text:
    Lloyd ELLENDER, Appellant, v. Theodore M. BRICKER, Appellee.
    No. 2D06-4666.
    District Court of Appeal of Florida, Second District.
    Nov. 14, 2007.

      Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Frank D. Butler of Frank D. Butler, P.A., Pinellas Park, for Appellant.

      Charles W. Hall and Mark D. Tinker of Fowler White Boggs Banker P.A., St. Pe-tersburg, for Appellee.
   CANADY, Judge.

Lloyd Ellender, the plaintiff in a personal injury action arising from a motor vehicle accident, appeals a final judgment based on a jury verdict against defendant Theodore M. Bricker which awarded past and future economic damages to Ellender. We affirm without comment the circuit court’s denial of Ellender’s motion for ad-ditur or new trial on the issue of economic damages, but we reverse and remand for further proceedings on noneconomic damages.

I. Background

Ellender sued Bricker, claiming that Bricker’s negligent operation of his motor vehicle on Interstate 75 caused the accident which resulted in Ellender’s injuries. The jury found Bricker negligent and determined that his negligence was the legal cause of injury to Ellender. Ellender asked the jury to award him $44,543.24 in past medical expenses and $52,000 in future medical expenses, but the jury awarded $22,271.62 in past medical expenses and $26,000 in future medical expenses. Ellen-der asked the jury to award $54,000 for past pain and suffering and $130,000 for future pain and suffering. The jury awarded zero damages for past and future pain and suffering.

After the jury was discharged, Ellen-der’s counsel stated:

[W]e feel like we have an inconsistent verdict. There was permanency found, liability found, but no pain and suffering in the past or in the future here. I mean, obviously, we’re going to move for new trial on this or something.
Would the Court like us to do that by written motion?

The' court answered:

We have let the jury go regarding the issue of inconsistent verdict, so the jury’s already left on that issue. So I’m going to deny that issue. If you wish to file motions at the appropriate time, obviously you can do so.

Ellender filed a motion for additur or, in the alternative, for new trial on damages pursuant to section 768.043, Florida Statutes (2003). He argued that the jury’s award of damages was “clearly inadequate in light of all of the evidence at trial.” The circuit court denied Ellender’s motion and entered judgment in favor of Ellender consistent with the jury’s verdict.

II. Issues on Appeal

On appeal, Ellender first argues that the circuit court erred in denying his motion for additur or new trial on the issue of past noneconomic damages because there was undisputed evidence that he suffered pain from the injury and resulting necessary treatments. He claims that the amount awarded for past medical expenses required the jury to award some noneconomic damages. Bricker responds that Ellen-der did not preserve the issue for appeal because he did not object to the inconsistent verdicts before the jury was discharged. Ellender replies that the jury’s verdict was inadequate, not inconsistent, and that his motion for additur or new trial was sufficient to preserve the issue.

Ellender also claims that the undisputed evidence that his injuries will cause him pain and suffering in the future required an award of future noneconomic damages. He argues that such undisputed evidence concerning future pain and suffering makes this case distinguishable from other cases approving zero awards for future noneconomic damages. Bricker asserts that the evidence showed .that Ellender’s pain is caused by his preexisting back injury and his history of migraine headaches and that his future medication and treatments would obviate any future pain.

III. Preservation

A party may raise the issue of an inadequate verdict for the first time in a posttrial motion for additur or new trial. Cocca v. Smith, 821 So.2d 328, 330 (Fla. 2d DCA 2002). However, “[t]o preserve the issue of an inconsistent verdict, the party claiming inconsistency must raise the issue before the jury is discharged and ask the trial court to reinstruct the jury and send it back for further deliberations.” Id. Based on the pertinent case law, we conclude that Ellender’s argument constitutes a claim that the verdict was inadequate and that the issue therefore was properly preserved by his posttrial motion.

In Cowen v. Thornton, 621 So.2d 684, 686 (Fla. 2d DCA 1993), the jury found the defendant 25 percent liable but awarded zero damages, even though the ■ defendant did not contest the plaintiffs evidence regarding the amount of damages he suffered. The plaintiff filed a motion for additur and for new trial, which was denied by the trial court. On appeal, the defendant argued that the plaintiff failed to preserve the error because he did not bring the inconsistent verdict to the trial court’s attention before the jury was discharged. This court rejected the defendant’s argument and treated the claim as one of an inadequate verdict. Id. at 687.

In Avakian v. Burger King Corp., 719 So.2d 342, 344 (Fla. 4th DCA 1998), the court held that “[a] verdict is not necessarily inconsistent because it fails to award enough money, or perhaps no money at all, for future noneconomic damages after awarding past and future medical expenses and past lost earnings.” The plaintiff had challenged the jury verdict, which awarded past and future medical expenses and past lost earnings but did not award future lost earnings or any noneconomic damages. Id. at 343. “Under such circumstances, the issue is the adequacy of the award, not its consistency with any other award by the verdict.” Id. at 344.

In Deklyen v. Truckers World, Inc., 867 So.2d 1264, 1266 (Fla. 5th DCA 2004), the court considered whether a zero jury award for noneconomic damages was an inconsistent verdict or an inadequate verdict when the jury awarded substantial past and future economic damages. Applying Avakian, the court stated: “[W]e see no inconsistency in the verdict. The jury made no finding of fact that was inconsistent with any other finding it made.” Deklyen, 867 So.2d at 1266. The court characterized the plaintiffs challenge of the verdict as one of an inadequate verdict that could be raised in a posttrial motion for new trial. Id.

In this case, Ellender’s claim is one of an inadequate verdict because the thrust of his argument is that the zero award for past and future noneconomic damages is inadequate in light of the evidence presented at trial. Ellender filed a proper motion for additur or new trial raising the issue of inadequacy, and the fact that El-lender’s counsel referred to the verdict as inconsistent after the jury was discharged has no bearing on the issue. See DiMare, Inc. v. Robertson, 758 So.2d 1193, 1194 (Fla. 3d DCA 2000) (noting that although the trial court referred to verdict as inconsistent in a colloquial sense, it was technically describing an inadequate verdict); Avakian, 719 So.2d at 344 (“Although Plaintiffs counsel referred to the jury’s three verdicts as inconsistent and inadequate, it cannot be said that the verdicts were inconsistent.”).

IV. Past Noneconomic Damages

In considering the merits of Ellender’s claims, we review the circuit court’s denial of his motion for additur or new trial under an abuse of discretion standard. See Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998).

Ellender’s claim that the jury’s verdict was inadequate is governed by section 768.043, which provides:

(2) In determining whether an award is clearly excessive or inadequate in light of the facts and circumstances presented to the trier of fact and in determining the amount, if any, that such award exceeds a reasonable range of damages or is inadequate, the court shall consider the following criteria:
(a) Whether the amount awarded is indicative of prejudice, passion, or corruption on the part of the trier of fact.
(b) Whether it clearly appears that the trier of fact ignored the evidence in reaching the verdict or misconceived the merits of the case relating to the amounts of damages recoverable.
(c) 'Whether the trier of fact took improper elements of damages into account or arrived at the amount of damages by speculation or conjecture.
(d) Whether the amount awarded bears a reasonable relation to the amount of damages proved and the injury suffered.
(e) Whether the amount awarded is supported by the evidence and is such that it could be adduced in a logical manner by reasonable persons.

Here, Ellender presented evidence, through the testimony of two doctors, that he suffered pain from the injury caused by the accident. Dr. Wassel, an orthopedic physician, testified that Ellender suffered permanent lower back and neck injuries as a result of the accident. Dr. Hossain, a physician specializing in pain management and anesthesiology, testified that Ellender suffered neck and shoulder pain, headaches, and lower back pain. Dr. Hossain testified that Ellender’s “[n]eck was his major problem.” Ellender himself testified that he mostly suffers from back pain but that his neck will occasionally hurt him, causing headaches.

While evidence was presented by Brick-er that Ellender had suffered a prior lower back injury that could have contributed to his present pain, Ellender did not have any preexisting neck problems and the undisputed testimony established that after this accident, he suffered pain in his neck, requiring treatment and pain management.

Bricker also presented the testimony of Dr. Fishalow who testified that Ellender’s injuries were permanent and that he believed Ellender’s complaints of pain. Dr. Fishalow testified that Ellender suffered a neck injury and pain caused by the accident. “I felt that he has continued neck problems, and there was no — again, in this ease, there really was no indication that he had had them before, so I would have to relate them to this [i.e., the automobile accident with Bricker].”

There are at least three criteria under section 768.043 that indicate that the jury verdict for past noneconomic damages is inadequate. First, the jury clearly ignored this evidence or misconceived the merits of the case relating to the amount of past noneconomic damages recoverable. See § 768.043(2)(b). Second, the award of zero damages for past pain and suffering does not bear a reasonable relation to the amount of damages proven and the injury suffered. See § 768.043(2)(d). And third, the zero damages award for past pain and suffering is not supported by the evidence. See § 768.043(2)(e).

“[A]n award of economic damages, including future damages, does not, as a matter of law, require an award of noneconomic damages.” Deklyen, 867 So.2d at 1267. But where “the evidence is undisputed or substantially undisputed that a plaintiff has experienced and will experience pain and suffering as a result of an accident, a zero award for pain and suffering is inadequate as a matter of law.” Dolphin Cruise Line, Inc. v. Stassinopoulos, 731 So.2d 708, 710 (Fla. 3d DCA 1999) (holding that trial court erred in denying motion for additur or new trial on issue of zero noneconomic damages when jury awarded damages for past and future economic damages). In Deklyen, the court held that

where, as here, a jury awards the plaintiff past and future economic damages ... and zero damages for either past or future pain and suffering “despite indisputable evidence that the plaintiff suffered at least some pain from her injury, and uncontroverted evidence that the pain continued and would continue well after the injury, the damage award is grossly inadequate, and a new trial on the issue of damages is required.”

867 So.2d at 1268 (quoting Stevens v. Mount Vernon Fire Ins. Co., 395 So.2d 1206, 1207 (Fla. 3d DCA 1981)). “Since the jury found that [Ellender] suffered injuries that required treatment by medical care providers as evidenced by the award of past medical costs, the jury’s failure to award even nominal past noneco-nomic damages was not supported by the weight of the evidence and must be reversed.” Allstate Ins. Co. v. Campbell, 842 So.2d 1031, 1034-35 (Fla. 2d DCA 2003).

V. Future Noneconomic Damages

Zero awards for future noneco-momic damages are warranted when the defendant has presented evidence disputing such damages or when future noneco-nomic damages are uncertain or speculative. In Manasse, 707 So.2d at 1111-12, the court noted that

“[fjuture damages are, by nature, less certain than past damages. A jury knows for a fact that a plaintiff has incurred past medical expenses, and, when it finds those expenses to have been caused by the accident, there is generally something wrong when it awards nothing for past pain and suffering. The need for future medical expenses is often in dispute, however, as it was here. It does not necessarily therefore follow ... that an award of future medical expenses requires an award of noneconomic damages.”

(quoting Allstate Ins. Co. v. Manasse, 681 So.2d 779, 784-85 (Fla. 4th DCA 1996) (Klein, J., dissenting)); see also Campbell, 842 So.2d at 1035 (“[A]s in Manasse, the need for future economic damages was disputed and the jury awarded only minimal future economic damages. Therefore, the jury’s failure to award future noneco-nomic damages was supported by the evidence. ...”); Dyes v. Spick, 606 So.2d 700, 704 (Fla. 1st DCA 1992) (“Due to the somewhat speculative nature of what may occur in the future, it is perhaps not unwise to afford great latitude to the jury in its determinations as to [future] damages.”).

On the other hand, awards of zero damages for future noneconomic damages are unreasonable when there is undisputed evidence of permanent injury and a need for treatment in the future. See Garrett v. Miami Transfer Co., 964 So.2d 286, 291 (Fla. 4th DCA 2007) (holding that the “jury’s failure to award future non-economic damages was unreasonable” where the jury awarded a significant amount for future medical expenses and where the evidence was undisputed that the accident caused plaintiffs injuries and that he would need future treatment, “indicating future pain”); Ramey v. Winn Dixie Montgomery, Inc., 710 So.2d 191, 194 (Fla. 1st DCA 1998) (“Our review of the record as a whole demonstrates the zero damages award for future medical expenses and for future pain and suffering is not reasonable in light of the undisputed evidence of permanent injury; continuing, and perhaps, increasing pain; and a continuing need for treatment.”); see also Deklyen, 867 So.2d at 1268; Dolphin, 731 So.2d at 710.

Here, Ellender had preexisting conditions — a lower back injury and a history of migraine headaches — that might have contributed to his injuries and pain. The jury did not award the full amount of future medical expenses (or past medical ' expenses) that Ellender requested, indicating that the jury did not believe that all of Ellender’s necessary medical treatment was caused by the accident. But in making the award for future medical expenses, the jury essentially found that half of El-lender’s claimed future medical expenses are related to the accident.

The testimony at trial showed beyond dispute that Ellender suffered permanent injuries due to the accident and that he would require some future medical treatment for those injuries. Dr. Wassel testified that Ellender suffered permanent lower back and neck injuries as a result of the accident and that he would require treatment in the future for “flare-up[s]” and “exacerbation,” including “pain management.” Dr. Hossain testified that Ellen-der suffered neck and shoulder pain, headaches, and lower back pain. Dr. Hossain testified that Ellender’s “[njeck was his major problem.” Dr. Hossain’s testimony as to Ellender’s future medical expenses suggested that Ellender will continue to suffer pain in the future, requiring medical treatment. Ellender himself testified that he mostly suffers from back pain but that his neck will occasionally hurt him, causing headaches. In addition, Ellender did not have any preexisting neck problems, and the testimony established that after this accident, he suffered pain in his neck, requiring treatment and pain management.

The evidence regarding Ellender’s lower back and neck pain and headaches was undisputed by Bricker. Dr. Fishalow— one of Brieker’s experts — testified that El-lender will suffer “permanent symptoms and complaints” regarding his neck.

In light of the above evidence regarding the probability of Ellender’s future pain and the jury’s award of future medical expenses, the jury should have awarded Ellender some future noneconomic damages. See Dolphin, 731 So.2d at 710-11 (reversing zero award for noneconomic damages and remanding for additur or new trial on past and future noneconomic damages where the evidence was undisputed that the plaintiff experienced and will experience pain and suffering as a result of the accident).

VI. Conclusion

We reverse the circuit court’s final judgment and remand for further proceedings on Ellender’s motion for additur or new trial consistent with this opinion. See § 768.043(1) (“If the party adversely affected by such ... additur does not agree, the court shall order a new trial in the cause on the issue of damages only.”); Truelove v. Blount, 954 So.2d 1284, 1289-90 (Fla. 2d DCA 2007).

Reversed and remanded.

VILLANTI, J., and LEVY, DAVID L., Associate Senior Judge, Concur.

      . Ellender's wife was also a plaintiff in the action, but she did not appeal the circuit court’s final judgment.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Saturnino ESTEBAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2749.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Carey Haughwout, Public Defender, and Marcy K. Men, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant challenges his conviction for sexual battery and false imprisonment contending that the trial court erred in granting the state’s motion in limine, preventing him from producing evidence that the victim was a prostitute. He claimed this fact was necessary to support his defense that someone else attacked the victim. He also challenges the admission of hearsay statements by the victim to an examining physician that she knew her attacker. We hold that the court properly granted the motion in limine and that the admission of hearsay was harmless error.

Appellant Saturnino Esteban lived with the victim’s sister in Broward County. The victim lived in Atlanta but often visited. She and Esteban had a casual sexual relationship during these visits. Although the victim had a boyfriend in Atlanta and Esteban dated other women, Esteban wanted them relationship to become something more serious. According to the victim, her refusal to become Esteban’s girlfriend triggered the attack.

The victim came to visit in May 2005 but refused to stay in Esteban’s room. On the day of the incident, the victim went to the beach with friends. When she returned, Esteban thanked her for cooking dinner and kissed her. He then went to buy beer.

Later on in the evening, after the victim’s friends left, she remained on the patio of the home, talking on her cell phone. Around 12:30 a.m., Esteban grabbed her from behind, called her names, and told her he was going to make her pay for all the times she ignored him. He pushed her to the side of the house, struck her, bit her, and sexually assaulted her. He sexually assaulted her twice more on cushions by the side of the house. He did not use a condom.

Holding her by the throat, Esteban then forced the victim back into the house and to his room where he sexually assaulted her again. She attempted to escape by telling him she had to go to the bathroom; however, Esteban refused to allow her to leave. She urinated on the bed.

When morning came, Esteban begged the victim not to tell anyone what had happened. He offered her money and to get her medication for her injuries. He also concocted a story to tell the others that he and the victim had gone to a bar, and she had been assaulted on the way home.

After Esteban left for work in the morning, the victim immediately awoke her sister and told her what happened. The police were called to the house. Once there, they conducted an investigation, taking the victim’s statement and photographing her injuries. Her throat was swollen, and she had difficulty speaking. She was taken to the hospital for a sexual assault examination. The examining physician explained the results of his examination and his observations of the victim’s injury. Over a hearsay objection, the doctor was permitted to testify that the victim told him that she knew her attacker. The doctor did not testify as to the attacker’s identity or his relationship to the victim. A rape kit was prepared, and tests proved that DNA of Esteban was found on a vaginal swab from the victim.

A detective also gathered up physical evidence at the house, including the cushions outside the house. Although the victim testified that Esteban did not use a condom when he raped her on the cushions, a condom was recovered near the cushions. However, none of these items were tested for DNA evidence.

Upon returning from work, Esteban was surprised to find the detective at the residence. The detective arrested Esteban, who waived his Miranda rights and told the detective his version of events, to which Esteban also testified at trial with some variation. He testified that he had been drinking the entire day when the victim was at the beach, and he continued to drink that evening until he passed out. The next thing he remembers was waking up in his bed next to the victim. He was surprised by the injuries he saw on her. However, despite these injuries, she told him that she wanted to have sex with him but she did not want him to use a condom. He complied. Afterwards, he told the victim that he would stop by the drugstore to obtain medications for her injuries. He then left for work.

The detective’s testimony differed somewhat from Esteban’s testimony regarding what Esteban told him at the time of his arrest. Esteban did not remember what happened because he had been drinking. However, Esteban told the detective that when he woke up and looked at the victim’s injuries, the victim said to him, “Don’t you remember what you did?” The detective also never mentioned that Esteban had told him that the victim had wanted sex in the morning.

Esteban’s theory of defense at trial was that someone else had sexually assaulted the victim and physically battered her on the cushions outside the house. To support his defense he sought to offer evidence that the victim was a prostitute. The state moved in limine to prevent Esteban from making a reference that the victim was a prostitute. The defense proffered comments made by the detective in Esteban’s taped statement that the detective knew the victim was a prostitute. However, the detective testified during the proffer and admitted that he had no factual evidence that the victim was a prostitute. He had merely made some assumptions. Esteban also proffered his own testimony regarding her prostitution activities. After having heard the proffer of evidence, the trial court granted the motion in limine and refused admission of the evidence.

The jury found Esteban guilty as charged. The court entered a conviction and sentenced him to fifteen years in prison for the sexual assault and five years for the false imprisonment, each to run concurrently. From this conviction, Esteban appeals, raising the refusal to admit evidence that the victim was a prostitute and the doctor’s hearsay testimony that the victim admitted that she knew her attacker as requiring reversal of his conviction.

The standard of review with respect to the lower court’s ruling on the admissibility of evidence is abuse of discretion. Ray v. State, 755 So.2d 604, 610 (Fla.2000). However, in Minus v. State, 901 So.2d 344, 348 (Fla. 4th DCA 2005), this court explained that “[t]he standard for the admission of evidence that a criminal defendant seeks to admit ... is broader than that of a civil defendant because of the defendant’s Sixth Amendment rights.” Nevertheless, the evidence must be relevant.

Florida’s rape shield law limits evidence of a sexual battery victim’s other sexual activity and reputation evidence of prior sexual conduct. That statute provides in pertinent part:

(2) Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease —
(3) Notwithstanding any other provision of law, reputation evidence relating to a victim’s prior sexual conduct ... shall not be admitted into evidence in a prosecution under s. 794.011.

§ 794.022, Fla. Stat. (2005).

In Marr v. State, 494 So.2d 1139 (Fla.1986), the supreme court held that the statute did not violate a defendant’s Sixth Amendment rights, because it constituted a rule of relevance:

We view this section as essentially an explicit statement of the rule of relevancy: A victim’s prior sexual activity with one other than the accused is simply irrelevant for determining the guilt of the accused. The only time the victim’s prior sexual activity with a third person is relevant is when such evidence may show the accused was not the perpetrator of the crime or if the defense is consent by the victim. This view is buttressed by subsection (3), which provides that the victim’s reputation for prior sexual conduct is irrelevant and hence inadmissible. It appears that these sections’ underpinnings are based on the idea that a sexual battery victim should be able to come forward and testify against the alleged perpetrator without having the victim’s prior sexual activities become the focal point of the trial, rather than the guilt or innocence of the accused.

Id. at 1142-43 (emphasis added). See also Commerford v. State, 728 So.2d 796 (Fla. 4th DCA 1999). Consistent with this view, in Roberts v. State, 510 So.2d 885, 892 (Fla.1987), the supreme court held that evidence that the victim was a prostitute was inadmissible where it was not offered to show that the victim consented to sex with the defendant, because consent was not an issue in that case as the defendant claimed not to have had sex at all with the victim.

Robinson v. State, 575 So.2d 699 (Fla. 1st DCA 1991), provides a useful analysis for the trial court to determine when to admit evidence that the victim of sexual battery was a prostitute. First, the defendant must “make a sufficient showing through an offer of proof on the record or by other appropriate means, that the evidence of prostitution bears materially” on the issues and that without this evidence, “the defendant’s ability to present a defense will be critically hampered....” Id. at 703. If the defendant makes a sufficient showing, “then the trial court should engage in a balancing test to weigh the probative value of the evidence against the unfair prejudice to the victim and the state’s case to determine if it should be admitted.” Id.

Here, Esteban sought to introduce the victim’s reputation as a prostitute to suggest that someone else may have perpetrated this crime. As Marr noted, a victim’s prior sexual activity with a third person is relevant when it may show that someone else committed the crime. But Esteban did not attempt to show specific acts of sexual activity with a third person on the evening of the attack, which is what we believe the supreme court meant in Marr. Evidence that the victim was a prostitute is reputation evidence, which under section 794.022(3) is inadmissible. It is not relevant in this case, because it does not tend to prove a material fact in the case. The victim’s reputation does not tend to prove that the victim was acting as a prostitute and was attacked by one of her customers. To make such connection under the facts of this case would amount to sheer speculation. We agree with the trial court that such evidence was not relevant.

On appeal, Esteban also argues that evidence of the victim being a prostitute went to her credibility and motive to lie about an attack by Esteban. He claims she wanted to cover up her life as a prostitute, because she did not want to explain that she was beaten up by one of her clients. He did not support his theory by any proffer of evidence.

Where the defense claims that the victim has fabricated her testimony in Order to preserve the victim’s sexual relationship with a third person, courts have permitted admission of such evidence. See Lewis v. State, 591 So.2d 922 (Fla.1991). We have permitted a defendant to examine a victim about her sexual history where her parents disapproved of her non-marital sexual relationship which could constitute a motive to lie about consensual sex with the defendant. See Jones v. State, 577 So.2d 606 (Fla. 4th DCA 1991). Similarly, in Dixon v. State, 605 So.2d 960, 961 (Fla. 2d DCA 1992), in a trial for sexual battery of a child, the court permitted evidence that the child had engaged in sexual play with her younger brother some weeks before the alleged assault to support the defendant’s claim that the child victim’s detailed testimony about sex with the defendant was false. His defense was that the child victim had fabricated the story at the instigation of the mother and her boyfriend to send the defendant to jail, because he had made a pass at the mother. That the child may have engaged in sexual activity with her little brother would prove her knowledge of sexual matters such that the defendant’s claim of fabrication would seem more plausible.

All of these cases involve a specific incident or relationship which the victim may be seeking to hide or preserve which may give rise to a claim of a motive to fabricate to protect that relationship. There was no similar type of evidence in this case. In fact, Esteban really does not explain why his evidence that the victim worked as a prostitute provided a motive to accuse him of sexual battery. Esteban offered no evidence that the victim’s family would have disowned her had they discovered her (alleged) work as a prostitute or that she was plotting against Esteban, or any specific motive to lie. Were we to accept. Esteban’s argument on this point, then the rape shield law would have little effect, because a defendant could always argue that prior sexual conduct or reputation was a reason to lie about subsequent sexual activity. .

As a second issue on appeal, Esteban claims that the court erred in allowing the examining physician to testify that the victim stated to him that she knew her attacker, although he did not testify that she identified Esteban. He noted that he does not usually ask such information. This evidence constituted hearsay and was not for the purpose of medical diagnosis. § 90.803(4), Fla. Stat. (2005). See Conley v. State, 620 So.2d 180 (Fla.1993). Nevertheless, we conclude that it was harmless beyond a reasonable doubt. The physician did not testify that the victim identified Esteban as her attacker. Moreover, the detective testified that the victim identified Esteban as her attacker. Thus, at best the physician’s statement was merely cumulative to the far more extensive testimony of the detective and the victim herself.

Having concluded that the trial court correctly ruled on these evidentiary objections, we affirm the conviction and sentence.

GUNTHER and GROSS, JJ., concur.


text:
    Paulo MORAES, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4254.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Paulo Moraes, appeals the order denying his presentence motion to withdraw his plea of nolo contendere to the charge of lewd or lascivious exhibition in the presence of a child under sixteen. Moraes claims that he provided good cause for withdrawal, because, after his plea but before sentencing, the legislature passed the Jessica Lunsford Act, which enhanced the reporting requirements and penalties for sexual offenders. We conclude that he showed good cause, and reverse.

Moraes was charged by information with lewd or lascivious exhibition for intentionally masturbating in the presence of a child under the age of sixteen. Moraes entered an open plea of no contest to the court. At the time of the plea hearing, Moraes was twenty-three years old and had no prior criminal history.

After the plea but before sentencing, Moraes filed a written motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(f). He alleged that at the time he entered the plea, he did not know that the Florida Legislature and several municipalities were poised to change the existing sexual offender statutes. He provided three reasons to support the motion. First, he argued that the Jessica Lunsford Act enhanced the reporting requirements and penalties from a level six to level seven for failure to comply. Second, since the entry of his plea, several municipalities in South Florida increased restrictions on where sexual offenders could live, in some instances effectively banning them from residing within those communities. Finally, Moraes indicated that his livelihood could be affected because he is employed in the information technology field, and new restrictions have been placed upon contractors and subcontractors who perform work for school boards relating to whether they have registered sexual offenders within their employ.

The state opposed the motion, arguing that he should have anticipated such changes in the law, as they were being considered at the time he pled. Residency restrictions existed at the time of the plea, and the changes enacted by the municipalities simply increased the distance a sex offender is banned from residing near schools and other institutions from 1000 to 2500 feet. The state contended the fact that a penalty might be harsher does not rise to the level of good cause. Finally, the state argued that it would be unfair to the victim to permit withdrawal of the plea. The court denied the motion to withdraw, prompting this appeal.

The circumstances under which a defendant may withdraw a plea are governed by Florida Rule of Criminal Procedure 3.170(f), which provides that “[t]he court may in its discretion, and shall on good cause, at any time before a sentence, permit a plea of guilty or no contest to be withdrawn .... ” (emphasis added). Because the law favors a trial on the merits, this rule should be liberally construed in favor of a defendant. Smith v. State, 840 So.2d 404, 406 (Fla. 4th DCA 2003). “[T]he trial court is obligated to allow the defendant as a matter of right to withdraw a plea if good cause is shown, while in situations where less than good cause is shown, a trial court’s decision will not be reversed absent an abuse of discretion.” Id.; see also Robinson v. State, 761 So.2d 269, 273-74 (Fla.1999).

A defendant should be permitted to withdraw a plea where he proves that the plea was entered under mental weakness, mistake, surprise, misapprehension, fear, promise, or other circumstances affecting his rights. Smith, 840 So.2d at 406. We think a change in law which increases the burdens on a defendant after a plea is entered but before sentencing affects the defendant’s rights and constitutes good cause for withdrawal of the plea.

In this conclusion we find support in State v. Partlow, 840 So.2d 1040 (Fla.2003), where the supreme court held that failure to inform a defendant of the sexual offender registration requirements did not constitute a manifest injustice to require a motion to withdraw a plea after sentencing to be granted. The defendant in Partloiu had complained that he had not been informed of the existing registration requirements. The 4-3 majority opinion specifically noted that the court considered the motion to withdraw under rule 3.170(Z) and not rule 3.170(f). In a concurring opinion, Justice Cantero noted this difference and opined that had the motion to withdraw the plea been made prior to sentencing under rule 3.170(f), he thought the motion might well have constituted good cause to withdraw the plea. Surely, if ignorance of existing registration requirements and residence restrictions can constitute good cause to withdraw a plea before sentencing, then a change in law increasing those restrictions after the plea but before sentencing must also be considered good cause.

We distinguish Boutwell v. State, 776 So.2d 1014 (Fla. 5th DCA 2001), in which the court refused to allow a defendant to withdraw his plea because of his ignorance of the sexual offender registration requirements. Although he made his motion pri- or to sentencing, he did not appeal his sentence and challenged it by way of a motion for postconviction relief. Thus, the standard of review changed. Furthermore, he alleged that he was ignorant of current registration requirements, as in Partlow. In this case, Moraes alleges that the law changed after his plea was accepted but before sentencing.

Because a change in the law increasing the burdens placed upon sexual offenders occurred after Moraes’s plea and before his sentencing, he showed good cause to withdraw his plea. As a matter of right, he is entitled to this relief and to elect a trial on the merits.

Reversed and remanded for further proceedings.

GUNTHER and GROSS, JJ., concur.


author: COLBATH, JEFFREY, Associate Judge.

text:
    Philip LEIGH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2917.
    District Court of Appeal of Florida, Fourth Distinct.
    Nov. 14, 2007.

      Carey Haughwout, Public Defender, and Michael Antinori, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   COLBATH, JEFFREY, Associate Judge.

Appellant, Philip Leigh, appeals his conviction and sentence for conspiracy to traffic in cocaine and trafficking in cocaine. Appellant argues two errors warrant reversal: (1) that the trial court erred in admitting the hearsay statements of Appellant’s co-conspirator, Malcolm Hawse, because there was no independent evidence that a conspiracy existed at the time Hawse made the statements and (2) that the court erred in denying Appellant’s motion for judgment of acquittal on the trafficking charge because the purchase of cocaine was never completed. We disagree with both points raised by Appellant and affirm both convictions and sentences.

This case begins in August of 2003 when Alex Hernandez agreed to work as a confidential informant for the Plantation Police Department. At that time, Hernandez was working at a shipyard for Destiny Yachts. Malcolm Hawse, a day worker at the shipyard, contacted Hernandez about purchasing a large quantity of cocaine. Hawse told Hernandez that he had a friend that wanted to purchase up to 20 kilograms of cocaine. Hawse and Hernandez met and concluded their meeting with an agreement that Hernandez would supply Hawse with cocaine.

The next conversations took place in mid-December of 2003. Hawse told Hernandez that he was still interested in purchasing the cocaine and that his friend would finance the deal. The next day, Hawse told Hernandez that his friend was flying into town. On December 23, 2003, Hawse introduced Appellant, Philip Leigh, to Hernandez as the person with the money who would purchase the cocaine.

The record establishes that on December 29, 2003, Leigh, Hawse, and Hernandez met at the Town Motel in Plantation. Appellant entered the room with cash and handed Hernandez $39,500.00 to purchase the first two kilos of cocaine. Hernandez counted the money, left the room, and returned with two kilos of cocaine. Appellant and Hawse inspected and snorted the cocaine. Appellant then handed Hernandez another $19,750.00 to purchase a third kilo of cocaine. Hernandez left the room on the pretext of retrieving the third kilo of cocaine, whereupon the police entered the room and arrested Appellant and Hawse.

Appellant argues that out-of-court statements made between Hawse and Hernandez occurring before December 23, 2003, were inadmissible as evidence that Appellant was a participant in a conspiracy to traffic in cocaine. Pursuant to Florida Statutes section 90.803(18)(e), the following hearsay is admissible:

A statement by a person who was a coconspirator of the party during the course, and in furtherance, of the conspiracy. Upon request of counsel, the court shall instruct the jury that the conspiracy itself and each member’s participation in it must be established by independent evidence, either before the introduction of any evidence or before evidence is admitted under this paragraph.

This exception to the hearsay rule “‘requires (1) that these statements be made during and in furtherance of a conspiracy, and (2) that independent evidence establish the conspiracy before the statements are allowed.’” Arguelles v. State, 842 So.2d 939, 943 (Fla. 4th DCA 2003) (quoting Brooks v. State, 787 So.2d 765, 773 (Fla.2001)). As such, the question that must be addressed is “whether there was competent, independent evidence, without consideration of any hearsay statements of co-conspirators, to establish defendant as a participant in a conspiracy to traffic in cocaine.” Christie v. State, 652 So.2d 932, 933 (Fla. 4th DCA 1995) (on rehearing). A defendant’s participation in such a conspiracy must be established by a preponderance of the evidence. Id.

In order “[t]o establish a conspiracy and appellant’s participation in it, the state must prove ‘an express or implied agreement or understanding between two or more persons to commit a criminal offense,’ and an intention to commit that offense.” Arguelles, 842 So.2d at 944 (quoting Sheriff v. State, 780 So.2d 920, 921 (Fla. 4th DCA 2001)). “Direct proof of the agreement is not necessary; it may be inferred from the circumstances.” Arguelles, 842 So.2d at 944. Florida courts have upheld conspiracy convictions where defendants are involved in a series of meetings, arrangements and negotiations to sell or buy illegal drugs that lead to such sale or purchase. Pino v. State, 573 So.2d 151, 152 (Fla. 3d DCA 1991).

Only where, unlike this case, the defendant’s involvement in the enterprise appears to be minimal at best, evincing no prearrangements with the other defendants ... have Florida courts been inclined to reverse such conspiracy convictions. Indeed, the typical drug trafficking transaction involving a series of clandestine meetings between several defendants and an undercover police officer which eventually leads to a sale or purchase of illegal drugs, as here, presents the classic example of a criminal conspiracy; by definition, such a scenario inferentially establishes, as a general rule, a prior agreement among the defendants to effect a sale or purchase of illegal drugs, else such a sale or purchase with its complicated arrangements would never have taken place.

Id. at 152 (citations omitted).

Notwithstanding the hearsay statements in question, Appellant’s participation in the December 23, 2003 and December 29, 2003 meetings sufficiently established his status as a co-conspirator by a preponderance of the evidence. Appellant’s identification as the person with the money on December 23, followed less than a week later by the same parties meeting at a pre-established location where cocaine was offered and inspected in exchange for money that was produced and presented by Defendant himself, portrays the classic example of a criminal conspiracy inferentially establishing a prior agreement among the defendants to effect the sale of cocaine, else such a sale with its complicated arrangements would never have taken place. Pino v. State, 573 So.2d at 152. Furthermore, Defendant submits that he and Hawse questioned whether the cocaine brick packages were “thin,” requiring Hernandez to bring a scale for weighing. Appellant’s concern for the size of the cocaine bricks is additional inferential evidence of his stake in the deal.

Therefore, the State effectively met its burden by establishing competent, independent evidence of the conspiracy itself. Accordingly, the trial court did not err in admitting Hawse’s out-of-court statements.

Appellant next argues that the trial court erred in denying his motion for judgment of acquittal on the trafficking in cocaine charge because Appellant never formally accepted the drugs. The four elements that the State must establish to prove a defendant is guilty of trafficking in cocaine are “ ‘a) that the defendant knowingly purchased or possessed a certain substance, b) the substance was cocaine, c) the quantity was 28 grams or more, and d) the defendant knew the substance was cocaine.’ ” Snell v. State, 939 So.2d 1175, 1179 (Fla. 4th DCA 2006) (quoting Concepcion v. State, 857 So.2d 299, 300 (Fla. 5th DCA 2003)). Because Appellant was arrested while sitting a few feet away from the cocaine, the State needed to establish that he had constructive possession of the cocaine. “To establish constructive possession, the state must show that the accused had dominion and control over the contraband, knew the contraband was within his presence, and knew of the illicit nature of the contraband.” Jordan v. State, 548 So.2d 737, 738-89 (Fla. 4th DCA 1989).

The State established Appellant’s constructive possession of the cocaine when it showed at trial that Appellant paid for the cocaine, that the cocaine was placed on a table in front of Appellant, and that Appellant sampled the cocaine. As such, there was no error in the trial court’s denial of Appellant’s motion for judgment of acquittal.

Affirmed.

STONE and TAYLOR, JJ., concur.


author: KLEIN J.

text:
    Carl Lee HICKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3301.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN J.

We reverse appellant’s conviction for cocaine delivery for a new trial because the court erred in allowing officers to testify that in their experience, drug transactions often included two people involved in the sale, one who makes the offer, and the other who delivers the drugs.

An officer posing as a drug buyer told a man in a targeted area that she wanted a “40,” slang for forty dollars worth of crack cocaine. This man, who was identified as the appellant, responded that he didn’t have it, but he knew someone who did. Shortly after that, another man handed her two crack rocks in exchange for forty dollars, and appellant was then arrested. Neither the money, which was marked, nor any drugs, were found in appellant’s possession.

During the trial, over objection, the court allowed an officer to testify as follows:

Q. “In your experience as an undercover officer ... have there ever been times when you dealt with more than one person where you stopped to buy the drugs and you were talking to somebody about 40 and hard and all these other things, have there ever been times where there was more than one person involved in that transaction?”
A. “Yes.” ... “there [was] either a situation where I handed one person money but the other person handed me the drugs, or a situation where I arranged for the deal with one person and that person went to get another person who then I did the transaction with.”

Another officer was allowed to testify over objection that he had encountered situations in which the first person “brokers” the deal because he has the street smarts to evaluate the prospective purchaser. The broker then summons another person to make the transaction.

In Lowder v. State, 589 So.2d 933 (Fla. 3d DCA 1991), an officer was allowed to testify based on his expertise that there was a correlation between carrying large amounts of cash and selling illegal drugs. The third district reversed the defendant’s conviction based on the cases holding that testimony from officers regarding their experience with other criminals is not admissible as substantive proof of guilt or innocence. This court follows that rule. Griffin v. State, 872 So.2d 998 (Fla. 4th DCA 2004) (officer cannot testify that it is common for people involved with crack cocaine to hide it in their mouths); Lawrence v. State, 766 So.2d 250 (Fla. 4th DCA 2000) (generalized common practices of drug dealers inadmissible as proof of defendant’s guilt).

We are unable to agree with the state that this error was harmless because the testimony was used to refute the defense theory that appellant was innocent since neither the marked money nor any drugs were found on him.

Reversed for a new trial.

POLEN and MAY, JJ., concur.


author: PER CURIAM.

text:
    Herbert WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-980.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order revoking his probation for committing the subsequent offenses of providing a false name to law enforcement and trespass, and for failing to pay supervision and court costs. We affirm the trial court’s findings in regard to the criminal offenses since they were amply supported by both hearsay and non-hearsay evidence. See Wilcox v. State, 770 So.2d 733, 736 (Fla. 4th DCA 2000) (recognizing the well-established rule that probation can be revoked upon a combination of hearsay and non-hearsay evidence). However, we reverse the findings in regard to the failure to pay the supervision and court costs since there was no evidence or findings that appellant was able to pay those fees. See Shepard v. State, 939 So.2d 311, 313 (Fla. 4th DCA 2006) (noting that the prosecution bears the burden of proving that the probationer deliberately, willfully and substantially violated a condition of probation). We reject the State’s suggestion that the findings can be sustained on the basis that appellant knew he could perform community service hours in lieu of paying the costs at issue, but failed to do so. Appellant was never charged with a violation for failing to perform community service hours.

Although the criminal offenses could independently support the judge’s revocation determination, the record provides too little guidance for us to determine if the trial judge would have imposed the same thirty-six-month incarceration sentence if faced with only the two violations rather than four. Thus, we reverse the order of revocation and, as a measure of caution, remand this case to the trial judge for issuance of a revocation order consistent with this decision and for reconsideration of defendant’s sentencing. See Mathis v. State, 683 So.2d 634, 637 (Fla. 4th DCA 1996), receded from on other grounds by Matthews v. State, 736 So.2d 72 (Fla. 4th DCA 1999).

Affirmed.

STONE, STEVENSON and HAZOURI, JJ., concur.


text:
    Luis CASTILLO, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1301.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Ana M. Davide, Miami, for appellant.
    Bill McCollum, Attorney General, and Katherine Y. Melntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The appellant timely sought postconviction relief after the entry of a negotiated plea deal. We affirm as to all grounds raised, except for a portion of ground two, wherein we reverse and remand for an evidentiary hearing. In that portion of ground two, the appellant claims his attorney promised him that the eight-year prison term he agreed to as a part of a plea deal would result in just 70.5 months of actual time, if he “kept his nose clean” while incarcerated. The transcript of the plea colloquy does not conclusively refute this allegation, as the lower court did not question the appellant about any promises concerning gain-time or the amount of time he would actually serve in prison. See Debonis v. State, 745 So.2d 407 (Fla. 4th DCA 1999) (“[T]he defendant’s negative response during a plea colloquy to the trial court’s question of whether anything had been promised to induce his guilty plea did not conclusively refute his post-conviction relief claim that the plea was the product of defense counsel’s misrepresentations concerning the amount of sentence he would actually serve.”) (citing State v. Leroux, 689 So.2d 235 (Fla.1996)). Therefore, the appellant is entitled to an evidentiary hearing on the matter. As such, we reverse as to that portion of ground two and affirm as to all other issues raised.

POLEN, HAZOURI and MAY, JJ., concur.


text:
    Peter KOPECKY, Appellant, v. Lucia KOPECKA, Appellee.
    No. 4D07-1410.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Steven D. Miller of Steven D. Miller, P.A., Plantation, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant, Peter Kopecky (husband), appeals from the trial court’s sua sponte dismissal of his petition for dissolution of his marriage to Appellee, Lucia Kopecka (wife), for lack of jurisdiction and improper venue. We reverse and remand.

The husband was married to the wife on July 17, 1993 in Slovakia. The parties have one minor child, born in Slovakia on March 15, 1994. The family moved from Slovakia to North Carolina in 2001. When the husband came home one day, the wife and child were gone and he has not seen them since. The husband moved to Hills-borough County, Florida, in December 2003 and has resided there ever since.

On January 8, 2007, the husband filed a petition for dissolution of marriage with dependent or minor child, in Broward County circuit court, alleging that the whereabouts of the wife and child were unknown. He simultaneously filed an affidavit of diligent search and inquiry. Constructive service of process was effected by publication pursuant to sections 49.011 and 49.021, Florida Statutes (2007). The clerk of the court entered a default on February 23, 2007, and the matter was set for final hearing on March 6, 2007. Following the hearing, the court sua sponte dismissed the petition, without prejudice, stating: (1) “the Court lacks jurisdiction, service by [publication in Broward County is improper,” and (2) “venue in Broward County is improper.” This appeal followed and no brief has been filed on behalf of the wife.

The husband argues that the trial court erred in dismissing his petition on the grounds that it lacked jurisdiction because service by publication in Broward County was improper. We agree.

The standard of review for the issue of personal jurisdiction over a nonresident is ... de novo. Anthony v. Gary J. Rotella & Assocs., P.A., 906 So.2d 1205, 1207 (Fla. 4th DCA 2005) (citation omitted).

Service by publication is the statutorily designated mode of obtaining service of process over a spouse who is not a resident of the State of Florida. See Arnstein v. Arnstein, 422 So.2d 1052, 1053 (Fla. 4th DCA 1982). Section 49.011(4), Florida Statutes (2007), provides that “[sjervice of process by publication may be made in any court on any party identified in s. 49.021 in any action or proceeding ... [f]or dissolution or annulment of marriage.” Section 49.021(1) provides in pertinent part that service by publication may be made on “[a]ny known or unknown natural person.” A plaintiff suing a natural person must file a sworn statement stating the following:

(1) That diligent search and inquiry have been made to discover the name and residence of such person, and that the same is set forth in said sworn statement as particularly as is known to the affiant; and
(2) Whether such person is over or under the age of 18 years, if his or her age is known, or that the person’s age is unknown; and
(3)In addition to the above, that the residence of such person is, either:
(a) Unknown to the affiant; ■ or
(b) In some state or country other than this state, stating said residence if known; or
(c) In the state, but that he or she has been absent from the state for more than 60 days next preceding the making of the sworn statement, or conceals himself or herself so that process cannot be personally served, and that affiant believes that there is no person in the state upon whom service of process would bind said absent or concealed defendant.

§ 49.041, Fla. Stat. (2007). Thereafter, the plaintiff must publish a notice of action “once during each week for 4 consecutive weeks (four publications being sufficient) in some newspaper published in the county where the court is located. The newspaper shall meet such requirements as are prescribed by law for such purpose.” § 49.10(1)(a), Fla. Stat. (2007). Finally, the plaintiff must file an affidavit constituting proof of publication with the trial court, with a copy of the publication attached. § 49.10(2), Fla. Stat. (2007).

The husband complied with each of these requirements. He filed an affidavit of diligent search and inquiry. Thereafter, he filed a notice with the court with his proof of publication attached; a copy of the notice of action he published in the Broward Daily Business Review on 1/12/2007, 1/19/2007, 1/26/2007, and 2/2/2007. He also filed a notarized certification from the Broward Daily Business Review’s Administrative Assistant averring that the notice was published in its paper on those dates.

Because the husband met all of the requirements for service by publication, the trial court erred in dismissing his action for lack of jurisdiction.

The husband claims next that the trial court erred in dismissing his action for improper venue. We agree.

The standard of review for an order on a motion to transfer or dismiss for improper venue is abuse of discretion. Carr v. Stetson, 741 So.2d 567, 568 (Fla. 4th DCA 1999).

“It is well-established that venue [for the purposes of applying the venue statute, section 47.011, Florida Statutes], in an action for dissolution of marriage, lies in the county where the parties last lived with a common intent to remain married.” Butler v. Butler, 866 So.2d 1280, 1281 (Fla. 4th DCA 2004) (citing Carroll v. Carroll, 341 So.2d 771, 772 (Fla.1977)); see also Bowman v. Bowman, 597 So.2d 399, 399 (Fla. 1st DCA 1992) (citing Carroll). Section 47.011, Florida Statutes (2007), provides: “Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.” § 47.011, Fla. Stat. (2007) (emphasis added).

Section 47.011 does not apply to this case because the wife is a nonresident. Moreover, there is no county in Florida where the parties last lived with a common intent to remain married, as the wife never resided in Florida. See Butler, 866 So.2d at 1281. The dissolution statute requires only that “one of the parties to the marriage must reside 6 months in the state before the filing of the petition.” § 61.021, Fla. Stat. (2007). The husband has resided in Hillsborough County, Florida since December 2003. Accordingly, we find that although the husband is a resident of Hills-borough County, there is no authority precluding him from bringing his dissolution action in Broward County, and the trial court abused its discretion in dismissing his action on this basis.

Reversed and Remanded for Further-Proceedings.

STONE, STEVENSON and HAZOURI, JJ., concur.

      . The wife’s name is listed as "Kopecka” in all pertinent documents.


author: CHUMBLEY, DOUGLAS J., Associate Judge.

text:
    Dr. William KAYE, individually, and Lisa Kaye, individually, Appellants, v. MACARI BUILDING & DESIGN, INC., Appellee.
    No. 4D07-1165.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      V. Julia Luyster and David J. Valdini of Yaldini & Palmer, P.A., Fort Lauderdale, for appellants.
    Vanessa Prieto, Philip L. Schwartz and Robert M. Lewis of the Law Offices of Philip L. Schwartz, P.A., Boca Raton, for appellee.
   CHUMBLEY, DOUGLAS J., Associate Judge.

This is an appeal from a non-final order denying a motion to compel arbitration filed below by the Appellants. On appeal, the Appellants primarily argue that the trial court erred in denying the motion to compel arbitration because the contract between the parties and the related documents clearly indicate the parties’ intent to arbitrate claims arising from the contract. The Appellee argues that the document containing the arbitration provision was not properly incorporated into or made a part of the contract between the parties and thus, the trial court correctly denied arbitration. The Appellee further supports its position by arguing that arbitration was inconsistent with other provisions of the contract and that Appellants waived their right to arbitration. Because we find that the contract and related documents clearly contain a valid arbitration provision, we reverse.

The parties agree that the contract signed by the parties contains a clause which properly incorporates the plans and specifications by reference. The parties further agree that the contract makes the plans and specifications part of the contract between the parties. The parties disagree as to whether the plans and specifications adequately incorporate a document known as AIA Document No. A-201. It is the AIA Document No. A-201 which contains an arbitration clause.

It is clear from the record before us that the plans and specifications contain what is referred to as General Notes. In fact, the General Notes were actually in and on the plans and specifications. The relevant language from the General Notes is as follows:

The American Institute of Architects Documents No. A-201, April 1997 Edition is hereby made a part of these specifications and this contract.

The General Notes contained in the plans and specifications go on to make the AIA Document No. A-201 part of the contract between the parties:

Contract Documents: Plans, Specifications, AIA Contract, Addenda and Change Orders.

The key issue before the Court is whether the AIA Document containing the arbitration provision was properly incorporated into the contract executed by the parties. This Court has previously discussed the concept of “incorporation by reference” in Kantner v. Boutin, 624 So.2d 779 (Fla. 4th DCA 1993). In Kantner, we noted:

The doctrine [of incorporation by reference] requires that there must be some expression in the incorporating document ... of an intention to be bound by the collateral document. A mere reference to another document is not sufficient to incorporate that other document into a contract, particularly where the incorporating document makes no specific reference that it is ‘subject to’ the collateral document.

Id. at 781. Here, the incorporating document is the contract which undisputedly incorporates the plans and specifications. The plans and specifications clearly indicate in the General Notes that the AIA Document No. A-201 is a part of both the plans and specifications and the contract. The reference to the AIA Document in the plans and specifications is more than a “mere reference.” The words “part of these specifications and this contract” unambiguously indicate the parties’ intention to be bound by the AIA Document as well as by the plans and specifications and the contract.

We find the Appellee’s remaining arguments to be without merit. Because we believe the contract and related documents evidence an intent to be bound by the AIA Document which contains an arbitration provision, we reverse with instructions for the trial court to enter an order compelling arbitration. We also grant Appellants’ Motion for Attorneys’ Fees. Upon remand, the trial court shall determine reasonable attorneys’ fees.

Reversed and Remanded.

WARNER and GROSS, JJ., concur.


author: MAY, J. KLEIN, J.,

text:
    Lillian SAENZ, Appellants, v. Jose G. CAMPOS and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 4D07-855.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Russell S. Adler, Shawn L. Birken and Matthew S. Sackel of Rothstein, Rosend-feldt & Adler, Fort Lauderdale, for appellants.
    Neil Rose of Bernstein, Chackman & Liss, Hollywood, for appellees.
   MAY, J.

Technical compliance with section 768.79, Florida Statutes (2006), is challenged in this appeal. The plaintiff appeals an order striking her proposal for settlement based upon an ambiguity within the document and lack of requisite detail. She argues the trial court erred in finding the proposal ambiguous and in requiring more detail regarding the disposition of the case. Regardless, the insurer argues the trial court correctly granted its motion to strike. We affirm.

The plaintiff filed suit against the other driver and her uninsured motorist [UM] insurer following a motor vehicle accident. During litigation, the plaintiff served a civil remedies notice on her UM insurer. The plaintiff then filed a notice of service of proposal for settlement on the same insurer, pursuant to section 768.79, Florida Statutes (2006), and Rule 1.442, Florida Rules of Civil Procedure. The' proposal stated:

3. This proposal is meant to resolve all claims by the Plaintiff ... against the Defendant....
4. There are no conditions to this offer.
5. The proposal to settle the claim is that Defendant ... pay to the Plaintiff ... sum of Forty Nine Thousand, Five Hundred ($49,500.00) Dollars, in a lump sum payment within 30 days of the service of this Proposal for Settlement, in full settlement of the claims raised in the suit against Defendant,....
6. There are no punitive damages. No offer is being made for punitive damages.
7. This proposal does not include any attorney’s fees which are not a part of the legal claim.
8. This Proposal for Settlement will remain open for Thirty (30) days from service on the Defendant....

(Emphasis supplied). The insurer did not accept the proposal for settlement; the case went to trial.

The jury returned a verdict for the plaintiff. The trial court entered a final judgment against the insurer in the amount of $72,849.53. The plaintiff then moved for costs and attorney’s fees pursuant to section 768.79. The insurer moved to strike the proposal for settlement, arguing that the proposal was ambiguous, incomplete, and untimely.

The ambiguity argument focused on paragraphs 3 and 5 of the proposal. Paragraph 3 indicated that the proposal would resolve “all claims” against the insurer while paragraph 5 indicated that the proposal would resolve only “the claims raised in the suit.” Thus, the insurer argued it was unclear whether the proposal addressed the bad faith claim that had been noticed under the civil remedies statute. The plaintiff responded that the proposal was not ambiguous because all claims against the insurer arose out of the same case. And, since the case was resolved within the policy limits, the issue of the civil remedies notice became moot.

The trial court found the proposal for settlement ambiguous and reminded the parties that the proposal must be reviewed at the time it was offered. The court found the conflicting provisions in paragraphs 3 and 5 left the terms of the proposal unclear.

The insurer argued secondarily that the proposal was facially defective because it failed to state, as a non-monetary term or as a relevant condition, how the case would be resolved. The insurer argued that absent details on the disposition of the case (voluntary dismissal with prejudice, stipulation and order, dismissal for lack of prosecution, execution of a release), additional judicial labor might be required after acceptance of the proposal.

The plaintiff responded that the proposal for settlement complied with the letter of Rule 1.442, which does not require the proposal to include the terms for disposition of the case. The trial court agreed with the insurer that while Rule 1.442 may not expressly require the inclusion of the terms for resolving the action, those terms must be included as requisite non-monetary terms. The trial court granted the motion to strike the proposal for settlement, but never ruled on the plaintiffs motion to tax costs and fees.

We give proposals for settlement de novo review. Jamieson v. Kurland, 819 So.2d 267, 268 (Fla. 2d DCA 2002); accord, Miami-Dade County v. Ferrer, 943 So.2d 288, 290 (Fla. 3d DCA 2006). Section 768.79, Florida Statutes (2006), provides the substantive law concerning proposals for settlement while Rule 1.442, Florida Rules of Civil Procedure, provides its procedural mechanism.

Rule 1.442(c)(2)(B)-(D) requires the proposal to “identify” the claim or claims to be resolved, “state with particularity” any relevant conditions, “state” the total amount of the proposal, and “state with particularity” the non-monetary terms of the proposal. The rule “requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla.2006). “The burden of clarifying the intent or extent of a settlement proposal cannot be placed on the party to whom the proposal is made.” Dryden v. Pedemonti, 910 So.2d 854, 855 (Fla. 5th DCA 2005).

The proposal fails to satisfy the “particularity” requirement if an ambiguity within the proposal could reasonably affect the offeree’s decision. Nichols, 932 So.2d at 1079. While a proposal for settlement may settle only a portion of a lawsuit, it must be clear which of the outstanding claims are to be extinguished. See Connell v. Floyd, 866 So.2d 90, 92 (Fla. 1st DCA 2004); Nichols, 932 So.2d at 1080.

So, what then constitutes an ambiguity? Ambiguity is defined as “the condition of admitting more than one meaning.” The Random House College Dictionary 42 (revised ed. 1980). No one can claim that paragraphs 3 and 5 say the same thing. They simply don’t. That conflict in the wording created the ambiguity that supported the trial court’s striking of the proposal.

Ambiguities can be either patent or latent. A patent ambiguity is one that appears on its face. “A latent ambiguity— as distinct from a patent ambiguity- — -arises ‘where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.’ ” Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC., 915 So.2d 657, 659 (Fla. 2d DCA 2005) (quoting Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544, 547 (Fla. 1st DCA 1974)). The ambiguity in this case is patent.

The dissent takes the position that the wording alone is insufficient and it is the practical effect of the conflicting language that must be looked at to determine an ambiguity. In other words, the dissent suggests that if the proposal had been paid, then the practical effect of the conflicting language disappeared because no bad faith claim would have survived. We find that analysis flawed for two reasons.

First, the plaintiff continuously maintained that it intended to pursue the bad faith claim if the proposal was rejected, and was unwilling to agree that the claim was included in the proposal. It would not be until the ultimate final judgment was rendered that it could be determined whether excess judgment bad faith claim existed. Second, a common law bad faith claim other than for an excess verdict existed as section 624.155(8), Florida Statutes (2006), provides for claims other than excess verdicts; e.g., fraud, breach of contract, intentional infliction of emotional distress. See Opperman v. Nationwide Mut. Fire Ins. Co., 515 So.2d 263, 265 (Fla. 5th DCA 1987).

For these reasons, we find the trial court correctly struck the proposal and therefore affirm. Because we affirm the order striking the proposal for settlement on the trial court’s finding that the proposal was ambiguous, we decline to address the secondary basis for striking the proposal — the proposal failed to include the terms for disposing of the case.

Affirmed.

POLEN J., concurs.

KLEIN, J., dissents with opinion.

KLEIN, J.,

dissenting.

I am unable to find that paragraph 3 and paragraph 5 create an ambiguity. No one contends that there is an “or” or an “either” between the numbered provisions of the proposal for settlement. Thus all numbered provisions are operative.

I agree that the provision in paragraph 3 stating that the proposal will “resolve all claims” is broader than the one in paragraph 5 which says that it is in “full settlement of the claims raised in the suit.” The difference, however, is irrelevant, because it could not possibly leave State Farm in doubt. Resolving “all claims” would obviously include the possible claim contemplated by the civil remedies notice which plaintiff had served on State Farm.

The question, which neither State Farm nor the majority has answered to my satisfaction is, if State Farm had accepted the offer, how could State Farm have been in doubt as to whether there was a further claim. The only answer I can find in State Farm’s brief is on page 13:

It was not clear whether the offer was meant to settle just the “claims raised in the suit” as noted in paragraph 5 or “all claims” (including the bad faith claim) as noted in paragraph 3.

State Farm erroneously assumes there is an “or” when, as I indicated above, there was not. The proposal is to “resolve all claims” and “the claims raised in the suit.”

The majority does not answer my question either. The majority says that “plaintiff continuously maintained that it intended to pursue the bad faith claim if the proposal was rejected, and was unwilling to agree that the claim was included in the proposal.” I find no support in the record for the second portion of this statement, and I don’t see any relevance to the fact that the plaintiff was going to pursue the bad faith claim if the proposal was rejected. The only issue here is whether, if State Farm accepted the proposal, there would be any uncertainty as to whether plaintiff could pursue any other claims, and I fail to understand how the “resolve all claims” language leaves any uncertainty.

      . The driver of the other vehicle is not a party to this appeal.

      . The trial court found the proposal timely, which has not been challenged in this appeal.


text:
    Mary Lou HENDERSON, Appellant, v. Carl Andrew HENDERSON, Appellee.
    No. 4D06-4181.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      George Glenn of Grail, Fanaro & Glenn, Vero Beach, for appellant.
    Amy D. Shield of Amy D. Shield, P.A., Boca Raton, and Sullivan & Sullivan, Vero Beach, for appellee.
   PER CURIAM.

This is an appeal by former wife and cross-appeal by former husband from a final judgment in a dissolution of marriage proceeding. The former wife contends that the trial court erred in finding that the former husband had a special equity in the marital home and the former husband contends that the trial court erred in the application of the Landay formula to determine the parties’ shares of the marital home. We agree that the trial court did not err in awarding the former husband a special equity in the parties’ marital home; however, we reverse and remand for recalculation of the parties’ individual net interests in the home in light of the mortgage encumbering the property-

The trial court used the formula in Lan-day as the method to calculate the special equity that the former husband had in the marital home. Under the facts and circumstances of this case, we recognize the Landay formula as an acceptable method of calculating the special equity herein.

Landay applies where one spouse uses non-marital assets as a portion of consideration for the property. “In addition to that spouse’s automatic one-half share, the contributing spouse acquires a special equity in the property equal to one-half the ratio which that spouse’s contribution bears to the entire consideration.” Landay, 429 So.2d at 1200. “In other words, the starting place is a fifty/fifty split or automatic half interest. The formula is then used to ‘carve out from the other spouse’s interest in the property his or her special equity.’ ” Whalen v. Whalen, 937 So.2d 775, 776 (Fla. 4th DCA 2006) (quoting Landay, 429 So.2d at 1200). In algebraic terms, the Landay special equity formula is:

(.5) (down payment/purchase price) = special equity percentage

Applying the Landay formula to this case, the former husband’s special equity percentage is

(.5) ($225,000/$325,000) = 34.6% (half)(down payment divided by purchase price)

To arrive at the former husband’s entire interest in the property, 34.6% is added to 50% (his automatic half), giving him 84.6% of the marital home’s value. Therefore, the former wife is entitled to 15.4% interest in the home. We find that the trial judge correctly calculated these figures. “This allows the husband to ‘reap the fruits’ of his original capital investment, while allowing the wife to share in the balance of the home’s increased equity.” Whalen, 937 So.2d at 776 (quoting Landay, 429 So.2d at 1199).

However, while the trial court correctly calculated the percentage interests in the home, it did not explain how or when to satisfy the mortgage encumbering the property. The trial court appears to have given the former husband two options:

Within 45 days of the entry of this Final Judgment the husband may purchase the wife’s share of the marital home for $59,136.00 ($384,000.00 x 0.154 = $59,136.00). If the husband does not purchase the wife’s share of the property within this 45-day period, the parties shall immediately list the property with a sale price of $384,000.00 or at such other price as the parties may agree. The property shall be listed for a period of at least 6 months. Upon the sale of the property the husband shall be entitled to 84.6% of the net proceeds and the wife shall be entitled to 15.4% of the net proceeds. The husband shall be entitled to exclusive use and possession of the home.

As we previously noted in Romano v. Romano, 632 So.2d 207, 212 (Fla. 4th DCA 1994), Landay instructs on the calculation of the interest in the home; however, it goes “no further in explaining the logistics of distributing sale proceeds.” In Hess v. Hess, 654 So.2d 199, 200 (Fla. 4th DCA 1995), we expressly stated that the “correct determination of a party’s interest under the Landay formula required application to the fair market value of the property before reducing the share by half the amount of the mortgage.” Whalen, 937 So.2d at 776. In Whalen, we determined that the trial court must first apply the proper percentage to the fair market value of the property before reducing the share by half the amount of the mortgage. Id. Under the formula this court used in Whalen, the former wife’s share of the marital home’s proceeds is $9,636 with satisfaction of a $99,000 mortgage and is calculated as follows:

[($384,000 x 0.154 = $59,136) - ($99,-000 x .5 = $49,500) ] = $9,636
[ (fair market value of home)(former wife’s % interest) - (half of the mortgage) ]

Using this same formula, the former husband’s share of the marital home’s proceeds is calculated as follows:

[($384,000 x .846 = $324,864) - ($99,-000 x .5 = $49,500) ] = $275,364
[ (fair market value of home)(former husband’s % interest) - (half of the mortgage) ].

The $275,364 represents the former husband’s one-half equity share in the property (automatic share) plus his special equity, less one-half of the remaining principal of a $99,000 mortgage encumbering the property. Together with the wife’s share this equals the equity in the property, assuming a $384,000 value and a $99,000 mortgage.

Under Whalen, the former husband pays the former wife $9,636 whether the house is sold or retained by the former husband. However, if the former husband decides to keep the property, the former husband is required to assume the balance of the mortgage. As the former husband points out, “[i]n either case, the [former] wife leaves free and unencumbered by the mortgage.”

Accordingly, we reverse and remand for recalculation and entry of an amended final judgment of dissolution.

Reversed and Remanded.

WARNER, HAZOURI, JJ., and CHUMBLEY, DOUGLAS J., Associate Judge, concur.

      . Landay v. Landay, 429 So.2d 1197 (Fla.1983).

      . The balance of the mortgage encumbering the parties' property is currently $99,000. If this figure has changed, the formula below is to be adjusted accordingly.