author: SILBERMAN, Judge.

text:
    LAND MANAGEMENT OF FLORIDA, INC., a Florida corporation, and Cross Country Land Trust, Inc., a Florida corporation, Appellants, v. HILTON PINE ISLAND LTD., a Florida Limited Partnership, Barakot Ltd., Geoffrey Bell, Individually, John H.C. Lee, as Ancillary Trustee In Bankruptcy of Ian Geoffrey Bell and Barakot Ltd., and Robert Lindahl, as Trustee of the FBL Land Trust, Appellees. Land Management of Florida, Inc., a Florida corporation, Appellant, v. Hilton Pine Island Ltd., a Florida Limited Partnership, Barakot Ltd., Geoffrey Bell, Individually, John H.C. Lee, as Ancillary Trustee in Bankruptcy of Ian Geoffrey Bell and Barakot Ltd., Robert Lindahl, as Trustee of the FBL Land Trust, and Cross Country Land Trust, Inc., a Florida corporation, Appellees.
    Nos. 2D05-131, 2D05-1882, 2D06-3620.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2008.

      W. Gus Belcher, II of Nuckolls, Johnson, Belcher & Ferrante, P.A., Fort Myers, and Stanley Jay Bartel of Law Offices of Stanley Jay Bartel, The Villages, for Appellants.
    J. Matthew Belcastro of Henderson, Franklin, Starnes & Holt, Fort Myers, for Appellee John H.C. Lee.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

In case number 2D05-131, Appellants Land Management of Florida, Inc., and Cross Country Land Trust, Inc. (jointly referred to as the buyers), challenge an amended partial summary judgment that disposes of their specific performance action as to Appellee John H.C. Lee, as Ancillary Trustee in Bankruptcy of Ian Geoffrey Bell and Barakot Ltd. The buyers raise several issues, but dispositive of this case is that Lee, as movant, failed to prove the nonexistence of any genuine issue of material fact and that he was entitled to judgment as a matter of law. Therefore, we reverse and remand for further proceedings.

In case number 2D05-1882, the buyers challenge an amended partial and final summary judgment that disposes of their specific performance action as to Appellees Hilton Pine Island, Ltd. (HPI), and Robert Lindahl, as trustee of the FBL Land Trust. Again, we reverse and remand for further proceedings because HPI and Lin-dahl, as movants, failed to prove the nonexistence of any genuine issue of material fact and that they were entitled to judgment as a matter of law.

In case number 2D06-3620, Land Management appeals the denial of motions to vacate the summary judgments that the trial court had granted. Based on our reversal of the summary judgments in case numbers 2D05-131 and 2D05-1882, we dismiss the appeal in case number 2D06-3620 as moot.

Facts

In May 2003, the buyers filed their complaint for specific performance and other relief against HPI, Barakot Ltd., Geoffrey Bell, and Lindahl. The operative pleading here is the sworn Amended Complaint (Corrected), filed on July 15, 2004 (the Complaint), in which the buyers added Lee as a defendant. The dispute arose from three real estate contracts that Cross Country entered into in May 2002 for the purchase of three adjacent parcels of real property on Pine Island in Lee County. Cross Country entered into a contract to purchase “Parcel A” from HPI, “Parcel B” from Lindahl, and “Parcel C” from Bara-kot Ltd. and Bell. Cross Country assigned the three contracts to Land Management on September 11, 2002.

Attached to the sworn Complaint are the three contracts, each of which contained a simultaneous closing clause that provided as follows:

The parties hereto acknowledge and agree that this offer to purchase is subject to a simultaneous acceptance of all other contracts included to purchase the entire project known as The Villages of Pine Island, and will also be subject to a simultaneous closing thereof.
Those parcels include: Hilton-Pine Island, Ltd.; Barakot Ltd. + Geoffrey I. Bell; and FBL Land Trust c/o Robert Lindahl, Trustee.
The effective date of the three separate contract(s) shall be modified to include that last date of which all of the individual sellers have executed and accepted this offer to purchase. It is the Buyer’s intention to purchase all properties located within the Villages of Pine Island, or none of them. In the event that any of the seller’s hereto do not accept these offer(s) to purchase prior to the expiration of the time for acceptance period of May 31st, 2002 these offers to purchase shall become null and void.

With respect to the provision for a simultaneous closing, the buyers alleged in the Complaint as follows:

8. Each of the sellers thus understood and readily agreed that the purchaser was only interested in purchasing all three (3) parcels simultaneously and that if any one of the three (3) parcels was not ready for closing, the other two (2) parcels would have to remain in abeyance pending the readiness of the not-yet-ready parcel for closing.
9. The conduct and the actions of the sellers, and their counsel, from and after execution of the initial Contracts (Exhibits “A”, “C” and “E”), clearly indicated that all three sellers understood and agreed that all three (3) parcels would have to be ready for closing, at a simultaneous closing, before the purchaser could be placed in default as to any one contract.

The buyers also alleged that outstanding Development Order 7-03-83 was of vital importance for the Village of Pine Island project. They asserted that a clause in the contracts- “made it a condition for closing that the sellers provide proof to the purchaser” that the Development Order “was not only in full force and effect but that it had been buttressed by active construction within the requisite code period — in this case eighteen (18) months — so that following closing the purchaser would have time to commence construction on the project under an open and viable Development Order.” The contracts required the sellers to convey marketable title, subject to matters of record, including the Development Order, “provided there exists at closing no violation of the foregoing and none of them prevents Buyer’s intended use” as described in the contracts.

The buyers further alleged that counsel for the sellers of Parcels A and B met after execution of the contracts and delegated to Attorney Barker the duty to apply for proof that the Development Order was “outstanding and viable and that construction had been commenced on the project, in a manner sufficient to satisfy the County authorities, so that immediately upon purchase the purchaser would have a viable project able to be developed under a usable Development Order.”

The documents attached to the Complaint included an addendum to the Lin-dahl contract for Parcel B, which extended closing to January 15, 2003. The addendum also stated that “[t]he due diligence period shall be extended until ten (10) days after Buyer is furnished a letter from Lee County, Florida that the Subject D.O. is still in effect[.]” A letter from Lee County dated March 20, 2003, stated that the Development Order would be in effect so long as there were “no periods of construction inactivity which exceeded] 18 months.” An addendum to the HPI contract for Parcel A extended the closing date to “on or before 60 days from the issuance of the vegetation-clearing and removal permit from Lee County[.]” Lee County issued a vegetation permit on May 20, 2003.

The buyers also alleged in the Complaint that since the filing of the original complaint in May 2003, Barakot Ltd. and Bell had filed ancillary bankruptcy proceedings in the Middle District of Florida. The buyers asserted that once any of the sellers of the three parcels became aware that Barakot Ltd. and Bell were in bankruptcy proceedings, it was necessary to institute an ancillary bankruptcy proceeding for the bankrupt seller “to obtain authority from the bankruptcy court to hon- or Plaintiffs contracts with Barakot and Bell.” The buyers alleged that the sellers neglected to inform the buyers of the bankruptcy and to amend the title commitment. Moreover, they alleged that Attorney Barker cooperated in obtaining approval in the bankruptcy court not of the buyers’ contract but of a competing contract to purchase Parcel C.

Summary Judgment

Review of a summary judgment is by the de novo standard. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. It is well established “ ‘that the burden to prove the non-existence of genuine triable issues is on the moving party, and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.’ ” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000) (quoting Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966)). This court has recognized “that the merest possibility of the existence of a genuine issue of material fact precludes the entry of final summary judgment.” Id.

Case Number 05-131

Lee moved for summary judgment and filed his affidavit and supporting documents. It is undisputed that at the time Bell and Barakot Ltd. executed the contract for Parcel C, Lee was the bankruptcy trustee for Bell. The High Court of Justice of the United Kingdom appointed Lee as Bell’s bankruptcy trustee on January 21, 1997. Lee contended that Bell’s bankruptcy estate included a jointly held interest in Parcel C and that it was part of the bankruptcy estate when Bell executed the contract in May 2002. In the affidavit Lee alleged, “On and after January 21,1997, all documents necessary to sell or transfer the assets in Bell’s bankruptcy estate would have to be executed by me.” Lee did not sign the real estate contract for Parcel C or its addendum, and Lee further alleged that he did not authorize anyone else to sign on his behalf. Lee contended that because he did not sign or authorize the contract, it was not a valid contract to sell Parcel C, thus precluding specific performance of the contract.

Based on documents that Lee relied upon, the buyers disputed his assertions. The buyers contended that the documents established that Barakot Ltd. was the only owner of Parcel C at the time of execution of the contract and that it was therefore unnecessary for Lee to execute the contract as Bell’s bankruptcy trustee. Our review of those documents reflects that a genuine issue of material fact remains in dispute.

Lee contended that an October 1997 judgment in a quiet title action shows that Bell had a jointly held interest with Bara-kot Ltd. in Parcel C and that Bell’s jointly held interest was part of the bankruptcy estate. The pertinent portion of the October 1997 judgment stated as follows:

The title of Plaintiffs, BARAKOT, LTD. and I. GEOFFREY BELL, to the following described real property in Lee County, Florida, see attached Exhibit A, is a good title against the claims or purported claims of the Defendants, ALLENDALE, LTD., GEORGE DAVIDSON, and CUMBRIA DEVELOPMENT CORPORATION, their grantees, successors, assigns and creditors, and all other parties claiming by, through, under, or against them; all parties having or claiming to have any right to common title or interest in that property; and of all persons claiming by, through, or under ALLENDALE, LTD., GEORGE DAVIDSON, and CUMBRIA DEVELOPMENT CORPORATION, since the filing of the Notice of Lis Pendens; and those claims or purported claims are cancelled; and title to the property is forever quieted in favor of BARAKOT, LTD.

(Emphasis added.) Although the judgment determined that the title of Barakot Ltd. and Bell was a good title against the described claims, the judgment went on to quiet title in favor of only Barakot Ltd.

Lee also relied on a consent to lien recorded in 1998 to support his position. The consent to lien stated, however, that Barakot Ltd. was “the owner and holder of’ the property at issue. The consent to lien also stated that Barakot Ltd. and Bell granted Lee, as bankruptcy trustee, a lien against the property in the amount of $360,000.

Lee has failed to meet his burden as the movant on summary judgment to demonstrate the nonexistence of genuine issues of material fact. Based on the October 1997 judgment and the 1998 consent to lien, a genuine issue of material fact appears to exist as to whether Barakot Ltd. owned Parcel C or whether Barakot Ltd. and Bell owned Parcel C when the sales contract was executed for that parcel. If only Barakot Ltd. owned Parcel C, then Lee’s signature as Bell’s bankruptcy trustee would have been unnecessary on the 2002 contract and the contract would not have been invalid as an unexecuted contract.

Therefore, we reverse the amended partial summary judgment in favor of Lee and remand for further proceedings.

Case Number 05-1882

Lindahl filed a motion for summary judgment, in which HPI joined. Lindahl filed a supporting affidavit, asserting that the buyers did not close on the property by the extended closing date of January 15, 2003. He stated that the buyers asked for another, extension but that he refused it and demanded closing. Lindahl asserted that the FBL Land Trust met all the requirements for closing.

Lindahl also asserted in his affidavit that “[o]ne of the owners of one of the other two parcels is in bankruptcy and neither I, nor the Plaintiffs can acquire that property since it is within the jurisdiction of the Bankruptcy Court.”

The trial court granted summary judgment in favor of Lindahl and HPI based, first, on the grant of summary judgment in favor of Lee. The court determined that the contract for Parcel C was not subject to specific performance because at the time of contracting, Parcel C was under the control or ownership of Lee, as bankruptcy trustee, and no valid contract existed between the buyers and Lee. Because we have reversed Lee’s summary judgment, that summary judgment is no longer a basis for summary judgment in favor of Lindahl and HPI.

The trial court further found that the facts in Lindahl’s affidavit were uncontro-verted and that there were no genuine issues of material fact. The court referred to the buyers’ allegation that they “are ready, willing and able to purchase the subject properties and are willing to close once Parcel C is ready for closing.” The trial court found that the buyers were not entitled to specific performance because they asked for specific performance as to all parcels only when Parcel C was available to close. The court added that “[i]t is impossible for any party to this suit to enforce the contract” with regard to Parcel C. However, the buyers alleged in then-sworn Complaint that it was the misconduct of the sellers that prevented then-ability to close on Parcel C. The evidence of record does not refute the buyers’ allegations of collusion by the sellers and does not establish that the buyers are precluded, as a matter of law, from obtaining specific performance. Thus, we reject the trial court’s conclusion that there were no genuine issues of material fact.

Lindahl also asserted in his affidavit that FBL Land Trust met all requirements for closing, that the closing date was January 15, 2003, and that he (as trustee) demanded closing. However, Lin-dahl’s affidavit did not address whether the parties had agreed that the buyers would not be in default until all three parcels were ready for closing. The buyers alleged in paragraphs 8 and 9 of then-complaint, quoted above, that the parties understood that the buyers would not be in default until all three parcels were ready for closing. One clause in all three contracts called for a simultaneous closing. One addendum referred to the “interrelated” contracts. The HPI contract contained an addendum that extended the closing date to on or before sixty days from the issuance of the vegetation permit, which was issued on May 20, 2003.

Lindahl’s affidavit did not address the interrelation among the three contracts and addenda or the allegation that the parties agreed to sell the three parcels together when all three were ready to close. Because genuine issues of material fact remain in dispute, Lindahl and HPI failed to meet their burden, as the mov-ants, to obtain a summary judgment. Therefore, we reverse the summary judgment in favor of Lindahl and HPI and remand for further proceedings.

Conclusion

Because the trial court erred by entering summary judgments against the buyers, case numbers 2D05-131 and 2D05-1882 are reversed and remanded for further proceedings, and case number 2D06-3620 is dismissed as moot.

Reversed and remanded in part and dismissed in part.

FULMER and DAVIS, JJ., Concur.

      . The sworn Complaint alleged that although Cross Country assigned the contracts, it retained an equitable interest in the acquisition.

      . Although the documents suggest that Bara-kol Ltd. may have solely owned Parcel C at the time the contract for sale was executed, because of the wording in the documents and in light of the record as a whole, we decline the buyers’ invitation to declare that Barakot Ltd.'s ownership at the pertinent time is an undisputed, established fact.

      . It also appears to still be in dispute which party was in default, if any, and for what reason. Further, the issues relating to the sellers' alleged misconduct appear to remain unresolved.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    M.A.R., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1494.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2008.
    James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

We affirm the juvenile court’s findings of guilt and dispositions of probation, but we remand for correction of the judgment entered on February 16, 2006, to reflect that M.A.R. was found guilty of simple battery rather than aggravated battery.

Affirmed; remanded.

CASANUEVA, CANADY, and LaROSE, JJ., Concur.


author: NORTHCUTT, Chief Judge.

text:
    Christian C. RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4530.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2008.
    James Marion Moorman, Public Defender, and John Thor White, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Chief Judge.

We affirm without comment, but we point out that the judgment and sentences list the defendant’s name in many places as Christopher Ortiz. This appears to be a scrivener’s error, and we remand for its correction.

Affirmed and remanded.

FULMER and WHATLEY, JJ., Concur.


text:
    Anthony McKOY and Paulette R. McKoy, Appellants, v. Michael DeSILVIO, Personal Representative of the Estate of William J. Hayes, Appellee.
    No. 2D06-4531.
    District Court of Appeal of Florida, Second District.
    Feb. 8, 2008.
    Richard P. Catón of Williamson, Diamond & Catón, P.A., Seminole, for Appellants.
    Jerry Kahn of Law Office of Jerry Kahn, Miami Beach, for Appellee.
   NORTHCUTT, Chief Judge.

As personal representative for the estate of William J. Hayes, Michael DeSilvio filed a quiet title suit attacking two quitclaim deeds purporting to transfer interests in a parcel of real property owned by Hayes at the time of his death. The quitclaim deeds were executed by two of Hayes’s sisters, Eileen Earnshaw and Catherine Herron, and the deeds transferred any interest they had in the property to Anthony and Paulette McKoy. The McKoys now appeal an adverse summary judgment that declared the deeds void. We affirm as to one deed and reverse as to the other.

Both deeds recited “consideration of the sum of $1.00 and other good and valuable consideration.” In the quiet title action, DeSilvio alleged that the deeds failed for lack of consideration. There were disputed issues of material fact on this issue. See Diaz v. Rood, 851 So.2d 843, 846 (Fla. 2d DCA 2003) (stating that “a promise, no matter how slight, can constitute sufficient consideration so long as a party agrees to do something that they are not bound to do”) (citations omitted). Notwithstanding, the circuit court ruled that the deeds were void due to a lack of consideration. In granting DeSilvio’s motion for summary judgment on this ground, the circuit court erred. See Fla. R. Civ. P. 1.510(c) (directing that summary judgment shall be granted only when the record evidence shows “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”); see also Holl v. Talcott, 191 So.2d 40 (Fla.1966). Accordingly, we reverse on this point.

Our reversal affects only the Her-ron deed, however, because the Earnshaw deed suffers from an additional deficiency. As alleged in DeSilvio’s motion for summary judgment, the Earnshaw deed contained the signature of only one subscribing witness. As to this deed, the summary judgment was also based on the undisputed fact that the deed was not signed by the requisite number of subscribing witnesses. See § 689.01, Fla. Stat. (2003) (requiring presence of two subscribing witnesses to convey real estate).

The McKoys claimed that the notary also acted as a subscribing witness. But she did not sign the deed as such, and the McKoys did not file a counterclaim seeking to reform the deed. See Smith v. Royal Auto. Group, Inc., 675 So.2d 144, 153-54 (Fla. 5th DCA 1996) (stating that reformation action may be used to supply missing signature). In any event, any such action would have required that the original grantor be joined as an indispensable party. See Palm v. Taylor, 929 So.2d 566 (Fla. 2d DCA 2006) (reversing judgment reforming deed when claim was not raised until amendment of complaint during trial, over objection, and when original grantor was not party to suit). Therefore, although we reverse the summary judgment as to Herron’s deed, we affirm the summary judgment as to Earnshaw’s deed.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WHATLEY, JJ., Concur.

      . This case involves property at 1145 Highland Street in St. Petersburg. These same parties have recently appeared in this court regarding adjacent property at 866 Marion Court South. DeSilvio v. McKoy, 941 So.2d 374 (Fla. 2d DCA 2006) (table decision).


text:
    Cordarin Jerome SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6107.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2008.
    Petition Alleging Ineffective Assistance of Appellate Counsel-Original Jurisdiction. Cordarin Jerome Simmons, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(A).

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


text:
    Michael Jerome LARKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4129.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2008.
    Michael Jerome Larkins, pro se, Appellant.
    Bill McCollum, Attorney General, Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order summarily denying his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the record does not conclusively refute Appellant’s claim, we reverse.

Appellant stated a facially sufficient claim for jail time credit where he provided the dates for which he is seeking credit and the date on which he was sentenced, and alleged that the sentencing transcript would show that he is entitled to credit. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994); State v. Mancino, 714 So.2d 429, 433 (Fla.1998). The trial court summarily denied Appellant’s motion without providing any record attachments refuting his claim. We therefore reverse the summary denial of Appellant’s motion, and remand for the trial court to either attach the requisite portions of the record or to grant additional jail credit, as the record dictates.

REVERSED and REMANDED.

DAVIS, BENTON, and THOMAS, JJ., Concur.


text:
    Siddiq B.A. ASAD, Appellant, v. DEPARTMENT OF REVENUE, o/b/o, Leslie F. JONES, Appellee.
    No. 1D07-4394.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2008.
    Siddiq B.A. Asad, pro se, Appellant.
    Bill McCollum, Attorney General, William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an order of the circuit court which approved and adopted the finding of a child support enforcement hearing officer determining appellant to be the father of a child. Because appellant contested the paternity issue, the hearing officer was without jurisdiction to resolve this issue under Florida Rule of Family Law Procedure 12.491(e) and appellee properly confesses error. We accordingly reverse the order on appeal and remand to the circuit court for further proceedings before a circuit judge on the paternity question.

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


text:
    Jose Luis BARAJAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3947.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.
    Jose Luis Barajas, Avon Park, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Jose Luis Barajas appeals the denial of his rule 3.850 motion. At a hearing on some of his claims, the state agreed with Barajas that his conviction for count V should be vacated based on a double jeopardy violation. The trial court accepted the concession and recognized that this would require a new sentencing hearing with a corrected scoresheet. The written order vacated the conviction and sentence on count V, but Barajas was not re-sentenced on the remaining charges. On appeal, the state agrees that re-sentencing is required. See State v. Anderson, 905 So.2d 111 (Fla.2005) (holding that the proper test for determining whether re-sentencing is required as a result of a scoresheet error raised in a 3.850 motion is whether the record conclusively shows the same sentence would have been imposed with a correct scoresheet); Leyva v. State, 929 So.2d 1210 (Fla. 4th DCA 2006). Accordingly, we reverse the circuit court’s order and remand for the court to re-sentence Barajas on the remaining charges with a corrected scoresheet.

We affirm the denial of Barajas’ remaining claims.

STONE, FARMER and MAY, JJ., concur.


text:
    David WARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4965.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.

      David Ward, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s rule 3.800(a) motion to correct illegal sentence, which challenged the Department of Correction’s application of his court-ordered jail time credit, without prejudice to his seeking extraordinary relief from the Leon County circuit court after he has exhausted his administrative remedies with the department. See Grace v. State, 920 So.2d 719 (Fla. 4th DCA 2006). See also Bush v. State, 945 So.2d 1207, 1213-14 (Fla.2006) (holding the department is entitled to litigate in the circuit court in Leon County, where its central office is located).

TAYLOR, HAZOURI and MAY, JJ., concur.


text:
    Hugh MESSEC a/k/a Joe Hopkins, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-135.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.
    Hugh Messéc a/k/a Joe Hopkins, Rai-ford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Pugh v. State, 954 So.2d 1254 (Fla. 4th DCA 2007); Colson v. State, 830 So.2d 194 (Fla. 4th DCA 2002).

WARNER, MAY and DAMOORGIAN, JJ., concur.


author: MONACO, D., Associate Judge.

text:
    Helen B. RAWLS, Appellant, v. LEON COUNTY, Florida, a charter county and a political subdivision of the State of Florida, Appellee.
    No. 1D07-3461.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2008.

      Jolen Rawls Wolf, Tallahassee, for Appellant.
    Herbert W.A. Thiele and Daniel J. Rigo, Tallahassee, Florida, for Appellee Leon County, and Alice A. Hardy, Tallahassee, for Appellee Leon County Tax Collector.
   MONACO, D., Associate Judge.

This appeal arises from an order of taking rendered by the circuit court pursuant to chapter 74, Florida Statutes (2007), in favor of the condemning authority, Leon County, and against the landowner, Helen B. Rawls, and certain other defendants. Mrs. Rawls seeks review of the order of taking, asserting that it was entered without the County properly proving a necessity for the taking. Because there was substantial competent evidence sufficient to support the finding of necessity, we affirm.

Leon County brought an eminent domain proceeding in order to acquire a parcel of real estate of slightly less than two acres owned by Mrs. Rawls and located along Ox Bottom Road in Leon County. According to the resolution of the Board of County Commissioners of Leon County authorizing the taking, the purpose for the acquisition was to extend Kerry Forrest Parkway from its existing terminus in a subdivision that had been established as a Development of Regional Impact (“DRI”) , to Ox Bottom Road; that is to say, to connect one road to another. The road is being designed and constructed pursuant to a joint project agreement between the County and the City of Tallahassee. The resolution reflected that the extension project had been identified in the long range transportation plans of the Capital Region Transportation Planning Agency, and that the construction was consistent with the relevant comprehensive plan. By the resolution the Board of County Commissioners determined that the extension project was for a valid public purpose, and that the taking was “necessary for the construction and maintenance of the project.”

The County sought the immediate acquisition of the property in accordance with chapter 74, Florida Statutes. Mrs. Rawls resisted the “quick taking.” At the order of taking hearing the County introduced the authorizing resolution and called as its first witness the engineer of record and project manager. The engineer testified that the agreement associated with the DRI between the developer and the relevant governmental agencies identified the alignment to be used in connecting Kerry Forrest Parkway to Ox Bottom Road, and that he, therefore, looked at no other alignments in the design of the road. In addition, however, the engineer also confirmed that the needs of the long rangé transportation plan would be met by the proposed alignment, and that certain environmental concerns would be satisfied. He likewise considered safety issues associated with the project, including a turnaround area for utility maintenance trucks, and the like. Finally, the engineer testified that he also considered cost in meeting the construction and alignment requirements. The only other witness who testified was an appraiser for the County who gave his opinion with respect to the fair market value of the land to be taken.

The matter of public purpose was essentially conceded by Mrs. Rawls at the order of taking hearing, and indeed appears also to have been conceded during the oral argument before this court. The primary issue before us, therefore, is whether the County provided sufficient evidence of “necessity” to support the taking.

Article X, section 6(a) of the Florida Constitution reads as follows:

No private property shall be taken except for a public purpose and with full compensation therefore paid to each owner or secured by deposit in the registry of the court and available to the owner.

Although the matter of necessity is not specifically mentioned in the Constitution, it has long been the law of Florida that a condemning authority must show a necessity for the taking as a condition precedent to the valid exercise of the power of eminent domain. See Canal Auth. v. Miller, 243 So.2d 131, 133 (Fla.1970).

The question, more precisely, is whether a particular parcel being sought by a condemning authority is in fact necessary for the public use or project proposed by that authority. See § 73.021(1), Fla. Stat. (2007). “Necessity,” however, in this context means a reasonable and not an absolute necessity. See Sibley v. Volusia County, 147 Fla. 256, 2 So.2d 578 (1941).

A determination concerning the necessity for the taking of property is initially a legislative function. See Jones v. City of Tallahassee, 266 So.2d 382 (Fla. 1st DCA 1972), modified, 281 So.2d 341 (Fla.1973). It is for this reason that once a reasonable necessity is demonstrated, the exercise of that discretion by the condemning authority may not be disturbed in the “absence of bad faith or gross abuse of discretion.” See Canal Auth., 243 So.2d at 134; see also Jones; Sibley; Catholic Burse Endowment Fund, Inc. v. State Rd. Dep’t, 180 So.2d 513 (Fla. 2d DCA 1965), cert. denied, 188 So.2d 814 (Fla.1966). Accordingly, once the condemning authority shows a reasonable necessity for the taking, the landowner must either concede the existence of necessity, or be prepared to show bad faith, oppression or an abuse of discretion as an affirmative defense. See City of Jacksonville v. Griffin, 346 So.2d 988 (Fla.1977); Canal Auth.; Jones. When that contest is placed before the court, the issue of necessity becomes ultimately a judicial question with respect to which a landowner is entitled to be heard. See City of Lakeland v. Bunch, 293 So.2d 66, 68 (Fla.1974); State, Dep’t of Transp. v. Barbara’s Creative Jewelry, Inc., 728 So.2d 240 (Fla. 4th DCA 1998), review dismissed, 769 So.2d 1040 (Fla.2000).

There are many factors that should be considered in arriving at a determination of whether a reasonable necessity for the taking of a property exists. Among those identified by the Florida Supreme Court are cost, environmental factors, long-range area planning, safety considerations and the existence of alternative routes. See Hillsborough County v. Sapp, 280 So.2d 443, 445 (Fla.1973); see also Cordones v. Brevard County, 781 So.2d 519 (Fla. 5th DCA 2001); Florida Power Corp. v. Gulf Ridge Council, 385 So.2d 1155 (Fla. 2d DCA 1980).

In the present case, as indicated previously, the engineer for the project testified concerning each of the factors discussed in Sapp, and appears to have fully satisfied the evidentiary foundation for the taking. Mrs. Rawls, however, argues that the County failed to prove necessity, because the engineer did not consider other possible alignments for the road.

In Wilton v. St. Johns County, 98 Fla. 26, 123 So. 527 (1929), the Florida Supreme Court long ago addressed this position as follows:

[A condemning authority] is vested with a considerable discretionary power, and may determine the location of the land required to be appropriated in order to accomplish the public purpose in view; and such determination will not be interfered with by the courts if it is made in good faith and is not capricious or wantonly injurious, or in some respect beyond the privilege accorded by the statute. The landowner cannot object merely because some other location might have been made or some other property obtained which would have been suitable for the purpose.

(Emphasis added). Id. at 535. See also Sapp; Cordones. In the present case, the issue of necessity as it relates to the alignment of the road was addressed by the evidence adduced by the County. Although it is not presumed that a condemning authority abused its discretion or acted in bad faith or illegally in its determination of necessity, the condemning authority, the County in this instance, has as an eviden-tiary obligation the requirement to put on “some evidence of reasonable necessity for the taking.” See Rukab v. City of Jacksonville Beach, 811 So.2d 727 (Fla. 1st DCA 2002). It did so here with the testimony of the engineer fortified by the introduction into evidence of the resolution of the Board of County Commissioners. “Once this is shown, however, the landowner must then either concede the existence of a necessity or be prepared to show bad faith or abuse of discretion as an affirmative defense.” Id.

Mrs. Rawls did not show bad faith or an abuse of discretion on the part of the County. The trial court found against her in this connection and concluded in its order of taking that “the condemnation of the Subject Property is for a valid public purpose and is necessary for such purpose.” In fact, during the course of the hearing, when the court asked counsel for the landowner to suggest another available alternative alignment to connect the two roads, the suggested alternate path was characterized by the trial judge as “a completely unreasonable alternative.”

As there was substantial competent evidence to support the findings and conclusions of the trial judge, we find no error and affirm the order of taking in all respects.

AFFIRMED.

PALMER, W., and ORFINGER, R., Associate Judges, concur.

      . The panel of associate judges are sitting by designation of the Chief Justice of the Florida Supreme Court.

      . A DRI is “primarily a comprehensive land use review technique for large scale development involving two groups-developers ... and ... governmental planners and permitting authorities." See Caloosa Prop. Owners Ass'n, Inc. v. Palm Beach County Bd. of County Comm'rs, 429 So.2d 1260, 1264 (Fla. 1st DCA), review denied, 438 So.2d 831 (Fla.1983); see also Grand Dunes, Ltd. v. Walton County, 714 So.2d 473, 475 (Fla. 1st DCA), review denied, 728 So.2d 201 (Fla.1998).

      . The most obvious of these concerns related to a “52 inch specimen oak tree” that was designed around, as well as certain drainage issues.

      . Had the County introduced only the resolution, the evidence would have been insufficient to demonstrate necessity. See Canal Auth.; Katz v. Dade County, 367 So.2d 277 (Fla. 3d DCA 1979).


author: VAN NORTWICK, J.

text:
    BILL SALTER ADVERTISING, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D07-2599.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2008.

      Roy V. Andrews and Laura Joyner Nye of Lindsay, Andrews & Leonard, Milton, for Appellant.
    Susan Schwartz and Gregory G. Costas, Department of Transportation, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Bill Salter Advertising, Inc., appeals a final order of the Florida Department of Transportation (DOT) revoking a sign permit for Salter’s nonconforming sign on the grounds that the sign was “destroyed” during Hurricane Dennis in July 2005. Because competent substantial evidence in the record supports the findings of fact of the DOT, we affirm.

Under rule 14-10.007(6), Florida Administrative Code, “[a] nonconforming sign may continue to exist so long as it is not destroyed, abandoned, or discontinued ...” “Destroyed” was defined by the rule as it existed at the time of the controversy and as applicable here, in pertinent part, as follows:

(a) “Destroyed” means more than 50 percent of the upright supports of a sign structure are physically damaged such that normal repair practices of the industry would call for, in the case of wooden sign structures, replacement of the broken supports and, in the case of a metal sign structure, replacement of at least 25 percent of the length above ground of each broken, bent, or twisted support. A sign will not be considered “destroyed” within the meaning of this section under the following conditions:
1. The destruction of a sign caused by vandalism or other criminal or tor-tious act.
2. If the permitee demonstrates that the replacement materials costs to re-erect the sign would not exceed 50 percent of the value of the structural materials in the sign, immediately pri- or to destruction....

The record reflects that prior to Hurricane Dennis the sign had five ground supports, 10 vertical supports (plywood), and stringers composed of 30 pieces of 10 by 6 by 12 foot lumber. Based on its examination of the sign after the hurricane and before and after repairs to the sign, the DOT concluded that the cost of the replacement materials exceeded 50 percent of the value of the sign and that, therefore, the sign had been “destroyed” under its rule. The DOT issued a notice of intent to revoke the permit for the sign and Salter requested an administrative hearing pursuant to section 120.57(1), Florida Statutes (2005).

At the administrative hearing, Salter’s witnesses testified that the cost of the structural materials for the subject sign immediately prior to the hurricane was $945; that the sign was repaired using existing materials, three new poles and two new sheets of plywood; and that the cost of new materials was $335, or 35 percent of the $945 value. Based upon observations of, and the photographs by, a DOT employee who had visited the site of the sign before and after the repairs, DOT witnesses testified that, with the exception of one pole, all new materials were used to replace the damaged sign. Based on the fact that virtually all new materials were used, the DOT asserted that the cost of replacement materials exceeded 50 percent of the value of the sign.

In the recommended order, the ALJ rejected Salter’s contention that only three new poles and two new sheets of plywood were used in the repair. The ALJ expressly found:

This testimony and evidence [relating to the use of only three new poles and two new sheets of plywood] is not accepted as credible. The photographs in evidence in the Respondent’s exhibits clearly show five new poles being added to the sign or a total replacement of the poles supporting the sign vertically. Instead of two new sheets of plywood, the photographs clearly show considerably more than that amount of new plywood added to the sign...
Moreover, the photographs in evidence show clearly that the stringers that were used in the repair work were all new pressure-treated materials. They clearly are new materials in appearance and are not existing materials which would exhibit weathering. Thus, the 35 percent re-build cost in structural material value versus the $945.00 dollar value of all components of the sign, immediately prior to the storm, is not deemed credible nor is the figure of $335.00 in purported re-build cost.
* * *
Based upon the testimony of the Department’s witnesses, and particularly the evidence embodied in the photographs in the Respondent’s evidence, the new materials included in the sign substantially exceed those stated in ... testimony [of Salter’s witness] and in ... [Salter’s] evidence.... It is therefore determined that more than 50 percent of the value of the structural materials in the sign, immediately prior to destruction, was replaced with new materials. Thus, those materials would exceed 50 percent of the value of the structural materials in the sign as they existed immediately prior to destruction....

The ALJ recommended that a final order be entered revoking the sign permit. After considering the exceptions to the recommended order filed by Salter, DOT agreed that the ALJ had mistakenly stated that five new poles were added when the evidence showed “that no more than four (4) new poles were added.” In all other respects, DOT accepted the ALJ’s findings of fact, adopted the conclusions of law, and ordered that the sign permit be revoked.

On appeal, Salter argues that the findings of fact are not supported by competent substantial evidence. Salter asserts that under Wayfara, Inc. v. Fla. Dep’t of Transp., 370 So.2d 858 (Fla. 1st DCA 1979), the photographs utilized by DOT here cannot constitute competent substantial evidence. We do not agree. Even if Wayfara can be read to stand for the proposition that photographic evidence cannot constitute competent substantial evidence, an issue we do not reach, here the testimony of the DOT witness who examined the sign before and after the repair certainly does constitute such evidence. Without a doubt, the evidence before the ALJ was in conflict. As the trier of fact, however, the ALJ considered the credibility of the witness and expressly rejected the testimony of Salter’s witnesses as incredible.

Competent, substantial evidence is “ ‘such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred’ or such evidence as is ‘sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.’ ” Heifetz v. Dep’t of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985) (quoting De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957)). In reviewing the record, neither the agency nor this court is permitted to re-weigh the evidence presented, judge the credibility of the witnesses, or otherwise interpret the evidence to fit a desired ultimate conclusion. See Rogers v. Dep’t of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005). While Salter maintains that its evidence should have been accepted, the ALJ, who had the benefit of observing the witnesses’ demeanor firsthand, determined that Salter’s evidence was not credible.

AFFIRMED.

ALLEN and LEWIS, JJ., concur.

      . Pursuant to section 479.01(14), Florida Statutes (2005), a "nonconforming sign” is defined as "a sign which was lawfully erected but which does not comply with the land use, setback, size, spacing, and fighting provisions of state or local law, rule, regulation, or ordinance passed at a later date or a sign which was lawfully erected but which later fails to comply with state or local law, rule, regulation, or ordinance due to changed conditions.”

      . Rule 14-10.007(6), Florida Administrative Code, was amended in 2007. The amended rule, among other things, increases the threshold for defining “destroyed” to more than 60 percent of the upright supports and deletes the exceptions in subsection (c)(a)2.


text:
    Frank C. JOHNSON, Jr. and Ruth B. Johnson, Appellants, v. John H. WILBUR individual, et al., Dr. Robert L. Mitchell individual, et al., Deacon James Lewis individual, Deacon Johnnie Middleton, individual, Judith E. Martin, individual, and First Union National Bank, et al., Appellees.
    No. 1D05-5390.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2008.
    Frank C. Johnson, Jr. and Ruth B. Johnson, pro se, Appellants.
    No appearances for Appellees, John H. Wilbur, Individual, et al., Dr. Robert L. Mitchell, Individual, et al., Deacon James Lewis, Individual, Deacon Johnnie Middleton, Individual, and Judith E. Martin, Individual; Joel Settembrini, Jr., Jacksonville, for Appellee Wachovia Bank.
   PER CURIAM.

We treat the notice of appeal and subsequently filed initial brief as a petition for writ of prohibition and deny relief.

PETITION DENIED.

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


author: GRIFFIN, J.

text:
    William J. SHEELER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3427.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.

      William J. Sheeler, Jr., Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   GRIFFIN, J.

William J. Sheeler, Jr. [“defendant”], appeals the denial of his Rule 3.800(a) motion seeking additional jail time credit.

In his motion, the defendant asserts that he was sentenced on May 2, 2007, and awarded credit for two days time served. The defendant claims that he was entitled to an additional sixty days jail time credit for time he served in county jail prior to the imposition of sentence. The defendant references the following dates of incarceration:

From 6/29/06 to 8/11/06 (43 days)
From 5/2/07 to 5/16/07 (14 days)
From 2/12/07 to 2/13/07 (2 days) awarded

The trial court, in a brief order, denied the defendant’s motion for jail time credit. This denial contains no explanation except a reference to the plea colloquy, which was attached. The plea hearing transcript attached is dated August 8, 2006. Page 5 of the plea transcript reflects that defendant was given a suspended thirty-six month sentence with probation in 2006. However, it is unclear how this transcript verifies the jail time credit calculation.

The State acknowledges that the trial court did not attach the defendant’s judgments and sentences and that due to the sparseness of the record, it is unable to discern if the defendant was awarded credit for all time served. The State tells us that defendant was arrested for violation of probation on February 13, 2007, and was resentenced on May 2, 2007, further compounding the jail time credit mystery.

We therefore reverse and remand to the trial court for an explanation and attachments verifying the amount of credit for time served.

REVERSED and REMANDED.

PLEUS and TORPY, JJ., concur.


author: PALMER, C.J.

text:
    Edwin MANN, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-675.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.

      Edwin R. Mann, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, C.J.

Edwin Mann (defendant) appeals the final order entered by the trial court summarily denying his post-conviction motion seeking to correct his sentence. Determining that an error is apparent on the face of the defendant’s sentencing guidelines scoresheet, we reverse.

The defendant pled guilty as charged to three counts of lewd or lascivious battery and one count of lewd or lascivious molestation. The sentencing guidelines called for a sentence of incarceration; however, the sentencing court departed downward from the guidelines and imposed a sentence which did not include a term of incarceration. On direct appeal, this court reversed the sentence, ruling that there was no legal basis justifying the imposition of a downward departure sentence. See State v. Mann, 866 So.2d 179 (Fla. 5th DCA 2004).

On remand, the defendant was sentenced to a minimum guidelines sentence of 26.1 years’ imprisonment. The defendant appealed that sentence and this court per curiam affirmed. See Mann v. State, 912 So.2d 1245 (Fla. 5th DCA 2005)(table).

The defendant thereafter filed the instant motion to correct sentence in which he alleged a scoresheet error. The trial court entered an order summarily denying the motion. This timely appeal followed.

The defendant contends that, on his sentencing guidelines scoresheet, victim injury points were improperly assessed against him for penetration to which he did not plead. We agree.

The defendant pled guilty as charged to three counts of lewd and lascivious battery and one count of lewd and lascivious molestation. Count two specifically alleged penetration, but the other three counts alleged union or, in the alternative, penetration or union. The defendant’s score-sheet scored victim injury points for penetration as to all four counts. As to the three counts which did not specifically allege penetration, this was error. As the fourth district held in Chatman v. State, 943 So.2d 327 (Fla. 4th DCA 2006), when the information charges penetration or union, the assessment of victim penetration points is error absent a specific finding that penetration occurred. Although Chatman arose in a jury trial context, the same principle applies in a plea case.

Since the defendant pled guilty as charged, the assessment of penetration points on the three counts which did not specifically allege penetration was error and the defendant is entitled to be resen-tenced with a corrected scoresheet. Accordingly, we reverse and remand for the preparation of a corrected scoresheet and for resentencing based thereon.

REVERSED and REMANDED.

ORFINGER and LAWSON, JJ., concur.

      . Although filed as a Fla. R.Crim. P. 3.800 motion, since the time frame for filing a Fla. R.Crim. P. 3.850 motion had not yet expired, we deem the defendant’s motion as being a rule 3.850 motion and consider whether the record clearly established that the same sentence would have been imposed with a correct scoresheet. See Brooks v. State, 969 So.2d 238 (Fla.2007).

      . We recognize that the defendant raised his argument regarding the scoresheet error at his resentencing and on his direct appeal from the resentencing but that his sentence was affirmed. Generally, collateral post-conviction relief would be barred by the doctrine of the law of the case. See State v. McBride, 848 So.2d 287 (Fla.2003). However, our courts have specifically ruled that the doctrine should not be applied when its application would result in a manifest injustice. Given the fact that the defendant's scoresheet, on its face, reveals the scoresheet error, we have determined that application of the law of the case doctrine in this specific case would result in manifest injustice and, accordingly, we do not apply it.


text:
    AAA BAIL BONDSMAN SERVICE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2337.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.
    Michael W. Johnson, Ocala, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The trial court properly denied appellant’s motion to cancel a final judgment forfeiting a bail bond where the State did not interfere with appellant’s exclusive custody of the criminal defendant prior to the defendant absconding. See Universal Bail Bonds, Inc. v. State, 929 So.2d 697 (Fla. 3d DCA 2006); Fast Release Bail Bonds, Inc. v. State, 895 So.2d 448 (Fla. 4th DCA 2005); Bush v. Int’l Fid. Ins. Co., 834 So.2d 212 (Fla. 4th DCA 2002).

AFFIRMED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    CITY OF ORLANDO POLICE DEPARTMENT, Appellant, v. Kwame ROSE and Ashanni Staffine, Appellee.
    No. 5D07-2393.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.

      Lee A. Freeman, Orlando,- for Appellant.
    Kathleen T. Gillard, of Kathleen T. Gil-lard, P.A., Orlando, for Appellee.
   PER CURIAM.

The finder of fact is not required to believe the testimony of any witness, even if unrebutted. Dep’t of Highway Safety & Motor Vehicles v. Dean, 662 So.2d 371 (Fla. 5th DCA 1995); State v. Paul, 638 So.2d 537 (Fla. 5th DCA 1994).

AFFIRMED.

SAWAYA, ORFINGER and LAWSON, JJ., concur.


text:
    Kelly Robin DINKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-3527.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.
    Kelly Dinkins, Raiford, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Kelly Robin Dinkins, appeals the summary denial of his Rule 3.850 motion for post-conviction relief. We affirm the appealed order, except for ground 2. Appellant contends that trial counsel was ineffective for failing to seek relief when he became aware that a juror was sleeping during important portions of the trial. The motion and supporting memorandum were rejected as legally insufficient by the trial court and, indeed, these documents lack the specificity that has emerged in this appeal. In light of the Supreme Court’s recent decision in Spera v. State, 971 So.2d 754 (Fla.2007), Appellant would be entitled to an opportunity to amend the claim.. Given the nature of the allegations, however, it is apparent that an evidentiary hearing will be required to resolve the claim. Accordingly, we reverse and remand for that purpose.

REVERSED and REMANDED.

MONACO, J., and THOMPSON, E., Senior Judge, concur.


text:
    Michael WOODS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D08-54.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.
    Michael Woods, Chipley, Pro Se.
    No Appearance for Respondent.
   PER CURIAM.

We deny without prejudice, the petition seeking a belated appeal. The petition fails to allege that petitioner made a timely request for defense counsel to file a notice of appeal. See Lincoln v. State, 948 So.2d 77 (Fla. 5th DCA 2007); Frazier v. State, 944 So.2d 1035 (Fla. 5th DCA 2006). The petition may be amended within thirty days following the date of this opinion.

PETITION DENIED.

PLEUS, ORFINGER and TORPY, JJ, concur.


author: EVANDER, J.

text:
    David FLORES, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1512.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.

      James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

After a jury trial, Flores was convicted of battery, aggravated assault, tampering with a witness, and tampering with evidence. The jury also returned a not guilty verdict on an arson charge. Flores was ultimately sentenced to fifty-one weeks in the county jail for the battery,' followed by two concurrent five year prison sentences for aggravated assault and tampering with a witness, followed by a five year prison sentence for tampering with evidence. On appeal, Flores raises two issues., First, he contends that his acquittal on the arson charge required the trial court to vacate his conyiction for evidence tampering. Second,. Flores contends that the cumulative incarcerative sentences for multiple felony convictions, if ordered to run consecutive to a county jail term, cannot exceed one year. We reject both of Flores’ arguments.

The evidence established that two witnesses observed Flores and his brother beating an unidentified individual. The two witnesses yelled at Flores and his brother to stop. Flores and his brother got into.a white Cadillac and left the scene. However, shortly thereafter, Flores and his brother returned in the white Cadillac and drove toward the two witnesses. (Flores’ brother was the driver.) Flores exited the vehicle, flashed what appeared to be a weapon, and verbally threatened one of the two witnesses. The threatened witness then, attempted to run toward an apartment complex. Flores re-entered the Cadillac. Flores’ brother drove the vehicle at the witness and eventually hit him. Flores and his brother then fled the scene.

The threatened witness was able to identify Flores from a photo array. Approximately two hours after the incident, police investigators located Flores and his brother at a convenience store in Apopka. The Cadillac was not present. However, Flores had a set of keys in his pocket which he acknowledged were for his mother’s white Cadillac. The vehicle was not at Flores’ mother’s house,’ but was subsequently discovered at a different location. The vehicle had been “torched.” At trial, the State presented expert testimony that the car had been deliberately destroyed by fire.

The white Cadillac was the subject of both the arson count and the evidence tampering count. In the arson count, the State’s information alleged that Flores and his brother had “willfully and unlawfully, ..., by fire or explosion, damaged, or caused to be damaged ... a motor vehicle.” In the evidence tampering count, the State’s information alleged that Flores and his brother “did alter, destroy, conceal, or remove ... a motor vehicle, with the purpose of impairing its verity or availability” in a criminal proceeding or investigation.

Subsequent to the jury verdict, Flores filed a motion to vacate the evidence tampering conviction, alleging that the not guilty verdict on the arson count negated an essential element of the crime of tampering with evidence. We find that the trial court properly denied Flores’ motion.

An inconsistent verdict claim presents a pure question of law and is reviewed de novo. Brown v. State, 959 So.2d 218, 220 (Fla.2007). As a general rule, inconsistent verdicts are permitted in Florida because jury verdicts can be the result of lenity and, therefore, do not always speak to the guilt or innocence of a defendant. Id. Inconsistent verdicts may arise from a jury’s exercise of its “inherent authority to acquit” a defendant even if the facts support a conviction. State v. Connelly, 748 So.2d 248, 252 (Fla.1999).

The Florida Supreme Court has recognized only one exception to the general rule allowing inconsistent verdicts. This exception is referred to as a “true” inconsistent verdict. A true inconsistent verdict occurs when an acquittal on one count negates a necessary element for conviction on another count. Brown, 959 So.2d at 220; see also State v. Powell, 674 So.2d 731, 732-33 (Fla.1996). The court has expressly declined to extend the truly inconsistent verdict exception to verdicts that are factually inconsistent. Connelly, 748 So.2d at 252.

While the jury’s verdict in the instant case was arguably factually inconsistent, it was not a true inconsistent verdict. Arson requires damage by fire or explosion. However, evidence tampering may be established by other means, including alteration, concealment, or removal of an item to impair its verity or availability for a criminal proceeding or investigation. Thus, an acquittal of the arson charge against Flores did not negate a necessary element for a conviction on the evidence tampering charge.

In challenging the validity of his sentence, Flores relies primarily on section 922.051, Florida Statutes (2006), and our decision in Fleming v. State, 637 So.2d 945 (Fla. 5th DCA 1994). Flores’ reliance is misplaced.

Section 922.051 provides as follows:

§ 922.051 Imprisonment in County Jail, Term of One Year of Less.
When a statute expressly directs that imprisonment be in a state prison, the court may impose a sentence of imprisonment in the county jail if the total of a prisoner’s cumulative sentences is not more than one year.

This statute is inapplicable where county jail time is imposed solely for misdemeanors because misdemeanors are not punishable by “imprisonment in a state prison.” Armstrong v. State, 656 So.2d 455 (Fla.1995) (consecutive county jail sentences that exceed one year for misdemeanors, as opposed to felonies, are permissible as section 922.051 does not apply to misdemeanors); see also Dade County v. Baker, 265 So.2d 700 (Fla.1972). Accordingly, when a defendant is convicted of both a felony and a misdemeanor, the trial court may properly sentence a defendant to county jail time on the misdemeanor to be followed by a prison sentence on the felony count even if the total of the defendant’s cumulative sentences exceeds one year.

By contrast, if a defendant is convicted of both a misdemeanor and a felony, section 922.051 would prevent a court from imposing county jail time for the felony conviction if the total of the defendant’s cumulative sentences would exceed one year. Singleton v. State, 554 So.2d 1162 (Fla.1990) (sentence of 364 days in county jail on misdemeanor charge followed by fifteen years probation on felony charge with additional county jail time of 364 days as condition of probation violated section 922.051).

Our Fleming decision is readily distinguishable from the instant case. In Fleming, the defendant was sentenced on two felony charges. We found that section 922.051 prohibited the trial court from imposing a five year prison sentence on one felony count followed by one year in the county jail on the other felony count. In the present case, unlike Fleming, the trial court imposed county jail time solely for a misdemeanor conviction. There was no violation of section 922.051.

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

      . § 806.01 Arson.

      (2) Any person who willfully and unlawfully, ... by fire or explosion, damages or causes to be damaged any structure, whether the property of himself, or herself, or another, ... is guilty of arson in the second degree....
      (3) As used in this chapter, 'structure' means any building of any kind... any vehicle ....
      § 806.01, Fla. Stat. (2006).

      . § 918.13 Tampering with or Fabricating Physical Evidence.
      (1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
      (a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation.
      § 918.13, Fla. Stat. (2006).

      . § 775.08, Fla. Stat. (2006).


author: ORFINGER, J.

text:
    PATRICIA WEINGARTEN ASSOCIATES, INC., Appellant, v. JOCALBRO, INC. and Joe C. Brown, etc., Appellee.
    No. 5D06-4233.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.

      Peter N. Price, of Peter N. Price, P.A., Hollywood, for Appellant.
    Garry D. Adel, of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, for Appellee.
   ORFINGER, J.

Patricia Weingarten Associates, Inc. timely appeals from a final judgment in favor of Jocalbro, Inc. and Joe C. Brown, trustee for Jocalbro, Inc. Profit Sharing Plan Trust, quieting title to fourteen parcels of real property in the Rainbow Park subdivision, Marion County, Florida. On appeal, Weingarten argues that the notice given prior to the tax sale, or more accurately, the lack of notice, deprived it of property without due process. We agree and reverse.

In March and May 2004, following applications for tax deeds, Marion County conveyed seven parcels of real property to Jocalbro, Inc. and seven parcels to Joe C. Brown, trustee for Jocalbro, Inc. Profit Sharing Plan Trust. Prior to the tax deed conveyances, record title was in Weingar-ten’s name. The tax deeds were issued as the result of Weingarten’s failure to pay the 1993 taxes on the parcels of real property and its subsequent failure to satisfy the tax certificates sold in December 2000. Several months later, Jocalbro, Inc. and Joe C. Brown (collectively “Jocalbro”) filed a complaint to quiet title to the parcels. Weingarten filed an answer, denying the relevant allegations of the complaint, and a counterclaim, seeking to cancel the tax deeds. In its answer, Weingarten alleged it had notified the Marion County Tax Collector of its correct mailing address in Missouri and that the Tax Collector failed to update the tax rolls with the new address. Weingarten alleged that it had not received any notice of the tax deed sale and became aware of the sale only when the quiet title suit was filed. Weingarten further noted it had received tax bills for the years 2001, 2002 and 2003 for other properties it owned in Marion County with its correct mailing address.

After final judgment was entered quieting title to the fourteen parcels of land in favor of Jocalbro, Weingarten appealed to this Court. While the appeal was pending, the United States Supreme Court issued its opinion in Jones v. Flowers, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415 (2006), holding that when, as here, a mailed notice of a tax sale is returned unclaimed, the state, as a matter of due process, must take additional reasonable steps to attempt to provide notice to the property owner before selling the property, if it is practicable to do so. The Court further held that a taxpayer’s failure to keep his address updated with the taxing authorities did not serve to forfeit constitutionally sufficient notice.

Based on the holding in Jones, we reversed the final judgment and remanded the case, writing:

In the present case, Weingarten alleges the notice sent by the Clerk pursuant to the mandatory notice requirements of section 197.522, Florida Statutes, was returned as undeliverable. However, we are unable to determine this from the record before us. Nor are we able to determine if additional reasonable steps to attempt to provide notice to Weingarten were taken because no testimony was presented from the Clerk or the Tax Collector. The record does indicate that other properties owned by Weingarten, upon which taxes were paid, had the correct address because the Clerk had complied with a change of address notice Weingarten had previously sent to the Tax Collector.
Because the parties did not have the benefit of Jones at the time of the trial, we reverse and remand to the court below to reconsider the notice issue. On remand, the parties may present additional evidence and argument to determine whether Weingarten received constitutionally sufficient notice of the tax sale and whether the Clerk took additional reasonable steps to provide notice after return on the unclaimed notice.

Patricia Weingarten Assocs., Inc. v. Jocalbro, Inc., 932 So.2d 587, 587-88 (Fla. 5th DCA 2006) (internal footnote omitted).

On remand, the evidence before the trial court showed that, other than a published notice in the newspaper, no additional steps were taken by the Clerk after the mailed notices were returned unclaimed. Further, the evidence demonstrated that pursuant to a letter from Weingarten sent sometime between 1999 and 2001, the Tax Collector mailed the tax bills to the Missouri address for several other parcels of property that Weingarten owned in the same subdivision, but inexplicably, failed to update the addresses used for the fourteen parcels at issue here. Again, the trial court entered judgment quieting title in favor of Jocalbro. This appeal followed.

Weingarten argues that constitutionally adequate notice, which is a prerequisite to the issuance of a tax deed, was not given, and, as a result, the tax deeds should be cancelled. Weingarten contends that it notified the Tax Collector of its change of address, and that the Tax Collector should have updated all of its records since it had Weingarten’s correct address at hand. Weingarten also argues that the Clerk failed to satisfy the standard established in Jones, as there was no follow-up after the mailed notices were returned. Jocalbro responds that the procedure utilized satisfied due process requirements because the taxing authorities followed the statutory scheme for providing notice of the tax sale.

Chapter 197 governs tax collections, sales, and liens. Section 197.522, Florida Statutes (2004), prescribes the procedures for notifying a property owner when an application for a tax deed has been made for his property. Relevant to this appeal is section 197.522(l)(a), which mandates that the Clerk of the Circuit Court

shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed in the tax collector’s statement pursuant to s. 197.502(4) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale. If no address is listed in the tax collector’s statement, then no notice shall be required.

Section 197.502(4)(a), Florida Statutes (2004), provides in pertinent part:

(4) The tax collector shall deliver to the clerk of the circuit court a statement that payment has been made for all outstanding certificates or, if the certificate is held by the county, that all appropriate fees have been deposited, and stating that the following persons are to be notified prior to the sale of the property: (a) Any legal titleholder of record if the address of the owner appears on the record of conveyance of the lands to the owner. However, if the legal titleholder of record is the same as the person to whom the property was assessed on the tax roll for the year in which the property was last assessed, then the notice may only be mailed to the address of the legal titleholder as it appears on the latest assessment roll.

Read together, these statutes “require the clerk to mail a notice of tax deed sale to the legal titleholder at the titleholder’s address as it appears on the latest assessment roll.” Delta Prop. Mgmt., Inc. v. Profile Invs., Inc., 875 So.2d 448, 447 (Fla.2004). However, “ 'the failure of anyone to receive notice’ as provided in section 197.522(1) does not affect the validity of the tax deed” so long as the notice requirements of the statute were followed, Dawson v. Saada, 608 So.2d 806, 808 (Fla.1992) (quoting section 197.522(1)(d), Florida Statutes (1987)), provided that, as required by Jones, the Clerk takes such additional reasonable steps as are practicable to insure that the property owner receives notice of the sale.

In Vosilla v. Rosado, 944 So.2d 289, 291 (Fla.2006), the Florida Supreme Court addressed the issue of whether notice to a property owner of a pending tax deed sale that complies with section 197.522(1) can nonetheless violate constitutional due process when the notice is not reasonably calculated to apprise the owners of the tax deed sale. There, the taxing authority received a notice from the titleholder of a change of address, but sent notice of the tax deed sale to a prior address. Discussing constitutional due process requirements, the court said that “ ‘[a] landowner whose property is to be sold for delinquent taxes undoubtedly has a vested ownership interest in the subject property and is therefore entitled to notice of a pending tax deed sale.’ ” Id. at 294 (quoting Dawson, 608 So.2d at 808). Notice must be provided that is “ ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” Id. (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The court added that whether a particular method of notice is reasonably calculated to provide adequate notice depends on “ ‘due regard for the practicalities and peculiarities of the case.’ ” Id. (quoting Mullane, 339 U.S. at 314-15, 70 S.Ct. 652). The court appeared to place particular emphasis on the fact that the property owners twice advised the taxing authorities in writing of their change of address. Id. at 300. Given those circumstances, the court held that the steps taken were not reasonably calculated to provide the property owners with notice. Id. Here, Weingarten likewise provided notice of its new address to the authorities.

In Jones, -the United States Supreme Court addressed the issue of adequate notice prior to a tax sale. There, the plaintiff owned, but did not reside in a house on which taxes went unpaid. Id. at 223, 126 S.Ct. 1708. The Clerk sent certified letters to the plaintiff advising of the impending tax sale, but no one was home to sign for them. When no one claimed the letters at the post office, they were returned to the Clerk stamped “unclaimed.” Id. at 223-24, 126 S.Ct. 1708. The Supreme Court held that, under those circumstances, the state should have taken some additional reasonable steps to notify the property owner. Id. at 234, 126 S.Ct. 1708. What additional steps “are reasonable in response to new information depends upon what the new information reveals.” Id.

Here, the Clerk did not send notice to Weingarten’s Missouri address, but rather, sent the notices by certified mail to four different addresses, all of which were returned “unclaimed.” Given the information that was readily available, specifically Weingarten’s correct address in Missouri, we conclude that the notice was insufficient because the Clerk failed to make further efforts to provide the notice after it was known that the certified letters had not reached Weingarten.

While “the clerk is not required to search all public records available to determine the actual status of ownership,” Hutchinson Island Realty, Inc. v. Babcock Ventures, Inc., 867 So.2d 528, 531 (Fla. 5th DCA 2004), review denied, 892 So.2d 1012 (Fla.2004), some reasonable follow-up measures must be employed when the government knows or has reason to know that the notice did not reach the property owner, Jones, 547 U.S. 220, 126 S.Ct. 1708, 164 L.Ed.2d 415. See generally § 197.522(3), Fla. Stat. (2007) (stating that “[n]othing in this chapter shall be construed to prevent the tax collector, or any other public official, in his or her discretion from giving additional notice in any form concerning tax certificates and tax sales beyond the minimum requirements of this chapter”). Here, the Tax Collector needed to look no further than its own records to determine Weingarten’s correct address. The only follow-up measure that the Clerk employed after the notices were returned unclaimed was publishing the notice of the application for tax deeds in the Ocala Star-Banner, a statutorily mandated, but generally less than effective approach. See Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 489, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (“As the Court noted in Mullane, ‘chance alone brings to the attention of even a local resident an advertisement in small type inserted in the back pages of a newspaper.’ ”) (quoting Mullane, 339 U.S. at 315, 70 S.Ct. 652); City of New York v. New York, New Haven & Hartford R.R. Co., 344 U.S. 293, 296, 73 S.Ct. 299, 97 L.Ed. 333 (1953) (“Notice by publication is a poor and sometimes a hopeless substitute for actual service of notice.”); cf. Pope, 485 U.S. at 490, 108 S.Ct. 1340 (“For creditors who are not ‘reasonably ascertainable,’ publication notice can suffice.”).

Under the circumstances presented here, additional reasonable steps were available to provide adequate notice to Weingarten of the impending tax deed sale. Because the failure to provide adequate notice was a failure of due process, we reverse and remand with directions that final judgment be entered in favor of Weingarten.

REVERSED AND REMANDED.

MONACO and TORPY, JJ., concur.

      . To be sure, Weingarten should have been more diligent with respect to its property. The notice given to the Tax Collector was very generic. However, it must have been adequate because the tax bills for some of Wein-garten’s property were mailed to the correct address in Missouri and the bills were paid.

      .Jocalbro argues that the attempted service by the Sherriff satisfied the "additional steps” requirement of Jones. However, that attempted service was done twelve days before the certified mailed notices were returned "unclaimed.” Further, the return of service clearly indicated that Weingarten was "[n]ot known to anyone here.” In addition, the Clerk only instructed the Sherriff to attempt service at one address, but the certified mail was sent and returned unclaimed to four addresses. Notwithstanding, as the attempted service occurred prior to the return of the unclaimed notice, the Clerk was on notice that the attempt to contact Weingarten at the listed address(es) had failed. See Cusack v. Homeowners Assistance Group, LLC, 961 So.2d 999, 999 (Fla. 3d DCA 2007) (stating that Jones noted that "due process may be met if notice of a tax deed certificate were posted on the front door upon receipt of the certified letter marked as undeliverable”) (emphasis added).

      . The government is not required to search the “phonebook and other government records such as income tax rolls” to locate a delinquent taxpayer. Jones, 547 U.S. at 235-36, 126 S.Ct. 1708; see Jones, 547 U.S. at 247 n. 6, 126 S.Ct. 1708 (Thomas, J., dissenting) (stating that Supreme Court "stopfped] short of saddling State with ... searching state tax records, the phone-book, the Internet, department of motor vehicle records, or voting rolls, contacting his employer, or employing debt collectors”).

      . In fact, the Tax Collector sent tax bills to Weingarten in Missouri for 2001, 2002 and 2003 for other lots that Weingarten owned in Rainbow Park. In addition, Weingarten sent money orders with the Missouri address to the Marion County Tax Collector to redeem tax certificates for other parcels.

      . Jocalbro argues that the United States Supreme Court approved posting as an "additional step.” However, Jones made clear that the Court was not "prescrib[ing] the form of service that the [government] should adopt[]” but was leaving the determination as to how to provide adequate notice to each state. 547 U.S. at 238, 126 S.Ct. 1708 (quoting Greene v. Lindsey, 456 U.S. 444, 445 n. 2, 102 S.Ct. 1874, 72 L.Ed.2d 249 (1982)). The Court detailed the different methods that states use as follow-up measures, including personal service, regular mail, posting a notice on the front door of the property, or addressing undeliverable mail to “occupant” rather than the individual’s name. Jones, 547 U.S. at 235, 126 S.Ct. 1708. This did not, in our view, constitute a holding by the Court of constitutional adequacy. The inquiry remains the same-what additional steps did the Clerk take when notice of the tax sale was returned as unclaimed. See id. at 238 n. 2, 126 S.Ct. 1708 (recognizing that some states, including Florida, "require that notice be posted on the property or at the property's owner’s last known address ... as a follow[-]up measure when personal service cannot be accomplished or certified mail is returned ”) (citing § 197.522(2)(a), Fla. Slat.) (emphasis added).


author: CANADY, Judge.

text:
    Elizabeth Anne MURPHY, Appellant, v. YOUNG MEN’S CHRISTIAN ASSOCIATION OF LAKE WALES, INC., a Florida nonprofit corporation, Appellee.
    No. 2D07-1324.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2008.

      Frank J. McKeown, Jr., of Law Offices of Frank J. McKeown, Jr., P.A., West Palm Beach, and Harold E. Wolfe, Jr., of Harold E. Wolfe, Jr., P.A., West Palm Beach, for Appellant.
    Mark D. Tinker of Fowler White Boggs Banker P.A., St. Petersburg, for Appellee.
   CANADY, Judge.

Elizabeth Anne Murphy, the plaintiff in a personal injury action, appeals a final summary judgment entered in favor of the defendant, Young Men’s Christian Association of Lake Wales, Inc. (YMCA). The YMCA obtained summary judgment against Murphy on the basis that upon joining the YMCA she had signed an exculpatory clause which released the YMCA from liability for its negligence. We reverse the final summary judgment because the exculpatory clause did not clearly and unequivocally release the YMCA from liability.

I. Background

Murphy joined the YMCA in 2000. At that time, she signed a membership application, which includes the following waiver provision:

I am an adult over 18 years of age and wish to participate in Lake Wales Family YMCA activities. In addition I give my children permission to participate in Lake Wales Family YMCA activities. I understand that even when every reasonable precaution is taken, accidents can sometimes still happen. Therefore, in exchange for the YMCA allowing me to participate in YMCA activities, I understand and expressly acknowledge that I release the Lake Wales Family YMCA and its staff members from all liability for any injury, loss or damage connected in any way whatsoever to my (or my children’s) participation in YMCA activities, whether on or off the YMCA’s premises. I understand that this release includes any claims based on negligence, action or inaction of the Lake Wales Family YMCA, its staff, directors, members and guests. I have read and am voluntarily signing this authorization and release.

After sustaining personal injuries while using exercise equipment at the YMCA’s exercise facility, Murphy filed a complaint against the YMCA, alleging that the YMCA was negligent in failing to maintain, inspect, and repair its exercise equipment. She alleged that she “suffered a severe and permanent injury” and “incurred medical expenses for hospitalization, surgery, nursing care and physical therapy in excess of $200,000.00 and will continue to incur such expenses in the future.”

II.Motion for Summary Judgment

The YMCA filed a motion for summary judgment, claiming that the waiver signed by Murphy in the membership application clearly and unequivocally released the YMCA from liability arising out of its negligent acts and that the waiver barred Murphy’s negligence cause of action.

At the hearing on the motion for summary judgment, Murphy argued that exculpatory clauses are disfavored and must be clear and unequivocal. The trial court expressed some concern over the “reasonable precaution” language in the waiver: “I kind of think it is a little misleading when it reads: T understand that even when every reasonable precaution is taken, accidents can sometimes [still] happen.’” Murphy then pointed the trial court to Goyings v. Jack & Ruth Eckerd Foundation, 403 So.2d 1144 (Fla. 2d DCA 1981), a case involving a waiver that was in some respects similar to the waiver obtained by the YMCA here.

At the conclusion of the hearing, the trial court reserved ruling on the motion for summary judgment. Subsequently, the court entered an order granting the motion, stating that “[w]ith some concern, the Court finds the Waiver is clear and unequivocal.” The trial court noted its concern expressed at the hearing and stated that the inclusion of the “reasonable precaution” language “suggests a member may be accidentally injured. The waiver goes on to clearly include not only accidental injuries, but injuries due to negligent conduct by staff members.”

III.Argument on Appeal

On appeal, Murphy argues that summary judgment was improper because the waiver of liability for the YMCA’s negligence is not clear and unequivocal. She argues that the “reasonable precaution” language of the waiver conditions the YMCA’s release from liability on whether the YMCA took reasonable precaution to ensure Murphy’s safety. She claims that whether the YMCA exercised reasonable precaution is a material factual question to be resolved by the jury.

The YMCA responds that the waiver signed by Murphy clearly and unequivocally releases the YMCA from liability for Murphy’s claim because it specifically states that it releases the YMCA from liability for “any claims based on negligence.” The YMCA argues that Murphy’s argument regarding the “reasonable precaution” language should be rejected because it “ignores the remainder of the waiver provision!] and is furthermore an illogical interpretation of that contract language.” The YMCA contends that when the provisions of the waiver are read together, “the release is intended to apply to the YMCA’s failure to exercise such precautions — its negligence.”

Murphy has raised various additional arguments, which we do not address.

IV.Analysis

Review of a summary judgment is de novo. See Maynard v. Household Fin. Corp. III, 861 So.2d 1204, 1206 (Fla. 2d DCA 2003). Summary judgment should only be granted when there is no genuine issue of material fact and the moving party is entitled to summary judgment as a matter of law. Id.; see also Fla. R. Civ. P. 1.510(c).

Exculpatory clauses are disfavored and will be strictly construed against the party claiming to be relieved of liability. Theis v. J & J Racing Promotions, 571 So.2d 92, 94 (Fla. 2d DCA 1990); Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So.2d 628, 684 (Fla. 1st DCA 1991). “Such clauses are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away.” Southworth & McGill, P.A., 580 So.2d at 634. A clause may release a party from liability arising out of its own negligence, but to do so, the clause “must clearly state that it releases the party from liability for his own negligence.” Goyings, 403 So.2d at 1146; see also Rosenberg v. Cape Coral Plumbing, Inc., 920 So.2d 61, 66 (Fla. 2d DCA 2005); Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318, 320 (Fla. 4th DCA 1984).

The Goyings decision provides guidance for the resolution of the present case. In Goyings, a mother sued the operators of a camp for children based on injuries that her daughter sustained while in the care of the camp. 403 So.2d at 1145. The operators sought summary judgment based on an exculpatory clause which provided:

“It is further agreed that reasonable precautions will be taken by Camp to assure the safety and good health of said boy/girl but that Camp is not to be held liable in the event of injury, illness or death of said boy/girl, and the undersigned, does fully release the Camp, and all persons concerned therewith, for any such liability.”

Id. at 1145^46. The trial court held that the clause released the operators from any liability and entered summary judgment in their favor. Id. at 1146.

On appeal, this court held that the language in the camp’s clause was “ineffective because it did not explicitly state that the camp would be absolved from liability for injuries resulting from its negligence.” Id. at 1146. This court went on to state that the clause was “[f]ar from unequivocally informing [the mother] that she was releasing [the operators] from liability for injuries arising from their negligence” and that a “reasonable interpretation of this provision might give the exculpatory clause quite a different meaning” in light of the language assuring that reasonable precautions would be taken. Id.

This duty to undertake reasonable care expressed in the first part of the provision would be rendered meaningless if the exculpatory clause absolved [the operators] from liability. We cannot ignore this language because all terms of a contract provision must be read as a whole to give every statement meaning. Construing the exculpatory clause as a whole, [the operators’] release from liability rests on their exercise of reasonable care to ensure [the child’s] safety and good health. Whether [the operators] fulfilled this duty is a factual question which the trial court must resolve.

Id. at 1146^47 (citations omitted).

We recognize that the waiver in the instant case does specifically state that the YMCA is not liable for “any claims based on negligence.” However, the waiver also suggests that the YMCA will take “every reasonable precaution” against accidents. Confusion results from the juxtaposition of the “every reasonable precaution” provision with the provision for the release of “any claims based on negligence.” A reasonable reader might be led to believe that the waiver of liability extends only to claims for injuries that were unavoidable “even when every reasonable precaution” had been taken by the YMCA. In light of the “every reasonable precaution” language, the waiver does not clearly and unequivocally release the YMCA from liability and is therefore not enforceable. See Orkin Exterminating Co. v. Montagano, 359 So.2d 512, 514 (Fla. 4th DCA 1978) (“[W]hen we consider that we do not look with favor on exculpatory clauses, we must require the draftsmen of all contracts which contain them to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent, clauses.”).

Y. Conclusion

Because the waiver does not clearly and unequivocally release the YMCA from liability, we reverse the final summary judgment in favor of the YMCA and remand for further proceedings consistent with this opinion.

Reversed; remanded.

WHATLEY and SALCINES, JJ., Concur.