author: POLEN, J.

text:
    C.A., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D06-4415.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.

      Kevin G. Thomas, Hallandale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   POLEN, J.

Appellant, C.A., the father, appeals the trial court’s final adjudication of dependency of E.A., the minor child. In April 2006, the Department of Children and Families (DCF) filed an affidavit and petition for placement in shelter on behalf of E.A. As probable cause for removing E.A. from the home, DCF alleged E.A. “has been abused, abandoned, or neglected or is in imminent danger of illness or injury as a result of abuse, abandonment, or neglect.” This action was prompted by his mother K.R.’s drug overdose in E.A.’s presence. C.A. was in the hospital at the time of the overdose. While K.R. agreed to the adjudication of dependency, C.A. did not and his case proceeded to trial. Following the presentation of evidence, the trial court made a final adjudication of dependency and placed E.A. with C.A.’s parents. C.A. raises two issues in this appeal and we find merit in both. We find there is insufficient evidence to support the trial court’s adjudication of dependency and reverse.

For his first issue on appeal, C.A. argues the trial court erred in admitting K.R.’s hearsay statements, made to a DCF worker, Jillian Bleistein, into evidence. At trial, Ms. Bleistein relayed comments made by K.R. about her drug use. Defense counsel made a hearsay objection and DCF asserted that K.R. was a party and any statements she had made fell under the admissions by a party exception. Defense counsel asserted K.R. was no longer a party, as she had already consented to the dependency order. The trial court overruled the objection, finding K.R. was a party. K.R. told Bleistein that “they” did drugs in the bathroom of their house. Bleistein assumed K.R. was referring to herself and C.A. K.R. did not give specifics or details about any drug use by C.A.

Interpretation of the rules of evidence is reviewed de novo. See Linn v. Fossum, 946 So.2d 1032, 1036 (Fla.2006). Statements offered against a party are admissible and not hearsay if they are:

(a) The party’s own statement in either an individual or a representative capacity;
(b) A statement of which the party has manifested an adoption or belief in its truth;
(c) A statement by a person specifically authorized by the party to make a statement concerning the subject;

§ 90.803(18)(a)-(c), Fla. Stat. C.A. argues KR.’s statements were not admissible under this exception as she was no longer a party to the dependency proceeding, having previously consented to a dependency order.

We find K.R. was still a party to the proceeding even though she agreed to the dependency order. “ ‘Party’ means the parent or parents of the child, the petitioner, the department, the guardian ad litem or the representative of the guardian ad litem program when the program has been appointed, and the child.” § 39.01(50), Fla. Stat. An admission is made by a party to the litigation and it comes into evidence regardless of whether its maker is present at trial. Hunt v. Seaboard Coast Line R. Co., 327 So.2d 193, 195-96 (Fla.1976).

However, we find the trial court erred in allowing KR.’s statements to come in as they were not made by C.A., and they were offered against C.A., not HR. See § 90.803(18)(a), Fla. Stat. C.A. did not manifest an adoption or belief in the statement, or authorize K.R. to make the statement in his behalf. See § 90.803(l)(b)-(c), Fla. Stat. While the statements would be admissible at trial against HR., even though they would be against both HR.’s and C.A.’s interests, as HR. had already settled with DCF and the trial court adopted this settlement, no issues concerning K.R. were before the trial court. Therefore it was error for the trial court to admit HR.’s statements as they were solely against C.A.’s interest.

Further, we find admission of these statements was not harmless error. “To find this error to be harmless, this court must find that there is no reasonable possibility that the error contributed to the verdict.” K.V. v. State, 832 So.2d 264, 266 (Fla. 4th DCA 2002). In its oral findings at trial, the trial court specifically stated its acceptance of HR.’s statements that she and C.A. had used drugs in the bathroom of their home. The trial court’s oral findings and final order indicate that its decision was based in large part on HR. and C.A.’s alleged recent drug use. Therefore, we cannot say the admission of HR.’s statements did not contribute to the verdict.

For his second issue on appeal, C.A. argues the trial court’s finding of dependency is unsupported by the factual and legal evidence introduced at trial. Again, we agree.

A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record. Competent substantial evidence is tantamount to legally sufficient evidence. While a trial court’s discretion in child welfare proceedings is very broad, reversal is required where the evidence is legally insufficient to sustain the findings of the trial court.

R.S. v. Dep’t of Children and Families, 881 So.2d 1130, 1132 (Fla. 4th DCA 2004). “Weighing the evidence is the province of the trial court, and this Court will not disturb the trial court’s credibility findings.” Y.P. v. Dept. of Children and Family Services, 939 So.2d 1118, 1119-20 (Fla. 3d DCA 2006) (internal citations omitted). “In the event the evidence is conflicting or turns on credibility of the witnesses, all credence and presumption of correctness must be given to the trial court.” F.R. v. Dep’t of Children & Families, 826 So.2d 449, 450 (Fla. 5th DCA 2002).

The dependency petition filed by DCF alleged C.A. neglected E.A. because of his substance abuse problem and his behavior in leaving E.A. with HR. when he had knowledge of her substance abuse problem. At trial, Bleistein testified she met with C.A. when he was in the hospital to talk about HR.’s overdose. C.A. had been hospitalized for cellulitus at the time of HR.’s overdose. Bleistein stated C.A. did not seem overly concerned about E.A. when they talked about HR.’s overdose.

C.A. admitted that he and K.R. had used drugs in the past, although C.A. told her the last time he used drugs was a couple of years ago. However, after reading a Comprehensive Behavioral Health Assessment (CBHA) that was done on C.A., Bleistein testified C.A. admitted to doing drugs “recently” when he met up with some old friends. Bleistein didn’t know if “recently” referred to two years ago or a more recent occasion. C.A. had not been arrested on drug-related charges since 1999 and in fact, since E.A. was born, he had only received a ticket for failure to use his turn signal. Bleistein’s assertion that C.A. neglected E.A. was based on the fact C.A. took no precautions to protect E.A. and left E.A. with K.R. while he was in the hospital. Bleistein admitted E.A. showed no physical signs of neglect or abuse.

C.A. testified in his own defense. C.A. heard about K.R.’s overdose from his mother approximately two hours before talking to Bleistein. C.A. was in a lot of pain and on painkillers while in the hospital and didn’t really know where he was. C.A. was worried about E.A. being with K.R., but didn’t know what to do and assumed it was a one-time incident. C.A. admitted to doing drugs in the past, but testified he hadn’t used drugs in approximately two years. C.A. had been unaware that K.R. was continuing to use cocaine as K.R. did not do drugs in front of him. Subsequent to DCF filing the petition for dependency, C.A. had preemptively entered a substance treatment program just in case DCF ordered him to do so.

C.A. testified he was normally at home on Saturdays and Sundays and that E.A. stayed with his grandmother on Friday nights while C.A. was at work. Since C.A. never saw K.R. doing drugs, he posited she must do them on Friday nights when he was at work and E.A. was with his grandmother. C.A. thought K.R. was a good mother and did not neglect E.A. Even though C.A. had been unaware that K.R. was doing drugs, he stated he would be more diligent about making sure she wasn’t using drugs. During the course of his voluntary treatment program C.A. had learned ways to determine whether someone was using drugs or not. C.A. testified he could take care of E.A. on his own if necessary.

After considering all the testimony, the trial court ruled in favor of DCF. The trial court stated:

I find for the Department that [C.A.] has abused and/or neglected the child under 39.01 or that the child is in imminent risk thereof. My findings are: I accept the testimony of Jillian Bleistein ... from — the BSO investigator that when Dad was questioned concerning Mom’s overdose with cocaine, he admitted using cocaine, heroin and marijuana with Mom in the past. [C.A.] further reported that he had recently done drugs with friends. [K.R.] admitted to Ms. Bleistein that she and [C.A.] partake in drug use in the bathroom of their home on weekends. [K.R.] further admitted that she had shot too much cocaine on April 13, 2006, which resulted in seizures. It was then she asked her son to call 911 for help.
The Court rejects [C.A.]’s testimony that the last time he used cocaine was two years ago and that he never suspected [K.R.] was using drugs.

The final order placed E.A. with his grandparents and granted C.A. supervised visits.

The trial court’s final order of dependency was centered around K.R.’s overdose in E.A.’s presence and her admission that “they” did drugs in their bathroom, as well as its disbelief in C.A.’s testimony that: 1) he was unaware of KR.’s drug use, and 2) the last time he used drugs was two years ago. While the trial court is in the best position to judge the credibility of the witnesses, the question of whether there is competent and substantial evidence to support the finding of dependency remains. The trial court determined DCF had proven, by a preponderance of the evidence that C.A. neglected E.A. and placed him at imminent risk of harm. We find the trial court’s finding of dependency is not supported by the evidence.

Finding of Neglect

Section 39.01(45), Florida Statutes, states in relevant part: “ ‘Neglect’ ” “occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired ... Neglect of a child includes acts or omissions.” § 39.01(43), Fla. Stat. “ ‘Harm’ to a child’s health or welfare can occur when any person: Inflicts or allows to be inflicted upon the child physical, mental, or emotional injury.” § 39.01(31)(a), Fla. Stat. In relation to harm from a substance abuse problem:

Exposes a child to a controlled substance or alcohol. Exposure to a controlled substance or alcohol is established by: Continued chronic and severe use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage.

§ 39.01(31)(g)(2), Fla. Stat. “Harm to a child’s health can occur when any person ‘[e]xposes a child to a controlled substance or alcohol.’ ” T.G. v. Dep’t of Children and Families, 927 So.2d 104, 106 (Fla. 1st DCA 2006)(quoting § 39.01(30)(g), Fla. Stat. (2005)). “A parent’s use of controlled substances is harmful to a child if it is “chronic and severe” and the child is “demonstrably adversely affected” by the use.” Id. at 106-07.

The trial court’s finding was based on both KR.’s and C.A.’s alleged drug use. In this case, there was no question that the mother overdosed on some form of cocaine while home with E.A. and she admitted to doing drugs on a regular basis. Nor was there any question that at the time of this incident, C.A. was hospitalized with celluli-tus. The fact that both parents were hospitalized and DCF intervened on behalf of the child indicates E.A. was adversely affected by KR.’s drug use. However, DCF admitted that E.A. did not appear to be physically neglected in any way and admitted there was no contention his physical environment was not up to par. We find this one incident is not enough to show that E.A. was demonstrably adversely affected by any alleged drug use on the part of C.A. See J.B., III v. Dep’t of Children and Families, 928 So.2d 392, 395 (Fla. 1st DCA 2006).

Moreover, the trial court’s finding that C.A. had a current substance abuse problem is not supported by the record. In its factual findings at trial, the trial court found the testimony showed that C.A. and K.R. did drugs in the bathroom of their home. We disagree. Bleistein testified K.R. told her “they” did drugs in the bathroom of their house and Bleistein admitted she assumed K.R. was referring to C.A. However, when Bleistein questioned K.R. as to who “they” were, K.R. replied “her and friends.” Bleistein’s assumption, without more, is not enough to show C.A. was using drugs in the bathroom of their home, thereby evincing chronic and ongoing substance abuse.

The trial court also found the evidence showed that C.A. admitted to doing drugs “recently” with friends. The trial court disregarded C.A.’s testimony that the last time he used drugs was two years prior. While the trial court was in the best position to judge C.A.’s credibility, we find there was not enough evidence presented to determine that C.A. had a current substance abuse problem, let alone that C.A. caused E.A. to be exposed to a controlled substance or alcohol within the meaning of the statute. Besides C.A.’s one statement the trial court decided to believe and K.R.’s ambiguous testimony referring to “they,” there was no evidence presented that C.A. was doing drugs, either by way of a positive drug test or testimony from someone who witnessed C.A. doing drugs. As in In re C.S., “no evidence suggested that the [child] had actually suffered any harm or injury from his [alleged] drug use.” 892 So.2d 1155, 1158 (Fla. 2d DCA 2005).

The trial court also found C.A. neglected E.A. by failing to protect him from K.R.’s substance abuse problem “because he knew or should have known of the mother’s abuse and failed to intervene.” “In order for the father to have failed to protect, there must have been evidence that he had the capability to prevent the abuse.” R.S. v. Dep’t of Children and Families, 831 So.2d 1275, 1278 (Fla. 4th DCA 2002). The trial court’s finding that C.A. knew or should have known about KR.’s drug use and failed to prevent E.A.’s exposure is not supported by competent and substantial evidence. The evidence showed C.A. and K.R. had done drugs in the past, but C.A. testified he did not know that K.R. was still doing drugs. DCF presented no evidence to the contrary, other than KR.’s statement that “they” did drugs in the bathroom. The evidence also showed that K.R. did drugs on the weekends and that E.A. was not alone with K.R. on the weekends. Moreover, at the time of this incident, C.A. was in the hospital being treated for eellulitus and did not have the ability to prevent K.R. from doing drugs.

Finding of Imminent Risk of Harm

“To prove there is an imminent risk a child will be abused or neglected, DCF must offer competent, substantial evidence that abuse or neglect is ‘impending and about to occur.’ ” J.B., III, 928 So.2d at 395. “ ‘Imminent’ encompasses a narrower time frame and means ‘impending’ and ‘about to occur.’ ” E.M.A. v. Dep’t of Children & Families, 795 So.2d 183, 186 n. 3 (Fla. 1st DCA 2001). “[W]here the slate is clean, Florida law requires a substantial risk of imminent abuse or imminent neglect to support a finding that a child is dependent.” R.S. v. Dep’t of Children and Families, 881 So.2d 1130, 1135 (Fla. 4th DCA 2004). “[A] parent’s addictions can support a finding of prospective abuse or neglect sufficient to support an adjudication of dependency if the evidence establishes the addiction will affect a parent’s ability to provide and care for his or her child.” B.C. v. Dep’t of Children & Families, 846 So.2d 1273, 1275 (Fla. 4th DCA, 2003). “However, if there is no evidence the child actually suffered harm or injury-physical, mental or emotional-as a consequence of a parent’s alcohol or drug use, evidence that the parent has a drug or alcohol problem, standing alone, is insufficient to support a finding of dependency.” J.B.M. v. Dep’t of Children and Families, 870 So.2d 946, 951 (Fla. 1st DCA 2004).

In this case, the trial court found that C.A.’s substance abuse problem, as well as his failure to protect E.A. from KR.’s drug use, constituted imminent risk of harm. As pointed out above, the evidence does not support this finding. Further, there was absolutely no testimony that E.A. had been present during or had been harmed in any way by C.A.’s alleged drug use. While it is not necessary to show E.A. was present for the parents’ alleged drug use, the totality of the circumstances must show an imminent risk of harm is created by the actions of the parent(s). See J.C. v. Dep’t of Children and Family Services, 937 So.2d 184, 187 (Fla. 3d DCA 2006). We find this is not the case. As pointed out above, there was no indication that E.A.’s environment was not up to par or that he showed signs of neglect. Even given the evidence of C.A.’s admitted earlier drug use, we find the admitted prior drug use is not enough to show an imminent risk of harm. See R.S., 881 So.2d at 1134.

Moreover, we find the evidence failed to show that C.A. was at future risk of harm due to C.A.’s alleged drug use. See B.C., 846 So.2d at 1275. There was no evidence that C.A. had an ongoing substance abuse problem or, even if he did, that it would negatively affect his ability to care for E.A. See B.C., 846 So.2d at 1275.

Based on the above, we find the trial court erred in admitting KR.’s hearsay statements into evidence and in issuing an order of dependency in this case, as the order is not supported by competent and substantial evidence. We reverse.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harry TIPTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6532.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Harry Tipton, pro se, Petitioner.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted and Harry Tipton is hereby afforded a belated appeal from judgment and sentence in case number 96-CF-1756 in the Circuit Court for Okaloosa County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The circuit court is directed to appoint counsel to represent petitioner in the appeal, if he qualifies for such an appointment.

PETITION GRANTED.

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    Kevin Travis PEACOCK, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0745.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Kevin Travis Peacock, pro se, Petitioner.

      Bill McCollum, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Kevin Travis Peacock is hereby afforded a belated appeal from the order dismissing with prejudice defendant’s pro se motion to vacate sentence and cautioning defendant regarding repetitious filing in case number 2002-CF-5049-A in the Circuit Court for Es-cambia County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

KAHN, LEWIS, and HAWKES, JJ„ concur.


text:
    Dereck SAILOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1509.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Wendy Loquasto of Fox & Loquasto, P.A., Tallahassee, for Petitioner.
    Bill McCollum, Attorney General; Thomas D. Winokur and Heather Flanagan Ross, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Dereck Sail- or is hereby afforded a belated appeal of the order denying postconviction relief entered on July 7, 2005, in case number 96-497CFB in the Circuit Court for Gadsden County. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

KAHN, LEWIS, and HAWKES, JJ., concur.


text:
    Lezrene M. CUNNINGHAM, Appellant, v. Craig W. THOMPSON, Appellee.
    No. 1D07-1515.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Harold H. Catlin of Fallgatter Farmand & Catlin, P.A., Jacksonville, for Appellant.
    Susan P. Pniewski, Jacksonville, for Ap-pellee.
   PER CURIAM.

Having considered the appellant’s responses to this Court’s jurisdictional show cause orders, this appeal is hereby DISMISSED as premature. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (“[a] final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary”).

LEWIS, POLSTON, and ROBERTS, JJ., concur.


author: NORTHCUTT, Judge.

text:
    William NEWLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2619.
    District Court of Appeal of Florida, Second District.
    June 20, 2007.
    James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

In 2002, a jury convicted William New-land of two crimes involving sexual acts. This court affirmed Newland’s conviction, per curiam. Newland v. State, 875 So.2d 615 (Fla. 2d DCA 2004). Newland then filed a motion for postconviction relief in which he claimed that his trial counsel was ineffective on eight different bases. See Fla. R.Crim. P. 3.850. In this appeal, he challenges the postconviction court’s denial of his motion on all grounds, some of which it rejected summarily, some after an evi-dentiary hearing. We affirm the court’s decision with one exception.

Ground VIII of Newland’s motion asserted that his counsel was ineffective for failing to present two potential witnesses in his defense. The postconviction court summarily denied this ground because it believed that the testimony of the named potential witnesses would have been merely cumulative. We agree with the court’s conclusion about witness Tutko. However, we remand for an evidentiary hearing on Newland’s contentions regarding witness Balbi.

A defendant who makes a facially sufficient claim for postconviction relief must be given an evidentiary hearing unless his motion or the record conclusively show that he is entitled to no relief. On a claim of ineffective assistance of counsel, if the defendant alleges specific facts that are not conclusively rebutted in the record and demonstrates that a deficiency in performance prejudiced him, the court should conduct a hearing. Hodges v. State, 885 So.2d 338, 355 (Fla.2004).

Newland’s claim regarding witness Balbi was facially sufficient. He identified the witness, described what her testimony would have been, stated that she was able to testify because she lived in Sarasota at the time of the trial, and asserted that the failure to call her prejudiced him because her testimony would have impeached the statements of an important Williams rule witness. See Nelson v. State, 875 So.2d 579, 582-83 (Fla.2004); Petz v. State, 917 So.2d 381, 382-83 (Fla. 2d DCA 2005). Newland’s allegations concerning the testimony of this potential witness cannot be refuted by the record because she did not testify. Therefore, the postconviction proceeding presented a factual dispute that must be resolved with an evidentiary hearing. See Cottle v. State, 733 So.2d 963, 965 n. 2 (Fla.1999). Accordingly, we reverse and remand with directions to the postcon-viction court to hold an evidentiary hearing on this limited issue.

Affirmed in part, reversed in part, and remanded.

STRINGER and VILLANTI, JJ., Concur.


author: STRINGER, Judge.

text:
    Arthur D. CARPENTER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 2D07-140.
    District Court of Appeal of Florida, Second District.
    June 20, 2007.
    Arthur D. Carpenter, pro se.

      Connie Lynn Beach, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   STRINGER, Judge.

Arthur Carpenter seeks review, by way of a petition for writ of certiorari, of the trial court’s denial of his petition for writ of habeas corpus which challenged the revocation of his conditional release on several grounds. We agree with Carpenter that his habeas petition was not time-barred by section 95.11(5)(f), Florida Statutes (2004), based on the reasoning set forth by the First District in Martin v. Florida Parole Commission, 951 So.2d 84 (Fla. 1st DCA 2007). As did the First District in Martin, we certify conflict with Cooper v. Florida Parole Commission, 924 So.2d 966 (Fla. 4th DCA 2006), on this issue.

However, in addition to denying Carpenter’s habeas petition on the timeliness issue, the trial court also denied it on the merits. After a thorough review of the record, we hold that the trial court did not depart from the essential requirements of the law in denying Carpenter relief on the issues he raised in his habeas petition. We decline to address those issues Carpenter has raised for the first time in his petition for certiorari review. See Williams v. Fla. Parole Comm’n, 625 So.2d 926, 936 (Fla. 1st DCA 1993); Hansen v. Wainwright, 493 So.2d 38, 40 (Fla. 1st DCA 1986).

Petition denied; conflict certified.

NORTHCUTT and VILLANTI, JJ„ Concur.


author: KLEIN, J.

text:
    POWER PLANT ENTERTAINMENT, LLC; Native American Development, LLC; Joseph S. Weinberg; and The Cordish Company, Petitioners, v. TRUMP HOTELS & CASINO RESORTS DEVELOPMENT COMPANY, LLC; Richard T. Fields; Coastal Development, LLC, Respondents.
    No. 4D06-3984.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Larry A. Sturapf, Roy Black and Matthew P. O’Brien of Black, Srebnick, Korn-span & Stumpf, P.A., Miami, for petitioner.
    Herman J. Russomanno and Robert J. Borrello of Russomanno & Borrello, P.A., Miami, and Kelley B. Stewart of Krupnick, Campbell, Malone, Buser, Slama, Hancock, Liberman & McKee, P.A., Fort Lauder-dale, for respondent Trump Hotels.
   KLEIN, J.

Petitioners sought certiorari review of a trial court order upholding respondent’s exercise of attorney/client privilege in a discovery proceeding. We dismissed the petition on the ground that no irreparable harm is demonstrated where the court denies a motion to compel discovery, because there is an adequate remedy on final appeal. Petitioners then filed a motion to certify conflict, pointing out that other district courts of appeal have allowed review by certiorari of orders denying discovery and this court does not.

This court’s current position is exemplified by what we said in Barrett v. Callaway, 842 So.2d 1056, 1056 (Fla. 4th DCA 2003), in which the trial court had granted a protective order prohibiting discovery of documents. In dismissing the petition for certiorari we explained:

As sole authority for jurisdiction petitioner cites Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000), in which the fifth district reviewed by certiorari an order granting a protective order which prevented the taking of the defendant’s deposition in an accident case. The Beekie court, recognizing that review of denial of discovery orders by certiorari is rarely warranted, concluded that it was justified under the facts.
This court, on the other hand, has consistently maintained the view that “plenary appeal provides an adequate remedy to address the legal propriety of an order precluding discovery.” Calfin v. McInnis, 683 So.2d 1137 (Fla. 4th DCA 1996) and cases cited. Because we conclude that petitioner has failed to demonstrate irreparable harm which cannot be remedied on final appeal, we dismiss the petition.

This court has not always adhered to our current position of not reviewing these petitions. In Brennan v. Board of Public Instruction, 244 So.2d 463 (Fla. 4th DCA 1971), we granted a petition for certiorari and quashed an order preventing the plaintiff from deposing three employees of the defendant in a personal injury case. And in Gold Coast Raceway, Inc. v. Ehrenfeld, 392 So.2d 1002 (Fla. 4th DCA 1981), we quashed a protective order precluding discovery based on attorney-client privilege. Although a three judge panel of this court purported to partially recede from Gold Coast in United States Fidelity & Guaranty Co. v. Graham, 404 So.2d 863 (Fla. 4th DCA 1981), this court has in fact not receded from either Gold Coast or Brennan.

We have now concluded that we should take this opportunity to recede from the cases indicating we have a hard and fast rule against reviewing orders denying discovery, and join our sister courts which have occasionally, but not routinely, granted review. See, e.g., Bush v. Schiavo, 866 So.2d 136 (Fla. 2d DCA 2004); Lifemark Hosps. v. Izquierdo, 899 So.2d 478 (Fla. 3d DCA 2005); Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000).

Our reluctance to review these petitions stems from the fact that discovery disputes have become so numerous in the trial courts. The Florida Supreme Court obviously had similar concerns when it decided Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987), emphasizing that it was “extremely rare” that an erroneous non-final ruling can be corrected by certiorari. Id. at 1098. In Martin-Johnson, the issue was whether district courts of appeal should review, by certiorari, orders denying motions to dismiss or strike claims for punitive damages. The defendant argued that the erroneous refusal to strike an invalid punitive damage claim could result in irreparable injury in that it would permit the plaintiff to inquire into confidential financial information of the defendant. Our supreme court rejected that argument, holding that “discovery of a litigant’s finances” is not the irreparable harm contemplated by the certiorari standard of review. Id. at 1099. The court went on to explain:

[I]f we permitted review at this stage, appellate courts would be inundated by petitions to review orders denying motions to dismiss such claims, and trial court proceedings would be unduly interrupted. Even when the order departs from the essential requirements of the law, there are strong reasons militating against certiorari review. For example, the party injured by the erroneous interlocutory order may eventually win the case, mooting the issue, or the order may appear less erroneous or less harmful in light of the development of the case after the order. Haddad, The Common Law Writ of Certiorari in Florida, 29 U.Fla.L.Rev. 207, 227-28 (1977).

Id. at 1100.

Consistent with our supreme court’s admonitions in Martin-Johnson, we remind counsel that few orders denying discovery will involve information so relevant and crucial to the position of the party seeking discovery, that it will amount to a departure from the essential requirements of law so as to warrant cer-tiorari review. A good example of the serious type of error which would warrant review was presented to the fifth district in Beekie, where the trial court had not allowed the injured claimant to take the deposition of the defendant driver of the car involved in the accident. On the other hand, we do not expect to receive petitions from denials of fishing expeditions.

We voted to en banc this case solely for the purpose of announcing that we do not have a hard and fast rule against reviewing orders denying discovery. It is unnecessary for the full court to consider whether an order to show cause should be issued on this petition, and accordingly further proceedings will be before the original panel, not the entire court. We deny the motion to certify and vacate the order of dismissal.

STEVENSON, C.J., GUNTHER, STONE, WARNER, POLEN, FARMER, SHAHOOD, GROSS, TAYLOR, HAZOURI, and MAY, JJ., concur.


text:
    Kelvin FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4568.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Evelyn A. Zigler, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In Franklin v. State, 877 So.2d 19 (Fla. 4th DCA 2004), we reversed appellant’s conviction of aggravated battery for a new trial, but certified a question of great public importance to the Florida Supreme Court. The court granted review and answered the question in a manner which requires us to now affirm appellant’s conviction. State v. Franklin, 955 So.2d 564, 32 Fla. L. Weekly S158 (Fla. Apr. 19, 2007). We now accordingly affirm all issues.

STONE, KLEIN and TAYLOR, concur.


text:
    TOWN OF LAUDERDALE-BY-THE-SEA, Appellant, v. SEA COLONY, INC., Appellee.
    No. 4D06-912.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Michael D. Cirullo, Jr., and James A. Cherof of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, for appellant.
    James C. Brady of Arnstein & Lehr LLP, Fort Lauderdale, for appellee.
   PER CURIAM.

In this case, Sea Colony, Inc. submitted a development site plan to the Town of Lauderdale-By-The-Sea (the “Town”) for approval. When more than three months passed and the Town had failed to process the site plan and to respond to letters requesting such processing, Sea Colony filed a petition for writ of mandamus, insisting the language of recently-adopted resolution 2005-08 imposed a ministerial duty on the Town to process its application. The trial court agreed and granted the petition. We affirm the trial court’s decision, finding no error in the trial judge’s reading of the resolution’s language and no merit in the Town’s claim that mandamus was not an appropriate vehicle for resolution of the dispute between it and Sea Colony. In our view, the plain language of the resolution supports Sea Colony’s claim that since its site plan was submitted prior to the date of the resolution, the Town was bound to review it. In so holding, we express no opinion regarding whether Sea Colony’s application should be approved or denied; neither do we venture to opine which zoning standards should be applied by the Town during the application process.

Affirmed.

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

TAYLOR, J., dissents without opinion.


text:
    Douglas GROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4778.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Ian J. Goldstein of Goldstein & Jette, P.A., West Palm Beach, for appellant.
    No appearance required for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We withdraw our previously issued decision and substitute the following in its place.

Affirmed.

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


author: STEVENSON, C.J.

text:
    David L. HUSTAD, P.E., Appellant, v. ARCHITECTURAL STUDIO, INC., a Florida corporation, d/b/a Scott Blakeslee Disher & Associates, Appellee.
    No. 4D06-3574.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Frank V. Reilly of Reilly Roche LLP, Fort Lauderdale, for appellant.
    Shirley Jean McEachern and Jon D. Derrevere of Derrevere & Hawkes, West Palm Beach, for appellee.
   STEVENSON, C.J.

David L. Hustad is a structural engineer who was sued by his former employer, Architectural Studio, Inc. (“ASI”). After ASI voluntarily dismissed its suit, appellant filed a motion seeking the award of 57.105 attorney’s fees. The attorney’s fees motion was set to be heard at a time originally reserved to resolve a pre-dismissal discovery dispute. Initially, there was some confusion between the parties and the judge as to what was to be addressed. When it became clear to the judge that the matter before him was a section 57.105 motion, he questioned how appellant’s counsel could establish ASI’s claims were frivolous from the outset, as claimed, in the wake of a voluntary dismissal. Although appellant’s counsel pointed to the nearly 120 pages of documents attached to his motion, the trial court summarily denied the motion indicating that absent a disposition on the merits, there was no way for him to know that ASI’s claims were frivolous. This was reversible error.

Section 57.105(1), Florida Statutes (2006), provides that a trial court “shall award” attorney’s fees to the prevailing party in an action where the court finds that the losing party or his attorney “knew or should have known” that the claim “[w]as not supported by the material facts necessary to establish the claim” or “[would not be supported by the application of then-existing law to those material facts.” Fees are not awardable where the claim can be supported by “a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.” § 57.105(2), Fla. Stat. “[T]he mere dismissal of a suit does not necessarily justify an attorney’s fee award if the suit can be considered to have been non-frivolous at its inception.” Murphy v. WISU Props., Ltd., 895 So.2d 1088, 1094 (Fla. 3d DCA 2004).

Whether a claim is frivolous within the meaning of section 57.105, thus mandating the award of fees, is a matter left to the sound discretion of the trial court. See Bowen v. Brewer, 936 So.2d 757, 762 (Fla. 2d DCA 2006), review denied, 952 So.2d 1188 (Fla.2007); Yakavonis v. Dolphin Petroleum, Inc., 934 So.2d 615, 618 (Fla. 4th DCA 2006). To exercise this discretion, the trial court must make “an inquiry into what the losing party knew or should have known during the fact-establishment process, both before and after suit is filed.” Bowen, 936 So.2d at 763. Even when the lawsuit is dismissed in its early stages, the movant under section 57.105 is entitled to present evidence and establish a record for the purposes of demonstrating entitlement to attorney’s fees. The failure of a trial court to consider a motion for award of section 57.105 attorney’s fees merely because the lawsuit has been voluntarily dismissed is an abuse of discretion. We thus reverse the order appealed and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

POLEN and TAYLOR, JJ., concur.


author: FARMER, J.

text:
    Charles HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1285.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Charlie Hayes, Milton, pro se.
    No appearance required for appellee.
   FARMER, J.

Defendant filed a motion seeking post-conviction relief under rule 3.850. Police reports attached to the claim show two separate robberies in which three men approached a location in a car, and some or all emerged from the vehicle to rob the victims. He stated that the five robbery victims gave conflicting statements as to whether he ever exited the vehicle. He first claimed that his defense counsel was ineffective in failing to exploit this conflict in the evidence. We find this claim legally insufficient because it does not exclude the possibility that he was convicted for aiding and abetting the robbery by driving the car.

He next claimed that he was not given sufficient time to consider the plea offer, and that he did not fully understand what the eventual outcome of the plea would be. This claim is not facially insufficient. Without record excerpts, it cannot be deemed conclusively refuted by the record.

The trial judge’s procedure for handling the motion was thus. The motion was filed in the trial court on August 14th. According to the office stamp, the court file was sent to the assigned judge on August 26th. Without ordering a response from the state, the trial court entered an order on August 28th summarily denying the motion without stating any reason. Nothing was attached to the order demonstrating that all of his claims were refuted by the record.

Rule 3.850(d) specifies that:

“If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing. In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order. Unless the motion, files, and records of the case conclusively show that the mov-ant is entitled to no relief, the court shall order the state attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.”

Fla. R.Crim. P. 3.850(d). The order entered by the Judge does not state that the motion was denied because of any facial legal insufficiency. Consequently the order should have had attachments “conclusively showing] that the movant is entitled to no relief.” Id.; Roberts v. State, 568 So.2d 1255, 1256 (Fla.1990) (where trial court denies motion for post-conviction relief without evidentiary hearing, motion and record must conclusively demonstrate that the defendant is entitled to no relief). It is improper to deny this kind of motion without stating a rationale or attaching record excerpts refuting all claims. Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993); Hoffman v. State, 571 So.2d 449, 450 (Fla.1990). The order denying relief is therefore in error and must be reversed.

Rule 3.850 serves an essential function. Convictions do not always become final without some unappreciated error. Unintended mistakes are inevitable. The rule’s procedure helps insure that justice will ultimately be achieved, that the occasional errors will be recognized and corrected. As the Supreme Court has explained:

“The rule was never intended to become a hindrance to obtaining a hearing or to permit the trial court to resolve disputed issues in a summary fashion. To the contrary, the ‘rule was promulgated to establish an effective procedure in the courts best equipped to adjudicate the rights of those originally tried in those courts.’ ”

Gaskin v. State, 737 So.2d 509, 516 (Fla.1999), receded on other grounds Nelson v. State, 875 So.2d 579 (Fla.2004) (citing Roy v. Wainwright, 151 So.2d 825, 828 (Fla.1963)).

Reversed for compliance with rule 8.850(d).

GUNTHER and WARNER, JJ., concur.


author: WARNER, J.

text:
    Anne Marie BALBOA, Appellant, v. Andre ASSANTE, Appellee.
    No. 4D06-4897.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Brian Barakat and Bruce Jacobs of Bar-akat, Prempeh & Jacobs, P.L., Miami, for appellant.
    No brief filed on behalf of appellee.
   WARNER, J.

Appellant, an Arizona resident, challenges the trial court’s order denying her motion to dismiss for lack of personal jurisdiction. She maintains that a limited evidentiary hearing was required, because she contested the allegation that she entered into an oral contract with the appellee calling for payment of monies in Florida. We conclude that pursuant to Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), the trial court erred in failing to conduct a limited evidentiary hearing where the affidavits conflicted.

Appellee, Andre Assante, filed suit against appellant, Ann Marie Balboa, alleging that he loaned her money between 2003 and 2005. He claimed that she promised to repay him from proceeds she anticipated receiving from a medical malpractice lawsuit which she filed in Arizona. She received a recovery in 2005 but failed to repay him. Although she resided in Arizona at the time suit was filed, Assante alleged that she resided in Broward County at the time of the oral contract.

Balboa moved to dismiss the complaint for lack of jurisdiction, contending that she had not entered into any oral contract. Instead, she alleged that Assante had given her the money.

Both parties filed affidavits. Assante’s affidavit claimed that the oral agreement was entered into in December 2002 in Bro-ward County. Balboa attested that she had resided in Florida from November 2002 to March 2003. She also agreed that Assante had given her money to assist her in a time of financial difficulty, but she maintained that she had not entered into a contract. Neither the affidavits nor the complaint state exactly when any monies passed from Assante to Balboa. Based upon the foregoing complaint and affidavits, the trial court denied the motion to dismiss for lack of personal jurisdiction without holding an evidentiary hearing.

Under Florida’s long-arm statute, a person is subject to the jurisdiction of this state through “[bjreaching a contract in this state by failing to perform acts required by the contract to be performed in this state.” See § 48.193(l)(g), Fla. Stat. In the absence of an express designation of a place of payment, there is a presumption that a debt is to be paid at the creditor’s place of business, and this presumption is sufficient to satisfy the language of section 48.193(l)(g). See Hartcourt Cos., Inc. v. Hogue, 817 So.2d 1067, 1070 (Fla. 5th DCA 2002).

A determination of whether a Florida court has personal jurisdiction over a non-resident involves a two-step inquiry. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of Florida’s long-arm statute, section 48.193. Id. If so, the next inquiry is whether sufficient “minimum contacts” are demonstrated to satisfy due process requirements. Id. That inquiry asks whether the non-resident’s “conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 287, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). “Both parts must be satisfied for a court to exercise personal jurisdiction over a non-resident defendant.” Am. Fin. Trading Corp. v. Bauer, 828 So.2d 1071, 1074 (Fla. 4th DCA 2002).

The Venetian Salami court explained the procedure for determining whether personal jurisdiction exists:

Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts. By itself, the filing of a motion to dismiss on grounds of lack of jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings. A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained.

554 So.2d at 502 (citations omitted). In most instances, the evidence presented by each side can be harmonized, and the trial court is in a position to make a determination based upon undisputed facts. However, if the evidence presented by the parties conflicts, the trial court must then hold a limited evidentiary hearing to resolve the jurisdictional issue. Id. at 503. “[A]n evi-dentiary hearing under Venetian Salami resolves the factual disputes necessary to determine jurisdiction pursuant to section 48.193 as well as whether minimum contacts exist to satisfy due process concerns.” Dev. Corp. of Palm Beach v. WBC Constr., L.L.C., 925 So.2d 1156, 1160 (Fla. 4th DCA 2006).

Although Balboa admits that she was in Florida during the time that Assante alleges the agreement was made, the affidavits conflict on whether the parties entered into a loan agreement. If she entered into the agreement, then section 48.193(l)(g) is satisfied. However, if the transaction was a gift, as she maintains, then the jurisdictional pre-requisite has not been met, and there is no other provision of the statute under which jurisdiction has been or could be alleged.

In many ways this case is similar to Venetian Salami. In that case, the plaintiff brought suit claiming that the defendant had entered into an oral contract with plaintiff to investigate collection of a debt in Florida, New York, and Canada, and defendant had failed to pay according to the agreement. The non-resident defendant moved to dismiss for lack of personal jurisdiction, denying that any contract existed or that it had agreed to make any payment to the plaintiff in Florida. The supreme court, noting that the affidavits were conflicting on the jurisdictional issue of the existence of a contract, ordered the trial court to conduct a limited evidentiary hearing on the issue. Venetian Salami, 554 So.2d at 502. See also Fry v. Walchle Inv. Group, Inc., 712 So.2d 471 (Fla. 1st DCA 1998) (limited evidentiary hearing required where plaintiff sued on oral contract and non-resident defendant denied entering into contract).

We thus reverse and remand for the trial court to conduct a limited evidentiary hearing to determine the jurisdictional issues.

POLEN and HAZOURI, JJ., concur.


text:
    FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellant, v. William J. GREEN, Appellee.
    No. 4D06-3596.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Carri S. Leininger of Williams, Leininger & Cosby, P.A., West Palm Beach, for appellant.
    Howard K. Heims and Virginia P. Sherlock of Littman, Sherlock & Heims, P.A., Stuart, for appellee.
   PER CURIAM.

Appellant, Florida Department of Environmental Protection (FDEP), appeals the entry of a final judgment for attorney’s fees and costs pursuant to section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442, based on a proposal for settlement that was rejected by FDEP. The final judgment for attorney’s fees and costs was entered following a jury verdict in favor of Appellee, William J. Green (Green). We reverse.

In Florida Department of Environmental Protection v. Green, 951 So.2d 918 (Fla. 4th DCA 2007), this Court held that the trial court erred in denying FDEP’s motion for summary judgment. In that appeal, this Court reversed the final judgment entered on the jury verdict and remanded the case for entry of a final judgment in favor of FDEP. Accordingly, we reverse and remand this appeal with directions to vacate the judgment for attorney’s fees and costs in favor of Green.

Reversed and Remanded with Directions.

WARNER, KLEIN and HAZOURI, JJ., concur.


text:
    Ralph GROSS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3624.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Ralph Gross, Moore Haven, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse for resentencing on count 31. The maximum sentence appellant may receive on that count is 13.4 months.

POLEN, GROSS and TAYLOR, JJ., concur.


text:
    Abedelkader DAWUDI, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-199.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Abedelkader Dawudi, Panama City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant, Abedelkader Dawudi, appeals the trial court’s order denying his motion for relief pursuant to Florida Rule of Criminal Procedure 3.850. One of the claims raised, claim four, is that his plea was involuntary because his attorney gave affirmative misadvice. We find that the record before us does not refute Dawudi’s claim that he was affirmatively misadvised as to this issue. Accordingly, we remand for the trial court to conduct an evidentia-ry hearing on this claim only. We affirm as to Dawudi’s remaining claims.

Affirmed In Part, Reversed In Part, And Remanded.

GUNTHER, FARMER and MAY, JJ„ concur.


text:
    Michael HARDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-568.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Michael Hardy, Jasper, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant, Michael Hardy, appeals the summary denial of his motion for post-conviction relief. On appeal, Hardy claims the lower court erred by failing to rule on his “Motion to Dismiss or Withdraw 3.850” prior to ruling on the merits of the motion for postconviction relief. We agree, and the State has properly conceded error. Pursuant to Washington v. State, 937 So.2d 271 (Fla. 4th DCA 2006), and Hampton v. State, 949 So.2d 1197 (Fla. 4th DCA 2007), the lower court should have allowed Hardy to withdraw his rule 3.850 motion prior to a ruling on the merits, thus preserving his right to re-file the motion at a later date within the two-year period of limitations. Fla. R.Crim. P. 3.850(b). Therefore, we reverse and remand so that the lower court can grant the motion to dismiss, without prejudice, thus allowing Hardy to re-file a rule 3.850 motion within the time remaining under rule 3.850(b).

Reversed and Remanded.

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


author: CANADY, Judge.

text:
    Albert LEE, Jr., as personal representative of the estate of Albert Lee, Sr., Appellant, v. CSX TRANSPORTATION, INC., Seaboard Coast Line Railroad Company, and Seaboard System Railroad, Inc., Appellees.
    No. 2D06-1416.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.

      Hunter W. Carroll, David P. Carlton, and Kenneth Hancock of Carlton & Carlton, Lake Suzy; Archie Lamb of The Lamb Firm, LLC, Birmingham, AL; Christopher LoPalo of Napoli Bern Ripka, LLP, New York, NY; and E. Kirk Wood of The Wood Law Firm, Birmingham, AL, for Appellant.
    A. Lamar Matthews, Jr., and Arthur S. Hardy of Matthews Eastmoore Hardy Crauwels & Garcia, P.A., Sarasota; Donald D. Anderson of McGuirewoods, LLP, Jacksonville, and Scott L. Winkelman and Beth M. Kramer of Crowell & Moring, LLP, Washington, D.C., for Appellees.
   CANADY, Judge.

The plaintiff in a wrongful death action, Albert Lee, Jr., as personal representative of the estate of Albert Lee, Sr., appeals the final summary judgment entered in favor of the defendant, CSX Transportation, Inc. The action against CSX was predicated on allegations that the cancer which took the decedent’s life was caused by toxic environmental contamination released from a coal tar creosote plant owned by CSX in the Nocatee-Hull area of DeSoto County. The summary judgment was based on the trial court’s conclusion that the undisputed facts established that the action “was untimely filed” under Florida’s Wrongful Death Act.

Section 95.11(4)(d), Florida Statutes (1995), establishes a two-year limitations period with respect to wrongful death actions. “[A] cause of action for wrongful death accrues on the date of death.” Fulton County Adm’r v. Sullivan, 753 So.2d 549, 552 (Fla.1999).

Here, it is undisputed that the decedent died more than four years before the plaintiff filed suit. The trial court relied on that undisputed fact to support the legal conclusion that the action against CSX was barred by the two-year statute of limitations. The plaintiff, however, argued before the trial court — as he argues on appeal — that the Florida law with respect to the accrual of the plaintiffs action is preempted by a federal statute, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which contains a provision modifying the accrual date with respect to actions for personal injury caused by hazardous substances.

CERCLA establishes a “federally required commencement date” (FRCD) which preempts any earlier accrual date applicable under state law. 42 U.S.C. § 9658 (1994). The FRCD is “the date the plaintiff knew (or reasonably should have known) that the personal injury ... [was] caused or contributed to by the hazardous substance or pollutant or contaminant concerned.” § 9658(b)(4)(A). The FRCD may be applied to an action “brought under State law for personal injury ... which [is] caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility.” § 9658(a)(1) (emphasis added).

The plaintiff contends that the FRCD is applicable to the wrongful death action against CSX and that the trial court therefore erred in relying on the accrual date applicable under Florida law to conclude that the action was untimely filed. CSX argues that the provisions of CERCLA establishing the FRCD do not apply to wrongful death actions. CSX asserts that there is a well-established distinction between wrongful death claims and personal injury claims and that the FRCD is only applicable to personal injury claims.

Accordingly, we must determine whether the reference in § 9658(a)(1) to actions “for personal injury” encompasses wrongful death claims. For the reasons we explain, we conclude that a wrongful death claim does not fall within the scope of the FRCD contained in CERCLA.

In considering the proper interpretation of the federal statutory provisions at issue in this case, we look first to the general principles guiding the interpretation of statutes. Given that the FRCD provision expressly operates as a federal preemption of state law, we also look to the particular principles that have been applied in interpreting the scope of federal statutory provisions preempting state law.

“Unless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary meaning.” BP Am. Prod. Co. v. Burton, — U.S. —, 127 S.Ct. 638, 643, 166 L.Ed.2d 494 (2006). “In order to determine the scope [of a statutory provision], we must examine the statute’s text in light of context, structure, and related statutory provisions.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 558, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). “A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory-text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 126 S.Ct. 1252, 1257, 163 L.Ed.2d 1079 (2006).

An element of the context of a statute is the broader legal context. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 71-72, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) (discussing “contextual approach” involving “evaluation] of the state of the law” when statutory provision was adopted). Thus, it is a “settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms.” United States v. Shabani, 513 U.S. 10, 13, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994).

[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.

Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

The interpretation of “a statutory provision that expressly pre-empts state law ... is informed by two presumptions about the nature of pre-emption.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 484-85, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (citations omitted). The first presumption is “ ‘that the historic police powers of the States [are] not to be superseded by [federal legislation] unless that was the clear and manifest purpose of Congress.’ ” Id. at 485, 116 S.Ct. 2240 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). This presumption applies whenever “Congress has ‘legislated ... in a field which the States have traditionally occupied.’ ” Id. (alteration in original) (quoting Rice, 331 U.S. at 230, 67 S.Ct. 1146). “[A] narrow interpretation” with respect to “the scope” of a preemptive statute’s “intended invalidation of state law” thus “is consistent with both federalism concerns and the historic primacy of’ the states with respect to fields traditionally occupied by the states. Id.; see also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) (stating that “presumption against pre-emption of state police power regulations ... reinforces the appropriateness of a narrow reading” of the scope of preemptive provisions); 505 U.S. at 531, 112 S.Ct. 2608 (Blackman, J., concurring in part) (“Our precedents do not allow us to infer a scope of pre-emption beyond that which clearly is mandated by Congress’ language.”).

The second presumption that informs the interpretation of an expressly preemptive statutory provision is that “ ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case.” Medtronic, Inc., 518 U.S. at 485, 116 S.Ct. 2240 (alteration in original) (quoting Retail Clerks Int’l Ass’n, Local 1625 v. Schermerhorn, 375 U.S. 96, 103, 84 S.Ct. 219, 11 L.Ed.2d 179 (1963)). The purpose of Congress “primarily is discerned from the language of the pre-emption statute and the ‘statutory framework’ surrounding it.” Id. at 486, 116 S.Ct. 2240 (quoting Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 111, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992) (Kennedy, J., concurring in part and concurring in judgment)). “Also relevant ... is the ‘structure and purpose of the statute as a whole.’ ” Id. (quoting Gade, 505 U.S. at 98, 112 S.Ct. 2374 (plurality opinion)).

In a certain sense, a wrongful death claim is undoubtedly a claim for personal injury. Death is the ultimate personal injury. To properly interpret the scope of the FRCD, however, we cannot consider the term personal injury in isolation from the broader legal context in which the term is used. In the provision of CERC-LA establishing the FRCD, when the Congress made reference to actions for personal injury, the Congress “borrow[ed][a] term[] of art” and “adoptfed] the cluster of ideas that [is] attached to” that “term[ ] of art.” Morissette, 342 U.S. at 263, 72 S.Ct. 240. The ordinary meaning of an “action ... for personal injury,” § 9658(a)(1), is the same as its meaning as a legal term of art. Thus, although a meaning of personal injury which encompasses wrongful death claims is within “the outer limits of [the] definitional possibilities,” Dolan, 126 S.Ct. at 1257, the common and long-standing distinction between personal injury claims and wrongful death claims compellingly points to a narrower meaning. And federalism concerns “reinforce!] the appropriateness of a narrow reading,” Cipollone, 505 U.S. at 518, 112 S.Ct. 2608, with respect to “the scope” of the FRCD’s “intended invalidation of state law,” Medtronic, Inc., 518 U.S. at 485, 116 S.Ct. 2240.

At common law, “personal tort actions die[d] with the person of either the plaintiff or the defendant,” and “the death of a human being was not regarded as giving rise to any cause of action ... on behalf of a living person who was injured by reason of the death.” Wes S. Malone, The Genesis of Wrongful Death, 17 Stan. L.Rev. 1043, 1044 (1965). Legislative enactments “designed to alter the common-law restriction on the transmission of tort claims or tort liability at death are commonly known as survival statutes.” Id. “[Legislation aimed at establishing a separate cause of action for the benefit of designated members of the family of a person whose life was wrongfully taken are usually referred to as wrongful death statutes.” Id.; see also Prosser and Keeton on Torts § 125A at 940-42, § 127 at 945-46 (5th ed.1984) (discussing origins of actions for wrongful death).

Actions for wrongful death are as a matter of history and current practice considered separate and distinct from actions for personal injury. As the Florida Supreme Court has recognized, a wrongful death statute is not intended “to preserve the right of action which the deceased had and might have maintained had he simply been injured and lived.” Ake v. Birnbaum, 156 Fla. 735, 25 So.2d 213, 221 (1945). The cause of action for wrongful death is “an entirely new cause of action” which is based on “an entirely new right” in enumerated survivors of the deceased. Id.

The historically based and commonly understood distinction between wrongful death claims and personal injury claims is reflected in various federal statutes which make explicit reference to wrongful death claims as distinct from personal injury claims. See 28 U.S.C. § 1411; 28 U.S.C. § 2672; 45 U.S.C. § 51; 46 U.S.C. § 30104. The distinction is similarly reflected in the case law references to the two types of claims. These abundant references in the case law make it clear that wrongful death claims are a separate and distinct category — not simply a subcategory of personal injury claims. See Florida Bar v. Went for It, Inc., 515 U.S. 618, 620, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (referring to Florida Bar Rule of Professional Conduct 4-7.4 regulating communication which “ ‘concerns an action for personal injury or wrongful death’ ”); Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 554, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994) (discussing availability of prejudgment “interest in personal injury and wrongful-death suits”); Van Dusen v. Barrack, 376 U.S. 612, 613, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (referring to “over 150 actions for personal injury and wrongful death” arising from crash of commercial airliner); At-chison, Topeka, & Santa Fe Ry. Co. v. Sowers, 213 U.S. 55, 69, 29 S.Ct. 397, 53 L.Ed. 695 (1909) (discussing statute that “refers to the common law or previous statutes of the territory governing actions for personal injuries or wrongful death”).

The plaintiff can point to nothing in the overall statutory scheme of CERC-LA which supports reading the reference to actions for personal injury as encompassing actions for wrongful death.

The remedial purpose underlying the enactment of the FRCD is not a basis for expanding the scope of the FRCD beyond the meaning supported by the long-established and commonly understood distinction between actions for personal injury and actions for wrongful death. This is especially true because the FRCD is a statutory provision which preempts state law within a field “traditionally occupied” by the states. Medtronic, Inc., 518 U.S. at 485, 116 S.Ct. 2240. In such circumstances, it is inappropriate “to infer a scope of pre-emption beyond that which clearly is mandated by Congress’ language.” Cipollone, 505 U.S. at 531, 112 S.Ct. 2608 (Blackman, J., concurring in part). The scope of the pre-emption goes no further than is required by “ ‘the clear and manifest purpose of Congress.’ ” Medtronic, Inc., 518 U.S. at 485, 116 S.Ct. 2240 (quoting Rice 331 U.S. at 230, 67 S.Ct. 1146).

The view we adopt here is inconsistent with the holding in Freier v. Westinghouse Electric Corp., 303 F.3d 176, 198-99 (2d Cir.2002), “that wrongful death claims under New York law were meant to be encompassed by” the FRCD. Although acknowledging that the reference in the FRCD provision to actions for personal injury “is not entirely free of ambiguity,” id. at 198, the court concluded in Freier that there was “no valid basis for inferring that Congress meant § 9658 to distinguish between an action for wrongful death ... and an action brought by a living victim,” id. at 199. In support of this conclusion, the court reasoned that it “was not Congress’s intent” that a “company whose handling of hazardous wastes caused personal injury would be financially better off if its victim died.” Id. at 200. The court did not make reference to the principles applicable to interpreting the scope of federal statutes preempting state law within fields traditionally occupied by the states.

A strong policy argument can no doubt be made in favor of including wrongful death claims within the scope of the FRCD. But this question of policy was for the Congress to decide. If the Congress intended to adopt a policy of providing the same protection for wrongful death claims as for personal injury claims, the addition of two words — “wrongful death” — to the statute would have been sufficient to make that purpose “ ‘clear and manifest.’ ” Medtronic, Inc., 518 U.S. at 485, 116 S.Ct. 2240 (quoting Rice, 331 U.S. at 230, 67 S.Ct. 1146).

Congress instead chose to use a term of art — a term with a well-established meaning in the law and common understanding — that does not include wrongful death claims within the scope of the FRCD. It is not necessary to infer the exclusion of wrongful death claims from the coverage of the FRCD. That exclusion is entailed by the ordinary meaning of the language the Congress chose to employ in the statute. Given the distinct — albeit related — purposes served by personal injury actions and wrongful death actions, there is nothing irrational about the policy choice reflected in the statutory text by which we are bound.

The judgment in favor of CSX is therefore affirmed.

Affirmed.

DAVIS, J., and SULLIVAN, IRENE H., Associate Judge, Concur.

      . § 768.16-.27, Fla. Stat. (1995).

      . The second presumption requires that the first presumption not be employed as a basis for "imposing the narrowest possible construction on preemptive language when read in isolation.” Omega World Travel, Inc. v. Mummagraphics, Inc., 469 F.3d 348, 352 (4th Cir.2006).


text:
    Rose M. INGERMAN, etc., Appellant, v. Rebecca Frances POOL, Appellee.
    No. 5D06-706.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.
    Michael A. Rundid and Theodore R. Do-ran of Doran, Wolfe, Ansay Rundid, P.A., Daytona Beach, for Appellant.
    Warren Kwavnick, of Cooney, Mattson, Lance, Blackburn, Richards O’Connor, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

AFFIRMED. See Purdy v. Gulf Breeze Enters., 403 So.2d 1325, 1331 (Fla.1981) (holding that “[t]he extent to which parties may examine prospective jurors on voir dire lies within the trial judge’s discretion”).

THOMPSON, SAWAYA and LAWSON, JJ., concur.


author: GRIFFIN, J.

text:
    Luz MICHAILOWSKI, Appellant, v. Thomas McVICKER, Appellee.
    No. 5D06-1290.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.
    Luz Michailowski, Weeki Wachee, pro se.
    James R. Jones, Jr., Spring Hill, for Appellee.
   GRIFFIN, J.

We find no error in the trial court’s finding of contempt for appellant’s failure to comply with the final judgment. We agree with appellant, however, that the portion of the order awarding attorney’s fees was error because there are no findings in the order to support the basis for entitlement or the amount. See, e.g., Beck v. Beck, 852 So.2d 934 (Fla. 2d DCA 2003); Saporito v. Saporito, 831 So.2d 697 (Fla. 5th DCA 2002); Maas v. Maas, 541 So.2d 160 (Fla. 2d DCA 1989).

AFFIRMED in part; REVERSED in part.

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


author: KELLY, Judge.

text:
    Rashad JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2562.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Rashad Jones appeals from his conviction for grand theft. He challenges the sufficiency of the evidence for the grand theft charge, arguing that the State failed to prove the value of the stolen property. We agree that the testimony was insufficient to meet the State’s burden of proof and, therefore, reverse and remand for the trial court to reduce the grand theft to petit theft.

An essential element of third-degree grand theft is proof that the value of the stolen property is $300 or more at the time of the theft. § 812.014(2)(c)(l), Fla. Stat. (2005); Pickett v. State, 839 So.2d 860, 861 (Fla. 2d DCA 2003). “Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l), Fla. Stat. (2005). Absent direct testimony of the market value of the property, the State can show value through evidence of the original market cost, the manner in which the item was used, its general condition and quality, and the percentage of depreciation since its purchase. Pickett, 839 So.2d at 861-62.

The victim testified that his truck had been broken into and that a telephone, some audiovisual and microphone cables, and approximately ten CDs had been taken. When asked the fair market value of the stolen telephone and cables he stated, “[t]hree to four hundred dollar (sic) is my best guess.” Further questioning revealed that his “best guess” was based on the fact that his employer, who owned the telephone and the cables, kept his last paycheck of $400 to replace the lost equipment. The victim also stated that he paid between $142 and $200 for the stolen CDs.

Without more, neither a “best guess” as to replacement cost nor testimony establishing the original cost of stolen items suffice to prove fair market value. See id. (reversing the conviction for grand theft where the State only showed the purchase price for the stolen items and no other evidence of value was introduced); Toler v. State, 779 So.2d 594 (Fla. 2d DCA 2001) (holding that testimony that stolen property was worth “roughly” $300 was insufficient); Gilbert v. State, 817 So.2d 980 (Fla. 4th DCA 2002) (holding that evidence was insufficient where the owner guessed the value of her stolen VCR to be “like” $100).

Accordingly, we reduce Jones’s conviction for grand theft to petit theft and remand this case to the trial court for resentencing.

Reversed.

VILLANTI and LaROSE, JJ., Concur.


author: STRINGER, Judge. ISOM, CLAUDIA R., Associate Judge,

text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. Gregg FISHER and Carol J. Fisher, Appellees.
    No. 2D05-5643.
    District Court of Appeal of Florida, Second District.
    June 27, 2007.

      Pamela S. Leslie, General Counsel, and Gregory G. Costas, Assistant General Counsel, Tallahassee, for Appellant.
    Raymond T. Elligett, Jr., of Schropp, Buell & Elligett, P.A., Tampa; and Marc I. Sachs and D. Tobyn DeYoung of Sachs & DeYoung, P.A., Tampa, for Appellees.
   BY ORDER OF THE COURT:

The Appellees’ motion for rehearing is denied. A single member of the panel dissents, with opinion, from the denial of the motion for rehearing. Accordingly, the opinion dated July 14, 2006, is withdrawn and the attached opinion that includes the dissenting opinion to the denial of the motion for rehearing is substituted for that opinion. No further motions for rehearing will be entertained in this appeal. The Appellees’ motion for rehearing en banc and motion for certification are denied.

STRINGER, Judge.

The Department of Transportation appeals from a final summary judgment entered against it and in favor of the Fishers in this inverse condemnation case concerning property along U.S. 19 in Clearwater. Because the trial court erred in finding that the Fishers’ access to their property has been “substantially diminished,” we reverse and remand for entry of judgment in favor of the Department.

The facts in this case are essentially undisputed. The Department is currently engaged in ongoing reconstruction of U.S. 19 through Pinellas County. As part of that construction, portions of U.S. 19 are being elevated. Along these elevated portions, the Department is constructing frontage roads to provide access to businesses and residences. Thus, many businesses which used to abut the main travel lanes of U.S. 19 now abut frontage roads. The Fishers own one such business, the Coachman Car Wash. Before construction began, drivers could access the Fishers’ car wash directly from U.S. 19. Postcon-struction, drivers must use the frontage road to access the car wash from U.S. 19.

During the course of the construction, the Fishers brought an inverse condemnation action against the Department, contending that they were entitled to compensation because the Department had “taken” the access to their property. The Fishers admitted that none of their property had been physically taken by the Department. Instead, the question was whether the placement of the property on a frontage road resulted in a taking of the Fishers’ access to their property. On cross-motions for summary judgment, the trial court found that a taking had occurred, and the Department appealed.

Because none of the Fishers’ property was physically taken, the only issue in this case is whether the Department’s activities on its own property have resulted in a compensable taking of the Fishers’ access to their property. In determining whether access has been “taken,” courts must consider the following principles:

There is a right to be compensated through inverse condemnation when governmental action causes a substantial loss of access to one’s property even though there is no physical appropriation of the property itself. It is not necessary that there be a complete loss of access to the property. However, the fact that a portion or even all of one’s access to an abutting road is destroyed does not constitute a taking unless, when considered in light of the remaining access to the property, it can be said that the property owner’s right of access was substantially diminished. The loss of the most convenient access is not compensable where other suitable access continues to exist. A taking has not occurred when governmental action causes the flow of traffic on an abutting road to be diminished. The extent of access which remains after a taking is properly considered in determining the amount of the compensation.

Palm Beach County v. Tessler, 538 So.2d 846, 849 (Fla.1989) (emphasis added). Because a property owner has no right to a specific level of traffic flow, see State, Dep’t of Transp. v. Stubbs, 285 So.2d 1, 4 (Fla.1973), the question of whether access has been diminished or destroyed must focus on physical access to the property itself— not the amount of traffic that can or will pass by the property postconstruction.

Considering these general principles, it is clear that when governmental action actually destroys all physical access to the property from a particular road, the loss of access is compensable. See, e.g., Tessler, 538 So.2d at 850 (affirming award of compensation because the property owner’s access to Palmetto Park Road was completely destroyed by the construction of a retaining wall between the road and their property). It is also clear that when the government physically appropriates some portion of a property owner’s land, any diminished access to the property may be considered as part of the severance damages owed for the reduced value of the remainder of the land. Id. at 849. However, in the absence of a physical taking of land, mere circuity of access is not compensable unless the remaining access to the property is “substantially diminished.” Id.; see also Rubano v. Dep’t of Transp., 656 So.2d 1264, 1269 n. 3 (Fla.1995) (“roadway abandonment, construction, or realignment which results in inconvenience or mere circuity of access to abutting landowners does not give rise to a compensable injury”); State, Dep’t of Transp. v. Weggies Banana Boat, 576 So.2d 722, 724 (Fla. 2d DCA 1990) (“any decrease in visibility or increased circuity of access Weggies suffered as a result of the overall design of the project is not compensable”); State, Dep’t of Transp. v. R.W. Anderson, Inc., 744 So.2d 1098, 1102 (Fla. 1st DCA 1999) (reversing award of compensation because, at most, “one must now travel a less convenient route from the newly constructed SR 79 to Anderson’s property”).

In an inverse condemnation action such as this one, the trial court makes both findings of fact and conclusions of law. “As a fact finder, the judge resolves all conflicts in the evidence. Based upon the facts as so determined, the judge then decides as a matter of law whether the landowner has incurred a substantial loss of access by reason of the governmental activity.” Tessler, 538 So.2d at 850; see also USA Independence Mobilehome Sales, Inc. v. City of Lake City, 908 So.2d 1151, 1154 (Fla. 1st DCA 2005). Thus, the trial court’s factual findings are afforded deference, but its application of the facts to the law, i.e., its determination that a given set of facts constitute a substantial diminution of access, is reviewed de novo. USA Independence Mobilehome Sales, 908 So.2d at 1154.

In this case, the facts show that the Fishers’ car wash previously abutted U.S. 19 north of its intersection with N.E. Coachman Road. Before construction began, the Fishers had a driveway that led directly from U.S. 19 to their car wash. Drivers heading north on U.S. 19 could turn right into the driveway. Drivers heading south on U.S. 19 could turn left into the driveway through a median cut. The Fishers also had both eastbound and westbound access to their car wash from N.E. Coachman.

After the U.S. 19 construction was completed, access to and from the Fishers’ car wash from N.E. Coachman remained the same. However, where the Fishers previously had a driveway opening onto U.S. 19, the Fishers now have a driveway that leads to a one-way northbound frontage road. Drivers heading north on U.S. 19 now exit before N.E. Coachman, follow the frontage road, and turn right into the car wash. Other than requiring drivers to exit the main lanes of U.S. 19, this new traffic pattern does not make drivers travel a new or longer path. Rather, northbound drivers travel the same distance on the new frontage road that they used to travel on U.S. 19 and make the same right-hand turn into the driveway. To leave the car wash and head north, drivers make a right-hand turn back onto the frontage road and follow it to the on-ramp just north of Sunset Point Road. Again, the new traffic pattern does not make northbound drivers travel any new or longer path, and they travel the same distance on the frontage road that they previously traveled on U.S. 19.

Drivers traveling south on U.S. 19 do have a somewhat more circuitous path. They must now exit U.S. 19 north of the car wash at Sunset Point Road, travel south on the frontage road to N.E. Coachman, where they can make a protected U-turn and travel back north to the car wash. According to the Fishers, this new route is .61 miles in length. To return to traveling south, drivers must travel north on the frontage road to Sunset Point Road, where they make a protected U-turn and merge back up onto U.S. 19. According to the Fishers, this new route is .96 miles in length.

In light of these undisputed facts, we find that physical access to the Fishers’ property has not been “substantially diminished” by the reconstruction of U.S. 19. Access to east and westbound N.E. Coachman is completely unaffected. Access to northbound U.S. 19 is affected only in that drivers must use a frontage road for a portion of their travel. Only access to southbound U.S. 19 is affected to any appreciable degree. However, the change in access from southbound U.S. 19 is insuffi-dent to support a finding that the Fishers’ right of access to their property has been “substantially diminished.” Rather, at best, the Fishers have lost their most convenient means of access. Because other suitable access continues to exist, the Fishers’ loss of their most convenient means of access is not compensable under the clear holding of Tessler.

The Fishers raise three arguments in support of the trial court’s finding that their access was “substantially diminished.” First, the Fishers rely on what they claim are comparable U.S. 19 cases in which this court has allegedly affirmed awards of damages for loss of access. However, a review of these cases shows that they are not similar to the Fishers’ case. Both State, Department of Transportation v. ABS, Inc., 336 So.2d 1278 (Fla. 2d DCA 1976), and Weggies Banana Boat, 576 So.2d at 722, involved physical appropriations of property and claims for loss of access as an element of severance damages. The Fishers are not entitled to severance damages in this case because none of their property was taken by the Department.

The Fishers also direct this court to K-Mart Corp. v. State, Department of Transportation, 636 So.2d 131 (Fla. 2d DCA 1994); however, the issue in that case was whether K-Mart had standing as a lessee to be a party to a condemnation action, not whether any type of damages were proper. Moreover, the facts showed that the Department took a portion of K-Mart’s leased property for construction of a U.S. 19 overpass, which resulted in the loss of K-Mart’s driveways, parking, and access to U.S. 19. Thus, unlike the Fishers, K-Mart had a claim for severance damages.

The Fishers also cite to State, Department of Transportation v. Kucik, 686 So.2d 11 (Fla. 2d DCA 1996), and Department of Transportation v. Crawford, 907 So.2d 525 (Fla. 2d DCA 2005) (table), as cases that support their position. However, Crawford was a per curiam affirmance without opinion, and thus it does not constitute authority for any proposition. Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So.2d 310, 311 (Fla.1983) (holding that per curiam affirmance without a written opinion has no prece-dential value). Further, our review of the briefs in that case shows that the Department took a portion of Crawford’s property, thus entitling Crawford to severance damages for any loss in value resulting from the Department’s taking of a portion of the property. As for Kucik, it is a citation opinion to State, Department of Transportation v. Kreider, 658 So.2d 548 (Fla. 4th DCA 1995). There is no discussion of any facts, and it is impossible to determine whether any award was actually made for loss of access and, if so, on what basis. Accordingly, contrary to the Fishers’ assertions, none of these cases involve “comparable” claims solely for loss of access.

Second, the Fishers rely on Tessler and Kreider for the proposition that construction which results in a more circuitous route to the property is compensable, and they contend that their situation is even more dire than that in either Tessler or Kreider. We disagree. In Tessler, the property owner’s access to Palmetto Park Road was completely destroyed. 538 So.2d at 850. No frontage road was built, and where the owner previously had access to both Palmetto Park Road and Spanish Trail, she now had access only to Spanish Trail. Tessler would be binding authority in this case only if the Department had completely severed all of the Fishers’ access to U.S. 19 and had failed to provide a frontage road, thus leaving the Fishers with access only from N.E. Coachman. Because the Department did not do so, Tessler is not controlling.

Kreider is a closer case, but distinguishable nevertheless. Kreider owned property along State Road 84. 658 So.2d at 549. Prior to construction, eastbound traffic could make a right turn directly into Kreider’s property. Westbound traffic had to pass Kreider’s property and make a U-turn a short distance away. Postcon-struction, westbound traffic had to exit onto the service road, make a U-turn under State Road 84, and then travel back east to Kreider’s property. Eastbound traffic had to pass Kreider’s property, make a U-turn from the left lane onto westbound State Road 84, go back past Kreider’s property and exit onto a service road, make another U-turn on the service road back to eastbound State Road 84, and then travel back to Kreider’s property. Id. at 549 n. 1. The court found on those facts that Kreider’s access to his property had been substantially diminished.

Here, the Fishers’ access from reconstructed southbound U.S. 19 is comparable to Kreider’s westbound postconstruction access from State Road 84. However, unlike the eastbound traffic in Kreider, which was significantly diverted from its former path by the reconstruction, northbound traffic in this case is essentially unaffected by the changes in U.S. 19. While drivers must exit U.S. 19 onto the frontage road, they need not travel any long and circuitous path. Rather, they simply continue to travel north on the frontage road, rather than north on U.S. 19, until they reach the car wash. Further, there is no indication in Kreider that Kreider had any other access to his property, whereas here the Fishers have completely unaffected access from N.E. Coachman. Thus, the undisputed facts presented by the Fishers do not establish that their situation is like Kreider’s, and the difference in the facts warrants the different result.

We agree with the Department that the facts of this case are actually most like those in State, Department of Transportation v. S.W. Anderson, Inc., 744 So.2d 1098 (Fla. 1st DCA 1999). S.W. Anderson originally had direct access to its property by way of an easement to State Road 79. Drivers traveling in either direction could turn directly off of State Road 79 into one of Anderson’s driveways. Id. at 1100. The Department then elevated and realigned State Road 79 and made old State Road 79 a service road that dead-ended at a fishing pier. As a result, drivers were forced to access Anderson’s property from State Road 79 by way of either of two routes, one of which required a new route of .42 miles and the other of which required a new route of .75 miles. Id. at 1100. In rejecting Anderson’s claim for damages for loss of access, the court stated:

Anderson has lost none of its purported abutter’s access to preexisting SR 79. Of particular note, no actions of appellant in constructing the bridge and partially realigning SR 79 have destroyed, or even diminished, Anderson’s access. Instead, one must now travel a less convenient route from the newly constructed SR 79 to Anderson’s property.

Id. at 1102.

Here, like in Anderson, the Fishers have not shown that the Department’s actions destroyed or diminished access to their property. Rather, they have shown only that drivers must now travel a less convenient route from the newly constructed U.S. 19 to their property. Thus, like in Anderson, the Fishers have failed to show that they have suffered a compensable loss of access.

Third, the Fishers contend that their placement on a frontage road constitutes a taking of access as a matter of law. This argument arises from a misreading of two supreme court cases. In Anhoco Corp. v. Dade County, 144 So.2d 793, 798 (Fla.1962), the evidence showed that the Department had constructed ditches that completely severed access to Anhoco’s property from the abutting road. The court found that completion of a frontage road restored access to the abutting road. Id. The court then held that Anhoco was entitled to damages for the period of time that access had been denied, which was measured from when the ditches were constructed until the frontage road was completed. Thus, while the Fishers correctly point out that Anhoco was awarded damages for lack of access, this award was not due to Anhoco’s placement on a frontage road. Rather, it was due to the lack of access caused when the Department completely severed all access to the property before the frontage road was built.

Similarly, in Rubano v. Department of Transportation, 656 So.2d 1264, 1265 (Fla.1995), the issue was whether there had been a compensable taking of access during reconstruction, which involved the temporary construction of a service road. The court held that placing Rubano’s property on a service road did not constitute a compensable taking. Id. The court held that Rubano was never denied access to State Road 84 and did not lose anything other than his most convenient means of access because “DOT purposefully constructed the temporary service road to provide the properties with continuing access to SR 84.” Id. at 1269. Thus, neither Anhoco nor Rubano hold that merely placing a property on a frontage road results in access being “substantially diminished” as a matter of law.

In this case, our de novo review of the question of whether the Fishers’ right of access to their property was “substantially diminished” by the reconstruction of U.S. 19 shows that it was not. While southbound traffic on U.S. 19 may face a slightly longer route to reach the property, traffic from all other directions is virtually unaffected. Because the physical access to the Fishers’ property has not been “substantially diminished,” the Fishers have not suffered a compensable taking. While we are not unsympathetic to the Fishers’ plight, we must reverse and remand for entry of judgment in favor of the Department.

Reversed and remanded for further proceedings.

SALCINES, J., and ISOM, CLAUDIA R., Associate Judge, Concur.

ON REHEARING

STRINGER and SALCINES, JJ., deny appellees’ motion for rehearing.

ISOM, CLAUDIA R., Associate Judge,

Dissenting.

I respectfully dissent from the denial of the Fishers’ motion for rehearing. I would grant rehearing and affirm the trial court’s grant of summary judgment. Based on the undisputed facts, this case involves the destruction of the Fishers’ sole direct access to U.S. 19 due to the reconstruction of U.S. 19 into a high-speed, elevated, limited-access facility served by Texas U-turns and one-way frontage roads. The trial court’s decision that then-property abutted U.S. 19 was not appealed by DOT. Therefore, this case is controlled by Palm Beach County v. Tessler, 538 So.2d 846 (Fla.1989); Anhoco Corp. v. Dade County, 144 So.2d 793, 797 (Fla.1962); State Road Department of Florida v. McCaffrey, 229 So.2d 668 (Fla. 2d DCA 1969); cf. Pinellas County v. Austin, 323 So.2d 6 (Fla. 2d DCA 1975); Department of Transportation v. ABS, Inc., 336 So.2d 1278 (Fla. 2d DCA 1976); and Department of Transportation v. Kreider, 658 So.2d 548 (Fla. 4th DCA 1995). Accordingly, I would grant rehearing and affirm the summary judgment.

      . The record contains evidence that, following reconstruction, the controlled access designation of U.S. 19 will be more restrictive than that of the S.R. 84 project that was the subject of the Kreider decision. The Fishers’ U.S. 19 driveway was the primary point of entry for individuals accessing the property. Ninety percent of the traffic used the U.S. 19 entrance rather than the secondary driveway which was accessed through use of a private road easement connecting to Coachman Road near its intersection with U.S. 19. After reconstruction, the Fishers’ direct access will be destroyed and their property will be located adjacent to a one-way service road and behind a twenty-foot high wall. That wall will separate their property from U.S. 19. Their present direct access to U.S. 19 will be replaced by a circuitous system of one-way service roads. The Fishers' property will not be visible to northbound motorists at the exit closest to their property. If a northbound motorist were to miss that exit, she/he must continue north to Sunset Point Road to exit, then exit onto the northbound frontage road, travel north, make a U-turn under the Sunset Point Road overpass, drive south to the N.E. Coachman Road underpass, make another U-turn and travel back north on the newly constructed northbound frontage road with a net additional distance of 5,400 feet. The increase in distance for northbound ingress post construction will be from 0.41-1.03 miles and for southbound ingress will be 0.61 miles.