author: MONACO, J.

text:
    KC LEISURE, INC., Appellant, v. Lawrence HABER, et al., Appellee.
    No. 5D07-907.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2008.

      Eric A. Lanigan and Roddy B. Lanigan of Lanigan & Lanigan, PL, Winter Park, for Appellant.
    Mark 0. Cooper, of O’Neill, Liebman & Cooper, P.A., Orlando, for Appellee.
   MONACO, J.

The appellant, KC Leisure, Inc., appeals the final order of the trial court dismissing with prejudice its fourth amended complaint against the appellee, Lawrence Haber. Because we conclude that the complaint stated causes of action against Mr. Haber for violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), and for fraudulent inducement, we reverse.

This dispute involves the sale of a franchise by Relay Transportation, Inc., to KC Leisure. The franchise authorized KC Leisure to open a retail outlet in the Central Florida area for the sale and rental of electric vehicles. KC Leisure alleged that Mr. Haber was a stockholder and officer of Relay Transportation.

Basically, KC Leisure asserts in its complaint that Mr. Haber and the other defendants, while acting in their capacities as corporate officers, directors and shareholders of Relay Transportation, communicated with each other both verbally and in writing about the disclosure requirements applicable to the sale of franchises to prospective purchasers. Mr. Haber is specifically alleged to have advised the other defendants in this connection and imparted information to them concerning the liabilities and penalties that might result from a failure to comply with the requirements. According to the complaint, however, Mr. Haber and the other defendants decided not to provide any of the disclosures mandated by state and federal authorities, despite knowing that the disclosures were required by law. KC Leisure further alleged that Mr. Haber and his co-defendants devised a scheme to provide KC Leisure with a “license agreement,” rather than a franchise agreement, so that they could obtain a $50,000 franchise fee from KC Leisure before actually creating and handing over a Uniform Financial Offering Circular and franchise agreement.

KC Leisure purportedly entered into the license agreement and paid the $50,000 franchise fee to Relay Transportation, even though none of the disclosures had been made. KC Leisure then alleges that it obtained and renovated retail space at its own expense and began operation of the franchise. Eleven months later it sought to rescind the agreement by written notice to Relay Transportation and Mr. Haber based on the failure of Relay Transportation to provide the disclosures in a timely fashion and on the fact that certain misinformation was contained within them once they were belatedly provided. When no relief was forthcoming, KC Leisure brought suit.

The two-count complaint was not drafted with perfect clarity. In the first count, KC Leisure sought damages for violation of the FDUTPA against Mr. Haber and others. It alleged that the intentional failure to provide the disclosures set forth in 16 C.F.R. § 436.1 constituted an unfair or deceptive act in violation of the Federal Trade Commission Act, 15 U.S.C. § 45(a)(1). The foundation for the claim is the language found in section 501.203(3), Florida Statutes (2005), that states, among other things, that the term “violation of this part” means any violation of the FDUTPA and may be based on rules promulgated pursuant to the Federal Trade Commission Act or the standards of “unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts.”

The trial court dismissed count I with prejudice saying first that:

[Cjhapter 559.801 et seq. (2005), Florida’s Sale of Business Opportunities Act (“The Act”) “defines a ‘business opportunity’ as the sale or lease of products, equipment, supplies or services sold to a purchaser to enable him to start a business under certain defined circumstances; however, the statute expressly excludes the sale of an ongoing business.” Batlemento v. Dove Fountain, Inc., 593 So.2d 234 (Fla. 5th DCA 1991).

In further reliance on the Batlemento case, the trial court then held that the FDUTPA only imposes liability on “sellers and not their shareholders or individuals who act for the seller.” Thus, the trial court eliminated the statutory basis for the appellant’s FDUTPA claim. In doing so, the trial court erred.

The FDUTPA makes unlawful “unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204, Fla. Stat. (2005). As noted above, a FDUTPA claim may be based on rules promulgated pursuant to the Federal Trade Commission Act or the standards of “unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts.” § 501.203(3), Fla. Stat. (2005). Thus, if the claims of KC Leisure fall within these parameters, a cause of action may be stated against appellees.

The purpose of the FDUTPA is “[t]o protect the consuming public and legitimate business enterprises from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce.” § 501.202(2), Fla. Stat. (2005); see also Citibank (S.D.) N.A. v. Nat’l Arbitration Council, Inc., 2006 WL 2691528 (M.D.Fla. Sept. 19, 2006). FDUTPA makes unlawful “unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of trade or commerce.” § 501.204, Fla. Stat. (2005); see also Citibank. Instead of defining specific elements for an action under the statute, it directs the courts of Florida to give “due consideration and great weight ... to the interpretations of the Federal Trade Commission Act, 15 U.S.C., section 45(a)(1).” § 501.204(2), Fla. Stat. (2005); see also Romano v. Motorola, Inc., 2007 WL 4199781 (S.D.Fla. Nov. 26, 2007); Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla. 1st DCA 2000), review denied 794 So.2d 605 (Fla.2001).

The Federal Trade Commission, pursuant to the Federal Trade Commission Act, 15 U.S.C. §§ 41-58, promulgated a rule known as the Franchise Rule, that concerns disclosure requirements and prohibitions associated with franchising in 16 C.F.R. § 486.1. The Franchise Rule requires a franchisor to provide prospective franchisees with a complete and accurate basic disclosure document containing twenty categories of information. 16 C.F.R. § 436.1(a). The rule also requires a franchisor to provide prospective franchisees with an earnings claims document containing substantiating information with respect to earnings or profit representations made by the franchisor. 16 C.F.R. §§ 436.1(b)(3), (c)(3). Finally, the failure of a franchisor to comply with these rules in connection with the manner that financial projections are presented to prospective purchasers, and in connection with the provision of certain required disclosures to purchasers, are considered to be unfair and deceptive trade practices under section 5 of the Federal Trade Commission Act. See 15 U.S.C. § 45(a).

Although not specifically identified in the statute, there are basically three elements that are required to be alleged to establish a claim pursuant to the FDUTPA: 1) a deceptive act or unfair practice; 2) causation; and 3) actual damages. Bookworld Trade, Inc. v. Daughters of St. Paul, Inc., 2007 WL 4124351, — F.Supp.2d-(M.D.Fla. Nov. 16, 2007). The claim made by KC Leisure in the first count of its Fourth Amended Complaint is that Relay Transportation violated the Franchise Rule by failing to give its prospective franchisee, KC Leisure, the requisite disclosure documents, and by providing it with an inaccurate and misleading financial projection. It further alleges that as a direct and proximate result of the deceptive and unfair trade practices KC Leisure, in reliance on this misinformation, was induced to pay $50,000 to purchase a franchise from Relay Transportation, and incurred other expenses associated with the startup of a business, and was, accordingly, damaged. This appears to satisfy all of the elements necessary to state a cause of action under the FDUTPA.

The trial court in dismissing the complaint drew no conclusions concerning whether the Franchise Rule was violated by Relay Transportation. Rather, when it granted the dismissal with prejudice, it found that the FDUTPA only applies to the corporate seller, Relay Transportation, and not to its individual shareholders or officers, such as Mr. Haber. Indeed, Mr. Haber continues to argue this position, albeit without citation to any case authorities.

The case law demonstrates, however, that under the Federal Trade Commission Act an individual may be liable for corporate practices in violation of that statute once corporate liability is established. In order to prove individual liability it is necessary to show that an individual defendant actively participated in or had some measure of control over the corporation’s deceptive practices. See, e.g., F.T.C. v. Standard Educ. Soc’y, 302 U.S. 112, 58 S.Ct. 113, 82 L.Ed. 141 (1937); F.T.C. v. GEM Merchandising Corp., 87 F.3d 466, 470 (11th Cir.1996); F.T.C. v. Amy Travel Sen., Inc., 875 F.2d 564, 573 (7th. Cir.1989). In addition, to hold a corporate officer liable for monetary restitution, a plaintiff is also required to establish that the defendant had or should have had knowledge or awareness of the misrepresentations. Amy Travel Serv., 875 F.2d at 574.

Similarly, it has long been the law in Florida that in order to proceed against an individual using a FDUTPA violation theory an aggrieved party must allege that the individual was a direct participant in the improper dealings. See Anden v. Litinsky, 472 So.2d 825 (Fla. 4th DCA 1985); General Dev. Corp. v. Catlin, 139 So.2d 901 (Fla. 3d DCA 1962); see also Rollins, Inc. v. Heller, 454 So.2d 580 (Fla. 3d DCA 1984) (noting that it is unnecessary to pierce the corporate veil because the individual defendant was a direct participant in the dealings), review denied, 461 So.2d 114 (Fla.1985). More recently in Aboujaoude v. Poinciana Development Company II, 509 F.Supp.2d 1266, (S.D.Fla.2007), the court commented:

FDUTPA makes unlawful “[u]nfair methods of competition or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1), Fla. Stat. (1981). In order to proceed against an individual for a violation of FDUTPA, a plaintiff must allege that the individual was a direct participant in the dealings.

Id. at 1276-77 (citations omitted).

Thus, once the liability of Relay Transportation is established, Mr. Haber is properly named as a defendant, provided it is alleged that he was a direct participant in the actions that constituted a violation of the FDUTPA. As KC Leisure has, indeed, made the requisite allegations, the count states a cause of action against Mr. Haber.

More particularly, the allegations of the final complaint against Mr. Haber accuse him, among other things, of having actual knowledge of the violations of the Franchise Rule that the corporation was involved in and intentionally electing not only to ignore those requirements, but to draft documents to be given to KC Leisure that were specifically known by him to be violative of the Franchise Rule. The complaint alleged that the defendants, including Mr. Haber, collectively and unanimously cooked up the scheme of providing a “license,” rather than the bargained-for franchise, so that the requirements could be evaded prior to KC Leisure’s turning over of the $50,000 franchise fee. Finally, he is alleged to have assisted in the preparation of certain pro forma financial documents and spreadsheets with full knowledge that they were inaccurate.

It seems clear, therefore, that KC Leisure has pled a violation of the Federal Trade Commission Act, and hence the FDUTPA, by Relay Transportation and has stated a cause of action against Mr. Haber, as well. The trial court’s holding, that the FDUTPA “clearly focus[es] on imposing liability only on sellers and not their shareholders or individuals who act for the seller,” is not supported by the case law in general, as we have noted above, or by Batlemento, the case cited by the trial court in its order, in particular.

The trial court’s reliance on Batlemento for the proposition that the FDUTPA imposes liability only on the corporate entity but not on the individuals involved in purported misdeeds is misplaced. First, the holding in Batlemento to the effect that the Florida Sale of Business Opportunities Act, sections 559.80-815, Florida Statutes (1983) (“FSBOA”), does not apply to the sale of an ongoing restaurant business, has little relevance to a claim involving purported misrepresentations under the federal statute and rules in connection with the sale of a franchise to open a new business. Second, Batlemento does not address the issue of personal liability. The FSBOA is only referenced in the first count to reflect that Relay Transportation attempted to comply with section 559.802, Florida Statutes (2005), so as to qualify for an exemption under that statute. That Relay Transportation complied with the FSBOA does not eviscerate the claim of KC Leisure that it violated the Federal Trade Commission Act and the Franchise Rule. The franchise exemption under the FSBOA does not compel a finding of a franchise exemption under the FDUTPA.

We now turn to the second count of the fourth amended complaint. In this count KC Leisure seeks to state a cause of action for fraudulent practices by alleging that Mr. Haber violated the Florida Franchise Act by intentionally misrepresenting the prospects of success of the franchise that KC Leisure thought it was buying. Mr. Haber, of course, was an officer and shareholder of Relay Transportation when these actions were alleged to have occurred.

The trial court dismissed this count with prejudice because it found no specific allegations that Mr. Haber personally participated in the conduct that was put forth as a violation of the statute. The court concluded that “Plaintiff cannot possibly establish liability by reason of Defendant’s mere relationship to the corporation without alleging that he also personally participated in the fraud described.”

Because the sufficiency of a complaint is a matter of law, we review the dismissal de novo. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732 (Fla.2002). We begin by observing that when presented with a motion to dismiss, a trial court is required to “treat the factual allegations of the complaint as true and to consider those allegations in the light most favorable to the plaintiffs.” Id. at 734-35 (citations omitted).

Section 817.416(2), Florida Statutes (2005), reads in pertinent part as follows:

(a) It is unlawful, when selling or establishing a franchise ... for any person:
1. Intentionally to misrepresent the prospects or chances for success of a proposed or existing franchise or distributorship; or
2. Intentionally to misrepresent, by failure to disclose or otherwise, the known required total investment for such franchise or distributorship.

In count II of the complaint, KC Leisure alleged that Mr. Haber participated in the development of pro forma spreadsheets regarding Relay Transportation specifically to provide to KC Leisure and had actual knowledge of its contents and omissions. The pro forma purported to show the anticipated costs and revenues in the startup and operation of the franchise being sold to KC Leisure. The complaint alleged, as well, that the pro forma spreadsheets were based on “conjecture and speculation” without any substantive research, which resulted in the document containing “unsubstantiated and misleading” representations. It further asserts that Mr. Haber and the other defendants authorized the delivery of the misleading document to KC Leisure. Finally, the count alleged that the defendants, including Mr. Haber, misrepresented the known total investment for the franchise, all of which misled the appellant into handing over the $50,000 fee and investing money in the franchise operation.

It appears to us that KC Leisure has sufficiently pled the requirements of section 817.416 to state a cause of action. A complaint must allege ultimate facts which, if established by competent evidence, would support a decree granting the relief sought by the pleader. See Doyle v. Flex, 210 So.2d 493, 494-95 (Fla. 4th DCA 1968). There are ample allegations contained in count II of personal participation which, if true, would support a judgment for damages against Mr. Haber. Accordingly, we reverse the dismissal of this count as well.

Although the complaint filed in this case is rather confusing, it does state the causes of action discussed. Thus, we reverse the dismissal with prejudice of the fourth amended complaint and remand the case to the trial court for further proceedings.

REVERSED and REMANDED.

PLEUS and EVANDER, JJ., concur.

      . We also considered other issues in this controversy in Thorpe v. Gelbwaks, 953 So.2d 606 (Fla. 5th DCA 2007).

      . §§ 501.201-.213, Fla. Stat. (2005).

      . § 817.416, Fla. Stat. (2005).


source: Caselaw Access Project

author: PLEUS, J.

license: Public Domain

text:
    Judith LUSIGNAN, Appellant, v. Nichole O. LUSIGNAN, et al., Appellee.
    No. 5D07-279.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2008.

      Walter E. Foster III, of Walter E. Foster III, P.A., Daytona Beach, for Appellant.
    Stephen R. Ponder of Van Houten, Ponder & Hahl, P.A., Daytona Beach, for Ap-pellee.
   PLEUS, J.

Judith Lusignan appeals a final decree of specific performance in favor of Nichole Lusignan on a contract for sale of a house. Judith is Nichole’s step-mother.

After the house was damaged in the 2004 hurricanes, Judith agreed to sell it to Nichole for $100,000 with a closing set for November 1, 2004. Nichole gave Judith a $5,000 deposit.

Judith left Florida on October 27, 2004, and the closing did not occur as scheduled. Nichole claimed she was unable to contact Judith and thus was unable to close. Judith denied leaving the State to avoid the closing and claimed she could have easily been contacted by telephone.

Upon her return to Florida, Judith made substantial repairs to the property. When Nichole sought to close on the property, Judith brought a quiet title action. Nichole counterclaimed for specific performance and breach of contract.

Following a non-jury trial, the court found that Nichole was ready, willing and able to perform the contract but was unable to contact Judith, thereby making timely closing an impossibility. The court ordered specific performance and denied Judith’s demand to quiet title in her favor.

The issue in this appeal is whether, as the trial court concluded, Nichole was ready, willing and able to close. Because we conclude the trial court misunderstood “ready, willing and able,” we reverse.

Nichole testified she was ready, willing and able to close on November 1, 2004. Her explanation of ability was that Robert Potchen, who was married to Nichole’s friend, Alice Potchen, and who is wealthy, agreed to loan her $100,000. On cross, Robert admitted he was not a mortgage lender and said he “simply was going to write a check and let my wife take care of the rest.”

Judith argues that the evidence presented by Nichole was legally insufficient to establish that Nichole satisfied the financing contingency and was ready, willing and able to close pursuant to the terms of the contract.

“In order for a purchaser to obtain specific performance of a real estate contract, [the purchaser] must allege and prove that [it] has either paid the balance, tendered the balance [or] was ready, willing and able to pay such balance or has been excused from such performance.” Taylor v. Richards, 971 So.2d 127 (Fla. 4th DCA 2007), rev. denied, 2007 WL 4260019 (Fla. Dec. 3, 2007), quoting Leverette v. Cochran, 876 So.2d 2, 3 (Fla. 4th DCA 2004). To prove that a prospective purchaser of property is ready, willing and able to buy, the purchaser must show that he is able to command the necessary money to close the deal on reasonable notice or within the time stipulated by the parties. Taylor, citing Perper v. Edell, 160 Fla. 477, 485, 35 So.2d 387 (1948), and Glave v. Brandlein, 196 So.2d 780 (Fla. 4th DCA 1967).

The Fourth District, in a series of decisions, has applied the following test for determining whether a purchaser is ready, willing and able to buy:

Generally speaking, a purchaser is financially ready and able to buy: (1) if he has the needed cash in hand, or (2) if he is personally possessed of assets — which in part may consist of the property to be purchased — and a credit rating which enable him -with reasonable certainty to command the requisite funds at- the required time, [citations omitted] or (3) if he has definitely arranged to raise the necessary money — or as much thereof as he is unable to supply personally — by obtaining a binding commitment for a loan to him for that purpose by a financially able third party, irrespective of whether such loan be secured in part by the property to be purchased.
Although no precise line of demarcation between the application of the second and third divisions of the above rule can be laid down for all cases, it is clear — in the light of the purpose of the rule — that where the purchaser relies primarily, not upon his own personal assets, but upon the proceeds of a contemplated loan or loans to be made to him by a third party, he is financially able to buy only if he has a definite and binding commitment from such third-party loaner. Even though the third party is financially able, his promise is of no avail unless made for an adequate consideration. A purchaser who personally has little, if any, cash or other assets must establish that the financial crutches to be loaned him by others are both legally and financially dependable.

Taylor, quoting from Hollywood Mall, Inc. v. Capozzi, 545 So.2d 918, 920-21 (Fla. 4th DCA 1989) (emphasis supplied).

In Taylor, a gratuitous promise was made by a longtime friend of the purchaser, without consideration or other indications of a legally binding commitment, that the friend was capable and willing to lend the buyer the money to close. This was deemed insufficient to establish the purchaser’s ability to close or to support an award of specific performance. The appellate court noted that no record evidence existed that the purchasers obtained a binding commitment from the friend, Becker, i.e., that Becker made anything but a gratuitous promise. The Taylor court relied on Capozzi (buyer “cannot be considered to be ready, willing and able to perform when its only ability is derived from funds not within its control and subject to the gratuitous payment by another”) and Sticht v. Shull, 543 So.2d 395, 397 (Fla. 4th DCA 1989) (purchaser failed to demonstrate ability to command funds necessary to make purchase where his alleged business partner, who was to provide necessary financing for the purchase, was not legally obligated to perform under the contract).

Nichole is correct that competent, substantial evidence was presented that a valid contract existed between the parties, that she sought and obtained a promise of financing from a third party lender, Robert Potchen,- prior to the date set for closing, that she so notified Judith, and that Judith left the area just prior to the date set for closing. However-, the evidence as to Nichole’s ability to obtain financing from Robert was insufficient to establish her entitlement to specific performance. Robert agreed as a friend to provide Nichole with a loan, claimed he had the financial ability to do so, and even provided written confirmation. However, no evidence was presented of Robert’s financial standing, that Nichole had a binding commitment from Robert, or that the promise was anything other than a gratuitous promise. Even if, as Nichole testified, Robert is a “wealthy man,” no proof was presented of consideration or other indications which would support a legally binding commitment. The burden was on Nichole to establish this and she failed to do so. Specific performance was erroneously decreed under these circumstances.

Nichole claims that alternatively she was entitled to damages for breach of contract based on the loss of the benefit of her bargain, i.e., the difference between the contract price and the current fair market value of Lot 3. However, if Nichole could not be considered ready, willing and able to perform based on the gratuitous promise of her friend Robert, to loan her $100,000, the breach of contract claim would likewise fail. See Capozzi. Under such circumstances, the trial court, on remand, should quiet title to the subject property in favor of Judith.

With regard to attorney’s fees, each party has moved for an award of appellate attorney’s fees based on a prevailing party provision contained in the contract for sale and purchase. Section 59.46, Florida Statutes, extends the entitlement to fees to those incurred on appeal. Accordingly, we grant Judith’s motion for attorney’s fees and deny Nichole’s.

REVERSED and REMANDED.

MONACO and EVANDER, JJ, concur.


author:
      GRIFFIN, J.
      PLEUS, J.,

text:
    Donna SCHNEIDER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-204.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2008.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Donna Schneider [“Appellant”] appeals an order of the lower court awarding $8,100.00 in restitution. We reverse.

Appellant was charged by amended information with organized fraud for stealing from her employer, Dr. Robert Kitos. Appellant entered into a best interest plea and was sentenced to one year of community control, followed by four years of probation. Appellant was also ordered to pay $8,100.00 in restitution for professional services incurred by Dr. Kitos and his wife, Melinda Kitos, to defend a pretrial defense discovery request for their 2001 and 2002 tax returns.

Prior to entering into the plea, Appellant had filed a motion for discovery and a subpoena duces tecum for the personal and business tax records of Dr. and Mrs. Kitos. The motion claimed the tax returns were needed to show that Appellant did not misappropriate the funds and that the Ki-toses actually wrote off those funds on their taxes. Because Dr. Kitos wished to protect his privacy and did not want the tax returns discovered, he hired private counsel and moved for a protective order to prevent disclosure of the tax records. At a hearing on the motion, the trial court ruled that form 4684 of the tax return for the tax year 2001 and the schedule C from both the 2001 and 2002 returns were discoverable, but the remaining portions of the returns were not discoverable.

At the restitution hearing, the State requested an award of the legal and accounting fees incurred by Dr. Kitos in prosecuting the protective order motion. The State argued that the fees were causally connected to the offense and that the costs were an indirect result of Appellant’s crime. Appellant argued that the decision to hire private counsel was Dr. and Mrs. Kitoses’ and was not brought about by Appellant’s criminal conduct but by their own election to incur fees to protect their privacy.

The trial court ruled that the legal expenses incurred by the Kitoses were causally related to Appellant’s organized fraud offense. We agree with Appellant that these expenses were not caused either directly or indirectly by the offense and reverse.

Section 775.089(l)(a), Florida Statutes (2006), provides that:

In addition to any punishment, the court shall order the defendant to make restitution to the victim for:
1. Damage or loss caused directly or indirectly by the defendant’s offense; and
2. Damage or loss related to the defendant’s criminal episode,
unless it finds clear and compelling reasons not to order such restitution. Restitution may be monetary or nonmone-tary restitution.

The term “victim” as used in this statute means “each person who suffers property damages or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant’s offense or criminal episode_” § 775.089(l)(c), Fla. Stat. (2006).

To order restitution under the statute, the court must find that the loss or damage is causally connected to the defendant’s offense. See Glaubius v. State, 688 So.2d 913 (Fla.1997); see also Hall v. State, 760 So.2d 972 (Fla. 5th DCA 2000); Cheek v. State, 700 So.2d 731 (Fla. 5th DCA 1997). Only those damages or losses which flow from defendant’s criminal activity may be assessed as restitution. See Chapman v. State, 733 So.2d 1055 (Fla. 2d DCA 1999). For restitution to be deemed reasonable, it must bear a significant relationship to the offense of which the defendant is convicted, and one factor to be considered in this regard is whether there is a causal connection between the criminal conduct and the loss claimed by the victim. See L.H. v. State, 803 So.2d 862, 863 (Fla. 4th DCA 2002). The causation and significant relationship tests involved in determining restitution for an offense work in conjunction with, and not independently of, each other. See § 775.089(l)(a), Fla. Stat. (2006); Bernard, v. State, 859 So.2d 560 (Fla. 5th DCA 2003).

In the First District Court of Appeal’s decision in Boulais v. State, 706 So.2d 365 (Fla. 1st DCA 1998), the court held that investigative costs paid by an employer to an accounting firm, to insurance adjusters and to an office worker who was hired to help find files lost during the period of the defendant’s employment were awardable. The court, however, rejected services contracted for after the crime was discovered and documented.

Lost wages and similar expenses of victims, including costs resulting from participating in court proceedings have been found to be improper for an award of restitution. See J.S. v. State, 717 So.2d 175 (Fla. 4th DCA 1998). In Martel v. State, 596 So.2d 100 (Fla. 2d DCA 1992), the Second District rejected a restitution award for travel and accommodation expenses the owner of the stolen property incurred upon returning home to Florida from North Carolina to investigate after learning of some of the thefts. The appellate court held that these expenses were too remote.

The State claims the legal fees incurred in this case are similar to investigative costs which are properly awarded as restitution. In support of its position, the State relies on Mayer v. State, 632 So.2d 678 (Fla. 5th DCA 1994) and Glaubius, 688 So.2d 913. In both of those cases it was held that investigative costs for the purpose of discovery and documentation of the crime were properly awarded as restitution. The present case, however, does not involve investigative costs. To the contrary, the issue in the protective order was what evidence was not needed, not what was needed.

Here, the fees awarded were not caused by the offense. The cause of the incurring of fees was the optional decision of Dr. Kitos and his wife to prevent disclosure of their tax returns. Tax returns are not privileged in Florida. See Fryd Constr. Corp. v. Freeman, 191 So.2d 487, 489 (Fla. 3d DCA 1966) (observing that copies of income tax returns not privileged and may be used in state court proceedings where relevant). Had Dr. and Mrs. Kitos not hired counsel and accountants, their tax returns may or may not have been ordered produced based on relevancy, but the professional fees they incurred did not flow directly or indirectly from the appellant’s offense. The dissent contends that the expenditure of fees came about because the State refused to take action to protect the Kitoses’ privacy. But the Kitoses’ privacy was not the State’s concern. The decision to try to avoid public disclosure of tax returns was the Kitoses. They could have produced the returns or even the portions found relevant by the court, but elected instead to oppose any production. Even so, they were only partly successful. The State necessarily argues, however, that Dr. and Mrs. Kitos are entitled to restitution whether they were successful in their motion for protective order or not. To award as restitution such expenses voluntarily incurred in the course of discovery in the criminal case is beyond the contemplation of the restitution statute.

REVERSED and REMANDED.

PERRY, B., Associate Judge, concurs.

PLEUS, J., dissents, with opinion.

PLEUS, J.,

dissenting.

I disagree with the far too narrow application of section 775.089 and therefore dissent. The statute at issue here allows a trial court to order restitution to the victims of crime for damages or loss caused directly or indirectly by the defendant or for damages related to the defendant’s criminal episode. The amount of the restitution ordered is not at issue.

In my view, the legal and accounting fees awarded as restitution were indirectly caused by the theft of money from Dr. Kitos and were related to the defendant’s criminal episode. But for the theft and prosecution of the defendant, and but for the overly-broad subpoena filed by the defendant’s attorney, there would have been no need for Dr. Kitos to hire a lawyer and an accountant to explain the privacy issues to the trial court and assist the Court in understanding the relevance, or lack thereof, of the tax returns.

The defendant, who was the office manager for Dr. Kitos, pled guilty to making personal purchases using the office credit card and issuing business checks to cover personal expenses. The majority opinion gives the impression that all this poor defendant simply wanted was to look at the victim’s tax returns to see if there was anything she might use in her defense. It is a mystery to me how anything on a personal tax return could have relevance on the issue of guilt. The defendant claims the tax returns will show that all the property she stole was actually legitimate purchases for the business. That is truly a stretch beyond comprehension. Indeed, the trial court found that the entire tax returns of Dr. and Mrs. Kitos were not relevant or subject to discovery or calculated to lead to discoverable information.

It is important to look at the context in which this discovery dispute arose and the sequence of events which caused the problem. The discovery motion is styled “Defendant’s Amended Motion for Production of Tax Returns and Patient Records and Payment Records for Patient.” Under the criminal procedure rules, the subpoena cannot be served on a non-party without leave of court. The trial court properly ordered a hearing on the motion. After the hearing, the trial court authorized a subpoena for Dr. Kitos’ tax returns for the years 2001 and 2002. Authorizing the subpoena was not the equivalent of a finding that those records were relevant. The request for the records of a patient, Rick Berry, was denied.

After the subpoena was issued, Dr. Ki-tos was told by the State that this was out of its league, and Dr. Kitos and Mrs. Kitos would have to get independent counsel. When the State refused the Kitoses’ request to file a motion for protective order addressed to the subpoena duces tecum without deposition, Dr. Kitos was left with no alternative but to hire outside counsel to protect his privacy rights, the privacy rights of his wife, and the rights of his patient, Rick Berry. The need was directly caused by the overly-broad subpoena and the refusal of the State Attorney’s office. The Kitoses had every right and a legitimate need to hire outside counsel.

It is equally important to understand the response of Dr. Kitos’ outside counsel. He suggested that the court conduct an in camera review of the tax returns to determine whether they actually contained any information relevant to the case. The trial court properly recognized that it must decide whether the defendant’s need for the documents outweighed the victims’ privacy rights. The need for such an evaluation was doubly important because Dr. Kitos and Mrs. Kitos file joint returns. Dr. Ki-tos further suggested to the court that the only information relevant to his medical practice was on Schedule C of the returns. Finally, Dr. Kitos asked the court to determine what, if any, portions of the returns should be produced and enter a Protective Order as to the other portions of the subject returns and the confidential information contained therein.

The trial court considered the motion and the testimony of the Kitoses’ CPA. It ruled that the defendant was entitled only to Schedule C of the returns. The order went on to grant the ore tenus motion made on behalf of Dr. and Mrs. Kitos at the hearing to limit and prohibit the defendant from questioning or making any inquiry of Dr. or Mrs. Kitos on deposition, or otherwise, except for the Schedule Cs.

The most compelling argument as to why restitution is mandated in this case is set forth in the Kitoses’ Motion For Protective Order, which reads as follows:

It appears that Defendant’s efforts to obtain Dr. Kitos’ income tax records is not actually an effort to obtain information she can use to defend the charge against her. Defendant has repeatedly threatened to sue Dr. Kitos in retaliation for reporting her activities to law enforcement for investigation. (See letter from Defendant’s counsel dated May 6, 2002, attached as Exhibit “A”). Therefore, Defendant’s motion, and the resulting subpoena, is in reality an improper and premature effort to attempt to obtain financial discovery she can use in furtherance of her threat of future civil litigation.
Exhibit A reads in part:
I represent Donna Schneider. I understand there was a tape made of the hearing which was held on April 30, 2002, at 3:00 p.m. That tape contains relevant information for a criminal charge filed by the doctor’s office. As part of the interrogation by the officer, the doctor’s wife who was testifying made inconsistent statements with the statements that she made to a law enforcement agency. I now want to preserve those statements for use in the criminal prosecution and in the subsequent civil prosecution for wrongful arrest and prosecution against Dr. Kitos and his wife.

It does not take a genius to figure out what was really going on here and the actual motive for the overly-broad subpoena. First, you steal from the boss and then, when caught, you suggest a law suit if the prosecution is not dropped.

The trial judge acted wisely and properly. Undoubtedly, he understood what was really going on. He also found a significant causal relationship in the offense charged and the sequence of events during the discovery process and the Kitoses’ attempt to protect their privacy interests.

Restitution serves a broader purpose than mere compensation of the victim. It also serves the rehabilitative, deterrent, and retributive goals of the criminal justice system. The narrow reading of the restitution statute by the majority flies in the face of the stated purpose of restitution.

But for the defendant’s offense and her fishing expedition in defense thereof, the costs of reviewing the tax records and defending against the release of the improperly subpoenaed material would not have been incurred. The trial court’s finding that these costs were causally connected to the offense is supported by competent, substantial evidence and should not be disturbed.


author: LAWSON, J.

text:
    Janice COSTIN, Appellant, v. FLORIDA A & M UNIVERSITY BOARD OF TRUSTEES, Appellee.
    No. 5D07-126.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2008.
    Thomas Hockman of the Law Offices to Hockman & Hockman, Winter Park, for Appellant.
    David C. Self, II, and Shira Thomas of Florida A & M University, Tallahassee, for Appellee.
   LAWSON, J.

Janice Costin appeals from a final administrative order entered by Florida A & M University, (“FAMU”), which approved FAMU’s dismissal of Costin from her job at FAMU’s College of Law. We agree with Costin that FAMU’s final order improperly rejected a pivotal finding of fact from the administrative law judge’s, (“ALJ”), recommended order, and reverse the final order.

In its final order, FAMU states that it has accepted all factual findings made by the ALJ. Those findings include the following: Costin was employed at FAMU’s College of Law from December 2002 until May 2005. Her job title was coordinator of computer applications. FAMU’s policy was that “all planning, acquisitions, installations, implementations or revisions [to a computer network] must be done in conjunction with the Information Resource Manager.” FAMU’s Chief Information Officer, at all relevant times, was Dr. Kenneth Perry. He worked at FAMU’s main campus, in Tallahassee, Florida. FAMU’s law school is located in Orlando, Florida.

Although FAMU policy directed that Costin work “in conjunction with” Perry on computer network matters, Costin’s written job description required that she report “directly” to the College of Law’s administration in Orlando and described her “primary function” as “interact[ing] with the College of Law administrative and academic personnel in developing, maintaining, and updating computer application/systems that will enhance the productivity of the College of Law end-user.” The job description also stated that Costin was to “be self-directed, and ... work independently, following general policy discussions.” The ALJ found that, “On those occasions when [Costin] did seek support [from Dr. Perry], she received little support from him or others in [FAMU’s] Information Technology Services Department in Tallahassee.”

In September 2004, the internet service was disrupted at FAMU’s College of Law due to a hurricane. This led to internet access problems between FAMU’s College of Law and its main campus in Tallahassee. An internet firewall was determined to be the root of the problem. Without consulting with Dr. Perry, Costin successfully replaced the faulty Nokia firewall with an Enterasays firewall that worked. Although Dr. Perry did not pre-approve the firewall replacement, the College of Law’s administration did. The ALJ found that Costin was acting at the express direction “of Percy Luney, dean of the College of Law,” when she replaced the faulty firewall. At Dean Luney’s request, Dr. Perry later authorized payment for the new firewall equipment. The ALJ found that no harm came to FAMU because of the firewall repair, because no one was able to breach FAMU’s computer system as a result of Costin’s activities.

FAMU’s College of Law had an additional problem with its .edu website. Information from the main campus was not being posted in a timely manner onto the college of law’s website. In some cases, information did not appear on the law school’s website for months. To remedy this problem, Costin created a .com website at FAMUlaw.com. Dr. Perry did not approve implementation of the .com website, and felt that because .com websites were for commercial endeavors and .edu for schools, the change was a poor reflection on FAMU’s College of Law. However, the ALJ found that other FAMU departments also operated on either .com or .net websites at the time.

FAMU sought to justify firing Costin based upon these two changes to the computer system, alleging that it violated FAMU policy for Costin to make the changes without Dr. Perry’s approval. Costin filed an administrative challenge to FAMU’s action, which was ultimately-heard by an ALJ. After an evidentiary hearing, the ALJ recommended that Cos-tin be reinstated, based upon his conclusion that termination of Costin’s employment was not an available sanction under FAMU’s administrative rules, given the facts presented.

At the administrative hearing, FAMU had the burden to establish by a preponderance of the evidence that there was just cause to terminate Costin under its complaint procedures for tenured or permanent status employees, located at section 6C3-10.232 of the Florida Administrative Code. See Fla. Admin. Code R. 6C3-10.232(3); § 120.570), Fla. Stat. (2006); Allen v. School Bd. of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990).

Florida Administrative Code Rule 6C3-10.230(5) allows FAMU to discipline an employee for “just cause,” which is defined to include “misconduct.” The rule allows, but does not require “progressive discipline,” meaning “that the form of disciplinary action imposed against the employee increases in extent or severity with each action taken.” Fla. Admin. Code R. 6C3-10.230(5)(b). Where discipline is warranted, the rule authorizes sanctions of “a written reprimand, suspension or dismissal from employment,” and provides that the “discipline that is imposed will depend upon the seriousness of the offense and any aggravating or mitigating circumstances.” Id. FAMU’s rules further provide that its discipline of an employee can only include dismissal for cause where the “employee’s actions adversely affect the functioning of the University or jeopardize the safety or welfare of the employee, other employees or students.” Fla. Admin. Code R. 6C3-10.230(5)(f).

The ALJ first found that Costin’s failure to consult with Dr. Perry violated FAMU policy, and therefore met the definition of “misconduct” warranting disciplinary action under FAMU’s administrative rules. However, the ALJ found that dismissal was not authorized based upon the evidence presented because FAMU failed to prove that Costin “did anything that adversely affected the functioning of the university or endangered anyone.” Therefore, the ALJ recommended that Costin be reinstated with full pay.

In its final order, FAMU rejected the ALJ’s critical “no adverse affect” finding on the theory that it constituted a conclusion of law. We agree with Costin, however, that the finding of “no adverse affect” is an “ultimate fact” best left to the trier of fact under these circumstances. As explained in Tedder v. Florida Unemployment Appeals Commission, 697 So.2d 900, 902 (Fla. 2d DCA 1997) (Danahy, A.C.J., specially concurring), ultimate facts are those “necessary to determine issues in [a] case” or the “final facts” derived from the “evidentiary facts supporting them.” Id. (citing Black’s Law Dictionary 1522 (6th ed. 1990)). Ultimate facts are also regularly described as “mixed questions” of law and fact, see, e.g., Antonucci v. Unemp. App. Comm’n, 793 So.2d 1116, 1117 (Fla. 4th DCA 2001), and must generally be made by the fact finder in an administrative proceeding because they are “necessary for proper review of administrative orders.” Tedder, 697 So.2d at 902; see also San Roman v. Unemp. App. Comm’n, 711 So.2d 93 (Fla. 4th DCA 1998) (finding that whether “good cause” exists for unemployment compensation claimant to voluntarily leave work frequently involves mixed question of law and fact, and is an ultimate fact best left to the fact-finder); Heifetz v. Dep’t of Bus. Reg., Div. of Alcoholic Beverages & Tobacco, 475 So.2d 1277 (Fla. 1st DCA 1985) (finding that “negligent supervision and lack of diligence are essentially ultimate findings of fact clearly within the realm of the hearing officer’s fact-finding discretion.”) (citations omitted). Because the ALJ’s finding on the “adverse affect” issue is supported by the record, FAMU was required to accept it. See, e.g., Fonte v. State, Dep’t of Envtl. Reg., 634 So.2d 663 (Fla. 2d DCA 1994) (noting that an agency may only reject a hearing officer’s findings of fact if it determines from a review of the complete record that the findings were not based upon competent, substantial evidence); Brevard Co. Sheriffs Dep’t v. Fla. Comm’n on Human Relations, 429 So.2d 1235, 1237 (Fla. 5th DCA 1983) (“What the Commission has done, in effect, is ignored or rejected the hearing officer’s findings of fact without determining that they are not supported by competent, substantial evidence. This it cannot do.”) (citations omitted); see also, Kinney v. Dep’t of State, Div. of Licensing, 501 So.2d 129, 132 (Fla. 5th DCA 1987) (“Erroneously labeling what is essentially a factual determination a ‘conclusion of law,’ whether by the hearing officer or the agency does not make it so, and the obligation of the agency to honor the hearing officer’s findings of fact may not be avoided by categorizing a contrary finding as a ‘conclusion of law.’ ”).

Alternatively, even if the ALJ’s finding could be classified as an issue of rule interpretation (a purely legal matter), as FAMU argues, an agency is not free to reject an administrative rule interpretation set forth in an ALJ’s recommended order unless it states “with particularity its reasons for rejecting or modifying” the ALJ’s rule interpretation “and make[s] a finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified.” § 120.57(1)©, Fla. Stat. (2006). Here, FAMU did not make the finding that its substituted “interpretation” of the rule was more reasonable than the ALJ’s interpretation. Nor could it.

The ALJ interpreted rule 6C3-10.230(5)(f) as requiring an employee’s deviation from university policy to result in some palpable harm to the school or one of its employees or students before a tenured or permanent status employee could be terminated (without prior discipline) based upon his or her deviation from school policy. This is a logical, plain reading of the rule. FAMU, however, claims to read the rule as meaning that any “disregard of established University policy,” no matter how slight, is itself an “adverse affect to the functioning of the University” (thereby justifying termination of the employee) simply by virtue of the fact that a rule has been broken. FAMU’s interpretation makes no sense because it renders the standard for termination meaningless. There would be no reason to have a special “adverse affect” requirement for the ultimate sanction of termination if any deviation from policy was by definition its own adverse affect.

Because FAMU incorrectly rejected the ALJ’s conclusion that FAMU failed to prove any adverse affect resulting from Costin’s misconduct, we reverse FAMU’s final order and direct that FAMU enter an order that accepts the ALJ’s recommendation for Costin’s reinstatement with full pay.

REVERSED and REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . FAMU also alleged that Costin inappropriately placed ad links for several computer vendors offering special student pricing on the .com website. However, when it was revealed that this same content also appeared on FAMU's .edu website, and was just carried over by Costin, FAMU dropped this allegation.

      . Costin had never been the subject of any prior disciplinary proceeding.

      . FAMU presented no aggravating circumstances. Costin’s mitigation included the fact that her actions were approved by the law school’s administration (to which she directly reported); that she had never received a negative job-performance evaluation during her tenure with FAMU; that Dr. Perry had been unreachable or unresponsive in the past; and, that her actions were required to address problems or emergencies with the College of Law’s computer systems, which she successfully corrected.


author: EVANDER, J.

text:
    Benny MORTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-4294.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2008.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Morton was convicted, after a jury trial, of sale of cocaine. The State’s primary witness was a confidential informant who had agreed to provide assistance to law enforcement after his own arrest for possession of cocaine. The confidential informant testified that he purchased two pieces of crack cocaine from Morton. The transaction occurred at a street corner with the confidential informant remaining in his car. The police officers supervising the confidential informant were not close enough to the intersection to observe the actual exchange. Although the confidential informant wore a wire, the recorded conversation was largely inaudible or indiscernible. The money allegedly given to Morton by the confidential informant was not recovered as Morton was not arrested until a later date.

During the confidential informant’s testimony, the following colloquy occurred:

PROSECUTOR: Can you tell the jury a little bit about how it came about that you thought you could buy some drugs from this particular person?
WITNESS: It was very clear that, you know [Morton] was selling drugs locally, and a lot of folks knew that, and I was able to have contact ...

Defense counsel immediately objected and, out of the presence of the jury, moved for a mistrial. The trial court declined to grant a mistrial, instead instructing the jury to disregard the witness’ answer. Morton renewed his motion for mistrial at the close of the State’s case and immediately prior to closing arguments.

The sole issue on appeal is whether the trial court erred in denying Morton’s motion for mistrial. The standard of review for a denial of a motion for mistrial is abuse of discretion. Goodwin v. State, 751 So.2d 537 (Fla.1999). A motion for mistrial should be granted when it is necessary to ensure that a defendant receives a fair trial. Power v. State, 605 So.2d 856 (Fla.1992), cert, denied, 507 U.S. 1037, 113 S.Ct. 1863, 123 L.Ed.2d 483 (1993). When a jury is improperly informed of a defendant’s prior criminal activity, a curative instruction has frequently been found to be insufficient to preserve a defendant’s right to a fair trial. See, e.g., Coverdale v. State, 940 So.2d 558 (Fla. 2d DCA 2006) (mistrial should have been granted after witness improperly commented that defendant had previously tried to molest witness’ daughter); Brooks v. State, 868 So.2d 643 (Fla. 2d DCA 2004) (mistrial should have been granted after witness improperly commented that defendant had been “sent back to prison”); Henderson v. State, 789 So.2d 1016 (Fla. 2d DCA 2000) (mistrial should have been granted after witness improperly commented that it appeared that defendant had committed prior robberies); Comatezer v. State, 736 So.2d 1217 (Fla. 5th DCA 1999) (mistrial should have been granted after witness improperly commented that defendant was convicted felon).

Here, the witness improperly advised the jury that “a lot of folks” knew that Morton was a drug dealer. Evidence that a defendant has previously committed a similar crime is particularly prejudicial because of the risk that a juror will be predisposed to believe that the defendant is guilty of the charged offense. Nickels v. State, 90 Fla. 659, 106 So. 479, 488 (1925). A curative instruction was simply insufficient to “unring the bell.” Comatezer, 736 So.2d at 1218-19.

REVERSED and REMANDED for a new trial.

GRIFFIN and ORFINGER, JJ., concur.


author: PER CURIAM.

text:
    Darren Lee BUTLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-1060.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2008.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Butler appeals from his conviction for sexual battery on a child less than twelve years of age. We affirm.

Prior to trial, Butler filed a motion to suppress his confession and a motion in limine to prohibit introduction of the child-victim’s hearsay statements to her mother and to two members of the child protection team. We find no error in the trial court’s detailed orders denying these motions. We further find that the trial court properly applied section 92.565, Florida Statutes (2006), in permitting the State to introduce Butler’s confession without the State first being required to prove the corpus delicti of the crime. See Bradley v. State, 918 So.2d 387 (Fla. 1st DCA 2005); State v. Dionne, 814 So.2d 1087 (Fla. 5th DCA 2002).

To the extent that there was any error in permitting a child protection team nurse to opine that the child was a victim of sexual abuse, the error would have been harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).

AFFIRMED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


author: SILBERMAN, Judge.

text:
    BUILDING MATERIALS CORPORATION OF AMERICA, a New Jersey corporation, d/b/a GAF Materials Corporation, Appellant, v. PRESIDENTIAL FINANCIAL CORPORATION, Appellee.
    No. 2D06-1604.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.
    Robert E. Johnson of GrayRobinson, P.A, Tampa, for Appellant.
    R.J. Haughey, II and J. Carlton Mitchell of Sivyer Barlow & Watson, P.A., Tampa, for Appellee.
   SILBERMAN, Judge.

Building Materials Corporation of America, d/b/a GAF Materials Corporation (GAF), challenges a final summary judgment entered in favor of Presidential Financial Corporation with respect to Presidential’s claims against GAF for breach of contract, open account, and unjust enrichment. We reverse because genuine issues of material fact preclude entry of summary judgment against GAF.

On October 11, 2000, Presidential entered into a loan and security agreement with Stanley Freight, in which Stanley Freight assigned all of its accounts receivable (including future receivables) to Presidential as collateral for the loan. About one year later, another company, GAF, entered into a warehousing agreement with Stanley Freight, resulting in an account receivable for Stanley Freight. GAF made some payments on the account to Stanley Freight but made other payments to Presidential.

Presidential sued GAF and alleged that GAF was on notice that Stanley Freight had assigned its receivables to Presidential and that GAF was to send payments on the amount owed to Presidential. Presidential further alleged that notwithstanding the assignment, GAF made certain payments directly to Stanley Freight instead of to Presidential. GAF raised thirteen affirmative defenses, including that any agreement between GAF and Presidential was not executed by any authorized officer, director, or agent or with the approval of any authorized GAF representative. Other defenses included accord and satisfaction, estoppel, and waiver.

Presidential moved for summary judgment, arguing that no genuine issue of material fact existed with respect to GAF’s receipt of the notice of the assignment of the accounts receivable and GAF’s wrong-fid payments to Stanley Freight. In support of its motion, Presidential established that on August 5, 2002, it sent a letter addressed to “Accounts Payable Brian C. GAF Materials Corp.” to a Tampa address. The letter was typed on Stanley Freight letterhead and signed by Keith Stanley, president of Stanley Freight. The letter stated that Stanley Freight had “entered into an accounts receivable financing arrangement with Presidential Financial Corporation (‘Presidential’), under which all of our accounts including proceeds thereof, have been assigned to Presidential.” The letter requested that payment of “any and all proceeds resulting from the sales of our products or services” be made directly to Presidential. In closing, the letter stated the following: “Please indicate, by your duly authorized signature below, your receipt and acceptance of this notice of assignment and the within remittance instructions.” A completed acknowledgement appears at the bottom of the letter, signed and dated by Will Whitlock, “Logistics Mgr,” on August 8, 2002.

In opposition to the motion for summary judgment, GAF filed an affidavit by John O’Keefe, Jr., Executive Director of Real Estate of GAF. Mr. O’Keefe stated that under the terms of GAF’s warehousing agreement with Stanley Freight, “any notices, requests, demands, or other communications to be given” under the agreement shall be in writing and sent to its office in Wayne, N.J., to the attention of “Executive Director, Real Estate.” There was no accounts payable person or department in GAF’s Tampa office, and Mr. Whitlock had held the position of logistics manager for only two weeks when he signed the ac-knowledgement on the letter from Stanley Freight.

Mr. O’Keefe asserted that the assignment letter from Stanley Freight had not been sent in accordance with the terms of the Warehousing Agreement and that no individual in Tampa had the authority to bind GAF under the Warehousing Agreement. Further, the “duties of logistics manager were generally limited to insuring that product moved in and out of the warehouses and verifying that the amounts actually billed to [GAF] were for services performed.” GAF had not been advised that Mr. Whitlock had “entered into” the assignment letter, GAF had not ratified Mr. Whitlock’s purported acts in executing the acknowledgment, GAF never had knowledge of the material facts of the assignment letter purportedly signed by Mr. Whitlock until the lawsuit was filed, and GAF “did not retain the proceeds and benefits of this purported unauthorized transaction.”

GAF also argued that deposition testimony reflected that a procedure had been established whereby Stanley Freight would send to GAF certain invoices for which payment was to be made to Presidential. Stanley Freight would send to GAF other invoices for which payment was to be made to Stanley Freight. GAF asserted that it paid Presidential for those invoices that Stanley Freight told GAF to pay directly to Presidential. GAF reiterated that until the lawsuit was filed, it had not been aware of the letter that was sent to the Tampa facility and signed by Mr. Whitlock, and it had not been aware of the letter’s contents.

At the summary judgment hearing, the court indicated that there was no dispute that Mr. Whitlock’s signature appears on the assignment letter and that Mr. Whit-lock was a GAF employee or representative. The court concluded that “[y]ou-all received the notice to make the assignment to Presidential” and that it did not accept the waiver argument. On that basis, the trial court granted final summary judgment to Presidential.

On appeal, GAF argues that summary judgment was improper because Presidential did not conclusively establish that adequate notice of the assignment of the accounts receivable had been given to GAF. GAF also argues that Presidential waived or is estopped from asserting its claim against GAF.

We review the entry of summary judgment de novo. Estate of Githens v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fla. R. Civ. P. 1.510(c)). Further,

n determining whether a genuine issue of material fact exists, this court must view “every possible inference in favor of the party against whom summary judgment has been entered.” It is the movant’s burden to prove the nonexistence of genuine issues of material fact, “and the burden of proving the existence of such issues is not shifted to the opposing party until the movant has successfully met his burden.”

Estate of Githens, 928 So.2d at 1274 (citations omitted). It is also the movant’s burden to refute any affirmative defenses or to establish that they are legally insufficient. Morroni v. Household Fin. Corp. Ill, 903 So.2d 311, 312 (Fla. 2d DCA 2005).

It is well established under Florida law that a debtor who receives actual notice of the assignment of an account receivable or an obligation to pay may be held liable to the assignee if the debtor later pays the assigned debt to the assignor rather than the assignee. See generally, Capital City Second Nat’l Bank v. Peavy & Son Constr. Co., 585 So.2d 1123 (Fla. 1st DCA 1991); City of N. Miami v. Am. Fid. Fire Ins. Co., 505 So.2d 511 (Fla. 3d DCA 1987); Fla. First Nat’l Bank at Key West v. Fryd Constr. Corp., 245 So.2d 883 (Fla. 3d DCA 1970). As stated in section 679.4061(1), Florida Statutes (2002):

Subject to subsections (2) through (9), an account debtor on an account, chattel paper, or a payment intangible may discharge its obligation by paying the assignor until, but not after, the account debtor receives a notification, authenticated by the assignor or the assignee, that the amount due or to become due has been assigned and that payment is to be made to the assignee. After receipt of the notification, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor.

With respect to notice to an organization, section 671.201(27), Florida Statutes (2002), provides as follows:

Notice, knowledge or a notice or notification received by an organization is effective for a particular transaction from the time when it is brought to the attention of the individual conducting that transaction, and in any event from the time when it would have been brought to his or her attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routines. Due diligence does not require an individual acting for the organization to communicate information unless such communication is part of his or her regular duties or unless the individual has reason to know of the transaction and that the transaction would be materially affected by the information.

An organization includes a corporation. § 671.201(28).

Based on the record evidence and the affirmative defenses raised by GAF, there remain genuine issues of material fact. Concerning the issue of whether proper, binding notice was given to GAF concerning the assignment of Stanley Freight’s accounts receivable, the affidavit of Mr. O’Keefe and other record evidence directly challenges the effectiveness of the notice under the applicable law. In light of the conflicting record evidence, the trial court erred in granting summary judgment to Presidential.

Although the parties have not cited, and we have not located, a Florida case concerning the effectiveness of a notice given under facts similar to what occurred here, we note eases from other jurisdictions that address the issue. In First Capital Corp. v. Norfolk Southern Railway Co., 53 UCC Rep.Serv.2d (CBC) 36, 2004 WL 718975 (N.D.Tex.2004), the district court noted that in resolving whether a notice of assignment of accounts receivable is sufficient to create liability to the assignee in the account debtor, a court should consider “whether the recipients of the communications should have been expected to notify personnel who would have dealt with the subject of the assignment. In making this inquiry, a court may consider whether the recipient’s job duties involve the transmission of such communications to the appropriate individuals.” Id. at *2 (citations omitted). In concluding that notice was inadequate to create liability, the court reasoned that

nothing in the record suggests that the alleged notice was provided to employees with job duties including the transmission of communications about any assignment. The record establishes that Mr. Murphy was primarily responsible for ensuring that motor vehicles on incoming trains were properly loaded and unloaded by ARS and that, in addition, he sometimes reviewed ARS bills for work done at the Shelbyville facility to ensure that the services charged for were performed by ARS. There is no evidence, however, that Mr. Murphy’s duties involved communicating to others at NSTBC about any assignment, or that he would have recognized the importance of such information.

Id. at *3; see also Bank of Salt Lake v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints, 534 P.2d 887, 890-91 (Utah 1975) (concluding that the assignee failed to establish the church’s receipt of notice when the assign-ee sent notice to a clerical employee at a location other than where the purchase contract was made and other than where the church usually received such information); Bay Area Factors v. Target Stores, Inc., 987 F.Supp. 734, 739 (D.Minn.1997) (holding that “a notice which is reasonably accurate in who it is addressed to and which is sent to the correct address satisfies the UCC’s definition of ‘notice,’ ” and stating that “if it would be reasonable for [the assignee] to assume the notices it sent would be routed to the proper persons, the UCC’s requirements would be satisfied”).

A case Presidential relies upon in support of its position is Ertel v. Radio Corp. of America, 261 Ind. 573, 307 N.E.2d 471 (1974). There, a notice of assignment of accounts receivable was delivered by certified mail to an RCA dock employee, but the accounting department never received the notice. The court indicated that “[t]he negligence of RCA employees after the initial receipt” of the notice should not be charged to the assignee but to RCA. Id. at 474. However, the court also observed that the parties had stipulated that the mail was normally delivered by the post office to the receiving dock, that dock employees were authorized to sign receipts for certified mail, and that a dock employee had signed for the notice. Id. The court concluded that because notice had been “delivered and received at the appropriate place by an authorized agent” notice of the assignment had been given. Id.

Here, genuine issues of material fact remain in dispute regarding the effectiveness and adequacy of the notice provided by Presidential to GAF. GAF presented evidence that Presidential sent the notice to a location and an individual other than those that GAF designated for receipt of such information. In addition, GAF presented evidence that Mr. Whitlock’s receipt of the notice and execution of the acknowledgement were not part of his regular job duties and that he would not necessarily understand the significance of the notice or acknowledgement. Although Presidential presented evidence and argued that GAF had made some payments consistent with the assignment, there was conflicting evidence that the payments were not due to the assignment but were pursuant to other payment procedures that were being used.

Further, the trial court’s decision to grant summary judgment appears to be based almost entirely on the fact that Mr. Whitlock’s signature is on the acknowledgment portion of Stanley Freight’s letter to GAF. The court indicated that it did not accept the waiver argument, but our review of the record leads us to conclude that Presidential did not overcome the affirmative defenses.

Accordingly, we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

STRINGER, J., and GROSS, RAYMOND 0., Associate Judge, Concur.


author: KELLY, Judge.

text:
    Paul H. JAWORSKI, Appellant, v. Lori L. JAWORSKI, Appellee.
    Nos. 2D05-4717, 2D05-5277.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.
    Michael R. Walsh and Susan W. Savard of Michael R. Walsh, P.A., Orlando, for Appellant.
    Jaime L. Wallace of Jaime L. Wallace, P.A., Sarasota, for Appellee.
   KELLY, Judge.

Paul H. Jaworski, the former husband, appeals from an amended final judgment dissolving his marriage to Lori L. Jawor-ski, the former wife. We reverse because the trial court erred in calculating child support and in requiring the former husband to maintain a two-million-dollar life insurance policy on himself to secure the payment of alimony. We affirm the amended final judgment in all other respects.

The former husband argues that in computing child support, the trial court incorrectly relied on the guideline formula utilized in eases where one parent has been designated as the primary residential parent. See § 61.30(ll)(b), Fla. Stat. (2004). We agree because here, the parties had rotating custody of their two children.

In determining a parent’s child support obligation in a rotating custody case, the trial court should: (1) calculate the total child support award and each parent’s share under the guidelines; (2) determine the amount of time each parent has the child and reduce it to a percentage; (3)proportion the total child support award to each parent, based on the percentage of time each parent has the child with him or her; and (4) offset each parent’s dollar responsibility under the guidelines. Jones v. Johnson, 747 So.2d 1066, 1068 (Fla. 5th DCA 2000); see also Cole v. Cole, 792 So.2d 605, 606 (Fla. 2d DCA 2001). Because the trial court failed to consider in its calculation the amount of time each parent spends with the children, on remand the trial court must recalculate the child support award in accordance with the formula established in Jones.

We also agree with the former husband that requiring him to maintain a two-million-dollar life insurance policy to secure his alimony obligation was error. Although it is within the court’s discretion to require a party ordered to pay alimony to purchase or maintain a life insurance policy to secure the award, such a requirement is “justified only if there is a demonstrated need to protect the alimony recipient.” Privett v. Privett, 535 So.2d 663, 665 (Fla. 4th DCA 1988); see also Solomon v. Solomon, 861 So.2d 1218, 1221 (Fla. 2d DCA 2003). The trial court made no finding that there was a need to secure the former wife’s alimony nor does the record demonstrate that such a need exists. See Solomon, 861 So.2d at 1221. “In the absence of special circumstances, a spouse cannot be required to maintain life insurance for the purposes of securing alimony obligations.” Pinion v. Pinion, 818 So.2d 557, 557 (Fla. 2d DCA 2002); see also Cozier v. Cozier, 819 So.2d 834, 837 (Fla. 2d DCA 2002). There are no special circumstances which would support the requirement that the former husband secure his alimony obligation with a life insurance policy. Thus, on remand, the court shall strike this requirement in the amended final judgment. See Solomon, 861 So.2d at 1222.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

DAVIS and SILBERMAN, JJ., Concur.


text:
    DADE ENGINEERING CORP., Appellant, v. C. HUNT ENTERPRISES, INC., Appellee.
    No. 2D07-3295.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 2008.
    Stephen E. Tunstall, Coral Gables, for Appellant.

      Marvin W. Lewis, Miami, and Michael R. Deminico, Tampa, for Appellee.
   PER CURIAM.

Affirmed. The issue of venue is not “res judicata” in this case due to the lack of a prior final judgment. See Klak v. Eagles’ Reserve Homeowners’ Ass’n, Inc., 862 So.2d 947, 951 (Fla. 2d DCA 2004) (“Res judicata is only applicable where there is a relevant prior final judgment[,]” citing Fla. Dep’t of Tramp, v. Juliano, 801 So.2d 101, 105 (Fla.2001)).

CASANUEVA, CANADY, and LaROSE, JJ., Concur.


text:
    Anthony SHOVE, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2332.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.
    Glenn M. Swiatek, Shalimar, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s summary denial of his motions seeking postconviction relief, filed pursuant to Florida Rules of Criminal Procedure 3.800(a) and 3.850. We affirm without discussion the denial of appellant’s rule 3.850 motion. However, appellant’s rule 3.800(a) motion alleged that his sentence was calculated using an incorrect scoresheet and that the sentence imposed could not have been imposed pursuant to the correct scoresheet, and the trial court failed to attach to its order portions of the record that conclusively refute that claim. See Brooks v. State, 969 So.2d 238 (Fla.2007) (indicating that a sentence that was imposed using an improper scoresheet, and that could not have been imposed using the proper scoresheet, is illegal for purposes of rule 3.800(a)).

Accordingly, we reverse the trial court’s order denying appellant’s rule 3.800(a) motion. On remand, should the trial court again conclude that appellant’s rule 3.800(a) motion lacks merit, it shall attach to its order such portions of the record as conclusively refute that claim; otherwise, it shall resentence appellant using the correct scoresheet. We affirm the summary denial of appellant’s rule 3.850 motion.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

WEBSTER, BENTON, and POLSTON, JJ., concur.


author: PER CURIAM. POLSTON, J.,

text:
    Layton E. NORRIS, Former Husband, Appellant, v. Amie C. HECKERMAN, f/k/a Amie C. Norris, Former Wife, Appellee.
    No. 1D07-2289.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.
    Neal L. Betancourt of Rotchford & Be-tancourt, P.A., Jacksonville, for Appellant.
    Amie C. Heckerman, pro se, Appellee.
   PER CURIAM.

Layton Norris appeals an order of the trial court granting Amie Heckerman’s request to relocate with their minor children to Chicago. We affirm.

The parties were married in 1996, had three children, and divorced in Georgia in 2005. The former wife remarried and was living in Jacksonville, Florida, with her husband and the three children, when the former husband moved there in 2006 and began exercising weekly visitation with the children. When the former wife decided to move to Chicago, Illinois, with the children and her husband, the former husband sought emergency relief denying the relocation. The trial court concluded that it did not have the authority to modify the Georgia judgment. On the contrary, the court did have such authority pursuant to section 61.516(2), Florida Statutes (2007), of the Uniform Child Custody Jurisdiction and Enforcement Act.

The court, however, issued an alternate ruling, which we affirm, approving the former wife’s relocation pursuant to the factors enumerated in section 61.13001(7), Florida Statutes (2006). Under this provision, there is no presumption in favor of or against relocation. The burden of proof is on the parent wishing to relocate to prove by a preponderance of the evidence that relocation is in the best interests of the children. § 61.13001(8), Fla. Stat. (2006). If the initial burden is met, the burden shifts to the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the children’s best interests. Id.

An appellate court reviews the trial court’s determination regarding relocation of minor children for abuse of discretion. See, e.g., Landingham v. Landingham, 685 So.2d 946 (Fla. 1st DCA 1996); Manyan v. Manyari, 958 So.2d 512 (Fla. 3d DCA 2007); Edrington v. Edrington, 945 So.2d 608 (Fla. 4th DCA 2006). Although the trial court did not make certain critical findings regarding several of the statutory factors, this was the result of the parties’ failure to present evidence on such factors. Based upon the limited evidence before it, the trial court properly exercised its discretion by granting the mother’s request to relocate with the children.

AFFIRMED.

WEBSTER and PADOVANO, JJ„ concur.

POLSTON, J., dissents with opinion.

POLSTON, J.,

dissenting.

Although the trial court did not believe section 61.13001 applied, it ruled in the alternative that relocation was appropriate pursuant to that statute. I dissent because the trial court abused its discretion. The former wife failed to present competent, substantial evidence supporting the determination that relocation was appropriate. See Fredman v. Fredman, 960 So.2d 52, 60 (Fla. 2d DCA 2007) (holding that an appellate court reviews a decision on relocation for an abuse of discretion, and competent substantial evidence must support the trial court’s factual findings concerning the statutory factors for relocation); Dorta-Duque v. Dorta-Duque, 791 So.2d 1148, 1149 (Fla. 3d DCA 2001) (same); Botterbusch v. Botterbusch, 851 So.2d 903, 904 (Fla. 4th DCA 2003) (same); Russenberger v. Russenberger, 654 So.2d 207, 217 (Fla. 1st DCA 1995) (custody decision made upon findings that are not supported by-competent, substantial evidence constitutes an abuse of discretion) (citing Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975)).

When reaching a decision regarding a proposed temporary or permanent relocation, the court is required to consider the factors enumerated in section 61.13001(7), subsections (a) through (k). In Florida, there is no presumption in favor of, or against, relocation. § 61.13001(7), Fla. Stat. (2006). The burden of proof is on the parent wishing to relocate to prove by a preponderance of the evidence that relocation is in the best interest of the child. § 61.13001(8), Fla. Stat. (2006). If the initial burden is met, the burden shifts to the non-relocating parent to show by a preponderance of the evidence that the proposed relocation is not in the best interest of the child. Id. The former wife did not meet her initial burden of proof supporting relocation.

Here, it is apparent that the trial court mentioned almost all of the listed factors of section 61.13001. However, former wife failed to meet her burden of showing that the relocation was in the children’s best interests. Much of the evidence indicates that the move was in the best interests of the former wife and new husband. Berrebbi v. Clarke, 870 So.2d 172 (Fla..2d DCA 2004) (reversing order granting relocation because the trial court’s findings were not supported by competent, substantial evidence, noting that “[a]ny evidence regarding the benefits of relocation related to the Mother and her new husband, rather than the child”).

As noted by the trial court, evidence regarding a number of the section 61.13001 factors was not introduced during the hearing. For example, the trial court notes: “The age and developmental stage of the children, their needs and the likely impact of the relocation and its impact on the children’s physical, educational and emotional development, [see § 61.13001(7)(b), Fla. Stat. (2006)], was not addressed to any extent by the parties at the hearing.” Further, as to the feasibility of maintaining the relationship between the non-relocating father and the children through substitute arrangements, see § 61.13001(7)(c), the court noted:

The feasibility of preserving the relationship between the non-relocating parent and the children through substitute arrangements to take into consideration the logistics of contact, access, visitation and time sharing, as well as the financial circumstances of the parties and whether those factors are sufficient to foster continuing meaningful relationship between the children and the non-relocating parent and the likelihood of compliance with the substitute arrangements by the relocating parent once she is out of the jurisdiction of the Court, was also not addressed to any significant amount during the hearing.

Thus, there is no indication in the record of how continued meaningful visitation could be accomplished when the children relocated to Chicago. See Muller v. Muller, 964 So.2d 732 (Fla. 3d DCA 2007) (finding trial court abused its discretion in granting former wife’s petition to relocate, noting that “there is no substantial competent evidence that relocation would foster and preserve any type of meaningful relationship between the Father and the child”); Berrebbi, 870 So.2d at 173 (reversing order granting petition for relocation, noting that the substitute visitation schedule significantly altered former husband’s visitation). The trial court also noted that it could not tell “whether or not the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation.” See 61.13001(7)(g), Fla. Stat. (2006). Finally, there was no evidence to suggest that the children would be better off in the Chicago charter school the former wife planned to enroll them in than the school they had been attending in Jacksonville. Cf. Berrebbi, 870 So.2d at 173 (noting that evidence did not show how child’s school or home life would improve if relocation granted); Fredman v. Fredman, 960 So.2d 52 (Fla. 2d DCA 2007) (upholding denial of request by mother to relocate children from Tampa to Texas over objection of their father because there was no showing that the proposed relocation would improve the children’s school, family, or home life). Thus, the former wife failed to satisfy her initial burden of proof by providing competent, substantial evidence supporting the trial court’s determination that relocation was warranted.

Because I would reverse the order on appeal to the extent it grants former wife’s request to locate with the minor children to Chicago, I respectfully dissent.


text:
    Michael S. ELSTEIN, Esq., Appellant, v. Lazaro VIDAL, Carribean Freight Systems, and First Commercial Claim Services, Appellees.
    No. 1D07-6168.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.

      Michael S. Elstein, of the Law Offices of Michael S. Elstein, P.A., Fort Lauderdale, for Appellant.
    Cindy J. Mishcon of Pyszka, Blackmon, Levy, Mowers & Kelley, Miami Lakes, for Appellees.
   PER CURIAM.

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

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    Martin COLOMBO, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2452.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2008.
    Martin Colombo, pro se, Appellant.
    Bill McCollum, Attorney General, Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse, and remand for further proceedings.

Following a guilty plea, appellant was sentenced to 15 months in prison for lewd and lascivious molestation. In his rule 3.850 motion, appellant alleged that he received ineffective assistance of counsel when his defense attorney advised him that his plea would not subject him to civil commitment pursuant to the Jimmy Ryce Act.

To state a facially sufficient claim of ineffective assistance of counsel, appellant’s burden was to demonstrate that his counsel’s performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because, without the conduct, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Spencer v. State, 842 So.2d 52, 61 (Fla.2003); Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995); Betts v. State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001). Appellant met his burden by stating that he was given affirmative misadvice that entering a plea would not subject him to civil commitment pursuant to the Jimmy Ryce Act and that, but for this misadvice, he would not have entered his plea.

The trial court denied the motion, stating that appellant’s attorney was not required to inform appellant of the collateral consequences of the plea, including the application of the Jimmy Ryce Act. However, affirmative misadvice of counsel regarding the collateral consequences of entering a plea can constitute ineffective assistance of counsel and provide a basis for withdrawing a plea. See, e.g., State v. Sallato, 519 So.2d 605 (Fla.1988) (remanding to the trial court to determine whether the appellant was given misadvice about the effect his guilty plea would have on becoming a United States citizen); Watrous v. State, 793 So.2d 6 (Fla. 2d DCA 2001) (remanding to the trial court to determine whether the appellant was given affirmative misadvice that after his plea he would be released on time already served). Furthermore, civil commitment of sexual predators is considered a collateral consequence of entering a plea to a qualifying offense. See Watrous, 793 So.2d at 8-10.

Because appellant stated a facially sufficient claim of ineffective assistance of counsel and the trial court denied the motion without attaching portions of the record that conclusively refuted the claim, we reverse the summary denial of appellant’s motion. On remand, should the trial court elect again summarily to deny appellant’s claim, it shall attach to its order those portions of the record that demonstrate conclusively that appellant’s claim is without merit; otherwise, it shall hold an evi-dentiary hearing.

REVERSED and REMANDED, with directions.

WEBSTER, BENTON, and POLSTON, JJ., concur.


author: COPE, J.

text:
    LEON MEDICAL CENTERS, INC., d/b/a Leon Medical Centers, a Florida not for profit corporation; Dr. Ricardo F. Martinez, M.D., and Ricardo F. Martinez, M.D., P.A., Appellants, v. Estela MARTELL, as Personal Representative of the Estate of George Martell, deceased, Appellee.
    Nos. 3D07-96, 3D06-3099.
    District Court of Appeal of Florida, Third District.
    Jan. 30, 2008.
    Carlton Fields, and Henry G. Gyden, Tampa; Romaguera, Baker, Dawson & Bringardner and Erica S. Grossman, Palm Beach Gardens, for appellants.
    Samuel M. Spatzer, Coral Gables; Ginsberg & Schwartz, and Arnold R. Ginsberg, Miami, for appellee.
    Before COPE and WELLS, JJ., and FLETCHER, Senior Judge.
   COPE, J.

Leon Medical Centers, Inc., Dr. Ricardo Martinez, and Dr. Ricardo Martinez, P.A. (“defendants”), appeal an order compelling arbitration. They contend that the trial court compelled arbitration under the incorrect statute. We agree and reverse.

Estela Martell, as Personal Representative of George Martell (“plaintiff’), filed a notice of intent to initiate a medical negligence claim against the defendants for the wrongful death of George Martell. See § 766.106(2), Fla. Stat. (2004). The defendants sent a letter offering to admit liability and submit the damages issue to arbitration. See id. § 766.106(3)(b)3. The plaintiff sought clarification on a point not material here. The defendants supplied the requested clarification, and in so doing, stated that “the offer to arbitrate was for voluntary binding arbitration as set forth under Chapter 766.” The plaintiff accepted the offer as clarified.

Prior to arbitration, a dispute arose regarding the interpretation of the parties’ agreement. The defendants contended that the parties’ agreement to arbitrate was subject to the damages limitations set forth in section 766.207, Florida Statutes (2004). The plaintiff contended that those limitations were not applicable.

To resolve this dispute, the plaintiff moved to compel arbitration. The trial court granted the plaintiffs motion and compelled arbitration without damages caps. This timely appeal follows.

The plaintiff begins with the observation that the defendants’ offer was made under subparagraph 766.106(3)(b)3., Florida Statutes (2004). The plaintiff points out that the last sentence of subparagraph 3 states, “This offer may be made contingent upon a limit of general damages.” The defendants’ offer was not stated to be contingent upon a limit of general damages. Therefore, according to the plaintiff, this means that the parties’ agreement is for an arbitration with no limitation on general damages.

The plaintiff acknowledges that chapter 766, Florida Statutes, was amended in 2003. Ch. 2003-416, §§ 48-63, Laws of Fla. These amendments simplified the voluntary arbitration provisions of chapter 766. See Thomas D. Sawaya, Personal Injury and Wrongful Death Actions § 12.11 (2008). The plaintiff acknowledges that the Legislature may have intended to make all of chapter 766 subject to the statutory limitation on damages found in section 766.207. However, the plaintiff argues that if this was the legislative intent, the Legislature failed to accomplish it. That is so, the plaintiff says, because the Legislature left intact the sentence just quoted: “This offer may be made contingent upon a limit of general damages.” The plaintiff says that because the defendants failed to include a limit of general damages in their offer, there is no limit and the matter should be treated as a voluntary binding arbitration under chapter 44, Florida Statutes.

We need not reach the plaintiffs statutory interpretation argument. In this case the defendants clarified (prior to the plaintiffs acceptance) that their “offer to arbitrate was for voluntary binding arbitration as set forth under Chapter 766.” Section 766.207 is part of chapter 766 and prescribes liability limitations. As set forth in the defendants’ clarification, their offer was subject to the provisions of chapter 766, which includes the statutory damages limitations.

It follows that the trial court erred in compelling arbitration under section 44.104, Florida Statutes, and in ruling that section 766.207, Florida Statutes is inapplicable. The arbitration shall proceed under chapter 766, Florida Statutes, including section 766.207.

The plaintiff has also argued that the issues addressed above are not reviewable here under Florida Rule of Appellate Procedure 9.130. That rule provides, in part, for review of non-final orders which determine “the entitlement of a party to arbitration[J” Fla. R.App. P. 9.130(a)(3)(C)(iv). We reject the plaintiffs jurisdictional argument, and conclude that ordering arbitration under an incorrect statutory provision is subject to review under the rule.

For the stated reasons, we reverse the order now before us and remand for further proceedings consistent herewith.

      . The decedent died on May 26, 2004.

      . For the terminology relating to Florida statutory subdivisions, see The Golf Channel v. Jenkins, 752 So.2d 561, 565 n. 3 (Fla.2000); Keller v. Newman Sons, Inc., 756 So.2d 120, 122 n. 2 (Fla. 3d DCA 2000).

      . The Legislature might wish to revisit the statutory sentence cited by the plaintiff in light of the plaintiff's argument presented herein.


author: WARNER, J.

text:
    Marcos SEGURA, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3642.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 2008.
    Carey Haughwout, Public Defender, and Elisabeth Porter, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Julie D. Lindahl, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Marcos Segura was charged by information with second-degree murder for the fatal stabbing of his father, Marcos Segura, Sr. He claimed self-defense. The jury convicted him as charged and he appeals, raising several trial court errors. These include the admission of gruesome photographs, permitting an officer to testify regarding blood stain evidence, and fundamental error with respect to the jury instructions on self-defense. We affirm on all issues.

Segura argues that the trial court erred in admitting numerous, oversized, redundant, and gruesome photographs into evidence, as they were prejudicial and distracted the jury from a fair consideration of the evidence in reaching its verdict. He claims that this error was harmful. State v. DiGuilio, 491 So.2d 1129, 1137 (Fla.1986); Walker v. State, 665 So.2d 1070 (Fla. 4th DCA 1995). The state counters that the photographs provided relevant ev-identiary value tending to prove and disprove material facts, and that the photographs corroborated testimony.

“The admission of photographic evidence of a murder victim is within the sound discretion of the trial court, and absent abuse, the trial judge’s ruling will not be disturbed on appeal.” England v. State, 940 So.2d 389, 399 (Fla.2006). See also Zack v. State, 911 So.2d 1190, 1209 (Fla.2005) (a trial court’s ruling on the admission of photographic evidence will not be disturbed on appeal unless there is a showing of clear abuse of discretion). Photographs are relevant when they establish the manner in which the murder was committed, show the position and location of the victim as found by police, or assist crime scene technicians in explaining the condition of the crime scene when police arrived. Douglas v. State, 878 So.2d 1246, 1255 (Fla.2004). Similarly, this court has stated that photographs are relevant where they “bear on the issues of the nature and extent of injuries, the nature and force of the violence used, premeditation or intent....” Grey v. State, 727 So.2d 1063,1065 (Fla. 4th DCA 1999).

Although we note that Segura did not object to most of the admitted photographs of which he now complains, we nevertheless conclude that, even if the issue had been properly preserved, the admission of the photographs was not an abuse of discretion. They were admitted to assist in explaining the position and location of the body and the reconstruction of the crime scene. They were also useful in the medical examiner’s explanation of the wounds on the body.

In his second issue on appeal, Segura complains of the admission of the detective’s expert testimony on blood stain evidence, claiming that the detective was not properly qualified to offer the testimony that he did. The trial court did not abuse its discretion in permitting the testimony. See Anderson v. State, 863 So.2d 169, 179-80 (Fla.2003). Nor do we agree with Seg-ura’s contention that the prosecutor’s questioning was more prejudicial than probative.

Finally, Segura argues that the jury instruction on self-defense was misleading and confusing, because Segura was in his own home and the father was a co-occupant. The state maintains the trial court did not abuse its discretion in instructing the jury as to both a duty to retreat and an absence of that duty, where the jury was thoroughly explained its application in the context of co-occupants, and the state did not exploit the conflicting instruction. Weiand v. State, 732 So.2d 1044 (Fla.1999).

We have previously rejected the argument that the reading of both instructions on the duty to retreat and the absence of a duty to retreat is confusing. See Liotta v. State, 939 So.2d 333, 334 (Fla. 4th DCA 2006); Dias v. State, 812 So.2d 487, 492 (Fla. 4th DCA 2002); Wilson v. State, 707 So.2d 1200, 1201 (Fla. 4th DCA 1998). Accord Barnes v. State, 922 So.2d 380 (Fla. 1st DCA 2006), quashed on other grounds, 970 So.2d 332 (Fla.2007); Wiggins v. State, 792 So.2d 642 (Fla. 1st DCA 2001). We likewise reject Segura’s contention in this case.

The trial court did not abuse its discretion in any of the rulings raised on appeal. We therefore affirm Segura’s conviction and sentence.

FARMER and GROSS, JJ., concur.