author: CANADY, Judge.

text:
    Peter MORTON, as trustee of the Peter Morton Revocable Trust, Appellant, v. Jeffrey D. POLIVCHAK, Appellee.
    No. 2D05-215.
    District Court of Appeal of Florida, Second District.
    April 21, 2006.

      Alan M. Oravec of Judd, Shea, Ulrich, Oravec, Wood & Dean, P.A., Sarasota, for Appellant.
    Anthony J. Abate, Steven J. Chase, and Kimberly J. Madison of Abel, Band, Russell, Collier, Pitchford & G.ordon, Chartered, Sarasota, for Appellee.
   CANADY, Judge.

In this case concerning a dispute arising from the sale of residential property, Peter Morton, as trustee of the Peter Morton Revocable Trust, appeals a final order granting Jeffrey D. Polivchak’s motion to compel arbitration and dismissing Morton’s action against Polivchak. Because we conclude that the trial court erred in deferring to the determination of the arbitration panel concerning an issue of arbi-trability, we reverse the order on appeal and remand for further proceedings.

I. Background

In 2002, Polivchak, the seller, and Morton, the buyer, entered into a contract for the sale of the property. Polivchak provided a seller’s property disclosure statement, in which he represented that he did not know of any past or present drainage or flood problems affecting the property or adjacent properties or anything else that should be disclosed to a prospective purchaser because it might materially affect the value or desirability of the property. After the transaction was closed, Morton discovered that the property had water and drainage problems. He filed a demand for arbitration pursuant to an arbitration provision in the contract. In the arbitration proceeding, Morton raised a fraud claim in addition to contract claims. Polivchak raised counterclaims in the arbitration proceeding. Both parties included punitive damages in their arbitration demands, but the arbitration panel, citing Complete Interiors, Inc. v. Behan, 558 So.2d 48 (Fla. 5th DCA 1990), ruled that it had no power to award punitive damages.

Seeking a judicial ruling on the issue of whether punitive damages are arbitrable, Morton filed a complaint in circuit court, alleging fraud and seeking damages. In response, Polivchak filed a motion to compel arbitration. After an initial hearing and upon leave of the circuit court, Morton amended his complaint to include a claim for punitive damages and a request for declaratory judgment on the issue of the arbitrability of punitive damages. Polivc-hak filed a second motion to compel arbitration, claiming that the circuit court did not have any authority to review the arbitration panel’s ruling and requesting that the circuit court return the action to arbitration. After two hearings, the trial court granted Polivchak’s second motion to compel arbitration and dismissed Morton’s action in circuit court. The apparent basis for the ruling on the motion was the trial court’s conclusion that it lacked authority to intervene in an ongoing arbitration proceeding.

The arbitration provision of the contract at issue in this case provides for the arbitration of “[a]ll controversies, claims[,] and other matters in question arising out of or related to this transaction or this contract or its breach.” It does not expressly address the question of who decides issues of arbitrability.

II. Argument on Appeal

On appeal, Morton claims that because the circuit court — rather than the arbitration panel — had the authority under the arbitration agreement to determine whether the punitive damages claim is arbitra-ble, the circuit court erred in dismissing his complaint. Polivchak asserts that the arbitration agreement permits the arbitration panel to determine issues of arbitra-bility because the agreement adopts the rules of the American Arbitration Association (AAA) and those rules contain a provision concerning objections to the arbitra-bility of claims. Polivchak contends that judicial review of “the legal or factual findings of the arbitration panel with respect to punitive damages” is not permissible. He claims that granting relief to Morton would be inappropriate because a court can intervene in an ongoing arbitration proceeding only to determine whether arbitration may be compelled. Polivchak further contends that the trial court’s order denying relief to Morton should be affirmed because the law does not permit arbitrators to award punitive damages unless the parties have expressly authorized such an award.

III. Analysis

“[D]ecisions regarding arbitrability are to be made by the trial court, unless the parties have entered an agreement stating otherwise.” Romano v. Goodlette Office Park, Ltd., 700 So.2d 62, 64 (Fla. 2d DCA 1997) (relying on Thomas W. Ward & Assocs. v. Spinks, 574 So.2d 169 (Fla. 4th DCA 1991)); see also Royal Prof'l Builders, Inc. v. Roggin, 853 So.2d 520, 523 (Fla. 4th DCA 2003); Premier Med. Mgmt., Ltd. v. Salas, 830 So.2d 959, 961 n. 2 (Fla. 1st DCA 2002). “Contractual silence or ambiguity regarding who determines the questions of arbitrability is insufficient to give that authority to the arbitrators.” Romano, 700 So.2d at 64. “If ... the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question that the parties did not submit to arbitration, namely, independently.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). “Courts should not assume that the parties agreed to arbitrate arbi-trability unless there is ‘clea[r] and unmis-takabl[e]’ evidence that they did so.” Id. at 944, 115 S.Ct. 1920 (quoting AT & T Techs., Inc. v. Commc’ns Workers, 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)).

Here, the arbitration provision of the contract contained no express agreement that an issue of arbitrability would be decided by the arbitration panel. Therefore, only the circuit court had the authority to decide whether the issue of punitive damages is arbitrable. In deciding that the punitive damages claim was beyond their power to arbitrate, the arbitration panel impermissibly decided an issue of arbitrability — an issue that was within the province of the circuit court.

There is no merit in Polivchak’s contention that the reference in the arbitration agreement to the rules of the AAA authorized the arbitrators to decide issues of arbitrability. The provision in the AAA rules on which Polivchak relies provides simply that “[o]bjections to the arbitrability of a claim must be raised no later than thirty (30) days after notice to the parties of the commencement of the arbitration.” This provision only addresses the procedure of raising an objection to arbitrability in an arbitration proceeding when the arbitration panel has the authority to decide issues of arbitrability. The provision does not itself grant the arbitration panel that authority. Cf. Rintin Corp., S.A. v. Domar, Ltd., 766 So.2d 407, 409 (Fla. 3d DCA 2000) (holding that arbitration agreement providing for submission of disputes to arbitration pursuant to the Florida International Arbitration Act, §§ 684.01-684.35, Fla. Stat. (1999), authorized “submission of the issue of arbitrability of a dispute to the arbitral panel” since section 684.22(1) specifically provides that the arbitral tribunal shall decide issues of arbitrability).

Polivchak’s argument that the trial court could not intervene in the ongoing arbitration proceeding is also without merit. Courts are not divested of authority to determine questions of arbitrability simply because an arbitration proceeding is ongoing. Here, the arbitration panel had no authority to enter a ruling on the arbitrability of the punitive damages claim, and Morton was entitled to a judicial ruling on the matter. He properly sought a declaratory judgment on the issue. “[T]he circuit courts of this state have jurisdiction to render declaratory judgments determining whether a matter in dispute comes within the scope of an arbitration agreement.” Pub. Employees Relations Comm’n v. Dist. Sch. Bd., 374 So.2d 1005, 1011 (Fla. 2d DCA 1979), disapproved on other grounds by Barwick v. State, 660 So.2d 685 (Fla.1995); see also Rintin Corp., S.A., 766 So.2d at 408 (addressing case where after other party filed a demand for arbitration, the plaintiff “filed an action in circuit court seeking a declaration that the disputes raised by [the] demand for arbitration were not arbitrable”). “[AJrbitration is simply a matter of contract between the parties,” Kaplan, 514 U.S. at 943, 115 S.Ct. 1920, and a circuit court may construe a party’s right under a contract by way of a declaratory judgment, see §§ 86.011, 86.02, Fla. Stat. .(2003).

Polivchak’s contention that punitive damages may not be awarded in an arbitration proceeding unless expressly authorized by the arbitration agreement also is lacking in merit. Polivchak bases this "argument on the decision in Behan, which the arbitration panel relied on in making the determination that spawned this appeal. In Behan, the court reversed a trial court’s ruling confirming an arbitrator’s award of punitive damages in a case involving breach of contract and negligent performance claims. The court based the reversal on its conclusion “that the parties’ agreement ... did not provide for an award of punitive damages and accordingly the arbitrator exceeded his power.” 558 So.2d at 51. The court adopted the view “that punitive damages may not be awarded by an arbitrator absent an express provision authorizing such relief in the arbitration agreement or pursuant to a stipulated submission.” Id.

We reject the suggestion that claims for punitive damages based on fraud are subject to the rule stated in Behan that punitive damages may be awarded by an arbitrator only if the parties have expressly agreed that such relief will be available in arbitration. We consequently reject Po-livchak’s argument that the rationale of Behan is a sufficient basis for affirming the trial court’s decision to deny Morton relief.

Behan, as we have already noted, was a case involving breach of contract and negligent performance claims. The rule the court stated in Behan thus was applied in a context where punitive damages ordinarily are not available. See S. Bell Tel. & Tel. Co. v. Hanft, 436 So.2d 40, 42 (Fla.1983) (“For punitive damages to be recoverable in a contract case, an intentional wrong, willful or wanton misconduct, or culpable negligence, the extent of which amounts to an independent tort, must be shown.”). Applying the rule requiring express authorization for the arbitration of punitive damages claims to a punitive damages claim arising from a cause of action for an intentional tort such as fraud — even when the fraud , is related to a contractual relationship — is a far different matter. Punitive damages generally are available for intentional torts. See § 768.72(2), Fla. Stat. (2003). In view of this principle, it would be anomalous to apply a presumption against the arbitrability of punitive damages claims arising from arbitrable fraud claims.

Here, Polivchak has not asserted that the fraud claim does not fall within the scope of the agreement to arbitrate “[a]ll controversies, claims[,] and other matters in question arising out of or related to this transaction or this contract or its breach.” See Kaplan v. Kimball Hill Homes Fla., Inc., 915 So.2d 755, 759 (Fla. 2d DCA 2005) (“Where an arbitration agreement provides for the arbitration of disputes relating to a contract, ‘[t]ort claims based on duties that are dependent upon the existence of the contractual relationship between the parties are normally arbitra-ble.’ ”) (quoting Stacy David, Inc. v. Consuegra, 845 So.2d 303, 306 (Fla. 2d DCA 2003)). And Polivchak has not shown any basis for concluding that Morton’s claim for punitive damages based on the fraud cause of action is not a claim “arising out of or related to” the real estate contract.

Polivchak’s contention that there is a presumption that punitive damages claims are not arbitrable is at odds with the general presumption of arbitrability:

[A]ny time a contract contains an arbitration clause, there is a presumption of arbitrability in the sense that “[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.”

Beaver Coaches, Inc. v. Revels Nationwide R.V. Sales, Inc., 543 So.2d 359, 362 (Fla. 1st DCA 1989) (quoting AT & T Techs., Inc., 475 U.S. at 650, 106 S.Ct. 1415). “In the case of a particularly broad arbitration clause, only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.” Id. See also Stinson-Head, Inc. v. City of Sanibel, 661 So.2d 119 (Fla. 2d DCA 1995) (discussing presumption of arbitrability). Here, the arbitration provision is undeniably broad.

Accordingly, we conclude that where a cause of action for fraud is within the scope of an arbitration agreement, a claim for punitive damages based on that fraud is subject to arbitration unless the parties have agreed that punitive damages claims are not arbitrable. See PrimeCo Pers. Commc’ns v. Commonwealth Distribs., Inc., 740 So.2d 585, 587 (Fla. 3d DCA 1999) (enforcing contractual provision that “the arbitrator’s authority to award damages is limited to compensatory damages”). We note that the arbitration provision here states that “any remedy not provided for in” the contract “may not” be awarded by the arbitration panel and that the contract refers to the buyer’s “right to seek damages” when the seller “fails, refuses[,] or neglects to perform” the contract. Since the parties have presented no argument concerning the bearing these provisions might have on the issue of whether the parties have agreed that punitive damages claims are not arbitrable, we do not address that issue.

IV. Conclusion

Because the circuit court erred in its failure to address the arbitrability of the punitive damages claim, we reverse the circuit court’s order of dismissal and compelling arbitration. On remand, the circuit court shall determine whether the punitive damages claim is subject to arbitration under the provisions of the arbitration agreement.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.

      . This provision is found in Article 16(3) of the AAA Commercial Arbitration and Mediation Center for the Americas (CAMCA) Mediation and Arbitration Rules. See http:// www.adr.org.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robin BREWER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-985.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2006.
    Rehearings Denied June 7 and June 9, 2006.
    Robin Brewer, Florida City, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Alvarez v. State, 358 So.2d 10 (Fla.1978).

PLEUS, C.J., ORFINGER and TORPY, JJ., concur.


author: GROSS, J.

text:
    OKEECHOBEE LANDFILL, INC., a Florida corporation, and Reuter Recycling of Florida, Inc., a Florida corporation, Appellants, v. REPUBLIC SERVICES OF FLORIDA, LIMITED PARTNERSHIP, a Delaware limited partnership, f/k/a Republic Services of Florida Hauling, LLC, a former Florida limited liability company, Appellee.
    No. 4D04-2076.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Rehearing Denied July 11, 2006.

      John H. Pelzer and Brigid F. Cech of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellant.
    Curtis Alva, Jack J. Aiello, and Rick J. Burgess of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellee.
   GROSS, J.

This is an appeal from a final summary judgment entered in a declaratory judgment action. Republic Services of Florida, L.P. filed an action in circuit court to determine its rights under two related contracts. See § 86.011 et seq., Fla. Stat. (2002). Okeechobee Landfill, Inc., and Reuter Recycling of Florida, Inc., were the defendants, as each was a party to one of the agreements. The circuit court found the contracts to be unambiguous and entered summary judgment in favor of Republic. We agree that the contracts are unambiguous, but find that they support the interpretation advanced by Okeechobee and Reuter. We therefore reverse the judgment of the circuit court.

The parties to this appeal are in the waste disposal business. Okeechobee and Reuter are Florida subsidiaries of Waste Management, Inc., one of the nation’s largest waste services companies. Republic is a Florida subsidiary of Republic Services, Inc., another national waste company in the same business. The agreements here at issue concern solid municipal waste transfer and disposal rights.

Generally, solid municipal waste disposal involves a three-stage process. The first stage is “hauling.” During the hauling stage, local capacity collection trucks pick up waste from commercial and residential customers. The second stage is the “transfer stage,” during which collection trucks bring the waste to a transfer station, where it is combined, compacted, loaded onto larger capacity tractor trailers, and transported to a disposal facility. The third and final stage is “disposal.” During the disposal stage, the waste is deposited at a landfill or incineration facility. The transfer stage is necessary because disposal sites are often far away from collection sites. Since the transfer stage tractor-trailer trucks have greater carrying capacity than the collection trucks, this middle step makes long-distance waste transportation more efficient.

Not every solid waste services company participates in all three stages of the disposal process. For example, some companies participate only in the hauling stage and contract with other companies for transfer and disposal services. Few companies own transfer and disposal facilities, because public opposition makes permitting and construction difficult.

At the time this action was filed, Republic was engaged primarily in hauling; it contracted with Okeechobee and Reuter for transfer and disposal services. Reuter provided transfer services to Republic at its Reuter Transfer Station pursuant to a Transfer Station Throughput Agreement (the “Transfer Agreement”). Okeechobee provided disposal services to Republic at its landfill pursuant to a Disposal Capacity Agreement (the “Disposal ’ Agreement”). The Transfer and Disposal Agreements were executed the same day by the same corporate representatives. Republic’s obligations under these Agreements were the subject of its action for declaratory relief.

The Disposal Agreement sets forth Republic’s obligation to deliver a set sum of “South Florida Waste” to Okeechobee for disposal. It also requires Republic to use Okeechobee as its “exclusive” disposal provider until it delivers a set sum of waste. Republic’s obligations to Okeechobee are set forth in terms of “waste volume.”

Under the Transfer Agreement, Republic’s obligations to Reuter are also described in terms of “waste volume.” Republic’s waste volume obligations to Reuter under the Transfer Agreement are tied directly to its waste volume obligations to Okeechobee under the Disposal Agreement. The Transfer Agreement includes the Disposal Agreement’s waste volume schedule “for ease of reference” in an abbreviated format, with an “inferiority clause” making the Transfer Agreement subsidiary to the Disposal Agreement in certain respects, which we will explain later in this opinion.

In addition to waste volume provisions, the Agreements share the same duration. Absent special circumstances, both Agreements run from January 4, 1999 until “the earlier of (i) December 31, 2018, or (ii) the date [Republic] shall have used its maximum tonnages available under all waste volume options set forth in the [Disposal Agreement].” Stated differently, both Agreements terminate upon the same specified date or when Republic’s disposal obligations with Okeechobee conclude, whichever occurs first.

A dispute arose when Republic began to develop plans to construct its own transfer facility on a five-acre parcel adjacent to Reuter’s facility. The dispute concerned whether the Agreements obligated Republic to transfer all of its South Florida Waste with Reuter before Okeechobee was obligated to accept that waste for disposal. When Republic made attempts to deliver South Florida Waste directly to Okeechobee without transferring at Reuter, Okeechobee refused to accept it, stating that under Section 7(a) of the Transfer Agreement, Republic was required to transfer all South Florida Waste with Reuter before disposal at Okeechobee. Republic responded by filing its complaint for declaratory relief.

Both sides moved for summary judgment, contending that the Agreements unambiguously supported their respective positions. The circuit court granted Republic’s motion for summary judgment and denied the motions filed by Okeechobee and Reuter.

We agree with Okeechobee and Reuter that (1) Section 7(a) of the Transfer Agreement unambiguously requires Republic to transfer all of its South Florida Waste at Reuter and (2) the “inferiority clause” in the Transfer Agreement did not alter this obligation.

A trial court’s decision concerning the entry of a summary judgment is reviewed de novo. See, e.g., Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “The interpretation or construction of a contract is a matter of law and an appellate court is not restricted from reaching a construction contrary to that of the trial court.” Bombardier Capital Inc. v. Progressive Mktg. Group, Inc., 801 So.2d 131, 134 (Fla. 4th DCA 2001). “The polestar guiding the court in the construction of a written contract is the intent of the parties.” Id. “The intent of the parties ... must be determined from an examination of the whole of the contract, including ... all of the contracts the terms and conditions of which are made a part of the contract under consideration.” See Canal Lumber Co. v. Fla. Naval Stores & Mfg. Co., 83 Fla. 501, 92 So. 279, 281 (1922). “In the event that the language of a contract is clear and unambiguous, the court will enforce such contract according to its terms.” Avatar Dev. Corp. v. De Pani Constr., Inc., 834 So.2d 873, 876 n. 2 (Fla. 4th DCA 2002). Only where a contract is ambiguous, i.e., it is susceptible to more than one reasonable interpretation, can a court resort to the rules of construction and extrinsic evidence to discern the parties’ intent. See Miller v. Kase, 789 So.2d 1095, 1097-98 (Fla. 4th DCA 2001); Royal Cont’l Hotels, Inc. v. Broward Vending, Inc., 404 So.2d 782, 784 (Fla. 4th DCA 1981).

The only reasonable interpretation of the Agreements is that Republic is obligated to transfer an amount of South Florida Waste with Reuter equal to that amount it could dispose at Okeechobee. Section 7(a) of the Transfer Agreement requires Republic to “deliver to the [Reu-ter Transfer Station] all South Florida Waste that [Republic] and/or its designees collects, up to the maximum volumes that [Okeechobee] is obligated to accept under such Disposal Capacity Agreement.”

The maximum waste volume Republic may send to Okeechobee is set forth in Section 7 of the Disposal Agreement. This section provides an “Initial Capped Amount” of waste volume followed by three options to increase that “Initial Capped Amount.” The Transfer Agreement recognized the Disposal Agreement’s waste volume schedule and reproduced it in substantially the same form under Section 7(a), “for ease of reference,” with an “inferiority clause.” The “inferiority clause” ensured that Republic’s waste volume obligations to Reuter were the same as its waste volume obligations to Okeechobee. This intent is clear based on the language the parties chose; the “inferiority clause” states that the Disposal Agreement “refleet[s] the parties’ binding commitment with respect to the volumes for waste disposal” under the Transfer Agreement. Thus, the inferiority clause applies only to inconsistencies concerning the amount of waste Republic is obligated to deliver under the Agreements; it does not apply to where or whether transfers had to occur.

The circuit court’s interpretation of the inferiority clause nullified the provisions in the Transfer Agreement requiring Republic to conduct transfers at Reuter, which was the primary purpose of that contract. The circuit court’s interpretation was based on perceived inconsistencies in the Agreements; however, Republic’s waste volume obligations under both Agreements are the same. It is obligated to deliver the operative capped amount of waste under the Disposal Agreement’s waste volume schedule to both Reuter (for transfer) and Okeechobee (for disposal). Nowhere in the Disposal Agreement was there any language inconsistent with Republic’s obligation to conduct transfers at Reuter before disposal at Okeechobee. To the contrary, the Disposal Agreement expressly recognized such transfers when it stated:

[Republic] and or its designees shall have the obligation to deliver to the [Okeechobee Landfill] all South Florida Waste that [Republic] and/or its des-ignees collects up to the maximum volumes that [Okeechobee] is obligated to accept under this Agreement, and [Republic] shall direct that, unless otherwise agreed, volumes equivalent to all South Florida Waste processed for [Republic] at the Reuter Transfer Station be transferred to the [Okeechobee Landfill].

(Emphasis added). The Disposal Agreement also states the cost of disposal is calculated “based upon the volumes of [Republics’ deliveries to [Reuter]].” These provisions of the Disposal Agreement are consistent with Republic’s obligation to conduct transfers at Reuter.

Republic contends that two federal court consent decrees alter the meaning of the Agreements. Although the federal cases were referenced in the Recitals to the Agreements, the terms of the consent decrees are not part of the Agreements and the decrees were not incorporated into the Agreements by reference: The decrees therefore constitute extrinsic evidence which cannot be considered to modify these unambiguous Agreements. See Thomas v. Hartman, 553 So.2d 1256 (Fla. 5th DCA 1989).

For these reasons, we réverse the summary final judgment entered in favor of Republic, remand to the circuit court, and direct it to enter summary judgment adopting the interpretation of the Agreements advanced by appellants — that Republic must deliver all South Florida Waste to the Reuter Transfer Station and Reuter must deliver the equivalent volume of waste on behalf of Republic to the Okeechobee Landfill, up to the volumes of disposal provided under the Disposal Agreement.

Reversed and Remanded.

WARNER and HAZOURI, JJ., concur.

      . The Agreements both define "South Florida Waste” as
      Acceptable Waste collected, or delivered directly from a transfer station located, in Broward, Dade, or Monroe counties, Florida.

      . Section 7(a) is the provision requiring Republic "to deliver to the [Reuter Transfer Station] all South Florida Waste that [Republic] and/or its designees collects, up to the maximum volumes that [Okeechobee] is obligated to accept under such Disposal Capacity Agreement.” (App. C:6-7)


text:
    Irvin Richard BEVERITT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1174.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2006.
    Rehearing Denied June 22, 2006.
    Irvin R. Beveritt, Bushnell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Oxendine v. State, 852 So.2d 286 (Fla. 5th DCA 2003).

ORFINGER, TORPY and LAWSON, JJ., concur.


author: DONNER, AMY STEELE, Associate Judge.

text:
    Martin ALEXANDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1001.
    District Court of Appeal of Florida, Fourth District.
    May 10, 2006.
    Rehearing Denied July 21, 2006.

      Paul Morris of the Law Offices of Paul Morris, P.A., Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   DONNER, AMY STEELE, Associate Judge.

Appellant, Martin Alexander (“Alexander”), appeals decisions of the trial court as follows: (1) the judge’s decision to exclude exculpatory testimony of a DNA expert and (2) the judge’s introduction and reference to an accident reconstructionist as an “expert.” We have jurisdiction. See Fla. R.App. P. 9.030(b)(1)(A), 9.140(b)(1)(A).

We find no error in the trial court’s reference to the accident reconstructionist as an “expert.” However, because the trial judge abused her discretion in preventing the exculpatory testimony, we reverse and remand for a new trial.

I. FACTS

Alexander was charged in Count I with driving with a blood alcohol level over .08 percent and contributing to the cause of death of a human being, in Count II of driving under the influence of alcohol to the extent that his normal faculties were impaired and contributing to the cause of death of a human being, and in Count III of driving under the influence and contributing to the cause of injury to the person of another. After the jury found Alexander guilty of the lesser included offense of DUI in all three counts, the trial court abated Counts II and III and sentenced him to nine months in jail and three months probation on Count I. Alexander argues in this appeal that the trial court erred by excluding exculpatory testimony of a DNA expert listed on the State’s witness list and referring to the State’s accident reconstructionist as an “expert.”

At trial, evidence was presented that Alexander was driving a car when he struck a golf cart, killing a young girl and injuring her mother. During the course of the trial, a witness testified regarding his experience and training in DUI investigation, and his expertise in accident investigation and reconstruction. When the State tendered the witness as an accident investigation and reconstruction expert, Alexander objected, stating it was improper for the trial court to inform the jury that the witness was an expert. Alexander felt such designation would inappropriately confer additional credibility upon the witness’s testimony.

The trial judge overruled Alexander’s objection and responded to the objection in the jury’s presence by referring to the witness as an expert. The witness then testified as an accident reconstruction expert. When instructing the jury prior to deliberations, the trial judge provided the instruction regarding the reliability of expert testimony. See Fla. Std. Jury Instr. (Crim.) 3.9(A). The instruction provides:

Expert witnesses are like other witnesses, with one exception — the law permits an expeH witness to give [his][her] opinion.
However, an expert’s opinion is reliable only when given on a subject about which you believe [him][her] to be an expert.
Like other witnesses, you may believe or disbelieve all or any part of an expert’s testimony.

Id. (emphasis added).

At the time of the accident, Alexander told an officer that he had been drinking. Evidence was presented at trial that, prior to the accident, Alexander consumed between two and three alcoholic beverages while playing golf and an additional four alcoholic beverages afterward. Two blood samples were drawn from Alexander. One tested 0.23 grams percent blood alcohol level, and the other tested at 0.26 grams percent blood alcohol level.

Alexander’s theory of the case was that the blood samples he had given had been switched with samples taken from another person. During the State’s case-in-chief, Alexander cross-examined witnesses to establish the procedure utilized to test the blood samples he gave. There was also testimony indicating that the blood alcohol levels represented did not comport with the amount of alcoholic beverages Alexander allegedly consumed.

In order to support his theory that someone else’s blood was tested, Alexander sought to present testimony of a DNA expert. The expert was listed on the State’s witness list, but later removed. The DNA expert was not listed on Alexander’s witness list. Additionally, Alexander conceded he was the driver of the automobile; therefore, DNA evidence was unnecessary to establish this fact and was excluded pursuant to a motion in limine. The expert’s name had not been read to the jurors. However, the expert was ready to testify. A continuance was not necessary for the purpose of presenting the expert’s testimony.

Several curative measures were suggested to prevent any prejudice to the State as a result of the absence of the expert on the Defendant’s witness list. Alexander suggested that the expert’s name be read to the jurors at that time. Additionally, the State requested a Richardson hearing and a one-week continuance in order to obtain the DNA testing Alexander claimed could have been conducted to ensure his blood was the blood with the elevated blood alcohol level.

The trial judge did not hold a Richardson hearing and accused the defense of “sandbagging.” The trial judge determined that Alexander was required to list the DNA expert before she could testify. Therefore, the trial court excluded the testimony. No' additional consideration was made regarding other available alternatives to excluding Alexander’s proffered evidence. The trial court also did not consider whether the DNA expert’s testimony would surprise the State.

II. EXCLUSION OF EXCULPATORY TESTIMONY IS REVERSIBLE ERROR

A trial court’s decision to exclude evidence is reviewed for abuse of discretion. Welty v. State, 402 So.2d 1159, 1163 (Fla.1981). While a trial judge has broad discretion to exclude evidence proffered by the defense, this discretion is not unlimited. Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, 884 So.2d 1087, 1093 (Fla. 4th DCA 2004).

This Court has previously determined that “[tjhere are few rights more fundamental than the right of an accused to present witnesses in his or her own defense.” Jenkins v. State, 872 So.2d 388, 389 (Fla. 4th DCA 2004). A defendant’s fundamental right to defend himself or herself under the Sixth Amendment is denied when exculpatory evidence is excluded. Wessling v. State, 877 So.2d 877, 879 (Fla. 4th DCA 2004); Mattear v. State, 657 So.2d 46, 47 (Fla. 4th DCA 1995).

Under Richardson v. State, 246 So.2d 771, 775 (Fla.1971), a hearing should be held to determine the extent and nature of any prejudice resulting from a party’s alleged discovery violation. A Richardson hearing requires the trial judge to “decide whether the discovery violation prevented the aggrieved party from properly preparing for trial ... [and] determine the appropriate sanction to invoke for the violation.” Smith v. State, 372 So.2d 86, 88 (Fla.1979). Excluding exculpatory evidence is a drastic measure to cure prejudice to the State and should be used only as a last resort. Casseus v. State, 902 So.2d 294, 295 (Fla. 4th DCA 2005). Other curative measures should be explored pri- or to excluding exculpatory testimony.

As a result of Alexander’s failure to list the DNA expert on his witness list, the trial court was required to hold a Richardson hearing prior to excluding the evidence, or imposing any other sanction. Delgado v. State, 890 So.2d 1269, 1271 (Fla. 5th DCA 2005). Failing to disclose a witness prior to trial is insufficient by itself to exclude that witness. Tomengo v. State, 864 So.2d 525, 529 (Fla. 5th DCA 2004); see also Lucas v. State, 376 So.2d 1149, 1151 (Fla.1979). A showing of prejudice to the opposing party is required. Lucas, 376 So.2d at 1151; see also Richardson, 246 So.2d at 775 (prejudice in preparation for trial).

Here, the State does not argue that it was prejudiced. Rather, the State argues that the DNA expert’s testimony would be irrelevant. We believe the DNA expert’s testimony was relevant. Alexander’s counsel successfully argued that the amount of alcohol Alexander ingested did not comport with the test results presented by the State. The DNA expert’s testimony would have bolstered Alexander’s position that his blood was not the blood that was tested. See § 90.401, Fla. Stat. (2005). Furthermore, Alexander could have argued that the State had a duty to compare the DNA of his blood with the testing sample.

The State’s position that the evidence was properly excluded based on surprise is likewise unsupported by the record. The DNA expert was listed by the State on its witness list. The witness’s testimony was not foreign to the State. Additionally, such surprise could have more properly been avoided by allowing a recess of the proceedings so that the State could depose the DNA expert or hire another DNA expert to rebut the testimony. Wessling, 877 So.2d at 879. Granting the State’s requested continuance would have prevented any prejudice or surprise.

Accordingly, we find that the trial court abused its discretion in excluding the testimony of the DNA expert. The trial court should have conducted a Richardson hearing as requested by the State in order to properly weigh any prejudice to the State. Delgado, 890 So.2d at 1271. Any prejudice or surprise could have been avoided by permitting deposition or continuance. Since Alexander’s fundamental right to present evidence in his defense was denied, the trial judge abused her discretion in excluding the DNA expert’s exculpatory evidence. Alexander’s ability to present a complete defense was harmed as a result.

III. REFERRING TO THE ACCIDENT RECONSTRUCTIONIST AS AN “EXPERT” WAS NOT ERROR

Having determined that the trial court erred in excluding the exculpatory evidence of the DNA expert, we do not have to reach the second contention on appeal. However, we hold that the trial court’s reference to the accident recon-structionist as an “expert” was not harmful error under the facts presented here.

A trial judge is precluded from commenting on the weight of the evidence presented. See § 90.106, Fla. Stat. (2005); Brown v. State, 678 So.2d 910, 911 (Fla. 4th DCA 1996). The choice to designate a witness as an expert lies within the sound discretion of the trial court. Rose v. State, 506 So.2d 467, 470 (Fla. 1st DCA 1987); see also Fogelman v. State, 648 So.2d 214, 219 (Fla. 4th DCA 1994) (great latitude afforded in controlling witnesses). Reversal is appropriate where the trial judge abused his or her discretion in determining that a witness should be designated as an expert. See White v. State, 817 So.2d 799, 806 (Fla.2002).

Here, the trial judge simply stated that she would permit the testimony of the witness as an expert. Expert testimony is admissible as “expert” testimony. §§ 90.702-706, Fla. Stat. (2005). The statement here does not amount to an inappropriate comment on the witness’s credibility. However, the better procedure would have been to permit the witness to testify without reference to his or her status as an expert. When coupled with the court’s instruction to the jury that expert testimony should be given the same weight as other witness testimony, we can find no abuse of discretion in the trial court’s reference to the witness as an expert. See Fla. Std. Jury Instr. (Crim.) 3.9(A).

IV. CONCLUSION

Because the trial court erred in excluding the exculpatory testimony of the DNA expert, we reverse the conviction and sentence, and remand the case for a new trial.

Reversed and Remanded.

GUNTHER and FARMER, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Christopher Ross NORWOOD, Appellant, v. Andrea ANAPOL-NORWOOD, Appellee.
    No. 3D05-1904.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.
    Rehearing Denied July 11, 2006.

      Sheri Smallwood, for appellant.
    Greenman & Manz and David Manz, Marathon, for appellee.
    Before RAMIREZ and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Rejecting the former husband’s only significant point on his appeal from a final judgment of dissolution, we conclude that, after appropriately fixing the characterization of the marital home as a marital asset subject to equitable distribution on the date of filing of the complaint as required by section 61.075(6), Florida Statutes (2003), see Rao-Nagineni v. Rao, 895 So.2d 1160 (Fla. 4th DCA 2005), the trial court did not err in determining as a matter of the discretion conferred by section 61.075(6) the (much lower) valuation of the property at the earlier date of separation. See Edel v. Walker, 927 So.2d 989 (Fla. 5th DCA 2006); O’Neil v. Drummond, 824 So.2d 1032 (Fla. 1st DCA 2002); Noone v. Noone, 727 So.2d 972 (Fla. 5th DCA 1998); Catalfumo v. Catalfumo, 704 So.2d 1095 (Fla. 4th DCA 1997), review denied, 717 So.2d 529 (Fla.1998); see also Nelson v. Nelson, 795 So.2d 977 (Fla. 5th DCA 2001); Perlmutter v. Perlmutter, 523 So.2d 594, 596 (Fla. 4th DCA 1987), review denied, 531 So.2d 1354 (Fla.1988). The trial judge correctly stated:

7. Though the Court has in fact previously ruled as to the determination of the valuation date of the former marital home by the terms of the Court’s Order Granting Petitioner’s Motion for Partial Summary Judgment, dated January 20, 2005, the Court herein again cites the reasoning and rationale in issuing the referenced order establishing the valuation date, in order that there is no confusion as to this issue. In determining the value of the specific marital assets, the Court notes that pursuant to Fla. Stat. § 61.075(6), a trial court has significant discretion in determining the date of valuation of marital assets. Canakaris [v. Canakaris, 382 So.2d 1197 (Fla.1980) ]; Moore v. Moore, 543 So.2d 252 (Fla. 5th DCA 1989); Szemborski v. Szemborski, 530 So.2d 361 (Fla. 5th DCA 1988). Fla. Stat. § 61.075(6) provides that the date for determining the value of marital assets and liabilities is whatever date the trial judge determines is just and equitable under the circumstances. The trial court, in its discretion, may value different assets and liabilities as of different dates as the circumstances require. Fla. Stat. § 61.075(6); Hicks v. Hicks, 580 So.2d 876 (Fla. 2d DCA 1991).
8. The equitable distribution statute permits flexibility in establishing the valuation date of marital assets, as it authorizes the trial court to exercise its own discretion to accomplish equity between the parties. Here, the Court finds that Florida case law mandates that the date of separation, that is, August 23, 2003, is the most appropriate valuation date for the marital assets.
9. The Court notes that Perlmutter v. Perlmutter, 523 So.2d 594 (Fla. 4th DCA 1988), remains the polestar decision in Florida regarding the question of the determination of valuation dates and the methodology to be used in determining the correct valuation date. Circumstances which will justify the use of a valuation date closer to the date of separation include where there is an increase in the value of a marital asset due solely to the efforts of the owner spouse, or where there is a dramatic reduction in value due to dissipation or wasteful conduct of the owner spouse. The concept of “economic partnership” rests upon the existence of an underlying and continuing marital relationship. In the last analysis, the date chosen must be tailored to the particular facts involved in each case and must be reflective of the legislative mandate to provide for the equitable distribution of the assets of the marital partnership.
10. Where the increase in value of property or continued ownership of property is solely due to the work or efforts of the owner spouse, the use of separation date is mandated. Such is the case in this dissolution action.
11. Here the Wife’s testimony at trial, and affidavit in support of her motion for summary judgment, as to the costs of maintaining, repairing and improving the former marital home since the date of separation of the parties demonstrably proved that the entire upkeep, maintenance, improvement, repair, and in fact, continued ownership of the former marital property after the separation of the parties in August 2003 was solely as a result of the efforts and contributions of the Wife, and mandates use of the separation date as the appropriate date for valuation of the property. The actions by the Wife in maintaining the property and in paying the entire expenses on the property constitute the type of conduct as noted in Wegman [v. Wegman, 123 A.D.2d 220, 509 N.Y.S.2d 342 (N.Y.App.Div.1986), amended, 512 N.Y.S.2d 410 (N.Y.App.Div.1987) ] justifying use of the separation date as the valuation date, specifically, that where the increase in value of property or continued ownership of property is solely due to the work or efforts of the owner spouse. The Court notes that is the exact situation here, as reflected by the affidavit in support of the Wife’s motion for summary judgment and the Husband’s responsive affidavit. Specifically, the Wife was the sole party who contributed to the payment of insurance and taxes during the separation and after the separation, and until after the summary judgment motion was filed. The Wife alone was the party who Contributed repairs to the property. The Wife alone was the party who contributed to the maintenance and improvement of property. The Wife alone contributed to the deficit between income and expenses as regards the home, of over $1,500 per month. The Wife alone contributed $25,000 in monies for expenses, repairs, renovations, taxes, and insurance after the separation. The Court notes that the affidavit of the Husband, in response to the summary judgment motion, does not contravene the Wife’s affidavit and does not offer anything in response that would create a scintilla of fact as to the pertinent issues of which party was responsible for the continued ownership of the property and whether continued ownership of the property after the separation was solely because of the Wife. It cannot reasonably be maintained by the Husband that he should have any share or obtain any share or be entitled to any share of the appreciation of the property from the date of separation of the parties, as it was the efforts of the Wife, and the efforts of the Wife alone, which allowed the continued ownership of the subject property during the lengthy separation between the parties. The Court has granted the Wife’s Partial Motion for Summary Judgment regarding the issue of the separation date. Accordingly, the Husband’s share of the former marital home shall be determined as of the separation date.

No error nor need for discussion has been presented as to appellant’s remaining points. ■

Affirmed.

      . Section 61.075(6) reads:
      The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge's discretion, the circumstances require.
      (Emphasis added).

      . Although Perlmutter was essentially overruled on this issue by section 61.075(4), Florida Statutes (Supp.1988), it was restored to full force and vigor by the later amendment of section 61.075(6) contained in chapter 94-204, § 1, at 1172, Laws of Florida, which applies to this case. E.g., Byers v. Byers, 910 So.2d 336 (Fla. 4th DCA 2005)(applying post-1994 statute and citing Perlmutter), Jahnke v. Jahnke, 804 So.2d 513 (Fla. 3d DCA 2001)(same).

      . See supra note 2.


author: FLETCHER, Judge.

text:
    Ronnie Steven SANTANA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1340.
    District Court of Appeal of Florida, Third District.
    May 10, 2006.

      Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   FLETCHER, Judge.

Ronnie Steven Santana appeals from a final order of conviction and the trial court’s subsequent denial of his motion to correct an illegal sentence. We affirm the convictions but reverse the order denying Santana’s motion to correct an illegal sentence.

Santana was charged in Count One of attempted first degree murder by discharging a firearm, and in Count Two of unlawfully shooting into an occupied vehicle. As to Count One, the verdict form shows that the jury found Santana guilty of “aggravated battery, as a lesser included offense, with a firearm.” § 784.045(l)(a)2., Fla. Stat. (1999). As to Count Two, the jury indicated on the verdict form that Santana was also “guilty of shooting or throwing [a] deadly missile, the crime charged.” § 790.19, Fla. Stat. (1999). At the hearing on Santana’s motion to correct an illegal sentence, the trial court correctly concluded that, as the jury had not specifically found “as a result of discharge, death of great bodily harm was inflicted,” the twenty-five year mandatory minimum sentence originally imposed pursuant to section 775.087(2)(a)3., Florida Statutes (1999), was not proper. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (any fact other than a prior conviction used to enhance a defendant’s sentence beyond the statutory maximum for the crime of which s/he is convicted must be submitted to the jury and found beyond a reasonable doubt), and progeny. The trial court went on to conclude that the jury’s finding in Count Two that Santana was guilty of throwing or shooting a deadly missile could be used to infer a finding of discharge of the weapon for purposes of enhancing the sentence in Count One for aggravated battery with a firearm, pursuant to section 775.087(2)(a)2, Florida Statutes (1999).

Section 775.087(2)(a), Florida Statutes (1999) provides three levels of mandatory minimum sentence depending on the fact-based distinctions of “possession,” “discharge,” or “as a result of discharge, death or great bodily harm was inflicted.” § 775.087(2)(a)l-3, Fla. Stat. (1999). These distinctions have the significant legal consequence of receiving either a ten, twenty, or 25-year-to-life mandatory minimum sentence. The rule in Florida is that before the trial court can enhance a defendant’s sentence or apply the mandatory minimum sentence, even in cases where the evidence is uncontroverted, the jury must still expressly determine the requisite statutory fact necessary for application of the mandatory minimum sentence. See State v. Overfelt, 457 So.2d 1385 (Fla.1984) (the jury must specifically find that the defendant committed the crime while possessing or using a firearm either by finding him guilty of a crime involving a firearm or by answering a specific question on a verdict form); see also Tucker v. State, 726 So.2d 768 (Fla.1999); State v. Hargrove, 694 So.2d 729 (Fla.1997); State v. Tripp, 642 So.2d 728 (Fla.1994).

Applying this reasoning, the trial court should have found that the statute mandating a twenty year minimum sentence for “discharge” of a firearm during an aggravated battery was inapplicable as the jury made no specific finding that Santana had discharged the weapon as charged in Count One of the information. See § 775.087(2)(a)2, Fla. Stat. (1999). The Florida Supreme Court has found it improper to infer a requisite finding for enhancement of one count from the conviction on the second count of the indictment. State v. McKinnon, 540 So.2d 111 (Fla.1989), receded from on other grounds, State v. Roberts, 661 So.2d 821 (Fla.1995); Boswell v. State, 544 So.2d 243 (Fla. 3d DCA 1989)(Error for the trial court to infer the requisite finding for enhancement based on conviction of a separate count).

The most that can be inferred from this verdict form as written is that Santana possessed the weapon when he committed the aggravated battery. See § 775.087(2)(a)l., Fla. Stat. (1999). The verdict form did not specifically provide that Santana discharged the weapon, neither did it make any reference to the charging document. See Tucker v. State, 726 So.2d 768 (Fla.1999)(“Even where the use of a firearm is uncontested, the overriding concern of Overfelt still applies: the jury is the fact finder, and use of a firearm is a finding of fact. If the State wishes to guard against the recurrence of a situation such as in the instant case, it is in a position to do so: it has the right to propose an interrogatory on the verdict form asking whether or not the jury finds the defendant guilty of a crime involving use of a firearm. There was no such finding in this case. Also, this case does not involve a verdict of guilty “as charged,” where the charge was a crime using a firearm. Such a verdict would specifically incorporate the finding.”); Compare Tripp, 642 So.2d at 730 (a jury’s verdict that the defendant is guilty of “charges made against him in the Information” is insufficient to establish that a weapon was used, even if the information alleges that the defendant used a weapon during commission of the crime); but see Amos v. State, 833 So.2d 841 (Fla. 4th DCA 2002)(applying enhanced sentence for “discharge” of weapon was proper because verdict form’s reference to the information strongly supports inference that the conviction for aggravated battery in count one rests solely on the jury’s finding of use of firearm in count two; finding that the defendant discharged a weapon is inherent in jury’s verdict).

Because the verdict form as to Count One failed to contain a specific finding that Santana discharged the firearm,, or to make a specific reference to the information, the trial court erred by imposing the twenty-year mandatory minimum sanction applicable to felonies in which a weapon was not only possessed but “discharged.” See § 775.087(2)(a)2, Fla. Stat. (1999). We affirm the convictions but reverse and remand for resentencing on Count One only, with directions to sentence Santana pursuant to section 775.087(2)(a)l, Florida Statutes (1999), for the conviction of aggravated battery with a firearm.

We also certify conflict with Amos v. State, 833 So.2d 841 (Fla. 4th DCA 2002).

Affirmed in part, reversed and remanded in part, conflict certified.

      . "Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a-q, regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a "firearm” or "destructive device” ... and, as a result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.”

      . "Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l a-q, regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a 'firearm' or 'destructive device’ ... shall be sentenced to a minimum term of imprisonment of 20 years.”

      . "Any person who is convicted of a felony ... and during the commission of the offense, such person actually possessed a 'firearm' ... shall be sentenced to a minimum term of imprisonment of 10 years....”


author: LEWIS, J.

text:
    John T. HUTCHINSON and Kathryn E. Hutchinson, Appellants, v. PLANTATION BAY APARTMENTS, LLC, Appellee.
    No. 1D05-1679.
    District Court of Appeal of Florida, First District.
    May 15, 2006.

      M. Forest Hutchinson, III, Esq. of Hutchinson & Associates, Jacksonville, for Appellants.
    Edward McCarthy, III, Esq. and Robert E. Pinder, Esq. of Rogers Towers, P.A., Jacksonville, for Appellee.
   LEWIS, J.

Appellants, John and Kathryn Hutchinson, seek review of the trial court’s order dismissing their case with prejudice and an order denying Mrs. Hutchinson’s motion to enforce appellee’s settlement proposal. Appellants contend that the trial court erred in dismissing their case because they did not engage in a clear and convincing scheme calculated to interfere with the trial court’s impartial ability to adjudicate the matter, because Mr. Hutchinson has documented speech and memory problems, and because any factual inconsistencies did not warrant dismissal. Appellants also contend that the trial court erred in denying Mrs. Hutchinson’s motion to enforce appellee’s settlement proposal. Finding no merit in any of appellants’ arguments, we affirm both orders and write only to address the trial court’s dismissal of appellants’ case.

Appellants, who leased an apartment from appellee, Plantation Bay Apartments, LLC, sued appellee for premises liability, failure to warn, and loss of consortium after Mr. Hutchinson fell on the sidewalk outside the couple’s apartment between 6:30 a.m. and 7:30 a.m. on November 12, 2002, while in the process of moving. No one witnessed the fall. According to appellants’ testimony, Mr. Hutchinson suffered cuts and scrapes on his arms and hands as a result of the fall. Appellants showed appellee’s property manager the cuts and scrapes as evidence of the fall. During her deposition, Mrs. Hutchinson testified that she and her husband continued moving items from their apartment on the day of the fall and that she did not recall whether anything else happened that day. Mr. Hutchinson similarly testified during his deposition that he could not recall what else happened that day. When questioned about the alleged scars that he had on his arms and hands as a result of the fall, Mr. Hutchinson pointed to the base of his left thumb. Mr. Hutchinson denied having suffered from headaches, tingling, neck and back pain, depression, or seizures prior to the fall.

In response to appellee’s first set of interrogatories, which asked appellants to list all doctors and medical facilities that Mr. Hutchinson had treated with in the previous ten years, appellants listed Dr. William Solomon and Dr. Edward Waits. Appellants did not list St. Vincent’s Medical Center (“St. Vincent’s”). Appellee subsequently discovered that Mr. Hutchinson had been treated in St. Vincent’s emergency department on November 12, 2002, the day of the fall, at approximately 9:30 a.m. for injuries suffered after one of his dogs attacked him. St. Vincent’s medical records made no reference to the fall but instead showed that Mr. Hutchinson suffered a deep laceration at the base of his left thumb and scratches and bites on his arms and hands as a result of the dog attack. The attack ended after the dog was shot to death.

Dr. William Solomon, Mr. Hutchinson’s primary physician, gave a videotaped sworn statement in which he testified that Mr. Hutchinson complained of seizures or seizure-like symptoms, headaches, dizziness, tingling, and back pain before the fall. Dr. Solomon diagnosed Mr. Hutchinson with depression prior to the fall. It was Dr. Solomon’s opinion that the cognitive difficulties Mr. Hutchinson was suffering from would affect his ability to accurately recall facts.

Dr. Manly Kilgore, one of Mr. Hutchinson’s treating physicians, testified that Mr. Hutchinson’s fall caused him to suffer a brain injury, which led to a craniotomy. Dr. Kilgore testified that his opinion regarding the cause of the brain injury would change had Mr. Hutchinson suffered from seizures, dizziness, and frequent headaches prior to the fall. Dr. Kilgore opined that Mr. Hutchinson’s ability to accurately recall facts and to testify would be affected by his injury and treatment.

After discovering the dog attack and Mr. Hutchinson’s prior symptoms, appellee moved to dismiss the complaint on the basis of -fraud. Following a hearing, during which Mr. Hutchinson testified, the trial court determined that appellants intentionally misrepresented Mr. Hutchinson’s pre-accident medical history by denying that he had certain symptoms prior to the fall and that the misrepresentations went directly to the material issue of whether the symptoms were caused by the fall. The court rejected appellants’ argument that Mr. Hutchinson suffered from memory problems, relying on Mr. Hutchinson’s hearing testimony and the fact that Mrs. Hutchinson, who did not suffer from any memory problems and who was present during Mr. Hutchinson’s depositions, did not attempt to correct or to add to Mr, Hutchinson’s testimony. The court noted that, despite the alleged memory problems, Mr. Hutchinson had no problem remembering and recounting the complete details of the obviously traumatic dog attack during the hearing. The court also determined that appellants failed to disclose St. Vincent’s or any of its physicians during discovery. Based upon the frequency of the misleading statements and omissions, the court concluded that appellants intentionally gave false and misleading answers calculated to stymie discovery on issues central to the case and that the fraud relating to the dog attack and Mr. Hutchinson’s medical history ■ permeated the entire proceeding. As a result, the court dismissed appellants’ case with prejudice. This appeal followed.

A trial court’s imposition of sanctions is reviewed for an abuse of discretion. Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572, 574 (Fla. 1st DCA 2003). “ ‘A trial judge has the inherent authority to dismiss actions based on fraud and collusion.’ ” Id. (citation omitted). The requisite fraud on the court occurs when “ ‘it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.’ ” Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (citation omitted). Because dismissal is the most severe sanction, it should be employed only in extreme circumstances. Id.

Appellants argue that the trial court erred in dismissing their case with prejudice because they did not engage in a clear and convincing scheme calculated to interfere with the judicial system’s ability to adjudicate the matter. We find this argument to be meritless. Not only did appellants attempt to conceal the dog attack, they also attempted to conceal Mr. Hutchinson’s past symptoms. As the trial court found, appellants gave false or misleading answers in an attempt to stymie discovery on issues central to the case. While appellants attempted to excuse the concealment based on Mr. Hutchinson’s alleged memory problems, the trial court rejected the evidence that Mr. Hutchinson was suffering from such problems. In doing so, the trial court relied on Mr. Hutchinson’s hearing testimony and the fact that Mr. Hutchinson had no problem remembering and describing the complete details of the dog attack. The trial court also relied on the fact that Mrs. Hutchinson, who does not suffer from any memory problems and who was present at Mr. Hutchinson’s depositions, never attempted to correct or add to Mr. Hutchinson’s testimony.

Appellants also assert that any factual inconsistencies with respect to Mr. Hutchinson’s medical history did not warrant dismissal. In support of their argument, appellants rely on Ruiz v. City of Orlando, 859 So.2d 574 (Fla. 5th DCA 2003), in which the Fifth District reversed an order dismissing the appellant’s complaint. The appellant had filed suit against the appel-lee, alleging that it had negligently repaired or maintained a section of a road. 859 So.2d at 574. During her deposition, the appellant denied any prior back injury, such as a compression fracture or broken vertebra. Id. When asked if she suffered from any back problems, the appellant explained that she suffered from arthritis. Id. The appellee moved to dismiss the case based upon its discovery that the appellant had suffered a prior back injury as a result of a car accident that had occurred thirty-seven years earlier. Id. at 575. In reversing and remanding for reinstatement of the case, the Fifth District determined that the record suggested only that the appellant had made conflicting statements and that it had not been proven that she was falsely testifying. Id. at 576. The Fifth District explained, “Except in the most extreme cases, where it appears that the process of trial has itself been subverted, factual inconsistencies, even false statements are well managed through the use of impeachment and traditional discovery sanctions.” Id.

As appellee argues, Ruiz is distinguishable from this case. Here, Mr. Hutchinson denied having experienced several symptoms prior to the alleged fall as compared to one condition in Ruiz. Additionally, Mr. Hutchinson was asked whether he suffered from the symptoms five years prior to the fall, as compared to Ruiz where the appellant’s back injury occurred thirty-seven years prior to the accident at issue. Moreover, this case does not only involve Mr. Hutchinson’s denial of past symptoms. It also involves appellants’ attempt to conceal the dog attack. As such, appellants’ reliance on Ruiz is misplaced.

Given appellants’ actions in this case, we conclude that the trial court did not abuse its discretion in dismissing their complaint with prejudice. See Distefano, 846 So.2d at 574 (affirming the order dismissing the appellant’s case because the appellant claimed to have no injuries from her 1992 accident when the evidence showed that she claimed injuries in 1992 similar to the injuries claimed from a 1998 accident, she failed to reveal a 1999 accident when asked about any subsequent accidents, she made misrepresentations and gave false information regarding the physical limitations she faced as a result of the 1998 accident, and she gave false information or made misrepresentations regarding prior similar injuries); Morgan v. Campbell, 816 So.2d 251, 253-54 (Fla. 2d DCA 2002) (affirming the order dismissing the appellants’ case and noting that while one of the appellants denied that she had ever experienced neck or low back pain before the accident, it was discovered she had been treated sixteen times based upon those complaints); Baker v. Myers Tractor Servs., Inc., 765 So.2d 149 (Fla. 1st DCA 2000) (affirming an order dismissing the appellant’s case because the appellant’s denial of a previous knee injury was directly related to a central fact necessary to establish his claim). We, therefore, affirm the order dismissing appellants’ case with prejudice. We also affirm the order denying Mrs. Hutchinson’s motion to enforce appellee’s settlement proposal.

AFFIRMED.

WEBSTER and DAVIS, JJ., concur.


text:
    Jordan Preshong BROWN, a minor, by and through her parents, Stephanie PRESHONG-BROWN and David Brown, and Stephanie Preshong-Brown, and David Brown, Individually, Petitioners, v. Anne D.M. GRAHAM, M.D., Anne D.M. Graham, M.D., P.A., and Perinatal Associates of the Palm Beaches, P.A. d/b/a The Perinatal Center, Kecia Gaither, M.D., Patricia K. Riner, MSN, CNM, Debra Jones, M.D., Debra Jones, M.D., P.A., Good Samaritan Hospital, Inc. d/b/a Good Samaritan Medical Center, United Health Care of Florida, Inc., United Health Care Services, Inc., Respondents.
    No. 4D06-12.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Rehearing Denied July 19, 2006.

      Scott M. Newmark of Sheldon J. Schlesinger, P.A., Fort Lauderdale, and Philip M. Burlington of Burlington & Rocken-bach, P.A., West Palm Beach, for petitioners.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for respondent Anne D.M. Graham, M.D. and Anne D.M. Graham, M.D., P.A.
    Keith Puya of Stephens, Lynn, Klein & LaCava, West Palm Beach, for respondent Kecia Gaither, M.D.
    Bonnie Sonneborn of Sonneborn, Rutter, Cooney & Klingensmith, P.A., West Palm Beach, for respondent Debra Jones, M.D. and Debra Jones, M.D., P.A.
    Roy Watson of Adams, Coogler, Watson & Merkel, P.A., West Palm Beach, for respondent Good Samaritan Hospital.
   PER CURIAM.

We grant a petition for writ of prohibition filed by the plaintiffs in a medical malpractice action against numerous defendants, including Good Samaritan Hospital. At the time the trial court judge was assigned to this case, in February 2003, she sua sponte issued a “Notice” stating: “During the time the undersigned Judge was in private practice, her former law firm represented Good Samaritan Hospital, Inc. in medical malpractice cases.” Petitioners did not move for disqualification at that time.

Prior to the motion to disqualify at issue here, Petitioners filed a motion for disqualification in December 2005, based on allegations that the judge had an antagonistic attitude toward Petitioners’ counsel stemming from a case when the judge was in private practice. The judge, after hearing argument on that motion, advised the parties that she had issued an order denying it the day before, but that, “Nothing that was said this morning changes that order.”

Petitioners claim that they subsequently learned that the judge had personally represented Good Samaritan Hospital in medical malpractice litigation, including during the time this case was pending. They allege that they also learned relevant information concerning the judge’s former relationship with St. Mary’s Hospital and with another defense firm in the case, information which gave them serious' concern.

On December 29, 2005, in open court, Petitioners requested disclosure from the judge on matters related to the judge’s relationship with the hospitals and their management, insurance adjusters, and counsel. The judge did not respond to this inquiry. The instant motion to disqualify was filed on or about January 3, 2006. In it, Petitioners alleged that they had discovered within ten days of the filing of the motion that the judge:

(1) was a defense lawyer who personally represented Good Samaritan Hospital, a defendant in this case;

(2) was counsel of record for Good Samaritan Hospital in another lawsuit in Palm Beach circuit court from 1999 until 2001;

(3) personally represented Good Samaritan in litigation for two years at the same time this incident occurred and this suit was pending, such that the judge allegedly “had privileged and confidential contact” with the lawyers, risk managers and insurance adjusters for Good Samaritan;

(4) personally represented St. Mary’s Hospital, which was owned by the same corporation as Good Samaritan, a sister hospital, shared the same insurance adjusters, risk managers and clinical policies, at the same time that this cáse was pending;

(5) personally represented St. Mary’s Hospital in a case in which a co-defendant was also a defendant in this case, and had a “community of interest and shared defense privilege with” that defendant;

(6) worked for a law firm which represents a defendant in this case, and is still close personal friends with lawyers in that firm;

(7) recused herself in another case because St. Mary’s was a defendant, but failed to disclose this recusal to Petitioners herein;

(8) failed to disclose in the “Notice” that the firm she worked for in 2002 had represented Good Samaritan and that she had personally represented the hospital;

(9) refused to reveal the extent of her relationships with defense counsel, adjusters, risk managers and defendants;

(10) refused to reveal what information she was exposed to by Good Samaritan risk managers, insurance adjusters and lawyérs about this case prior to taking the bench; and

(11) denied the earlier motion to disqualify filed in this case in advance of the hearing on the motion, but failed to disclose that fact until after argument of counsel.

The response to this court’s order to show cause, filed by the defendants/respondents did not materially dispute Petitioners’ factual claims.

Rule 2.160(e) of the Florida Rules of Judicial Administration, provides that the motion shall be filed within ten (10) days of discovery of the facts on which it is based. Petitioners alleged that they filed within ten days of discovery, but without further detail or explanation. We recognize that it could be argued that Petitioners have known about this judge being assigned the case for about one year, and could have discovered the grounds for disqualifying her well before now. Nevertheless, this court’s opinion in Bethesda Memorial Hospital, Inc. v. Cassone, 807 So.2d 142 (Fla. 4th DCA 2002), supports a conclusion that the motion was timely filed. There, Bethesda sought to have the presiding judge recused because one of its affiliate companies, Focus Financial, had a debt collection matter involving the judge’s late wife’s estate. Id. at 143. Notwithstanding that the case had been pending before the presiding judge for five months before the recusal motion was filed, this court said:

[T]he sworn motion stated that it was filed within ten days after discovery of the facts constituting the grounds for recusal. This affirmation is not refuted by the record, and there is no basis therein to find that the motion was not timely filed. See Marcotte v. Gloeckner, 679 So.2d 1225 (Fla. 5th DCA 1996) (accepting the sworn allegation of timeliness absent any indication in the record otherwise).

Id. at 144.

We conclude that Petitioners’ motion was legally sufficient and that Petitioners were not required to conduct an investigation relating to the impartiality of the judge.

Disqualification of a trial judge is governed procedurally by Florida Rule of Judicial Administration 2.160 and substantively by section 38.10, Florida Statutes, and the case law applying it. Rule 2.160(d)(1) provides: “[a] motion to disqualify shall show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.... ”

Prior representation, in and of itself, does not automatically mandate recu-sal. See, e.g., Perona v. Fort Pierce/Port St. Lucie Tribune, 763 So.2d 1188 (Fla. 4th DCA 2000). Here, however, as Petitioners argue, the judge would have had a conflict of interest preventing her, if she had remained in practice, from representing them given her prior representation of Good Samaritan and, therefore, should not be deemed impartial. This was sufficient to require recusal.

Therefore, the petition is granted. We withhold issuing a writ, as we assume trial court compliance.

STONE, GROSS and TAYLOR, JJ., concur.


text:
    Armando WARENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-419.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Rehearing Denied July 12, 2006.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant was tried by jury and convicted of aggravated fleeing and eluding a law enforcement officer. We affirm his judgment of conviction and sentence, finding no fundamental error in the jury instructions given in this case. We further find no error in the denial of the defendant’s motion to suppress his statement, because the Miranda warnings given to the defendant in Spanish were identical to those we found to be adequate in Canete v. State, 921 So.2d 687 (Fla. 4th DCA 2006).

GUNTHER, FARMER and TAYLOR, JJ., concur.


author: KLEIN, J.

text:
    Rosolvo JEAN-BAPTISTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-952.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Rehearing Denied July 11, 2006.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeanine M: Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

The trial court found that appellant had violated his probation based in part on the testimony of his substance abuse counsel- or, who testified that appellant had not finished his treatment, that he was discharged because he tested positive for marijuana, and that he had admitted to her that he had used drugs. Appellant argues that his communications with his counselor were privileged as mental health treatment communications under section 90.503, Florida Statutes (2004). We disagree.

The state argues that when appellant pled guilty to the earlier crime for which adjudication was withheld, and he was placed on eighteen months’ probation, he waived the privilege. Appellant’s probation agreement provided that he would have a substance abuse evaluation performed and that he would successfully complete recommended treatment. It also provided he would submit to random drug testing.

In Saenz v. Alexander, 584 So.2d 1061 (Fla. 1st DCA 1991),. a physician was charged with sexual battery and, instead of being prosecuted, signed a deferred prosecution agreement providing for twenty-four months’ probation to be supervised by the DOC. When the victim filed a civil suit against him, the trial court allowed her to depose the mental health professionals who treated the doctor, and the doctor petitioned for certiorari on the ground of privilege. The first district denied the petition, explaining:

By signing the deferred prosecution agreement, Saenz indicated that he intended his subsequent communications with the psychotherapists to be communicated to a third person other than those set out in section 90.503(1), i.e., his probation officer. These communications therefore did not constitute “confidential communications” to which the privilege would apply.... Like the petitioner in Carson v. Jackson [466 So.2d 1188 (Fla. 4th DCA 1985) ], petitioner voluntarily chose to avail himself of a benefit offered him (Carson avoided incarceration, petitioner avoided prosecution), which was conditioned upon the diagnosis and treatment of his mental state, and communicated with psychotherapists with the knowledge that his communications would be conveyed to others.

Saenz, 584 So.2d at 1063.

Applying Saenz here, we conclude that appellant waived any privilege which may have existed under the statute. We also reject his argument that there was no evidence of a willful and substantial violation.

Affirmed.

SHAHOOD and TAYLOR, JJ., concur.


text:
    Joe BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-4568.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Rehearing Denied July 11, 2006.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003); Freeman v. State, 787 So.2d 152 (Fla. 4th DCA 2001).

WARNER, GROSS and HAZOURI, JJ., concur.


text:
    Leon Andrew SIMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1520.
    District Court of Appeal of Florida, First District.
    May 23, 2006.
    Rehearing Denied June 29, 2006.
    Leon Andrew Sims, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(A).

WOLF, BROWNING, and LEWIS, JJ., concur.


text:
    Patrick C. SCHMIDT, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4315.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2006.
    Rehearing Denied June 13, 2006.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McCune, 772 So.2d 596 (Fla. 5th DCA 2000).

MONACO, TORPY and LAWSON, JJ., concur.


author: GREEN, J.

text:
    Shaun D. FREDERICK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2215.
    District Court of Appeal of Florida, Third District.
    May 24, 2006.

      Bennett H. Brummer, Public Defender and Marti Rothenberg, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Linda S. Katz, Assistant Attorney General, for appellee.
    Before GREEN, RAMIREZ, and SHEPHERD, JJ.
   GREEN, J.

After a jury trial, appellant Shaun D. Fredrick was convicted and sentenced for armed burglary, two counts of kidnapping with a firearm, armed robbery with a firearm and resisting an officer without violence, all stemming from an. after-hours break-in of a McDonald’s restaurant. On this appeal, Frederick raises three issues.

First, he asserts that the trial court erred in denying his motion for judgment of acquittal because the circumstantial evidence was insufficient, beyond a reasonable doubt, to establish his identity as one of the perpetrators of these charges and failed to exclude the reasonable hypothesis of innocence. We disagree. Based upon our careful review of the record evidence, we conclude that the motion for judgment of acquittal was properly denied because the circumstantial and forensic evidence, viewed in the light most favorable to the state, refuted the appellant’s reasonable hypothesis of innocence. See Orme v. State, 677 So.2d 258, 261 (Fla.1996); State v. Law, 559 So.2d 187, 189 (Fla.1989). See also Williams v. State, 884 So.2d 1097, 1099 (Fla. 5th DCA 2004).

As his second point on appeal, Frederick argues that his conviction and sentence for two counts of kidnapping cannot stand because his movement and confinement of two McDonald’s employees to a freezer was slight, inconsequential, and incidental to the other felony of robbery. We agree.

The trial evidence established that three men broke into the restaurant. One "of the men was armed; he ordered the manager into the office to open the safe. As this was occurring, a second perpetrator ordered two other employees to get down on the floor. Immediately thereafter, the third perpetrator ordered these two employees to get up and walk into the freezer. The two employees did so and were told to stay there. The door was then closed behind them. After the manager gave the armed perpetrator the money from the safe, all three robbers fled the restaurant. The manager then advised the two employees in the freezer that they could come out. The two employees pushed the freezer door open and came out.

In essence, the state’s evidence in support of the kidnapping charges in this case consisted of the fact that the perpetrator ordered two restaurant employees to go into the freezer, closed the door behind them, and told them to remain in there. This evidence is insufficient, as a matter of law, to sustain the kidnapping convictions. Section 787.01, Florida Statutes (2000), defines “kidnapping” as follows:

(l)(a) The term “kidnapping” means forcibly, secretly, or by threat confining, abducting, or imprisoning another person against her or his will and without lawful authority, with intent to:
1. Hold for ransom or reward or as a shield or hostage.
2. Commit or facilitate commission of any felony.
3. Inflict bodily harm upon or to terrorize the victim or another person.
4. Interfere with the performance of any governmental or political function.

In Faison v. State, 426 So.2d 963 (Fla.1983), the Supreme Court recognized that a literal interpretation of. subsection 787.01(l)(a)2 would lead to a kidnapping conviction for “any criminal transaction which inherently involves the unlawful confinement of another person, such, as robbery or sexual battery.” Faison, 426 So.2d at 966 (quoting Mobley v. State, 409 So.2d 1031, 1034 (Fla.1982)). To circumvent this, the Faison court adopted the following three-prong test to determine whether the defendant’s acts are incidental to a primary charge or constitute the separate crime of kidnapping:

If a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

426 So.2d at 965 (quoting State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720, 731 (1976)). See Berry v. State, 668 So.2d 967 (Fla.1996). All three prongs must be satisfied to support a kidnapping conviction. Richardson v. State, 875 So.2d 673, 677 (Fla. 1st DCA 2004); Cathcart v. State, 643 So.2d 702, 703 (Fla. 4th DCA 1994).

We must reverse the kidnapping convictions in the instant case because the evidence adduced at trial does not support the first prong of Faison. See Walker v. State, 604 So.2d 475, 476 (Fla.1992)(“Be-cause the movement and confinement were slight, inconsequential, and merely incidental to the robberies [the defendant] cannot be convicted of kidnapping.”). See also Elozar v. State, 825 So.2d 490, 491 (Fla. 5th DCA 2002); Bruce v. State, 612 So.2d 632, 634 (Fla. 3d DCA 1993); McCutcheon v. State, 711 So.2d 1286, 1289 (Fla. 4th DCA 1998); Formor v. State, 676 So.2d 1013, 1014 (Fla. 5th DCA 1996); Wilcher v. State, 647 So.2d 1013 (Fla. 4th DCA 1994); Friend v. State, 385 So.2d 696, 697 (Fla. 1st DCA 1980). In Berry v. State, .the Supreme Court construed the first Faison prong to mean that “there can be no kidnapping where the only confinement involved is the sort that, though not necessary to the underlying felony, is likely to naturally accompany it.” 668 So.2d at 969. The court went on to point out:

For example, if Berry and the others had confined the victims by simply holding them at gunpoint, or if the robbers had moved the victims to a different room in the apartment, closed the door, and ordered them not to come out, the kidnapping conviction could not stand. In both hypothetical, any confinement accompanying the robbery would cease naturally with the robbery. By contrast, in this case the robbers left the scene of the robbery without untying the victims, thereby leaving them both in a precarious and vulnerable state for a period beyond the robbery. Like the situation where the victim of a forcible felony is barricaded or locked in a room or closet, the confinement continued even after the robbery had ceased. This is not the sort of confinement that is incidental to robbery.

Id. (emphasis added).

Thus, in this case, where the victims were merely ordered into the freezer and told to remain in there with the door closed during the course of the robbery, the appellant’s convictions and sentences for kidnapping cannot stand and must be vacated. The victims’ confinement ceased once the robbers left the restaurant and the manager alerted them that they were free to come out of the freezer. See Berry. We conclude that their confinement was the sort of confinement likely to naturally accompany the underlying robbery felony. Id.; see McCutcheon, 711 So.2d at 1289.

For his final issue on this appeal, the appellant challenges his conviction and sentence for one of his kidnapping charges on the grounds that the victim failed to testify and this victim’s identity was not otherwise established at trial. Given our reversal of this kidnapping conviction and sentence, this issue is rendered moot.

Thus, for all of the foregoing reasons, we reverse the two armed kidnapping convictions and sentences, and remand with directions that they be vacated. In all other respects, we affirm.

Reversed and remanded in part and affirmed in part.

      . Although this argument was not made below, the State commendably concedes that if the evidence adduced was legally insufficient to constitute a kidnapping, this issue may be raised as fundamental error. Sanders v. State, 905 So.2d 271, 273 (Fla. 2d DCA 2005) (lack of preservation is not a bar to relief "when the evidence is insufficient to show that a crime was committed at all.... '[A] conviction imposed upon a crime totally unsupported by evidence constitutes fundamental error.’ ”)(citing F.B. v. State, 852 So.2d 226, 230 (Fla.2003)).