adequate remedy, the court may issue an order directing the respondent to show cause, within the time set by the court, why relief should not be granted. In prohibition proceedings such orders shall stay further proceedings in the lower tribunal.

(Emphasis added). See also Fla. R. Civ. P. 1.630(d)(providing that “[i]f the complaint shows a prima facie case for relief, the court shall issue: (1) a summons in certiorari”).

Neither rule 9.100(h) nor rule 1.630 requires the reviewing court to issue a show cause order or to order a response to the petition if the petition does not demonstrate a preliminary basis for relief. See Wingate v. State, Dep’t of Highway Safety & Motor Vehicles, 442 So.2d 1023 (Fla. 5th DCA 1983)(denying second-tier petition for writ of certiorari even though circuit court sitting in its appellate capacity declined to issue an order to show cause based on its determination that the petitioner failed to state a preliminary basis for relief).

In the instant case, the circuit court denied the Fines’ petition for writ of certiorari without issuing an order to show cause requiring a response by the City. This clearly was not error, as our review of the petition filed by the Fines reflects that no response was necessary as the Fines failed to establish an “unnecessary hardship,” an essential element when seeking a variance. See Miami-Dade County v. Brennan, 802 So.2d 1154, 1155 (Fla. 3d DCA 2001). “ ‘Unnecessary hardship’ has generally been defined as a non-self created characteristic of the property in question which renders it virtually impossible to use the land for the purpose or in the manner for which it is zoned.” Id. at 1155 n. 2 (Fletcher, J., concurring); see also Maturo v. City of Coral Gables, 619 So.2d 455, 456 (Fla. 3d DCA 1993)(stating that “a legal hardship will be found to exist only in those cases where the property is virtually unusable or incapable of yielding a reasonable return when used pursuant to the applicable zoning regulations”); Herrera v. City of Miami, 600 So.2d 561, 562 (Fla. 3d DCA 1992)(holding that a variance may be issued only when no reasonable use can be made of the property without the variance). As the petition did not establish the requisite hardship, the circuit court did not fail to apply the correct law by not requiring the respondent to respond before denying the petition.

The Fines also object to being denied the ability to orally argue their petition. The reviewing court, even when it finds that a preliminary showing has been made in the petition, is not required to grant the petitioner’s request for an oral argument. See Fla. R. App. P. 9.320 (“Oral argument may be permitted in any proceeding .... ”)(emphasis added).

The Fines also argued below that the denial of their variance violated their constitutional guarantee of equal protection as the City of Coral Gables had granted variances to other similarly situated homeowners. However, as the evidence presented before the Board and Commission demonstrates that the City has not granted variances for metal roofs to other homeowners in the Fines’ immediate neighborhood, we disagree.

We find equally unpersuasive the Fines’ contention that the circuit court applied the incorrect law in finding that the Commission did not violate the Fines’ due process rights by not permitting Mr. Thomas Mooney to testify as an expert at the hearing before the Commission. As previously addressed in this opinion, to obtain a variance, the Fines were required to demonstrate an unnecessary and undue hardship. Mr. Mooney was permitted to testify, but because he was not previously listed as a witness, he was not permitted to render expert opinions. Mr. Mooney’s testimony was as to the availability of roofing materials, the durability of metal roofs, and the compatibility of metal roofs with the Fines’ neighborhood. Mr. Mooney did not offer any evidence establishing that the roofing provisions of the Coral Gables Zoning Code worked an unnecessary and undue hardship on the Fines. The circuit court, therefore, applied the correct law in finding that the Commission did not violate the Fines’ due process rights in not allowing Mr. Mooney to testify as an expert.

Accordingly, we deny the petition.


text:
    Ulysses JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4998.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Rehearing Denied June 13, 2007.

      Ulysses Jackson, Jr., Polk City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Appellant’s challenges to his 1972 conviction are untimely and successive. He also contends that the trial court lacked subject matter jurisdiction to try him a second time without first determining the manifest necessity of declaring a mistrial in the first prosecution. This is not an issue of subject matter jurisdiction but of double jeopardy, which was not violated because the new trial was the result of a hung jury in the first trial. See, e.g., McCulloch v. State, 859 So.2d 531 (Fla. 4th DCA 2003).

WARNER, FARMER and HAZOURI, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Horacio A. RODRIGUEZ, Appellant, v. Maria Elena RODRIGUEZ, Appellee.
    Nos. 3D05-2682, 3D05-2376.
    District Court of Appeal of Florida, Third District.
    May 2, 2007.
    Rehearing Denied June 18, 2007.
    Steven N. Abramowitz, for appellant.
    James J. McNally, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

We find no evidence to support the trial judge’s determination fixing the husband’s income at $80,000 per year, either under imputation of income principles, see Brown v. Cannady-Brown, 954 So.2d 1206 (Fla. 4th DCA 2007); Roca v. Roca, 937 So.2d 736 (Fla. 4th DCA 2006); Swain v. Swain, 932 So.2d 1214 (Fla. 1st DCA 2006); Garone v. Goller, 878 So.2d 430 (Fla. 3d DCA 2004); see also Woolf v. Woolf, 901 So.2d 905 (Fla. 4th DCA 2005), or as a conclusion that the husband was actually receiving that amount. See Narcis v. Narcis, 707 So.2d 936 (Fla. 3d DCA 1998); see also Squindo v. Osuna-Squindo, 943 So.2d 232, 235 (Fla. 3d DCA 2006)(“[T]he ability to request financial assistance from [the husband’s] ... family is an irrelevant justification for this alimony award.”). The financial provisions of the final judgment of dissolution under review, including permanent periodic alimony, and the amount of child support, both of which are directly dependent upon a proper determination of the husband’s income, and the award of lump sum alimony, which is indirectly so and is, in any case, intertwined with those determinations, are therefore vacated and the cause is remanded for reconsideration of the husband’s income and of the awards which flow from that ruling. See Roca, 937 So.2d at 739 (“decision regarding the imputed income requires reconsideration of the alimony [and] child support ... awards”); Hall v. Hall, 721 So.2d 446, 447 (Fla. 1st DCA 1998)(remand for award of permanent periodic alimony renders it necessary for trial court to reexamine other financial aspects of final judgment including lump sum alimony and the equitable distribution scheme).

The portions of the judgment dissolving the marriage and granting primary residence of the parties child to the mother and visitation to the father are affirmed.

Affirmed in part, vacated in part and remanded.

      . We do find that the husband is not entitled to a section 61.30(1 l)(b) credit because his counsel stipulated below that the agreed visitation amounted to less than the 146 overnights (40 percent) provided by the statute. Cf. Largaespada v. Largaespada, 920 So.2d 645 (Fla. 3d DCA 2005).

      . The trial judge awarded the husband’s interest in the marital home, the parties' only valuable asset, to the wife as lump sum alimony. The propriety of this award may be heavily impacted by the rulings after remand. (The husband’s attorney himself suggested such an award below, on the supposition that there would be at most nominal periodic alimony.) Compare Rosario v. Rosario, 945 So.2d 629 (Fla. 4th DCA 2006)(reversing award of marital home), Perez v. Perez, 882 So.2d 537 (Fla. 3d DCA 2004)(same), Jessee v. Jessee, 839 So.2d 842 (Fla. 3d DCA 2003)(same), and Safferstone v. Safferstone, 501 So.2d 165 (Fla. 3d DCA 1987)(same), with Bressler v. Bressler, 914 So.2d 1042 (Fla. 4th DCA 2005)(upholding award of marital home), Russell v. Russell, 890 So.2d 1148 (Fla. 4th DCA 2004)(same), Manrique v. Manrique, 786 So.2d 1270 (Fla. 4th DCA 2001)(same), and Soll v. Soll, 560 So.2d 250 (Fla. 3d DCA 1990)(same).

      . The court may take additional evidence, and may make additional or different awards, including equitable distribution, if appropriate.