author: STRINGER, Judge.

text:
    PALADIN PROPERTIES, a Florida corporation, Appellant, v. FAMILY INVESTMENT ENTERPRISES, a Florida corporation, Appellee.
    No. 2D06-4208.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 2007.
    Rehearing Denied April 11, 2007.
    Lauriane Ciccarelli of Troiano & Roberts, PA, Lakeland, for Appellant.
    Ricardo Santander of Stephen H. Art-man, P.A., Lakeland, for Appellee.
   STRINGER, Judge.

Paladin Properties appeals from the trial court’s order that set aside a default judgment entered against Family Investment Enterprises in an action grounded on a promissory note. Because we agree with Paladin that the trial court abused its discretion in setting aside the default judgment, we reverse and remand for reinstatement of the default judgment.

In 2002, Paladin and Family Investment entered into a lease agreement pursuant to which Family Investment leased three suites in a commercial property from Paladin. In 2004, Family Investment stopped making the required monthly payments under the lease agreement. As a result, the parties negotiated a new lease agreement that allowed Family Investment to lease a single suite in the same commercial property at a reduced lease rate. As part of that same transaction, Paladin obtained a promissory note signed by James T. Newton, one of Family Investment’s principals, to secure payment of the deficiency that was due from Family Investment under the original lease agreement.

In 2005, Family Investment allegedly stopped making the payments due under the promissory note. Paladin sued Family Investment for breach of the promissory note and attached to its complaint the original lease agreement, the new lease agreement, and the promissory note. Family Investment did not respond to the complaint, and the clerk entered a default against Family Investment on August 18, 2005. Paladin then filed a motion for default judgment against Family Investment based on the monetary terms of the promissory note. On September 15, 2005, after a hearing, the trial court entered a default judgment against Family Investment for the amounts due under the promissory note. Several months later, on January 10, 2006, Paladin obtained an amended default judgment that corrected some minor errors in the original default judgment. Both the original default judgment and the amended default judgment were rendered by Judge Jacobsen.

On January 27, 2006, Family Investment filed its first notice of appearance in the case and filed a motion for rehearing under Florida Rule of Civil Procedure 1.530 directed to the amended final judgment. Paladin filed an objection to the motion; however, neither party set the motion for hearing. Instead, on March 1, 2006, Family Investment filed a motion to set aside the default judgment pursuant to Florida Rule of Civil Procedure 1.540(b). In its motion, Family Investment alleged that the default judgment had been entered by mistake because the promissory note was not signed by Family Investment but rather by James T. Newton in his individual capacity. Thus, Family Investment contended that Paladin had sued and obtained a default judgment against the wrong defendant and that this was a “mistake” that was correctable under rule 1.540(b). A hearing on the motion to set aside the default judgment was set for August 17, 2006.

At some point between January 10, 2006, and August 17, 2006, the original trial judge, Judge Jacobsen, had been reassigned to a different division within the Tenth Judicial Circuit. Thus, the hearing on Family Investment’s motion to set aside the default judgment was heard by a successor judge, Judge Maloney. At that hearing, Family Investment argued that Judge Jacobsen had entered the default judgment based on a mistake of fact. Family Investment contended that Paladin had misrepresented to Judge Jacobsen that Family Investment was the maker of the promissory note when, in fact, it was James T. Newton. Family Investment argued that this “mistake” could be corrected by a motion pursuant to rule 1.540(b). Paladin argued that it had not made any misrepresentations; that Judge Jacobsen had reviewed the file, including the leases and the note, before ruling; and that the default judgment was not entered based on a mistake of fact. Paladin also argued that even if an error had been made, it was a judicial error that could not be corrected under rule 1.540(b) but that should have been corrected by way of appeal. Judge Maloney found that Judge Jacobsen had made a mistake and set aside the default judgment based on that finding. Paladin then brought this appeal, raising two grounds for reversal.

Paladin first contends that the successor trial judge, Judge Maloney, erred in considering Family Investment’s motion because it should have been heard by the original trial judge, Judge Jacobsen. We disagree.

The Florida Supreme Court has held that a successor judge may revisit a final judgment entered by a predecessor judge when there is a motion filed pursuant to Florida Rule of Civil Procedure 1.540. Tingle v. Dade County Bd. of County Comm’rs, 245 So.2d 76, 77-78 (Fla.1971). This is so “because a legally sufficient rule 1.540 motion by definition entails matters which (at least ordinarily) were not presented to, or considered by, the predecessor judge.” Batista v. Batista, 553 So.2d 1281, 1282 (Fla. 3d DCA 1989). Essentially, the successor judge is not reconsidering the merits of the predecessor judge’s rulings but is instead ruling “on the appropriateness of setting aside that judgment under Rule 1.540.” Powers v. ITT Fin. Servs. Corp., 662 So.2d 1343,1345 (Fla. 5th DCA 1995).

Here, Family Investment’s motion to set aside the default judgment is exactly the type of motion that the supreme court has explicitly held may be considered by a successor judge. Accordingly, Judge Ma-loney did not err in considering Family Investment’s motion.

Paladin next contends that Judge Maloney abused his discretion in setting aside the default judgment based on Judge Jacobsen’s alleged “mistake” in entering the default judgment. On this point, we agree.

Rule 1.540(b) permits the trial court to relieve a party from a final judgment on several grounds, including mistake or inadvertence. Schrank v. State Farm Mut. Auto. Ins. Co., 438 So.2d 410, 412 (Fla. 4th DCA 1983). The rule envisions an honest mistake made during the regular course of litigation, including those that result from oversight, neglect, or accident. Id.; see also Pompano Atlantis Condo. Ass’n v. Merlino, 415 So.2d 153, 154 (Fla. 4th DCA 1982). However, the rule does not include providing a party with relief from judicial errors. Pompano Atlantis Condo. Ass’n, 415 So.2d at 154; In re Estate ofBeeman, 391 So.2d 276, 280 (Fla. 4th DCA 1980). Instead, judicial errors must be corrected by way of an appeal. Estate of Beeman, 391 So.2d at 280.

In defining what constitutes “judicial error,” the Fourth District explained:

The key factor is whether or not the court reached a decision in the intentional or purposeful exercise of its judicial function. If the pronouncement reflects a deliberate choice on the part of the court, the act is judicial; errors of this nature are to be cured by appeal.

Id. at 281. Thus, in Estate ofBeeman, the court reversed an order vacating an award of attorney’s fees which had allegedly been “mistakenly” entered after the trial court “inadvertently failed to recall that the contract count had been waived or withdrawn” and thus could not provide a basis for an award of attorney’s fees. Id. The court held that such an error was a judicial error that would have to be corrected by way of an appeal. Id.

In this case, Family Investment contends that Judge Jacobsen inadvertently failed to notice or recall that the promissory note was not signed by James T. Newton in his corporate capacity and that the default judgment was entered based on this mistake of fact. However, even if this contention is true, this is the type of error that was characterized as judicial error in Estate of Beeman, and this type of error must be corrected by way of appeal rather than through a motion pursuant to rule 1.540(b). Accordingly, this argument cannot support the order setting aside the default judgment.

Moreover, Family Investment’s argument that Paladin made - misrepresentations to Judge Jacobsen to obtain the default judgment rests entirely on its own speculation. Such speculation is an improper basis for vacating a default judgment, particularly when the record shows that the trial court had the relevant documents before it when it ruled.

For example, in Gross v. Simanonok, 366 So.2d 47, 49 (Fla. 2d DCA 1978), Simanonok sought to set aside a final default judgment on the ground that Gross had misrepresented to the trial court that she sought to avoid the contract with Simano-nok so that she could retain her homestead, when, in fact, she sought to avoid the contract in order to sell her property to a third party. This court noted that Simanonok’s allegations of misrepresentation were refuted by the record that was before the trial court when it ruled. Id. Thus, Simanonok was not entitled to relief from the judgment on the ground of mistake. Id.

Similarly, in this case, Family Investment alleges that Paladin misrepresented to the trial court that Family Investment was the maker of the promissory note when, in fact, the maker was James T. Newton. However, this alleged misrepresentation is refuted by the record that was before the trial court at the time the default judgment was entered because the promissory note was attached to Paladin’s complaint. Thus, Family Investment essentially asked Judge Maloney to speculate that Judge Jacobsen did not review the record before entering the default judgment but instead relied solely on misrepresentations allegedly made by Paladin. There is no evidence in the record that Paladin made the misrepresentations Family Investment assigns to it, and no evidence that Judge Jacobsen ignored the record before him before entering the default judgment. Thus, because Family Investment’s argument relies entirely on unsupported speculation, it cannot support an order setting aside the default judgment on the grounds of “mistake.” See Schrank, 438 So.2d at 412 (reversing trial court’s order vacating a judgment for attorney’s fees on the grounds of mistake because there was no evidence in the record, other than counsel’s bare assertions, that the trial judge had ' inadvertently signed a final judgment, prepared by counsel, without realizing that it included an award of attorney’s fees).

In this appeal, Family Investment argues for the first time that the default judgment was properly set aside because Paladin’s complaint failed to state a cause of action. In doing so, Family Investment relies on Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490 (Fla. 3d DCA 1994), and Becerra v. Equity Imports, Inc., 551 So..2d 486 (Fla. 3d DCA 1989), both of which hold that a default judgment cannot stand when the complaint fails to state a cause of action. Here, Family Investment argues that because the exhibits to Paladin’s complaint contradict the allegations of the complaint, the complaint does not state a cause of action and the default judgment must be set aside. Again, we disagree.

It is true that exhibits attached to a complaint become part of the complaint and will be considered together with it. Ginsberg, 645 So.2d at 494. It is also true that exhibits attached to a complaint control over the allegations of the complaint when the two contradict each other. Id. However, the alleged contradiction must be apparent from the face of the complaint and the exhibits. Becerra, 551 So.2d at 488. Moreover, for exhibits to serve as a basis for dismissing a complaint for failure to state a cause of action, the exhibits must actually negate the cause of action — not simply raise possible defenses to it. Id.; see also Fla. Farm Bureau Gen. Ins. Co. v. Ins. Co. of N. Am., 763 So.2d 429, 432 (Fla. 5th DCA 2000).

Here, the exhibits attached to Paladin’s complaint do not necessarily negate the allegations of the complaint. Instead, when considered in conjunction with the allegations of the complaint, the exhibits create questions of fact that may raise possible defenses to the complaint. Thus, the cases holding that a default judgment should be set aside when the complaint does not state a cause of action cannot support Family Investment’s position here.

Because any alleged mistake in entering the default judgment arose from a judicial error that is not correctable by way of a rule 1.540(b) motion, the successor trial judge abused his discretion in setting aside the default judgment. Further, Family Investment’s speculation concerning the reason for the alleged “mistake” cannot support setting aside the default judgment. Accordingly, we reverse and remand for reinstatement of the amended default judgment.

Reversed and remanded.

FULMER, C.J., and CASANUEVA, J., Concur.


source: Caselaw Access Project

author: TORPY, J. MONACO, J.,

license: Public Domain

text:
    Tracy W. WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-931.
    District Court of Appeal of Florida, Fifth District.
    Feb. 23, 2007.
    Rehearing Denied March 29, 2007.

      Michael H. Hatfield of Hatfield & Bax-ley, P.A., Umatilla, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

Appellant challenges the denial of his dispositive motion to suppress marijuana, paraphernalia and a firearm found during a warrantless search of his home and greenhouse. Concluding that sheriffs agents did not infringe upon Appellant’s constitutional rights before Appellant voluntarily consented to the search of his residence and greenhouse, we affirm.

Appellant owns and lives on a 36-acre parcel of land in Lake County. A natural vegetative buffer makes it nearly impossible to see the interior of the property from its boundary lines, and a perimeter fence entirely surrounds the property except for a drive gate. The fence is primarily “rail” fencing, but one section of the fence is constructed of barbed wire. The drive gate, located near the front of the property, is usually kept closed. A “No Trespassing” sign is conspicuously displayed next to the gate.

Approximately 100 feet behind Appellant’s residence is a greenhouse constructed of steel framing covered with semitransparent plastic material. The greenhouse is only partially visible from the residence. There is no doorway in the greenhouse. Ingress and egress is aceom-plished by lifting the plastic sides. The sides of the greenhouse are covered with nursery shade-cloth, which renders it difficult to see the interior of the greenhouse. Electrical power for the greenhouse ⅛ provided via an extension cord connected to Appellant’s residence.

Approximately ten days before Appellant’s arrest, one of his neighbors entered his property to look for the neighbor’s dog. At that time, the neighbor observed the greenhouse, which the neighbor believed contained marijuana. The neighbor notified sheriffs agents who began a surveillance of Appellant’s property over the course of several days.

Because sheriffs agents could not see the greenhouse from the boundary of the property, they surreptitiously entered the property by climbing over the fence and traversing the property up to the greenhouse. To view the contents of the greenhouse, it was necessary that the agents get very close to the greenhouse and touch its exterior. They wore camouflage suits to avoid detection. On the first occasion of their entry to the property, the agents observed more than 200 marijuana plants in the greenhouse, which they were able to view through a two-foot wide void in the covering on the greenhouse wall. After confirming that marijuana was growing in the greenhouse, the agents returned and entered the property on three more occasions over several days.

On the fourth occasion of their surveillance they were detected by Appellant’s dog. As Appellant was walking in the area of the greenhouse, his dog alerted to the presence of one sheriffs agent who was crawling on the ground. When Appellant and his dog got close to the agent, the agent, Detective Padgett, rose to his feet, identified himself as a law enforcement officer, pointed a gun at Appellant, ordered Appellant to the ground and threatened to shoot Appellant’s dog if Appellant did not control the dog. Padgett held Appellant at bay for several minutes until two other law enforcement officers arrived, at which time the agents instructed Appellant to get off the ground and keep his hands on his head. Appellant was “walked” to the front of his mobile home.

Once at the front of the mobile home, the agents told Appellant that they had reason to believe he was growing marijuana. They advised him of his Miranda rights, which he waived, and they asked for permission to search his residence and greenhouse. Appellant agreed and executed a written form that permitted the agents to conduct the search, which revealed the contraband and firearm. Appellant was charged with possession of a firearm by a convicted felon and several drug related counts.

The trial court concluded that the entry by officers onto the property was lawful because the greenhouse and surrounding field were not within the curtilage of the residence. Furthermore, the lower court concluded that Appellant’s consent to search was freely and voluntarily given. As a result, the court denied Appellant’s motion to suppress. Thereafter, Appellant entered a plea to the charges while preserving his right to appeal the dispositive issue of whether the evidence should have been suppressed.

On appeal, Appellant argues that the agents infringed upon his Fourth Amendment rights by crossing his fence, traversing his field and peering into the greenhouse. The State responds that these actions did not amount to a violation of the Fourth Amendment because the agents never penetrated the curtilage of the residence. We are constrained to agree with the State based on the Supreme Court’s holding in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987).

In Dunn, DEA agents made three war-rantless entries onto the defendant’s 198-acre ranch on two consecutive days by crossing over a perimeter fence that completely surrounded the property. Thereafter they walked one-half mile, crossed several barbed wire fences, climbed a wooden fence and peered into the barn using flashlights to view the interior of the locked barn, at which time agents observed an illicit drug laboratory. The barn, which was 60 yards from the defendant’s residence, was not visible from the perimeter of the property because the clearing in which the barn was situated was completely surrounded by woods. The Supreme Court concluded that these actions did not constitute a Fourth Amendment violation because the barn was not within the curti-lage of the residence. Therefore, the defendant did not enjoy an expectation of privacy in the area immediately outside the barn.

In concluding as it did, the Dunn court announced a four-part test to use in determining whether an area is protected “cur-tilage.” The Court emphasized, however, that the “centrally relevant consideration [in this determination is] whether the area in question is so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Id. at 301, 107 S.Ct. 1134. Our application of the Dunn four-part test here, with emphasis on the “centrally relevant consideration,” leads us to the inescapable conclusion that Appellant’s greenhouse, like the barn in Dunn, does not lie within the curtilage of his residence.

The first Dunn factor, the distance between the home and the area claimed to be curtilage, is, in this case, unhelpful because the distance of 100 feet supports no inference either way. Likewise, the second Dunn factor, whether the area is included within an enclosure surrounding the home, is of little import here because the perimeter fence does not provide a demarcation point separating the residence and curtilage from the remaining property. See United States v. Taylor, 458 F.3d 1201 (11th Cir.2006) (holding perimeter fence around five-acre parcel did not bring entire parcel within curtilage of residence).

The third factor, however, suggests strongly that the greenhouse at issue here did not fall within the protected curti-lage. This factor requires that we analyze the use to which the area is put to determine if it was “so associated with the activities and privacies of domestic life” that it should be “deemed” a part of the residence. Dunn, 480 U.S. at 302, 107 S.Ct. 1134. Here, as in Dunn, the only use to which the structure was put was the manufacture of illicit drugs, a use completely disassociated with the “privacies of the home.” This factor, therefore, militates in favor of the government.

The fourth and final Dunn factor involves an examination of the steps taken by Appellant to “protect the area from observation by people passing by.” Id. at 301, 107 S.Ct. 1134. In Dunn, the barn was locked, enclosed within a wooden fence, barbed wire fence and a perimeter fence, yet the Court concluded that the defendant had done “little to protect the barn area from observation by those standing in the open fields.” Id. at 303, 107 S.Ct. 1134. Here, the greenhouse was protected to a lesser degree than the barn in Dunn. It was not locked, it was constructed of semi-transparent material with a two-foot void, and only one fence, a standard rail fence, separated it from adjoining lands. Based on a comparison of the facts in Dunn, we must conclude that the fourth Dunn factor also favors the government.

The actions of the agents in approaching and peering into the greenhouse, therefore, did not infringe upon any protected constitutional right of Appellant because the area was outside the protected curtilage of the residence. Having reached this conclusion does not end our inquiry, however, because here, unlike Dunn, agents did not secure a search warrant before seizing the marijuana from the greenhouse and searching the residence. Instead, they relied upon Appellant’s consent to search. Appellant admitted that he gave written consent to search but testified that it was not voluntarily given because he was “scared” when he signed the consent form. The trial court rejected this claim, finding that the consent was voluntary. In reviewing this decision, our function is to determine whether this factual finding was clearly erroneous. State v. Breed, 917 So.2d 206, 209 (Fla. 5th DCA 2005); United States v. Van Shutters, 163 F.3d 331 (6th Cir.1998).

Below, the State had the burden to show that consent to search was voluntary by a preponderance of the evidence. Reynolds v. State, 592 So.2d 1082 (Fla.1992). This is a question of fact based upon the totality of the circumstances. Davis v. State, 594 So.2d 264 (Fla.1992). To conclude that a search is involuntary the court must find that the defendant’s “will ha(d) been overborne and his capacity for self-determination critically impaired.” United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). In making this determination, the courts have relied upon a variety of factors that address both the “characteristics of the accused and the details of the interrogation.” Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041.

The factors relevant here, which bear on the characteristics of the accused, include his age, whether he had a prior criminal history — the presumption being that one who has prior criminal arrests knows his legal rights — and whether there is evidence that he was intoxicated or suffering from a mental deficiency that impaired his ability to make an intelligent decision. Watson, 423 U.S. at 424, 96 S.Ct. 820; United States v. Bradley, 234 F.3d 363, 366 (8th Cir.2000).

As to the details of the interrogation, relevant factors considered by the courts include whether the defendant was advised of his Miranda rights, whether the defendant executed a written consent form, whether he was promised anything or threatened, the length of time police interrogated him before he consented, the location of the encounter and whether the defendant was in custody at the time he gave consent. Watson, 423 U.S. at 424, 96 S.Ct. 820; United States v. Navarro, 90 F.3d 1245, 1257 (7th Cir.1996); United States v. Kon Yw-Leung, 910 F.2d 33, 41 (2d Cir.1990); Taylor v. State, 855 So.2d 1, 17 (Fla.2003).

These factors should not be applied mechanically and no single factor is disposi-tive or controlling. United States v. Ponce, 8 F.3d 989, 997 (5th Cir.1993). Applying these factors here, we are unable to conclude that the trial court’s determination was clearly erroneous.

The factors that relate to the characteristics of the accused all weigh in favor of the determination made by the trial judge. Appellant was, at the time, 37 years old. He was no newcomer to the law, having been previously convicted of at least one felony. There is no evidence that he was mentally deficient, intoxicated or incapable of making an intelligent decision.

As to the details of the interrogation, the majority of the factors favor the government’s position. Appellant had been advised of his Miranda rights and agreed to talk to sheriffs agents without counsel present. He executed a written consent form. He' was on his own property during daytime hours, not in a more coercive environment such as a police station or dark alley. The encounter was relatively short, and he was neither threatened nor promised anything to induce his consent.

Although he was not told he was under arrest or placed in handcuffs, we accept for the sake of argument that Appellant was in “custody.” Furthermore, having been accosted at gunpoint by multiple officers, we do not doubt that Appellant’s anxiety level was near its apex, especially given his knowledge that he had been caught red-handed. After sheriffs agents initially confronted Appellant, however, they led him to his front porch, permitted him to sit down, at which time they explained the reason for their presence, advised him of his rights and asked for his consent to search. At the hearing on Appellant’s motion, when offered multiple opportunities to explain why he thought that his written consent was not voluntarily given, he offered only that he was “scared,” testimony that the trial court was certainly free to reject. Even if true, we suspect that this reaction is common among those who endure the stress of an arrest. It by no means compels, as a legal conclusion, that Appellant’s “will ha[d] been overborne and his capacity for self-determination critically impaired,” or that Appellant was “unable in the face of custodial arrest to exercise free choice.” Watson, 423 U.S. at 424, 96 S.Ct. 820; see also Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041; United States v. Crespo, 834 F.2d 267, 271 (2d Cir.1987), cert. denied, 485 U.S. 1007, 108 S.Ct. 1471, 99 L.Ed.2d 700 (1988); United States v. Valencia, 645 F.2d 1158, 1165 (2d Cir.1980)

Although reasonable judges could differ when balancing the factors to be considered here, we are constrained to side with the trial judge unless we can say that his factual determination was clearly erroneous. Under this standard of review, we cannot so conclude.

AFFIRMED.

GRIFFIN, J., concurs.

MONACO, J., concurs and concurs specially with opinion.

MONACO, J.,

concurring.

While I fully concur in the well-reasoned opinion of the court in this case, I must say that I find it unnerving that despite the criminal trespass by state agents onto the land of the appellant, the search here is constitutional under the Fourth Amendment. Yet, that appears to be the state of the law as indicated in United States v. Dunn, 480 U.S. 294, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987), and Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), and we are bound by that result. Frankly, however, I think Justice Marshall got it right in Oliver.

      . Although not argued by Appellant here or below, we note parenthetically that, at first blush, the fact that State agents apparently committed criminal trespass by entering fenced lands without consent presents a compelling argument for exclusion of the fruits of this unlawful intrusion. See § 810.09(l)(a) 1., Fla. Stat. (2005) (providing entry upon fenced lands is first-degree misdemeanor). As Justice Marshall stated in Oliver v. United States, 466 U.S. 170, 191, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984):
      [P]ositive law not only recognizes the legitimacy of [defendants'] insistence that strangers keep off their land, but subjects those who refuse to respect their wishes to the most severe of penalties — criminal liability.
      Under these circumstances, it is hard to credit the [assertion of the majority] that [defendants’] expectations of privacy were not of a sort that society is prepared to recognize as reasonable.
      This dissenting argument, however, failed to carry the day with the majority of our high court and apparently is not the law. See Sarantopoulos v. State, 629 So.2d 121, 123 (Fla.1993) (recognizing that majority of Oliver court implicitly rejected Marshall’s argument). Although we do not condone police behavior that amounts to criminal trespass, it appears that exclusion of the evidence discovered as a result is not an available remedy to redress this wrongful conduct.

      . Although a warrant was unnecessary to traverse the open field and peer into the greenhouse, under Dunn, in the absence of consent or other exigent circumstances, a warrant might have been required to enter the greenhouse and seize the plants. But see United States v. Pennington, 287 F.3d 739, 745-46 (8th Cir.2002) (citing Dunn for proposition that open fields doctrine does not authorize warrantless search of man-made structure within field, but nevertheless affirming war-rantless search of bunker because unlocked and within field). Because we have determined that the seizure was preceded by Appellant’s valid consent to search, we need not reach a conclusion on this issue.

      . If the consent is preceded by an infringement of constitutional rights, such as an unlawful search or detention, the State has the burden to prove voluntary consent by clear and convincing evidence. Reynolds, 592 So.2d at 1085.


author: ALTENBERND, Judge.

text:
    In the Interest of: A.B., a child. Department of Children and Family Services, Appellant, v. D.B., Father, Appellee.
    No. 2D06-1295.
    District Court of Appeal of Florida, Second District.
    Feb. 23, 2007.
    Rehearing Denied April 4, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Christopher Perone and Timothy A. Freeland, Assistant Attorneys General, Tampa, for Appellant.
    David A. Dee, Tampa, for Appellee.
   ALTENBERND, Judge.

The Department of Children and Family Services appeals the trial court’s order dismissing the Department’s dependency petition against D.B. The dismissal occurred after a series of hearings in which there was confusion as to whether the court was conducting a hearing on the admissibility of hearsay testimony or a trial on the merits of the case or both. At the conclusion of the last hearing, the trial judge dismissed the Department’s petition. The trial judge’s comments at that time suggest that he dismissed the case because he concluded, as a matter of law, that the acts alleged to have given rise to the petition did not constitute abuse, and therefore the Department had not presented a prima facie case to support an adjudication of dependency. Based upon these comments, we reverse. Given the procedural confusion and the passage of time, we remand for a new adjudicatory hearing on the petition.

D.B. is the unmarried father of A.B., a girl who was six years old at the time of the events giving rise to this action. Apparently D.B. had unsupervised visitation with the child by virtue of a court order in a separate family law proceeding, but that order is not in our record. These proceedings began in May 2005 when the Department filed a petition for emergency shelter placement. The Department sought to shelter the child with her mother, who already was her primary residential parent. For practical purposes, then, the emergency shelter petition merely suspended visitation between the father and daughter. Nothing in the record suggests that the mother sought any modification of the father’s visitation rights in the family law proceeding. At the same time that these proceedings commenced, the State brought criminal charges against D.B.

The Department sought an order adjudicating A.B. dependent as to D.B. based upon allegations that D.B. had digitally penetrated his daughter when he was exercising his visitation rights and was alone with his daughter. A.B. had provided various hearsay statements to different individuals claiming that these events occurred. D.B. defended himself by arguing essentially that he had a bad relationship with one of the maternal relatives, that this person made false claims against him in the past, and that this person influenced his daughter to make false claims of sexual abuse in this case.

The parties appeared for trial on October 18, 2005. The Department’s dependency case hinged upon the admissibility of the child’s hearsay statements to various individuals, but most specifically upon a videotaped interview that had occurred at the Children’s Justice Center. On the morning of trial, the judge learned that the Department had not sought to address the admissibility of these statements prior to trial, and thus this issue had to be resolved either before the scheduled trial began or as a part of the trial proceedings.

From this point on, through a series of hearings occurring from October 18, 2005, until December 2005, it was never completely clear if the court understood whether it was proceeding solely upon the admissibility of the hearsay evidence, the merits of the trial, or both.

At one hearing, the Department attempted to present the testimony of the child through closed circuit television. After a short series of introductory questions, the child testified that she had never experienced a “bad touch” and provided no audible answer to the question, “Has your father ever touched you with a bad touch?” The questioning ended shortly thereafter, and there was no cross-examination. The court permitted a recess, during which the parties were directed to research whether the Department could present a prima fa-cie case through admissible child hearsay in light of the child’s video testimony. When the parties returned after the recess, however, there was no argument presented on this issue. Instead, the court heard further evidence at this time and at a subsequent hearing that was relevant both to the admissibility of the child’s hearsay statements and the merits of the Department’s petition.

At a hearing on October 31, 2005, the Department indicated that it had presented all of the evidence it intended to present. The trial judge indicated he would take the issue of the admissibility of the child’s hearsay statements under advisement. The following exchange then occurred:

THE COURT: ... When is the trial?
[COUNSEL FOR D.B.]: I don’t think we had a date. I mean, it was set at the same time—
[COUNSEL FOR THE DEPARTMENT]: We have already taken some testimony but it was conditioned — everything else was conditioned upon your ruling—
[COUNSEL FOR THE DEPARTMENT]: [Counsel for D.B.] has indicated to me ... that he would have no objection to the Court taking the evidence that had already been provided to the Court in the motion towards the trial itself.
THE COURT: Right. Okay. Let’s do this. Let me give you a date of November 17th for my ruling on this matter. I may have it done sooner than that. It’s required by rule I do it in writing, so I’ll have it prepared by then and then we’ll set trial — to continue the trial — we’ll set a date after that.

The record does not contain a transcript of a hearing on November 17. On November 23, however, the parties appeared at a hearing and the court issued a written ruling on the admissibility of the child hearsay. The trial court found that some of the statements were reliable and thus admissible — most notably, the child’s statements in the videotaped interview— but that others were merely cumulative and thus inadmissible. The court concluded, “And we need a trial date, right?” The Department’s attorney responded, “Yes, Judge, but I will say that at the last court date I indicated to the Court that I don’t have anything over and above what I’ve already presented and [counsel for D.B.] had indicated that we would be willing to stipulate to the testimony of those witnesses ... for trial purposes.” The Court replied,

THE COURT: Well, that’s fine then, but you can — if that’s your intention to rest on that date — .
[COUNSEL FOR D.B.]: We’ll set a date anyway, though; right?
THE COURT: Yeah, and then you’ll have an opportunity to present your testimony or any witnesses you want to present at the hearing.
[COUNSEL FOR D.B.]: But I — I do not anticipate my client testifying so— because of the criminal trial.
THE COURT: Okay. All right, well, let me just give you a date.

That date was December 20, at which time D.B.’s counsel appeared but D.B. was not present. The trial judge indicated that he wanted D.B. to appear, and counsel for D.B. replied, “Judge, just summation this morning.” The court continued the hearing to January 3, 2006.

At the commencement of the hearing on January 3, the trial judge asked, “We’re here for a — final summations?” And counsel for the Department replied, “Yes, Judge, of the trial.” Counsel for the Department began to present a closing argument, during which the trial judge interjected with various questions. The comments of the trial judge during the ensuing discussion suggest the trial court may have believed that D.B. had engaged in the relevant conduct for legitimate reasons and not as an act of sexual battery, or that the acts alleged did not, as a matter of law, constitute abuse sufficient to support an adjudication of dependency. After this discussion and a brief statement by counsel for D.B. that the Department had not presented competent, substantial evidence of abuse, the trial judge indicated that he was dismissing the petition.

The procedural difficulties in this case may have led to some understandable confusion on the part of the trial judge. Nevertheless, the trial judge specifically admitted into evidence, based upon a finding of reliability, child hearsay testimony describing a sexual battery. There is nothing in the record to suggest that there was any legitimate purpose for the described conduct. Indeed, the acts described are of a nature that they would not reasonably be performed by a parent for any purpose other than an abusive one. D.B. apparently chose not to testify because of possible criminal proceedings. The court never suggested that the child’s brief testimony by closed circuit television caused it to reject the extensive hearsay testimony that it had found reliable.

It is frankly a little difficult to determine what evidence the trial court believed was introduced at trial and what evidence was only introduced for purposes of determining the issue of admissibility. Nevertheless, the Department clearly presented pri-ma facie evidence of the alleged acts, and the trial court could not properly dismiss the petition on the grounds that the acts could not constitute abuse as a matter of law.

The combination of the multiple hearings addressing both the merits of the case and the admissibility of the hearsay statements and the ambiguity as to whether the trial court believed it was dismissing this case as a matter of law or after a weighing of the evidence convinces us that the order must be reversed and the matter remanded for a new hearing in a more traditional, orderly process. Given the passage of time and the confusion already existing over the disjointed presentation of the evidence in the initial proceedings, the trial court must conduct a new adjudicatory hearing on remand.

Reversed and remanded.

STRINGER and WALLACE, JJ., Concur.

      . In this respect, the dependency statute’s use of the term “dismissal” to reflect an adjudication on the merits of the petition may be a source of some confusion. See § 39.507(4), Fla. Stat. (2005). That is, a dependency court's dismissal of a petition might reflect the equivalent of a directed verdict, or it might reflect a determination on the merits.


author: SILBERMAN, Judge.

text:
    FLORIDA HEALTH SCIENCES CENTER, INC., d/b/a Tampa General Hospital, Appellant, v. John T. ELSENHEIMER and Frank Jackson, Individually and on behalf of themselves and all others similarly situated, Appellees.
    Nos. 2D06-0657, 2D06-1159, 2D06-1663.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.

      Edward J. Carbone and Blake J. Delaney of Buchanan Ingersoll PC, Tampa, for Appellant.

      Mark C. Menser of Viles & Beckman, LLC, Fort Myers, for Appellees.
    Kimberly A. Ashby and Kirk Davis of Akerman Senterfitt, Orlando, for Amicus Curiae Florida Hospital Association.
   SILBERMAN, Judge.

Appellees John T. Elsenheimer and Frank Jackson (the Plaintiffs) brought this action against Appellant Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital (the Hospital), concerning its billing and collection practices with regard to uninsured patients. In these consolidated appeals, the Hospital challenges a non-final order denying its motion to transfer venue pursuant to section 47.122, Florida Statutes (2005), and two nonfinal orders granting class certification. We affirm the venue order, treat the issue regarding the first certification order as moot, reverse the second certification order, and remand for an evidentiary hearing regarding class certification.

The Plaintiffs reside in Charlotte County, Florida. On April 5, 2004, Elsenheimer was involved in a swamp buggy accident, suffering serious injury to his skull. He was transported from Charlotte County to the Hospital, which is located in Hillsbor-ough County, for emergency treatment. Elsenheimer was uninsured but was eligible for Medicaid. Elsenheimer’s father, Frank Johnson, was responsible for the medical bills his son incurred because El-senheimer was a minor at the time of the accident. Shortly after the accident, El-senheimer reached the age of majority. The Hospital billed approximately $110,000 for Elsenheimer’s treatment and twelve-day hospital stay. The Hospital engaged in collection efforts in Charlotte County against the Plaintiffs, characterized by the Plaintiffs as “a campaign of harassment.”

The Hospital ultimately submitted Elsen-heimer’s bills to Medicaid for payment. After payment by Medicaid of a portion of the bills, the Hospital wrote off the remaining balance. The Plaintiffs made no payment to the Hospital.

The Plaintiffs filed an amended class action complaint against the Hospital, and the operative pleading is the second-amended. class action complaint, dated August 31, 2005. - The second-amended complaint alleges claims under the Florida Consumer Collection Practices Act, sections 559.55-.785, Florida Statutes (2004). In count one, entitled “Improper Debt Collection,” the Plaintiffs allege under section 559.72 that the Hospital “has attempted to collect non-existent or exaggerated debts from the Plaintiffs.” In count two, entitled “Illegal Collection Practices,” the Plaintiffs allege that the Hospital engaged in collection tactics intended to harass the Plaintiffs and force them to pay an alleged debt that was not owed. In count three, the Plaintiffs seek injunctive relief to compel compliance with chapter 559 and to prohibit the Hospital from attempting to collect “illegal and unauthorized charges for health care.” In count four, entitled, “Equitable Relief: Disgorgement of Illegally Collected Funds,” the Plaintiffs allege that the Hospital “has routinely and systematically collected exorbitant, exaggerated fees from indigent, uninsured or underin-sured patients for debts that were not owed, including overcharges for services and debts covered by Medicaid or other programs.” On that basis, the Plaintiffs seek an accounting and the “return of all illegally collected funds.”

MOTION TO TRANSFER VENUE

In September 2005, the Hospital filed a motion to transfer venue from Charlotte County to Hillsborough County pursuant to section 47.122, Florida Statutes (2005). In support of the motion, the Hospital filed an affidavit by its Director of Patient Accounts, Anthony Escobio. Following a hearing, the trial court denied the motion.

We reject without discussion the Plaintiffs’ contention that the Hospital waived its venue argument by engaging in discovery after the trial court denied its motion to transfer venue. We also reject the Plaintiffs’ contention on appeal that the motion to transfer venue was untimely pursuant to Florida Rule of Civil Procedure 1.061. That rule addresses motions to dismiss “on the ground that a satisfactory remedy may be more conveniently sought in a jurisdiction other than Florida.” Fla. R. Civ. P. 1.061(a). A motion under the rule “shall be served not later than 60 days after service of process on the moving party.” Fla. R. Civ. P. 1.061(g).

In its motion, the Hospital did not seek dismissal under rule 1.061 to a jurisdiction outside of Florida. Instead, the Hospital sought a transfer of venue to another Florida county based on “the convenience of the parties or witnesses or in the interest of justice,” as provided for in section 47.122. Thus, rule 1.061 is not controlling because it does not apply to motions to transfer venue within Florida under section 47.122. See E.I. DuPont De Nemours & Co. v. Fuzzell, 681 So.2d 1195, 1197 (Fla. 2d DCA 1996) (acknowledging that the analysis applicable to a motion made pursuant to rule 1.061 does not apply to a motion to transfer venue within Florida pursuant to section 47.122); John Christen Corp. v. Maita, 571 So.2d 24, 25 n. 1 (Fla. 2d DCA 1990) (observing that section 47.122 contains no time limitation).

With respect to the merits of the Hospital’s venue motion, the Hospital does not argue on appeal that Charlotte County is not a proper venue for this lawsuit. Rather, it contends that the trial court erred in denying its motion to transfer venue to Hillsborough County. Section 47.122 provides, “For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.” A trial court’s decision on whether to change venue under section 47.122 is subject to an abuse of discretion standard of review. See Darby v. Atlanta Cas. Ins. Co., 752 So.2d 102,103 (Fla. 2d DCA 2000); PricewaterhouseCoopers LLP v. Cedar Res., Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999).

In Darby, this court recognized that “[w]hen deciding a venue issue, a plaintiffs venue selection is not the paramount consideration; but ‘it is a meaningful one in assessing the convenience of the parties.’ ” 752 So.2d at 103 (quoting J.L.S. v. R.J.L., 708 So.2d 293, 295 (Fla. 2d DCA 1998)). With respect to the three statutory factors of convenience of the parties, convenience of the witnesses, and the interests of justice, the convenience of the witnesses is the most important factor. Morrill v. Lytle, 893 So.2d 671, 673 (Fla. 1st DCA 2005). But, “for a court to consider the convenience of the witnesses, the court must know who the witnesses are and the significance of their testimony.” Hu v. Crockett, 426 So.2d 1275, 1279 (Fla. 1st DCA 1983). To overcome a plaintiffs venue choice, the defendant must submit affidavits or other sworn proof. Breen v. Huntley Jiffy Stores, Inc., 610 So.2d 29, 30 (Fla. 2d DCA 1992); Eggers v. Eggers, 776 So.2d 1096, 1098 (Fla. 5th DCA 2001); Graham v. Graham, 648 So.2d 814, 815-16 (Fla. 4th DCA 1995).

The Hospital relies upon Eggers to argue that because it had filed the only sworn proof concerning venue, consisting of Escobio’s affidavits, the trial court, abused its discretion in denying the motion to transfer. In Eggers, the defendant submitted a sworn motion and affidavits from ten prospective witnesses in Hillsborough County. The plaintiff filed an unsworn response stating that she was eighty-seven years old and that the change in venue would be a hardship for her and her witnesses who all resided in Citrus County. The Fifth District stated that the plaintiffs unsworn response was not evidence and that the trial court had before it only evidence that Hillsborough County was the more convenient forum. 776 So.2d at 1098. The Fifth District concluded that the trial court had abused its discretion and reversed the denial of the motion to transfer venue under section 47.122. Id.

Here, the Hospital relied on Escobio’s affidavits in support of its motion to transfer venue. The affidavits state that Hills-borough County is the Hospital’s “residence” and that it operates its facility there; that its assets are located and its records are maintained in Hillsborough County; that its employees are based in Hillsborough County; that the overwhelming majority of the potential witnesses and the overwhelming majority of records, data, and evidence believed to be relevant to its billing and collection practices regarding Elsenheimer and other medically indigent patients who are eligible for Medicaid benefits are located in Hillsborough County; and that over 70% of members of one portion of the putative class and over 85% of the members of another portion of the putative class resided in Hillsborough County at the time of their admission to Tampa General Hospital.

Notably, although the affidavits speak broadly about potential witnesses and potentially relevant records, the affidavits are significantly less detailed than the affidavits that were submitted in Eggers. There, the defendant’s sworn motion stated that venue was more appropriate in Hillsborough County because nineteen witnesses resided there. 776 So.2d at 1097. Affidavits from ten of the prospective witnesses were also filed, setting forth “the gist of the relevant knowledge of the witnesses.” 776 So.2d at 1098 n. 2.

Escobio’s affidavits do not identify the potential witnesses from Hillsborough County, describe their anticipated testimony, or establish the relevance of their anticipated testimony. Thus, the trial court did not know whether one or two Hillsbor-ough County witnesses might testify for the Hospital or if there are significantly larger numbers of witnesses who might testify. The Hospital also did not apprise the court of whether each witness had different, relevant information or whether each would provide virtually identical testimony.

With respect to the Hospital’s assertions regarding members of the putative class, at the time the trial court heard the venue motion the class had not yet been certified. Further, it is unclear to what extent, if any, the testimony of class members other than the named Plaintiffs would be needed for trial.

Because of the lack of specificity in the affidavits submitted by the Hospital, we cannot say that the trial court abused its discretion in denying the motion to transfer venue under section 47.122. Thus, we affirm the order denying the motion to transfer venue. We recognize, however, that as new information is developed on remand, on proper motion with appropriate proof, a transfer of venue under section 47.122 may be warranted.

CLASS CERTIFICATION

The Plaintiffs filed an unsworn motion for class certification in December 2005. In the motion, the Plaintiffs allege, “on behalf of themselves and all other persons similarly situated,” that the Hospital had engaged in “wrongful conduct, on a class-wide basis, in attempting to collect excessive and unlawful debt and improperly imposing a lien or interest upon property in Charlotte County.” On February 13, 2006, the trial court heard the Plaintiffs’ motion for class certification. No testimony was presented at the hearing, and the Plaintiffs filed no affidavits or depositions in support of their motion. The only evidence that the Plaintiffs filed was Elsenheimer’s own hospital bills, the Hospital’s 2004 annual report, and some news articles from the Internet. The hearing consisted primarily of argument of counsel, and the transcript of the hearing is just twenty-three pages long.

On February 24, 2006, the trial court entered a boilerplate, one-paragraph order granting class certification, which the Plaintiffs concede does not meet the requirements of Florida Rule of Civil Procedure 1.220(d). On March 2, 2006, the trial court entered a second, more detailed order granting class certification. After the court entered the second order, the Hospital filed its notice of appeal of the first order. Later, the Hospital filed its notice of appeal of the second order. Because the trial court entered the second order before the Hospital appealed the first order, and because the second order superseded the first order, the issues relating to the first order are moot. We therefore confine our discussion to the second class certification order.

Although the second order contains some findings of fact, it is apparent that the trial court based the bulk of its findings on the allegations in the second-amended complaint. Further, the order specifies that “certain factual averments raised in the Second Amended Complaint which were essentially uncontroverted at the hearing are taken as true for purposes of certification.” One of the central allegations that the court recited in its second order was that “[t]he hospital charges incurred by the Plaintiffs were substantially (300% — 40 0 %) (allegedly) in excess of charges that would have been billed to an insured person.” At the hearing, the Plaintiffs’ counsel argued that this allegation was an undisputed fact. The Hospital’s counsel, however, responded at the hearing that its client vehemently opposed the allegation. Counsel stated as follows: Tampa General Hospital most assuredly does not acknowledge that it charges different amounts based on someone’s insurance status. In fact, it affirmatively contends in this case and will prove if this case goes forward, that it does not. There is a single charge, two [sic] patients for a given service regardless of their insurance status.

Thus, the court’s finding and the Plaintiffs’ argument that the Hospital did not dispute the central allegation is incorrect.

Before certifying a class action, a trial court must conduct a rigorous analysis to determine whether the plaintiff has met the requirements of rule 1.220. Rollins, Inc. v. Butland, 951 So .2d 860, 867 (Fla. 2d DCA 2006). In order to certify a class, the trial court must determine that the plaintiff has met the rule 1.220(a) requirements of numerosity, commonality, typicality, and adequacy of representation. Id- In addition, the trial court must determine that the plaintiff has met one of the subdivisions of rule 1.220(b) to certify a class. Id. Rule 1.220(d)(1) requires the trial court’s order to “separately state the findings of fact and conclusions of law upon which the determination is based.” Review of a trial court’s order on class certification is by the abuse of discretion standard. Rollins, 951 So.2d at 867-68.

Contrary to the Plaintiffs’ assertions, it is insufficient for the trial court to accept the allegations in the Plaintiffs’ complaint as true for purposes of the class certification. “Although not every class certification order merits an evidentiary hearing as a predicate, the majority of class certification issues are determined after such hearings because the plaintiff bears the burden of proof, and not simply supposition, to establish that a class should be certified.” Ernie Haire Ford, Inc. v. Gilley, 903 So.2d 956, 958 (Fla. 2d DCA 2005); see also Rollins, 951 So.2d at 867-68 (“There must be an evidentiary basis to support an order certifying a class when the nonmoving party contests class certification and it is not clear from the pleadings that a lawsuit qualifies for class action status.”); Barton-Malow Co. v. Bauer, 627 So.2d 1233, 1235 (Fla. 2d DCA 1993) (“In most cases, if the defendants contest the plaintiffs’ allegations, it will be necessary for the trial court to determine whether the facts actually support the allegations.”).

The present case is similar to UGI Corp. v. Marcucilli, 939 So.2d 347 (Fla. 2d DCA 2006). In UGI Corp., this court determined that the record provided no evidentiary support for the trial court’s findings on class certification because the plaintiff did not present any evidence at the class certification hearing. Id. at 347. This court explained that

this was not one of those rare cases in which an evidentiary hearing was not required. Counsel for UGI informed the circuit court at the hearing that his clients contested the issue of class certification and pointed out that the putative class representative had not presented any evidence in support of his motion for class certification. At that point, the putative class representative’s request for the certification of a class rested on the unsupported allegations of the class action complaint and the motion for class certification. Under these circumstances, an evidentiary hearing was required before a class could be certified, and the circuit court abused its discretion in certifying the class without first conducting such a hearing.

Id. at 347-48.

Here, the Hospital recognizes that its 2004 annual report, which the Plaintiffs filed, did provide evidence of numerosity of the class. However, the Plaintiffs failed to present evidence regarding any of the other requirements for class certification. The fact that the Plaintiffs submitted El-senheimer’s hospital bills does nothing to establish commonality or typicality. The Plaintiffs’ counsel argued that the Hospital charged higher prices to uninsured patients than to insured patients for the same service. Counsel stated, “You have a commonality based upon this common billing practice. The — and again it’s not disputed.” The Hospital did dispute this allegation, and the Plaintiffs submitted only Elsenheimer’s bills as support for the allegation. The submission of one patient’s bills does not prove a “common billing practice.” Thus, the trial court had before it no proof on commonality. Furthermore, the submission of just Elsenheimer’s hospital bills.does not prove that the Plaintiffs claims are typical of any other potential class member. Thus, the trial court, abused its discretion in certifying a class without evidence to establish the requirements of rule 1.220(a) and (b).

Therefore, as in UGI Corp., we reverse the second class certification order and remand for an evidentiary hearing after the parties have had an opportunity to conduct discovery regarding the issue of class certification.

Affirmed in part, reversed in part, and remanded for further proceedings.

WALLACE and LaROSE, JJ., Concur.

      . The original complaint is not contained in the Appendix, and the amended complaint apparently was the first paper served on the Hospital in this action.

      . In connection with an earlier motion, the Hospital had filed a different affidavit by Es-cobio.

      . The Hospital also made other arguments in its motion that do not impact our analysis.

      . For unknown reasons, the second order was not filed with the circuit court clerk until March 28, 2006.

      . In fact, the trial court judge and the plaintiff's attorney in UGI Corp. are the same as in the present case. The trial court did not have the benefit of the UGI Corp. decision at the time that it entered the certification order now before us.

      . We note that in its second order, the trial court certified what appears to be a rather broad class. If the Plaintiffs are. able to present evidence to support class certification on remand, subclasses may be necessary, particularly in light of the different counts contained in the second-amended complaint.


author: PER CURIAM.

text:
    Thomas Perry WELLS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-487.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Thomas Perry Wells, Jr., Perry, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Thomas Perry Wells appeals an order denying his prayer for issuance of a writ of execution against the State of Florida to enforce a cost judgment in his favor in the amount of $11.40. The cost judgment arose when Wells was the successful party on appeal in a mandamus action against the state.

A sheriff has no authority to levy against public property to satisfy a judgment. Navarro v. Bouffard, 522 So.2d 515, 517 (Fla. 4th DCA 1988). Rather, the sole method of enforcing a judgment against a governmental entity is by way of a mandamus action. Id. Thus, the trial court’s refusal to issue a wilt of execution was proper.

Affirmed.

WARNER, GROSS and TAYLOR, JJ., concur.


author: NORTHCUTT, Judge.

text:
    FLORIDA DEPARTMENT OF FINANCIAL SERVICES as Receiver for Associated Business & Commerce Insurance Corp., Appellant, v. MJ VERSAGGI TRUST d/b/a Versaggi Properties, Appellee.
    Nos. 2D06-687, 2D06-2057.
    District Court of Appeal of Florida, Second District.
    March 9, 2007.

      Ralph W. Symons of Ralph W. Symons, P.A., Miami, for Appellant.
    John J. Dingfelder and Thomas P. Scar-ritt, Jr. of Scarritt Law Group, P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

In these consolidated cases, the Department of Financial Services appeals a final summary judgment in favor of the MJ Versaggi Trust and an order determining that the Trust is entitled to attorney’s fees. While the latter order establishes the Trust’s entitlement to fees, it leaves the amount of the fee award to be determined. For that reason, it is nonfmal and nonappealable. We therefore dismiss the appeal in case number 2D06-2057. See McIlveen v. McIlveen, 644 So.2d 612 (Fla. 2d DCA 1994). In the appeal of the final summary judgment, however, we hold that the record before the circuit court did not establish the Trust’s entitlement to judgment. Therefore, we reverse the judgment and remand for further proceedings.

This dispute concerns the premium due on an insurance policy securing payment of workers’ compensation benefits. See § 440.38(l)(a), Fla. Stat. (1997). In 1997, the Trust began refurbishing an apartment building. It contracted with ABC Insurance Co. to secure workers’ compensation coverage for the Trust’s employees. See id.; § 440.02(13)(a) (defining an employee). In addition to its employees, the Trust engaged two other men, Freundl and Lehmkuhle, to work on the project. For purposes of calculating the ABC policy premiums, these men were treated as independent contractors and not deemed to be covered employees.

In 1998, ABC became insolvent and went into receivership. After the Trust’s workers’ compensation policy period expired, the Department, as ABC’s receiver, conducted an audit of the policy. It determined that, for purposes of workers’ compensation coverage, Freundl and Lehmkuhle should have been treated as employees instead of independent contractors. It notified the Trust that an additional policy premium was due for coverage of the two men. The Trust countered that the men were not employees under the Workers’ Compensation Law and refused to remit the additional premium payment. The Department then sued the Trust.

In due course, the Trust moved for summary judgment. It contended that, as a matter of law, Freundl and Lehmkuhle were independent contractors and that the Trust had no legal obligation to provide workers’ compensation coverage for them. See § 440.02(13)(d)(l) (providing that an “employee” for purposes of the Workers’ Compensation Law does not include an independent contractor). The Department countered that Freundl and Lehmkuhle were employees because the two men were in-the construction industry and had not elected to be excluded from that definition as required in section 440.02(13)(c). That subsection states that “[p]artners or sole proprietors actively engaged in the construction industry are considered employees unless they elect to be excluded from the definition of employee by filing written notice of the election with the [Division of Workers’ Compensation of the Department of Labor and Employment Security] as provided in s. 440.05.” See also § 440.02(13)(d)(8) (providing that an “employee” does not include “[a] sole proprietor ... who actively engages in the construction industry ... who elects to be exempt from the provisions” of the Workers’ Compensation Law). Section 440.05 sets out the requirements for the election notice.

In support of its motion for summary judgment, the Trust tendered copies of notarized preprinted forms that had been completed by Freundl and Lehmkuhle at the time they were hired to work on the apartment renovation project. The forms, promulgated by the Division of Workers’ Compensation, were entitled “Construction Industry Certificate of Election To Be Exempt From the Florida Workers’ Compensation Law.” They contained a blank in which the person seeking the exemption was required to state the “legal business name of sole proprietorship, partnership, or corporation.” Freundl and Lehmkuhle each wrote his full name in the blank provided. Each form also included an “affidavit of independent contractor status,” in which the signer swore that he met the nine tests for independent contractor status delineated in section 440.02(13)(d)(l). Freundl and Lehmkuhle each completed an affidavit indicating that he was an “owner/proprietor.”

But merely completing the form does not satisfy the requirements for an exemption under section 440.05(3). That statute provides that the notice of election must be mailed to the Division of Workers’ Compensation and that the notice is not effective “until 30 days after the date it is mailed.” § 440.05(4). After the Division receives the notice and determines that it meets the statutory requirements, it issues a certification of the election.

The statutory requirements of mailing and certification were evident on the forms that Freundl and Lehmkuhle completed. For example, each form contained a printed statement informing the recipient that “as of 12:01 a.m. 30 days following the date of the mailing of this form, you are hereby notified that the following Sole Proprietor, Partner or Corporate Officer of the above-named business does elect to be exempt from the provisions of the Florida Workers’ Compensation Law.” Also, in the upper right-hand corner of the form was a box to be filled out by the Division. The box contained blanks in which the Division could note the “effective date,” the “employer #,” and the “postmark date,” followed by the statement that “this notice will be valid from the effective date above until a notice of revocation is filed by the sole proprietor, partner or corporate officer making this election.” None of the blanks in this box were completed on either Freundl’s or Lehmkuhle’s form.

The evidence before the court on the Trust’s motion for summary judgment consisted only of the above-described forms completed by Freundl and Lehmkuhle and the affidavit of one of the trustees. The trustee’s affidavit stated that the Trust was engaged in the “construction industry” as defined in section 440.02. The forms established that Freundl and Lehmkuhle considered themselves to be sole proprietors of businesses engaged in the construction industry. But the forms did not reflect that they had been mailed to or received by the Division of Workers’ Compensation, and no other evidence was submitted to demonstrate that this had been done.

We review a summary judgment de novo. Our review entails a two-pronged analysis: a summary judgment is proper only if there remains no genuine issue of material fact and only if the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Poe v. IMC Phosphates MP, Inc., 885 So.2d 397, 400-01 (Fla. 2d DCA 2004). Relying on Freundl’s and Lehmkuhle’s affidavits contained in the exemption forms, the circuit court concluded that they were independent contractors, that they were therefore exempt from the definition of an “employee” for purposes of workers’ compensation, and that the Trust was therefore not obligated to obtain workers’ compensation coverage for them. See § 440.02(13)(d)(l). This was error.

As explained in Arruda v. Gold Crest Kitchens, 642 So.2d 624, 625 (Fla. 1st DCA 1994), a person who is a sole proprietor in the construction industry cannot be considered an “independent contractor” unless he or she makes the affirmative election to come within that category as set forth in section 440.05. The court noted that the specific language addressing the construction industry in sections 440.02(13)(c) and 440.02(13)(d)(8) controlled over the more general language discussing independent contractors in section 440.02(13)(d)(l). Arruda, 642 So.2d at 626; see also Armstrong v. Ormond in the Pines, 734 So.2d 596, 597-98 (Fla. 1st DCA 1999) (citing Arruda, and noting that in the case of a construction worker who is a sole proprietor, the general statutory criteria for an independent contractor set forth in section 440.02(13)(d)(l) need not even be addressed). Thus, even though Freundl and Lehmkuhle swore that they met the independent contractor definition, under these facts their affidavits were not legally sufficient to exempt them from the definition of an employee for workers’ compensation purposes. See § 440.02(13). In addition, they were required to seek and obtain a valid certificate of exemption as delineated in section 440.05.

The Trust presented no evidence of whether or when Freundl’s and Lehm-kuhle’s exemption forms were mailed to the Division. Because the forms in evidence did not contain the Division’s notations of their effective dates, proof of the dates they were mailed was essential to establish that they were valid certificates of exemption.

Under the Workers’ Compensation Law, employee status is the default position. See § 440.02(13)(a); Armstrong, 734 So.2d at 598. The evidence submitted by the Trust was insufficient to prove that Freundl and Lehmkuhle were not its employees on the construction project. Accordingly, we reverse the final summary judgment in favor of the Trust, and we remand for further proceedings.

Final summary judgment reversed and remanded; appeal of order establishing entitlement to fees dismissed.

WHATLEY and LaROSE, JJ., Concur.

      . The Arruda court examined the 1991 version of section 440.02. The opinion discusses section 440.02(13)(d)(5), which was renumbered as section 440.02(13)(d)(8) in the 1997 statutes pertinent to this appeal.


author: WARNER, J.

text:
    STATE of Florida, Appellant, v. Willie BOLES, Appellee.
    No. 4D06-977.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellee.
   WARNER, J.

The state appeals an order suppressing evidence seized in a consent search of a vehicle. The trial court found that because the officer conducting the search required the defendant to exit the vehicle, Popple v. State, 626 So.2d 185 (Fla.1993), required reversal. We conclude that Popple does not control this consensual search, and having the defendant exit the vehicle so the officer could engage in the search to which the defendant consented does not constitute an unlawful search and seizure. We reverse.

Broward County Sheriff Deputy Schneider stopped defendant Boles for driving his vehicle without operable taillights, a traffic violation. After checking his license and registration, Schneider decided not to issue a citation. Although he did not suspect Boles of any criminal violations, Schneider asked if he could check the vehicle for narcotics or weapons. According to Schneider, Boles consented to the search. Schneider then “had the driver, Mr. Boles, step out of the car.” As Boles stepped out of the vehicle, he dropped a glass pipe from his right hand. Schneider recognized the pipe as drug paraphernalia. He seized the pipe, field-tested the pipe for cocaine, which tested positive, and then arrested Boles.

Boles moved to suppress the evidence. In granting the motion to suppress, the court felt constrained by Popple and determined that because Schneider had completed the purpose of the stop at the time he requested consent to search the vehicle, the consent was mere acquiescence to authority and thus unlawful because it was not supported by reasonable suspicion. The state appeals this ruling.

The state maintains that the trial court misapplied the law to the facts in this case. According to the state, after Schneider returned Boles’ paperwork, the traffic stop turned into a citizen encounter, and Schneider could legitimately ask Boles for consent to search the vehicle. Boles concedes that Schneider was permitted to ask for consent to search Boles’ car. However, Boles contends that he did not consent to being removed from his car. Thus, Boles claims that when Schneider directed him to exit the car, the consensual encounter turned into an unlawful seizure.

When a driver is lawfully stopped for a traffic violation, once the purpose of the initial stop and detention has been satisfied, absent a reasonable, articulable suspicion of illegal activity, the officer no longer has a legal basis to continue to detain the motorist. State v. Breed, 917 So.2d 206, 208 (Fla. 5th DCA 2005). However, “[djuring a valid traffic stop,, or even if a valid traffic stop has had its lawful function completed and turns into a citizen encounter, there is no reason a law enforcement officer cannot ask for consent to search.” State v. Cromatie, 668 So.2d 1075, 1077 (Fla. 2d DCA 1996). If a driver freely and voluntarily consents to a search of himself or the vehicle, the detention may continue, see State v. Johns, 920 So.2d 1156, 1158 (Fla. 2d DCA 2006), and narcotics seized incident to that search will generally be shielded from suppression. State v. Kindle, 782 So.2d 971, 973 (Fla. 5th DCA 2001).

Here, Boles agreed to the search of his vehicle. He contends, however, that the officer did not ask nor did he consent to his removal from his vehicle. We reject this reasoning. Instead, we conclude that the consent to search the vehicle necessarily includes the removal of any persons in the vehicle in order to facilitate the search. Of course, because the search is consensual, the person who has consented may withdraw his consent and refuse to exit the vehicle.

The case most closely analogous to the instant case is State v. Cromatie, 668 So.2d 1075 (Fla. 2d DCA 1996). There, a police officer stopped a vehicle for traffic infractions. After the officer issued citations, he asked the driver if he could search the vehicle and the driver consented. The two occupants exited the vehicle and stood nearby. The search produced drugs and paraphernalia. In reversing an order of suppression, the Second District noted:

Once a police officer obtains a valid consent to search, certain procedures are reasonable given the safety concerns of officers. Cf. Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (three identifiable law enforcement interests justifying limited detention of occupants during search of premises pursuant to valid search warrant are: (1) preventing flight in event incriminating evidence found; (2) minimizing risk of harm both to officers and occupants; and (3) orderly completion of search).

Id. at 1077. The court concluded that it was permissible for the officer to detain all occupants of the car until he completed the search.

Similarly, once Boles consented to the search of his vehicle, certain procedures such as his removal from the vehicle were objectively reasonable and could be characterized as ensuring the orderly completion of the search. How else can an officer search without having the occupants remove themselves from the car? Otherwise, officers would either not be able to search or would be in danger of committing a technical battery by touching the individuals seated in the vehicle while attempting a search.

We distinguish Popple, relied on by the trial court, because no consensual search was involved in that case. There, Popple was sitting in a legally parked car when a deputy approached from the rear. After the deputy noticed Popple making furtive movements, he asked Popple to exit the vehicle to insure officer safety. As Popple opened the door, the officer saw a cocaine pipe on the floorboard of the car. Popple was convicted of possession of cocaine and drug paraphernalia. The trial court denied Popple’s motion to suppress, and the supreme court reversed. The supreme court found that whether the officer requested or ordered Popple from the vehicle, in either case a direction to exit the vehicle constituted a show of authority which constrained Popple’s freedom of movement. Without reasonable suspicion necessary to commence an investigatory stop, the initial detention was illegal and the evidence was unconstitutionally seized. Popple, 626 So.2d at 188.

In Popple, the officer did not ask for consent to search the vehicle. That difference is crucial, because as we indicated before, exiting the vehicle must be considered as part of the consent to search the vehicle. The standard for measuring the scope of consent under the Fourth Amendment is objective reasonableness, i.e., what a reasonable person would have understood the exchange of words to mean under the circumstances. Allen v. State, 909 So.2d 435, 438 (Fla. 5th DCA 2005). A reasonable person would have understood that by consenting to a search of his vehicle, it would be necessary to exit the vehicle so that the officer could search the driver’s side area.

Because Boles’ exiting of the vehicle was merely part of the orderly search to which he consented, the drug paraphernalia was seized pursuant to a consensual search. We therefore reverse the trial court’s order of suppression and remand for further proceedings.

Reversed and remanded.

STEVENSON, C.J., and TAYLOR, J., concur.


text:
    Barry S. THOMPSON, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-2550.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2007.
    Barry S. Thompson, Dunnellon, pro se.
    Ralph J. McMurphy, Department of Children and Families, Wildwood, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Fla. R.App. Proc. 9.315(a).

GRIFFIN, LAWSON and EVANDER, JJ., concur.


text:
    James MASON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-3186.
    District Court of Appeal of Florida, First District.
    March 21, 2007.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See J.O.S. v. State, 689 So.2d 1061, 1065 (Fla.1997) (holding that “restitution may be ordered in an amount greater than the maximum dollar value defining the offense for which a defendant is adjudicated guilty”).

KAHN, POLSTON and THOMAS, JJ., concur.