author: MAY, J.

text:
    Allan BALDWIN, Appellant, v. ESTATE OF Jeannette Epler WINTERS, Appellee.
    No. 4D06-509.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 10, 2007.

      Kathleen B. Johnson, Boca Raton, for appellant.
    Amy J. Fanzlaw of Osborne & Osborne, P.A., Boca Raton, for appellee.
   MAY, J.

A purported beneficiary of an estate appeals an order that dismissed with prejudice a petition for disbursement of funds from the estate. We agree with the probate court that the May 22, 1999 letter did not constitute a sufficient writing to bequeath monies. However, because the purported beneficiary raised a potentially credible issue that the writing constituted a codicil in his timely motion for rehearing, we reverse and remand.

The testator executed a Revocable Trust Agreement and a Last Will and Testament. Within the terms of her Will, she included a paragraph indicating that she “may leave a written statement or list disposing of certain items of ... tangible personal property not otherwise disposed of....” She subsequently prepared a written ten-page statement disposing of certain items of her personal tangible property. Allan Baldwin was not an included beneficiary under this writing.

On February 9, 1998, the testator executed a First Codicil to Last Will and Testament, directing how she wanted to be remembered and interred. On April 24, 1999, she prepared two handwritten documents. The first was a handwritten note on plain white paper stating that she would like one of the personal representatives “to give Allan a new car from” her estate. The document contained the signature of a single witness. The second writing was prepared on a small piece of white paper with blue lines. It directed one of the personal representatives “to give Allan a new car from [her] estate .... ” This document was not witnessed.

On May 22, 1999, two copies of a typewritten letter were prepared on the testator’s personal stationery. They directed the same personal representative “to give to Allan Baldwin a new car of his choice from [her] estate.” Each copy was signed by the testator, witnessed, and notarized. The testator died on December 25, 2003.

When the personal representatives petitioned for administration of the estate, they filed the May 22, 1999 letter along with the Will, Codicil, and separate writing detailing her gifts. The court appointed the designated personal representatives and entered an order admitting the Will and Codicil to probate but not the letter. A Final Accounting of Personal Representatives and a Petition for Discharge were filed in July 2005.

On July 26, 2005, the purported beneficiary filed one of the testator’s handwritten notes from April 1999 instructing one of the personal representatives to give him a new car from the estate and a copy of the subsequently typewritten May 22,1999 letter. The purported beneficiary then filed a Petition for Compulsory Distribution, claiming to be a beneficiary of the estate. He alleged entitlement to an automobile of his choice, a $50,000 Mercedes Benz to replace his existing car. He requested distribution of $50,000 to purchase the car.

At the hearing on the purported beneficiary’s petition, his counsel argued only that the writing of May 22, 1999 was a memorandum sufficient to devise an unspecified sum of money, pursuant to section 732.515, Florida Statutes (1997). The probate court denied the petition with prejudice. In its order, the court noted that the beneficiary was proceeding under section 732.515, and concluded that “the statute does not direct the personal representative to surrender the cash value of a new Mercedes automobile to Mr. Baldwin.”

The purported beneficiary moved for rehearing and stated that an Oath of Witness to Codicil of Eula Nemhard had been filed or would be filed with the court attesting that there were two witnesses to the May 22, 1999 letter. Counsel then argued that the letter was a valid codicil. The Estate responded that the purported beneficiary’s failure to initially raise this issue in its petition precluded its consideration. The probate court agreed and denied the motion.

First, we agree with the probate court’s initial ruling that the separate writing was not a proper devise of tangible property, pursuant to section 732.515. Because the devise was of a monetary amount, it could not be effectuated through a separate writing under the 1997 version of section 732.515.

However, our supreme court has held that the polestar to will interpretation

is the intent of the testator. Morgenthaler v. First Atl. Nat'l Bank of Daytona Beach, 80 So.2d 446, 452 (Fla.1955); see also § 732.6005(1), Fla. Stat. (2005). The purported beneficiary has the burden of showing that the probate court erred when it rejected his argument that the May 22, 1999 letter was a codicil. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

Here, it is clear that the personal representatives were aware of the May 22, 1999 letter because they filed it with the court at the time they petitioned for administration of the estate. It is also clear that the purported beneficiary raised the issue of whether the letter was a codicil, admittedly not until the motion for rehearing. Nevertheless, we have held that trial courts should address issues raised in motions for rehearing when the ends of justice would be served. See, e.g., Bellino v. W & W Lumber & Bldg. Supplies, Inc., 902 So.2d 829 (Fla. 4th DCA 2005); Nat’l Enters, v. Martin, 679 So.2d 331 (Fla. 4th DCA 1996).

For this reason, we reverse the order dismissing the purported beneficiary’s petition with prejudice and remand the case for the probate court to determine if the May 22, 1999 letter constituted a valid codicil and if so, its terms.

Reversed and Remanded.

POLEN and KLEIN, JJ., concur.


source: Caselaw Access Project

author: CORTINAS, Judge.

license: Public Domain

text:
    CDS HOLDINGS I, INC., et al., Appellants, v. CORPORATION COMPANY OF MIAMI, Appellee.
    No. 3D05-2576.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 2006.
    Rehearing Denied Jan. 3, 2007.

      Anthony Accetta; Rosemary Wilder, for appellants.
    Murai, Wald, Biondo, Moreno & Brochin and Gerald B. Wald and Allen P. Pegg, for appellee.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

The appellants, CDS Holdings I, Inc., CDS Holdings II, Inc., and Christine Marchesa Serra (collectively “defendants”), appeal the orders denying their post-trial motions for a new trial and a renewed directed verdict. We affirm.

Christine Marchesa Serra (“Marchesa Serra”) was the founder and president of two corporations, CDS Holdings I, Inc. (“CDS I”) and CDS Holdings II, Inc. (“CDS II”). CDS I and CDS II were created by Marchesa Serra to purchase and develop real property (“the property”) located in Miami, Florida. During 1996— 1999, Marchesa Serra, in her individual capacity, as well as CDS I and CDS II, were involved in a lawsuit (“the underlying lawsuit”) regarding title to the property.

Although Marchesa Serra was already represented by counsel, she retained Shutts & Bowen LLP (“Shutts & Bowen”) to assist her with the underlying lawsuit. In July 1999, Marchesa Serra signed an engagement letter (“the engagement letter”) which expressly stated that Shutts & Bowen was being hired to represent CDS I, CDS II, and Marchesa Serra in the underlying lawsuit. After three years of maintaining a good working relationship and paying over $2.0 million in attorneys’ fees, Marchesa Serra stopped paying Shutts & Bowen’s invoices. Consequently, after several months of non-payment, Shutts & Bowen withdrew as counsel in all matters involving Marchesa Serra.

Thereafter, Shutts & Bowen assigned its claim for $252,888.30 in unpaid attorneys’ fees to Corporation Company of Miami (“CCM”), a company controlled by Shutts & Bowen. CCM brought an action against the parties in the engagement letter, namely Marchesa Serra, CDS I, and CDS II, for the unpaid fees. A jury found each of the defendants breached a contract with Shutts & Bowen by failing to pay for the legal services and CCM was awarded $221,796.54. At the conclusion of the trial, the defendants moved for a directed verdict and for a new trial. However, the trial court denied both of the defendants’ post-trial motions.

On this appeal, the defendants claim that the trial court’s refusal to give a special interrogatory verdict form that apportioned liability for damages among each defendant constituted reversible error and requires a new trial. Specifically, the defendants argue that by providing one damage interrogatory, the verdict form allowed the jury to impose joint and several liability. Additionally, the defendants claim that the trial court’s denial of a motion in limine to exclude a dismissed rule to show cause order (“the order”) from a different lawsuit, resulted in the admission of improper character evidence which also warrants a new trial.

The decision on whether to include a special interrogatory form is within the trial court’s discretion. Triana v. FI-Shock, Inc., 763 So.2d 454, 457-58 (Fla. 3d DCA 2000) (citing Goldschmidt v. Holman, 571 So.2d 422, 425 (Fla.1990)). Moreover, absent prejudicial error, decisions concerning special verdict forms should not be disturbed on appeal. Id. In this regard, we have found that “[p]rejudicial error requiring reversal of judgment or new trial occurs only where the error complained of has resulted in a miscarriage of justice[, which] ... arises where instructions are reasonably calculated to confuse or mislead the jury.” Id. at 458 n. 8 (quoting Rucker v. Garlock, Inc., 672 So.2d 100, 101 (Fla. 3d DCA 1996)).

We find that the trial court acted within its discretion in denying the defendants’ special interrogatory verdict form, and that the use of the verdict form at issue did not result in a miscarriage of justice. While the verdict form contained only one damage interrogatory, it also separately asked whether there was a contract between Marchesa Serra and Shutts & Bowen, and separately asked whether there was a contract between CDS I and CDS II and Shutts & Bowen. Notably, the defendants’ reliance on ITD Industries, Inc. v. Business Resource Group, Inc., 779 So.2d 532 (Fla. 2d DCA 2000), is misplaced. In ITD, the trial court itself found that if there was liability under the contract, the president was automatically liable in his corporate capacity. Id. at 534. Conversely, in this case, the jury was separately asked whether there was a contract between Shutts & Bowen and each individual defendant. Cf. id. (holding that the trial court abused its discretion by presenting the jury with a verdict form which “delineated joint and several liability”).

Furthermore, here, once the jury answered the questions delineating liability in the affirmative, the remaining question of who among the defendants was responsible for what portion of the damages was already answered by the terms of the engagement letter. As previously discussed, the clear and unambiguous terms of the engagement letter provide that Shutts & Bowen would represent all three defendants collectively. Specifically, the engagement letter also states that “[y]ou agree to pay Shutts & Bowen for all legal services rendered by us.” Additionally, at trial, an attorney from Shutts & Bowen testified that the parties agreed that the terms of the engagement letter would also govern all subsequent matters involving any representation of the defendants. Therefore, contrary to the defendants’ argument, once the jury found that all three defendants had contracted to pay Shutts & Bowen’s legal fees, the jury did not need to apportion the liability among them.

Turning to the defendants’ second point on appeal, we find that the trial court properly denied the defendants’ motion in limine to exclude the order against Marchesa Serra. Here, the order was directly relevant to Marchesa Serra’s principal affirmative defense that she was not personally liable for the attorneys’ fees. The order had been entered against Marchesa Serra individually as a co-defendant in the underlying lawsuit. Thus, the order was properly admissible to rebut Marchesa Serra’s testimony at trial that CDS I and CDS II, as opposed to herself individually, were involved in the underlying lawsuit.

The defendants also claim that the trial judge erred in denying their motion for a directed verdict on two issues. First, the defendants allege that CCM failed to prove that Shutts & Bowen validly assigned its claim, and, therefore, CCM had no standing to bring suit. Second, the defendants allege that CCM failed to present sufficient evidence to pierce CDS I and CDS II’s corporate veil and impose personal liability on Marchesa Serra.

A party moving for a directed verdict admits the truth of all the facts stated in the evidence presented and also admits every conclusion favorable to the nonmoving party that a jury might reasonably infer from the evidence. State Farm Mut. Auto. Ins. Co. v. Resnick, 636 So.2d 75, 76 (Fla. 3d DCA 1994)(citing Nelson v. Ziegler, 89 So.2d 780, 782 (Fla.1956)). Furthermore, “[a] motion for directed verdict must be denied if the evidence presented is conflicting or different conclusions can be drawn from it.” Id. (quoting Azar v. Richardson Greenshields Sec., Inc., 528 So.2d 1266, 1269 (Fla. 2d DCA 1988)).

In the instant case, the trial court properly denied the defendants’ motion for a directed verdict on both issues. The record reflects that at trial an attorney from Shutts & Bowen testified regarding the assignment of the attorneys’ fees to CCM. In contrast, there is no record evidence to support the defendants’ allegation that CCM only had a right to collect, but not the right to retain or control the attorneys’ fees. Moreover, contrary to the defendants’ argument, Shutts & Bowen introduced at trial the terms of the engagement letter as evidence that Marche-sa Serra was personally liable for the fees in question. Because the jury could reasonably draw different conclusions from this evidence, we find no error in the trial court’s denial of the defendants’ motion for a directed verdict on the issues of the validity of the assignment and piercing the corporate veil.

Accordingly, we affirm the trial court’s orders denying the defendants’ post-trial motions and the judgment in Shutts & Bowen’s favor.

Affirmed.


author: PER CURIAM.

text:
    In the Interest of P.G., a child. W.G., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D06-1264.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2006.
   ORDER DISCHARGING ORDER TO SHOW CAUSE

PER CURIAM.

The matter before us is an order to show cause why sanctions should not be imposed. We issued the order to two members of The Florida Bar in this termination of parental rights (TPR) case. We are discharging the order to show cause without imposing any sanctions, but we write to address a recurrent problem that often thwarts our best efforts to expedite the disposition of juvenile dependency and TPR appeals. The problem that all too often interferes with our goal of expediting these cases is the failure of both the trial courts and counsel to inform us that trial counsel for one or both of the parents has been granted leave to withdraw and new counsel appointed to prosecute the appeal. In this TPR case, we issued an order to attorneys John Doe and Robert Roe directing them to show cause in writing why they should not be sanctioned for failing to notify us for a period of more than four months about the identity of the attorney who was responsible for representing W.G. (the Father) in this appeal. After consideration of the written responses that we received from Mr. Doe and Mr. Roe, we deem it inappropriate to impose sanctions on these attorneys. However, we do offer some simple guidelines to the trial courts and The Bar concerning how this problem may be avoided in the future.

THE FACTS

The facts that led to our issuance of an order to show cause in this TPR case follow a pattern with which this court has become much too familiar. Mr. Doe was trial counsel for the Father. The trial court’s order terminating the Father’s parental rights was rendered on February 24, 2006. Mr. Doe filed a notice of appeal on March 17, 2006.

On March 30, 2006, the trial court entered an order that granted Mr. Doe leave to withdraw as counsel for the Father. A week later, on April 6, 2006, the trial court entered an order that appointed Mr. Roe as the Father’s appellate counsel. Unfortunately, the trial court did not furnish this court with copies of either of these orders. Mr. Roe promptly filed a notice of appearance on behalf of the Father in the trial court, but not in this court. The certificate of service on Mr. Roe’s notice of appearance indicated that he had served copies on five addressees, but this court was not one of them. We did not receive a copy of Mr. Roe’s notice of appearance until several months later.

On May 5, 2006, this court ordered the circuit court clerk to file a status report regarding record preparation and transmission. The clerk responded on May 11, 2006, and informed us that the record had been prepared up to the point of adding the transcripts. However, the clerk’s office reported that it was unable to complete the record because it had not received the transcripts. Upon receipt of the clerk’s report, we ordered Mr. Doe to advise this court of his efforts to have the record transcripts completed and forwarded to the circuit court clerk. At that point, this court regarded Mr. Doe as counsel for the Father because Mr. Doe had filed the notice of appeal and we had not received any indication that another attorney had been substituted as appellate counsel.

On June 16, 2006, Mr. Doe filed a response to our order and stated that the requested transcripts had been filed with the circuit court clerk. Mr. Doe attached to his response a copy of the designation to the court reporter that he had filed along with the notice of appeal. Unfortunately, Mr. Doe did not inform us of the trial court orders granting him leave to withdraw and appointing Mr. Roe as appellate counsel. By the time we received Mr. Doe’s response, we had already received the record from the circuit court clerk. The record was received in this court on June 12, 2006. This court’s central staff attorney who was responsible for monitoring this case noted Mr. Doe’s response and “tickled” the file for the receipt of the initial brief.

When no brief was received, the Guardian ad Litem Program (GAL) moved for an order defining a briefing schedule. Counsel for the GAL served copies of this motion on Mr. Doe and on the Attorney General’s Office, but not on Mr. Roe. On July 21, 2006, this court entered an order granting the GAL’s motion and directing the Father to serve the initial brief within ten days. We served a copy of this order on Mr. Doe as counsel for the Father.

Still, no brief was filed, and we did not receive any response to our order from Mr. Doe. On August 10, 2006, we issued a second order directing Mr. Doe to serve the initial brief within ten days or risk sanctions. This time Mr. Doe responded with a letter that he sent to this court by facsimile on August 16, 2006. The letter said, in pertinent part: “I am not the attorney of record and as such, am not required to file a brief in the above case.” Mr. Doe also sent us copies of the trial court’s order granting him leave to withdraw, the order appointing Mr. Roe as appellate counsel, and Mr. Roe’s notice of appearance. Mr. Doe’s letter was the first notice this court had that Mr. Roe was responsible for representing the Father in this case. By the time we received Mr. Doe’s letter, the Father’s appeal had been pending for five months.

THE ORDER TO SHOW CAUSE

Upon receipt of Mr. Doe’s letter and the copies that were enclosed with it, we issued an order to Mr. Doe to show cause in writing why sanctions should not be imposed for his failure to notify this court promptly of the entry of the order granting him leave to withdraw and of the entry of the order appointing Mr. Roe as appellate counsel. We also directed Mr. Roe to show cause in writing why sanctions should not be imposed on him for his failure to notify this court promptly of his appointment as appellate counsel by filing a notice of appearance in this court. In addition, we directed Mr. Roe to show cause why sanctions should not be imposed for his failure to timely file the initial brief on behalf of the Father. Both Mr. Doe and Mr. Roe filed written responses. Before we consider these responses, it is appropriate to outline some of the special features of appeals in juvenile dependency and TPR cases and the heightened responsibilities assumed by appellate advocates in these matters.

SOME SPECIAL FEATURES OF APPEALS IN JUVENILE DEPENDENCY AND TPR CASES

The district courts of appeal are required by statute to give an appeal from an order terminating parental rights priority in docketing and to render a decision of the appeal as expeditiously as possible. § 39.815(1), Fla. Stat. (2005). Florida Rule of Appellate Procedure 9.146(g) requires the appellate courts to expedite appeals in both juvenile dependency and TPR cases. The rule fulfills the statutory mandate of section 39.815(1). O.M. v. Dep’t of Children & Families (In re M.M.), 708 So.2d 990, 992 (Fla. 2d DCA 1998). Appeals in TPR cases are expedited to promote stability in children’s lives by preventing them from languishing in the foster care system. CM v. Dep’t of Children & Family Servs., 854 So.2d 777, 779 (Fla. 4th DCA 2003). “Achieving permanent stability in the child’s life is the paramount concern of the judicial process.” Id.

This court has traditionally taken a serious view of its responsibility to expedite appeals in juvenile dependency and TPR cases. Even before the legislature required that appeals in TPR cases be expedited in 1990, this court’s policy was to expedite such appeals. See W.G. v. Dep’t of Health & Rehabilitative Servs. (In re C.G.), 609 So.2d 631, 632 (Fla. 2d DCA 1992). When a juvenile dependency or TPR case is filed in this court, our clerk sends an “IMPORTANT NOTICE” to counsel and to unrepresented parties to notify them of the special time requirements that apply to these cases. In pertinent part, this notice states:

This is a dependency appeal or one involving termination of parental rights, notice of appeal dated [date to be inserted here], which, pursuant to section 39.815(1), Florida Statutes (2005), and Florida Rule of Appellate Procedure 9.146(g), is given priority in docketing and will be decided expeditiously. Extensions of time for the preparation of transcripts, the record or briefs will be granted sparingly, and the case will be monitored for timely filings. Delays in the perfection of this appeal may result in sanctions for responsible parties.

Our clerk’s notice incorporates the warning that we published more than fourteen years ago in W.G., 609 So.2d at 632. In juvenile dependency and TPR cases, it is critically important to the parents, their children, and society that the courts make decisions that are not only legally correct but also timely rendered. For this reason, the appellate advocate who undertakes to represent a parent in a juvenile dependency case or a TPR case assumes a heightened responsibility. See S.A.T. v. Dep’t of Children & Families (In re S.K.A.), 702 So.2d 546, 548 (Fla. 2d DCA 1997). With these principles in mind, we turn now to a consideration of the responses to the order to show cause.

THE RESPONSES TO THE ORDER TO SHOW CAUSE

In Mr. Doe’s response, he correctly noted that he had fulfilled his professional responsibility as trial counsel by filing the notice of appeal and the other papers necessary to begin the appeal before being relieved as trial counsel. See O.M., 708 So.2d at 992-93 (describing the duty of trial counsel in a TPR case with respect to initiating the appellate process). In addition, once Mr. Doe understood that this court still regarded him as counsel for the Father, he promptly notified us of Mr. Roe’s appointment as appellate counsel for the Father and furnished us with copies of the pertinent documents.

Mr. Roe informed us that he needed to obtain additional hearing transcripts that were not contained in the original record in order to complete the preparation of the initial brief. We granted Mr. Roe an extension of time to obtain the transcripts and to file the brief.

Both Mr. Doe and Mr. Roe seem to have assumed that this court received copies of the order allowing Mr. Doe to withdraw, the order appointing Mr. Roe as appellate counsel, and Mr. Roe’s notice of appearance soon after Mr. Roe’s appointment as appellate counsel. From our perspective, these assumptions appear to have been unwarranted. However, they apparently seemed reasonable to Mr. Doe and to Mr. Roe at the time.

Both Mr. Doe and Mr. Roe appear to have acted with diligence to discharge their professional responsibilities in this case. We do not believe that either of them intended to keep us in the dark about the identity of the attorney who was responsible for representing the Father on his appeal. For these reasons, we conclude that it would be inappropriate to impose sanctions on either Mr. Doe or Mr. Roe.

SOME GUIDELINES

This court cannot properly discharge its responsibility to expedite juvenile dependency and TPR cases if it does not know the identity of the attorney who is responsible for representing the parent or parents. As this case illustrates, this court does not “automatically” receive copies of trial court orders granting trial counsel leave to withdraw and appointing appellate counsel. To address the problem that we highlight in this order, we offer three simple guidelines for the trial courts and The Bar. First, when a trial court appoints an attorney to represent a parent in this court in a dependency or TPR case, the trial court should send this court a copy of the order. Second, because the trial courts may at times overlook this responsibility, it would be prudent for trial counsel who has been granted leave to withdraw to send this court copies of any trial court order granting leave to withdraw and appointing appellate counsel. Absent receipt of such copies, this court will regard the attorney who signed the notice of appeal as the attorney of record for the parent until appellate counsel makes an appearance in this court. Third, the attorney appointed as appellate counsel should promptly file a notice of appearance in this court and attach a copy of the trial court’s order of appointment.

We believe that if the trial courts and counsel will follow these simple guidelines, we can avoid further repetitions of the unacceptable situation where this court does not know the identity of the attorney who is responsible for representing the parent or parents in a juvenile dependency or TPR case.

Order to show cause discharged.

DAVIS, VILLANTI, and WALLACE, JJ., Concur.

      . The names that we use to designate these two attorneys are fictitious. Because we impose no sanctions on the attorneys to whom we directed our order to show cause, we do not wish to single them out in a published order.

      . See ch. 90-309, §§ 1, 6, at 2514-16, Laws of Fla.


author: EVANDER, J.

text:
    John BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-214.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    Rehearing Denied Dec. 20, 2006.

      Valerie Masters, of Valerie Masters, P.A., West Palm Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

After the denial of his motion to suppress, appellant entered a no contest plea to one count of trafficking in methamphetamine. He reserved the right to appeal the denial of his motion. We affirm appellant’s conviction.

The evidence presented at the hearing on appellant’s motion to suppress can be summarized as follows. Several law enforcement agents were effecting an arrest on one Daniel Farah for the sale of methamphetamine. The arrest took place near midnight at Farah’s girlfriend’s residence in a trailer park. While the arrest was being effected, an unidentified male called Farah on his Nextel two-way radio. Although the message was garbled, one of the officers heard the caller reference “2 o’s” — street language for two ounces. After the call was completed, Farah advised the officers that the caller was in route to deliver two ounces of methamphetamine to Farah. He described the caller as a heavy-set, white male with a beard. He described the caller’s vehicle as a silver or gray full-size SUV Bronco-type with loud exhausts. Approximately 45 to 60 minutes later, appellant pulled up in a vehicle directly in front of Farah’s girlfriend’s trailer. Farah’s description of appellant and appellant’s vehicle was completely accurate. Appellant was directed by the officer to exit the vehicle. The officer then asked appellant for permission to search him. In response, appellant “kind of shrugged his shoulders.” The officer then searched appellant and found methamphetamine in one of appellant’s pockets.

The trial court did not determine whether or not appellant’s shrug supported a finding that appellant consented to a search. We find it unnecessary to address this issue because we find the officer had probable cause to search appellant.

A law enforcement officer has probable cause to make a legal arrest if the officer has reasonable grounds to believe the person has committed a felony. A standard of conclusiveness and probability is less than that required to support a conviction. The question of probable cause is viewed from the perspective of a police officer with specialized training and takes into account the “factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Bryant v. State, 901 So.2d 810, 826 (Fla.2005). Whether an officer has sufficient probable cause to believe a suspect is carrying illegal contraband will depend on the totality of the circumstances. See State v. Bellamy, 723 So.2d 402 (Fla. 5th DCA 1999); Williams v. State, 717 So.2d 1109 (Fla. 5th DCA 1998).

Here, the totality of the circumstances supports a finding that the officer had probable cause to believe appellant was in possession of methamphetamine. Although Farah had not been established to be a “reliable” informant, most of the information he provided to the officers was able to be independently verified prior to the search. See Silva v. State, 641 So.2d 482 (Fla. 5th DCA 1994); State v. Maya, 529 So.2d 1282 (Fla. 3d DCA 1988).

AFFIRMED.

PLEUS, C.J. and LAWSON, J., concur.


text:
    Robert David STEELE, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3034.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2006.
    Robert Marasco and Minerva Simpson, Rockledge, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Ndow v. State, 864 So.2d 1248 (Fla. 5th DCA 2004).

SAWAYA, ORFINGER and TORPY, JJ., concur.


text:
    Steven GROHS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-2016.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.
    Rehearing Denied Jan. 11, 2007.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING; MOTION FOR REHEARING EN BANC; MOTION FOR CERTIFICATION OF QUESTION OF GREAT PUBLIC IMPORTANCE

PER CURIAM.

The State filed a motion for rehearing, motion for rehearing en banc, and motion for certification of question of great public importance. The motions for rehearing en banc and certification of question of great public importance are denied, but the motion for rehearing is granted. We therefore withdraw our previous opinion and substitute the following in its place.

Steven Grohs was convicted of violating Florida Statutes section 847.0135(3) as charged in the Information filed against him and was sentenced to 28.2 months in prison. We affirm.

Steven Grohs was charged by Information as follows:

[K]nowingly and unlawfully utilized a computer on-line service, Internet service or local bulletin board service to seduce, solicit, lure or entice or attempt to seduce, solicit, lure or entice a child or another person believed by Steven Grohs to be a child to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, contrary to Florida Statute 847.0135(3).

Florida Statutes section 847.0135(3) provides:

Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

As such, Grohs was charged with violating section 847.0135(3) in any and every way it can be violated and was not charged solely with soliciting or attempting to solicit a child or person believed to be a child.

An undercover police operation gave rise to the charge against Grohs. In response to a tip regarding Grohs’s computer conduct, Lantana Detective Todd Dwyer established an America Online account posing as a fifteen-year-old boy named Bobby. He then entered a chat room entitled “Young Men” in which Grohs was participating. Grohs began to chat with “Bobby.” Following an exchange of introductory information, Grohs indicated that he hoped he and “Bobby” could become friends but admitted that his age might pose a problem. Grohs then forwarded a picture of himself to “Bobby,” asked for a picture or physical description from “Bobby,” and learned that “Bobby” was a high school wrestler. Grohs then revealed that he was thirty-seven, and “Bobby” responded that they could be friends but that he might be too young because he was fifteen. Grohs replied: “We don’t have to do anything that normal friendfs] do. I’d like to be your friend is all ... I am not a person to want you to do what you’re not interested in. That’s all, friendship.” “Bobby” then directed Grohs to “lead the way.” The conversation continued and “Bobby” asked Grohs whether he was gay. Grohs responded: “I’ve dated lots of girls, but I[’d] rather be with a guy I like.” Grohs concluded the conversation by giving “Bobby” his cell phone number.

The online chat between Grohs and “Bobby” led to both an exchange of e-mails between Grohs and Dwyer and two telephone conversations between Grohs and Officer Jason Sharon posing as “Bobby.” The first e-mail was sent from Grohs to “Bobby” and stated the following:

I’m very cool with 15. Friends will be great and we can be more, and do whatever makes you happy. If you’re comfortable, as I do and am! You asked me to lead on, and I can, will you steer us? I’m glad we met today and hope we can stay best friends for a longtime to come.

“Bobby” responded by telling Grohs that he looked cute, indicating that he did not have much experience, explaining that he was willing to follow Grohs’s lead, stating that “what ever u want to do is cool with me,” and indicating that “if u want more that’s cool too.”

Grohs replied to “Bobby’s” e-mail:

I am happy to know that you think me to be cute. From your description, I know you to be cute too. I will work hard to earn your trust. I’d be happy to do anything with and/or for you right now. I just want you to be comfortable and happy with me. Once we get to know each other better maybe we can become b/fs, if that is cool with you. I really look forward to talking to you on the phone, and, more so, to meeting you when you’re ready. We can meet in a public place just as an introduction and to see how we get along.

“Bobby” then responded: “I would luv to meet u I feel like I know u. We can have fun together. When u say more do u really mean MORE. Tell what your into and what u want to do with me and what u like.”

Thereafter, the first telephone conversation between Grohs and “Bobby” began with a discussion about cars. Grohs then asked “Bobby” when he wanted to meet. “Bobby” indicated that he might be able to meet the next day, and Grohs responded that it was great even if they only met at McDonald’s, ate, and got to know each other. “Bobby” then asked Grohs what he wanted to do if they met. Grohs replied that it was up to “Bobby” and asked him if he wanted to get something to eat at McDonald’s. “Bobby” then inquired whether his age bothered Grohs. Grohs responded that he liked “Bobby’s” age. “Bobby” agreed to definitely meet the next day but remained curious about what they could do when they met. Grohs replied: “Whatever you want. If you want to have sex, that’s okay with me. You don’t want to, that’s okay.” Later in the conversation, “Bobby” asked where they could go to have sex. Grohs indicated that they could go to his apartment. “Bobby” again questioned Grohs about what he liked to do. Grohs responded: “I’m into anything, really. I’m open, I just like to have fun and enjoy myself. You know, I like pleasing whoever I’m with.” “Bobby” next asked whether they would “do it to each other,” Grohs indicated that was fine, and “Bobby” explained that most of his experience was with oral sex which he enjoyed. The conversation ended with “Bobby” asking whether Grohs would bring condoms, to which Grohs replied in the affirmative. Grohs and “Bobby” agreed to talk the next day to finalize their plans.

The second telephone conversation between Grohs and “Bobby” began with “Bobby” expressing his fear that when Grohs saw he was fifteen he would drive away. Grohs assured “Bobby” that he would not do that and that they were still going back to his apartment. “Bobby” asked what they would do when they got to the apartment, and Grohs responded “[wjhatever you want. Whatever you feel comfortable with, that’s all.” Grohs then told “Bobby” that “Bobby” would call the shots. “Bobby” continued to press Grohs about what they would do and what he liked to do. Grohs continued to indicate that they would not do anything with which “Bobby” was not comfortable and that it depended on how far “Bobby” wanted to go. “Bobby” then indicated that he was “pretty much up for everything” and confirmed that they could fool around and have sex at Grohs’s apartment. “Bobby” again asked what type of sex acts Grohs liked to do, and Grohs replied that they would talk about it when they saw each other. Finally, “Bobby” confirmed that Grohs was bringing condoms. Grohs and “Bobby” agreed on the logistics of their meeting at a Shell station later that day. When Grohs arrived for that meeting, he was arrested on the charge for which he was convicted in this case.

During trial, the chat room transcript and e-mails were received into evidence and the recordings of the telephone calls were played for the jury. At the close of the State’s evidence, Grohs moved for a judgment of acquittal on the following basis:

We move for a judgment of acquittal based on the lack of any sexual solicitation in the communication.
There really is no seduction, solicitation, inducing, of the person posing as Bobby, by the defendant. In the chat room session or in any of the e-mails.
That’s what he’s charged with. He’s not charged with soliciting on the telephone or in person or in any other way. He’s charged, as I understand it, with using a computer to seduce, solicit, lure or entice a child, or a person he thinks to be a child, for the purpose of engaging in illicit sexual activities. The first prong is using the computer.

The trial court reserved ruling on the motion for judgment of acquittal.

While the jury was deliberating, it posed the following question to the trial court: “Does ‘utilizing’ a computer online service mean one can use the contents of a cell phone call as evidence if the cell phone number was provided in an e-mail?” The trial court asked the authoring juror to clarify the inquiry, and the juror explained that the jury was seeking a clarification of its confusion regarding the “utilizing” element of section 847.0135(3). The trial court explained to counsel that it believed the jury’s question to be the crux of Grohs’s motion for judgment of acquittal and ruled that it would answer the question in the affirmative, thereby denying the motion for judgment of acquittal. In response, Grohs’s counsel requested that the “statute should be stricken.” He did not argue, as counsel does on appeal, that rather than answering the question, the trial court should have simply reminded the jury of its province regarding the evidence and factual determinations.

As a preliminary matter, a review of the trial transcript and a reading of Grohs’s summary of the argument (not to mention other statements included in the briefs filed both by Grohs and the State) give the impression that Grohs’s main argument on appeal would be that section 847.0135(3) does not encompass telephone conversations so that it was error to instruct the jury that it did and allow the jury to consider evidence related to the telephone conversations as proof of guilt. However, this is not the argument that Grohs makes in the argument section of his initial brief. As such, this Court is not being called upon to construe the statute and determine whether it is intended to criminalize any conduct occurring by telephone, so that in deciding this appeal we will not reach this issue not properly raised by Grohs. See Branch v. State, 790 So.2d 437, 439 (Fla. 1st DCA 2000) (“Finally, in the ‘Summary of Argument’ section of his initial brief, the appellant contends that the Act violates double-jeopardy protections. However, absent any argument whatsoever or case law to support this conclusory position, we deem the appellant to have waived this ground to challenge the Act.”).

In his initial brief, Grohs raises three issues for this court’s consideration. The first two issues, addressing the jury’s question and Grohs’s motion for judgment of acquittal, will be addressed in this opinion.

The first issue raised by Grohs contends that the trial court invaded the province of the jury by answering the jury’s question in a way that instructed the jury how to decide a factual issue. As for this issue, Grohs argues that the evidence did not establish that Grohs solicited “Bobby” by e-mail and that the trial court invaded the province of the jury by indicating that it could instead use the telephone conversations to convict Grohs for computer solicitation under section 847.0135(3). Grohs further contends that whether to consider evidence of the telephone conversations was a factual determination to be made by the jury. By answering the jury’s question in the affirmative, Grohs argues that the trial court took the determination of an essential element away from the jury, thereby directing a verdict for the State. Grohs maintains that the trial court should not have answered the jury’s question in the affirmative, but simply should have reminded the jury that it had all of the evidence before it necessary to make a decision.

The State responds that the trial court’s answer to the jury’s question was appropriate because the jury had been instructed to “look at all evidence admitted during trial to determine whether there was proof beyond a reasonable doubt of the defendant’s guilt.” In sum, the State maintains that the trial court did not instruct the jury how to decide a factual issue, but rather reminded the jury that it could decide a factual issue.

We conclude that the argument that is raised by Grohs in his initial brief regarding the jury’s question, focusing on the trial court invading the province of the jury, is without merit. By answering the jury’s question in the affirmative, the trial court made a legal determination regarding the scope and meaning of section 847.0135(3), and not a factual determination regarding whether there was evidence adduced that demonstrated a violation of the statute as Grohs contends. As such, it was not error for the trial court to answer the question in the affirmative and to not remind the jury of its function as finder of fact (which, in any event, was not a course of action suggested by Grohs below).

The second issue raised by Grohs asserts that the trial court erred by denying Grohs’s motion for judgment of acquittal because the evidence presented at trial did not constitute solicitation sufficient for conviction under section 847.0135(3). As for this issue, Grohs contends that there was insufficient evidence to support a conviction for violating section 847.0135(3) because neither in the e-mails nor the telephone calls did Grohs, either explicitly or implicitly, ask or induce “Bobby” to engage in sex or mention sex, so that Grohs could not be said to have seduced “Bobby.”

The State responds that the intent of section 847.0135(3) is not to render Grohs immune from prosecution “as long as he is not explicit with his intentions while online.” Furthermore, the State emphasizes that the statute is not only violated by solicitation, but also by seduction, enticement, and allurement, and that the evidence presented at trial thereby supported a conviction for violating the statute.

The standard of review applicable to motions for judgment of acquittal is de novo. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Romero v. State, 901 So.2d 260, 264 (Fla. 4th DCA 2005). Regarding motions for judgment of acquittal, the Florida Supreme Court has written:

A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for their finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge.

Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

On this issue, Grohs’s argument suffers from the flaw of too narrowly reading section 847.0135(3) and focusing entirely on whether the evidence presented established that he solicited “Bobby.” What Grohs overlooks is that he could also violate section 847.0135(3) by seducing, luring, or enticing “Bobby.” These terms were not defined in the statute or a standard jury instruction, but in the absence of such definition, this Court looks to their plain and ordinary meaning, whether expressed in a dictionary or similar statutes. See L.B. v. State, 700 So.2d 370, 372 (Fla. 1997) (“[A] court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term.”); Jones v. Williams Pawn & Gun, Inc., 800 So.2d 267, 270 (Fla. 4th DCA 2001) (“In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term, and where statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense.”).

The terms seduce, solicit, lure, and entice are not elsewhere defined in statutes that are either similar or related to section 847.0135(3). As such, we turn to a dictionary to ascertain the plain and ordinary meaning of these terms, a tactic suggested by Grohs by employing definitions from Black’s Law Dictionary in a proposed jury instruction on the elements of section 847.0135(3) that was rejected by the trial court (although not raised as error on appeal). Seduce commonly means “to carry out the physical seduction of: entice to sexual intercourse.” Merriam-Webster Online Dictionary, at http://www.m-w. com/ dictionary/seduce. Solicit ordinarily means “to entice or lure especially into evil” and “to proposition (someone) especially as or in the character of a prostitute.” Id. at http://www.m-w.com/ dictionary/solicit. Lure generally means “to draw with a hint of pleasure or gain: attract actively and strongly.” Id. at http:// www.m-w.com/ dictionary/lure. Finally, entice typically means “to attract artfully or adroitly or by arousing hope or desire: tempt.” Id. at http://www.m-w.com/ dictionary/entice.

Whether to grant a motion for judgment of acquittal hinges on the sufficiency of the evidence presented at trial and what factual findings the jury could “fairly and reasonably infer” from that evidence. We conclude that it was not unreasonable for the trial court in this case to conclude that the jury could “fairly and reasonably infer” that Grohs violated section 847.0135(3) by his comments, even if only those occurring online during the chat session and e-mail exchanges with “Bobby” are considered. Although a difference of opinion could exist regarding the connotations of statements made by Grohs in his online communications with “Bobby,” such a difference of opinion is the very hallmark of a case that should be resolved by a jury rather than on a motion for judgment of acquittal.

We conclude that a jury could “fairly and reasonably infer” that various statements made by Grohs in his online communications with “Bobby” met the plain and ordinary definitions of seduce, solicit, lure, and entice, although only obliquely and implicitly by avoiding explicit references to sexual conduct. The tenor of Grohs’s suggestive comments could be interpreted to demonstrate both the adroit artfulness, or enticement, and the enjoyment of active attraction, or allurement, of a predator laying a trap for his prey. The trap may have been set by phrases such as “we can be more, and do whatever makes you happy” and “I’d be happy to do anything with and/or for you right now.” When taken in the context of being directed at a believed fifteen-year-old boy first contacted in a “Young Men” chat room, these phrases could reasonably be construed as aimed at physical seduction to sexual intercourse and the propositioning of sexual conduct. Consequently, we conclude that the trial court did not err by denying Grohs’s motion for judgment of acquittal and allowing the jury to exercise its fact-finding role to “fairly and reasonably infer” conclusions from sufficient evidence regarding conduct that presented “room for a difference of opinion between reasonable men.”

In sum, we conclude that the trial court did not err by answering the jury’s question in the affirmative or by denying the motion for judgment of acquittal. Grohs failed to effectively challenge the legal determination reflected in the trial court’s answer to the jury’s question, and the evidence otherwise can be reasonably construed to support a conviction for violating section 847.0135(3). Therefore, Grohs’s conviction and sentence are affirmed.

Affirmed.

GUNTHER, FARMER and TAYLOR, JJ., concur.

      . The third issue addresses whether Grohs was charged with a "double inchoate offense” under section 847.0135(3). We reject Grohs's argument on this point because he was not charged with the separate inchoate offense of criminal solicitation under Florida Statutes section 777.04(2). Additionally, there is no indication that section 777.04(2) has any bearing on the definition of "solicit” in section 847.0135(3), especially where criminal solicitation prohibits conduct focused on having another commit a crime in one’s stead while section 847.0135(3) criminalizes soliciting a minor to enable an individual to himself commit a crime of sexual battery, lewdness, or child abuse. As such, we affirm as to Grohs's third issue without further comment.

      . "Solicit” is defined in the Florida Standard Jury Instructions in Criminal Cases in relation to the inchoate offense of criminal solicitation, see Fla. Std. Jury Instr. (Crim.) 5.2, but for the reasons explained in footnote 1, we reject the applicability of this definition to section 847.0135(3).


author: TAYLOR, J.

text:
    SIMBABEAR, LLC, Libow & Shaheen, LLP f/k/a Libow & Muskat, LLP, Allen H. Libow and William M. Shaheen, Appellants, v. Jaclyn G. MUSKAT, Appellee.
    No. 4D06-2511.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 2006.

      Arthur W. Tifford of Tifford & Tifford, P.A., Miami, and Lawrence R. Metsch of Metsch & Metsch, P.A., Aventura, for appellants.
    Robert M. Weinberger of Cohen, Norris, Scherer, Weinberger & Wolmer, North Palm Beach, for appellee.
   TAYLOR, J.

We reverse the non-final order of the circuit court compelling arbitration and staying further proceedings in this civil action.

Appellee, Jaclyn G. Muskat, and appellants, Allen H. Libow and William M. Sha-heen, formed a limited liability company, Simbabear, LLC, for the sole purpose of acquiring and owning an office building in Boca Raton, Florida. At the time, Muskat was a partner in the law firm of Libow & Muskat, LLP, n/k/a Libow & Shaheen, LLP. The members of Simbabear executed a membership agreement which, in pertinent part, provided for the redemption and liquidation at fair market value of the membership interest of any member who left the law firm. The agreement also provided that “all disputes, claims, and grievances” as to the members’ respective rights and obligations under the agreement would be subject to arbitration.

Libow and Shaheen later terminated Muskat’s relationship with the law firm. Simbabear then sought to redeem Mus-kat’s membership interest in Simbabear and obtain an appraisal of its fair market value.

Muskat filed a complaint against Simba-bear, LLC, Libow & Shaheen, LLP, Allen H. Libow, and William M. Shaheen, requesting in Count I that the court appoint a receiver and select a licensed appraiser to value her membership interest in Sim-babear. In Count II, Muskat asserted a claim for civil conspiracy, alleging that the “true purpose” of her termination by Li-bow and Shaheen was “to implement a scheme whereby they, as the sole remaining members of the LLC and partners of the law firm, would acquire at no cost to themselves, the value of her membership interest.” Muskat demanded a jury trial.

The defendants moved to dismiss Mus-kat’s complaint or, in the alternative, to compel arbitration. Thereafter, Muskat served a demand on the defendants for arbitration. Following a hearing, the trial court granted the defendants’ alternative motion to compel arbitration and stay proceedings, and further determined that Muskat’s request to arbitrate complied with the membership agreement. Accordingly, the court ordered that all claims asserted by Muskat in her complaint, including her claim of civil conspiracy, be arbitrated.

Muskat concedes that the law firm of Libow & Muskat, LLP, n/k/a Li-bow & Shaheen, LLP, should not have been compelled to participate in binding arbitration with her because the law firm is neither a party to, nor a third-party beneficiary of, the agreement containing the arbitration provision upon which the order is based. Appellee also concedes that the court erred in directing the parties to arbitrate Count II, the civil conspiracy claim, because this claim is beyond the scope of the arbitration provision of the agreement.

We therefore reverse the order compelling the law firm to participate in arbitration and directing the parties to arbitrate the civil conspiracy claim. We remand this cause for purposes of arbitrating Count I of the complaint. Appellants, who moved to compel arbitration during the course of the proceedings below, are judicially estopped from now demanding trial by jury on this count.

Reversed and Remanded.

STEVENSON, C.J., and WARNER, J., concur.


text:
    R.J.W., Mother of M.W., a minor and A.W., a minor, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 5D06-485.
    District Court of Appeal of Florida, Fifth District.
    Nov. 22, 2006.
    R.J.W., Florida City, pro se.
    Ralph J. McMurphy, Wildwood, for Ap-pellee, Department of Children and Families.
    Patricia M. Propheter, Orlando, for Ap-pellee, Guardian ad Litem.
   PER CURIAM.

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

THOMPSON, LAWSON and EVANDER, JJ., concur.


text:
    Joan GROSS, Appellant, v. WASHINGTON CORRECTIONAL INSTITUTION and York STB, Inc., Appellees.
    No. 1D06-4924.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2006.

      T. Rhett Smith, and Teresa E. Liles of T. Rhett Smith, P.A., Pensacola, for Appellant.
    Colleen Cleary Ortiz, Pensacola, for Ap-pellees.
   PER CURIAM.

DISMISSED. See Mintz v. Broward, Corr. Inst., 800 So.2d 343 (Fla. 1st DCA 2001).

ERVIN, ALLEN, and WOLF, JJ., concur.


author: GROSS, J.

text:
    Edith RAPP, Appellant, v. JEWS FOR JESUS, INC., Appellee.
    No. 4D05-4870.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 9, 2007.

      Barry M. Silver, Boca Raton, for appellant.
    Mathew D. Staver and Anita L. Staver of Liberty Counsel, Maitland, and Erik W. Stanley, Rena M. Lindevaldsen, and Mary E. McAlister of Liberty Counsel, Lynch-burg, Virginia, for appellee.
   GROSS, J.

This is an appeal from an order dismissing a second amended complaint with prejudice for failure to state a cause of action. See Fla. R. Civ. P. 1.140(b)(6). We reverse in part, holding that the appellant stated claims for false light invasion of privacy and negligent supervision and retention.

In reviewing an order granting a rule 1.140(b)(6) motion to dismiss a complaint, this court’s “gaze is limited to the four corners of the complaint.” Gladstone v. Smith, 729 So.2d 1002, 1003 (Fla. 4th DCA 1999). The facts alleged in the pleading must be accepted as true and all reasonable inferences are drawn in favor of the plaintiff. See id.

Appellant, Edith Rapp, was married to Marty Rapp until his death in 2003; she is the stepmother to Marty’s son, Bruce Rapp. Bruce is a member and employee of appellee, Jews for Jesus, Inc. This lawsuit arises out of the following copy that Bruce caused to be published in a Jews for Jesus newsletter:

Bruce Rapp reports: I had a chance to visit with my father in Southern Florida before my Passover tour. He has been ill for sometime and I was afraid that I may not have another chance to be with him. I had been witnessing to him on the telephone for the past few months. He would listen and allow me to pray for him, but that was about all. On this visit, whenever I talked to my father, my stepmother, Edie (also Jewish), was always close by, listening quietly. Finally, one morning Edie began to ask me questions about Jesus. I explained how G-d gave us Y’Shua (Jesus) as the final sacrifice for our atonement, and showed her the parallels with the Passover Lamb. She began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y’Shua she said yes! My stepmother repeated the sinner’s prayer with me— praise G-d! Pray for Edie’s faith to grow and be strengthened. And please pray for my father Marty’s salvation.

The newsletter went on to ask, “Please pray for: grace and strength for new Jewish believer Edie and salvation for her husband, Marty.” Beneath a picture of Bruce Rapp was the caption, “Pray for Edie’s faith to grow and be strengthened.” The newsletter was posted on the internet, where it was seen by a relative of Edith Rapp.

Edith Rapp denied that the events described in the newsletter took place. She alleged that she and Marty were traditional Jews, opposed to Bruce’s membership in Jews for Jesus. The core of her lawsuit is that Jews for Jesus falsely, and without her permission, portrayed her as a convert to the organization in a newsletter that it published and distributed.

Edith Rapp filed a 38 paragraph, three-count complaint against Jews for Jesus alleging three causes of action: 1) false light invasion of privacy, 2) defamation, and 3) intentional infliction of emotional distress. The trial court granted appel-lee’s motion to dismiss without prejudice, and also struck, with prejudice, 13 paragraphs from the complaint. The stricken paragraphs were primarily polemical against Jews for Jesus.

Edith Rapp’s 81 paragraph amended complaint alleged the same causes of action as the complaint and added a count for negligent training and supervision. The amended complaint contained some of the allegations, word for word, that had been stricken from the original complaint. Again, appellee moved to dismiss and to strike certain paragraphs from this complaint. The trial court granted the motion to strike 13 paragraphs that were the subject of its earlier order, as well as 10 new paragraphs. The court granted the motion to dismiss the invasion of privacy and defamation counts with prejudice, and the intentional infliction of emotional distress and negligent training and supervision counts without prejudice.

Edith Rapp’s 101 paragraph second amended complaint attempted to state causes of action for intentional infliction of emotional distress, negligent training and supervision, and negligent infliction of emotional distress. Again, appellee moved to strike certain allegations and to dismiss the complaint for failure to state a cause of action. A successor judge interpreted the earlier judge’s orders of dismissal as being based upon the First Amendment, which “prohibit[s] excessive entanglement of the courts in religious disputes.” The circuit court granted the motion to dismiss the second amended complaint with prejudice.

The Striking of Redundant, Immaterial, or Scandalous Content

Edith Rapp first contends that the court erred in striking paragraphs from her pleadings. Florida Rule of Civil Procedure Rule 1.140(f) permits “[a] party [to] move to strike ... redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” Rule 1.110(b) provides that to state a cause of action a complaint “shall contain ... (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief.” This pleading rule “forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it.” Horowitz v. Laske, 855 So.2d 169, 172-73 (Fla. 5th DCA 2003).

The stricken paragraphs detail the theological animosity between the plaintiff and Jews for Jesus; they are redundant, bellicose, and unnecessary to state the causes of action alleged. A complaint in a lawsuit is not a press release. The hallmarks of good pleading are brevity and clarity in the statement of the essential facts upon which the claim for relief rests “rather than intricate and complex allegations designed to plead a litigant to victory.” Ranger Constr. Indus., Inc. v. Martin Cos. of Daytona, Inc., 881 So.2d 677, 680 (Fla. 5th DCA 2004). We find no abuse of discretion in the circuit court’s striking of paragraphs from the complaints.

The First Amendment Does Not Bar the Tort Actions

We reject the circuit court’s conclusion that the First Amendment of the United States Constitution bars Edith Rapp’s third-party tort action against Jews for Jesus. In Malicki v. Doe, 814 So.2d 347, 355 (Fla.2002), the Florida Supreme Court recognized that the First Amendment “prevents courts from resolving internal church disputes that would require adjudication of questions of religious doctrine.” However, the supreme court distinguished intrachurch disputes from “disputes between churches and third parties.” Id. at 356. The court recognized that the First Amendment does not apply to “ ‘purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization.’ ” Id. at 357 (quoting Bell v. Presbyterian Church, 126 F.3d 328, 331 (4th Cir.1997) (quoting Gen. Council on Fin. & Admin, of the United Methodist Church v. California Superior Court, 439 U.S. 1369, 1373, 99 S.Ct. 35, 58 L.Ed.2d 63 (1978))).

None of the tort claims in this case flowed from an employment dispute between a church and a member of the clergy. Compare Goodman v. Temple Shir Ami, Inc., 712 So.2d 775 (Fla. 3d DCA 1998); Heard v. Johnson, 810 A.2d 871, 875 (D.C.Ct.App.2002). The conduct at issue in this case — the publication of false statements about a non-member of the religious group — does not implicate a tenet of religious belief. See Malicki 814 So.2d at 361.

The House of God v. White, 792 So.2d 491 (Fla. 4th DCA 2001), does not control this case. There, a church member sued a church and its pastor for slander because the pastor called the member a “‘slut’ while standing at the church altar in front of the other clergy and church parishioners.” Id. at 492. We held that the First Amendment barred the slander action against the church, because the “substantive issues” raised by the action “would require excessive entanglement with church policies, practices, and beliefs as they involve claims against the church.” Id. at 494. This case does not involve a member of a church, so the case does not involve an evaluation of the interaction between a clergyman and a parishioner. Also, The House of God, relied on Doe v. Evans, 718 So.2d 286 (Fla. 4th DCA 1998), a case which the supreme court disapproved in Malicki. 814 So.2d at 365. After Malicki, the viability of a defamation claim in an ecclesiastical setting requires close evaluation of the circumstances surrounding the claim. See Heard, 810 A.2d at 884-85.

Defamation

Viewing the allegations of the complaint in the light most favorable to the plaintiff, we find that Edith Rapp failed to state a cause of action for defamation, because the “common mind” reading the newsletter would not have found Edith to be an object of “hatred, distrust, ridicule, contempt or disgrace.”

The elements of a defamation claim include:

(a) a false and defamatory statement concerning another;
(b) an unprivileged publication to a third party;
(c) fault amounting at least to negligence on the part of the publisher; and
(d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.

Thomas v. Jacksonville Television, Inc., 699 So.2d 800, 803-04 (Fla. 1st DCA 1997) (iquoting Restatement (SeCONd) of ToRts § 558 (1977)). The statements here at issue were published in a newsletter and disseminated over the internet; therefore, libel is the type of defamation alleged. Section 568(1) of the Second Restatement of Torts defines libel as “the publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words.”

In the context of this case, a publication is libelous if it “carries] statements tending to subject a person to hatred, distrust, ridicule, contempt or disgrace.” Adams v. News-Journal Corp., 84 So.2d 549, 551 (Fla.1955). Such a communication is defamatory “if it tends to harm the reputation of another [so] as to lower him or her in estimation of community or deter third persons from associating or dealing with the defamed party.” LRX, Inc. v. Horizon Assocs. Joint Venture, 842 So.2d 881, 885 (Fla. 4th DCA 2003) (quoting Restatement (Seoond) of Torts § 559); see also Mile Marker v. Petersen Publ’g, L.L.C., 811 So.2d 841, 845 (Fla. 4th DCA 2002); Thomas v. Jacksonville Television, Inc., 699 So.2d 800, 803 (Fla. 1st DCA 1997).

To evaluate the content of a communication, “the words should be given a reasonable construction in view of the thought intended to be conveyed,” construed as the “ ‘common mind’ would naturally have understood them.” Wolfson v. Kirk, 273 So.2d 774, 778 (Fla. 4th DCA 1973); see also Adams, 84 So.2d at 551; Richard v. Gray, 62 So.2d 597, 598 (Fla. 1953). A court must consider “the medium by which the statement is disseminated and the audience to which it is published.” From v. Tallahassee Democrat, Inc., 400 So.2d 52, 57 (Fla. 1st DCA 1981) (quoting Info. Control v. Genesis One Computer Corp., 611 F.2d 781, 784 (9th Cir.1980)). To determine whether language is defamatory, the words used should be construed not “in their mildest or most grievous sense,” but in that sense “in which they may be understood and in which they appear to have been used and according to the ideas which they were adopted to convey to those who hear them or to whom they are addressed.” Loeb v. Geronemus, 66 So.2d 241, 245 (Fla.1953) (quoting Budd v. J.Y. Gooch Co., 157 Fla. 716, 27 So.2d 72, 74 (1946)); see Joopanenko v. Gavagan, 67 So.2d 434, 436 (Fla.1953) (quoting Budd in holding that statement that a man was a “Communist” stated a cause of action for slander).

Applying these principles, we find that the language in the Jews for Jesus newsletter was not defamatory. The newsletter was intended for group members who would have viewed the information in a positive light. To the common mind, the idea intended to be conveyed in the newsletter was neither derogatory nor hateful. The posting of the newsletter on a Jews for Jesus internet site was similarly addressed to an audience with an interest in the group’s message.

Under the “common mind” rule, the newsletter portrayed Edith Rapp in the most positive light. However, one view of defamation law is that language need not prejudice the plaintiff in the eyes of a majority of the community to be defamatory; it is defamatory if the plaintiff is prejudiced in the eyes of a substantial and respectable minority of the community. See Marcoux-Norton v. Kmart Corp., 907 F.Supp. 766, 778 (D.Vt.1993); Farnsworth v. Hyde, 266 Or. 236, 512 P.2d 1003, 1004 (1973). As Comment e to section 559 of the Restatement (Second) of Torts explains:

A communication to be defamatory need not tend to prejudice the other in the eyes of everyone in the community or of all of his associates, nor even in the eyes of a majority of them. It is enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority of them, and that it is made to one or more of them or in a manner that makes it proper to assume that it will reach them. On the other hand, it is not enough that the communication would be derogatory in the view of a single individual or a very small group of persons, if the group is not large enough to constitute a substantial minority. If the communication is defamatory only in the eyes of a minority group, it must be shown that it has reached one or more persons of that group ... Although defamation is not a question of majority opinion, neither is it a question of the existence of some individual or individuals with views sufficiently peculiar to regard as derogatory what the vast majority of persons regard as innocent. The fact that a communication tends to prejudice another in the eyes of even a substantial group is not enough if the group is one whose standards are so anti-social that it is not proper for the courts to recognize them.

Under comment e to section 559, a fair reading of the newsletter article is that Edith Rapp had forsaken her Jewish beliefs and accepted the central tenet of Christianity. It is an understatement to say that people take their religious beliefs seriously. To devout members of a religious group, the statement that a member has converted to another religion, with a different concept of the deity, tends to prejudice the convert in the eyes of the group, to subject the convert to “ridicule, contempt or disgrace.” Adams, 84 So.2d at 551. A group’s sincere religious beliefs are not so “anti-social” that a court should not recognize that persons will act upon them in their treatment of a member who has been labeled a convert. In the words of comment e, members of the Jewish religion, along with Muslims, Buddhists, and other religious groups, are a “substantial and respectable minority” in this country. The amended complaint alleged that the newsletter had been released over the internet, where a relative of Edith Rapp noticed it, thereby satisfying the requirement that the communication reached those who would view it as defamatory. For these reasons, applying comment e to section 559, a court might well find that the amended complaint stated a claim for defamation.

We have found no case where the Florida Supreme Court has adopted section 559, comment e. Therefore, we affirm that portion of the order dismissing the defamation cause of action.

Intentional Infliction of Emotional Distress

To successfully state a cause of action for intentional infliction of emotional distress, the plaintiff must plead “conduct ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Allen v. Walker, 810 So.2d 1090, 1091 (Fla. 4th DCA 2002) (quoting Metro. Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla.1985) (quoting Restatement (Seoond) of Torts § 46 (1965))). “Whether alleged conduct is outrageous enough to support a claim of intentional infliction of emotional distress is a matter of law, not a question of fact.” Gandy v. Trans World Computer Tech. Group, 787 So.2d 116, 119 (Fla. 2d DCA 2001) (citing Ponton v. Scarfone, 468 So.2d 1009 (Fla. 2d DCA 1985)).

The newsletter publication falls short of conduct required to support the tort of intentional infliction of emotional distress. The language in question occurred in a praise report primarily intended for the eyes of like-minded individuals who would view the subject matter in a positive light. As appellee observes, the report “describes a pleasant and eventually joyous visit with Bruce Rapp’s family.” Edith Rapp’s reliance on Nims v. Harrison, 768 So.2d 1198 (Fla. 1st DCA 2000), is misplaced. Comparing the extreme and vile conduct in Nims to what happened here is like comparing apples to raisins. Also, Edith Rapp relies on her subjective response to the publication; however, the “subjective response of the person who is the target of the actor’s conduct does not control the question of whether the tort occurred.” State Farm Mut. Auto. Ins. Co. v. Novotny, 657 So.2d 1210, 1213 (Fla. 5th DCA 1995) (internal citations omitted).

False Light Invasion of Privacy

In Allstate Insurance Co. v. Ginsberg, 863 So.2d 156, 162 (Fla.2003), the supreme court stated that Florida recognizes the tort of invasion of privacy. The court approved its statement in an earlier case that there are four categories of invasion of privacy:

(1) appropriation-the unauthorized use of a person’s name or likeness to obtain some benefit; (2) intrusion-physically or electronically intruding into one’s private quarters; (3) public disclosure of private facts-the dissemination of truthful private information which a reasonable person would find objectionable; and (4) false light in the public eye-publication of facts which place a person in a false light even though the facts themselves may not be defamatory.

Id. at 162 (quoting Agency for Health Care Admin, v. Assoc. Indus, of Fla., Inc., 678 So.2d 1239, 1252 n. 20 (Fla.1996)); see also Loft v. Fuller, 408 So.2d 619 (Fla. 4th DCA 1981); Guin v. City of Riviera Beach, 388 So.2d 604 (Fla. 4th DCA 1980). These four categories of invasion of privacy are the ones “recognized by Prosser in his Law of Torts, p. 804-14 (4th Ed. 1971).” Loft, 408 So.2d at 622.

The fourth category of the tort is “publication of facts which place a person in a false light even though the facts themselves may not be defamatory.” Allstate Ins. Co., 863 So.2d at 162; see Agency for Health Care Admin., 678 So.2d at 1252 n. 20. The false light theory of invasion of privacy was incorporated in section 652E of the Restatement (Second) of Torts, which defines the cause of action as follows:

[o]ne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if
(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.

See Gannett Co., Inc. v. Anderson, — So.2d-,-, 2006 WL 2986459 at *3 (Fla. 1st DCA Oct. 20, 2006).

Publicity is “highly offensive to a reasonable person” when a “reasonable man [] would be justified in the eyes of the community in feeling seriously offended and aggrieved by the publicity.” Restatement (SecoNd) of ToRts § 652E, cmt. c. The tort involves a “major misrepresentation” of a person’s “character, history, activities or beliefs.” Id. As an illustration of false light invasion of privacy, the Restatement describes a situation where a tortfeasor publicly circulates a Democrat’s name, over his objection, on a petition nominating a Republican for office. See Restatement (Seoond) of ToRts § 652E, Illustration 4. Difference of religion causes at least as many quarrels than difference of politics; therefore public misrepresentation of a person’s religious beliefs, involving conduct more extreme than Illustration 4, falls within the Restatement’s definition of the tort. Appellee contends that the amended complaint failed to allege sufficient scope of publication, because dissemination in a newsletter “cannot be so widespread as to be regarded as substantially certain to become public knowledge.” However, the allegation that the newsletter was posted on the internet satisfies the publication requirement of the tort. The amended complaint adequately stated a claim for false light invasion of privacy.

The supreme court has never expressly held that an action for false light invasion of privacy is cognizable in Florida courts. The court tacitly recognized the cause of action in Ginsberg and Agency for Health Care. Similarly, this court has tacitly recognized false light privacy claims. See Cox v. Wiod, Inc., 764 So.2d 671 (Fla. 4th DCA 2000) (reversing the dismissal of various claims including false light privacy on the ground of failure to prosecute); Byrd v. Hustler Magazine, Inc., 433 So.2d 593 (Fla. 4th DCA 1983) (reversing a judgment in a libel and false light case on the ground that the plaintiff failed to prove falsity); Loft, 408 So.2d at 619 (listing the four kinds of privacy claims in a privacy action based on the theory of unauthorized use of private facts); Cape Publ’n, Inc. v. Bridges, 387 So.2d 436, 440 n. 6 (Fla. 4th DCA 1980) (stating in dictum that actual malice would be required to prove a false light claim).

Recently, in Gannett, Judge Padovano conducted a scholarly review of the false light invasion of privacy cause of action. No. 1D05-2179, — So.2d at -, 2006 WL 2986459, at *1 (Fla. 1st DCA Oct. 20, 2006). He points out that some courts have declined to recognize the cause of action, because “it duplicates a cause of action for defamation while allowing the plaintiff to escape the strict requirements that are designed to ensure freedom of expression.” Id. at -, at *4. Other courts “have also expressed the concern that a false light action lacks the protections that apply in defamation cases.” Id. Although the majority of states recognize the cause of action, false light “remains the subject of a heated debate among judges and legal scholars.” Id.

Were we writing on a blank slate, we would be inclined to side with those courts rejecting the false light cause of action. However, Ginsberg and Agency for Health Care, as well as cases from this court, have given false light invasion of privacy a toehold in Florida law. Along with Judge Padovano, we have been unable to find a case where a “Florida appellate court affirmed a judgment for the plaintiff in a false light invasion of privacy ease.” Gannett, No. 1D05-2179, — So.2d at -, 2006 WL 2986459 at *6. In light of what we perceive to be some uncertainty in the area, we certify the following question as being one of great public importance: Does Florida recognize the tort of false light invasion of privacy, and if so, are the elements of the tort set forth in section 652E of Restatement (Second) of Torts?

Based on the foregoing, we affirm the circuit court’s dismissal of the intentional infliction of emotional distress and defamation claims and reverse the dismissal of the false light invasion of privacy claim. Because the dismissal of the negligent training and supervision claim was based on the dismissal of the other claims, we also reverse the dismissal of that count. Appellant has abandoned her claim for negligent infliction of emotional distress. On remand, appellant should be given leave to succinctly replead her claims, without excessive editorialization, so that there is one working complaint, and not causes of action sprinkled in various pleadings.

GUNTHER and FARMER, JJ., concur.

      . For example, paragraph 3 of the complaint alleged that "[djefendant Jews for Jesus uses many false assertions and deception in order to try to induce members of the Jewish faith to abandon the beliefs of their heritage yet believe they are still Jews.” Paragraph 29 stated that "Jews for Jesus is based on a fraud, thus they think nothing of making fraudulent and defamatory statements about others in order to further their objectives.” Another stricken paragraph describes Edith Rapp’s version of the theological disagreement between Judaism and Jews for Jesus:
      The primary goal of Jews for Jesus is to convince Jews to accept beliefs which directly contradict the most fundamental concepts of Judaism, and still believe that they can remain Jews. Many of the core beliefs of Jews for Jesus directly contradict the most basic concepts of Judaism. These ideas of Jews for Jesus that are antithetical to Jewish beliefs include that G-d at one time took human form, that G-d is three not one, that an "original sin” committed by Adam has contaminated the entire human race, that G-d will punish us forever for the sins of Adam, that unless we adopt the beliefs of Jews for Jesus G-d will send us to eternal torment, that we can be absolved from sin by the suffering of another, that Jesus fulfilled the Jewish concept of the Messiah, and other similar ideas.


text:
    FEDEX GROUND PACKAGE SYSTEM, etc., et al., Appellants, v. Vantoria FUTCH, Appellee.
    No. 3D05-2228.
    District Court of Appeal of Florida, Third District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 3, 2007.

      George, Hartz, & Lundeen and Charles M-P George, Coral Gables, and Mitchell L. Lundeen, for appellants.
    Lauri Waldman Ross and Theresa L. Girten, Miami; William C. Ruggiero, Ft. Lauderdale, for appellee.
    Before WELLS, CORTIÑAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

We consider whether or not a criminal conviction for failure to file a federal income tax return under 26 U.S.C. § 7203 constitutes a conviction involving dishonesty or a false statement for impeachment purposes under section 90.610 of the Florida Statutes. This is an issue of first impression for Florida courts.

Following a car accident involving the Plaintiff, Vantoria Futch (“Futch”), and a FedEx Ground Package System, Inc. (“FedEx”) van, Futch was treated by Dr. Gel-bard for neck and back injuries. At trial, Futch called Dr. Gelbard to testify that his injuries were caused by the accident. FedEx sought to impeach Dr. Gelbard with five prior misdemeanor convictions for willful failure to file federal income tax returns, arguing that willful failure to file a tax return is a crime involving dishonesty or a false statement and, therefore, is admissible for impeachment purposes under section 90.610(1) of the Florida Statutes. After hearing argument from both parties, the trial judge concluded that willful failure to file is not a crime involving dishonesty or a false statement and excluded evidence of the convictions. At the close of the trial, the jury found in favor of Futch and FedEx now appeals.

Although this is a question of first impression in Florida, federal circuit courts and courts in other states have considered the issue, with differing results. Appellants cite to decisions by the Fourth, Ninth, and Eleventh federal Circuit Courts of Appeal, all of which are based on United States v. Klein, 438 F.Supp. 485, 487 (S.D.N.Y.1977). See Dean v. Trans World Airlines, Inc., 924 F.2d 805, 811 (9th Cir.1991); United States v. Gellman, 677 F.2d 65, 66 (11th Cir.1982); Zukowski v. Dunton, 650 F.2d 30, 34 (4th Cir.1981).

In Klein, the court analogized the crime of willful failure to file a tax return with a conviction for importing cocaine that rested on a false statement to customs officials, which the Klein court stated was considered admissible for impeachment purposes by the Second Circuit in United States v. Hayes, 553 F.2d 824, 827 (2d Cir.1977). The Klein court found “no difference between the example cited in Hayes and a case where a taxpayer was convicted of deliberately withholding pertinent information from the government concerning fiscal affairs.” Klein, 438 F.Supp. at 487. We find the Klein court’s reasoning to be flawed.

In Hayes, the Second Circuit categorized convictions for impeachment purposes into three categories; convictions which on their face involve dishonesty, convictions which on their face do not involve dishonesty, and convictions in “the uncei'tain middle category.” Hayes, 553 F.2d at 827. For convictions in this middle category, “a prosecutor ... must demonstrate to the court ‘that a prior conviction rested on facts warranting the dishonesty or false statement description.’ ” Id. (citation omitted). Thus, the Second Circuit explicitly encouraged prosecutors to look beyond the face of a conviction, a practice that the Florida Supreme Court has rejected. State v. Page, 449 So.2d 813, 816 (Fla.1984)(holding that petit theft is per se a crime involving dishonesty or false statement under section 90.610(1) and disapproving of the practice of “conducting a ‘trial within a trial’ to determine whether an affirmative misstatement or misrepresentation of fact was involved in the commission of the crime,” the conviction of which is sought to be introduced for impeachment purposes).

However, the Second Circuit found that it was unable to examine the facts behind the conviction, because the only evidence before it was simply the conviction. Hayes, 553 F.2d at 828. Thus, the Second Circuit’s statement that a witness can be impeached with a conviction for importation of cocaine that involves false statements to customs officials is dicta, based on a hypothetical factual situation not before the court. In fact, the Second Circuit’s actual holding was that the conviction was not admissible under Rule 609(a)(2), the dishonesty prong of Rule 609 of the Federal Rules of Evidence, but instead was admissible under Rule 609(a)(1), after balancing the probative value of admitting the evidence with the prejudicial effect. Id. Notably, the Hayes court did not hold that the crime of cocaine importation is in any way a crime involving dishonesty or a false statement.

Nevertheless, the Klein court seized upon the reasoning in Hayes to make a wholly illogical leap by concluding that there is “no difference” between making a false statement to customs officials and a willful failure to file a tax return. Klein, 438 F.Supp. at 487. Section 7203 of Title 26 of the United States Code states that

any person required under this title to pay any estimated tax or tax, or required by this title or by regulations ... to make a return, keep any records, or supply any information, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall ... be guilty of a misdemean- or....

26 U.S.C. § 7203. To convict a defendant for willful failure to file, the jury must find “[1) ] that the defendant was required by law or regulation to make a return of his/her income for the taxable year charged, [2) ] that the defendant failed to file a return at the time required by law; and [3) ] that the defendant’s failure to file the return was willful.” Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Basic Instruction 94 (2008). The government is not required to prove that “the Defendant intended to evade or defeat payment of taxes, only that the Defendant willfully failed to file the return.” Id. A finding of willfulness requires a jury finding “that the act was committed voluntarily and with the specific intent to do something the law forbids; that is with bad purpose either to disobey or disregard the law.” Id., Basic Instruction 9.1. Thus, a finding of willfulness in the failure to file context only indicates that the jury found “beyond a reasonable doubt that the acts constituting the crime charged were committed by the Defendant voluntarily as an intentional violation of a known legal duty.” Id., Special Instruction 9. See also United States v. Greenlee, 517 F.2d 899, 904 (3d Cir.1975)(stating that the government must prove the defendant had a deliberate intention to fail to file returns knowing they had to be filed, not that the defendant acted with some purpose to conceal his tax liability from the government in a § 7203 prosecution); United States v. Klee, 494 F.2d 394, 395 (9th Cir.1974)(stat-ing that the government is not required to prove intent to defraud or intent to conceal in a § 7203 prosecution).

Therefore, the crime of willful failure to file income tax returns involves a failure to fulfill a legal duty. As such, it is more akin to a failure to make a declaration to customs officials than to making a false statement to customs officials. Thus, even if we agree with the Second Circuit’s dicta that a conviction involving a false statement to customs officials is proper impeachment material, we find that there is a legally significant distinction between a false statement and a failure to make a statement. We therefore cannot agree with the holding and reasoning in Klein.

Similarly, we must disagree with the Fourth and Eleventh Circuit holdings in Dunton and Gellman, respectively, as they base their conclusions on the flawed reasoning in Klein, with minimal additional analysis. In Dunton, the Fourth Circuit cited mein with approval, and then concluded “that Dunton’s willful failure to give tax information was sufficiently reprehensible to meet the exception of Rule 609(a)(2).” Dunton, 650 F.2d at 34. The Eleventh Circuit, in turn, concluded that “the decision of the Court of Appeals for the Fourth Circuit that the violation of [26 U.S.C. § 7203] is sufficiently reprehensible to meet the exception of Rule 609(a)(2) is correct, although based only upon a decision by the United States District Court for the Southern District of New York.” Gellman, 677 F.2d at 65 (citations omitted). Because we find Klein to have been erroneously decided and because the degree of reprehensibility of a crime is not the proper criteria for admission under Rule 609(a)(2), see H.R. Rep. No. 93-1597 (1974)(Conf.Rep.), reprinted in 1974 U.S.C.C.A.N. 7098, 7103; Cree v. Hatcher, 969 F.2d 34, 37 (3d Cir.1992), Dunton and Gellman are unpersuasive. The Ninth Circuit decision in Dean v. Trans World Airlines, Inc., based on Gellman, is also unpersuasive and inapplicable in Florida to the extent the Ninth Circuit looked beyond the face of the conviction. Dean, 924 F.2d at 811-12.

In contrast, Futch urges us to follow the decision of the Third Circuit prohibiting impeachment with convictions for willful failure to file a tax return, finding that it is not a crime involving dishonesty. Cree, 969 F.2d at 37; see also Jabot Inc. v. Smith, 201 F.3d 852, 856 (7th Cir.2000)(affirming trial court’s ruling that a party could not be impeached with evidence that the party did not timely file income tax returns). In Cree, the Third Circuit expressly disagreed with Klein, Dunton, and Gellman and explained that the willfulness element of willful failure to file means only that the defendant acted “voluntarily and with the deliberate intent to violate the law.” Cree, 969 F.2d at 37 (citations omitted). In other words, willfulness is the intent (mens rea) that is required of the defendant when he or she commits the crime, not a substantive element of the crime. As the Third Circuit noted, “it is certainly possible, and perhaps even likely, that in some instances individuals who willfully fail to file federal income tax returns do so with the conscious intent to conceal their tax liability from the government.” Id. at 38 n. 2. But the motive behind the crime is irrelevant in determining whether the crime is one involving dishonesty. Id. This is especially true in Florida where it is improper for courts to look beyond the face of a conviction to determine whether the conviction is for a crime involving dishonesty. Page, 449 So.2d at 816. Instead, the dishonesty must appear on the face of the conviction, such that an element of the crime reflects dishonesty. Cree, 969 F.2d at 38 n. 2; Page, 449 So.2d at 816. Because convictions for willful failure to file tax returns do not, on their face, require dishonesty or the making of a false statement, the trial court did not abuse its discretion in excluding evidence of the convictions. Cf. United States v. Yang, 887 F.Supp. 95, 96 (S.D.N.Y.1995)(holding that a conviction under a New York state statute for failure to file tax returns requires proof of a specific intent to evade taxes, and as such, can be used for impeachment purposes consistently with the Third Circuit holding in Cree); Commonwealth v. Vitale, 445 Pa.Super. 43, 664 A.2d 999, 1003-04 (1995)(holding that a witness may be impeached with evidence of a conviction under 26 U.S.C. § 7201 because that crime requires an attempt to evade or defeat a tax, which implies cheating or defrauding the government, and, as such, involves dishonesty); but see United States v. Lundy, 416 F.Supp.2d 325 (E.D.Pa.2005)(failing to mention Cree and stating that the Third Circuit has upheld the use of convictions for failure to file tax returns for impeachment, but nevertheless prohibiting the introduction of such evidence).

Moreover, FedEx’s claim that the trial court conducted a ‘trial within a trial’ by listening to Dr. Gelbard’s argument about why his convictions should be excluded is without merit. We agree that a trial court must determine from the face of the conviction whether a particular crime involves dishonesty or a false statement, without the benefit of hearing an explanation of how the crime was committed. Page, 449 So.2d at 816. However, the record in this case is abundantly clear that the trial court’s decision was not based on Dr. Gelbard’s assertions of the facts underlying the convictions, but was instead based on the state of the law, as represented by very capable attorneys. At the time of his initial ruling, the trial judge explicitly stated that he was not relying on Dr. Gelbard’s version of the facts underlying his convictions. Similarly, at the hearing on the motion for new trial based on the exclusion of the convictions as impeachment evidence, the trial court explained that it did not remember Dr. Gelbard’s explanation of the convictions and was not influenced by the explanation. Instead, the trial judge properly recognized that he was not to conduct a ‘trial within a trial’ and made his ruling based solely on the case law presented to him and his own legal intellect. Accordingly, we find no abuse of discretion.

Affirmed.

      . Section 90.610(1) of the Florida Statutes is the state counterpart to Rule 609(a)(l)-(2) of the Federal Rules of Evidence. As such, cases interpreting Rule 609 are persuasive authority for courts interpreting section 90.610(1). See § 90.610(1), Fla. Stat. (2006) Commentary on 1978 Amendment; see also Seven Hills, Inc. v. Bentley, 848 So.2d 345, 352-53 (Fla. 1st DCA 2003); Powell v. River Ranch Prop. Owners Ass’n, 522 So.2d 69, 70 (Fla. 2d DCA 1988).

      . That a conviction for willful failure to file a tax return may be had even where the taxpayer is owed a refund further supports our holding that this is not a crime involving dishonesty. See Eleventh Circuit Pattern Jury Instructions (Criminal Cases), Basic Instruction 94 (2003)(stating that the government is not required to prove that a tax is due and owing in a § 7203 prosecution).


text:
    Patrick G. SWEENEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4205.
    District Court of Appeal of Florida, Fourth District.
    Nov. 29, 2006.
    Rehearing Denied Jan. 11, 2007.
    Patrick G. Sweeney, Bushnell, pro se.
    No appearance required for appellee.
   PER CURIAM.

Under rule 3.800(a), Appellant challenges the minimum mandatory portion of his 1991 sentence for attempted murder of a law enforcement officer. The lower court dismissed the motion under the belief the issue had been litigated in various rule 3.850 motions or on direct appeal. The lower court failed to attach any document supporting this conclusion and our records reveal none. From the face of the record, Sweeney is not entitled to the relief he seeks. Thus the lower court should have denied relief on the merits and not dismissed the case as procedurally barred. Remand for such an order would be a waste of judicial resources and thus we choose to affirm on the merits. See generally Richardson v. State, 918 So.2d 999, 1004 (Fla. 5th DCA 2006) (refusing to remand where the trial court improperly denied a petition, where dismissal was the proper disposition).

GUNTHER, FARMER, and SHAHOOD, JJ„ concur.