author: ANSTEAD, J. CANTERO, J., LEWIS, C.J., WELLS, J.,

text:
    Beverly WILLIAMS, Petitioner, v. Cecelia DAVIS, et al., Respondents.
    No. SC05-1817.
    Supreme Court of Florida.
    Nov. 21, 2007.

      Jack W. Shaw, Jr., Winter Park, FL, for Petitioner.
    Dirán V. Seropian of Peterson Barnard, West Palm Beach, FL, Edna L. Caruso, West Palm Beach, FL, and Charles E. Emanuel of Gary, Williams, Parenti, Fin-ney, Lewis, McManus, Watson and Sper-ando, Stuart, FL, for Respondents.
   ANSTEAD, J.

We have for review a decision of the Fifth District Court of Appeal posing a question which the court certified to be of great public importance:

DOES THE FORESEEABLE ZONE OF RISK ANALYSIS ESTABLISHED IN MCCAIN [V. FLORIDA POWER CORP., 593 So.2d 500 (Fla.1992),] APPLY TO PRIVATE OWNERS OF NON-COMMERCIAL PROPERTY CONTAINING FOLIAGE THAT BLOCKS MOTORISTS’ VIEW OF AN ADJACENT INTERSECTION AND CAUSES AN ACCIDENT WITH RESULTING INJURIES?

Davis v. Dollar Rent A Car Sys., Inc., 909 So.2d 297, 305 (Fla. 5th DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For purposes of our review we reword the question certified:

DOES THE FORESEEABLE ZONE OF RISK ANALYSIS ESTABLISHED IN MCCAIN V. FLORIDA POWER CORP., 593 So.2d 500 (Fla.1992), APPLY TO PRIVATE OWNERS OF RESIDENTIAL PROPERTY CONTAINING FOLIAGE THAT DOES NOT EXTEND INTO THE PUBLIC RIGHT-OF-WAY SO AS TO CREATE A DUTY BY THE LANDOWNER TO ADJACENT MOTORISTS?

We answer the reworded certified question in the negative and hold that while the McCain foreseeable zone of risk analysis applies, we conclude that under that analysis owners of private property do not owe a duty to motorists on abutting roadways as to the maintenance of foliage located wholly within the bounds of the property. We do recognize, however, that all property owners owe a duty, under a McCain analysis, not to permit the growth of foliage on their property to extend outside the bounds of the property and into the public right-of-way so as to interfere with a motorist’s ability to safely travel on the adjacent roadway.

Circumstances of This Case

The facts and history of the case are set out in the district court’s opinion in Davis. Twanda Green, an employee of Diamond Transportation Services, Inc., was involved in a vehicular accident in Orlando while transporting vehicles in a procession from one rental car location to another. Davis, 909 So.2d at 299. Green, the driver of the fifth of six vehicles, was traveling west on Pine Street as it formed a “T” intersection with Sidney Hayes Road. As she approached, she faced a yield sign at the end of Pine Street. She was in the process of making a left-hand turn onto Sidney Hayes Road when she was struck by a dump truck approaching the intersection of Sidney Hayes Road and Pine Street. Green died from the injuries caused by the collision. Id. As personal representative of Green’s estate, respondent Cecelia Davis brought this action against several defendants, including Beverly Williams, who owns residential property abutting the intersection. Id. Davis claimed that foliage on the property obstructed Green’s view of other traffic as she approached the intersection. Id.

In response to this action, Williams served Davis with a request for admission asking Davis to admit or deny that Williams owed or assumed a duty of care to drivers on the abutting roadway approaching the intersection. Id. Davis did not timely respond, so the trial court entered summary judgment, concluding that Williams owed Davis no duty of care. Id. On appeal, the Fifth District reversed, finding both that Davis’s failure to timely respond did not bar suit because the request for admission concerned a conclusion of law rather than an issue of fact, and that under a McCain negligence analysis, Williams owed Davis and other motorists a duty of care to maintain the foliage on the property so as not to restrict the visibility of motorists at the intersection. Id. at 304-05.

While the district court opinion refers to “overgrown foliage” and “obstructing foliage,” id. at 303-04, 313, we find no indication in the record or in the briefs of the parties that Davis is claiming that the foliage on Williams’ property actually extended outside the bounds of the property or into the right-of-way. Because that factual issue is critical to our analysis, we are assuming there is no claim of intrusion into the public right-of-way. However, that issue’s resolution will be left to further proceedings below. As noted by the district court, because this case is on review of the grant of a summary judgment, any doubts on this issue must be resolved in favor of Davis. See Davis, 909 So.2d at 304.

Negligence

We examine the existence of a common law duty based upon principles of negligence set forth in our case law as applied to the circumstances alleged in the complaint in this case. In McCain and other decisions, we have held that a claim of negligence requires the establishment of four elements in order for a claimant to prevail. The claimant must first demonstrate that the defendant owed a “duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003) (quoting Prosser and Keeton on the Law of Torts § 30, at 164 (W. Page Keeton et al. eds., 5th ed.1984)). Second, the claimant must establish that the defendant failed to conform to that duty. Id. Third, there must be “[a] reasonably close causal connection between the [nonconforming] conduct and the resulting injury” to 'the claimant. Id. Fourth, the claimant must demonstrate some actual harm. Id.

Florida tort law has long recognized an entirely distinct set of rules as to the duties owed by a landowner to those who come upon the property, and the law has recognized limited, if any, duties owed by a landowner to those who do not come on the property. See Wood v. Camp, 284 So.2d 691, 695 (Fla.1973); Post v. Lunney, 261 So.2d 146,147-48 (Fla.1972); Barrio v. City of Miami Beach, 698 So.2d 1241, 1243 (Fla. 3d DCA 1997); McCray v. Myers, 614 So.2d 587, 588-90 (Fla. 1st DCA 1993). At issue is whether we should extend the McCain negligence analysis to apply to the circumstances presented herein and establish a duty on the part of the residential landowner to adjacent motorists.

McCain and the Foreseeable Zone of Risk Test

We explained in McCain that duty ordinarily arises from four general sources: “(1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.” McCain, 593 So.2d at 503 n. 2 (citing Restatement (Second) of Torts § 285 (1965)).

We further explained that the determination of the existence of a common law duty flowing from the general facts of the case under our negligence law depends upon an evaluation of the concept of foreseeability of harm. Id. at 503. We held that where a person’s conduct is such that it creates a “foreseeable zone of risk” posing a general threat of harm to others, a legal duty will ordinarily be recognized to ensure that the underlying, threatening conduct is carried out reasonably. Id. at 502-03. As noted by the district court in Davis, 909 So.2d at 311 & n. 1, we have applied the McCain analysis to a countless variety of factual circumstances in order to determine the existence of a duty under our negligence law.

Prior Rejection of Agrarian Rule of No Liability

In Whitt v. Silverman, 788 So.2d 210 (Fla.2001), we considered factual circumstances somewhat similar to those before us today, although involving commercial; rather than residential property. See id. at 212. We explained that before our McCain decision, Florida courts had followed the common law “agrarian rule” to determine whether a duty exists by landowners to motorists or others passing on a neighboring highway. Whitt, 788 So.2d at 213-14, 216. Under the strict agrarian rule, a landowner could never be held liable for harm occurring to motorists on adjacent roadways as a result of natural conditions on the land regardless of any alleged neglect of the landowner. See, e.g., Whitt, 788 So.2d at 213; Restatement (Second) of Torts § 363(1) (1965); Keeton et al., supra, § 57, at 390.

In Whitt, we rejected application of the absolute no-liability agrarian rule in considering whether a commercial landowner in an urban setting owed a duty to motorists and pedestrians who might be harmed by conditions on the property. Instead, we applied the “zone of risk” foreseeability analysis articulated in McCain: “[W]e conclude that under our analysis in McCain, the landowners’ conduct here created a foreseeable zone of risk posing a general threat of harm toward the patrons of the business as well as those pedestrians and motorists using the abutting streets and sidewalks.... ” Whitt, 788 So.2d at 222. Importantly, we noted that our reliance on the McCain foreseeability test was appropriate because we had intended McCain to function “as a restatement of the law of negligence.” Whitt, 788 So.2d at 218.

As is properly pointed out in both the majority and dissenting opinions below, the facts in Whitt are not identical to the facts herein. See Davis, 909 So.2d at 310-11 (majority opinion on rehearing); Davis, 909 So.2d at 307-09 (Griffin, J., concurring in part and dissenting in part). The property at issue in Whitt was a service station in Miami Beach, an urban commercial property subject to high-volume traffic. 788 So.2d at 213, 222. The plaintiffs in Whitt claimed that foliage located on the service station property impaired the visibility of the adjacent sidewalk and roadway and thereby caused an exiting motorist to fail to see two pedestrians whom the motorist struck and killed. Id. at 212-13. This Court was therefore faced with deciding whether a duty existed between the owners of the service station and pedestrians off the property to provide safe egress of vehicles from the premises, and our affirmative holding on that issue was limited to the circumstances presented:

We conclude that an inquiry as to the liability of a landowner under the circumstances presented here of a commercial business in an urban area specifically relying on the frequent coming and going of motor vehicles should be guided by a foreseeability analysis, which, as we have ft-equently stated, is governed by our pronouncements in McCain. In the instant case, the landowners were the owners of a commercial establishment, a service station, which by its very nature involves a continuous flow of traffic entering and exiting the premises for the commercial benefit of the landowners.

Id. at 222. Hence, reduced to its essence, Whitt stands for the proposition that a business may be held liable to pedestrian passers-by by reason of the failure of the business to provide safe egress to vehicles exiting the premises.

Nevertheless, while the actual holding of Whitt may have been narrow, that conclusion was predicated upon our express rejection of the so-called agrarian rule of no liability in favor of an analysis under McCain. In fact, even before our decision in Whitt, Florida courts had applied McCain principles to circumstances similar to those presented herein and in Whitt. See Dykes, 645 So.2d at 52 (applying McCain to determine liability of city for trees and bushes along right-of-way obstructing view of motorists); Grier v. Bankers Land Co., 539 So.2d 552, 553 (Fla. 4th DCA 1989) (reversing summary judgment in favor of a defendant landowner where foliage protruding from defendant’s property into the right-of-way obstructed approaching motorist’s view of the intersection); Fernandez v. Flores, 467 So.2d 364, 365 (Fla. 2d DCA 1985) (finding that a jury question was presented where car of property owner parked on shoulder of road obstructed approaching motorist’s view of the intersection); Armas v. Metro. Dade County, 429 So.2d 59, 60-61 (Fla. 3d DCA 1983) (reversing summary judgment in favor of a defendant landowner where foliage protruding from defendant’s property into the public right-of-way obstructed approaching motorist’s view of a stop sign); Morales v. Costa, 427 So.2d 297, 298 (Fla. 3d DCA 1983) (same).

Indeed, the Fifth District’s opinion on rehearing correctly notes that Florida courts had recognized the duty of a landowner to adjacent motorists in cases preceding our holding in Whitt:

For example, a private non-commercial landowner who allows a limb from a tree on his or her property to protrude over the boundary line and obscure a sign on a roadway may be held liable to a motorist who is unable to see the sign and abide by its message. See Armas v. Metropolitan Dade County, 429 So.2d 59 (Fla. 3d DCA 1983); Morales v. Costa, 427 So.2d 297 (Fla. 3d DCA), review denied, 434 So.2d 886 (Fla.1983). In Sullivan v. Silver Palm Properties, Inc., 558 So.2d 409 (Fla.1990), the Florida Supreme Court discussed the decisions in Armas and Morales and the foreseeability of the danger posed by a branch that overhangs the landowner’s property and obstructs a traffic control sign. The court stated that “common sense required that a duty be imposed upon the landowner to remove landscaping which obstructed critical traffic signage. Vegetation that overhangs and blocks out a traffic control device constitutes an obvious condition and presents an imminent danger of uncontrolled traffic.” Id. at 411 (quoting Silver Palm Props., Inc. v. Sullivan, 541 So.2d 624, 626 (Fla. 3d DCA 1988)). Surely, if the danger posed by an overhanging branch that obstructs a sign is foreseeable, the danger posed by a stand of foliage large enough to block the view of an entire intersection is also foreseeable. To follow the rationale of Williams to its logical conclusion would result in the anomalous situation in the law that a private landowner may be held liable for a branch of a tree that blocks the view of a sign, but may escape liability for a large stand of foliage that blocks the view of an entire intersection.

Davis, 909 So.2d at 313. We agree with the district court that even before our decision in Whitt, numerous Florida cases properly applied a McCain analysis in holding landowners responsible under a standard of reasonable care for conditions emanating from their property that were determined to constitute a danger and hazard to others. See Davis, 909 So.2d at 311-12 & n. 1.

In fact, as early as 1937 this Court recognized a duty of landowners extending to those off the premises, and thereby implicitly, at least, rejected any absolute rule of no liability:

[TJhere is no liability on the part of a landowner to persons injured outside his lands (which includes persons on adjacent highways), unless the owner has done or permitted something to occur on his lands which he realizes or should realize involves an unreasonable risk of harm to others outside his land, and therefore imposes on him, as an owner or possessor of the land, the duty of abating or obviating the use or condition from which the risk is encountered.

Hardin v. Jacksonville Terminal Co., 128 Fla. 631, 175 So. 226, 228 (1937). This language from Hardin was cited by Judge Schwartz in a dissent we discussed in Whitt. See supra note 4.

In Sullivan v. Silver Palm Properties, Inc., 558 So.2d 409 (Fla.1990), an opinion cited by the district court, while finding no liability for root growth beyond the property, we explained a specific example of the duty owed by landowners while approving the Third District’s characterization of the prior holdings in Armas and Morales:

As the majority below noted:

[Cjommon sense required that a duty be imposed [in Armas and Morales ] upon the landowner to remove landscaping which obstructed critical traffic signage. Vegetation that overhangs and blocks out a traffic control device constitutes an obvious condition and presents an imminent danger of uncontrolled traffic. The offending branch, moreover, need only be clipped away, a straightforward remedy.

Sullivan, 558 So.2d at 411 (quoting Silver Palm Props., Inc. v. Sullivan, 541 So.2d 624, 626 (Fla. 3d DCA 1988)). It is important to note that these earlier decisions, like our decision in Whitt, rejected any absolute rule of no liability in favor of an application of McCain’s principles. Further, in applying the law from these decisions, like the district court, we can see little, if any, meaningful distinction between an obstruction of vision of a road right-of-way to a motorist approaching an intersection, and an obstruction to vision of a highway control device to a motorist approaching the same intersection. In both instances, motorists may be impaired in their ability to safely traverse the intersection.

As we noted in Whitt, it is apparent that today’s society is much more urban than the society that produced the no-liability agrarian rule. See Whitt, 788 So.2d at 222. As a consequence, courts must remain alert to the changes in our society that may give rise to the recognition of a duty even where none existed before. Absolute rules, while predictable in the outcomes they produce, may not be suitable to protect societal interests. This is especially true as we attempt to cope with the carnage on our highways. While a strict rule of immunity from liability for harms caused by conditions on land adjacent to roadways may have once been a practical necessity for an agrarian society and economy, it is markedly less so in Florida’s modern society and landscape. See Keeton et ah, supra, § 57, at 391. In the modern landscape it has become an inescapable fact that people rely heavily, if not exclusively, on the automobile for transportation both in rural and urban communities. We simply cannot ignore the fact that every year highway accidents kill thousands and injure millions of our citizens, while inflicting economic costs in the billions of dollars. Under these circumstances, the dominance of the automobile and the dangers incident thereto have become a modern fact of life that make it more likely that a dangerous condition on private property at a highway intersection may cause harm to those on adjacent roadways.

However, with the exception of our holding in Whitt, there are no Florida decisions imposing liability upon a property owner based on natural conditions contained wholly within the boundary of the private property. See Stevens v. Liberty Mut. Ins. Co., 415 So.2d 51, 52 (Fla. 3d DCA 1982) (asserting that in the absence of a violation of a statute, a landowner does not have a duty to “maintain his property in a condition so that a motorist approaching a public highway intersection can see other approaching motorists”); Pedigo v. Smith, 395 So .2d 615, 615-17 (Fla. 5th DCA 1981) (finding no liability of landowner for visual obstruction of tree located on the property); Evans, 391 So.2d at 232-33 (declining to impose liability where foliage entirely on property obstructed view of the intersection). This remains a critical distinction in our case law where we have recognized a duty of landowners to motorists. In all of the cases where a duty has been recognized prior to Whitt, the landowner was charged with permitting conditions on the property, such as overgrown foliage, to intrude into the public right-of-way and, for example, to block a motorist’s view of a traffic control device or of other vehicle traffic. As we noted in Sullivan, it is in those instances where the condition emanating from the private property is alleged to have intruded into the public way and had a foreseeable harmful effect on the visibility of the adjacent public right-of-way that the landowner has been held subject to liability under McCain’s negligence principles. See Sullivan, 558 So.2d at 411. We find this distinction in our case law serves to draw a clear and manageable line for citizens and courts.

We conclude that these prior decisions can best be reconciled by a recognition that ordinarily a private residential landowner should be held accountable under the zone of risk analysis principles of McCain only when it can be determined that the landowner has permitted conditions on the land to extend into the public right-of-way so as to create a foreseeable hazard to traffic on the adjacent streets. In Hardin, we talked in terms of a landowner being free of responsibility “unless the owner has done or permitted something to occur on his lands which he realizes or should realize involves an unreasonable risk of harm to others outside his land.” 175 So.’ at 228. This, of course, is very similar to the foreseeable zone of risk analysis we established in McCain to determine the existence of a legal duty. Applying that test here, we can see little basis for imposing liability on the owner of a wooded residential lot for passively permitting the property to remain in its natural condition so long as the growth does not extend beyond the property’s boundaries. Unlike the situation in Whitt, wherein we concluded that it should be foreseeable to the operator of a commercial service station that obstructions to the vision of an exiting motorist could constitute a danger to adjacent pedestrians, we find it unlikely that a residential landowner would foresee that adjacent motorists would be endangered by the mere presence of foliage on the property.

In short, while we conclude that McCain’s principles of duty should be extended in appropriate circumstances to owners or occupiers of commercial property and to other property owners who permit conditions on their property to extend into the public right-of-way, we do not believe McCain’s principles lead to a finding of duty here. While all property owners must remain alert to the potential that conditions on their land could have an adverse impact on adjacent motorists or others, we are not convinced the existing rules of liability established by our case law that distinguish conditions having an extra-territorial effect from those limited to the property’s boundaries should be abandoned.

We also must be ever mindful that motorists in Florida have a continuing duty to use reasonable care on the roadways to avoid accidents and injury to themselves or others. See Bellere v. Madsen, 114 So.2d 619, 621 (Fla.1959) (stating that a motorist has a duty to drive with reasonable care commensurate with the road and surroundings); Nelson v. Ziegler, 89 So.2d 780, 783 (Fla.1956) (stating that a driver has a duty to exercise reasonable care while driving on a public roadway). That duty includes a responsibility to enter intersections only upon a determination that it is safe to do so under prevailing conditions. That continuing duty of motorists is not affected by our holding today.

Conclusion

Because of the great reliance on automobiles, the higher population density in today’s society, and the critical importance of highway safety, all citizens must share the responsibility to assure public safety. Although motorists continue to be primarily responsible for navigating our highways in a safe manner, Florida’s system of comparative negligence ensures that the fault of all who may have acted negligently will be taken into account in determining responsibility for a particular injury. However, while we have found there is no principled basis for not extending the law of negligence set out in McCain to the conditions on private property that may protrude into the public right-of-way so as to create a hazard to adjacent traffic, we conclude that residential landowners who do not permit conditions on their land to extend beyond its boundaries should not be subject to the same liability.

Accordingly, we answer the reworded certified question in the negative, quash the decision of the district court, and remand this case for further proceedings consistent herewith.

It is so ordered.

PARIENTE, QUINCE, and CANTERO, JJ., concur.

CANTERO, J., concurs with an opinion.

LEWIS, C.J., concurs in result only with an opinion, in which WELLS and BELL, JJ., concur.

WELLS, J., concurs in result only with an opinion, in which BELL, J., concurs.

CANTERO, J.,

concurring.

. I join the Court’s decision. I write only to emphasize that even foliage encroaching onto the public right-of-way does not necessarily breach a duty to pedestrians or motorists. As the majority repeatedly states, ordinarily a landowner should be held accountable only when conditions on the land “extend into the public right-of-way so as to create a foreseeable hazard to traffic on the adjacent streets.” Majority at 1062. In other words, not every encroachment of foliage will result in liability. As the ordinance in this case reflects, foliage usually will obstruct a driver’s vision, if at all, only when it encroaches at a height between two to six feet. Oak trees, for example, may have branches twenty feet high that may rise over the street, but block no one’s view of traffic. In fact, our state is home to many “canopy roads,” some of which are considered historic, whose charm is precisely the thick green foliage that hangs over the road like a ceiling. Our decision today does not jeopardize such landscaping as long as it does not create a traffic hazard.

LEWIS, C.J.,

concurring in result only.

I concur in result only because the majority decision today with regard to the liability of a passive landowner is too expansive in analysis. I do not agree with regard to the extension of liability and the expansion of the analysis employed in Whitt v. Silverman, 788 So.2d 210 (Fla.2001), to the passive landowner circumstances presented in the instant case. In Whitt, it was conduct and the manner of operation of the property that created a situation in which vehicles were being discharged into the public right-of-way in an unsafe manner which produced responsibility, not the mere passive ownership of the land with vegetation. See id. at 222. The Whitt decision was not in any way premised on the notion that in our modern, more urban society, liability must always attach when an object on private property may interfere with a driver’s view of a second vehicle traveling on a nearby right-of-way so as to create a foreseeable zone of risk. Instead, it was the manner in which a gas service facility was operated that caused traffic to flow out of the property and into a public street which created the liability. The present dispute is clearly distinguishable from Whitt because here no object attached to or discharged from the property entered upon or obstructed the public right-of-way in any manner. In my view, the majority has now mixed, blended, and confused the general negligence conduct which creates a “foreseeable zone of risk” doctrine into the landowner duty to invitees principles, and then into the passive landowner duty to remove items extending beyond the property line protruding into public right-of-ways, to produce this decision.

It is undisputed that the foliage at issue here was entirely contained within the property boundaries. Therefore, the extension of the analysis in Whitt to the present matter is unnecessary, inappropriate, and may unnecessarily create extensive liability on the part of many passive Florida homeowners contrary to well-established law and without support of any Florida precedent. Until now, Florida law has clearly distinguished between the liability of property owners based on objects entirely on and within their property and responsibility for objects which may protrude into the public right-of-way. In Bassett v. Edwards, 158 Fla. 848, 30 So.2d 374 (1947), this Court clearly established that when foliage located entirely on and within real property boundaries becomes a visual obstruction for vehicles operated upon a public roadway and the view of an intersection, it is the duty of the operator of the vehicle to observe the obstruction and adjust the operation of the vehicle accordingly, not a duty upon the landowner to remove the vegetation. See id. at 376. Although it was uncontested in Bas-sett that the foliage obstructed the view of the intersection, no duty was imposed upon the owner of the property. See id. Since Bassett and until today, liability with regard to an obstructed view of an operator of a vehicle crossing an intersection has only been imposed on the owners of properties at those intersections where an object on the property or belonging to the property owner has escaped or is beyond the boundary of the real property and has moved into the public right-of-way, or where negligent actions have occurred. See Grier v. Bankers Land Company, 539 So.2d 552, 553 (Fla. 4th DCA 1989) (liability imposed where foliage protruding from property obstructed approaching motorist’s view of the intersection); Fernandez v. Flores, 467 So.2d 364, 365 (Fla. 2d DCA 1985) (liability imposed where automobile of property owner parked on shoulder of road obstructed approaching motorist’s view of the intersection); Morales v. Costa, 427 So.2d 297, 298 (Fla. 3d DCA 1983) (liability imposed where foliage protruding from property obstructed approaching motorist’s view of a stop sign); Armas v. Metropolitan Dade County, 429 So.2d 59, 60-61 (Fla. 3d DCA 1983) (same). Prior to the decision of the majority today, liability has never been imposed upon a passive property owner in Florida where an object entirely on and within the property boundary has obstructed the view of the intersection. See Stevens v. Liberty Mutual Ins. Co., 415 So.2d 51, 52 (Fla. 3d DCA 1982) (no liability imposed where foliage entirely on property obstructed view of the intersection); Evans v. Southern Holding Corp., 391 So.2d 231, 232 (Fla. 3d DCA 1980) (same). As noted by the Third District, Florida courts have not imposed liability in these situations, which is an ac-knowledgement that passive property owners have the right to use their property in any manner they choose so long as foliage does not protrude from their property. See Morales, 427 So.2d at 298.

The majority’s analysis may expose passive property owners in Florida to liability for a limitless number of “foreseeable” circumstances and may impose upon other well-established property rights. It is foreseeable that drivers may not only travel at, but may exceed, the speed limit and, therefore, under the majority’s approach, the clear cutting and leveling of all forms of trees and other vegetation may be required in a near limitless fashion. I would not expand the law as the majority appears to do without a factual case and controversy that requires such an expansion. The decision of the majority, based on hypothetical facts, is a practice we have avoided in the past and one which may produce unknown and unintended consequences.

WELLS and BELL, JJ., concur.

WELLS, J.,

concurring in result only.

I concur in quashing the decision of the district court but do not join in the opinion. The opinion is almost entirely dicta because it does not address the issues in this case.

I would answer the question as certified by the district court in the negative. That question was:

DOES THE FORESEEABLE ZONE OF RISK ANALYSIS ESTABLISHED IN MCCAIN [V. FLORIDA POWER CORP., 593 So.2d 500 (Fla.1992),] APPLY TO PRIVATE OWNERS OF NON-COMMERCIAL PROPERTY CONTAINING FOLIAGE THAT BLOCKS MOTORISTS’ VIEW OF AN ADJACENT INTERSECTION AND CAUSES AN ACCIDENT WITH RESULTING INJURIES?

The question certified by the district court addresses the issues of this case as framed by the pleadings themselves:

72. That at all times material hereto, Defendants WILLIAMS were the owners of real property located at the northeast corner at or near the intersection of Sidney Hayes Road and Pine Street in Orlando, Orange County, Florida.
73. That on or about August 25, 1997, decedent Twanda Green was operating a vehicle at or near the above-described intersection when she was hit broadside by oncoming traffic resulting in her death.
74. That according to the Investigative Report of the Florida Highway Patrol, said property was overgrown with bushes and trees thereby obscuring the view for westbound traffic on Pine Street, of the northbound lane of Sidney Hayes Road, up to a distance of approximately 12 feet from the intersection.
75. Defendants WILLIAMS had a duty and/or assumed a duty to maintain the vegetation growing on their property so that the vegetation would not obstruct the vision of drivers lawfully operating vehicles at or near the intersection of Pine Street and Sidney Hayes Road, Orlando.

Davis, 909 So.2d at 303 (setting forth the allegations of the third amended complaint). Based upon this pleading, it is seen that this case involves only the issue of whether the landowner “had a duty and/or assumed a duty to maintain the vegetation growing on their property.”

The majority’s reworded question concerns an issue which is not presented in this case. This case as pled and as decided below does not involve an issue concerning foliage on residential property extending outside the bounds of the property and into the right-of-way so as to interfere with a motorist’s ability to safely travel on the adjacent roadway. Since that is not an issue presented by this case, answering the rephrased certified question is the very essence of obiter dictum. See Bunn v. Bunn, 311 So.2d 387, 389 (Fla. 4th DCA 1975) (“[A] purely gratuitous observation or remark made in pronouncing an opinion and which concerns some rule, principle or application of law not necessarily involved in the case or essential to its determination is obiter dictum, pure and simple.”). Such dictum does not function as precedent. See Continental Assur. Co. v. Carroll, 485 So.2d 406, 408 (Fla.1986).

I find that Judge Griffin’s coneurring-in-part, dissenting-in-part opinion in the decision below directly and correctly decides the issue posed in this case. I would adopt her opinion.

BELL, J., concurs.

      . In addition, in a separate appeal, the Fifth District reversed a trial court decision dismissing Davis’s claim against Orange County predicated upon the county's alleged breach of a contract with the landowner requiring the county to keep the landowner's property free of obstructions by foliage at the intersection. Davis v. Orange County Bd. of County Comm’rs, 852 So.2d 370, 370-71 (Fla. 5th DCA 2003). The district court utilized the contract between Williams and the county as an additional basis for finding a duty voluntarily assumed by Williams in this case. Davis v. Dollar Rent A Car Sys., Inc., 909 So.2d 297, 304 (Fla. 5th DCA 2004). Further, while Davis relies on the common law of negligence and does not allege that a duty of care is established by statute or ordinance, the parties agree that such an ordinance existed in Orange County and provides in part:
      (b) Intersection visibility. When an ac-cessway intersects a public right-of-way, landscaping shall be used to define the intersection, provided, however, that all landscaping within the triangular areas described below shall provide unobstructed cross-visibility at a level between two (2) and six (6)'feet. Trees having limbs and foliage trimmed in such a manner that no limbs or foliage extend into cross-visibility shall be allowed, provided they are located so as not to create a traffic hazard. Landscaping, except for grass and ground cover, shall not be located closer than three (3) feet from the edge of any accessway.
      Orange County, Fla., Code § 24-4(b) (1992). We express no view about the effects of the contract or the ordinance on the potential liability of any party, and limit our discussion and decision to the question certified by the district court as we have restated that question.

      . In McCain, we also explained that it is .important to note the difference between the type of foreseeability required to establish a duty as opposed to that which is required to establish proximate causation.. 593 So.2d at 502-03. We explained that establishing the existence of a duty requires demonstrating that the activity at issue created a general zone of foreseeable danger of a certain type of harm to others. Id. at 502. By contrast, establishing proximate cause requires a factual showing that the dangerous activity fore-seeably caused the specific harm suffered by those claiming injury in the pending legal action. Id. In other words, establishing the existence of a duty under our negligence law is a minimum threshold legal requirement that opens the courthouse doors to the moving party, and is ultimately a question of law for the court rather than a jury. Id. The determination of whether that duty was breached in a particular instance, however, will ordinarily be reserved for the fact-finder, be it judge or jury. Id. at 504.

      . See, e.g., Goldberg v. Fla. Power & Light Co., 899 So.2d 1105, 1110-11 (Fla.2005) (finding a duty based on McCain because the defendant power company created a foreseeable zone of risk by terminating power to an intersection, thereby deactivating the traffic signals); Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla.2002) (citing to McCain regarding a duty of care on landowners to use reasonable care to keep their premises in a safe condition for invitees); Malicki v. Doe, 814 So.2d 347, 362 (Fla.2002) (using the McCain foreseeability analysis to determine whether to impose a duty upon a party for negligent hiring of an employee); Nova Se. Univ., Inc. v. Gross, 758 So.2d 86, 88 (Fla.2000) (imposing a duty on a university not to assign students to an internship site in an unreasonably dangerous location); Henderson v. Bowden, 737 So.2d 532, 535-37 (Fla.1999) (using McCain to find a duty on the part of sheriff’s deputies to passengers of a vehicle stopped because the driver was under the influence of alcohol when the deputies allowed a drunk passenger to drive the car to a nearby gas station to call his parents); Fla. Power & Light Co. v. Periera, 705 So.2d 1359, 1361 (Fla.1998) (finding a duty on the part of a power company to a motorcyclist who was riding his motorcycle unlawfully on a bicycle path and was struck by a wire); Kitchen v. K-Mart Corp., 697 So.2d 1200, 1202, 1208 (Fla.1997) (holding that the risk of danger was sufficient to create a duty on the part of a firearm retailer to third parties not to sell a firearm to a customer the retailer knew was intoxicated); Union Park Mem’l Chapel v. Hutt, 670 So.2d 64, 67 (Fla.1996) (holding that a funeral director who voluntarily undertook to direct a funeral procession owed a reasonable duty of care to a member of the procession who was injured in a traffic accident); Pate v. Threlkel, 661 So.2d 278, 279-80, 282 (Fla.1995) (finding a legal duty on the part of a physician to warn the adult daughter of a patient with thyroid cancer that the daughter should be tested for the disease, which she in fact had); City of Pinellas Park v. Brown, 604 So.2d 1222, 1224-25 (Fla.1992) (concluding that police participating in a vehicular pursuit owed a duty to third-party motorists injured in a collision with the fleeing criminal’s vehicle); accord Napoli v. Buchbinder, 685 So.2d 46, 47 (Fla. 4th DCA 1996) (holding that the trial court erred in failing to apply McCain when granting the defendants' motion for summary judgment in a wrongful death action that alleged the design of the defendants parking lot and placement of a stop sign contributed to the cause of an accident); Dykes v. City of Apalachicola, 645 So.2d 50, 52 (Fla. 1st DCA 1994) (holding that McCain should be applied to determine whether a city was liable for trees and bushes obstructing view). For an in-depth discussion regarding some of these cases and others citing McCain to establish legal duty, see William N. Drake, Jr., Foreseeable Zone of Risk: Confusing Foreseeability with Duty in Florida Negligence Law, Fla. BJ. Apr. 2004, at 10.

      . We explained in Whitt that the agrarian rule and its protective policy toward landowners had its roots in times when most land was undeveloped. See Whitt, 788 So.2d at 213-14 (citing Evans v. S. Holding Corp., 391 So.2d 231, 233 (Fla. 3d DCA 1980) (Schwartz, X, dissenting); Keeton et al., supra, § 57, at 390). As suggested by its name, the rule was developed when we were largely an agrarian society; the rule provided that a landowner was essentially immune to claims by persons not on the landowner’s property when injured, even when those persons claimed a condition on the land caused the injury. Id. at 213. The rule is also based in part on a distinction between acts of malfeasance and nonfeasance, which reasons that harm resulting from the mere passive existence of purely natural conditions constitutes nonfeasance, whereas harm caused by the active creation of conditions would constitute malfeasance. See id. at 214 n. 4; Sprecher v. Adamson Cos., 30 Cal.3d 358, 178 Cal.Rptr. 783, 636 P.2d 1121, 1125-26 (1981). At common law, courts imposed a duty only for malfeasance while imposing no duty for nonfeasance. See Keeton et al., supra, § 56, at 373.

      . Cf. Gunlock v. Gill Hotels Co., 622 So.2d 163, 164 (Fla. 4th DCA 1993) (finding that a hotel owed a duty to exercise reasonable care for safety of patrons passing over highway to and from its premises); Johnson v. Howard Mark Prods., Inc., 608 So.2d 937, 938 (Fla. 2d DCA 1992) (holding that a trial court prematurely determined that a night club had no duty to protect patrons from dangers incidental to parking); Thunderbird Drive-In Theatre, Inc. v. Reed, 571 So.2d 1341, 1343-44 (Fla. 4th DCA 1990) (determining that a jury question was presented as to whether a drive-in theatre was liable for injuries resulting from traffic conditions at its entrance).

      . There is general agreement among legal commentators today that a landowner has some duty to use his land reasonably so as not to injure those off his premises. See Restatement (Second) of Torts § 364 (1965) (stating that a landowner has a duty to persons off the land to maintain artificial constructions in reasonably safe conditions); Restatement (Second) of Torts § 371 (1965) (stating that a landowner has a duty to others off the land to conduct activities on the land in a reasonably safe manner).

      . According to the United States Census Bureau, in 2000 Florida's population was 89.3% urban. This number lies in contrast to the nation as a whole, which in 2000 was 79% urban. See U.S. Dep’t of Commerce, Econ. & Statistics Admin., U.S. Census Bureau, Statistical Abstract of the United. States: 2006 31 tbl.27 (125th ed.2005); see also Keith Aoki, Race, Space, and Place: The Relationship between Architectural Modernism, Post-Modernism, Urban Planning, and Gentrification, 20 Fordham Urb. LJ. 699, 706, 736-37 (1993) (noting the population shift in the late nineteenth century to the city and then in the mid-twentieth century to the suburb).

      . See Audrey G. McFarlane, The New Inner City: Class Transformation, Concentrated Affluence and the Obligations of the Police Power, 8 U. Pa. J. Const. L. 1, 8 (2006) (stating that the explosive growth of suburbs during the twentieth century was in part due to increased reliance on the automobile as a viable method of intra-city travel to work); Arnold W. Reitze, Jr., A Century of Air Pollution Control Law: What's Worked; What’s Failed; What Might Work, 21 Envtl. L. 1549, 1572-75 (1991) (noting the high dependence on the automobile in modern sprawling cities).

      . For example, in 2004, there were 46,200 fatalities from motor vehicle accidents. National Safety Council, National Safety Council Injury Facts 86 (2005-2006 ed.). The average economic cost of each fatal car crash was $1,130,000. Id. at 91. The total approximate number of crashes, both fatal and non-fatal, was 10,900,000, and total motor vehicle costs for all types of car crashes was $240.6 billion. Id. at 86.

      . We also note that tort liability in Florida is premised on pure comparative negligence, which means that a jury should apportion fault between the plaintiff, defendant, and any third parties alleged to have been at fault, and render an award based on a defendant's percentage of fault in causing an injury. See Garcy v. Dupee, 731 F.Supp. 1582, 1583 (S.D.Fla.1990) ("Pure comparative negligence provides the rule of liability in Florida.”); Hoffman v. Jones, 280 So.2d 431, 438 (Fla.1973) (deciding to use pure comparative negligence rather than contributory negligence as a method of determining and apportioning fault in Florida). Indeed, the Florida Legislature has recently acted to ensure that all those who may have contributed to causing an injury should be held liable for damages only to the extent of the actual percentage of fault each has been determined to be responsible. See ch. 2006-6, § 1, at 191, Laws of Fla. (mandating that courts "shall enter judgment against each party liable on the basis of such party's percentage of fault and not on the basis of the doctrine of joint and several liability”). Granting absolute immunity to some who may in fact be partially responsible for contributing to the cause of an accident would obviously undermine this policy of shared responsibility.

      . Our holding, of course, does not consider or preclude government regulation of conditions on private property or our future consideration of the issue under other circumstances not presented here.

      . Orange County, Fla.Code § 24-4(b) (1992) (amended 2001).

      . In Leon County, Florida, a website is dedicated to informing the public of the canopy roads within that county. See http://www. leoncountyfl.gov/PUBWORKS/oper/canopy/ visitCR.asp.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re AMENDMENTS TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.240—DETERMINATION OF NEED FOR ADDITIONAL JUDGES.
    No. SC07-14.
    Supreme Court of Florida.
    Jan. 31, 2008.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Judicial Administration. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On January 8, 2007, the Trial Court Performance and Accountability Commission (Commission) filed a petition with the Court proposing amendments to Florida Rule of Judicial Administration 2.240 (Determination of Need for Additional Judges). The proposed amendments are intended to update the criteria set forth in rule 2.240(b)(1) and reflect the new “weighted caseload” measure of judicial workload now utilized by the Court in determining the need for additional trial court judges.

The proposed amendments were published for comment in The Florida Bar News on March 1, 2007. No comments were received. The proposed amendments to rule 2.240 are unanimously supported by the members of the Commission. The Commission also represented that it has consulted with the trial court chief judges, and they concur with the proposed amendments. We have previously adopted the case weight methodology in place of the case filings per judge threshold for use in determining the need for judges in the district courts of appeal. See In re Report of the Commission on District Court of Appeal Performance and Accountability—Rule of Judicial Administration 2.035, 933 So.2d 1136 (Fla.2006); Fla. R. Jud. Admin. 2.240(b)(2).

Upon consideration, we adopt the amendments to Florida Rule of Judicial Administration 2.240(b)(1) as proposed by the Commission. First, subdivision (b)(1)(A) is rewritten to replace the case filings per judge threshold with the case weight methodology, which relies primarily on case weights, forecasted case filings, and calculations of available judge time to determine the need for additional trial court judges. Next, subdivision (b)(1)(B), which currently lists “other factors” which may be used in the determination of the need for additional judges, is amended to (1) delete the reference to case filing thresholds, (2) delete “the nature and complexity of cases” as a separate factor because it will already be factored into the calculation of case weights, (3) incorporate the term “magistrate” in keeping with 2004 legislation, and (4) conform language regarding “availability and use” of county court and senior judges to that used in subsequent subdivisions. Finally, new subdivision (b)(1)(C) is added, requiring the Commission to “review the trial court workload trends and case weights and consider adjustments no less than 'every five years.”

Accordingly, we hereby adopt the amendments to Florida Rule of Judicial Administration 2.240 (Determination of Need for Additional Judges) as reflected in the appendix to this opinion. New language is indicated by underlining, and deleted language is struck through. The amendments shall become effective immediately.

It is so ordered.

LEWIS, C.J., and WELLS, ANSTEAD, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

Rule 2.240. DETERMINATION OF NEED FOR ADDITIONAL JUDGES

(a) [No change]

(b) Criteria.

(1) Trial Courts.

(A) The — following—thresholds—have been — established—based' - upon caseload statistics supplied to the state courts administrator-by-hhe clerks-of-the-eireuit cour-ts. — Courts-either at or-projeeted-to be at the thresholds are -presumed to have a need-for-one or more additional-judges. — The thresholds are not an optimal level but -reflect that the cour-ts-are operating above capacity. — Assessment of judicial need at the trial court level is based primarily upon the application of case weights to circuit and county court caseload statistics supplied to the Office of the State Courts Administrator by the clerks of the circuit courts, pursuant to rule 2,245, Florida Rules of Judicial Administration. Such case weights provide a quantified measure of .judicial time spent on case-related activity, translating judicial caseloads into judicial workload by factoring in the relative complexity by case type in the following manner:

(i)The circuit court threshold- is 1,865 case filings -per-eircuit judge.These case filings inchide-eireu-it-erhn-inal (incl-udes-worthless checks),-c-iv-il (includes habeas corpus), juvenile-dependency and-■ delinquency, domestic-relations — (including—ehild—support),-probate, — guardianship,—and—mental health cases. — The circuit court case weights are applied to forecasted case filings, which include circuit criminal (includes felony, drug court, and worthless check cases), circuit civil (includes matters involving claims of $15,000.01 and above), family (includes domestic relations, .juvenile dependency, and juvenile delinquency cases), and probate (includes guardianship, mental health, and trust cases).
(ii)The county court threshold — is 6,114 case filings per county judge. These - case — filings include criminal misdemeanor-, — eounty civil (including small claims-and landlord-tenant) — violations-of-eou-nty or municipal-ordinances, — DUI,—and—other—criminal traffic-- cases-; — they do not -include worthless check cases. — The county court case weights are applied to forecasted filings, which include county criminal (includes misdemean- or, violations of county and municipal ordinance, worthless check, driving under the influence, and other criminal traffic cases), and county civil (includes small claims, matters involving claims ranging from $5,000.01 to $15,000, landlord-tenant, and civil traffic infraction cases).

(B) Other factors may be utilized in the determination of the need for one or more additional judges. These - other factors may indicate that- need for an additional judge(s) even though a court may not have achieved-the-presumptive thresholds — Conversely,--the--absence of these — other factors may mitigate — the need-for-one or more additional-judges^ These other factors include, but are not limited to, the following:

(i) County — judge—availability—to serve and county judge-service in circuit court. The availability and use of county court judges in circuit court.
(ii) The use-anttavailability and use of senior judges to serve on a particular court.
(iii) The availability and use of supplemental hearing-offieers magistrates and hearing officers.
(iv) The extent of use of alternative dispute resolution.
(v) The number of jury trials.
(vi) Foreign language interpretations.
(vii) The geographic size of a circuit, including travel times between courthouses in a particular jurisdiction.
(viii) Law enforcement activities in the court’s jurisdiction, including any substantial commitment of additional resources for state .attorneys, public defenders, and local law enforcement.
(ix) The availability and use of case-related support staff and case management policies and practices.
(x) The — nature—and—complexity—ol-eases -coming-before -the ■ courts- in the jurisdiction,
(s)-Caseload trends.

(C) The Commission on Trial Court Performance and Accountability shall review the trial court workload trends and case weights and consider adjustments no less than every five years.

(2) District Courts of Appeal. [No Change]

(c)-(d) [No Change]

Court Commentary

[No Change]

      . See ch. 2004-11, §§ 3, 52-103, Laws of Fla. (adopting the term “magistrates” in place of the term "masters” in numerous sections of Florida Statutes).

      . The Commission also recommended that the reference to the Court’s opinion in In re Report of the Commission on District Court of Appeal Performance and Accountability — Rule of Judicial Administration 2.035 in subdivision (a) of rule 2.240 be amended to reflect the current Southern Reporter citation. However, this change was recently made when the Florida Rules of Judicial Administration were renumbered. See In re Amendments to the Florida Rules of Judicial Administration—Reorganization of the Rules, 939 So.2d 966 (Fla.2006). Accordingly, it need not be further addressed here.


author: WHATLEY, Judge.

text:
    Robert Lewis KROPA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3409.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 2007.
   WHATLEY, Judge.

Robert Lewis Kropa, Jr., appeals the summary denial of his motion for postcon-viction relief and amended motion for post-conviction filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.

On January 28, 2005, Kropa admitted to violating his probation in circuit court case numbers CF95-004759 and CF95-004760 and pleaded guilty to grand theft in circuit court case number CF04-007517. Kropa was sentenced as a habitual felony offender to five years’ prison, followed by two years’ community control on the violation of probation cases and to five years’ prison on the grand theft charge.

On January 11, 2006, Kropa filed a timely rule 3.850 motion raising one claim of ineffective assistance of counsel for misad-vising him regarding the length of sentence he would serve in prison. Kropa specifically states that he was misled to believe that 102 months of prison credit, the time Kropa previously served in jail on his violation of probation cases, would be applied to his grand theft case. On March 16, 2006, Kropa filed a motion for leave to amend and a timely amendment to his rule 3.850 motion requesting to add a claim that counsel rendered ineffective assistance by erroneously requesting that the trial court add a five-year prison term to his violation-of-probation sentence.

We affirm the summary denial of Kro-pa’s amended motion. However, in its order, the postconviction court failed to address Kropa’s originally stated claim that counsel misadvised him regarding the length of the sentence he would serve. Accordingly, we reverse the order with respect to Kropa’s rule 3.850 motion, and we remand for the postconviction court to consider that motion. On remand, the postconviction court must either attach portions of the record to its order demonstrating that Kropa is not entitled to relief or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and LaROSE, JJ„ Concur.


author: WALLACE, Judge.

text:
    Roxanne Elizabeth PETERSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D04-5383, 2D05-901.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2007.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

In these consolidated cases, Roxanne Elizabeth Peterson appeals her sentence for scheming to defraud and the trial court’s restitution order. We find error only in the trial court’s calculation of the amount of restitution that it ordered Ms. Peterson to pay. Accordingly, we affirm Ms. Peterson’s sentence, but we vacate the restitution order and remand for the trial court to recalculate the amount of restitution to be paid to the victim of the offense.

The Sentence — Case No. 2D05-901

Because of error occurring in the first two sentences that were imposed on Ms. Peterson, she was sentenced a total of three times. The trial court conducted the third sentencing hearing on December 2, 2005. At that hearing, the trial court sentenced Ms. Peterson to serve a term of 13.4 months in prison, followed by 2 years on community control, and an additional 20 years on probation. The total length of the third sentence exceeded the length of each of the two prior sentences by 1.4 months. Ms. Peterson argues that the trial court did not have jurisdiction to impose the third sentence and that the first and second sentences were illegal. In addition, Ms. Peterson asks this court to hold that the third sentence was also illegal so that the trial court will not repeat this error in any new sentence that may be imposed on remand.

Initially, we conclude that the trial court did retain jurisdiction to impose the third sentence on December 2, 2005. The order entered by Judge Mills on August 29, 2005, effectively extended the period for the correction of Ms. Peterson’s second sentence so that the trial court had jurisdiction to impose the third sentence. See Davis v. State, 887 So.2d 1286, 1287 (Fla.2004) (finding that a trial court’s order rescheduling a hearing beyond the sixty-day window prescribed in Florida Rule of Criminal Procedure 3.800(b)(1)(B) implicitly extended the time allowed for the trial court to hear and rule on the defendant’s motion to correct sentencing error). We also agree with Ms. Peterson that both her first and second sentences were illegal. It follows that the trial court could “resen-tence [her] ‘in accordance with the valid laws in effect’ on the date that the defendant committed the relevant offense.” Plute v. State, 885 So.2d 368, 369 (Fla. 2d DCA 2003) (quoting Heggs v. State, 759 So.2d 620, 630-31 (Fla.2000)). Unfortunately for Ms. Peterson, those valid laws include the possibility of a longer sentence. See id. (“It is well established that a harsher sentence may be imposed on re-sentencing in such a context [i.e., where the prior sentence was illegal] without violating double jeopardy.” (citing State v. Swider, 799 So.2d 388, 390-91 (Fla. 4th DCA 2001))).

To summarize, we conclude that the trial court retained jurisdiction to resentence Ms. Peterson on December 2, 2005, and that the sentence imposed on that date is in effect. Because that sentence does not violate principles of double jeopardy and is not otherwise illegal, we affirm it.

The Restitution Order— Case No. 2D04-5383

After Ms. Peterson entered a no contest plea, she was sentenced on a charge of scheming to defraud and obtaining property in an amount of $50,000 or more in violation of section 817.034(4)(a)(l), Florida Statutes (1994), a first-degree felony. The circumstances leading to the commission of the offense arose out of Ms. Peterson’s employment as an office manager and bookkeeper for a building contractor (the Employer). The Employer had evidence tending to establish that Ms. Peterson had committed multiple misappropriations of money from the business over a period of six years. The total loss claimed by the Employer from these repetitive acts of misappropriation amounted to a substantial sum.

To determine the amount of restitution that Ms. Peterson owed to the Employer, the trial court held a lengthy restitution hearing that was conducted over a period of two days. At the hearing, the State presented an eleven-page, single-spaced compilation that detailed the numerous checks that the Employer claimed represented monies that Ms. Peterson had misappropriated. The amounts of the checks listed in the compilation totaled $188,805.42. In its order on restitution, the trial court excluded the amounts of several checks from the compilation’s total as not having been proven by a preponderance of the evidence. After making these exclusions, the trial court arrived at an adjusted total of $179,990.49. The trial court ordered Ms. Peterson to pay restitution to the Employer in an amount equal to the adjusted total.

On appeal, Ms. Peterson raises two challenges to the amount of restitution that the trial court ordered her to pay. First, she contends that the trial court erred in its calculation of the amounts to be excluded from the Employer’s claims as reflected in the compilation’s total. Second, Ms. Peterson contends that the trial court failed to account for the value of the services that she had provided to the Employer through her independent business known as “Peterson Computers.”

On Ms. Peterson’s first argument, our review of the record reveals that there are minor discrepancies in the trial court’s list of the amounts to be excluded from the compilation’s total. In addition, there appear to be errors in some of the check numbers referenced in the order. Accordingly, we vacate the restitution order and remand this case to the trial court with instructions to review the handful of checks identified by the parties as involving either transposition errors or classification errors and to enter an amended order on restitution.

Ms. Peterson’s second argument also has some merit. The trial court included in its restitution order the total amount — approximately $7055 — paid to Peterson Computers. However, Ms. Peterson conceded only that approximately $3300 of these payments were fraudulent. The State’s witnesses — whom the trial court found to be credible — testified that Ms. Peterson did provide independent computer consulting services to the Employer for which she was entitled to some additional compensation. The State did not present any competent, substantial evidence at the hearing that Ms. Peterson had been compensated in some other way for these services. Therefore, the trial court erred in including the total amount paid to Peterson Computers in the restitution amount because this effectively valued the consulting services at zero, a finding not supported by competent, substantial evidence. On remand, the trial court must reduce the restitution amount to adjust for the value of the computer consulting services for which Peterson Computers was not otherwise compensated.

Judgment and sentence affirmed; order on restitution vacated; cases remanded with instructions.

SILBERMAN and LaROSE, JJ., Concur.

      . The State also contends that the trial court miscalculated the exclusion amount. However, the State claims that the exclusion amount should have been less, whereas Ms. Peterson claims that it should have been more.


author: CASANUEVA, Judge.

text:
    DEPARTMENT OF REVENUE o/b/o Laverne MARCHINES, Appellant, v. John A. MARCHINES, Appellee.
    No. 2D05-1269.
    District Court of Appeal of Florida, Second District.
    March 16, 2007.

      Bill McCollum, Attorney General, and William H. Branch, Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellant.
    Charles L. Carlton of Carlton & Carlton, Lakeland, for Appellee.
   CASANUEVA, Judge.

The Department of Revenue, which sought to enforce a Pennsylvania judgment, appeals a circuit court order requiring it to pay attorney’s fees to John A. Marchines pursuant to section 57.105, Florida Statutes (2004). We agree that the trial court abused its discretion in so ordering and reverse.

The Department received a request from the Commonwealth of Pennsylvania, as the initiating state under the Uniform Interstate Family Support Act (UIFSA), chapter 88, Florida Statutes (2004), to register and enforce a Pennsylvania child support arrearage judgment against Mr. Mar-chines for over $34,000. The Department, the responding tribunal as defined in section 88.1021, followed the protocol set out in section 88.3051 and notified Mr. Mar-chines of the registration of the Pennsylvania order and his rights. The Department’s letter to Mr. Machines stated:

Florida Law 88.6061 states that if you wish to contest the validity or enforcement of this registered order, you must request a hearing within 20 days after the date of the mailing of this notice. You may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages.

Mr. Marchines did exercise his rights and objected to paying the judgment. He ■wrote the Department claiming he was completely disabled, was not working, had no income, and had filed for supplemental security income (SSI). Section 409.2561(4), Florida Statutes (2004), provides that anyone receiving SSI is excused from paying support. Despite numerous telephone conversations, Mr. Marchines did not provide any documentation from the Social Security Administration to show that he was entitled to or was receiving SSI. Because the Department lacked this documentation, it moved forward with the UIFSA process and scheduled a hearing for which Mr. Marchines hired counsel to represent him. The day of the hearing, Mr. Marchines finally supplied the necessary SSI documentation. Despite his compliance with the Department’s request for this official documentation, the hearing went forward.

Having proof that Mr. Marchines was receiving SSI, the hearing officer correctly determined that the language of section 409.2561(4) precluded the Department from enforcing the child support arrearage order against him. The hearing officer’s factual findings, adopted by the circuit court in its final order, are important to our analysis:

B. On April 1, 2004, a hearing was held on [Mr. Marchines’s] Objection to Registration of Foreign Support Order. At that hearing, [Mr. Marchines], through his assigned counsel, objected to the registration of the Pennsylvania child support arrears order. The objection was premised on the fact that as of January 18, 2002, [Mr. Marchines] was declared by the Social Security Administration to be disabled and currently receives supplemental security income.
C. Based on the fact that [Mr. Mar-chines] currently receives supplemental security income, The Department of Revenue cannot enforce the Pennsylvania’s [sic] child support order. Therefore, [Mr. Marchines’s] objection to the registration of such order should be granted.

The circuit court adopted the hearing officer’s recommended order in toto and rendered it as the final order. No appeal was taken from the court’s order.

Subsequently, Mr. Marchines’s counsel filed a motion for section 57.105 attorney’s fees. The motion claimed that despite the fact that Mr. Marchines informed the Department that he was incapacitated and that section 409.2561(4) provided a complete defense to enforcement of the Pennsylvania judgment against him, the Department persisted in pressing the claim, forcing Mr. Marchines to hire counsel at his own expense. At the circuit court hearing on this motion, the Department argued that it was within its rights to continue the process in order to register the Pennsylvania order although it knew that it could not enforce the order as long as Mr. Marchines was receiving SSI. The Department’s counsel informed the circuit court that the hearing officer who granted Mr. Marchines’s objection refused to register the Pennsylvania order on the theory that the order should not be “on the books” if it could not be enforced. According to the Department’s argument, the hearing officer misunderstood that the statute barred only enforcement of the order, not registration.

The circuit court granted the motion and assessed section 57.105 fees against the Department. The court reasoned that although the Department was entitled to rely on official documentation and not merely on conversations between Mr. Mar-chines and the case worker about his potential entitlement to or receipt of SSI, the Department never clearly communicated to Mr. Marchines that it had the right to go further and register the order even though it could not enforce it. Thus, the circuit court concluded it was not unreasonable for Mr. Marchines to hire counsel.

Whether it was reasonable for Mr. Marchines to hire counsel, however, is not the dispositive factor in awarding section 57.105 fees against .the Department. “An order awarding attorney’s fees under section 57.105 must include findings by the trial court to support the award.” Goldberg v. Watts, 864 So.2d 59, 60 (Fla. 2d DCA 2003). The trial court’s order against the Department is deficient in this regard, and without such a finding, the award of fees pursuant to section 57.105 is reversible.

More important, however, is the fact that the circuit court incorrectly interpreted the appropriate statutes. This is not a case in which the losing party — the Department — presented a frivolous claim.

The order underlying the attorney’s fee proceedings did not remove the registration of the Pennsylvania order from the record, nor refuse to register it, nor dismiss Pennsylvania’s petition to register and enforce the support order. Rather, the court’s ruling stated that the court (1) granted Mr. Marchines’s objection to the registration of the foreign support order, (2) denied the Department’s request for costs, and (3) retained full and complete jurisdiction of the cause and the parties. Although the court correctly granted Mr. Marchines’s objection based on its factual finding that he was receiving SSI, the court did not vacate the registration.

The court, the hearing officer, Mr. Marchines, and his counsel failed to appreciate the Department’s meritorious position in this matter, i.e., the plain language of chapter 88 contemplates that when Florida, as the responding state, receives a request from an initiating state to register and enforce a support order, registration is, in fact, automatic as long as the Department follows the dictates of chapter 88. And, in this case, the Department did just that.

Section 88.1011(14) defines “register” to mean “to record or file” a support order in the Registry of Foreign Support Orders of the circuit court or other appropriate location. Section 88.3051(1) directs the Department, when it receives a petition and order such as the Pennsylvania order at issue here, to “cause the petition or comparable pleading to be filed and notify the petitioner where and when it was filed.” Most notably, section 88.6031(1) explains that “[a] support order or income-withholding order issued in another state is registered when the order is filed in the registering tribunal of this state” (emphasis added). The fact that registration is already accomplished is underscored by the language of section 88.6051:

(1) When a support order or income-withholding order issued in another state is registered, the registering tribunal shall notify the nonregistering party (here, Mr. Marchines). The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.
12) The notice must inform the nonre-gistering party:
(a) That a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this state.
(b) That a hearing to contest the validity or enforcement of the registered order must be requested within 20 days after the date of mailing or personal service of the notice.
(c) That failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages and precludes further contest of that order with respect to any matter that could have been asserted.
(d) Of the amount of any alleged ar-rearages.

Upon receiving this notice, the obli-gor — the “nonregistering party” or person against whom the foreign order is directed, such as Mr. Marchines — has several options, including inaction. If the obligor “fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.” § 88.6061(2) (emphasis added). Thus, without objection, the registered order simply remains so, i.e., “registered.” If the obligor has objections, section 88.6061(1) outlines the procedure to contest the validity or enforcement of a registered order:

(1) A nonregistering party seeking to contest the validity or enforcement of a registered order in this state shall request a hearing within 20 days after notice of the registration. The nonre-gistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to s. 88.6071.

(Emphasis added.) Pursuant to section 88.6071(1)(3), Mr. Marchines asserted “a defense under the law of this state to the remedy sought,” i.e., section 409.2561(4).

The language in sections 88.6031, 88.6051, and 88.6061 that we emphasized above supports the conclusion that registration is accomplished when the Department initiates the Florida proceedings pursuant to the UIFSA. The foreign order is registered when the Department files it in the Registry of Foreign Support Orders of the circuit court or other appropriate location and notifies the obligor of this filing, because an obligor may then seek to have the registration “vacated.” Logically as well as legally, an order cannot be vacated if it is not already in effect. “Vacate” means “to render inoperative; deprive of validity; void; annul.” N.L.R.B. v. Goodless Bros. Elec. Co., 285 F.3d 102, 110 (1st Cir.2002) (quoting Random House Webster’s Unabridged Dictionary 2100 (2d ed.1997)); Hays v. L.C.I., Inc., 604 P.2d 861, 862 (Okla.1979) (“The word vacate, as applied to a judgment or an order, means to rescind, to eliminate, to set it aside, or render the order void or a nullity.”).

Mr. Marchines did not seek vacation of the already registered Pennsylvania order. The order “granting” his objection had the effect of excusing him from paying the child support arrearage by virtue of section 409.2561(4), but it did not “vacate” the registration. In effect, the court stayed enforcement of this registered Pennsylvania support order. See § 88.6071(2). The Department understandably acted to confirm the registration of the Pennsylvania order as valid despite the fact that it could not be enforced because Mr. Marchines provided a good defense under section 88.6071(l)(e).

Although the Department proceeded with the hearing moments after receiving official documentation of Mr. Mar-chines’s receipt of SSI, it had a justifiable reason to do so. It is conceivable that perhaps one day Mr. Marchines’s circumstances will change and he will be able to pay some portion of his child support ar-rearage. “An award of attorney’s fees pursuant to section 57.105 is appropriate only when the action is ‘so clearly devoid of merit both on the facts and the law as to be completely untenable.’ ” Stagl v. Bridgers, 807 So.2d 177 (Fla. 2d DCA 2002) (quoting Brinson v. Creative Aluminum Prods., 519 So.2d 59, 60 (Fla. 2d DCA 1988)); see also Cowgill v. Bank of Am., 831 So.2d 241, 242 (Fla. 2d DCA 2002) (reversing an award of section 57.105 fees because the claim was arguably supported by material facts and existing law). The Department’s actions in this case were neither frivolous nor completely untenable.

Reversed.

ALTENBERND and KELLY, JJ., Concur.

      . Mr. Marchines also objected to the amount Pennsylvania claimed he owed, but this was not the basis upon which the order excusing him from paying was based.

      . Specifically, this statute provides:
      409.2561. Support obligations when public assistance is paid; assignment of rights; subrogation; medical and health insurance information—

      (4) No obligation of support under this section shall be incurred by any person who is the recipient of supplemental security income or temporary cash assistance for the benefit of a dependent child or who is incapacitated and financially unable to pay as determined by the department.

      . We believe that the Department’s counsel misspoke when she told the circuit court at the hearing on section 57.105 fees that the hearing officer had "refused to register” the order. We discuss below the effective registration of the order.

      . The Department takes no issue with the amount of the fees, only to Mr. Marchines’s entitlement to them.

      . Although the court’s ruling was that it was granting the objection to registration of the Pennsylvania order, based on the factual findings regarding Mr. Marchines’s receipt of SSI, it was more properly granting his objection to enforcement of the order.


author: LAGOA, Judge.

text:
    Barbara Ann Thomas ROBINSON, as Personal Representative of the Estate of Leroy Lawrence, and Traci Cooper, legal parent and guardian of Trevor Lawrence, Appellants, v. Dr. Joseph SCOTT, Appellee.
    No. 3D05-2943.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Rehearing Denied March 6, 2008.

      Lander and Goldman and Steven Lander, Fort Lauderdale, for appellants.
    Hicks & Kneale and Irene Porter and Mark Hicks, Miami, for appellee.
    Before GREEN, SHEPHERD, and LAGOA, JJ.
   LAGOA, Judge.

Barbara Ann Thomas-Robinson, as personal representative of the Estate of Leroy Lawrence, and Traci Cooper, as legal parent and guardian of Trevor Lawrence (collectively “Appellants”), appeal from an order dismissing a medical malpractice complaint for failure to comply with the presuit discovery requirements of Section 766.106, Florida Statutes (2006). Because we find that Appellee, Dr. Joseph Scott, was not prejudiced, we reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 21, 2003, counsel for Appellants served Dr. Scott with a notice of intent to initiate litigation for medical malpractice and enclosed with the letter the verified medical expert opinion of Dr. Thomas Geoffrey Folk (“Folk affidavit”). On October 16, 2003, Dr. Scott’s insurer acknowledged receipt of the notice of intent and propounded informal presuit discovery requests seeking both production of documents and answers to liability and damages questions. In a November 6, 2003 letter, Dr. Scott’s insurer informed counsel for Appellants that the medical malpractice claim was denied.

On February 13, 2004, Appellants initiated suit. On August 25, 2005, Dr. Scott filed a motion to dismiss the amended complaint arguing that Appellants failed to provide presuit discovery pursuant to Florida Statute 766.106(6). In a written order, the trial court granted the motion, finding “that plaintiff failed to comply with presuit discovery.” There was no finding made by the trial court of prejudice to Defendant resulting from Plaintiffs failure. This appeal ensued.

II. REQUIREMENTS OF SECTION 766.106

Chapter 766, Florida Statutes (2005), “sets out a complex presuit investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court.” Kukral v. Mekras, 679 So.2d 278, 280 (Fla.1996). The policy underlying the medical malpractice statutory scheme is to require the parties to engage in meaningful presuit investigation, discovery, and negotiations, thereby screening out frivolous lawsuits and defenses and encouraging the early determination and prompt resolution of claims. Id. at 284.

Section 766.106(3)(a) provides a defendant or the defendant’s insurer with a ninety-day presuit investigation period. During this ninety-day period, the claimant may not file suit. See § 766.106(3)(a). “Upon receipt by a prospective defendant of a notice of claim, the parties shall' make discoverable information available without formal discovery. Failure to do so is grounds for dismissal of claims or defenses ultimately asserted.” See § 766.106(6)(a). Additionally, section 766.106(7), Florida Statutes (2006), provides that “[f]ailure to cooperate on the part of any party during the presuit investigation may be grounds to strike any claim made, or defense raised, by such party in suit.” (emphasis added). At or before the expiration of the ninety-day presuit investigation period, the defendant or the defendant’s insurer must provide the claimant with one of the following three options: (1) reject the claim; (2) make a settlement offer; or (3) admit liability and submit to arbitration on damages. See § 766.106(3)(b).

III. ANALYSIS

On appeal, Appellants argue that the trial court abused its discretion in dismissing the amended complaint as Dr. Scott was not prejudiced by the failure to comply with the presuit discovery. We agree, based on the Florida Supreme Court’s opinion in Kukral, and this Court’s opinion in De La Torre v. Orta, 785 So.2d 553 (Fla. 3d DCA 2001). In Kukral, the Florida Supreme Court stated that “the medical malpractice statutory scheme must be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts, while at the same time carrying out the legislative policy of screening out frivolous lawsuits and defenses.” 679 So.2d at 284.

In the present case, as in Kukrnl and De La Torre, “the policy of enforcing the statute must be weighed against the right of access to courts. It is well recognized in Florida law that dismissal of claims or defenses is an extreme sanction which should be used sparingly.” De La Torre, 785 So.2d at 555. Additionally, “the question of what sanction to impose depends on the circumstances of the case, including the question of what prejudice has been suffered.” De La Torre, 785 So.2d at 556.

In De La Torre, the defendant physician failed to respond to the presuit request for records or a notice of intent because he incorrectly assumed that the claim was barred by the statute of limitations. Id. at 554. The trial court struck his defenses, and this Court reversed holding that the sanction of striking the doctor’s defenses for failure to timely respond to presuit discovery was too harsh a remedy in the absence of prejudice to the plaintiff. Id. at 555-57. See also, Vincent v. Kaufman, 855 So.2d 1153 (Fla. 4th DCA 2003) (plaintiffs failure to provide presuit discovery within ninety-day period did not warrant dismissal of complaint as defendant physician suffered no prejudice).

Here, the trial court made no finding of prejudice prior to dismissing Appellants’ amended complaint against Dr. Scott. Such a finding, however, is required by both Kukrál and De La Torre in order to support this sanction. Moreover, in light of Kukral we find Dr. Scott was not prejudiced by Appellants’ failure to provide pre-suit discovery. First, the record establishes that Dr. Scott’s expert, Dr. Kareff, reviewed most, if not all, of the same documents utilized by Dr. Folk in rendering his expert opinion on Appellants’ behalf. Second, the November 6, 2003, letter from Dr. Scott’s insurer denying the medical malpractice claim explicitly and unequivocally states the claim was denied after reviewing “all available medical records and conducting a thorough investigation.” No qualification to this denial was made based on the inability to obtain some or all records during the insurer’s investigation. “The purpose of the presuit requirement is to allow a potential defendant to investigate a claim and to encourage settlement prior to costly and time-consuming litigation.” University of Miami v. Wilson, 948 So.2d 774, 778-79 (Fla. 3d DCA 2006). The record before us contains no evidence that Appellants’ failure to provide presuit discovery prevented Dr. Scott from investigating the claim, assessing potential liability and choosing whether or not to enter into settlement negotiations or admit liability and submit to arbitration on damages.

Accordingly, we reverse the trial court’s order and remand for further proceedings consistent with this Opinion.

      . The Folk affidavit contained Folk’s opinion on how Dr. Scott deviated from the medical standards of care in treating Leroy Lawrence.

      . The November 6, 2003 letter stated in pertinent part:
      We have reviewed all available medical records and conducted a thorough investigation with reference to the captioned matter. As such, we did not find any evidence that Joseph Austin Scott, M.D. deviated from the standard of care and/or caused or contributed to the alleged injuries of Leroy Lawrence. Therefore, on behalf of Dr. Scott, we respectfully deny your claim.
      Enclosed please find Dr. Kareff’s verified medical expert opinion pursuant to chapter 766, Florida Statutes. Dr. Kareffs opinion corroborates the lack of reasonable ground to support a claim of medical negligence or negligent injury against Dr. Scott.

      . This is in contrast to co-defendant South Miami Hospital ("SMH”). At the conclusion of the ninety-day period, Appellants failed to respond to SMH's presuit discovery requests even though SMH wrote to Appellants on three separate occasions regarding the need for the responses. In dismissing the amended complaint against SMH, the trial court specifically found prejudice, stating that as a result of the plaintiffs' failure to respond to presuit discovery SMH "was not in a position to evaluate the claim prior to the conclusion of the presuit period.” Here, the record establishes that Dr. Scott, unlike SMH, was able to evaluate the claim — and unequivocally deny it — at the conclusion of the ninety-day period.


author: VILLANTI, Judge.

text:
    Harold HARR, Petitioner, v. Esther Marieta Lara HARR, Respondent.
    No. 2D07-3169.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2007.
    David J. Kurland, Esq., Largo, for Petitioner.
    Allison M. Perry, P.A., Tampa for Respondent.
   VILLANTI, Judge.

The Petitioner, Harold Harr, seeks a writ of prohibition to prohibit the circuit court from proceeding on a counterpetition for dissolution of marriage filed by the Respondent, Esther Mariela Lara Harr. Mr. Harr claims that because he served a notice of voluntary dismissal of his petition for dissolution of marriage under Florida Rule of Civil Procedure 1.420(a)(1) before Mrs. Harr served her counterpetition, the circuit court acted without authority by taking any further action in the proceeding. Mr. Harr also asks this court to vacate any orders entered by the circuit court after the service of his notice of voluntary dismissal.

At a brief hearing on two unrelated motions filed by Mrs. Harr, the parties raised multiple legal and factual issues concerning whether Mr. Harr’s notice of voluntary dismissal effectively terminated the dissolution of marriage proceeding. The circuit court invited the parties to schedule a hearing with sufficient time to determine these issues. Instead of scheduling the hearing, Mr. Harr filed the petition that is before us. Mr. Harr’s claim that the circuit court is acting in excess of its jurisdiction cannot be resolved until the disputed issues of fact on which it depends are decided by the circuit court. Accordingly, we must deny the writ of prohibition. See Mandico v. Taos Constr., Inc., 605 So.2d 850, 854 (Fla.1992) (“[P]rohibition may not be used to divest a lower tribunal of jurisdiction to hear and determine the question of its own jurisdiction.”).

Petition denied.

KELLY and WALLACE, JJ., Concur.


text:
    Ronald E. TERRY, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-5441.
    District Court of Appeal of Florida, First District.
    Nov. 26, 2007.
    Ronald E. Terry, pro se, Appellant.
    Bill McCollum, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of appellee’s concession of error, the final order of the circuit court is REVERSED and REMANDED on the authority of Thomas v. Florida Parole Comm’n, 963 So.2d 777 (Fla. 1st DCA 2007).

WEBSTER, PADOVANO, and POLSTON, JJ., concur.


author: WOLF, J.

text:
    Todd A. BELL, Husband, Appellant, v. Cynthia Starla BELL, Wife, Appellee.
    No. 1D07-0538.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Bonnie K. Roberts, Bonifay, for Appellant.
    Jeffrey P. Whitton, Panama City, for Appellee.
   WOLF, J.

Appellant, former husband, raises a number of issues on appeal. We find only one has merit and has been preserved for appeal.

As conceded by appellee, the sentence in the order finding a portion of the marital debt to be enforceable by contempt constitutes error. We, therefore, strike that sentence from the final judgment. In all other respects the judgment of the trial court is affirmed.

BARFIELD and HAWKES, JJ., concur.


author: PER CURIAM. BROWNING, C.J.,

text:
    Melissa W. JOSEPH, Appellant, v. Richard W. JOSEPH, Appellee.
    No. 1D06-3173.
    District Court of Appeal of Florida, First District.
    Dec. 17, 2007.
    Rehearing Denied Feb. 22, 2008.
    Lyman T. Fletcher of The Law Office of Lyman Fletcher, Jacksonville, for Appellant.
    Samuel S. Jacobson of Bledsoe, Jacobson, Schmidt, Wright, Lang & Wilkinson, Jacksonville, for Appellee.
   PER CURIAM.

Having reviewed the briefs, and heard oral argument in this case, we find that no reversible error has been credibly advanced by appellant. In particular, we note that the brief filed by appellant’s counsel, not the same lawyer who ably argued the cause before this court, does not, in the argument section, advance any contention sufficient to meet the standard of review on this appeal from an order modifying permanent periodic alimony.

AFFIRMED.

KAHN and ROBERTS, JJ., concur; BROWNING, C.J., Concurs with Separate Opinion.

BROWNING, C.J.,

concurring.

I concur with the majority, and write only to explain that had the law applicable to this case been correctly presented to the trial judge and preserved for appeal a contrary result would have been reached by me.

The appellee unilaterally reduced his alimony payment from $10,000 per month to approximately $3,600 per month. At the time of the modification and contempt hearing, appellee had approximately $900,000 cash in various depositories and other assets not germane to this opinion. It was argued and accepted below, and erroneously argued by appellee here, that these funds were a part of appellee’s equitable distribution and could not lawfully be considered as a part of appellee’s ability to pay alimony. This is patently incorrect. See Acker v. Acker, 904 So.2d 384 (Fla.2005). Had the dictates of Acker been presented and preserved, I would not concur.