author: KAHN, C.J.

text:
    KONE, INC., f/k/a Montgomery Kone, Inc., Appellant, v. Angela ROBINSON and Humana Medical Plan, Inc., Appellees.
    No. 1D05-3988.
    District Court of Appeal of Florida, First District.
    Sept. 5, 2006.

      Susan S. Oosting, Michael Fox Orr and Charles W. Dorman of Marshall, Denne-hey, Warner, Coleman, & Goggin, Jacksonville, for Appellant.
    David C. Reeves and J.W. Prichard, Jr. of Moseley, Prichard, Parrish, Knight & Jones, Jacksonville, for Appellees.
   KAHN, C.J.

Kone, Inc. (Kone) appeals the trial court’s order dismissing its two-count third-party complaint for indemnity against appellee Humana Medical Plan, Inc. (Humana). The trial court dismissed both counts of the complaint, finding Hu-mana was not a party to the relevant contract. In the alternative, and assuming Humana’s status as a party to the contract, the trial court found, as to Count I, the contractual indemnification clause unenforceable due to Kone’s failure to comply with section 725.06, Florida Statutes (1999). As to Count II, the court ruled Kone could not recover contract damages in “an essentially tort action.” We reverse the dismissal of Count I and remand the case for further proceedings, because section 725.06 does not control. We affirm the dismissal of Count II because the order properly barred tort damages.

BACKGROUND

On June 13, 1990, Kone entered into an elevator maintenance agreement with Rouse & Associates, the owner of a Jacksonville parking garage, to provide maintenance and service for the elevators in the garage. The agreement contained an indemnification provision:

You [Rouse & Associates] shall indemnify, protect and save harmless Montgomery Elevator Company [Kone] from and against liabilities, losses and claims of any kind or nature imposed on, incurred by or asserted against Montgomery Elevator Company [Kone] arising out of the active or passive negligence of Montgomery Elevator Company [Kone] in any way connected with the use or operation of the equipment.

Humana assumed Rouse & Associates’ duties and obligations under the contract when it bought the parking garage. Kone continued to provide service and maintenance under the contract and Humana paid for such services.

Under the terms of the agreement, Hu-mana agreed to supervise the use of the elevators, post warning signs, and implement other controls to ensure safe operation of the elevators. The agreement required Kone to employ “skilled elevator maintenance men” to “systematically examine, maintain, adjust, lubricate as required, and [if necessary] ... repair or replace all elevator components.”

On February 18, 2000, Angela Robinson, a Humana employee, suffered an injury when exiting one of the elevators, allegedly due to an elevator malfunction. Robinson received workers’ compensation benefits from Humana. Robinson later sued Kone for negligent maintenance of the elevator. Kone brought a third-party complaint against Humana for breach of contract and indemnity arising out of the indemnification provision in the agreement.

Humana moved to dismiss the third party complaint on two grounds: (1) the indemnity provision failed to comply with section 725.06, Florida Statutes (1999); and (2) Humana lacked status as a party to the contract. At the hearing on the motion, and on appeal, Humana stipulated it was a party to the contract, dropping the argument made in the motion to dismiss. The hearing focused upon whether section 725.06, Florida Statutes (1999), applied to the maintenance agreement.

The trial court granted the motion to dismiss, finding:

Count I (Indemnity) must be dismissed because there is no evidence before the Court that Humana is a party to the contract upon which Kone relies to impose the burden of indemnification upon Humana. Even if Humana were a party to the contract Kone seeks to enforce against Humana moreover, the contract is unenforceable due to Kone’s failure to comply with statutory requirements for indemnification. See § 725.06, Fla. Stat.
Count II (Breach of Contract or common law indemnity) must be dismissed because again there is no evidence before the Court that Humana is a party to the contract upon which Kone relies for breach of contract. Even if Huma-na were a party to the contract Kone seeks to enforce against Humana moreover, Kone is barred from seeking common law indemnity because the pleadings before the Court allege Kone’s active negligence. Common law indemnity is unavailable to a party who is in part actively negligent. Moreover, contract damages are unavailable in an essentially tort action.

(some citations omitted). For reasons unknown, the trial court found that Humana was not a party to the contract despite Humana’s stipulation that it was, indeed, a party.

ANALYSIS

We first consider Humana’s agreed status as a party to the contract. Humana’s stipulation to that effect is of some import. “A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court.” Gunn Plumbing, Inc. v. Dania Bank, 252 So.2d 1, 4 (Fla.1971); see EGYB, Inc. v. First Union Nat’l Bank of Fla., 630 So.2d 1216, 1217 (Fla. 5th DCA 1994) (“It is well settled that a stipulation entered into between parties in good faith and without fraud, misrepresentation or mistake is binding on the parties and the court.” (citing Gunn)); Dorson v. Dorson, 393 So.2d 632, 633 (Fla. 4th DCA 1981) (quoting Gunn in finding a stipulation binding on a court). Appropriately, Humana does not contest the point on appeal. The trial court erred when it found Humana was not a party to the contract.

We next consider whether the trial court erred in finding section 725.06, Florida Statutes (1999), applies to this maintenance agreement. The statute reads:

Construction contracts; limitation on indemnification. — -Any portion of any agreement or contract for, or in connection with, any construction, alteration, repair, or demolition of a building, structure, appurtenance, or appliance, including moving and excavating connected with it, or any guarantee of, or in connection with, any of them, between an owner of real property and an architect, engineer, general contractor, subcontractor, sub-subcontractor, or material-man, or between any combination thereof, wherein any party referred to herein obtains indemnification from liability for damages to persons or property caused in whole or in part by any act, omission, or default of that party arising from the contract of its performance shall be void and unenforceable unless:
(1) The contract contains a monetary limitation on the extent of the indemnification and shall be a part of the project specifications or bid documents, if any, or
(2) The person indemnified by the contract gives a specific consideration to the indemnitor for the indemnification that shall be provided for in his or her contract and section of the project specifications or bid documents, if any.

We review a trial court’s construction of a statute de novo. See B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1255 (Fla.2004).

Examining the statute’s language, we have failed to discern a legislative intent to apply section 725.06, Florida Statutes (1999), to non-construction contracts such as the one involved in this case. See Gulf Power Co. v. Cox Cable Corp., 570 So.2d 379, 383 (Fla. 1st DCA 1990) (“This statutory provision expressly applies in situations when an owner of real property contracts for improvements to property.”), quashed in part on other grounds, 591 So.2d 627 (Fla.1992). To fall within the statute, a party must be an owner of real property, architect, engineer, general contractor, subcontractor, sub-subcontractor, or materialman. See § 725.06, Fla. Stat. (1999). These classifications, not defined in the instant statute, are employed as terms of art commonly used in the construction industry. Kone simply maintains Humana’s elevators and, as a result, does not qualify as one of the enumerated parties listed in the statute. In particular, nothing before us shows that Kone is a general contractor. See § 489.105(3)(a), Fla. Stat. (1999) (defining “general contractor” as “a contractor whose services are unlimited as to the type of work which he or she may do, who may contract for any activity requiring licensure under this part, and who may perform any work requiring licensure under this part”). Hu-mana does not advance an argument that Kone is a subcontractor and, on these facts, we would reject such a theory. See § 713.01(26), Fla. Stat. (1999) (defining “subcontractor” as “a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of such contractor’s contract”). Kone is simply a party to an elevator maintenance agreement. Had the Legislature intended this statute to apply to all contracts concerning real property, it could have simply included the term “contractor” in the statute. See, e.g., §§ 489.105(3), 713.01(7), Fla. Stat. (1999). The use of a more specific term is telling.

Moving beyond Kone’s status, the agreement requires Kone to repair the elevators when necessary. Such maintenance, however, does not equate with construction. See, e.g., § 440.02(7), Fla. Stat. (1999) (defining “construction industry” as “for-profit activities involving the carrying out of any building, clearing, filling, excavation, or substantial improvement in the size or use of any structure or the appearance of any land”). A reviewing court is bound by a statute’s terms and not its title. Nevertheless, the title here certainly suggests a restriction on indemnification agreements in “construction contracts.” See Cook v. Blazer Fin. Servs., Inc., 332 So.2d 677, 679 (Fla. 1st DCA 1976) (“A court may look to the title of an act to aid in the interpretation of the act but the meaning may not be enlarged by the title.”). We find that an agreement providing for the routine maintenance of elevators over a time frame of sixteen years is not a construction contract.

Finally, although the trial court erred in finding Humana was not a party to the contract, the trial court properly dismissed Count II under the economic loss doctrine. The doctrine holds that a promisor will not be held liable for tort damages under a breach of contract theory. See Elec. Sec. Sys. Corp. v. S. Bell Tel. & Tel. Co., 482 So.2d 518, 519 (Fla. 3d DCA 1986) (stating that “breach of contract, alone, cannot constitute a cause of action in tort .... [and][i]t is only when the breach of contract is attended by some additional conduct which amounts to an independent tort that such breach can constitute negligence”); see also Weimar v. Yacht Club Point Estates, Inc., 223 So.2d 100, 103 (Fla. 4th DCA 1969)(“[I]t has been frequently declared to be a rule that no cause of action in tort can arise from a breach of a duty existing by virtue of contract....”). Consequently, as Kone simply alleges that Humana breached the agreement, it may not seek indemnity, except under the specific provision sued upon in Count I.

We REVERSE the dismissal of Count I and REMAND to the trial court for further proceedings. We AFFIRM the dismissal of Count II.

WEBSTER and HAWKES, JJ., concur.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    PURE H20 BIOTECHNOLOGIES, INC., Appellant, v. Joseph A. MAZZIOTTI and Louis Mazziotti, individually, Appellees.
    No. 4D06-1222.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.

      Frank R. Brady and Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, for appellant.
    J.D. Dickenson of Fowler White Boggs Banker P.A., West Palm Beach, and Kent Wicker of Reed Wicker PLLC, Louisville, KY, for appellees.
   POLEN, J.

Appellant, Pure H20 Biotechnologies, Inc. (“H20”), appeals a non-final order vacating an award of damages in its favor. H20 received a judgment against Appel-lees, Joseph and Louis Mazziotti (“the Mazziottis”) after suing them for fraud in the inducement, fraud, money lent, breach of contract, breach of fiduciary duty and civil theft. The Mazziottis failed to defend the suit against them, and in November 2002, the trial court entered a default judgment in favor of H20. In November 2005, three years later, the Mazziottis filed a motion for relief from the judgment pursuant to Fla. R. Civ. P. 1.540(b)(5), alleging that H20 had procured the judgment by submitting fraudulently altered documents to the trial court. The trial court entered an order vacating the damages judgment. The order specified that there was reasonable cause to believe that H20 had filed fraudulent documents in the trial, and that false testimony had been given in a deposition. We find that the Mazziottis’ claims of fraud are time barred, and there is no significant evidence or change in circumstances that would allow the trial court to vacate the damages judgment using Rule 1.540(b)(5). Therefore, we reverse.

An order granting a motion to vacate a judgment is reviewed using a gross abuse of discretion standard. Jeyanandarajan v. Freedman, 868 So.2d 432, 433 (Fla. 4th DCA 2003). This is particularly true when the order is granting “motions grounded on the general ‘inequity’ of a final judgment’s prospective application.” Kroner v. Singer Asset Fin. Co., 814 So.2d 454, 456 (Fla. 4th DCA 2001). Rule 1.540(b) provides:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or a party’s legal representative from a final judgment, decree, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) that the judgment or decree is void; or (5) that the judgment or decree has been satisfied, released, or discharged, or a prior judgment or decree upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be filed within a reasonable time, and for reasons (1), (2), and (3) not more than 1 year after the judgment, decree, order, or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding or to set aside a judgment or decree for fraud upon the court.

Fla. R. Civ. P. 1.540(b) (emphasis added).

Rule 1.540(b)(5) does not allow a party to retry a case merely because the judgment provides equitable relief and the party has found additional evidence. Instead, the rule requires the movant to establish that significant new evidence or substantial changes in circumstances arising after the entry of the judgment make it “no longer equitable” for the trial court to enforce its earlier order. In re Guardianship of Schiavo, 792 So.2d 551, 559-60 (Fla. 2d DCA 2001) (emphasis added). Rule 1.540(b)(5) was designed to provide “extraordinary relief’ in exceptional circumstances, and is to be narrowly construed. Dep’t of Revenue ex rel. Stephens v. Boswell, 915 So.2d 717, 721 (Fla. 5th DCA 2005). If a party had a chance to litigate the issue before, present a defense below and did not do so, courts are reluctant to set aside previously entered judgments. Id. “The circumstances addressed in category (5) all appear to address matters arising after the judgment, not circumstances present before the judgment. If a category. (5) ‘equity’ included any of the categories contained in Rule 1.540(b)(3), the other categories would be meaningless and superfluous.” Id. at 722.

In this case, the Mazziottis filed their motion to vacate after H20 filed an adversary proceeding in a bankruptcy proceeding instituted by the Mazziottis. As part of its earlier action against the Maz-ziottis, H20 alleged that it was fraudulently induced into loaning'money to the Mazziottis, and had submitted ■ checks it had written to the Mazziottis. In the memorandum space on these checks were written the words “loan” or “officer loan.” However, when certified copies of these checks were obtained from Wachovia, H20’s bank, there were no such designations in the memorandum line. On one of the checks, the copy from Wachovia stated “sal” on the memo line, but this had been obliterated and the submitted check read “off. loan.” H20 admitted it had altered the checks, but asserted the alterations were not important, stating:

I think,.Your Honor, what’s important, we’re talking about altered checks, but we’re not talking about altered amounts, altered dates, altered payees or altered signatures. We’re not talking about that. We’re talking about the little memo section. Something was written in after the check came back from the bank. I mean, that’s the extent of this alleged fraud,

The trial court disagreed and vacated the judgment, but its written order did not specify which provision of Rule 1.540(b) it was using to justify its ruling. While the trial court did not specifically list subsection (5) as the basis for vacating the judgment, or any subsection for that matter, the trial court was not required to list the basis for its decision in order for this court to uphold' the judgment. See Farrey’s Wholesale Hardware Co. v. Hobesound Indust. Park, 719 So.2d 374, 375 n. 1 (Fla. 3d DCA 1998) (“The ‘Tipsy Coachman’ rule provides that if the lower court assigns an erroneous reason for its decision, the decision will be affirmed where there is some other reason or basis to support it.”). That being said, even if the trial court did not base its decision on subsection (5), we find that this is the only-portion that can be used to uphold the decision, as any other motion would be time barred. This time limit is jurisdictional in nature, and cannot be extended for any reason. Bank One, N.A. v. Batronie, 884 So.2d 346, 349 (Fla. 2d DCA 2004).

Although the Mazziottis asserted that the trial court should vacate the judgment under Rule 1.540(b)(5) on the basis that its previous judgment should not have prospective application, the basis of their motion was that H20 had committed intrinsic fraud in the trial court, which would fall under subsection (b)(3) of Rule 1.540(b). The Mazziottis cannot have it both ways, as subsection (b)(5) is mutually exclusive of subsections (b)(l)-(4). See Boswell, 915 So.2d at 722. Moreover, the fraud in this case is one that could have been discovered with the use of due diligence during the initial trial, and therefore does not constitute “significant new evidence or substantial changes in circumstances arising after the entry of the judgment.” Fla. R. Civ. P. 1.540(b)(5). The fraud perpetrated in this case was an intrinsic fraud in that it was between the parties, rather than an extrinsic fraud or a fraud on the court. Wescott v. Wescott, 444 So.2d 495 (Fla. 2d DCA 1984). Neither of these types of fraud can be the basis of a motion to vacate which is filed more than one year after the judgment. Amer. Assocs., Ltd. v. WHUD Real Estate Ltd. P’ship, 846 So.2d 1194, 1195 n. 2 (Fla. 5th DCA 2003). The fraud took place during the proceedings, not after the judgment was entered, and therefore does not fall within the ambit of subsection (b)(5).

We find that the Mazziottis’ claims of fraud were time barred, and that there was no significant evidence or change in circumstances that would allow the trial court to vacate the damages judgment using Rule 1.540(b)(5). We reverse.

STEVENSON, C.J., and STONE, J„ concur.


author: PER CURIAM.

text:
    Richard BUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1217.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.

      Richard Button, Malone, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Richard Button appeals an order summarily denying his motion alleging ineffective assistance of counsel. We affirm in part and reverse in part.

Appellant Button was indicted for first degree murder and robbery with a deadly weapon, alleged to have occurred in February 1997. The victim was found dead in Button’s apartment, having been beaten to death. On November 8, 2000, after a jury trial, Button was convicted of both charges. The trial court sentenced Button to life imprisonment on both counts. This court per curiam affirmed Button’s judgment and sentence on appeal without opinion. Button v. State, 819 So.2d 783 (Fla. 4th DCA 2002).

Button then filed a timely motion pursuant to Florida Rule of Criminal Procedure 3.850 in November 2003, alleging eleven grounds for post-conviction relief. The trial court properly denied ten of the eleven claims. We find that the denial of claim six warrants reversal.

In his sixth claim Button alleges that trial counsel was ineffective for withdrawing a motion for an ex parte order to gather potentially exculpatory information. Defense trial counsel hired a private investigator that learned that the victim was a confidential informant and had provided the police with information regarding drug sales in the area. The investigator discovered that those involved in the drug sales may have killed the victim as retribution for giving information to the police.

Defense counsel filed a motion during the trial for leave to discover information the Palm Beach County Sheriffs Office compiled regarding the victim’s status as a confidential informant. The motion asked that any order granted be ex parte, as the defense did not want the state to obtain the information unless counsel decided to use it at trial. At the hearing on the motion the court found that the defendant was entitled to receive any information from the sheriffs office that would be exculpatory to Button’s case. However, the court noted that the state was also entitled to the information and did not grant an ex parte order.

Although Button alleged that counsel withdrew the motion for an ex parte order, the record shows, as the state suggested, that counsel did not withdraw the motion during trial. Button amended his claim to argue that counsel was ineffective for arguing that the state was not entitled to receive the evidence. Button asserts that the failure to obtain this evidence prejudiced his case as the information could have supported his defense theory that someone else was in his apartment and killed the victim.

The circuit court accepted the amendment of claim six and then summarily denied the claim. In denying Button’s as: sertion, the court found that Button was unable to overcome the presumption that defense counsel’s actions were reasonable trial strategy.

The circuit court’s summary denial of this claim was improper. A trial court generally cannot deny a motion for post-conviction relief by finding that defense counsel’s decision was tactical or trial strategy without first holding an evidentia-ry hearing. Erlsten v. State, 842 So.2d 967, 969 (Fla. 4th DCA 2003) (citations omitted). See also Wiggins v. State, 790 So.2d 1137, 1138 (Fla. 4th DCA 2001) (stating “[i]f counsel made a tactical decision to abandon the alibi defense, an evidentiary hearing is required to determine whether that was a reasonable strategic choice”) (citations omitted).

The summary denial of claim six is therefore reversed and remanded to the circuit court for an evidentiary hearing in order to determine whether defense counsel’s actions at trial were tactical.

STEVENSON, C.J., GUNTHER and POLEN, JJ., concur.


text:
    Robert NERIUS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2681.
    District Court of Appeal of Florida, Fourth District.
    Sept. 6, 2006.
    Robert Nerius, Atlanta, GA, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the order summarily denying Defendant’s motion for postconviction relief as to four lower tribunal cases. See State v. Dickey, 928 So.2d 1193, 1198 (Fla.2006).

The summary record reflects that after the filing of the notice of appeal on June 14, 2006, the trial court on June 22 vacated portions of the order, because three of the four cases actually were assigned to other divisions. Because the trial court lacked jurisdiction to do so at the time that order was entered, we strike the June 22 order. The trial court may reenter the order when jurisdiction returns to the trial court, after the issuance of this court’s mandate.

GUNTHER, WARNER and TAYLOR, JJ., concur.


author: SHEPHERD, J.

text:
    WEG INDUSTRIAS, S.A., etc., et al., Appellants, v. COMPANIA DE SEGUROS GENERALES GRANAI, etc., Appellee.
    No. 3D05-1801.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.

      Becker & Poliakoff and Mitchell W. Mandler and Manjit S. Gill, Fort Lauder-dale; Holland & Knight and Rodolfo So-rondo, Jr., Miami, and Lenore C. Smith, for appellants.
    Renee Adwar, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   SHEPHERD, J.

This is an appeal from a non-final order denying a motion to dismiss on forum non conveniens grounds. As is not uncommon in our courts, the underlying transaction and most significantly affected litigants are all housed offshore. We accordingly hold, as we did recently in our en banc decision in Tananta v. Cruise Ships Catering & Servs. Int’l N.V., 909 So.2d 874, 886 (Fla. 3d DCA 2004), that the resolution of the dispute between these parties must also be housed elsewhere.

JURISDICTION

Although not raised by the parties, we pause to consider the grounds by which we have jurisdiction to entertain this appeal. See Dep’t of Prof'l Regulation v. Rentfast, Inc., 467 So.2d 486, 487 (Fla. 5th DCA 1985); see also Licata v. State, 80 Fla. 554, 556, 86 So. 427 (1920)(“Where the record shows a want of appellate jurisdiction in this court, the writ of error will be dismissed sua sponte.”).

Some years ago, a panel of this court opined that an order granting or denying a motion to dismiss on the ground of forum non conveniens is “an appealable interlocutory ‘order[ ] relating to venue’ under [former interlocutory appeal] rule 4.2[a] F.A.R.” Southern Ry. Co. v. McCubbins, 196 So.2d 512, 514 (Fla. 3d DCA 1967). Although we are bound by McCubbins and its progeny, we are not so sanguine about the vigor of its reasoning, especially in light of the substantial revision made to the Florida Rules of Appellate Procedure in 1977. See In Re: Proposed Appellate Rules, 351 So.2d 981, 997 (Fla.1977). With the benefit of historical hindsight, we would conclude today that a party whose case has been dismissed via a grant of a motion to dismiss on the ground of forum non conveniens has a constitutional right to have that order reviewed by this court, see Art. V, § 4(b)(1), Fla. Const. (“District Courts of Appeal shall have jurisdiction to hear appeals, that may be taken as of right from final judgments or orders of trial courts.”); see also Fla. R.App. P. 9.030(b)(1)(A); Augustin v. Blount, Inc., 573 So.2d 104, 105 (Fla. 1st DCA 1991)(“A final order is one which constitutes an end to the labor in the cause.”), and that review of orders denying motions to dismiss on the ground of forum non conveniens, being interlocutory in character and not expressly included among those orders reviewable under Florida Rule of Appellate Procedure 9.130, are reviewable solely via certiorari. See Art. V, § 4(b)(3), Fla. Const., Fla. R.App. P. 9.030(b)(2)(A)(per-mitting review of “non-final orders of lower tribunals other than as prescribed by rule 9.130”); State v. Pettis, 520 So.2d 250, 252 (Fla.1988)(pointing out that “the reference to rule 9.130 is not inadvertent because the orders covered by that rule are ones from which an interlocutory appeal may be taken as contrasted to a petition for certiorari”); cf. Art. V, § 4(b)(l)(per-mitting review of interlocutory orders “to the extent provided by rules adopted by the supreme court”).

We consider this analysis more sound than the McCubbins analysis for two reasons. First, in reaching its result, the McCubbins court placed sole and exclusive reliance upon Southern Railway Co. v. Bowling, 129 So.2d 433 (Fla. 3d DCA 1961). However, Bowling, while a forum non conveniens case, is a fractured three-way split of an opinion in which, as long ago suggested by Associate Judge Stanley Milledge in dissent, the conclusion reached on the reviewability of the order presented was at best “implicit” and therefore, in our humble view, of dubious precedential value. See id. at 438 (Milledge, A.J., dissenting). Secondly, the language for former interlocutory appeal rule 4.2(a), on which in 1967 the McCubbins court relied, is in our judgment materially different than that appearing in today’s successor rule by which we, of course, are governed.

In 1967, Florida Appellate Rule 4.2(a) read in relevant part:

Rule 4.2. Interlocutory Appeals
a. Application. Appeals may be prosecuted in accordance with this rule from interlocutory orders in civil actions that, from the subject matter of the relief sought, are such as formerly were cognizable in equity, and from interlocutory orders relating to venue or jurisdiction over the person, from orders granting partial summary judgment on liability in civil actions,.-... Nothing in this rule shall preclude the review of an interlocutory order in a civil action on appeal from the final judgment as otherwise indicated by these rules. This rule shall not be construed as limiting .or affecting the power of the district courts of appeal or the circuit courts in reviewing any appropriate interlocutory order by common law certiorari.

(emphasis added).

In 1977, Florida Appellate Rule 4.2 was replaced by Florida Rule of Appellate Procedure 9.130. The new rule included among those interlocutory orders appeal-able as of right “non-final orders ... that (A) concern venue.” Fla. R.App. P. 9.130(a)(3)(A)(emphasis added). We believe the language of the new rule is narrower than that of the former rule. Stated otherwise, the range of orders that under today’s rule “concern venue” is not, in our view, coextensive with those formerly “relate[d] to venue.” We find support for this interpretation of the present-day rule in the Fourth District Court of Appeal’s recent decision in Eggers v. Eggers, 776 So.2d 1096, 1098 (Fla. 5th DCA 2001)(“A motion to dismiss/transfer venue due to the impropriety of the plaintiffs venue selection is significantly different than a motion to transfer on forum non conveniens grounds.”); see also Christine Russell, Comment, Should Florida Be A “Courthouse for the World?”: The Florida Doctrine of Forum Non Conveniens and Foreign Plaintiffs, Kinney v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), 10 Fla. J. Int’l L. 353, 354-55 (1995)(“The common law doctrine of forum non conveniens allows courts with proper jurisdiction and venue over a cause of action to dismiss a case that might be “fairly or more conveniently litigated elsewhere.”). But see Committee Notes to 1977 Amendment (“Allowable interlocutory appeals from orders in actions formerly cognizable as civil actions are specified, and are essentially the same as under former rule 4.2.”).

On the other hand, as previously stated, we recognize McCubbins is controlling authority in this district. Further, we are not inclined to suggest en banc consideration of this matter for two reasons. Cf. In re Rule 9.331, Determination of Causes by Dist. Court of Appeal En Banc, etc., 416 So.2d 1127, 1128 (Fla.1982)(“[I]n most instances, a three-judge panel confronted with precedent with which it disagrees will suggest an en banc hearing.”). First, in the many ensuing years since this court pronounced McCubbins, McCubbins seems to have become the uncritically established jurisdictional touchstone for many courts of appeal panels around this state whose curiosity has moved them to ponder how they have jurisdiction to review either grants or denials of motions to dismiss on forum non grounds. See e.g., Thomas v. Thomas, 724 So.2d 1246, 1248 (Fla. 4th DCA 1999)(citing McCubbins and Fla. R.App. P. 9.130(a)(3)(A) without explanation); Four Star Resorts Bahamas, Ltd. v. Allegro Resorts Mgmt. Serv., Ltd., 734 So.2d 576, 576 (Fla. 3d DCA 1999)(citing Fla. R.App. P. 9.130(a)(3)(A) as well as Thomas and McCubbins without explanation); Am. Boxing & Ath. Ass’n v. Young, 911 So.2d 862, 863 n. 1 (Fla. 2d DCA 2005)(citing Fla. R.App. P. 9.130(a)(3)(A) without explanation); Overdorff v. Transam Fin. Serv., 27 Fla. L. Weekly D1280, 2002 WL 1071918 (Fla. 5th DCA May 31, 2002)(citing Fla. R.App. P. 9.130(a)(3)(A) without explanation). Second, whether denials of forum non motions (probably the only serious issue) are reviewed by a court of appeal under the present, usual “abuse of discretion” standard or pursuant to a certiorari standard (permitting relief when an interlocutory order “does not conform to the essential requirements of law” and there is no “full, adequate and complete remedy available to the petitioner by appeal”, see Taylor v. Bd. of Pub. Instruction, 131 So.2d 504, 506-07 (Fla. 1st DCA 1961)), we perceive the results will, as a practical matter, invariably be the same because the true underlying question is always whether the plaintiff has satisfied the well-known Kinney factors required to maintain his or her cause of action in our courts. See Kinney Sys., Inc. v. Cont’l Ins. Co., 674 So.2d 86, 90 (Fla.1996), discussed infra at pp. 253-55. We are hard-pressed to conceive a fact pattern where an improper denial would constitute an abuse of discretion but not be a departure from the essential requirements of law commanding certiorari relief or vice versa.

We pause to expend judicial resources on this question only because we consider it to be a continuing obligation of the appellate courts of this state to patrol the boundaries of our appellate jurisdiction. With this thought in mind, we suggest that Florida Rule of Appellate Procedure 9.130 be clarified to reflect the reality that orders granting or denying motions to dismiss complaints on grounds of forum non conveniens have been sub silentio reviewed as non-final orders for more than a few legal generations. See Wausau Ins. Co. v. Haynes, 683 So.2d 1123, 1125 (Fla. 4th DCA 1996)(describing the purpose of Florida Rule of Appellate Procedure 9.130 as being to.“permit[] immediate review of [that] small class of orders that have a demonstrable effect on outcome but as to which final review may be inappropriate or ineffective”). We now proceed to the merits of this case.

FACTS

This case arises out of damage to a commercial generator in transit on the high seas between its place of manufacture in Brazil and its final destination in Guatemala. The manufacturer of the generator, WEG Industrias, S.A., sold the generator to a reseller, Uni-Systems Do Brasil (Uni-Systems Brazil). Uni-Systems Brazil then sold the generator to the end user, Compañía Agricola Industrial Santa Ana, S.A. (CAISA), a Guatemalan sugar manufacturer. An original offer to sell the equipment, not accepted by CAISA, was made by a separate Uni-Systems affiliate, Uni-Systems Florida. Uni-Systems operates through separate entities in different parts of the hemisphere.

The arrangement among the contracting parties called for the generator to be sent to Guatemala by sea. Title to the generator passed to CAISA at the port city of Santos, Brazil. Because a cargo vessel was not available to ship the generator directly to Guatemala, it was transshipped through Port Everglades. The damage occurred when the generator took a tumble in heavy seas before it reached Fort Lauderdale. As a result of the accident, CAISA elected to off-load the generator in Fort Lauderdale for an inspection. For this purpose, CAISA retained a local marine surveyor and secured the services of a WEG representative, who traveled from Brazil to Fort Lauderdale at CAISA’s request. A claims representative from CAI-SA’s insurance carrier, Compañía de Segu-ros Generales Granai & Townson, S.A. (Seguros), and an employee of Uni-Systems Florida also attended. Because of lack of proper tools, the inspectors could inspect only the outside casing of the generator and the exposed cables.

Based upon this inspection, CAISA elected to return the generator to the manufacturer’s plant in Brazil. After a more thorough inspection, WEG made two offers to CAISA: (1) to sell it a completely new generator; or (2) to repair the damaged one. CAISA selected the latter option, and the generator was repaired pursuant to another contract between WEG and CAISA.

After the repair, the generator was transported to Guatemala, this time directly and without incident. One month later, the generator failed shortly after an earthquake. CAISA claimed that the cause was improper repair. WEG blamed the earthquake. Seguros reimbursed CAISA for the loss and then sued both WEG and Uni-Systems Florida, as subrogee of CAI-SA, in Miami-Dade County Circuit Court. The complaint originally was brought in two counts, negligence and breach of warranty. The former has been dismissed by the trial court and is not a subject of this appeal. CAISA’s warranty claims are based upon language contained in the Uni-Systems Florida offer and a warranty contained in the WEG repair contract.

Early on in the case, both WEG and Uni-Systems Florida moved to dismiss the complaint on the grounds of forum non conveniens. The trial court denied the motion, finding that two of the Kinney factors — the private interests of the parties and the public interest — weighed in favor of Seguros’ choice of forum. We conclude the trial court misjudged the application of these factors to the facts of this case.

DISCUSSION

We review the trial court’s decision regarding forum non conveniens for abuse of discretion. Club Med Brasil, S.A. v. Sicurella, 921 So.2d 49, 50 (Fla. 3d DCA 2006). “Nevertheless, review of the Kinney standard has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judge’s analysis and whether the appellate record is sufficient to allow the reviewing court to reach its own conclusions.” Kawasaki, 899 So.2d at 410. In this case, the trial court made no factual findings to support its conclusion.

Under Kinney, a trial court is called upon to examine four factors to determine whether an action must be dismissed for forum non conveniens:

[a]s a prerequisite, the court must establish whether an adequate alterna--five forum exists which possesses jurisdiction over the whole case. [2] Next, the trial judge must consider all relevant factors of private interest, weighing in the balance a strong presumption against disturbing plaintiffs’ initial forum choice. [3] If the trial judge finds this balance of private interests in equipoise or near equipoise, he must then determine whether or not factors of public interest tip the balance in favor of a trial in [another] forum. [4] If he decides that the balance favors such a ... forum, the trial judge must finally ensure that plaintiffs can reinstate their suit in the alternative forum without undue inconvenience or prejudice.

Id. at 90. The parties agree that the first and fourth factors are satisfied. Brazil is an adequate alternative forum, and the defendants have stipulated they will not object to reinstatement of the litigation in Brazil. The more serious question is whether the private interests favor housing this litigation in our courts. If that call is a close one, then Kinney directs us to consider whether the public interest tips the balance away from our forum. Unlike a Florida litigant, we give no edge to Segu-ros’ choice of forum. Mursia Invs. Corp. v. Industria Cartonera Dominicana, 847 So.2d 1064, 1067 (Fla. 3d DCA 2003)(pre-sumption favoring plaintiffs’ choice of forum does not apply to foreign plaintiffs).

It is obvious from the most cursory review of the complaint in this case this is a dispute between Brazilian and Guatemalan companies. Florida figured into the events only as an unavoidable transshipment point and the fortuitous location of a superficial visual inspection following transportation damage on the high seas. It is apparent that all of the witnesses with knowledge of the manufacture, repair, installation, use, and demise of the generator are located in either Brazil or Guatemala. The relevant documents, except for a few that may have been generated during the course of the Port Everglades diversion, will be found in either Brazil or Guatemala. The cost of bringing the witnesses to Miami will be significant. Interpreters and translators will be necessary for both witnesses and documents, necessitating additional significant expense.

In cases “where the complaint itself shows on its face that a forum non conveniens transfer is warranted,” the trial court must dismiss the action where plaintiff fails to present evidence supporting its choice of forum. See Botton v. Elbaz, 722 So.2d 974, 975 (Fla. 4th DCA 1999). CAISA’s “evidence” consisted of an unauthenticated marine surveyor’s report by CAISA’s surveyor at Port Everglades and representations of counsel concerning potential witnesses. We are unable to accept bald representations concerning the latter. Ground Improvement Techniques v. Merchants Bonding Co., 707 So.2d 1138, 1139 (Fla. 5th DCA 1998)(“It is incumbent upon the parties to submit affidavits or other evidence that will shed the necessary light on the issue of the convenience of the parties and witnesses and the interest of justice.”). It is also apparent that to whatever extent the limited inspection at Port Everglades is relevant, the pivotal facts pertinent to this dispute are housed off shore. Finally, Uni-System Florida’s presence in Florida — another point argued by counsel — is likewise insufficient to tip the private interest factor in CAISA’s favor. See Tananta, 909 So.2d at 886 (presence of foreign cruise line’s agent in Hollywood, Florida was not a private interest factor justifying the retention of the matter in South Florida because “a marketing arm for passengers has nothing whatsoever to do with personal injuries suffered by a crewmember”), review denied, 917 So.2d 195 (Fla.2005); cf. Calvo v. Sol Melia, S.A., 761 So.2d 461, 464 (Fla. 3d DCA 2000)(“[t]he presence in Florida of corporate subsidiaries whose conduct is unrelated to the claim is not relevant”)(emphasis added).

Defendants additionally contend the trial court erred in finding the third Kinney factor, which examines the public interest in the case, mandated denial of the motion to dismiss. We need not reach this point because that factor is to be considered only where the private factors are at or near equipoise. Kinney, 674 So.2d at 90.

For the foregoing reasons, we reverse the order denying Uni-Systems Florida’s and WEG’s motion to dismiss for forum non conveniens and remand with instructions that the complaint be dismissed without prejudice for it to be reinstated in either Brazil or Guatemala.

Reversed.

      . The order on appeal in Bowling was an order denying a motion to dismiss on forum non conveniens grounds. The opinion of the court written by Chief Judge Horton does not recite a jurisdictional ground for review. See Bowling, 129 So.2d at 434. Judge Carroll, concurring in part, nevertheless writes "I concur with Chief Judge Horton in holding that the order appealed is appealable under rule 4.2, subd. a, Florida Appellate Rules, 31 F.S.A....” Id. at 434. Associate Judge Mil-ledge then reflects: "I dissent to the implicit conclusion that the order is an appealable one. Obviously, it is not a final order, as it would have been if the cause had been dismissed.” Id. at 439 (citation omitted). We believe that not only did Associate Judge Mil-ledge correctly perceive the import of Bowling for the ages, but also was technically correct on the merits for the reasons we are arguably taking more pains than warranted to further elucidate in this opinion.

      . But see Kawasaki Motors Corp. v. Foster, 899 So.2d 408, 410 (Fla. 3d DCA 2005)(stating that review of lower court forum non conve-niens decisions "has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judge’s analysis and whether the appellate record is sufficient to allow the reviewing court to reach its own conclusions”).

      . Post-Kinney, these factors were adopted by rule. Fla. R. Civ. P. 1.061.


author: ROTHENBERG, Judge.

text:
    Antonio CONEY, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-705.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.

      Antonio Coney, in proper person.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The petitioner, Antonio Coney (“Coney”), seeks a Writ of Habeas Corpus pursuant to Rule 9.141(c), Florida Rules of Appellate Procedure, alleging ineffective assistance of appellate counsel. As we conclude that Coney’s claim is without merit, we deny the petition.

On January 10, 2003, Coney pled nolo contendere to the charges of aggravated battery with a deadly weapon and aggravated battery of a pregnant victim. In return for his plea, Coney received 85 days in the county jail, followed by two years of probation.

On May 28, 2003, an affidavit of violation of probation was filed against Coney, alleging that he committed the offense of grand theft auto. The affidavit was amended four times, the fourth time occurring at the probation violation hearing on January 21, 2004. The second amended affidavit alleged that Coney violated his probation by being arrested for two separate offenses of strong arm robbery and an additional charge of robbery/carjacking. The final amended affidavit included the previously stated violations, that Coney was arrested for these offenses, but also added two violations, alleging that Coney committed or was a principal to the commission of these offenses. At the conclusion of the probation violation hearing, the court found Coney in violation of the terms of his probation agreement, revoked his probation, and sentenced him to twelve years incarceration. On June 15, 2005, this court affirmed the judgment and sentence imposed. Coney v. State, 905 So.2d 139 (Fla. 3d DCA 2005).

Coney asserts that appellate counsel was ineffective by failing to raise what Coney contends was a properly preserved violation of his constitutional due process rights, and is therefore, entitled to a reversal of the lower court’s ruling. The basis of this claim is appellate counsel’s failure to raise as untimely the State’s fourth amended affidavit filed on the day of the hearing, which Coney claims was not provided to his trial counsel within a reasonable time to allow him to prepare for the probation violation hearing. In response, the State argues that Coney’s claim is procedurally barred since it deals with issues which could have been raised on direct appeal. We are unpersuaded by the State’s argument, as appellate counsel’s failure to raise the issue on direct appeal is the basis of the instant petition for habeas corpus. We, therefore, address and decide this petition on the merits.

The Florida Supreme Court has consistently held that appellate counsel will not be deemed ineffective for failing to raise issues that were not properly raised during trial court proceedings and do not present a question of fundamental error. Valle v. Moore, 837 So.2d 905 (Fla.2002). A review of the record reveals that Coney’s trial attorney’s only objection to the amended affidavit filed on the date of the hearing was based upon the language it contained, not the timing of when it was filed. At no time did the defendant or his trial counsel object, request a continuance, or claim that they were not prepared to proceed with the hearing. Thus, it is clear that appellate counsel did not provide ineffective assistance of counsel for failing to raise an issue not preversed for appellate review, unless we conclude that the late filing of the amended affidavit constitutes fundamental error. See Rutherford v. Moore, 774 So.2d 637, 646 (Fla.2000).

A fundamental error is defined as one which “reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. We conclude that the amendments to the affidavit of violation of Coney’s probation do not rise to the level of fundamental error. Coney and his attorney were provided with the case numbers and charges which Coney was arrested for in the previously filed amended affidavits. The added language in the final amended affidavit, that Coney was not only arrested for these offenses, but that he committed them, adds nothing of any real substance to the allegations against him. Because we conclude that the instant claim was not preserved and does not rise to the level of a fundamental error, we find that appellate counsel did not provide ineffective assistance of counsel for failing to raise as untimely, the filing of the amended affidavit on direct appeal.

Petition denied.


text:
    Carlos RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1555.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Carlos Rivera, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Rivera v. Singletary, 707 So.2d 326 (Fla.1998); Gay v. Singletary, 700 So.2d 1220 (Fla.1997).


text:
    Lazaro J. SABATIER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1158.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.

      Lazaro J. Sabatier, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before CORTINAS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. Hamilton v. State, 746 So.2d 512 (Fla. 2d DCA 1999).


text:
    Richard M. HUFF, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D06-270, 3D05-3000.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Bennett H. Brummer, Public Defender, and Colleen Brady Ward, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before RAMIREZ, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

In this consolidated appeal, Richard M. Huff appeals his final judgment of conviction and sentence in case number 3D05-3000 and the denial of his motion to withdraw plea entered on a probation violation charge in case number 3D06-270. We affirm Huffs final judgment of conviction and sentence, but reverse the denial of his motion to withdraw plea because the trial court was without jurisdiction to rule on the motion.

Huff filed an appeal of his final judgment of conviction and sentence on September 23, 2005. Two days later, he filed a Motion to Withdraw Plea and Request for Evidentiary Hearing and Appointment of Conflict-Free Counsel which the trial court subsequently denied.

Because Huff filed his motion during the pendency of his direct appeal from the final judgment of conviction and sentence, the trial court lacked jurisdiction to consider or rule on the motion to withdraw plea. See Sharp v. State, 884 So.2d 510, 512 (Fla. 2d DCA 2004). We therefore reverse the denial of the motion to withdraw plea without prejudice to any right Huff may have to file a rule 3.850 motion for post-conviction relief, and affirm Huffs final judgment of conviction and sentence.

Affirmed in part and reversed in part.


text:
    Aldean HARPER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-1733.
    District Court of Appeal of Florida, Third District.
    Sept. 6, 2006.
    Bennett H. Brummer, Public Defender and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Olga L. Villa, Assistant Attorney General, for appellee.
    Before GREEN and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Shellito v. State, 701 So.2d 837 (Fla.1997); Bundy v. State, 471 So.2d 9 (Fla.1985). See also Boyd v. State, 910 So.2d 167 (Fla.2005); Brown v. State, 756 So.2d 230 (Fla. 3d DCA 2000).


text:
    Barbra R. JOYNER, Appellant, v. INTERNATIONAL REAL ESTATE GROUP, INC., Appellee.
    No. 5D05-2421.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    Barbra R. Joyner of the Law Office of Barbra R. Joyner, P.A., Orlando, pro se.
    Gregory P. Abaray of Law Offices of Allen Echemendia, P.A., Lakeland, for Ap-pellee.
   ON MOTION FOR ATTORNEY’S FEES

PER CURIAM.

Upon review of the attorney’s fees motion filed by appellee, International Real Estate Group, Inc., this court provisionally grants the motion and remands this matter to the trial court for a determination of whether appellee is entitled to recover its appellate attorney’s fees pursuant to Florida’s offer of judgment statute, section 768.79 of the Florida Statutes (2005).

MOTION GRANTED.

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


text:
    James L. EARLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2187.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2006.
    James L. Earley, Raiford, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

James L. Earley appeals the denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Following the trial court’s denial of his motion, Mr. Earley filed a timely motion for rehearing. The trial court denied the rehearing motion, concluding that such motions were not authorized under rule 3.800. While that was correct until recently, the rule was amended effective January 1, 2005, to permit motions for rehearing. See Amendments to the Florida Rules of Criminal Procedure, 886 So.2d 197, 199-200 (Fla.2004).

We reverse the order on review and remand this matter to the trial court for consideration of the motion and amended motion for rehearing.

REVERSED AND REMANDED.

ORFINGER, LAWSON and EVANDER, JJ., concur.

      . Rule 3.800(b)(1)(B) now provides in pertinent part that "[a] party may file a motion for rehearing of any order entered under subdivisions (a) and (b) of this rule within 15 days of the date of service of the order or within 15 days of the expiration of the time period for filing an order if no order is filed.”


text:
    William Bly MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3785.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2006.
    Steven J. Guardiano, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Nolte v. State, 726 So.2d 307 (Fla. 2d DCA 1998); State v. Gibron, 478 So.2d 475 (Fla. 2d DCA 1985); Bell v. State, 429 So.2d 403 (Fla. 1st DCA 1983).

THOMPSON, PALMER and LAWSON, JJ., concur.


text:
    Ronald Dujuan HARDEE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-387.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2006.
    Ronald Dujuan Hardee, Lowell, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Breedlove v. Singletary, 595 So.2d 8 (Fla.1992) and Mills v. Dugger, 574 So.2d 63 (Fla.1990).

THOMPSON, PALMER and TORPY, JJ., concur.


author: PER CURIAM. WARNER, J.,

text:
    Lisbeth M. Nielsen COLE, Petitioner, v. Todd G. COLE, II, Michael Cole and Linda Cole, Respondents.
    Nos. 4D06-2022, 4D06-2028.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.

      Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach and Harry D. Dennis, Jr. of Harry D. Dennis, Jr., P.A., Pompano Beach, for petitioner.
    Linda Spaulding White of Conrad & Scherer, LLP, Fort Lauderdale, for respondent Todd G. Cole, II.
    Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire & Klein, P.A., Fort Lauderdale, and Michael I. Kean and Cristina E. Groschel of Ber-man, Kean & Riguera, P,A., Fort Lauder-dale, for respondents Michael Cole and Linda Cole.
   PER CURIAM.

Todd and Lisbeth Cole were married in 1992. In 2001, Lisbeth signed a “House Agreement” with Todd and his parents, Michael and Linda Cole. The agreement provided that (1) Lisbeth assign her interest in a purchase agreement for a residence to Todd’s parents, and (2) upon sale of the residence, Todd’s parents would first be paid back their contribution, with the remaining proceeds to be split equally between Todd and his parents.

Todd filed for divorce in 2005. Lisbeth counterclaimed and sought equitable distribution of the home that was the subject of the 2001 House Agreement, which she contended was procured by misrepresentation.

After the filing of the dissolution, Todd’s parents filed a declaratory action against Lisbeth and Todd which sought to confirm their interest in the home under the House Agreement. Lisbeth’s answer and affirmative defenses attacked the contract as the product of Todd and his parents’ misconduct. The declaratory judgment action was assigned to a different judge than the dissolution action.

In the dissolution case, Lisbeth moved to consolidate the parents’ declaratory judgment action. She also moved to amend the counterpetition to join the parents as party defendants so that the dissolution judge could fully adjudicate the rights of all parties in the.marital home, which was arguably the largest marital asset. The dissolution judge denied the motions. Meanwhile, the judge in the declaratory relief action began to enter orders impacting both cases.

We grant the petition for writ of certio-rari and quash the orders of the dissolution judge denying consolidation and leave to amend. This case presents the potential irreparable harm that inconsistent rulings on the parties’ entitlement to and interest in the marital home will compromise the dissolution judge’s ability to fashion a final judgment under Chapter 61, Florida Statutes (2005). See Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So.2d 45 (Fla. 2d DCA 1984); Johnson v. Johnson, 454 So.2d 797, 799 (Fla. 4th DCA 1984); Goldberg v. Goldberg, 309 So.2d 599, 600 (Fla. 3d DCA 1975).

We dismiss the petition directed at the dissolution of the lis pendens as moot, because the lis pendens at issue expired on June 21, 2006, one year after it was filed.

SHAHOOD and GROSS, JJ., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

Because the ' dissolution court ordered that it would give res judicata effect to the rulings of the civil court in the declaratory judgment action, there has been no showing of irreparable harm through inconsistent rulings. I dissent.


author: HAZOURI, J.

text:
    ALTERRA HEALTHCARE CORPORATION (as to Alterra Sterling House of Vero Beach and Clare Bridge Cottage of Vero Beach), Jill McCauley (as to Alterra Sterling House of Vero Beach) and Veronica Schuessler (as to Alterra Clare Bridge Cottage of Vero Beach), Appellants, v. Betsy L. BRYANT, by and through William R. Bryant, Sr., her Attorney-in-Fact, Appellee.
    No. 4D05-4409.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.

      Donna J. Fudge, Connolly C. McArthur and Dennis J. Brennan of Buckley & Fudge, P.A., St. Petersburg, for appellants.
    Susan B. Morrison of the Law Offices of Susan B. Morrison, P.A., and Blair N. Mendes of Wilkes & McHugh, P.A., Tampa, for appellee.
   HAZOURI, J.

Alterra Healthcare Corporation (Alter-ra), Jill McCauley (McCauley) and Veronica Schuessler (Schuessler) appeal from a non-final order granting their Motions to Compel Arbitration, but severing numerous arbitration provisions. Appellee, Betsy L. Bryant (Mrs. Bryant), by and through William R. Bryant, Sr. (Mr. Bryant), her attorney-in-fact, cross-appeals this non-final order. We affirm.

In 2004, Mrs. Bryant filed a complaint against Alterra and McCauley, seeking damages for common law negligence and violations of the Assisted Living Facilities Act, sections 400.428 and 400.429, Florida Statutes, which occurred while she was a resident of an assisted living facility called Alterra Sterling House of Vero Beach (Sterling House). Additionally, Mrs. Bryant filed a similar complaint on September 22, 2004 against Alterra and Schuessler for damages arising out of her residency at another assisted living facility known as Alterra Clare Bridge Cottage of Vero Beach (Clare Bridge).

Alterra filed a Motion to Compel Arbitration in both cases, pursuant to an Arbitration Provision in the Residency Agreement (Agreement) executed on October 18, 2002 by Mr. Bryant, as Mrs. Bryant’s attorney-in-fact, pursuant to her durable power of attorney. After an evidentiary hearing, the trial court issued an “Order on Defendants’ Motion to Compel Arbitration” (Order). The trial court found that the Agreement governed Mrs. Bryant’s stay at both Sterling House and Clare Bridge. The trial court found further that the arbitration provisioh’s exclusion of punitive damages, limit on non-economic damages, and prohibition against attorney’s fees were void as contrary to public policy, on the basis that chapter 400, Florida Statutes, is a remedial statute. Additionally, the trial court concluded that these three provisions, plus discovery limitations and no right to appeal, were “egre-^ giously unconscionable.” According to the trial court, the “egregious substantive un-conscionability of the arbitration provisions,” coupled with “some quantum of procedural unconscionability,” rendered the subject provisions unenforceable.

Accordingly, the trial court severed the following stricken through provisions, finding the remaining written arbitration provisions valid:

PART A: ARBITRATION PROVISION
6. i. The — only depositions — allowed shall be of experts. — No other individuals may — be—deposed. An expert’s deposition shall be limited to six (6) hours per expert and shall be conducted within one 24-hour period, unless agreed to otherwise by mutual consent of the parties.
10. The arbitrator-⅛- decision' shall — be final and binding without-the-right of appeal.-
11. The arbitrator’s fees and costs associated with the arbitration shall be divided equally among the parties to this Arbitration Agreement. The parties shall bear their — own attorneys’ fees-and costs and here- ' by -expressly waive any statutory right-to — recover- attorney fees or costs, actual or statutory.
PART B: LIMITATION OF LIABILITY PROVISION
2. b. Noneconomic-damages, such as pain and suffering, shall be limited -to
d. Punitive.damages — shall not be awarded.

The trial court stayed the proceedings and directed that the cases proceed to binding arbitration. This appeal and cross-appeal followed.

We consider first Alterra’s argument that the trial court erred when it held that the waiver of punitive damages and the $250,000 cap on non-economic damages were void as against public policy. The standard of review applicable to a trial court’s factual findings is whether they are supported by competent, substantial evidence. Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla. 4th DCA 2005). “However, the standard of review applicable to the trial court’s construction of the arbitration provision, and to its application of the law to the facts found, is de novo.” Id. (citing Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 283 (Fla. 1st DCA 2003)).

Parties may agree to arbitrate statutory claims, provided the arbitration offers an effective way for vindicating the claimant’s statutory rights. See Romano v. Manor Care, Inc., 861 So.2d 59, 62 (Fla. 4th DCA 2003), rev. denied, 874 So.2d 1192 (Fla.2004). An arbitration agreement that contains provisions which defeat the remedial portions of a statute is not enforceable. Id. In Romano, this court found that the Nursing Home Resident’s Rights Act (NHRA), sections 400.022 and 400.023, Florida Statutes, is a remedial statute, designed to protect nursing home residents. Id. at 62-63. Although no appellate court has ruled on whether the Assisted Living Facilities Act (ALFA) is a remedial statute, it contains provisions similar to those relied on in Romano to render the NHRA remedial. See id.

ALFA provides for a resident bill of rights, including access to adequate and appropriate health care, and written notice of the rights. § 400.428(1), (2), Fla. Stat. (2005). Residents have a cause of action to enforce their rights under ALFA. § 400.429, Fla. Stat. (2005). The statute also allows for punitive damages in cases of intentional misconduct or gross negligence. § 400.4297, Fla. Stat. (2005). There is no cap on pain and suffering damages. Thus, ALFA is a remedial statute closely akin to the NHRA.

In the instant case, the trial court found that the Agreement’s waiver of punitive damages and the $250,000 cap on non-economic damages defeated the remedial purpose of chapter 400, Florida Statutes, finding these provisions void as against public policy. We agree. This court has held repeatedly that arbitration agreements eliminating punitive damages and capping non-economic damages defeat the remedial purpose of the NHRA and are, therefore, void as against public policy. See, e.g., Lacey v. Healthcare & Retirement Corp. of Am., 918 So.2d 333, 334 (Fla. 4th DCA 2005); Romano, 861 So.2d at 61-63; see also Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 298-99 (Fla. 4th DCA 2005) (finding that an arbitration provision’s limitation on NHRA’s remedies is void as contrary to public policy); SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006) (adopting Blankfeld’s reasoning in rendering an arbitration agreement entered into between a nursing home and nursing home patient void as against public policy).

Alterra urges this court to reevaluate its decisions in Blankfeld and Lacey, in light of the Supreme Court of Florida’s decision in Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159 (Fla.1989). In Mort, the supreme court held that a party may waive its right to attorney’s fees under the NHRA by accepting an offer of judgment that is silent as to attorney’s fees. Id. at 161. Alterra argues, based on Mort, that the arbitration provisions are enforceable because Mrs. Bryant decided to waive her statutory rights. However, Mort is factually distinguishable from the instant case. It involved a waiver of statutory rights in an offer of judgment, which occurred after a dispute arose, following various settlement discussions, and outside the context of an arbitration agreement. Id. at 159-61. The status of the NHRA as a remedial statute and the waiver or limitation of its remedial provisions as void on public policy grounds were not at issue in Mort. Id. Further, after Mort was decided, this court found repeatedly that arbitration provisions identical to those at issue here violated public policy. See, e.g., Lacey, 918 So.2d at 334; Romano, 861 So.2d at 61-63.

Of note, Blankfeld, Romano and Lacey did not address an agreement’s waiver of a right to appeal the arbitrator’s decision. The Agreement expressly provides that the Florida Arbitration Code (FAC), sections 682.01, et seq., Florida Statutes governs the arbitration. Alterra contends that the Agreement’s waiver of a right to appeal does not contradict the FAC. However, in VoiceStream Wireless Corp. v. U.S. Communications, Inc., 912 So.2d 34 (Fla. 4th DCA 2005), this court concluded that a provision precluding the parties from appealing any arbitration decision was unenforceable because it was in contravention of section 682.20 of the FAC, which provided for a limited right of appeal. VoiceStream, 912 So.2d at 38 (citing Healthcomp Evaluation Servs. Corp. v. O’Donnell, 817 So.2d 1095, 1097 (Fla. 2d DCA 2002)). Accordingly, the complete waiver of a right to appeal any arbitration decision in the instant case is unenforceable as contrary to public policy.

Alterra argues next that the trial court erred in finding the stricken Agreement provisions unconscionable. Although the trial court engaged in an unconscionability analysis and we find no fault with the substance of this analysis, we need not address unconscionability. In Blankfeld, this court found a similar agreement void as contrary to public policy, and determined that it was unnecessary to consider unconscionability. 902 So.2d at 298-99.

Alterra argues further that the trial court had no authority to determine the validity of the limitation of liability provisions. Alterra contends this authority lies solely with the arbitrator. We disagree. “[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). “It is the court’s obligation, in deciding a motion to compel arbitration, to determine whether a valid written agreement to arbitrate exists.” SA-PG-Ocala, LLC, 935 So.2d at 1242 (citing Global Travel Mktg., Inc. v. Shea, 908 So.2d 392 (Fla.2005); Seifert, 750 So.2d at 633). Thus, the trial court properly considered whether the arbitration and limitation of liability provisions were valid.

Alterra relies primarily on Beaver Coaches, Inc. v. Revels Nationwide R.V. Sales, Inc., 543 So.2d 359 (Fla. 1st DCA 1989), and Rollins, Inc. v. Lighthouse Bay Holdings, Ltd., 898 So.2d 86 (Fla. 2d DCA 2005), to support its proposition that the trial court had no authority to determine the validity of the limitation of liability provisions. Both Beaver Coaches and Rollins are distinguishable from the instant case. Beaver Coaches limits an arbitrator’s review to limitations of liability that do not pertain to the arbitration clause itself. 543 So.2d at 361-62. Here, the Agreement’s limitation of liability provisions are not contained outside the arbitration provision. Rather, they are part of the arbitration provision, under the heading “Arbitration and Limitation of Liability Agreement.” Additionally, Rollins instructs that a trial court, rather than an arbitrator, may review a limitation of liability where unconscionability is at issue. 898 So.2d at 87. Unconscionability is clearly at issue in this case, evidenced by Mrs. Bryant’s complaint and the trial court’s ruling.

Alterra argues similarly that the trial court had no authority to determine the contract’s validity as a whole, unless the challenge was to the arbitration clause itself, citing Buckeye Check Cashing, Inc. v. Cardegna, — U.S. —, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). In Buckeye, the Supreme Court of the United States reaffirmed the principle that “regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.” 126 S.Ct. at 1210. Buckeye is also distinguishable from this case. Mrs. Bryant did not challenge the validity of the contract as a whole. Rather, she challenged specific arbitration provisions, including a limitation of liability. Thus, Buckeye is inapposite.

Alterra also relies heavily on the Second District’s opinion in Bland v. Health Care & Retirement Corp. of America, 927 So.2d 252 (Fla. 2d DCA 2006) to support its contention that the arbitrator must, in the first instance, decide whether to enforce an agreement’s remedial limitations. However, the Second District’s treatment of this issue in Bland is mere dicta. The court noted: “[0]nce the trial court completes its three-prong task under Seifert, 750 So.2d at 636, we see no reason why the arbitrator, in the first instance, cannot decide whether to enforce the remedial limitations.” Bland, 927 So.2d at 258. In addition to being dicta, it offers no support to Alterra’s argument because its language is permissive, not mandatory. Further, the trial court’s review of the Agreement in the instant case did not make it past the Seifert analysis because it failed the first prong, as it was void as against public policy and unconscionable. Thus, it was not a valid written agreement to arbitrate.

Accordingly, we find that the trial court did not err in finding the subject provisions void, or in determining their validity in the first place.

Mrs. Bryant argues first in her cross-appeal that the trial court erred in finding that the durable power of attorney (POA) gave Mr. Bryant the authority to waive his wife’s rights of access to the courts and a jury trial. We disagree. Although the meaning of language is a factual question, interpretation of a document is generally a question of law rather than of fact. Peacock Constr. Co., Inc. v. Modern Air Conditioning, Inc., 353 So.2d 840, 842 (Fla.1977) (citing § 616, 4 Williston on Contracts, 3d ed.). A trial court’s decision on a pure question of law is subject to de novo review. D'Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003). The trial court found that Mr. Bryant executed the Agreement on October 18, 2002, pursuant to his powers under the POA, specifically citing the following provisions:

L. Compromise, arbitrate, or otherwise adjust claims in favor of or against me or any assets or entity in which I have an interest, and to agree to any rescission or modification of any contract or agreement.
T. Transact all business, make, execute and acknowledge all contracts, orders, deeds, bills of sale, assurances, promissory notes, mortgages, and other instruments of any nature which may be requisite or proper to effectuate any matter or things pertaining to or belonging to me.

(emphasis added).

Neither party cites authority for the blanket proposition that a POA may or may not grant someone the authority to waive the principal’s right to a jury trial. “Generally, powers of attorney are strictly construed and will be closely examined in order to ascertain the intent of the principal.” De Bueno v. Castro, 543 So.2d 393, 394 (Fla. 4th DCA 1989). Section 709.08(6), Florida Statutes (2006), provides that “[ujnless otherwise stated in the durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including ... all other contractual or statutory rights or elections-” This statute does not prohibit the attorney in fact from consenting to arbitrate claims on behalf of the principal, absent a provision in the document to the contrary. See § 709.08(7), Fla. Stat. (2006).

When strictly construed, the POA granted Mr. Bryant broad powers on behalf of the principal, Mrs. Bryant. The POA gave Mr. Bryant the authority to arbitrate claims in favor of or against Mrs. Bryant, and to execute and acknowledge all contracts “which may be requisite or proper to effectuate any matter or things pertaining to or belonging to” Mrs. Bryant. It gave Mr. Bryant the power to “take all other actions as may be necessary or appropriate for [Mrs. Bryant’s] personal well-being and the management of [Mrs. Bryant’s] affairs, as fully and as effectively as if made or done by [Mrs. Bryant] personally.” Further, the POA gave Mr. Bryant the authority to execute these powers, notwithstanding the fact that he may be acting individually. Thus, it appears that Mrs. Bryant’s intent was to give her husband broad authority to effectuate her legal rights.

In Estate of Schriver v. Schriver, 441 So.2d 1105 (Fla. 5th DCA 1983), the appellate court interpreted a similar broad grant of authority in, a durable power of attorney. Id. at 1106-07. The durable power of attorney in Schriver authorized the donor’s daughter to “ ‘execut(e) ... any instrument which may be requisite ... to effectuate any ... thing pertaining ... to me.’ ” Id. at 1106. The court interpreted these words to be “all-inclusive to allow the donee to do any legal act the donor could do on her own.” Id. at 1106-07. In Schriver, this meant the authority to sign documents which secured and protected any legal interest of the donor. Id. at 1107. The POA in the instant case contains a. similar broad grant of authority. Accordingly, Mr. Bryant had the authority under the POA to agree to arbitration of any claims arising out of Mrs. Bryant’s residency with Alterra.

Mrs. Bryant claims next that the trial court erred in severing the offending clauses because the severed terms go to the essence of the agreement, making the entire agreement unenforceable. Mrs. Bryant relies here on Lacey, where this court found severance inappropriate, under the facts and circumstances of that case, because the invalid provisions went to the essence of the contract. 918 So.2d at 335. However, there was no severance clause in Lacey, which was critical to that determination. Id.

The instant case is analogous to VoiceStream Wireless and Fonte. In Voi-ceStream Wireless, this court found that despite the presence of unenforceable limitation of liability and waiver of appeal provisions, “where the contract contains a severability clause, their presence does not require a holding that the arbitration agreement is similarly unenforceable.” 912 So.2d at 38. Generally, contractual provisions are severable, where the illegal provisions do not go to the contract’s essence, and, there remain valid legal obligations with the illegal provisions eliminated. See Fonte, 903 So.2d at 1024 (citing Gold, Vann & White, P.A. v. Friedenstab, 831 So.2d 692 (Fla. 4th DCA 2002)). Severance is appropriate where the void provision can be severed without affecting the intent of the parties to arbitrate. See Fonte, 903 So.2d at 1024 (severing prohibition on award of attorney’s fees).

The Agreement contains a severance provision. The severance provision provides, “[s]hould any part of this Agreement be invalid, the validity of the other parts of this Agreement will not be affected.” The offending provisions can be severed without affecting the intent of the parties to arbitrate. The Agreement contains seven full pages of arbitration and limitation of liability provisions, which would still afford the parties ample guidelines and opportunity for arbitration, absent the offending provisions. Therefore, the trial court did not err in severing the offending provisions.

Mrs. Bryant’s last argument proposes that there is no arbitration provision to enforce regarding Clare Bridge because the Agreement applied only to her stay at Sterling House; and alternatively, because Mr. Bryant never signed a subsequent agreement provided to him after Mrs. Bryant’s move to Clare Bridge. We disagree. This court reviews the validity of a contract de novo. Consol. Res. Healthcare Fund I, Ltd. v. Fenelus, 853 So.2d 500, 503 (Fla. 4th DCA 2003). In that de novo review, this court determines whether the trial court’s factual findings will sustain its legal conclusion based thereon. Id.

The trial court relied on Integrated Health Services of Green Briar, Inc. v. Lopez-Silvero, 827 So.2d 338 (Fla. 3d DCA 2002), where the appellate court held that “[a] contract is binding, despite the fact that one party did not sign the contract, where both parties have performed under the contract.” Id. at 339. In Lopez-Silve-ro, a nursing home admitted a resident and cared for him for two months, despite the fact that the nursing home did not sign the admission contract. Id. at 338-39. The parties signed other documents related to nursing home services. Id. The court found that both parties assented to the admission contract because both parties acted as if a valid contract existed. Id.; see also Fenelus, 853 So.2d at 503-04 (finding that nursing home assented to admission agreement, despite not signing the agreement, where both parties performed under the contract for more than three years).

Here, the trial court found that only one admission agreement was signed when Mrs. Bryant was admitted to Sterling House. The Agreement was titled the “Alterra Residency Agreement.” The trial court found that Mr. Bryant was fully aware that Mrs. Bryant moved to Clare Bridge. He was given a subsequent admission agreement when Mrs. Bryant entered Clare Bridge, but never signed it. The trial court determined that both parties performed under the terms of the Agreement that was signed by Mr. Bryant. Thus, the trial court’s conclusion on the Agreement’s applicability to both residences is consistent with its factual findings, which are supported by competent, substantial evidence.

Affirmed.

GUNTHER and MAY, JJ., concur.

      . Effective July 1, 2006, these sections have been renumbered as 429.28 and 429.29.

      . Hereinafter, “Alterra,” "McCauley” and “Schuessler” will be collectively referred to as "Alterra.”

      . Mrs. Bryant claims also that the trial court erred in construing the POA's Health Care Surrogacy Designation as a basis for determining that Mr. Bryant had the authority to waive Mrs. Bryant's right to a jury trial, citing Blankfeld, 902 So.2d at 299-301 (finding that a health care proxy lacked the authority to agree to an arbitration provision waiving the patient’s common law remedies and right to trial by jury). However, there is no indication in the trial court’s order that the Health Care Surrogacy Designation was a factor in the trial court’s decision as to Mr. Bryant's authority. The trial court’s decision was based on other provisions of the POA. Thus, we decline to address this argument.


text:
    Victor G. WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1999.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Victor G. Washington, Miami, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Victor Washington appeals the summary denial of his rule 3.850 motion for postcon-viction relief. We reverse that ruling as the lower court should not have reached the merits of the motion. We remand with instructions to grant Washington’s motion to withdraw.

Washington filed his rule 3.850 motion on October 26, 2005 and the lower court ordered a state response on November 21, 2005. On April 4, 2006, prior to-the state filing a response, Washington attempted to withdraw his rule 3.850 motion. Washington believed his postconviction motion was premature because he wanted to pursue a belated appeal of his open pleas and sentence. Washington provided to prison officials this motion to withdraw the postcon-viction pleading three days before the state filed its response on April 7, 2006. The lower court denied the postconviction motion without ruling on the motion to withdraw. It appears the lower court may not have been provided a copy of the motion to withdraw prior to ruling on the merits of the postconviction motion.

Washington was entitled to withdraw his rule 3.850 motion up to and until the lower court ruled on the merits, so long as the state did not show prejudice. See Carvalleria v. State, 675 So.2d 251 (Fla. 3d DCA 1996) (citing Simon v. State, 768 So.2d 1089 (Fla. 3d DCA 1995)). The state has failed to show how it would be prejudiced by the voluntary dismissal of the rule 3.850 motion. Instead, the state incorrectly contends Washington is not entitled to a belated appeal from an open plea. Whether Washington has grounds for a belated appeal is irrelevant to the instant proceeding and this opinion should not be read to indicate any decision on such a petition.

Where the state would suffer no prejudice from allowing withdrawal of a rule 3.850 motion, our supreme court has noted the denial of the motion to withdraw “constitute[s] an abuse of discretion.” Clark v. State, 491 So.2d 545, 546 (Fla.1986). While the lower court, in the instant case, did not deny the motion to withdraw, as did the lower court in Clark, the inadvertent failure to grant such relief, when timely requested, should not be allowed to stand. Washington timely sought to withdraw his motion for postconviction relief and thus it would be an abuse of discretion to not allow the motion to be withdrawn. We remand to the lower court to grant Washington’s motion to withdraw and to dismiss his rule 3.850 motion without prejudice.

Reversed and remanded.

GUNTHER, WARNER and SHAHOOD, JJ., concur.


text:
    Nathaniel BRAZILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2471.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.
    Nathaniel Brazill, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Nathaniel Brazill (Defendant) appeals an order summarily denying, as untimely, his motion for post-conviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse and remand.

This court affirmed Defendant’s direct appeal by written opinion. Brazill v. State, 845 So.2d 282 (Fla. 4th DCA 2003), rev. denied, 876 So.2d 561 (Fla.2004). This court’s mandate issued on May 30, 2003, but on June 12, 2003, Defendant filed a timely notice of intent to invoke discretionary jurisdiction of the Florida Supreme Court to review this court’s decision, which the Florida Supreme Court denied by order dated May 21, 2004. Brazill v. State, 876 So.2d 561 (Fla.2004).

The trial court summarily denied as untimely Defendant’s rule 3.850 motion, filed on May 11, 2006, because it was filed more than two years after May 30, 2003. However, Defendant had two years from May 21, 2004, in which to file a timely motion for post-conviction relief. Gaskin v. State, 737 So.2d 509 (Fla.1999) (holding that if a defendant petitions the supreme court for review of his direct appeal, the time for filing a motion for post-conviction relief begins to run when the petition has been determined), receded from on other grounds by Nelson v. State, 875 So.2d 579 (Fla.2004).

Accordingly, we reverse and remand for further proceedings.

KLEIN, TAYLOR and HAZOURI, JJ., concur.


author: MAY, J.

text:
    Sylvester DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3301.
    District Court of Appeal of Florida, Fourth District.
    Sept. 13, 2006.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for operating a sports bike without a proper license and driving with a suspended license as a habitual offender. He argues that his counsel’s failure to object to numerous questions and comments by the prosecutor constituted ineffective assistance of counsel requiring the reversal of his conviction. We have reviewed the errors and find that collectively they constitute fundamental error. We therefore reverse the defendant’s conviction.

In 2000, the defendant filed a lawsuit against the Fort Pierce Police Department, alleging he was “beaten, maced and humiliated” by five officers. He prevailed in his lawsuit.

A sergeant with the Fort Pierce Police Department, who knew about the lawsuit, testified that he saw the defendant riding a red and white Honda sports bike around 1:00 p.m. on February 25, 2003. The sergeant also knew the defendant’s license was suspended, but because he was responding to another call, he did not stop the defendant. The sergeant later confirmed the defendant’s license suspension.

Around 2:30, the sergeant saw the defendant standing in a driveway about sixty feet from the same sports bike. He told the defendant he had seen him driving the bike and asked him for his driver’s license. The defendant produced only an identification card, which the sergeant used to again confirm the suspension of the defendant’s license.

When confronted by the sergeant, the defendant denied having driven the sports bike. Nevertheless, he was arrested. According to the sergeant, the key to the bike was found in the defendant’s pocket.

Another officer, who also knew of the lawsuit, testified that he too saw the defendant riding the sports bike twice that day, but did not pull him over because he was unaware of the suspended license. Defense counsel used a sworn statement from an internal police investigation to impeach the officer. In that statement, the officer claimed he saw the defendant driving the sports bike the day before, not the day of, the arrest.

At trial, the defendant testified that his girlfriend had driven him to a friend’s house before noon, where he had remained until his arrest. He denied riding the sports bike.

Martin Brown, the defendant’s friend, also testified that the defendant’s girlfriend drove him to Brown’s residence before noon, where he had stayed prior to the arrest. According to Brown, another man named Boals arrived on the sports bike.

The defense then called Boals, who testified he was considering purchasing the sports bike from a friend and had been in possession of it for over twenty-four hours. He did not give the key to the defendant and did not let the defendant ride the bike. According to Boals, the key was in the ignition of the sports bike when the police arrested the defendant.

The state charged the defendant with operating a sports bike without a proper license and driving with a suspended license as a habitual offender. The jury found the defendant guilty as charged. The trial court sentenced the defendant to thirty-six months in prison.

The defendant raises a number of issues. Ultimately, he argues that the cumulative effect of his counsel’s failure to object to the prosecutor’s improper questioning and comments constituted ineffective assistance of counsel. The majority of unob-jected-to remarks concern the direct questioning of defense witnesses as to whether the State witnesses were lying and direct comments that defense witnesses had a motive to lie. Correspondingly, the prosecutor suggested the law enforcement officers would not lie because it would put their careers at risk. The prosecutor also improperly questioned the defendant about his prior convictions. We find error in two areas, the cumulative effect of which constitutes fundamental error.

“In order for a prosecutor’s comments to be deemed prejudicial, they must ‘vitiate the trial or so poison the minds of the jurors that [the defendant] did not receive a fair trial.’ ” Gonzalez v. State, 786 So.2d 559, 567 (Fla.2001) (quoting Harris v. State, 742 So.2d 835, 839 (Fla. 2d DCA 1999)). The general rule is that the failure to raise a contemporaneous objection to those comments constitutes a waiver of the right to claim error on appeal. See Brooks v. State, 762 So.2d 879, 898 (Fla.2000). As our supreme court has observed:

[t]he sole exception to this general rule is where the unobjected-to comments rise to the level of fundamental error. In order for an error to be fundamental and justify reversal in the absence of a timely objection, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”

Spencer v. State, 842 So.2d 52, 74 (Fla.2003) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)) (citations omitted).

In a criminal prosecution, “it is an invasion of the jury’s exclusive province for one witness to offer his personal view on the credibility of a fellow witness.” Boatwright v. State, 452 So.2d 666, 668 (Fla. 4th DCA 1984). Here, the prosecutor five times questioned defense witnesses, including the defendant, about whether certain State witnesses were lying. The prosecutor then commented that the defendant and his witnesses had a motive to be untruthful and asked the jury not to allow them to get away with it. Several times during closing argument, the prosecutor argued the defendant and his witnesses had made up the story.

The number of occasions in which this prosecutor resorted to the suggestion that the witnesses were lying borders on the line of impropriety. However, it is not improper for a prosecutor to raise the credibility of witnesses and allow the jury to decide the ultimate issue. Craig v. State, 510 So.2d 857, 865 (Fla.1987) (“When counsel refers to a witness or a defendant as being a ‘liar,’ and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence.”) Here, the evidence was in conflict, either the defendant rode the sports bike or he did not. Thus, the evidence gave rise to the prosecutor’s questions and comments. We find no error here.

However, when the prosecutor correspondingly advised the jury that the officers would not lie because they would not want to risk their careers, the line of impropriety was crossed. “It is ... improper for the state to vouch for the credibility of a police officer by arguing that the jury should believe police officers solely because they are police officers.” Johnson v. State, 801 So.2d 141, 142 (Fla. 4th DCA 2001). “This court has repeatedly condemned comments that the jury should believe a police officer because the officer would not put his or her career on the line by committing perjury.” Sinclair v. State, 717 So.2d 99, 100 (Fla. 4th DCA 1998).

Here, on at least two occasions, the prosecutor argued the officers would not lie because they would not risk their careers as law enforcement officers. The prosecutor also told the jury the officers could be believed because they were police officers. These comments were improper. See Johnson, 801 So.2d at 142. This mistake was compounded when the State improperly questioned the defendant about his prior felony convictions, including a prior conviction for driving with a suspended license.

The State may impeach a witness by use of prior convictions. See Mosley v. State, 739 So.2d 672, 676 (Fla. 4th DCA 1999). However, specific guidelines must be followed. First, the State may inquire if the witness has ever been convicted of a felony. Id. If the witness answers in the affirmative, the State may inquire into the number of times the witness has been convicted of a felony and if the witness has ever been convicted of a misdemeanor involving dishonesty or false statement. Id. “The general rule is that ‘[i]f [the witness] denies the conviction, the opposing party may produce the record of the conviction. In either event, the inquiry must stop at that point. The matter may not be pursued to the point of naming the crime.’ Id. (quoting Kyle v. State, 650 So.2d 127, 127 (Fla. 4th DCA 1995)).

Here, on direct examination, the defendant admitted to two or three prior felony convictions. He reaffirmed this information on cross-examination. After.a bench conference, the prosecutor asked the defendant if he had been convicted of four specific felonies, each time identifying the date and name of the felony. The defendant admitted to them, including a conviction for driving while his license was revoked as a habitual traffic offender.

In this case, the individual errors separate and apart from one another would not rise to the level of fundamental. However, this case turned entirely on the credibility of the witnesses in a classic conflict of the facts. Under these circumstances, the cumulative effect of the prosecutor’s continuous labeling of the defense witnesses as liars, coupled with the prosecutor’s repeated suggestion that the'law enforcement officers would not jeopardize their careers, and topped with improper impeachment of the defendant regarding his prior convictions resulted in fundamental error. Cochran v. State, 711 So.2d 1159, 1163 (Fla. 4th DCA 1998) (multiple improprieties in a prosecutor’s closing argument may reach “the critical mass of fundamental error.”)

We therefore reverse and remand the case for a new trial.

GUNTHER and HAZOURI, JJ., concur.