text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner, v. Laraine SCOMA, as Personal Representative of the Estate of Jessica Paige Barnett, Respondent.
    No. 2D06-2294.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.
    Rehearing Denied June 25, 2007.

      Terence R. Perkins of Smith, Hood, Perkins, Loucks, Stout, Bigman, Lane & Brock, P.A., Daytona Beach; and Daniel P. Mitchell of Gray Robinson, P.A., Tampa, for Petitioner.
    Kathryn E. Lee and Shea T. Moxon of Swope, Rodante, P.A., Tampa, for Respondent.
   ALTENBERND, Judge.

Progressive Express Insurance Company (Progressive) seeks certiorari review of a pretrial discovery order entered in an action alleging bad faith. The action was filed by Laraine Scoma, as personal representative of the estate of Jessica Paige Barnett. Ms. Scoma was the plaintiff in the original tort action against Progressive’s insured, Shannon Courtney. To the extent that the trial court has ordered Progressive to produce documents without an adequate consideration of the attorney-client privilege possessed by Progressive or its insured, we grant the writ. See Provident Life & Accident Ins. Co. v. Genovese, 943 So.2d 321 (Fla. 4th DCA 2006) (granting relief by certiorari under similar circumstances).

BACKGROUND

On March 27, 2000, Mr. Courtney was involved in an accident that resulted in the death of Jessica Paige Barnett. At the time, he had a policy of automobile liability insurance with Progressive that provided $10,000 in coverage for such an accident. Ms. Scoma, as the personal representative of Ms. Barnett’s estate, made a claim with Progressive, alleging that Mr. Courtney was responsible for the accident and the wrongful death of Ms. Barnett. When settlement negotiations between the parties were unsuccessful, Ms. Scoma filed suit against Mr. Courtney.

Mr. Courtney was represented in the underlying tort action by Terence R. Perkins. Our file indicates that criminal proceedings brought against Mr. Courtney as a result of this accident may have resulted in his incarceration. It does not appear that Mr. Perkins represented him in those proceedings. Ultimately, Ms. Scoma received a verdict against Mr. Courtney in the amount of $1,050,000. That verdict was reduced to judgment in December 2004. Mr. Courtney apparently did not appeal that judgment.

Mr. Courtney did not pursue any action against Progressive related to the manner in which it handled this claim. Instead, Mr. Courtney filed a bankruptcy petition. Neither Mr. Courtney nor his bankruptcy trustee have formally assigned any claim Mr. Courtney might have against Progressive for the handling of Ms. Scoma’s claim to anyone.

Nevertheless, Ms. Scoma, as a third-party beneficiary to the insurance contract, filed suit against Progressive, claiming that Progressive acted in bad faith in failing to settle her claim against Mr. Courtney. She asserted that she “stands in the shoes” of Mr. Courtney as a matter of law to pursue the amount of judgment exceeding Mr. Courtney’s policy limits. Mr. Perkins, who represented Mr. Courtney in the underlying action, now represents Progressive in this bad faith action. He is also co-counsel for Progressive in this proceeding for writ of certiorari.

As part of the discovery process, Ms. Scoma sought discovery of all documents in the possession of Progressive related to the initial claim. Ms. Scoma argued that because she “stands in the shoes” of Mr. Courtney in this bad faith action against Progressive, the attorney-client privilege did not apply to any confidential communications between Mr. Courtney, Progressive, and their respective counsel in the underlying tort litigation. Her broad request included all written communications between Progressive and Mr. Courtney or their respective agents. Progressive objected to this request on grounds of work-product and attorney-client privilege, as well as on issues of relevancy. Progressive prepared extensive privilege logs, identifying many documents but obviously not explaining their precise content. It is clear that some of these documents are correspondence between Mr. Courtney and his attorney. It is more difficult to determine whether some of the attorney-client privilege documents relate to communications between Progressive and its separate lawyers.

The trial court conducted a hearing on the requests and Progressive’s objections to them. Relying on the Fifth District’s decision in Dunn v. National Security Fire & Casualty Co., 631 So.2d 1103 (Fla. 5th DCA 1993), and the Third District’s decision in Continental Casualty Co. v. Aqua Jet Filter Systems, Inc., 620 So.2d 1141 (Fla. 3d DCA 1993), the trial court concluded that as a matter of law the attorney-client privilege did not apply to protect confidential communications made by Progressive and Mr. Courtney with their counsel during the underlying tort suit from discovery by Ms. Scoma in her bad faith suit. The trial court thus declined to conduct an in camera inspection of the documents and ordered the documents produced without respect to claims of attorney-client privilege. Progressive then filed this certiorari proceeding, seeking to quash the trial court’s order.

THE HOLDING IN THIS CASE

There are two separate claims of attorney-client privilege at issue. First, Progressive seeks to protect its confidential communications with its counsel regarding Ms. Scoma’s wrongful death suit. Second, Progressive seeks to protect Mr. Courtney’s confidential communications with the attorney who represented him in the wrongful death suit. From our limited record, it appears that there is only one attorney who may have had confidential communications with both Progressive and Mr. Courtney — Mr. Perkins. It is at least possible, however, that Progressive may have had individual counsel at some point during the wrongful death proceedings and may have had confidential communications with that counsel.

We conclude that any communications between Progressive and its personal counsel are clearly protected by the attorney-client privilege. Moreover, we conclude that although Ms. Scoma may “stand in the shoes” of Mr. Courtney for the purposes of standing to bring a bad faith action, that position does not permit her access to otherwise privileged communications between Mr. Courtney and his counsel in the wrongful death action, at least in the absence of a waiver of the privilege by Mr. Courtney or his written assignment of the bad faith claim. A person does not waive or otherwise lose an attorney-client privilege merely because a third party is authorized to file a lawsuit against the person’s insurance company.

THE ANALYSIS OF ATTORNEY-CLIENT PRIVILEGE MAY VARY BASED UPON THE TYPE OF BAD FAITH CLAIM

Many jurisdictions recognize a “bad faith” cause of action by an insured against his or her insurance company. In this state, such an action was recognized at common law, see Auto Mut. Indem. Co. v. Shaw, 134 Fla. 815, 184 So. 852 (1938), and is now also expressly permitted by section 624.155(1)(b)(1), Florida Statutes (2000). In the simplest circumstance, the insured who has paid a premium for insurance coverage and is in privity with the insurance company sues the insurance company alleging that the insurer’s failure to handle a claim in good faith has proximately caused damage to the insured. These extra-contractual damages most commonly arise from the failure to settle a claim for an amount within the available insurance coverage when a reasonable insurer would have done so.

In Florida, a bad faith action against an insurance company may be brought not only by the insured to whom the duty of good faith was owed or his or her formal assignee, but also by a third party whose claim against the insurance policy was the subject of alleged bad faith. This cause of action is permitted both by case law and by section 624.155(1)(b)(1). See Thompson v. Commercial Union Ins. Co., 250 So.2d 259 (Fla.1971); see also Macola v. Govt Employees Ins. Co., 953 So.2d 451 (Fla.2006); Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1125 (Fla.2005). Thus, Ms. Scoma is authorized to bring a bad faith action against Progressive for its alleged breach of its duties to Mr. Courtney even if he is unwilling to cooperate and provide her with an assignment.

The terminology used to differentiate among types of bad faith claims can be quite confusing. Insurance policies tend to provide coverage for the direct benefit of the insured and separate coverage protecting the insured from liability to third parties. Thus, in a typical automobile liability insurance policy, the personal injury protection coverage required to satisfy section 627.736, Florida Statutes (2000), and the uninsured motorist coverage provided to comply with section 627.727, are coverage for the direct benefit of the insured and are often referred to as “first-party coverage.” The liability coverage that protects the insured from claims or lawsuits filed by other parties and requires the insurance company to provide the defense for such claims is often referred to as “third-party coverage.”

The typical bad faith action recognized at common law and in the earlier cases involved a breach of duty arising from the “third-party coverage.” Shaw, 134 Fla. 815, 184 So. 852. However, as the law expanded, insureds obtained the right to sue for monetary awards beyond the coverage of the insurance policy for damage resulting from a breach of the duty relating to “first-party coverage.” See § 624.155; Opperman v. Nationwide Mut. Fire Ins. Co., 515 So.2d 263 (Fla. 5th DCA 1987).

Confusion arises because, after the holding in Thompson, 250 So.2d 259, a common law bad faith action could be filed either by the insured or by the original plaintiff in the tort action. Thus, a bad faith claim under the “third-party coverage” could be maintained either by the “first party,” i.e., the insured, or by the “third party,” i.e., the original plaintiff in the tort action.

In Ruiz, 899 So.2d at 1125, the Florida Supreme Court used the term “third-party claim” to refer to an action brought by any person alleging that the insurer acted in bad faith concerning a claim arising under third-party coverage. It used “first-party claim” to refer to an action arising under first-party coverage. In Ruiz, the facts involved a “first-party claim” filed by the “first party,” i.e., the insured. Ruiz focused on issues relating to the work-product privilege in such a case.

Thus, while a “first-party claim” for bad faith is generally, if not exclusively, brought by the first party, i.e., the insured, a “third-party claim” as described in Ruiz may be filed either by a “first party” or a “third party.” For purposes of the attorney-client privilege, however, there is a significant difference between a “first party’s third-party claim” and a “third party’s third-party claim.” This arises out of the unique relationships created by the insurance contract.

The attorney-client privilege is codified in section 90.502(2), Florida Statutes (2000), which states: “A client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.” This privilege has been described as “absolute,” see XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578, 583 (Fla. 1st DCA 2006), although it is subject to certain exceptions set forth in section 90.502(5) and not at issue here.

When an insured brings a bad faith action against his or her insurance company, following the unsuccessful defense of a tort lawsuit, the attorney-client privilege requires special analysis. Under those circumstances, the same attorney may often ethically represent both the insured and the insurer in the tort action. See R. Regulating Fla. Bar 4-1.7(e). That is, the insured and insurer’s interests may be aligned, or at least may not be adverse. In many tort actions, then, the lawyer for the named defendant is also the lawyer for the defendant’s insurance company, even though the insurance company is not a party to the lawsuit. The attorney-client privilege does not generally attach as to communications between an insurer, the insured, and the attorney hired to represent the insured in a third-party claim because these parties agreed to a representation of common interests. See § 90.502(4)(e). Each of these parties is thus unable to claim the privilege as against one of the other parties. Because no privilege attaches, if the insured “first party” sues the insurance company for a breach of the requirement to provide third-party benefits, the insured has available to him all of the communications between himself and the insurance company and the lawyer representing them. However, if the insured or the insurance company retained separate attorneys to represent only that party’s specific interests, they should each be able to preserve their respective attorney-client privilege as to their communications with their own lawyers.

On the other hand, the confidential communications between the insured, the insurer, and any counsel representing them regarding the matter of common interest are protected by the attorney-client privilege from discovery by third parties. See Visual Scene, Inc. v. Pilkington Bros., PLC, 508 So.2d 487 (Fla. 3d DCA 1987). The third party will not have had access to such communications during the underlying tort litigation. The third party bringing a bad faith claim, therefore, is in a much different position than the first-party insured bringing such a claim. The first-party insured and the insurer may have no confidential communications with their joint counsel to protect when the first-party insured brings a claim against the insurer for third-party coverage. When a third party brings the claim for such coverage, however, the insured and insurer most certainly will have had such privileged communications and those communications will have been previously protected from disclosure.

PROGRESSIVE’S CLAIM OF ATTORNEY-CLIENT PRIVILEGE

Progressive’s claim of attorney-client privilege could arise either from communications with the attorney hired in the original tort action to defend both Mr. Courtney and Progressive, or from communications with a separate attorney hired to represent only Progressive. From the privilege log, it is clear that Progressive is attempting to claim a privilege as to communications that it received from Mr. Perkins during the original lawsuit. It is less clear whether other communications may have been received from a separate attorney that represented only Progressive.

At least three courts have held that the insurance company’s attorney-client privilege with counsel it hires or retains to represent its interest is not waived or abrogated in a bad faith action brought by the insured. XL Specialty Ins. Co., 929 So.2d 578, revieio granted, 935 So.2d 1219 (Fla.2006); Liberty Mut. Fire Ins. Co. v. Bennett, 939 So.2d 1113 (Fla. 4th DCA 2006); Liberty Mut. Fire Ins. Co. v. Kaufman, 885 So.2d 905 (Fla. 3d DCA 2004). We agree with the reasoning of these cases. If an insured pursuing a bad faith claim against the insurer is unable to obtain access to confidential communications between the insurer and its separate counsel, it should be even more obvious that the insurer’s attorney-client privilege exists and is not waived when the bad faith action is brought by a third party that is not in privity with the insurance company and has never been jointly represented. As such, to the extent the order on review appears to permit discovery of Progressive’s privileged communications with its individual counsel, the order departs from the essential requirements of the law and must be quashed.

Progressive’s claim of attorney-client privilege for its communications with Mr. Perkins or another lawyer in his law firm is somewhat more complex. It depends first on a determination as to whether those communications were made when Mr. Perkins was representing both Mr. Courtney and Progressive on a matter of common interest, such that Progressive could rely upon the communications as confidential. At this point, the record strongly suggests that Mr. Perkins jointly represented both Mr. Courtney and Progressive in the underlying tort action. Although Progressive presumably could not maintain a privilege to its communications with Mr. Perkins in an action filed by Mr. Courtney against the company, nothing in section 90.502 would suggest that Progressive loses the statutory privilege merely because Ms. Scoma filed this lawsuit.

Progressive’s ability to claim the privilege regarding these communications may hinge upon the ability of Mr. Courtney to claim the same privilege regarding the communications. Specifically, Ms. Scoma asserts that she “stands in the shoes” of Mr. Courtney such that she has access to his confidential communications with Mr. Perkins. If this is true, Progressive would not be able to protect the confidentiality of those communications. That is, if Progressive had no privilege as to Mr. Courtney, it would have no privilege as to Ms. Scoma. We therefore turn to the issue of whether Ms. Scoma has access to all confidential communications between Mr. Courtney and Mr. Perkins regarding the underlying tort suit.

THE CLAIM OF ATTORNEY-CLIENT PRIVILEGE FOR MR. COURTNEY

Ms. Scoma argued, and the trial court agreed, that no attorney-client privilege applied in this case based upon the Fifth District’s decision in Dunn, 681 So.2d 1103, and the Third District’s decision in Aqua Jet Filter Systems, 620 So.2d 1141. Both of those decisions relied on the Third District’s decisions in Boston Old Colony Insurance Co. v. Gutierrez, 325 So.2d 416 (Fla. 3d DCA 1976).

In Boston Old Colony, the issue was whether the defense attorney in the underlying tort litigation could be deposed and required to produce his file in a subsequent bad faith action brought by the injured party without an assignment from the insured. The Third District declined to issue a writ of certiorari to block that deposition. The entirety of the analysis in the ease was:

It is well established that a third person can enforce a contract entered into between others for his benefit. As a third party beneficiary of the insurance policy, Gutierrez stands in the same posture as that of Brown, the insured. Just as Brown would be entitled to discovery, including deposition and production of files by the attorneys, since both he (Brown) and Boston Old Colony were their clients, Gutierrez has the same right of discovery in furtherance of the preparation of his case.

Id. at 417 (citation omitted); see also Stone v. Travelers Ins. Co., 326 So.2d 241 (Fla. 3d DCA 1976) (noting that insurance company involved in bad faith lawsuit brought by third-party judgment creditor “concede[d]” that the contents of its personal injury case file “[were] not subject” to any privilege other than possibly work product privilege, citing Boston Old Colony). Judge Pearson, however, concurred specially in Boston Old Colony, stating, “I do not feel that the question of privilege is reached in this matter. There is no doubt that the lawyers must appear and that they may be examined. The extent of that examination is, I think, an open question.” Boston Old Colony, 325 So.2d at 417.

Neither Boston Old Colony nor Stone contain a careful analysis of the attorney-client privilege. This is understandable because the statutory lawyer-client privilege, section 90.502, was not created until July 1992. See ch. 92-138, Laws of Fla. Thus, it did not apply when Boston Old Colony and Stone were decided.

Dunn, 631 So.2d 1103, and Aqua Jet Filter Systems, 620 So.2d 1141, were decided in 1993. Neither case discussed whether section 90.502 applied to the case or what effect the statute might have had on the case. In both cases, the courts interpreted Boston Old Colony and Stone as holding that all materials in the insurance company’s claim file up to the date of the judgment in the underlying tort suit are obtainable and should be produced when sought for discovery in a bad faith suit brought by an injured third party against the insurance company. Dunn, 631 So.2d at 1109; Aqua Jet Filter Sys., 620 So.2d at 1141-42. Dunn specifically stated that this result was merited “because the injured party ‘stands in the shoes’ of the insured party in a third party bad faith case.” 631 So.2d at 1109.

All of these cases are influenced by the decision in Thompson, 250 So.2d 259, in which Justice McCain explained that the plaintiff in the underlying tort suit could bring a bad faith action as a third-party beneficiary to the insurance contract based on the reasoning in Shingleton v. Bussey, 223 So.2d 713 (Fla.1969) (holding that a person injured by the insured while operating a motor vehicle is entitled to maintain a cause of action directly against the liability insurer). Although the ability of a third party to bring a bad faith claim against the insurer after the conclusion of the underlying tort litigation has survived, the third-party beneficiary analysis in Shingleton was expressly overridden by the legislature in section 627.7262, Florida Statutes (1977), when it prevented the joinder of insurance companies in tort lawsuits. See Auto-Owners Ins. Co. v. St. Paul Fire & Marine Ins. Co., 547 So.2d 148, 149 n. 1 (Fla. 2d DCA 1989).

More important, however, the fact that a plaintiff in the original action may be a third-party beneficiary to an insurance contract or have independent statutory rights under section 627.155 to bring a claim based upon that contract does not support an argument that the plaintiff obtains the defendant’s statutory rights under section 90.502. Section 90.502(2) creates a lawyer-client privilege that is possessed by the client. In addition to the client, the privilege may be “claimed” by “a successor” or “assignee.” § 90.502(3)(d). Ms. Scoma has no assignment from Mr. Courtney nor is it clear she is “claiming” a privilege rather than seeking to eradicate one. Ms. Scoma has heretofore been a direct adversary of Mr. Courtney in the underlying tort suit and quite possibly has participated in criminal proceedings against him.

Few evidentiary privileges are as jealously guarded as the attorney-client privilege. Permitting a third party who brings a bad faith claim to abrogate the attorney-client privilege previously held by the insured and insurer would seem to undermine the policy reasons for having such a privilege, such as encouraging open and unguarded discussions between counsel and client as they prepare for litigation. We agree with Judge Polston’s reasoning in XL Specialty Insurance Co., 929 So.2d at 584-86, that the specific language in section 90.502 controls over any general language in section 627.155. The statute gives both Mr. Courtney and Progressive a privilege that is clear and unambiguous and that neither has waived in this case. The trial court departed from the essential requirements of the law when it held that the statutory privilege did not apply. We therefore grant the petition for writ of certiorari and quash the order on review.

On remand, the court must apply section 90.502 and the case law interpreting it to determine whether the documents which Progressive seeks to protect from disclosure are indeed ones protected by the attorney-client privilege. This will no doubt require an in camera inspection and an analysis as to whether the documents contain confidential communications and whether documents between Progressive, Mr. Courtney, and Mr. Perkins were a result of representation of a common interest.

Petition for writ of certiorari granted and order on review quashed.

VILLANTI, J., and HAYES, HUGH D., Associate Judge, Concur.

      . Our record contains very little information about the presuit settlement negotiations or the underlying lawsuit.

      . There is at least some indication in our record that the bankruptcy trustee has also asserted that he "stands in the shoes” of Mr. Courtney to pursue a bad faith claim against Progressive for the benefit of the bankruptcy estate. The attorney for the bankruptcy trustee has attended hearings in this bad faith action and has been served with some of the filings, but the trustee has never formally appeared as a party in the action or in this certiorari proceeding. Whether both the bankruptcy trustee and the original plaintiff may wear Mr. Courtney's shoes and pursue the same bad faith claim is not a matter that we need to decide. Further, we need not consider whether the application of the attorney-client privilege would be analyzed differently within the bankruptcy proceeding or whether the trustee has any power to waive part or all of Mr. Courtney’s privilege.

      . Although Progressive also objected before the trial court to the production of the documents based upon claims of work-product privilege, Progressive has not sought to argue the application of that privilege in this certio-rari proceeding.

      . Apparently, Florida is in the minority in permitting the original plaintiff in the tort action to pursue a bad faith claim against an insurance company without a formal assignment of claim from the insured. See, e.g., Knotts v. Zurich Ins. Co., 197 S.W.3d 512, 525-26 (Ky.2006) (Cooper, J., dissenting) (arguing that the “overwhelming majority'' of jurisdictions prohibit such third-party bad faith actions).

      . Currently codified at section 627.4136(2), Florida Statutes (2006).


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Robert LeFAVE, Appellant, v. Melissa BORDONARO, Appellee.
    No. 2D06-695.
    District Court of Appeal of Florida, Second District.
    May 23, 2007.

      Jonathan L. Gaines, Elizabeth K. Russo and Craig Lee Montz of Russo Appellate Firm, PA., Miami, for Appellant.
    William Thomas Wadley and Angela A. Zervos of Yanchuck, Berman, Wadley & Zervos, P.A., Tarpon Springs, for Appel-lee.
   WHATLEY, Judge.

This matter arose from an automobile accident wherein the vehicle driven by appellant, Robert LeFave, struck the vehicle driven by the appellee, Melissa Bordonaro. Bordonaro filed a complaint against Le-Fave alleging that he negligently operated his vehicle. LeFave admitted his liability and admitted that he was under the influence of alcohol at the time of the accident. The parties agreed that since liability was admitted, no reference would be made to LeFave’s intoxication. The trial was limited to the issues of causation and damages.

This matter was initially tried in 2003 and Bordonaro was awarded a total recovery of $110,400. However, the trial court granted Bordonaro’s motion for new trial after finding that the verdict awarding future medical expenses, but no future pain and suffering, was inconsistent. The second trial resulted in a verdict awarding Bordonaro $968,000. LeFave moved for a new trial, which was denied. We reverse.

LeFave had obtained an independent medical examination (IME) from an orthopedic physician before the first trial. Before the second trial, LeFave sought a second IME from a neurosurgeon, to which Bordonaro objected. The trial court sustained the objection noting there had been no change in circumstances between the first trial and the upcoming second trial that would warrant a second IME. Such a decision is governed by an abuse of discretion standard, and we conclude that the trial court did not abuse its discretion in refusing to permit the second IME. See State Farm Mut. Auto. Ins. Co. v. Shepard, 644 So.2d 111 (Fla. 2d DCA 1994). The trial court limited LeFave’s neurosurgeon to a records review.

The mischief occurred at trial when Bordonaro’s counsel stated to the jury: “They didn’t have her examined and they could have. They have him review records. Why not get another neurosurgeon to come in and testify? Why? Were they afraid of what he was going to say?” LeFave’s counsel objected, and the trial court overruled the objection. “[T]he trial judge should always grant a motion for a new trial when ‘the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.’ ” Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999) (quoting Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959)). Here, LeFave was ambushed. Bordonaro’s counsel improperly implied that LeFave chose not to have her examined by a neurosurgeon because he knew the findings would not be favorable. We recognize that the standard of review for orders denying a new trial is abuse of discretion. See McCloud v. Sherman Mobile Concrete Co., 679 So.2d 773 (Fla. 2d DCA 1991). The failure to grant LeFave a new trial was an abuse of discretion. A similar result is found in Fisher v. Perez, 947 So.2d 648 (Fla. 3d DCA 2007).

Based on the foregoing, we do not need to address LeFave’s argument as to the alleged impropriety of a document submitted into evidence by Bordonaro.

Reversed.

STRINGER and CANADY, JJ., Concur.


author: ALTENBERND, Judge.

text:
    Gary W. RADFORD, Appellant, v. Dwight E. BROCK and Lisa Holton, Appellees.
    No. 2D06-1931.
    District Court of Appeal of Florida, Second District.
    June 1, 2007.
    Gary W. Radford, pro se.
    John W. Carter, Naples, for Appellee Dwight E. Brock.
    Lisa Holton, pro se.
   ALTENBERND, Judge.

Gary W. Radford, pro se, appeals the circuit court’s order denying his petition for writ of mandamus, which sought production of records relating to his 1988 conviction. We affirm the circuit court’s order because the court cannot compel the court reporter or clerk to produce records over which they do not have custody.

In 1988, Mr. Radford was convicted of sexual battery on a victim under the age of twelve and lewd and lascivious assault on a child under the age of sixteen. He was sentenced to life in prison. This court affirmed his convictions on direct appeal. Since then, this court has affirmed four of Mr. Radford’s postconviction appeals. In 2005, however, this court reversed and remanded the circuit court’s order denying Mr. Radford’s petition for writ of mandamus because the circuit court did not follow the proper procedure to address the petition. Radford v. Brock, 914 So.2d 1066, 1067 (Fla. 2d DCA 2005).

Mr. Radford filed the petition because he was seeking production of records relating to his 1988 criminal trial. He requested a number of documents, including files from the offices of the State Attorney and the Public Defender and the investigative reports by the Department of Health and Rehabilitative Services and by the Collier County Sheriffs Office. Mr. Radford alleges that the Clerk of the Circuit Court and Ms. Lisa Holton, as the owner of Naples Court Reporting, Inc., are the legal custodians of public records for Collier County. As such, Mr. Radford asserts that despite several record requests, the clerk and Ms. Holton have failed to produce certain documents relating to his criminal trial in 1988.

On remand from this court’s prior opinion, the circuit court complied with the proper procedures for addressing these writs by issuing an order to show cause why the petition for writ of mandamus should not be granted. In response, the court reporter and the clerk submitted sworn affidavits attesting that they do not have the records Mr. Radford requests. Under section 28.13, Florida Statutes (1987), the clerk has a duty to “keep all papers filed in his office with the utmost care and security, arranged in appropriate files (endorsing upon each the time when the same was filed).” The court reporter must retain the original notes of proceedings for specified time periods, such as two years for proceedings when a transcript was prepared and for ten years in a felony case when a transcript was not prepared. See Fla. R. Jud. Admin. 2.075(e)(1), (2) (1988).

The documents Mr. Radford requested date back almost twenty years. They are not the type of records the clerk is required to retain. Mr. Radford must seek these documents from the sources that created them. See Potts v. State, 869 So.2d 1223, 1224-25 (Fla. 2d DCA 2004) (stating that attorney files prepared for the purpose of representing a client are the attorney’s personal property, but that a defendant is entitled to the return of personal property that he provided to counsel and transcripts prepared on his behalf at public expense).

Both the clerk and Ms. Holton would prefer this court to enter an order barring Mr. Radford from filing similar legal actions in the future. Although any further petition seeking records from them that are not in their custody would appear to be without merit, this court cannot enter an order in this proceeding barring future filings by Mr. Radford in the circuit court. Any such order would need to be entered by the circuit court in accordance with the procedures explained in State v. Spencer, 751 So.2d 47 (Fla.1999).

Affirmed.

SILBERMAN and CANADY, JJ„ Concur.

      . Radford v. State, 594 So.2d 743 (Fla. 2d DCA 1991).

      . Radford v. State, 935 So.2d 10 (Fla. 2d DCA 2006); Radford v. State, 871 So.2d 230 (Fla. 2d DCA 2004); Radford v. State, 803 So.2d 731 (Fla. 2d DCA 2001); Radford v. State, 664 So.2d 254 (Fla. 2d DCA 1995).


author: WALLACE, Judge.

text:
    James I. PASCO, Jr., and Betty Pasco, Appellants, v. CITY OF OLDSMAR, FLORIDA, a municipality, Appellee.
    No. 2D06-1147.
    District Court of Appeal of Florida, Second District.
    June 1, 2007.
    See also 953 So.2d 766.
    Patrick B. Calcutt of Calcutt, Calcutt & Jayson, St. Petersburg, for Appellants.
    James L. Yacavone, III, of Frazer, Hubbard, Brandt, Trask & Yacavone, L.L.P., Dunedin, for Appellee.
   WALLACE, Judge.

James I. Pasco, Jr., and Betty Pasco appeal a circuit court order that awarded attorney’s fees to the City of Oldsmar, Florida. The circuit court based the award on a proposal for settlement after it had granted a final summary judgment in favor of the City on the Paseos’ action for a declaratory judgment concerning disputed property rights. In a related appeal, the Paseos sought review of the final summary judgment. See Pasco v. City of Oldsmar, 953 So.2d 766 (Fla. 2d DCA 2007). Because we reversed the circuit court’s entry of the final summary judgment in the related appeal and remanded the case for further proceedings, we also reverse the award of attorney’s fees to the City. In reversing the attorney’s fees award, we express no opinion on the sufficiency of the proposal for settlement to support an award of attorney’s fees.

Reversed.

ALTENBERND and KELLY, JJ., Concur.


author: DAVIS, Judge.

text:
    C.D., Petitioner, v. Vincent VURRO, Florida Juvenile Detention Center, Respondent.
    No. 2D07-1879.
    District Court of Appeal of Florida, Second District.
    June 20, 2007.
    Robert R. Jacobs, II, Public Defender, and Rita Chansen, Assistant Public Defender, Fort Myers, for Petitioner.
    No Appearance for Respondent.
   ORDER ON MOTION FOR CLARIFICATION

DAVIS, Judge.

On April 24, 2007, the petitioner filed a “child’s emergency petition for writ of ha-beas corpus” challenging the continued detention of the petitioner without holding hearings each forty-eight-hour period of the detention. We denied the petition on April 24, 2007. The petitioner then filed a motion for clarification. We grant the petitioner’s motion for clarification and write to clarify our interpretation of section 985.255(2), Florida Statutes (2007).

The requirement of a hearing within forty-eight hours of placement in secure detention for a child charged with committing an offense of domestic violence and not otherwise subject to secure detention originated in section 39.042(2)(b)(3), Florida Statutes (Supp.1994). This statute explicitly provided for a detention hearing to be held every forty-eight hours after placement in secure detention. The 1995 version of section 39.042(2)(b)(3) specifically stated:

A child who is charged with committing an offense of domestic violence as defined in s. 741.28(1) and who does not meet detention criteria may be held in secure detention for up to 48 hours if a respite home or similar authorized residential facility is not available. The court may order that the child continue to be held in secure detention provided that a hearing is held at the end of each 4-8-hour period, excluding Saturdays, Sundays, and legal holidays, in which the state attorney and the department may recommend to the court that the child continue to be held in secure detention.

(Emphasis added.) However, as a result of the 1997 legislative amendments, section 39.042 was transferred, renumbered as section 985.213, Florida Statutes, and amended. See ch. 97-238, § 21, Laws of Fla. Effective October 1, 1997, section 985.213(2)(b)(3) was amended to read in part as follows:

The child may not be held in secure detention under this subparagraph for more than 48 hours unless ordered by the court. After 48 hours, the court shall hold a hearing if the state attorney or victim requests that secure detention be continued. The child may continue to be held in secure detention if the court makes a specific, written finding that secure detention is necessary to protect the victim from further injury.

(Emphasis added.) This amendment provided a more formalized procedure by mandating that written findings be entered at a hearing held within forty-eight hours of the child’s placement in secure detention. While the legislature specifically opted in section 39.042 to require continued hearings every forty-eight hours, it implicitly rejected this requirement when it formalized the procedure for the court to make written findings at the first forty-eight-hour hearing pursuant to section 985.213. If the legislature intended to continue mandating the forty-eight-hour requirement as originally dictated in section 39.042, it would have explicitly done so.

Once the legislature opted to remove the requirement to hold a hearing for each forty-eight-hour period a child remains in secure detention, the enactment applied to all subsequent amendments to the procedures for holding a child charged with domestic violence in secure detention. When the petitioner in this proceeding was charged with domestic violence battery, section 985.255(2) was in effect. Because the text of section 985.255(2) is identical to the text that was found in section 985.213(2), it maintains the legislative intent of requiring written findings at a hearing to be held within forty-eight hours of a child’s placement in secure detention but does not resurrect the requirement of section 39.042 to continue holding hearings for each forty-eight-hour period the child remains in secure detention. Accordingly, the procedures followed in the detention of the petitioner were correct and reflected the legislative intent of chapter 985.

WALLACE and LaROSE, JJ., Concur.

      . In the 2006 legislative session, section 985.213(2) was renumbered as section 985.245. See ch. 06-120, § 32, Laws of Fla. (effective Jan. 1, 2007). The portion of the text in section 985.213(2)(b)(3) that relates to the issue in this proceeding was removed from section 985.245 and was transferred to section 985.255(2), a newly created statute. See ch. 06-120, §§ 32, 34, Laws of Fla. (effective Jan. 1, 2007).


author: PER CURIAM. LaROSE, Judge,

text:
    In the Interest of M.G., T.G., T.G., and J.D., children. M.G., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D06-5555.
    District Court of Appeal of Florida, Second District.
    June 20, 2007.
    Jessica C. Tien of Tien Law Group, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kelley R. Schaeffer, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Mercedes Scopetta, Orlando, for Appel-lee Guardian ad Litem Program.
   PER CURIAM.

Affirmed.

CASANUEVA and STRINGER, JJ., concur.

LaROSE, J., Concurs with opinion.

LaROSE, Judge,

Concurring.

The trial court entered an order terminating the Mother’s parental rights to her four minor children. The trial court found that the Mother tested positive for drug use on two occasions. The trial court also concluded that the Mother tested positive for creatine and alcohol use in January 2003.

The record does not contain competent, substantial evidence supporting the Mother’s two supposed positive drug screens. Further, based on our record, I cannot say that a positive screen for creatine or an isolated use of alcohol formed a sufficient basis to terminate the Mother’s parental rights. Appellee offered no evidence regarding the illegal nature of creatine. Neither creatine nor alcohol use specifically were prohibited by the Mother’s case plan.

Nevertheless, the facts otherwise before the trial court amply support the termination of the Mother’s parental rights under sections 39.806(1)(c) and 39.806(1)(e), Florida Statutes (2004). Therefore, I concur in the court’s affirmance.

      . Creatine is a nitrogenous organic acid found mainly in the muscle tissue of many vertebrates and acts in muscular contraction. See The American Heritage Dictionary of the English Language 311 (1980).


author: NORTHCUTT, Judge.

text:
    Michael MURPHY, Appellant, v. Jacqueline MURPHY, Appellee.
    No. 2D06-890.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.
    Rehearing Denied Aug. 14, 2007.
    Allison M. Perry of Law Office of Allison M. Perry, Tampa, for Appellant.

      Sarah M. Chaves and Lorieann M. Cox, St. Petersburg, for Appellee.
   NORTHCUTT, Judge.

Michael Murphy contests numerous aspects of the final judgment dissolving his marriage to Jacqueline Murphy. We affirm the challenged decisions of the circuit court without discussion, with one exception. We agree with Mr. Murphy that the judgment, as written, erroneously awards child support for all three of the parties’ children until the youngest of them reaches majority.

Section IV, paragraph 1 of.the final judgment states:

The Husband is obligated to pay child support for the three children in the amount of $1,419.00 per month beginning December 1, 2005, and continuing until the youngest of the minor children reaches the age of 18 or until high school graduation by age 19, if there is a reasonable expectation of graduation by the 19th birthday, dies, marries or otherwise become self-supporting.

Ms. Murphy concedes that the intent of the court was, instead, to reduce the total amount of the child support as each child attained his or her majority or met the other conditions specified in the judgment. She has no objection to correcting the judgment to so provide. We reverse the quoted portion of the final judgment and remand with directions to amend that paragraph of the judgment in accordance with this opinion.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, and WALLACE, JJ., Concur.


text:
    Allie Charles BESSETTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2354.
    District Court of Appeal of Florida, Second District.
    June 29, 2007.
    Rehearing Denied Aug. 9, 2007.
    Rick Terrana, Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

Finding no abuse of discretion in the trial court’s rulings that are challenged on appeal, we affirm Bessette’s convictions without further discussion. We also affirm his sentences and point out that the minimum mandatory terms on counts six, seven, and eight were imposed as part of his violent career criminal sentencing under section 775.084(4)(d), Florida Statutes (2003). Because the sentences were not imposed under section 775.087(2), they did not require specific jury findings regarding Bessette’s actual possession of a firearm.

Affirmed.

SALCINES, J., and COBB, WARREN H., Associate Senior Judge, Concur.


author: LAROSE, Judge.

text:
    FLORIDA WEST REALTY PARTNERS, LLC, Petitioner, v. MDG LAKE TRAFFORD, LLC, Respondent.
    No. 2D06-5808.
    District Court of Appeal of Florida, Second District.
    July 11, 2007.
    Mark D. Hildreth of Abel Band, Chartered, Sarasota, for Petitioner.
    Steven V. Blount of Woodward, Pires & Lombardo, P.A., Naples, for Respondent.
   LAROSE, Judge.

Florida West Realty Partners, LLC (Florida West), petitions for certiorari review of the trial court’s order denying its motion to extend a notice of lis pendens. We have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(A), 9.100(c)(1); Loidl v. I & E Group, Inc., 927 So.2d 1016, 1018 (Fla. 2d DCA), review denied, 939 So.2d 93 (Fla. 2006). Florida West failed to show good cause for the extension. Therefore, we deny the petition.

In March 2005, Florida West contracted to buy real estate from MDG Lake Traf-ford, LLC (MDG). The sale did not close. In September 2005, Florida West sued MDG for specific performance, breach of contract, and declaratory relief. Florida West also recorded a notice of lis pendens (hereafter, lis pendens) pursuant to section 48.23, Florida Statutes (2005). Subsequently, MDG sued Florida West for breach of contract and declaratory relief. The trial court consolidated the cases in July 2006.

In mid-August 2006, Florida West moved to extend the lis pendens:

No notice of lis pendens is effectual for any purpose beyond 1 year from the commencement of the action unless the relief sought is disclosed by the initial pleading to be founded on a duly recorded instrument or on a lien claimed under part I of chapter 713 against the property involved, except when the court extends the time on reasonable notice and for good cause. The court may impose such terms for the extension of time as justice requires.

§ 48.23(2). Pursuant to the parties’ stipulation, the trial court granted a two-month extension of the lis pendens so it could conduct an evidentiary hearing on the motion. After a hearing in November 2006, the trial court concluded that Florida West had not established good cause for the extension, denied the motion to extend, and discharged the lis pendens.

To obtain certiorari relief, Florida West must demonstrate that the trial court’s interlocutory order departs from the essential requirements of the law, and causes irreparable harm that cannot be corrected on direct appeal. See, e.g., Cranney v. Coronado, 920 So.2d 132, 133 (Fla. 2d DCA 2006); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995).

With that standard in mind, we recognize that “[o]ne of several purposes underlying the doctrine of lis pendens is that, when a suit is filed that could affect title in property, some notice should be given to future purchasers or encumbranc-ers of that property.” Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla.1993) (citing DePass v. Chitty, 90 Fla. 77, 105 So. 148 (1925)). The salutary purpose of the lis pendens is to protect “those purchasers or encumbrancers from becoming embroiled in the dispute, and protecting the plaintiff from intervening liens that could impair any property rights claimed and also from possible extinguishment of the plaintiffs unrecorded equitable lien.” Id.

In Chiusolo, the supreme court held that a lis pendens could not be dissolved if, “in the evidentiary hearing on request for discharge, the proponent [of the lis pendens] can establish a fair nexus between the apparent legal or equitable ownership of the property and the dispute embodied in the lawsuit.” 614 So.2d at 492; see also Aryeh Trading v. Trimfast Group, Inc., 778 So.2d 336, 337 (Fla. 2d DCA 2000); Lennar Fla. Holdings, Inc. v. First Family Bank, 660 So.2d 1122, 1124 (Fla. 5th DCA 1995). A fair nexus requires a showing of a “good faith, viable claim.” See Martell v. Dubner, 885 So.2d 469, 471 (Fla. 4th DCA 2004). “[T]he trial court need not determine whether there is any likelihood the property will be alienated or subjected to intervening liens during the pendency of the cause. The relevant question is whether alienation of the property or the imposition of intervening liens ... conceivably could disserve the purposes for which lis pendens exists.” Chiusolo, 614 So.2d at 492.

Florida West urges us to apply Chiuso-lo’s fair nexus test to its motion to extend a lis pendens. Florida West argues that the trial court departed from the essential requirements of the law by not deeming the fair nexus factor sufficient, by itself, to establish good cause. We cannot accept Florida West’s position. The statute requires more. Even if there is a fair nexus here, section 48.23(2) specifically imposes a good cause requirement that Florida West must satisfy.

The statute does not define good cause. The parties found no cases discussing this statutory requirement. Nevertheless, fair nexus does not necessarily equate to good cause. In the context of time extensions generally, State v. Boyd, 846 So.2d 458, 460 (Fla.2003) (citing Dohnal v. Syndicated Offices Sys., 529 So.2d 267, 269 (Fla.1988)), offers guidance:

We defined good cause in [In re Estate of] Goldman, [79 So.2d 846 (Fla.1955) ], finding that it is “a substantial reason, one that affords a legal excuse, or a cause moving the court to its conclusion, not arbitrary or contrary to all the evidence, and not mere ignorance of law, hardship on petitioner, and reliance on [another’s] advice.” ...
The determination of good cause is based on the peculiar facts and circumstances of each case. Obviously the trial court is in the best position to weigh the equities involved, and [its] exercise of discretion will be overruled only upon a showing of abuse.

See also Davis v. State, 887 So.2d 1286, 1289 (Fla.2004) (quoting same good cause definition in context of postconviction time extensions providing that matter is resolved in reasonable time); Dimick v. Estate of Barry, 787 So.2d 198, 201-202 (Fla. 4th DCA 2001) (applying same good cause definition in probate cause and finding that claimants made a sufficient showing of good cause).

Whether to extend a lis pendens is a matter left to the trial court’s discretion. See § 48.23(3); Rodriguez v. Banco Indus. de Venez., C.A., 576 So.2d 870, 873 (Fla. 3d DCA 1991). Guided by Boyd, we cannot say that the trial court erred. During the fourteen months that the lis pendens was in place, Florida West, with insufficient explanation, did nothing to move its case along. It provided no good cause for an extension. See Marchand v. De Soto Mtg. Co., 149 So.2d 357, 359 (Fla. 2d DCA 1963) (stating that purpose of one-year limitation is to prevent restriction for unreasonable lengths of time on property subject to lis pendens).

The trial court neither abused its discretion nor departed from the essential requirements of law in denying the motion for an extension of lis pendens.

Petition denied.

FULMER and SILBERMAN, JJ., Concur.


author: KELLY, Judge.

text:
    STATE of Florida, Appellant, v. Tracie Ann ELDER, Appellee.
    No. 2D06-771.
    District Court of Appeal of Florida, Second District.
    July 11, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appellant.
    Arnold D. Levine and Robert H. Mackenzie of Levine, Hirsch, Segall, Mackenzie & Friedsam, P.A., Tampa, for Ap-pellee.
   KELLY, Judge.

The State appeals from the trial court’s order granting Trade Ann Elder’s motion to dismiss the charge filed against her under section 316.027(1)(b), Florida Statutes (2004), for leaving the scene of a crash resulting in the death of a person. The trial court concluded that Elder could not be charged under the statute because Elder’s car did not collide with another vehicle and, therefore, it was not involved in a crash. We disagree and reverse.

Elder was driving on Fowler Avenue in Tampa when she turned into the path of a car driven by Rikki Lewis. To avoid hitting Elder’s car, Lewis swerved, lost control of the car, and drove off the road. The car flipped over, ejecting a passenger and killing Lewis. Elder left the scene and was later charged with leaving the scene of a crash with death under section 316.027(1)(b), which provides as follows:

The driver of any vehicle involved in a crash resulting in the death of any person must immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and must remain at the scene of the crash until he or she has fulfilled the requirements of s. 316.062. Any person who willfully violates this paragraph is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Elder filed a motion to dismiss the information pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), asserting that a motorist cannot be charged with leaving the scene of a crash unless there was actual contact between the two vehicles. The trial court granted Elders motion stating, without elaboration, that “[t]he requirements of Florida Statute [sic] Section 316.027(1)(b) have not been met in this case.”

In dismissing the charge, the trial court relied on C.J.P. v. State, 672 So.2d 62 (Fla. 1st DCA 1996). In that case, C.J.P. had parked his car down the street from a car that he and two companions mistakenly believed was occupied by individuals they had been in a dispute with earlier that evening. C.J.P. and his companions got out of C.J.P.’s car, and one of his companions approached the driver of the other car in a threatening manner. The driver accelerated her car suddenly to escape and drove into a brick mailbox. After the collision, C.J.P. and his companions got into his car and left the scene. C.J.P. was found guilty of leaving the scene of an accident with injuries. On appeal from the order of disposition, the First District reversed, stating:

The State proved beyond a reasonable doubt that C.J.P., the driver of his own vehicle, left the scene of a collision. The driver of another automobile, Ms. Johns, had crashed into a stationary object, a brick mailbox, and had come to a stop in a residential yard while C.J.P. was present. Ms. Johns’ vehicle was the only one involved in the “accident.” To establish culpability under section 316.027 for leaving the scene of an accident, the prosecution had to prove that C.J.P. was “the driver of any vehicle involved in an accident resulting in the injury ... of any person.” Because C.J.P. was not the driver of the vehicle involved in the accident, we need not address what the evidence showed concerning victim injury.

Id. at 64.

We agree with the State that C.J.P. is distinguishable because of Elder’s status as the driver of a car at the time of the crash. Although Elder’s car did not crash, Elder was nevertheless “involved” in the crash because her driving caused it. We do not agree with Elder that before a driver can be found to have been “involved” in a crash, the driver’s car must collide with another ear. Section 316.027(1)(b) does not limit its application to the driver of any vehicle that collides with another vehicle but instead requires the driver of any vehicle “involved” in a crash to stop. “Involved” is a word of common usage, not defined in the statute, and as such should be construed in its plain and ordinary sense. Francis v. State, 808 So.2d 110, 138 (Fla.2001). “Involve” is defined, in pertinent part, as “to draw in as a participant,” to “implicate,” “to relate closely,” to “connect,” “to have an effect on,” to “concern directly,” to “affect.” Webster’s Third New International Dictionary 1191 (1986). Clearly, a driver of a vehicle that causes a crash is “involved” in the crash.

Although no Florida appellate court has addressed this precise issue, courts of other states have likewise held that drivers who caused accidents were “involved” in those accidents even if the car they were driving did not collide with another car. See State v. Korovkin, 202 Ariz. 493, 47 P.3d 1131, 1135 (2002) (holding in a prosecution for leaving the scene of an accident that a driver, by racing with another driver, actively participated in the immediate chain of events culminating in a collision between the other driver and a third car); Armstrong v. State, 848 N.E.2d 1088, 1092 (Ind.) (holding that the duties imposed under a statute governing a driver’s failure to stop after an accident causing death are triggered regardless of whether the driver’s vehicle struck anything), cert. denied, — U.S. -, 127 S.Ct. 513, 166 L.Ed.2d 370 (2006); Steen v. State, 640 S.W.2d 912, 914 (Tex.Crim.App.1982) (holding in a prosecution for failure to stop and render aid that the defendant was “involved” in the collision where his improper lane change caused a passing vehicle to swerve to avoid hitting the defendant, resulting in a head-on collision between the passing vehicle and an oncoming vehicle); cf. State v. Perebeynos, 121 Wash.App. 189, 87 P.3d 1216, 1218-19 (2004) (holding that the evidence was sufficient to support the finding that the defendant was “involved in an accident” within the meaning of the hit-and-run statute, even though he made no contact with another vehicle because the defendant’s erratic driving caused another driver to swerve and hit a truck), review granted, 153 Wash.2d 1002, 103 P.3d 1247 (2005).

In this case, because Elder’s driving caused the crash, she was “involved in a crash resulting in the death of any person” and was required by the statute to remain at the scene. Therefore, the trial court erred in dismissing the charges against her. Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

CASANUEVA and CANADY, JJ., Concur.

      . Section 316.027 formerly made it a felony to leave the scene of an ''accident.” The statute was amended in 1999 to state that it is a felony to leave the scene of a "crash.” See ch. 99-248, § 82, at 2586, Laws of Fla.


author: LaROSE, Judge.

text:
    Angela Holt DeJESUS, Appellant, v. Jose DeJESUS, Appellee.
    No. 2D05-2434.
    District Court of Appeal of Florida, Second District.
    July 13, 2007.
    Kara Hardin of Kara Hardin, P.A., Zephyrhills, for Appellant.
    Debra J. Sutton and Sara-Jean Palmer of Sutton Law Firm, Bartow, for Appellee.
   LaROSE, Judge.

Angela Holt DeJesus, the Wife, appeals the final judgment dissolving her marriage to Jose DeJesus, the Husband. She claims that the trial court erred in awarding to the Husband his entire 401K savings plan. We note, however, that the trial court has yet to make a final distribution of marital assets and liabilities. Additionally, the trial court has not yet determined the Wife’s child support obligations, if any. We conclude, therefore, that this portion of the final judgment is nonfinal and nonappealable; judicial labor below has not come to an end. See Wilson v. Wilson, 906 So.2d 356, 357 (Fla. 1st DCA 2005); Klein v. Klein, 551 So.2d 1235, 1235 (Fla. 3d DCA 1989). Consequently, we dismiss the appeal of the 401K issue without prejudice to the Wife’s right to appeal upon entry of a final, appealable order. See Hoffman v. O’Connor, 802 So.2d 1197, 1198 (Fla. 1st DCA 2002).

The Wife also claims that the trial court erred in awarding primary residential custody to the Husband with shared parental responsibility and liberal, but supervised, visitation by the Wife. This ruling is appealable as a nonfinal order under rule 9.130(a)(3)(C)(iii) (allowing appeal of nonfinal orders determining custody).

The Husband’s complaint alleges that the Wife suffered from health conditions impacting her ability to care for the minor child. There is no transcript of the final hearing. Thus, we cannot say whether the parties presented any evidence below regarding the Wife’s health. The Wife has presented no record basis for a reversal on the custody issue. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Pearce v. Pearce, 773 So.2d 1286 (Fla. 5th DCA 2000). We affirm without prejudice to the Wife to seek modification of the custody arrangement should a substantial change of circumstances occur.

Dismissed in part; affirmed in part.

KELLY and VILLANTI, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Charlie JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5732.
    District Court of Appeal of Florida, Second District.
    July 18, 2007.
   CASANUEVA, Judge.

Charlie Jackson appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the record does not conclusively refute Mr. Jackson’s claim that his counsel was ineffective for failing to introduce certain medical testimony, we reverse in part. We affirm the postconviction court’s order in all other respects.

Mr. Jackson was found guilty by a jury of one count of sexual battery and was sentenced to life imprisonment. In his rule 3.850 motion, Mr. Jackson contended that his counsel was ineffective for failing to introduce into evidence a medical evaluation report and for failing to call medical experts to testify that there was no evidence that the victim had been penetrated. The postconviction court found that defense counsel’s decisions were strategic and denied Mr. Jackson’s motion.

Although strategic decisions generally do not constitute ineffective assistance of counsel, an evidentiary hearing may be necessary to determine whether counsel’s decisions were the product of strategy or ineptitude. See Hamilton v. State, 915 So.2d 1228, 1231 (Fla. 2d DCA 2005); Sampson v. State, 751 So.2d 602 (Fla. 2d DCA 1998). However, an evidentiary hearing is not required when it is obvious from the record that counsel’s decision was strategic. See State v. Williams, 797 So.2d 1235, 1239 (Fla.2001); see also McNeal v. Wainwright, 722 F.2d 674, 676 (11th Cir.1984).

Here, Mr. Jackson claims that certain identifiable expert medical witnesses were not subpoenaed for trial, although each had been deposed previously, and that the introduction of the medical testimony would have contributed to a verdict of not guilty. The postconviction court did find that two physicians had been deposed pri- or to trial. However, it concluded that a decision to offer or forgo such medical testimony at trial was a strategic decision by defense counsel. See Occhicone v. State, 768 So.2d 1037, 1048 (Fla.2000).

On the face of this record we cannot conclude that the trial counsel’s decision was strategic. Nor can we conclude that the decision not to call the physicians to testify at trial was obviously strategic. Further, there are no record attachments that clearly refute Mr. Jackson’s claim of ineffective assistance of counsel.

Accordingly, we reverse and remand for the postconviction court to hold an eviden-tiary hearing on this claim or to attach those portions of the record which conclusively refute Mr. Jackson’s claim that trial counsel was ineffective for failing to introduce the medical evidence or expert testimony that was readily available. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded.

WHATLEY and DAVIS, JJ., Concur.


author: CANADY, Judge.

text:
    Mario PLANCARTE, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4924.
    District Court of Appeal of Florida, Second District.
    July 18, 2007.
   CANADY, Judge.

Mario Planearte appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the post-conviction court’s denial of claims two through eight without comment. We reverse the denial of claim one and remand for further proceedings.

A jury convicted Planearte of aggravated battery with a firearm for shooting the victim with a pistol. The trial court sentenced Planearte to twenty-five years’ prison with a twenty-five-year minimum mandatory pursuant to section 775.087(2)(a)(3), Florida Statutes (2003) (the 10/20/Life statute), after the jury found that Plan-earte had discharged a firearm and inflicted great bodily harm to the victim during the commission of the aggravated battery.

In claim one of his motion, Planearte claimed that counsel was ineffective for failing to inform him that he was subject to sentencing under the 10/20/Life statute. Planearte alleged that but for counsel’s deficiency, he would have accepted a five-year plea offer from the State rather than go to trial. This is a facially sufficient claim. See Smith v. State, 909 So.2d 972 (Fla. 2d DCA 2005); Garcia v. State, 736 So.2d 89 (Fla. 4th DCA 1999); see also Cottle v. State, 733 So.2d 963 (Fla.1999). And the postconviction court has failed to provide a record basis conclusively showing that Planearte is entitled to no relief. We reject the postconviction court’s conclusion that Planearte was as a matter of law chargeable — solely by virtue of notice of the charge brought against him — with knowledge of the maximum penalty to which he was exposed and therefore would be unable to show that he was prejudiced by counsel’s alleged ineffectiveness. On remand, the postconviction court shall attach records that conclusively refute the claim or, if necessary, hold an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

SALCINES and WALLACE, JJ„ Concur.


author: FULMER, Judge.

text:
    Richard RIOS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4381.
    District Court of Appeal of Florida, Second District.
    July 25, 2007.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Judge.

Richard Rios was charged with possession of cocaine. After the trial court denied his motion to suppress the contraband, Rios pleaded guilty, reserving the right to appeal the dispositive issue underlying the denial of the motion. We reverse.

Two officers with the Pinellas County Sheriffs Office had an arrest warrant for Robert Rios. They carried with them a jail mugshot of this person, which contained a listing of physical characteristics — black male with black hair and brown eyes; 5'8" tall; 150 pounds. The officers had also done some computer research on Robert Rios and determined that he had a tattoo on his neck saying “Saneta.”

When the officers arrived at the address listed on the warrant, they saw in front of the house a “light-skinned black male or Hispanic-looking male” with black hair and dark eyes. The officer responsible for executing the arrest warrant, who provided most of the testimony at the suppression hearing, thought the man was 5'8" to 5'10" tall or maybe a little taller. The officers announced that they were looking for Robert Rios. The man said he was Richard, not Robert. The officers asked for identification. The man said his wife had his driver’s license in the house. The backup officer testified that when the officers initially approached the man, he tried to back away toward the house. The backup officer “stood behind him.” The warrants officer knocked on the door, but no one answered.

In her testimony, the warrants officer explained that for about fifteen to twenty minutes, she went back and forth between the man and the house, alternating between interacting with the man and trying to get someone’s attention inside. The officer finally noticed that the man had a tattoo saying “Saneta” on his neck, whereupon she attempted to place the man in custody. The officers searched him as part of this process and found cocaine. Only after the man was in custody did his wife come out and produce his identification, which demonstrated that he was indeed Richard Rios, the defendant-appellant, not Robert Rios.

In denying Rios’s motion to suppress the evidence seized from him, the trial court found that “under all the circumstances within their knowledge at the time of [Richard Rios’s] arrest, the officers had probable cause to reasonably believe that [Richard Rios] was in fact the person for whom they had a warrant” and that the search of Rios and the seizure of the cocaine were incident to the lawful arrest.

Our review of the trial court’s ruling on a motion to suppress concerns “a mixed question of law and fact. The standard for reviewing facts is whether competent, substantial evidence supports the trial court’s factual findings. The historical facts should be reviewed only for clear error. The trial court’s application of law is reviewed de novo.” E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001)).

The first step in our inquiry is to identify the level of the initial contact between the officers and Rios, whether a consensual encounter or an investigatory stop as described in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A “consensual encounter ... involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.” Popple v. State, 626 So.2d 185, 186 (Fla.1993) (citing United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). In contrast, a “citizen encounter becomes an investigatory ... stop[ ] once an officer shows authority in a manner that restrains the defendant’s freedom of movement such that a reasonable person would feel compelled to comply.” Parsons v. State, 825 So.2d 406, 408 (Fla. 2d DCA 2002). In short, an investigatory stop occurs when a “reasonable person would not feel free to leave.” Hrezo v. State, 780 So.2d 194, 195 (Fla. 2d DCA 2001).

The evidence presented at the motion hearing indicates that the initial contact with Rios was an investigatory stop, not a mere consensual encounter. The backup officer testified that when the warrants officer approached Rios and began talking to him, Rios began backing toward the house. The backup officer then moved behind Rios. The officer testified that his role was to “stand[ ] behind him to cut off any escape route if he tried to run” and to prevent him from going into the house. The warrants officer testified that the process of talking with Rios and knocking on the door lasted fifteen to twenty minutes.

Blocking a person’s path or otherwise restraining movement is one indication that a stop has occurred. See, e.g., Alvarez v. State, 515 So.2d 286, 290 (Fla. 4th DCA 1987) (partially blocking suspect’s sole exit from train compartment was one factor indicating that a detention had occurred); United States v. Bowles, 625 F.2d 526, 532 (5th Cir.1980) (Fourth Amendment seizure occurred when officer ran past suspect, held out credentials, and turned to face him, thus blocking his path); cf. State v. Livingston, 681 So.2d 762, 763-64 (Fla. 2d DCA 1996) (that officers did not block suspect’s path was one factor in court’s conclusion that the contact was a consensual encounter); State v. Mitchell, 638 So.2d 1015, 1016 (Fla. 2d DCA 1994) (“An officer may address questions to anyone on the street, and unless the officer attempts to prevent the citizen from exercising his right to walk away, such questioning will usually constitute a consensual encounter rather than a stop.”). Because the uncontradicted evidence indicates that Rios was, at the outset of the encounter, prevented by the officers from entering his own house or otherwise leaving the scene, we conclude that the contact between Rios and the officers was a stop from its inception.

The next step in the analysis is to determine whether the officers had reasonable suspicion to support their investigatory stop of Rios. The principle of Terry is that the officers would have been permitted to detain Rios “briefly for an investigatory stop if they ha[d] a reasonable, articulable suspicion based on objective facts that [he] ha[d] engaged in, or [was] about to engage in, criminal activity.” United States v. Powell, 222 F.3d 913, 917 (11th Cir.2000); see also Popple, 626 So.2d at 186 (“a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime”); § 901.151(2), Fla. Stat. (2006). Furthermore, the reasonable suspicion must exist at the beginning of the investigatory stop. See Terry, 392 U.S. at 19-20, 88 S.Ct. 1868 (“[I]n determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.”); S.V.J. v. State, 891 So.2d 1221, 1223 (Fla. 2d DCA 2005) (“For reasonable suspicion to exist, the search must be justified at its inception....” (Citation and internal quotation marks omitted.)); cf. Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (“It is axiomatic that an incident search may not precede an arrest and serve as part of its justification.”).

Here, there was no testimony as to present criminal activity in which Rios might have been engaged or potential future criminal activity; indeed, criminal activity during these timeframes was not an issue at all. Moreover, the only potential source of reasonable suspicion as to past criminal acts in which Rios might have engaged was the activity for which his half-brother Robert Rios was to be arrested pursuant to the arrest warrant. However,

“[t]he existence of an arrest warrant is of no moment on the question whether a particular person police officers come across is in fact the subject of the warrant. The warrant supplies the officers with probable cause to arrest the person it names and describes, not a license to duck the reasonable suspicion requirement and stop someone they only have a subjective hunch is that person.” United States v. Hudson, 405 F.3d 425, 439 n. 9 (6th Cir.2005).

Dennis v. State, 927 So.2d 173, 175 (Fla. 2d DCA 2006); see also Faunce v. State, 884 So.2d 504, 506 (Fla. 1st DCA 2004) (“To justify an investigative detention, a law enforcement officer must have a reasonable suspicion that a person has committed or is about to commit a crime. A hunch or a mere suspicion is not enough.” (Citations omitted.)).

Testimony given by the warrants officer indicates that the officers’ initial stop of Rios was based on, at best, a mere hunch and that this level of suspicion continued throughout the encounters. For example, on cross-examination, the officer testified as follows:

Q. But you didn’t remain in your vehicle. You actually made contact with him, correct?
A. Yeah. And he was being very evasive during the time that we did make contact with him. And we kept trying to tell him just to calm down and, you know, as soon as we identify who you are, if you’re not Robert you don’t have anything to worry about.
Q. Okay. At the time when you approached, would it be fair to say that there were some differences in what you have as far as information [i.e., the arrest warrant information and mugshot] and what we have here as far as Richard Rios in the driveway, that it’s not a complete match?
A. The subject that we have sitting here today looks much different than the subject that we had that night, as well.
Q. Okay. So when you approached him, you didn’t know for sure that he was Robert Rios.
A. We didn’t know that he was not either.

(Emphasis added.) The direct examination of the same officer included the following dialog:

Q. Detective, what made you take this defendant into custody? Is there any other observations [sic] you made on that day?
A. Well, we were trying — I would keep going back to the house, trying to get somebody to come to the door to get his ID. And I would come back to him and talk to him as my partner was, you know, he would stand by and just watch. And as I came back to him, because I was trying to visualize the picture [the mugshot of Robert Rios] that I had in my hand what this subject, Robert, would look like, this photo, / was trying to visualize what that would look like with close-cropped hair—

(Emphasis added.) The officers made no progress in intensifying the level of suspicion beyond the subjective hunch level until finally, after fifteen or twenty minutes, the warrants officer noticed a tattoo on Rios’s neck consistent with the description of the tattoo on Robert Rios’s neck, whereupon the officers took Rios into custody. We need not determine whether the observation of the tattoo gave the officers probable cause to arrest Rios because his detention up to that point was illegal in light of the lack of reasonable suspicion of his involvement in criminal activity.

In its answer brief the State argues from cases concerning mistaken identity. Hill v. California, 401 U.S. 797, 91 S.Ct. 1106, 28 L.Ed.2d 484 (1971), for example, stands for the proposition that when police have probable cause to arrest one party but reasonably mistake another party for the first party, the arrest of the second party is valid. Id. at 803, 91 S.Ct. 1106. The key testimony demonstrating the “reasonable] mistake” in Hill, given by one of the investigating officers, was that the person who answered the door at Hill’s apartment and was subsequently arrested (and who turned out to be someone other than Hill) “fit the description exactly of Archie Hill” available to the officer from official records and from two other arres-tees who had implicated Hill in a robbery. Id. at 799, 91 S.Ct. 1106. Similarly, in Neal v. State, 456 So.2d 897 (Fla. 2d DCA 1984), an officer observed Neal in a parking lot, mistook him for another man whom the officer knew and for whom the officer was aware that a warrant was outstanding, and arrested Neal. Marijuana was found on Neal in a search incident to the arrest. Id. at 897. We upheld the trial court’s denial of Neal’s motion to suppress, noting that “[n]o evidence contradicted [the officer’s] positive testimony that he mistook Neal for [the subject of the arrest warrant].” Id. at 898.

Here, in contrast, there was no evidence of mistaken identity. Indeed, it took as long as twenty minutes for the warrants officer to make an ostensible connection between Richard Rios and the subject of the arrest warrant. During that period, the warrants officer “was trying to visualize” how the person in front of her could be the person pictured in her documentation. In short, we must conclude that because the officers did not have reasonable suspicion to detain Rios, the detention was illegal. As such, the trial court should have suppressed the contraband found on Rios. Furthermore, the State has not articulated an exception to the exclusionary rule that would enable us to affirm the trial court. We therefore reverse the order denying Rios’s dispositive motion to suppress evidence and remand with directions to discharge him.

Reversed and remanded.

SILBERMAN and LaROSE, JJ., Concur.

      . Other information in the officers’ possession listed Robert Rios as white.

      . It would turn out later that the man was 6'2" tall.

      . Richard Rios testified at the suppression hearing, explaining that the two men were half-brothers having the same mother, named Saneta.

      . We conclude that the officers’ initial encounter with Rios was not an arrest, the third level of police-citizen contact.


author: DAVIS, Judge. ALTENBERND, Judge,

text:
    UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, Appellant, v. Olin MORRIS and Annette Morris, as Personal Representatives on behalf of the Estate of Christopher Morris, deceased; Carlton Carmichael Hamilton, M.D.; University of Florida Jacksonville Physicians, Inc.; Winter Haven Hospital, Inc.; Juan Ramon Rivera, M.D.; and Bond & Steele Clinic, P.A., d/b/a Bond Clinic, Appellees.
    No. 2D06-4789.
    District Court of Appeal of Florida, Second District.
    July 27, 2007.

      Susan L. Kelsey of Anchors Smith Grimsley, Tallahassee; and Steven L. Brannoek of Holland & Knight LLP, Tampa, for Appellant.
    D. Paul McCaskill, Maitland, for Appel-lees Olin Morris and Annette Morris.
    No appearance for remaining Appellees.
   DAVIS, Judge.

In this interlocutory appeal, the University of Florida Board of Trustees (“UF-BOT”) challenges the trial court’s nonfinal order denying its motion to transfer venue of the wrongful death action brought against it and several other defendants by Olin and Annette Morris. We affirm.

The Morrises’ underlying action arose out of the death of their son, Christopher, after he received medical treatment for an apparent drug overdose at the emergency room of Winter Haven Hospital. The Morrises filed their complaint in the Tenth Judicial Circuit in and for Polk County, alleging that the emergency room doctor who treated Christopher was at all times acting in “the course and scope of his employment by, or as an agent of, [UF-BOT].” With regard to the issue of venue, the Morrises alleged that “[a]t all times material, the UFBOT has maintained a substantial presence for the transaction of its customary business in Polk County.”

UFBOT moved for a change of venue, citing section 768.28(1), Florida Statutes (2006), which provides in part that

any such action against a state university board of trustees shall be brought in the county in which that university’s main campus is located or in the county in which the cause of action accrued if the university maintains therein a substantial presence for the transaction of its customary business.

UFBOT argued that the University’s main campus is in Alachua County and that it does not maintain a substantial presence in Polk County for the transaction of its customary business.

In support of its motion to transfer venue, UFBOT filed the affidavit of the University’s Vice President for Finance and Administration, J. Edward Poppell, who stated that the University’s main campus is in Alachua County and gave detailed information relating to the extensive ties the University has to Alachua County. Additionally, UFBOT submitted the affidavit of its Director of Business Operations for Emergency Medicine, Dr. Kelly Gray-Eurom, who attested that UFBOT supplies ten emergency room physicians to Winter Haven Hospital but that it does not maintain a residency program at the hospital.

At the hearing on the motion, the Mor-rises argued that UFBOT did have a “substantial presence” in Polk County for “the transaction of its customary business.” The Morrises maintained that the customary business of UFBOT could be determined by the purpose of each of the state’s universities as set out in the Florida Constitution: to achieve excellence through (1) teaching students, (2) advancing research, and (3) providing public service for the benefit of the state’s citizens. See Art. IX, § 7(a), Fla. Const. The Morrises argued that UFBOT achieved these goals in Polk County through its contract with Winter Haven Hospital to provide ten emergency room physicians to the hospital.

In denying the motion, the trial court stated:

I think the University of Florida does have a substantial presence here. I tend to agree the Affidavits don’t specifically speak to the fact that they don’t. And two of the three missions of the University are covered in Polk County on a daily basis. Service to the public in that they are the only emergency room doctors in Winter Haven, in that area, and have been for some time. And two, there is a large research center here that deals with agriculture, and, in particular, citrus and other type activities to give the University of Florida substantial presence here. So I’m going to deny your motion on that grounds [sic].

Pursuant to section 768.28(1), an action brought against UFBOT can only be brought outside Alachua County— where the university’s main campus is located — if (1) the action is brought in the county where the cause of action accrued and (2) the university maintains a “substantial presence for the transaction of its customary business” in that county. Here, the Morrises’ choice to bring their action in Polk County was based on the undisputed location of where the cause of action accrued. The question then becomes whether UFBOT maintains a substantial presence in Polk County for the transaction of its customary business. The trial court came to the legal conclusion that it does. We review that determination de novo. See PricewaterhouseCoopers LLP v. Cedar Resources, Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999) (reviewing the trial court’s ruling on “a motion to transfer venue based on the impropriety in the plaintiffs venue selection” that involved no factual issues or “options over which [the trial court] could exercise discretion” and noting that “[t]he trial court’s legal conclusions are reviewed de novo”).

Addressing the second half of the question first, we agree with the trial court that UFBOT transacts its customary business in Polk County. “ ‘Transaction of customary business’ means that the business transacted in the county must be a part of the corporation’s usual and ordinary business and must be continuous in the sense of being distinguishable from mere casual, occasional or isolated transactions.” Armstrong v. Times Publ’g Co., 481 So.2d 41, 42 (Fla. 1st DCA 1985) (interpreting the term “transaction of customary business” as used in the general venue provisions of chapter 47, Florida Statutes). One of UFBOT’s constitutional purposes is to provide public service for the benefit of the state’s citizens. Because the staffing of the emergency room of one of the larger hospitals in Polk County clearly accomplishes that purpose, we can only conclude that such an undertaking amounts to the transaction of UFBOT’s customary business. See Univ. of Fla. Bd. of Trs. v. Andrew, 32 Fla. L. Weekly D1404, 2007 WL 1555732 (Fla. 1st DCA May 31, 2007).

Furthermore, we agree that UF-BOT’s contract to provide emergency medical services to Winter Haven Hospital constitutes a substantial presence in the community. We decline UFBOT’s invitation to define substantial by comparing the number of persons, programs, and buildings employed and operated by the university in Polk County with the number in Alachua County, where the university’s main campus is located. Id. at D1404 (“The fact that Appellant’s contacts in the remote county may be less substantial than its contacts in its home county is irrelevant. The statute clearly provides that any ‘substantial’ presence will qualify.”). If the legislature intended such a definition — which would necessarily dictate a different result in almost every instance — it could have simply stated that venue must be in the county in which the main campus of the university is located. The fact that the statute includes the exception at issue here establishes that other counties may be an appropriate venue, depending on the circumstances. Because no other county would compare with the presence of the university in its home county, it would seem that the plain meaning of the statute requires that we look to the significance of the university’s presence in the local community in question. The full-time staffing of the emergency room of one of Polk County’s larger hospitals is a significant undertaking by UF-BOT and is of considerable impact and importance to the citizens of Polk County, who are dependent on this facility for medical treatment. Because UFBOT’s presence in Polk County is substantial and satisfies the requirements of section 768.28(1), we affirm the trial court’s order concluding that venue is proper in Polk County.

Affirmed.

WHATLEY, J., Concurs.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge,

Concurring.

I fully concur in this opinion. I write only to question the sovereign immunity ramifications that appear to underlie the arrangement between the emergency room physicians at Winter Haven Hospital and UFBOT. If the University of Florida is essentially selling its sovereign immunity for profit to physicians and hospitals that do not otherwise possess sovereign immunity, this is a practice that should be carefully examined.

Like many hospitals, Winter Haven Hospital is not a governmental entity. It is a not-for-profit corporation. Such corporations have never had sovereign immunity in Florida. Moreover, the doctors and nurses who work in these hospitals do not generally have any sovereign immunity protection. Thus patients at not-for-profit hospitals who believe that they have been the victims of medical malpractice are generally entitled to sue the hospital, the doctors, and the nurses without the restrictions that limit lawsuits against governmental entities.

UFBOT has essentially taken over the professional staffing of physicians in the emergency room at Winter Haven Hospital. In so doing, UFBOT has apparently transformed the emergency room doctors into government employees for purposes of section 768.28(9)(a). The practical effect of this change in employment status is that the doctors are no longer personally liable for their ordinary medical negligence. Instead, liability for their errors is now protected by the restrictions of sovereign immunity, including the $100,000 limitation per person contained in section 768.28(5) that can only be overcome if the legislature orders UFBOT to pay a larger amount.

As this appeal demonstrates, UFBOT also argues that this new contractual arrangement requires that claims arising from the treatment of these emergency room doctors be litigated in Alachua County. If this were the law, a medical malpractice claim by a Polk County resident involving both a typical treating physician or hospital nurse in Winter Haven and an emergency room physician at Winter Haven Hospital would proceed against the treating physician or hospital nurse as a claim in the Polk County Circuit Court subject only to the restrictions common to all medical malpractice claims under chapter 766, Florida Statutes. If the Polk County resident had sufficient resolve to bring an additional claim against the emergency room physician, that claim would proceed only against UFBOT in a separate suit, subject to all sovereign immunity restrictions, in Alachua County.

Sovereign immunity in England was originally based on the notion that “the king can do no wrong.” Am. Home Assurance Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 471 (Fla.2005). It has never been a doctrine of the common law that translated well to the governance of a democratic republic. Limitations on governmental liability for the torts of government employees may occasionally be necessary to assure the proper functioning of government, but these limitations are often inconsistent with the general rules we use to assure that businesses and professionals in a free market economy actually cover the foreseeable indirect costs that their economic activities generate within our society. See Pagan v. Sarasota County Pub. Hosp. Bd., 884 So.2d 257, 260 (Fla. 2d DCA 2004) (expressing concern about an effort by a nonprofit corporation controlled by a government hospital board to extend sovereign immunity to private physicians).

It is obviously more economic to run any business or profession if one has limited liability. It is easier to compete with other businesses or professionals if one can avoid the costs and liabilities that the competitor cannot avoid. The idea that the government can now enter into favorable leases and contracts based at least in part on the government’s ability to expand its umbrella of sovereign immunity to favor some private enterprises over others is an idea that warrants very close scrutiny.

      . Although the other named defendants below do not take part in this appeal, they are named as appellees here pursuant to Florida Rule of Appellate Procedure 9.020(g)(2).

      . We note that in making its ruling, the trial court included a reference to UFBOT’S agricultural extension activities with the Polk County Cooperative Extension Service. Although we recognize this as an additional presence in the community through which UFBOT transacts its customary business, we conclude that the presence UFBOT achieves through its contract with Winter Haven Hospital alone is sufficient to meet the statutory venue requirements.

      . See § 617.0302(2), Fla. Stat. (2006); Fritsch v. Rocky Bayou Country Club, Inc., 799 So.2d 433, 435 (Fla. 1st DCA 2001) (stating a not-for-profit corporation “is subject to suit 'in its corporate name to the same extent as a natural person’ ”).


author: SALCINES, Judge.

text:
    Octavia WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3522.
    District Court of Appeal of Florida, Second District.
    July 27, 2007.

      James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Octavia Wright appeals her conviction for trafficking in cocaine. We reverse.

The offense of trafficking in cocaine is defined in section 893.135(1)(b)(1), Florida Statutes (2004). There are three elements of the offense which are met when an individual (1) knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, (2) cocaine or any mixture containing cocaine, (3) in the amount of 28 grams or more, but less than 150 kilograms.

In the present case, Wright was charged by an amended information with “unlawfully and knowingly, traffic[king] in cocaine, by selling, delivering, or actually or constructively possessing 200 grams or more of cocaine.” She was not charged with trafficking by knowingly purchasing, manufacturing, or bringing cocaine into the state. However, without objection, the jury was instructed that it should convict Wright of trafficking if she “knowingly sold, purchased, manufactured, delivered or brought into Florida or possessed a certain substance [cocaine].” (Emphasis added.) The jury returned a general verdict of guilty as to the charged offense making it impossible to determine what manner of trafficking was found to have been used by Wright.

It is well settled that jury instructions are subject to the contemporaneous objection rule, and absent an objection at trial, any alleged error can be raised on appeal only if fundamental error has occurred. Reed v. State, 837 So.2d 366, 370 (Fla.2002). In State v. Weaver, 957 So.2d 586 (Fla.2007), the supreme court quoted State v. Delva, 575 So.2d 643, 644-45 (Fla.1991), to articulate the proper standard for determining whether a defective jury instruction rises to the level of fundamental error:

To justify not imposing the contemporaneous objection rule, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” In other words, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.” Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error and there must be an objection to preserve the issue for appeal.

Weaver, 957 So.2d at 588 (citations omitted). The supreme court noted that when the jury instruction erroneously omits an element of an offense or erroneously includes an element of the offense, it will be held to be fundamental error if there is a dispute concerning that specific element at trial. Weaver, 957 So.2d at 588-89. However, the erroneous inclusion of an element that the State concedes does not apply, and concerning which it presents no evidence, is not pertinent or material to what the jury must consider in order to convict. Id. (quoting Stewart v. State, 420 So.2d 862, 863 (Fla.1982)).

In the present case, although no evidence was presented and the State did not argue that Wright purchased or manufactured the cocaine, it repeatedly argued that Wright brought the cocaine into the State of Florida. The State asserted that Wright was a principal in the trafficking offense because she arranged for the package containing the cocaine to be sent from Jamaica to Florida. Further, it presented testimony that Wright was to be paid $400 by a third party for having the cocaine brought into the state.

The defense countered that Wright was not responsible for bringing the cocaine into Florida. Testimony was elicited that Wright did not physically bring the cocaine to Florida from Jamaica, but it was shipped by another individual from that country using a mail delivery service. Also, a witness testified that Wright told her that the package from Jamaica contained an illegal cellular phone. Wright never mentioned the cocaine to this witness.

During the charge conference, the defense requested and was granted a jury instruction on the lesser-included offense of bringing cocaine into the state. § 893.13(5). In closing, the defense informed the jury that it would be asked to consider whether Wright was guilty of this lesser-included offense. The defense then cautioned the jury that the evidence did not support a conviction for that lesser-included offense because there could be no showing that Wright had knowledge that cocaine was in the package which was sent from Jamaica to Florida.

As demonstrated by the foregoing, the issue of whether Wright was guilty of trafficking by bringing cocaine into the State of Florida was disputed. Fundamental error was committed when the jury was given an instruction defining trafficking which included this manner of committing the offense for which Wright had not been charged. We reverse the judgment and sentence and remand for a new trial.

Reversed and remanded for further proceedings.

WHATLEY and WALLACE, JJ., Concur.