author: WELLS, J.

text:
    BROOKS TROPICALS, INC., Appellant, v. Alcides ACOSTA, Appellee.
    No. 3D06-250.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Rehearing and Rehearing En Banc Denied July 10, 2007.

      Stack Fernandez Anderson & Harris and Brian J. Stack, Miami, and Mindy Lee Pallott, for appellant.
    Bilzin Sumberg Baena Price & Axelrod and Glen H. Waldman, Miami, and Allen J. Smith, Winter Haven, for appellee.
    Before WELLS, ROTHENBERG, JJ„ and SCHWARTZ, Senior Judge.
   WELLS, J.

J.R. Brooks & Sons, Inc. n/k/a Brooks Tropicals, Inc. (“Brooks”) appeals from a final judgment in Alcides Acosta’s favor on claims of breach of contract, fraud in the inducement, fraud, and breach of fiduciary duty relating to settlement of a Benlate related products liability law suit brought some twelve years earlier in which Acosta and Brooks were co-plaintiffs. Because there is no evidence to support any of these claims and because they are all barred by applicable statutes of limitation, we reverse.

Acosta and his company, Acosta Farms, Inc. are the owners of commercial mango groves located in Miami-Dade County. Brooks also owns a number of mango groves and owns a fruit packing facility as well. Some time prior to Hurricane Andrew in 1992, Neal Brooks, one of the principals of Brooks, learned that the fungicide Benlate might be responsible for a decline in his fruit production. After Hurricane Andrew, Brooks decided to pursue a claim against DuPont for damage to its crops and to its packing house for lost productivity due to Benlate use.

Brooks enlisted James Zaharako, a former Brooks employee, to gather information and to assist in prosecuting Brooks’ claim against DuPont. As part of his duties, Zaharako located law firms already handling Benlate cases and made arrangements for Brooks to interview these firms. Brooks ultimately selected one of these firms, Sheehe & Vendittelli, to represent it in an action against DuPont relating to the use of Benlate.

Brooks thereafter, at the Vendittelli firm’s suggestion, invited a number of other growers to join this suit. In all, twelve plaintiffs, including Acosta, were named in the suit. Each executed a contingency fee agreement with Sheehe & Vendittelli and signed a client’s statement of rights which confirmed his, her, or its right to communicate directly with Sheehe & Vendittelli for the purpose of: obtaining information about the case and being advised of its progress; obtaining information about and making final decisions regarding settlement; and receiving and approving a closing statement at the end of the case:

You, the client, have the right to receive and approve a closing statement at the end of the case before you pay any money. The statement must list all of the financial detail of the entire case, including the amount recovered, all expenses, and a precise statement of you lawyer’s fee....
You, the client, have the right to ask your lawyer at reasonable intervals how the case is progressing and to have these questions answered to the best of your lawyer’s ability.
You, the client, have the right to make the final decision regarding settlement of a case. Your lawyer must notify you of all offers of settlement before and after the trial.... However, you must make the final decision to accept or reject a settlement.

On August 11, 1993, the Vendittelli firm filed a six-count complaint against DuPont on behalf of Brooks, Acosta, and ten other plaintiffs. That complaint alleged that the plaintiffs “owned and/or operated ... mango groves” and that Brooks “owned and operated ... a packing facility” and sought a damage award for both the grove owners and Brooks’ packing house:

As a result of the effects of Benlate on Plaintiffs’ fruit and trees, Plaintiffs have suffered the following losses: (a) loss of fruit and tree material in 1988, 1990, 1991, 1992, and 1993; (b) loss of value of fruit ... (c) loss of production ... due to retarded growth rate and tree death or injury ...(f) loss of income and sales in plaintiff J.R. Brooks & Sons, Inc.’s packing facility ... as a direct result of the continuing contamination caused by the defective Benlate.

This request for relief was repeated in all six counts of the complaint, copies of which were mailed by Sheehe & Vendittelli to each of the named plaintiffs including Acosta. Acosta denied receiving a copy of this complaint.

Early in 1994, while a jury was deliberating another Benlate suit, DuPont offered to settle all of the Vendittelli firm’s Ben-late cases for an aggregate of $34 million. Zaharako acting on behalf of all the plaintiffs in the Brooks Benlate suit agreed to accept $3.6 million to settle all of their claims. Based on a disbursement schedule prepared by Zaharako, Vendittelli issued a check to Brooks and left it to Brooks to disburse the proceeds to each of the Brooks plaintiffs. Using the disbursement schedule prepared by Zaharako, Neal Brooks issued a settlement check to each plaintiff and forwarded the cheeks to each with a letter advising, “if you should have any questions concerning this settlement don’t hesitate to call Zeke [Zaharako] or myself.” Although Acosta acknowledged receiving the settlement check, he denied receiving this cover letter. He did, however, execute a general release in DuPont’s favor.

Two years later, in mid-1996, Acosta asked his attorney of twenty years, Sharon Jones, to investigate the Benlate settlement. Over four years after that, on October 23, 2000, he brought suit against Brooks for breach of oral contract, fraudulent inducement, fraud and breach of fiduciary duty claiming that Brooks had falsely represented that all of the proceeds of the Benlate suit would be divided amongst all of the plaintiffs pro rata based on the number of acres each owned.

In September 2005, a jury returned a verdict in Acosta’s favor on all four counts and awarded $335,515 in damages to him. To this, the trial court added $350,342.01 in prejudgment interest. Following denial of Brooks’ motions for directed verdict, renewed motion for directed verdict, and for new trial and/or remittitur, the trial court entered a final judgment in Acosta’s favor in the amount of $685,857.01. For the following reasons, we reverse.

1. The breach of contract claim

Count II of Acosta’s complaint sounding in breach of oral contract alleges that Acosta and Brooks agreed that “any and all proceeds from the settlement or other favorable resolution of the Brooks suit [would be divided] ... on a pro rata basis, based on the damaged acreage of each of the plaintiffs,” and that Brooks breached this agreement by failing to distribute the settlement proceeds pursuant to this agreement primarily by distributing part of the proceeds to Brooks’ packing house. Acosta’s own testimony refutes this claim.

The evidence was that Acosta and Brooks had done millions of dollars of business together on no more than a handshake for more than 14 years before Acosta agreed to join Brooks in the Benlate lawsuit. According to Acosta, some time after Hurricane Andrew, he, like Brooks, heard that the fungicide Benlate had been contaminated with weed killer. After approaching another grower and discussing a possible lawsuit against DuPont, he asked Brooks, from which he had purchased Ben-late, to provide him with the certificates documenting his purchases. When Brooks was unable to locate the certificates, Neal Brooks suggested, in a conversation lasting only “[a] couple of minutes,” that Acosta join Brooks’ suit against DuPont. Acosta agreed. When asked what damages they were going to try to recover, Neal Brooks stated that it would be trees, fruit, and production. He did not state that the parties would recover based on a pro rata share of acreage owned. On direct examination by his own attorney Acosta testified:

[BY ACOSTA],... So I went back to Brooks and I said, “Brooks, I need them [the Benlate certificates]. He said, “You can join us in the lawsuit. We’re doing the same thing.” I said, “Good. Fine. And what are we going to use to sue Benlate with?” He says, “Trees, fruit and production.
Q. One more time, please, what was it?
A. Trees, damage to the fruit, and lost production.

In short, Acosta cannot recover for breach of an oral agreement to disburse all of the settlement proceeds from the Ben-late suit “pro rata” based on the number of acres that each Benlate plaintiff owned, because Acosta’s trial testimony confirms that no such promise was made. See Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So.2d 571, 575 (Fla. 4th DCA 2006) (confirming that the “elements of a breach of contract action are: (1) a valid contract; (2) a material breach; and (3) damages”) (citation omitted); J.J. Gumberg Co. v. Janis Servs., Inc., 847 So.2d 1048, 1049 (Fla. 4th DCA 2003).

We also find nothing in the promise identified in Acosta’s trial testimony to preclude a claim for the packing house’s losses stemming from lost fruit production. See Merin Hunter Codman, Inc. v. Wackenhut Corrections Corp., 941 So.2d 396, 398 (Fla. 4th DCA 2006) (quoting Khosrow Malek, P.A. v. M.A. Hajianpour, M.D., P.A., 771 So.2d 628, 631 (Fla. 4th DCA 2000), for the proposition that “[t]he interpretation of a contract is a question of law and an appellate court is not restricted in its review powers from reaching a construction contrary to that of the trial court”). As Acosta himself confirmed at trial, damages based on lost production is not equivalent to damages based on number of acres, and damages for lost production is sufficiently broad, as the Benlate complaint confirms, to encompass a claim by the packing house.

Even if a breach of oral contract had been proved, Acosta still would not be entitled to recover on that claim, because the claim is barred by the statute of limitations. Actions sounding in breach of oral contract must be commenced within four years of accruing: .

(3) Within four years.—
(k) A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.

§ 96.11(3)00, Fla. Stat. (2006); see ARDC Corp. v. Hogan, 656 So.2d 1371, 1373 (Fla. 4th DCA 1995) (observing “Hogan’s claim was not based on a written agreement, and was thus barred by the four year statute of limitations applicable to oral contracts”). “A cause of action accrues when the last element constituting the cause of action occurs.” § 95.031, Fla. Stat. (2006); Barbara G. Banks, P.A, 938 So.2d at 575 (quoting section 95.031(1) and observing “the limitations period begins to run when ‘the last element constituting the cause of action occurs’ ”). In this case, the last element of Acosta’s breach of contract action occurred in mid-June 1994 when the proceeds of the Benlate suit were distributed to Acosta, allegedly not in accordance with the claimed oral contract. Since the instant action was not brought until October 2000, it is barred.

Acosta maintains that Brooks is equitably estopped from asserting a statute of limitations bar because Brooks

fraudulently concealed the allegedly disproportionate distribution. See Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001) (recognizing equitable es-toppel as a bar to a statute of limitations defense). Equitable estoppel exists to bar the application of the statute of limitations where the parties recognize a basis for a suit, but the wrongdoer prevails on the other to forego enforcing that right until the statutory time has elapsed. See Ryan v. Lobo De Gonzalez, 841 So.2d 510, 519 (Fla. 4th DCA 2003). There is, however, no proof of the type of behavior that justifies application of this equitable principle in this case. To the contrary, Acosta testified that he felt that ’he could contact Vendittelli, Neal Brooks or Zaharako at any time with questions regarding the settlement. Yet, he raised no concerns with any of these individuals when he received the settlement and distribution even though, as he claimed at trial, he was unhappy with the distribution when he received it and immediately believed that there was something wrong. In fact, Acosta’s testimony was that he made only a “very light comment to [Neal Brooks] that [the settlement] didn’t seem like enough,” to which Brooks responded that the settlement was the “best we could do.” Later, in 1996 when Acosta went to Brooks asking if Brooks wanted to reopen the Benlate lawsuit, Brooks responded that it did not, but that Acosta could go to the Vendittelli firm for any records that he needed. Even after Acosta confronted Brooks with the settlement disbursement sheet in 1997, Brooks did nothing to lull Acosta into inaction. Rather, Acosta testified that he waited almost another four years after that to bring suit because it was to his benefit, as he wanted to continue using Brooks’ packing facility to package his fruit.

This behavior does not amount to a concealment of the details of the settlement or the distribution which were available to Acosta through his own lawyer, Vendittelli, and his agent, Zaharako. Nor was Acosta induced to either forego further inquiry into the settlement and disbursement or to postpone legal action until after the limitations period had run. Thus, these actions could not have acted to prevent application of the statute of limitations.

As explained in Major League Baseball:

the fundamental purposes served by the statute of limitations and the doctrine of equitable estoppel are congruent. As noted above, a main purpose of the statute of limitations is to protect defendants from unfair surprise and stale claims. A prime purpose of the doctrine of equitable estoppel, on the other hand, is to prevent a party from profiting from his or her wrongdoing. Logic dictates that a defendant cannot be taken by surprise by the late filing of a suit when the defendant’s own actions are responsible for the tardiness of the filing. The two concepts, i.e., the statute of limitations and equitable estoppel, thus work hand in hand to achieve a common goal, the prevention of injustice.

Major League Baseball, 790 So.2d at 1078 (footnote omitted).

To apply the doctrine of equitable estop-pel to the facts as accounted by Acosta simply would eviscerate the very purpose of the statute of limitations. A verdict should have been directed on this count.

2. The fraud, fraud in the inducement, and breach of fiduciary duty claims

A verdict also should have been directed on the remainder of Acosta’s claims sounding in fraud, fraud in the inducement, and breach of fiduciary duty as these claims, like the breach of oral contract claim, were all predicated on the allegation that Neal Brooks represented that the proceeds from the settlement of the Brooks suit would be distributed pro rata based on the damaged acreage each plaintiff owned, an allegation directly refuted by Acosta’s own trial testimony. This is especially so with regard to Acosta’s fraud in the inducement and fraud claims since Acosta testified that he did not believe Brooks was lying when he initially invited Acosta to join the Benlate suit and discussed the basis for seeking a damage award. See Taylor Woodrow Homes Fla., Inc. v. 4/46-A Corp., 850 So.2d 536, 542 (Fla. 5th DCA 2003) (“In order to recover for fraud in the inducement, the plaintiff must prove by the greater weight of the evidence that: 1) a false statement was made regarding a material fact; 2) the individual who made the statement knew or should have known that it was false; 3) the maker intended that the other party rely on the statement; and 4) the other party relied on the false statement to its detriment.”) (citations omitted); Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002) (“The essential elements of a fraud claim are: (1) a false statement concerning a specific material fact; (2) the maker’s knowledge that the representation is false; (3) an intention that the representation induces another’s reliance; and (4) consequent injury by the other party acting in reliance on the representation.”). Thus, Acosta’s own account of his discussion with Neal Brooks demonstrates he could not prevail on his fraud in the inducement and fraud claims.

The fraud in the inducement, fraud and breach of fiduciary duty claims are also barred by the applicable statute of limitations. See § 95.11(3)(j), Fla. Stat. (2006) (providing for a four year limitation period for “[a] legal or equitable action founded on fraud”); § 95.11(3)(o), (p), Fla. Stat. (2006) (limitations periods for intentional torts and actions not specifically addressed); see also Berg v. Wagner, 935 So.2d 100, 102 (Fla. 4th DCA 2006).

With regard to these claims, a cause of action accrued in August 1993 when Acosta’s counsel filed the Benlate lawsuit seeking an award for Brooks’ packing house, an award not related to acreage ownership. As observed in Lipsig v. Ramlawi, 760 So.2d 170, 186 (Fla. 3d DCA 2000), “[professionals, such as lawyers and accountants are always agents of their clients.” See also Fla. R. Admin. P. 2.505(h) (providing “Attorney as Agent of Client. In all matters concerning the prosecution or defense of any proceeding in the court, the attorney of record shall be the agent of the client, and any notice by or to the attorney or act by the attorney in the proceeding shall be accepted as the act of or notice to the client”). As the court in Ruotal Corp., N.W., Inc. v. Ottati, 391 So.2d 308, 309 (Fla. 4th DCA 1980), noted, “[i]t is axiomatic that knowledge of the agent constitutes knowledge of the principal as long as the agent received such knowledge while acting within the scope of his authority. Bertram Yacht Yard, Inc. v. Florida Wire & Rigging Works, Inc., 177 So.2d 365 (Fla. 3d DCA 1965); 2 Fla. Jur.2d, Agencys 94 (1977).” As again highlighted in Griffith v. Investment Co., 92 Fla. 781, 110 So. 271, 271-72 (1926):

The fact that the appellant did not know of the final decree dismissing her bill to quiet title until some months after notice of it had been entered is immaterial. Her attorney was charged with knowledge of this fact, together with all other entries or decrees filed in the course of this or any other litigation or transaction in which he wás acting for her. If he failed to communicate the true situation or misrepresented the facts, or failed to act for her, he is responsible to her, and she has her redress against her attorney.

Acosta’s attorney knew in August 1993 that the law suit proceeds were not going to be distributed pro rata based on owned acreage. So did Zaharako, who also acted as Acosta’s agent. Therefore, Acosta also knew this.

Alternatively, at the latest, these causes of action .accrued when the allegedly disproportionate distribution of the settlement proceeds was made in mid-June 1994. At that time, Acosta admitted he did the math, considered the amount he should be getting and knew something was amiss. As he himself testified: “[w]hen the settlement came with the 3.6 million, I divided it, and it didn’t come close to what I thought I should get.” As observed in Sickler v. Melbourne State Bank, 118 Fla. 468, 159 So. 678, 679 (1935):

It is too well-settled to require the citation of authorities that one who has either actual or constructive information and notice sufficient to put him on inquiry is bound, for his own protection, to make that inquiry which such information or notice appears to direct should be made, and, if he disregards that information or notice which is sufficient to put him on inquiry and fails to inquire and to learn that which he might reasonably be expected to learn upon making such inquiry, then he must suffer the consequence of his neglect.

Because Acosta did not bring this action until October 23, 2000, these claims are all barred by the statute of limitations.

The delayed discovery rule encompassed in section 95.031(2)(a) of the Florida statutes provides Acosta with no relief from the time limitation bar. This is especially true where the breach of fiduciary duty claim is involved. As the Florida Supreme Court has made clear, this rule applies to only a few causes of action:

The Florida Legislature has stated that a cause of action accrues or begins to run when the last element of the cause of action occurs. An exception is made for claims of fraud and products liability in which the accrual of the causes of action is delayed until the plaintiff either knows or should know that the last element of the cause of action occurred. The Legislature has also imposed a delayed discovery rule in cases of professional malpractice, medical malpractice, and intentional torts based on abuse.

Davis v. Monahan, 832 So.2d 708, 709-10 (Fla.2002) (footnote omitted).

As Davis explains, “[t]o hold otherwise would result in this Court rewriting the statute, and, in fact, obliterating the statute.” Id. at 711. Thus, any special relationship alleged between Acosta and Brooks cannot be the basis for application of the delayed discovery doctrine to any of the claims other than the fraud claims.

As to the fraud claims, for the reasons stated above, the delayed discovery doctrine has no application to the facts at hand. On these facts, the question of whether this plaintiff should have discovered the basis for a cause of action for fraud was one of law to be determined by the court. See Codding v. Phillips, 296 So.2d 554, 555 (Fla. 3d DCA 1974). The trial court erred in sending this question to the jury, which in turn incorrectly adopted Acosta’s argument that his causes of action did not accrue until 1997, when his attorney, Sharon Jones, obtained from the Ven-dittelli firm a copy of the disbursement schedule for the settlement proceeds, clearly the last in a long line of red flags, not the first.

As previously stated, Acosta was charged with knowing what was contained in the complaint filed on his behalf on August 11, 1993, and he was charged with investigating what by his own admission he recognized as a problem with the $87,234 settlement check he received in June of 1994. Remarkably when he again heard that Brooks had received a disproportionate share of the proceeds and retained lawyer, Sharon Jones, all prior to October 1, 1996, he still did not file his action within four years of even this last date. As of any of these dates, Acosta either knew about or was obligated to inquire about the facts surrounding his distribution. His failure to timely file his fraud claims within four years from even the later of those dates bars recovery.

On this analysis we need not address the other points argued by Brooks, including its claim that the damages awarded were greater than the testimony supported, and whether the amended complaint related back to the original filing of the complaint. See generally McCarthy Bros. Co. v. Tilbury Const., Inc., 849 So.2d 7, 9 (Fla. 1st DCA 2003) (“A court cannot allow a jury to award a greater amount of damages than what is reasonably supported by the evidence at trial.”); Patel v. School Bd. of Volusia County, 813 So.2d 135, 136 (Fla. 5th DCA 2002) (“The relation back doctrine may be applied to new parties only if the new party is sufficiently related to the original party so that no prejudice to the new party will occur.”).

Accordingly, the judgment in Acosta’s favor is reversed and this matter is remanded for entry of judgment in Brooks’ favor.

      . Benlate was manufactured and sold by DuPont.

      . In addition to Acosta’s testimony as to the nature of the promise at issue, we find yet another, even more elementary problem with Acosta's breach of contract claim, in that it appears that there was no consideration for the "promise” alleged and thus, no contract. Pick Kwik Food Stores, Inc. v. Tenser, 407 So.2d 216, 218 (Fla. 2d DCA 1981) ("A binding contract requires consideration.”); Kaufman v. Harder, 354 So.2d 109, 109 (Fla. 3d DCA 1978) ("[t]he law is clear that there can be no indebtedness without legal consideration”).

      . Acosta also maintained that the underlying suit incorrectly calculated his damages based on 35 acres rather than the 65 acres that he owned. However, he confirmed at trial that the faulty calculation was "a mistake.” Therefore, whether argued as a claim of breach of contract or a claim of negligence, the time for asserting such a claim had long passed by the time the instant complaint was filed.

      . Acosta testified:
      Q. And the lawsuit was filed, I believe, in October of 2000
      A. That's correct.
      Q. That's three and a half years, three years eight months or nine months. That's a long time.
      A. Yes.
      Q. So why so long?
      A. I — I—I waited as long as I could. I was hoping that he would come to his senses, and sit with me as a friend and work it out somehow. That never happened.
      And the other reason, Glen, is, I had a lot of fruit in Homestead. There are several packing houses, but there are only two that can handle large volumes. The other packing house doesn't even have a lime machine, and their cooler space is very limited, so I also was scared to fly away and have no place to go.

      . Section 95.031(2)(a) of the Florida Statutes, provides:
      (2)(a) An action founded upon fraud under s. 95.11(3), including constructive fraud, must be begun within the period prescribed in this chapter, with the period running from the time the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence, instead of running from any date prescribed elsewhere in s. 95.11(3), but in any event an action for fraud under s. 95.11(3) must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered.

      . October 23, 2000,. Acosta Farms, Inc. brought suit against Brooks. On August 3, 2001, the circuit court granted Acosta, in his individual capacity, leave to join the lawsuit as a plaintiff. A few days later, the court granted Brooks’ motion for summary judgment against Acosta Farms, Inc. based on the conclusion that Acosta Farms, Inc. had not been a party to the underlying suit against DuPont, and thus lacked standing to proceed with the instant suit.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ingrid PERDICES, Appellant, v. Jorge PERDICES, Appellee.
    No. 3D06-1760.
    District Court of Appeal of Florida, Third District.
    April 18, 2007.
    Rehearing Denied July 19, 2007.
    Schnall Cadogan, and llene S. Schnall, Ft. Lauderdale, for appellant.
    Rob McNeely, for appellee.
    Before GERSTEN, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed. See § 61.13(2)(b), Fla. Stat. (2006); Edrington v. Edrington, 945 So.2d 608 (Fla. 4th DCA 2006).


author: FLETCHER, J.

text:
    Joanna MYERS and Raymond Myers, her husband, Appellant, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellee.
    No. 3D06-870.
    District Court of Appeal of Florida, Third District.
    April 25, 2007.
    Rehearing Denied June 14, 2007.
    Chasin & Stinton; Philip D. Parrish, Miami, for appellant.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A. and Hin-da Klein, Hollywood, for appellee.
    Before FLETCHER and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   FLETCHER, J.

Joanna Myers and Raymond Myers appeal a final summary judgment in favor of their insurer, Nationwide Mutual Insurance Company. We reverse.

Joanna Myers, a North Carolina resident, was a passenger in a taxi owned by Super Yellow Cab Corp. when a car owned by Miami-Dade County and driven by a county employee collided with the taxi. Myers, who was insured under a Nationwide policy, was injured as a result of the accident. The county was uninsured; Yellow Cab was underinsured, thus both types of coverages came into play.

As to uninsured motorists coverage (the county), Myers’ policy provided:

“We will pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of:
1. Bodily injury sustained by an insured and caused by an accident; ...
Exclusions
A. We do not provide Uninsured Motorists Coverage for property damage or bodily injury sustained by any insured:
1. If that insured ... settles the bodily injury ... claim without our written consent.”

As to underinsured motorists coverage (Yellow Cab), the applicable policy provision, “Combined Uninsured Underinsured Motorists Coverage,” states, in pertinent part:

“We will also pay compensatory damages which an insured is legally entitled to recover from the owner or operator of an underinsured motor vehicle because of bodily injury sustained by an insured and caused by an accident.... We will pay for these damages only after the limits of liability under any applicable liability bonds or policies have been exhausted by payments of judgments or settlements, unless we:
1. Have been given written notice in advance of settlement between an insured and the owner or operator of the underinsured motor vehicle; and
2. Consent to advance payment to the insured in the amount equal to the tentative settlement.
Exclusions
C. We do not provide coverage for bodily injury caused by an underinsured motor vehicle and sustained by an insured:
1. If that insured ... settles the bodily injury claim without our consent. However, this exclusion does not apply if we:
A. Have been given written notice in advance of a settlement between an insured and the owner or operator of the underinsured motor vehicle; and
B. We fail to advance payment to the insured in an amount equal to the tentative settlement within thirty days following receipt of such written notice.”

In June, 2004, Myers filed an amended complaint against Yellow Cab, the taxi driver, the County, and the county employee for damages and against Nationwide for uninsured and underinsured motorists’ benefits. Myers alleged that Yellow Cab was underinsured with policy limits of $50,000,' and that the county and its employee were statutorily uninsured.

At a February 15, 2005, mediation, which was attended by all parties including Nationwide, Myers settled with Yellow Cab and the driver, for $25,000. The mediator issued a report the next day. On February 18, Myers sent a letter to Nationwide requesting consent to settle with Yellow Cab and its driver.- The letter was faxed to Nationwide on February 22. On February 18, Yellow Cab sent a letter to Myers confirming the settlement. Myers executed a General Release on March 3, which excluded the county and its employee, and Yellow Cab sent Myers the $25,000 settlement check on March 23. A stipulated dismissal was filed on March 25.

On March 14, Nationwide and Myers agreed to a partial summary judgment, declaring that the county vehicle was uninsured. On June 10, Myers provided Nationwide with written notice of her intent to settle with the county and its employee for $10,000. Myers requested consent to settle. Nationwide did not respond to the letter. On July 18, Myers wrote to Nationwide, stating that Nationwide had not objected to the settlement. On or about July 27,.Myers obtained the release and settlement check from the county.

Nationwide filed summary judgment motions, contending that Myers’ action was barred based on the releases, the failure to provide the requisite consent to settle, and the failure to exhaust Yellow Cab’s liability limits. Following a hearing, the court granted the summary judgment motions and entered judgment in favor of Nationwide. Myers appeals.

Although there appear to be a number of issues, there is but one that controls. Remembering that North Carolina law governs we turn to Silvers v. Horace Mann Ins. Co., 324 N.C. 289, 378 S.E.2d 21 (1989). After a thorough discussion of matters similar (if not identical) to the instant case, the North Carolina Supreme Court concluded that the insurer had the burden of proving that it was materially prejudiced by the plaintiffs failure to notify it and to procure its consent to settlement. In reaching its conclusion the court stated the following:

“We agree that the insurance company should have an opportunity to establish any prejudice that may have been caused by plaintiffs failure to notify it and to obtain consent to settlement as required by the policy. As we noted previously in a similar context, this approach to interpretation of the consent-to-settlement requirement has the advantage “of providing coverage whenever in the reasonable expectations of the parties it should exist and of protecting the insurer whenever failure strictly to comply with a condition has resulted in material prejudice.” [Great American] Insurance Co. [v. C.G. Tate Const Co.], 303 N.C. [387] at 396, 279 S.E.2d [769] at 775 [ (1981) ].
Accordingly, we remand the case to the Court of Appeals for further remand to the trial court to determine whether Horace Mann was materially prejudiced by plaintiffs failure to notify it and to procure its consent to settlement. See Parrish v. Grain Dealers Mut. Ins. Co., 90 N.C.App. 646, 649-50, 369 S.E.2d 644, 645-46 (Greene, J., concurring), disc. rev. allowed, 323 N.C. 366, 373 S.E.2d 547 (1988). As established in Insurance Co., the insurer will bear the burden of proving that it has been materially prejudiced by the insured’s failure to notify it and to obtain its consent to settlement. Insurance Co., 303 N.C. at 398, 279 S.E.2d at 775-76. “[T]he burden of showing prejudice should be on the insurer because it is seeking to escape its obligation ..., the very thing which it is paid to do.”

Silvers, 378 S.E.2d at 27-28.

The final summary judgment is reversed and the cause is remanded to the trial court for further proceedings consistent herewith.

Reversed and remanded.

      . The parties agree that North Carolina law governs this case.

      . We are not unmindful of the very astute dissent. [See Justice Webb's dissent, Silvers, 378 S.E.2d at 28.] It is not however our place to substitute for the North Carolina court. Our function is to follow the law of North Carolina as announced by its courts.


text:
    Silvio VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1983.
    District Court of Appeal of Florida, Third District.
    May 9, 2007.

      Bennett H. Brummer, Public Defender, Miami, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, Orlando, and Laura Moszer, Assistant Attorney General, for appellee.
    Before FLETCHER, CORTIÑAS and LAGOA, JJ.
   PER CURIAM.

Silvio Valdes seeks to reverse his convictions for 1) tampering with evidence and 2) resisting an officer without violence. We affirm.

Valdes was observed at close range by undercover Officer Mersid to exchange money with another person for something in a tiny plastic baggie. The officer notified his undercover partner Officer Gonzalez down the block that Valdes was coming his way and had suspected narcotics in his hand. Officer Gonzalez walked up to Valdes, got his attention and flashed his badge, and grabbed Valdes’ hand. Valdes struggled briefly, the officer released him, and Valdes popped the baggie into his mouth. Officer Gonzales tried to pull Valdes’ jaw open, saw the baggie in his mouth and several times told him to spit out the “crack rock.” When Officer Gonzalez let go, Valdes swallowed the baggie. Valdes was charged with tampering with evidence and resisting an officer without violence.

At trial, the defense did not put on any evidence. After the state rested, the defense moved for a judgment of acquittal on the basis that the state failed to make a prima facie showing of resisting the officer. The trial court denied the motion. Over defense objection, the state offered standard jury instructions for witness testimony taken from involuntary civil proceedings rather than from the criminal proceedings portion of the standard jury instructions. The defense argued that this introduced an element of “reasonableness” for evaluating witness testimony and would mislead the jury as to the state’s burden of proof of “clear and convincing” evidence. The trial court overruled the objection and the jury found Valdes guilty as charged. Valdes appeals.

The jury instructions from Section 2.04 and 3.9 differ in only one respect with regard to weighing testimonial evidence. Section 2.04 merely adds an instruction to use one’s common sense in light of all the evidence and one’s own experience. The jury instructions are otherwise identical. Valdes asserts that by focusing the jury’s attention on the reasonableness of the evidence, this instruction invites the jury to conclude that the states burden of proof can be met merely upon presentation of “reasonable” evidence of guilt. We find that in the context of the entire instruction there is nothing from section 2.04 that could have confused a reasonable juror as to the overarching standard of proof in a criminal case and thus shift the burden of persuasion to the defendant. We find no basis for reversal here.

Valdes next asserts that the state failed to prove that he committed the offense of resisting arrest without violence. To prove the offense of resisting without violence, the state must prove 1) that the officer was engaged in the lawful execution of a legal duty, and 2) that the defendant’s action constituted obstruction of or resistance to that lawful duty. See B.D.H. v. State, 903 So.2d 390 (Fla. 3d DCA 2005). Absent consent, a police officer may temporarily detain a person if the officer has a reasonable, well-founded, articulable suspicion that the person has committed, or is about to commit a crime. See State v. Taylor, 826 So.2d 399, 402 (Fla. 3d DCA 2002)(citing Popple v. State, 626 So.2d 185, 186 (Fla.1993)); compare D.G. v. State, 831 So.2d 256, 257 (Fla. 3d DCA 2002)(“[a]b-sent reasonable suspicion of the commission of a crime, a person has an affirmative right to avoid police contact.”). We conclude, as the trial court did, that the initial encounter between Officer Gonzalez and Valdes constituted a valid investigatory stop because Officer Gonzalez had a reasonable suspicion that Valdes had just purchased illicit drugs. See Popple v. State, 626 So.2d 185 (Fla.1993); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (authorizing investigatory stop because officers had reasonable suspicion that defendant was about to commit midday robbery, where officer observed Terry and Chilton repeatedly walk past and peer into a store window, and then confer with a third man, leading the officer to believe the men were planning to rob the store). In consideration of the standard of review for a motion for judgment of acquittal, i.e., whether the evidence and all reasonable inferences taken in the light most favorable to the State are sufficient to support the charge, we conclude that the offense of resisting an officer without violence was legally adequate for the jury’s consideration.

Affirmed.

      . Florida Standard Jury Instructions in Criminal Cases, Fourth Edition, Part Four: Special Proceedings, Chapter 32, Involuntary Commitment of Sexually Violent Predators §§ 394.910-394.930, Fla. Stat. (2005).

      . Florida Standard Jury Instructions in Criminal Cases, Fourth Edition, Part One: General Instructions; Chapter 3' — Final Charge to the Jury, 3.9 Weighing the Evidence.


text:
    PARROT JUNGLE AND GARDENS LIMITED, INC., d/b/a Parrot Jungle Island., Parrot Jungle and Gardens of Watson Island, Inc., d/b/a Parrot Jungle Island; PJG Watson, LLC., d/b/a Parrot Jungle Island; and PJ Birds, Inc., d/b/a Parrot Jungle Island, Appellants, v. Troy ANDREWS, a minor, by and through his parents and next friends, Miranda ANDREWS and John Andrews and Miranda Andrews and John Andrews, individually, Appellees.
    No. 3D06-1316.
    District Court of Appeal of Florida, Third District.
    May 9, 2007.
    Hoffman & Morris and Cara C. Morris, North Palm Beach, and John Hoffman, Miami, for appellants.
    Conroy, Simberg, Ganon, Krevans & Abel and Hinda Klein, Hollywood, for ap-pellee Contract Connection, Inc.
    Before WELLS, and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   WELLS, J.

The premises owners in a personal injury case appeal the summary judgment granted to the distributor/dealer that installed a set of monkey-bars from which the plaintiff fell and allegedly was injured because of defective safety surfacing installed beneath the monkey-bars. Because we find genuine issues of fact remain regarding whether the condition at issue was a “patent” or “latent” defect, we reverse the judgment in the distributor/dealer’s favor.

While on a family visit to Parrot Jungle Island in Miami, Troy Andrews climbed the overhead triangular ladder (in common parlance “the monkey-bars”) at Parrot Jungle Island’s playground, fell, landed on the soft poured-in-place (PIP) ground surface below the bars, and was injured. Troy and his parents, Miranda and John, filed suit against Parrot Jungle Island and its related entities (herein, referred to collectively as “Parrot Jungle”), the owners of the property; Contract Connection Inc., the distributor/dealer of the monkey-bars; Unique Surfacing L.L.C., the subcontractor that installed the safety surface underneath the monkey-bars for Contract Connection; and The Tower Group Inc., the General Contractor on the project. The Andrews alleged that Troy was injured because the monkey-bars were too high and located atop “a ground surface area which was unsuitably hard and otherwise unfit” for its purpose.

Relying on Slavin v. Kay, 108 So.2d 462 (Fla.1958), Contract Connection moved for summary judgment arguing that because no latent defect was alleged to exist, once Parrot Jungle accepted its work, it was released from liability. It also argued that even if the defect were latent, it was still entitled to a judgment because by virtue of three earlier incidents involving the monkey-bars, Parrot Jungle was on notice of the defect but did nothing to rectify it. The motion was granted.

We reverse the summary judgment in Contract Connection’s favor because fact issues exist regarding the existence of a defect, whether the claimed defect was patent or latent, and whether Parrot Jungle had notice of that defect. Specifically, the Andrews’ complaint alleges that the surface beneath the monkey-bars was defective. Parrot Jungle’s answers to interrogatories claim that after it had accepted Contract Connection’s work, it learned that Contract Connection had failed to install the 2.5 inch deep safety surface for which it had been invoiced by Contract Connection. And, Contract Connection’s corporate representative testified that applicable industry guidelines for this piece of playground equipment call for installation of a 2.5 inch thick safety surface “to ensure that ... children are not exposed to an unreasonably dangerous condition” and that failure to install such a surface of this requisite thickness would not be readily observable:

Q: If in fact the Poured in Place surfacing was short poured, how would that have been readily observable by anybody, either by Contract Connection or by Parrot Jungle at the final walk through?
A: It’s not something that is conspicuous. It’s not something that you can see....

At this juncture and on this record, Slavin cannot be applied to support entry of a summary judgment. And while there is evidence confirming that several “incidents” of children falling had been reported, there is no evidence of any injuries stemming from those falls, much less injuries related to the safety surface, so as to put Parrot Jungle on notice of this purported defect. Thus, summary judgment should not have been granted. See U.S. Lodging of Jacksonville, Ltd. v. H.B. Daniel Const. Co., 617 So.2d 448, 449 (Fla. 1st DCA 1993) (“To be entitled to a summary judgment, the moving party must demonstrate conclusively that no genuine issue exists as to any material fact, even after all reasonable inferences are drawn in favor of the party opposing the summary judgment. Moore v. Morris, 475 So.2d 666 (Fla.1985); Holl v. Talcott, 191 So.2d 40 (Fla.1966).”).

Accordingly, the order under review is reversed and the cause remanded.

      . "Under Slavin, if the defect is not latent, the owner is charged with knowledge of it, and the contractor is relieved of liability because it is the owner’s intervening negligence in not correcting it which is the proximate cause of the injury.” Brady v. State Paving Corp., 693 So.2d 612, 613 (Fla. 4th DCA 1997).
      By occupying and resuming possession of the work the owner deprives the contractor of all opportunity to rectify his wrong. Before accepting the work as being in full compliance with the terms of the contract, he is presumed to have made a reasonably careful inspection thereof, and to know of its defects, and if he takes it in the defective condition, he accepts the defects and the negligence that caused them as his own, and thereafter stands forth as their author. When he accepts work that is in a dangerous condition, the immediate duty devolves upon him to make it safe, and if he fails to perform this duty, and a third person is injured, it is his negligence that is the proximate cause of the injury.

        Ed Ricke & Sons, Inc. v. Green, 609 So.2d 504, 507 (Fla.1992) (quoting Slavin, 108 So.2d at 466 (citations omitted)); see also Easterday v. Masiello, 518 So.2d 260, 261 (Fla.1988) (concluding that Slavin remained good law because "it would be unfair to continue to hold the contractor responsible for patent defects after the owner has accepted the improvement and undertaken its maintenance and repair”).


text:
    Dwayne M. WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-31.
    District Court of Appeal of Florida, Third District.
    May 9, 2007.
    Dwayne M. Williams, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant State Attorney, for appellee.
    Before RAMIREZ, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

We affirm the denial of DNA testing under 3.853, Florida Rules of Criminal Procedure, because Dwayne M. Williams has not alleged that he is innocent nor how the DNA testing requested will exonerate him of the crime for which he was sentenced.

The trial court summarily denied relief without explanation. Rule 3.853(b)(3) requires a statement of “how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement of how the DNA testing will mitigate the sentence received by the movant for that crime.” Williams’ motion simply alleges that there were blood stains on the clothing of the victim that were not his and blood stains on the weapon. However, he does not explain in his motion how the DNA testing may exonerate him. We therefore conclude that the motion was legally insufficient. See Peterson v. State, 919 So.2d 573 (Fla. 3d DCA 2006).

Accordingly, we therefore affirm the trial court’s order.


author: RAMIREZ, J.

text:
    Mario FALLON, Appellant, v. CITY FURNITURE, INC., a Florida Corp., Appellee.
    No. 3D06-2289.
    District Court of Appeal of Florida, Third District.
    May 9, 2007.
    Rehearing Denied June 14, 2007.
    Alan A. Glenn, for appellant.
    Moskowitz, Mandell, Salim & Simowitz, and Todd A. Armbruster, Fort Lauder-dale, for appellee.
    Before GERSTEN, RAMIREZ, and SUAREZ, JJ.
   RAMIREZ, J.

Mario Fallon appeals an adverse summary final judgment in his cause of action against appellee City Furniture, Inc. for defamation of credit. Because we agree with the trial court that Fallon could not establish the publication element of his claim, we affirm.

Fallon alleged in his complaint that City Furniture forged his signature on a credit application without his knowledge or permission. Fallon further alleged that City Furniture subsequently reported false information about his credit to credit bureaus. City Furniture answered and raised numerous affirmative defenses. City Furniture admitted that it provided credit reporting agencies with information regarding Fallon’s account and denied that it had done so with a willful and/or malicious intent to besmirch and injure Fallon.

In its renewed motion for summary judgment, City Furniture argued that Fal-lon could not establish the publication element of his credit defamation claim. . The trial court agreed that Fallon failed to substantiate that City Furniture published any information regarding his credit.

Among the arguments Fallon raises in this appeal, he maintains that City Furniture’s admission that it reported Fal-lon’s credit information to credit bureaus binds City Furniture, and that City Furniture’s subsequent denial of that allegation creates an issue of material fact. We view this inconsistency as the Fourth District viewed the inconsistency raised in Straub v. Village of Wellington, 941 So.2d 1269 (Fla. 4th DCA 2006), as nothing more than an allegation insufficient to raise a disputed issue of material fact.

’ The primary issue in Straub involved the ownership of property with an easement. Id. at 1269. The plaintiff sued for injunctive relief claiming that it had the right to lay a pipe on the easement. Id. at 1270. The defendants counter-sued for inverse condemnation, claiming that they maintained property rights in the subject property. Id. The plaintiff moved foxf summary judgment on the counterclaim, alleging that the defendants had no legal or equitable interest in the easement. Id. The trial court agreed with the plaintiff and entered judgment in its favor. Id. On appeal, the defendants argued that an inconsistency between an allegation in the complaint regarding ownership of the property and allegations in subsequent filings of the plaintiff created a disputed issue of material fact. Id. The Fourth District disagreed, holding that pleadings are merely a tentative outline of the pleader’s position, and that inconsistencies between a position adopted in an initial pleading and a position adopted in subsequent filings do not create a disputed issue of material fact. Id.See also Hines v. Trager Constr. Co., Inc., 188 So.2d 826, 831 (Fla. 1st DCA 1966).

We follow Straub and hold that the position City Furniture undertook in its Answer merely represented a tentative viewpoint regarding the case. By subsequently taking a contrary stand in its motion for summary judgment, City Furniture did not create a disputed issue of material fact. Pleadings are inadmissible into evidence to prove or disprove a fact in issue. See Straub, 941 So.2d at 1270; Hines, 188 So.2d at 831. A party may alter the position taken earlier as facts are developed through discovery and other means; See Straub, 941 So.2d at 1270; Hines, 188 So.2d at 831.

We therefore affirm for the foregoing reasons, and decline to address the remaining arguments raised in this appeal.

Affirmed.


text:
    Ronald SWAIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-1440.
    District Court of Appeal of Florida, First District.
    May 10, 2007.
    Rehearing Denied June 21, 2007.

      Ronald Swain, pro se, Appellant.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Proctor v. State, 845 So.2d 1007 (Fla. 5th DCA 2003).

BROWNING, C.J., POLSTON and HAWKES, JJ., concur.


author: ALTENBERND, Judge.

text:
    Theron D. HOWARD, Jr., individually and as guardian of Elizabeth Howard, Anthony Howard, and Thomas Howard, Appellants, v. Steven Vern RISCH, JR Distributors, and Michael Workman, Appellees.
    No. 2D06-2572.
    District Court of Appeal of Florida, Second District.
    May 11, 2007.
    Rehearing Denied July 6, 2007.

      James R. Wilson of Johnson, Auvil, Brock & Wilson, P.A., Dade City, for Appellant.
    Christopher B. Hopkins and Alison S. Miller-Bernstein of Cole, Scott & Kissane, P.A., West Palm Beach, for Appellees Steven Vern Risch and JR Distributors.
    Beth M. Gordon of Parrillo, Weiss & O’Halloran, Boca Raton, for Appellee Michael Workman.
   ALTENBERND, Judge.

Theron D. Howard, Jr., individually and for his children, appeals an order dismissing an automobile negligence action involving two separate accidents. The trial court dismissed the lawsuit as a sanction, stating that it had found by clear and convincing evidence that Mr. Howard had “evidenced a deliberate and purposeful attempt to deceive the Court.” We reverse. The minimal amount of admissible evidence before the court did not authorize the court to dismiss this action as a sanction.

On October 28, 2003, Mr. Howard was driving his car in Zephyrhills, Florida, when he was struck by a car owned by JR Distributors and operated by Steven Vern Risch. Mr. Howard claims that Mr. Risch changed lanes or turned left from the right lane of a one-way street, running into his right front fender. Athough the damage to his car was not extensive, his wife was taken to the emergency room from the scene of the accident and he obtained treatment at the emergency room a few hours later. He claimed that the accident caused him to have pain in his lower back, in his right leg, in his neck, and in his arm.

A few weeks later, on December 6, 2003, Mr. Howard was again driving his car when Michael Workman allegedly failed to stop for a stop sign and ran into his car. Mr. Howard claimed that this accident aggravated his injuries from the first accident.

The record does not contain much medical evidence, but it appears that Mr. Howard has had surgery that he maintains is related to these accidents. Mr. Howard amended his complaint to include claims on behalf of his children, alleging that Mr. Howard’s significant permanent injuries resulted in a permanent total disability for which the children are entitled to a monetary recovery. See § 768.0415, Fla. Stat. (2003).

Mr. Howard filed his lawsuit in May 2005. The defendants’ served standard interrogatories on him, which he answered in October 2005. His deposition was taken in January 2006. Thereafter, JR Distributors and Mr. Risch sought dismissal of the lawsuit, maintaining that Mr. Howard “perpetrat[ed] a fraud upon the court” by failing to disclose his criminal history in this discovery and by failing to disclose fully his medical history. Mr. Howard filed an affidavit in opposition to the motion, averring that any omission on his part was not intended to defraud the parties or the court and was merely a result of poor memory or confusion.

The trial court held a hearing at which JR Distributors and Mr. Risch presented the answers to interrogatories, the deposition transcript, and some records they received in discovery that appeared to contradict some of the answers Mr. Howard gave. Mr. Workman’s counsel appeared at the hearing and sought to join in the motion. No further evidence was presented. Nevertheless, the trial court dismissed the lawsuit, concluding that Mr. Howard’s responses to discovery constituted a fraud upon the court.

Mr. Howard appeals the order dismissing his action, arguing that the limited evidence before the court did not permit the dismissal of his claim on the grounds of fraud. We agree.

There is no question that a trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court. See Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (citing Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992)). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id. (citing Bird v. Hardrives of Delray, Inc., 644 So .2d 89, 90 (Fla. 4th DCA 1994)). When examining an order dismissing a lawsuit for fraud during the discovery process, this court applies an abuse of discretion standard that is somewhat “narrowed.” . See Jacob v. Henderson, 840 So.2d 1167, 1168-69 (Fla. 2d DCA 2003).

In Jacob, 840 So.2d at 1169, this court adopted the approach set forth by the Fifth District in Cox, 706 So.2d 43, to assess whether dismissal is merited based upon evidence of a plaintiffs fraud:

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118.

Cox, 706 So.2d at 46; see also Laschke v. R.J. Reynolds Tobacco Co., 872 So.2d 344, 346 (Fla. 2d DCA 2004). Generally, unless it appears that the process of trial has itself been subverted, factual inconsistencies or even false statements are well managed through the use of impeachment at trial or other traditional discovery sanctions, not through dismissal of a possibly meritorious claim. See Ruiz v. City of Orlando, 859 So.2d 574, 576 (Fla. 5th DCA 2003).

In light of these principles, we examine the two areas in which the defendants alleged Mr. Howard’s discovery responses amounted to fraud: The responses regarding Mr. Howard’s criminal history and the responses regarding his past injuries or accidents.

I. THE CRIMINAL HISTORY

Mr. Howard was born in June 1970. When he was fifteen or sixteen years old, he had a sexual relationship with a girl under the age of sixteen. This apparently occurred in 1986. He was not charged for these events until 1989, when he was nineteen years old. In November 1989, he pleaded nolo contendere to lewd and lascivious conduct and two counts of handling and fondling. The trial court withheld adjudication and placed him on two years’ community control, followed by one-year of probation.

In January 1992, Mr. Howard was charged with a violation of his probation because he had sex with a girl older than sixteen, but younger than eighteen. New charges were also filed for this event, but Mr. Howard was found not guilty by a jury in the new case. Nevertheless, the trial court found Mr. Howard had violated the terms of his probation in the earlier case. The court entered an adjudication of guilt and continued Mr. Howard’s probation for one more year. The trial judge who entered the adjudication in April 1993 happens to be the same trial judge who entered the order on appeal in the current case.

In the interrogatories submitted to Mr. Howard in this case, he was asked: “Have you ever been convicted of a crime, other than any juvenile adjudication, which under the law under which you were convicted was punishable by death or imprisonment in excess of 1 year, or that involved dishonesty or a false statement regardless of the punishment?” He answered this question: “No.” During his deposition a few months later, the defendants did not ask him any additional questions that might have caused him to clarify his answer.

When JR Distributors and Mr. Risch moved to dismiss this lawsuit for failure to accurately answer the interrogatory, they filed an unsworn motion that was supported by a certified copy of the judgment adjudicating Mr. Howard guilty of three second-degree felonies in April 1993 and the sentence that placed him on one year of probation. The record indicated that the defendants also filed another collection of criminal records in addition to the judgment, but when the record was transmitted to this court it did not contain this information. The record has now been supplemented with a filing dated December 29, 2006, a date subsequent to the oral argument in this appeal. For purposes of this appeal, we are assuming that the trial judge had this information. It contains photocopies of a criminal file and supports the facts explained in this opinion.

In the affidavit Mr. Howard filed in response to the motion to dismiss, he denied that he intentionally answered the interrogatories incorrectly or inaccurately. Mr. Howard has an eighth-grade education. He explained that when he answered the interrogatories he recalled being arrested when he was “really young” and that he thought he was not convicted. Given the facts as described above, it is entirely possible that Mr. Howard’s affidavit is accurate. He also filed certified copies of the not guilty verdict and judgment of acquittal in the second case.

As stated above, the trial court did not conduct an evidentiary hearing on this portion of the motion to dismiss, but it found “by clear and convincing evidence” that Mr. Howard evidenced a deliberate and purposeful attempt to deceive the court by failing to disclose the three above-described convictions. We would observe, however, that the only “evidence” before the trial court appears to have been the certified copy of the 1993 judgment and sentence and Mr. Howard’s affidavit explaining why he thought he was being honest when he answered the standard interrogatory. JR Distributors and Mr. Risch filed documents and pleadings, but nothing in the nature of admissible evidence, to prove fraud.

Before a trial court can make a discretionary decision regarding the dismissal of a case for fraud, it must have an evidentia-ry basis to make that decision. Here, the trial court had no evidence to support findings of fact based upon the heightened clear-and-convincing-evidence standard regarding the allegations of fraud.

Even if JR Distributors and Mr. Risch had presented proper admissible evidence to support a finding that Mr. Howard intentionally misrepresented his criminal history in his answer to the standard interrogatory, that proof may not warrant this severe sanction. Based upon the current record, Mr. Howard’s criminal record does not appear to be directly relevant to any issue concerning the possible negligence of Mr. Risch or Mr. Workman in the operation of their vehicles or the possible comparative negligence of Mr. Howard. There is nothing to suggest that it would be relevant to any medical issue. It is at least plausible that prior convictions could be relevant in assessing a claim for lost earning capacity, but it is unclear at this time what role such a claim will play in this case.

When this case was dismissed, Mr. Howard had a pending motion to prevent the admission of these criminal records in evidence. Criminal records are sometimes admissible for the purpose of impeachment. See § 90.610(1), Fla. Stat. (2003). At this point, however, it is unclear whether any impeachment of Mr. Howard’s testimony at trial will be necessary or appropriate. In a civil case, such evidence is inadmissible “if it is so remote in time as to have no bearing on the present character of the -witness.” § 90.610(l)(a). Although the fact a witness or party was convicted of a crime may be relevant and admissible for impeachment purposes, the nature of the crime or any details about the crime are generally inadmissible. Reeser v. Boats Unlimited, Inc., 432 So.2d 1346, 1349 (Fla. 4th DCA 1983). Thus, if Mr. Howard testified truthfully at trial that he had previously been convicted of three felonies, it appears the defendants could pursue the matter no further.

Given the very limited relevance of these convictions to this personal injury action, JR Distributors and Mr. Risch did not establish an entitlement to a dismissal of this lawsuit under the standard announced in Jacob and Cox. Even if we assumed that Mr. Howard intentionally concealed these convictions (an assumption not supported by the record), the defendants have not established that this evidence is material to any issue that would be presented to a jury at trial such that its concealment supports the dismissal of the lawsuit as a sanction.

II. THE MEDICAL RECORDS

As the second portion of their motion, JR Distributors and Mr. Risch argued that Mr. Howard’s lawsuit should be dismissed as a sanction because he revealed only three prior minor accidents or injuries in his. deposition, when in fact there were several prior medical matters that Mr. Howard failed to disclose. JR Distributors and Mr. Risch merely attached photocopies of medical records to their motion. They did not provide evidence, medical or otherwise, that would suggest that anything in these records would be important in a trial in this case.

Again, JR Distributors and Mr. Risch did not produce these records at Mr. Howard’s deposition to allow him to explain them. Mr. Howard explained in his affidavit that he did not intentionally provide inaccurate information during his deposition. He claimed that he has never had health insurance and has used emergency rooms at hospitals for treatment of minor illnesses or injuries. He claimed that he reviewed the records attached to the motion and that they have refreshed his memory “to some extent.”

The medical records attached to the motion are difficult to read. They are primarily from the East Pasco Medical Center Emergency/Outpatient Department. These records indicate that on July 20, 1987, when Mr. Howard was seventeen, he was in an automobile accident in which he cut his scalp and had other minor injuries. He was kept at the emergency room for less than two hours. There is no indication of any additional treatment.

On October 28, 1987, Mr. Howard went to the same department for a pain in his right shoulder and chest following an automobile accident. He stayed at the medical center for about three hours. The written documentation of his diagnosis and treatment is virtually impossible to read, and there is no indication that he received additional treatment for this accident.

On June 27, 1995, he went to the same department with pain in the right side of his neck and arm. The report indicates that he received “observation service” but has no further information.

On May 3, 1996, he went to the same department with a pain in his back that occurred while tugging barrels at work. The doctor appears to have diagnosed a “strain,” given him Motrin and an athletic supporter, and sent him immediately back to work with a recommendation that he lift nothing heavier than twenty pounds. Mr. Howard was scheduled for a follow-up appointment on May 8, 1996, but did not attend that appointment.

Finally, on September 6,1999, Mr. Howard went to the same department complaining of back pain that developed while he was building a fence. He was diagnosed with a muscle spasm and sent home within three hours of arriving at the medical center. He had a lumbar x-ray that was described as a “normal study.”

In contrast, Mr. Howard did reveal during deposition three other injuries he had sustained in the past: a slip and fall in 2002 or 2003 that had injured his neck and back, a prior injury to his wrist, and an injury to his foot that occurred at a retail store. In fact, the defendants uncovered the East Pasco Medical Center documents because Mr. Howard had revealed the medical center as a provider of treatment for his injuries in this case.

As with the criminal records, it is doubtful that any of the medical records are documents in evidence. Even if they were, they involve minor incidents for which Mr. Howard appears to have received minimal medical attention. The most recent records from the department included a normal x-ray, which would at least intuitively seem to be helpful to Mr. Howard’s claim. No doctor has testified that these records make any difference in this case. The trial court lacked the evidence necessary to conclude that Mr. Howard affirmatively or intentionally misrepresented his prior medical conditions and, relying on the standard announced in Jacob and Cox, the evidence now revealed is insufficient to support the sanction even if one could find intent on the part of Mr. Howard.

The trial court lacked competent, substantial evidence to support the dismissal of Mr. Howard’s action, and the proffered evidence would not have supported such a result. We therefore reverse the order dismissing Mr. Howard’s action and remand for further proceedings.

Reversed and remanded for further proceedings.

WHATLEY and SILBERMAN, JJ., Concur.

      . This is question 5 of Form 1 of the Standard Interrogatories Forms adopted by the Florida Supreme Court for use in general personal injury negligence cases. See In re Amendment to Rules of Civil Procedure — Form 1.976 Standard Forms For Interrogatories, 577 So.2d 580 (Fla.1991).

      . See Brown v. Sisto, 532 So.2d 683 (Fla. 5th DCA 1988).

      . Under Federal Rule of Evidence 609(b), if more than ten years has elapsed since a conviction or since the release of the witness from confinement, whichever is later, there is effectively a presumption that the conviction is inadmissible for impeachment purposes. The rule in Florida is somewhat less restrictive.

      . Three days before the hearing on the motion for sanctions, JR Distributors and Mr. Risch filed medical records from Dr. Marvin Stalter. These records are not discussed in the motion for sanctions, and it is unclear from the record what, if any, significance they may have. There is no deposition or affidavit explaining these documents.


author: LAGOA, Judge.

text:
    Frank David BRYAN, etc., et al., Appellants, v. Victoria DETHLEFS, Appellees. In re Estate of Robert R. Bizzell, Deceased. Frank David Bryan, etc., et al., Petitioners, v. In re Estate of Robert R. Bizzell, et al., Respondents.
    Nos. 3D06-2360, 3D06-2441.
    District Court of Appeal of Florida, Third District.
    May 16, 2007.

      Kurzban Kurzban Weinger & Tetzeli and Jed Kurzban and Sandra Paniagua, Miami, for appellants.
    Dobbins, Meeks, Raleigh & Dover and Harry S. Raleigh, Jr., Ft. Lauderdale, Reed A. Bryan III, Ft. Lauderdale, Jack Martin Coe, for appellees.
    Before FLETCHER and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   LAGOA, Judge.

Appellants, potential beneficiaries under the Revocable Living Trust (“the Trust”) of Charles L. Bryan (“Bryan”), appeal from a Summary Judgment in favor of the appellee, Victoria Dethlefs (“Dethlefs”) in case number 3D06-2360. For the following reasons, we affirm the entry of Summary Judgment.

I. FACTUAL HISTORY

The parties dispute which family members are entitled to inherit Bryan’s assets under the Trust. Bryan executed the Trust on October 11, 2000. Article IV, Paragraph 4.1 of the Trust (the “Trust provision”) states:

Distribution to Grandson: Upon my death, the then balance of principal and accumulated income remaining in the trust fund shall be distributed to my Grandson, ROBERT R. BIZZELL, if he is living at the time of distribution. If he is not living at the time of distribution then the said trust fund shall be divided into equal shares and distributed, one share to each child who survives me and one share for each child who may then be deceased, leaving descendants then surviving, to be distributed to such descendants, per stirpes, (emphasis added).

On the same day that Bryan executed the Trust he also executed a Last Will and Testament devising the residue of his estate to the Trust.

Bryan died on September 8, 2001, and his will was admitted to probate. Bryan’s grandson, Robert R. Bizzell (“Bizzell”) was appointed personal representative of the estate and he, along with an accountant, became co-trustees of the Trust. Bizzell and the co-trustee began distributing assets from the Trust to Bizzell in accordance with the Trust provision. Before the distribution of the Trust assets were completed, Bizzell died intestate.

The appellee, Dethlefs, is Bizzell’s half-sister and one of the beneficiaries of Biz-zell’s estate. Dethlefs filed a Motion for Judgment on the Pleadings or Alternatively for Summary Judgment asserting that the Trust provision vested the Trust assets with Bizzell at the time of Bryan’s death, and that those assets were therefore part of Bizzell’s estate at the time of. his death. The appellants argued, however, that the Trust provision was vested the Trust assets only at the time of their distribution, and thus, those assets that had yet to be distributed at the time of Bizzell’s death were not part of Bizzell’s estate and therefore must be distributed to them as Bryan’s remaining descendants. For the foregoing reasons, we agree with Dethlefs.

II. STANDARD OF REVIEW

We review the order granting summary judgment under a de novo standard of review. American Engineering & Development Corp. v. Sanchez, 932 So.2d 1241, 1243 (Fla. 3d DCA 2006); Merlot Commc’ns, Inc. v. Shalev, 840 So.2d 446, 447 (Fla. 3d DCA 2003). The parties agree that the Trust provision is unambiguous and that its effect may be determined as a matter of law. See Angell v. Don Jones Ins. Agency, Inc., 620 So.2d 1012, 1014 (Fla. 2d DCA 1993)(“Where the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.”).

III. ANALYSIS

The polestar of trust or will interpretation is the settlor’s intent. Arellano v. Bisson, 847 So.2d 998 (Fla. 3d DCA 2003); Phillips v. Estate of Holzmann, 740 So.2d 1, 2 (Fla. 3d DCA 1998). Intent is ascertained from the four corners of the document through consideration of “all the provisions of the will taken together, rather than from detached portions or any particular form of words. This rule prevails whether the entire will or some specific clause or part of it is being construed.” Sorrels v. McNally, 89 Fla. 457, 462-63, 105 So. 106, 109 (1925). In construing the instrument as a whole, the court should take into account the general dispositional scheme. Pounds v. Pounds, 703 So.2d 487, 488 (Fla. 5th DCA 1997). The meaning applied, however, cannot lead to absurd results. Roberts v. Sarros, 920 So.2d 193, 196 (Fla. 2d DCA 2006).

Additionally, the law favors the early vesting of estates. Lumbert v. Estate of Carter, 867 So.2d 1175, 1179 (Fla. 5th DCA 2004)(citing Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925)). As this Court stated in Estate of Rice v. Greenberg, 406 So.2d 469 (Fla. 3d DCA 1981), any doubt as to whether an interest is vested or contingent should be resolved in favor of vesting:

This Court is committed to the doctrine that remainders vest on the death of the testator or at the earliest date possible unless there is a clear intent expressed to postpone the time of vesting. It is also settled that in case of doubt as to whether a remainder is vested or contingent, the doubt should be resolved in favor of its vesting if possible, but these general rules all give way to the cardinal one that a will must be construed so as to give effect to the intent of the testator.

406 So.2d at 473 (quoting Krissoff v. First Nat. Bank of Tampa, 159 Fla. 522, 32 So.2d 315 (1947)). Accordingly, no estate should be held to be contingent “unless very decided terms are used” and “unless there is a clear intent to postpone the vesting.” Sorrels, 89 Fla. at 467, 105 So. at 110. Indeed, “[t]he presumption that a legacy was intended to be vested applies with far greater force, where a testator is making provision for a child or grandchild, than where the gift is to a stranger or to a collateral relative.” Sorrels, 89 Fla. at 467, 105 So. at 110.

Finally, if a trust vests at the settlor’s death, then “the death of the beneficiary before it becomes payable does not cause the legacy or devise to lapse.” Sorrels, 89 Fla. at 465, 105 So. at 110. Similarly, where a settlor intends a trust to vest upon the testator’s death, benefits accrue to the beneficiaries from the time of the death, not the subsequent time that the trust was funded. In re Bowen’s Will, 240 So.2d 318, 320 (Fla. 3d DCA 1970).

Given these legal principles, we find that the language of the Trust provision can only have the legal effect of vesting the trust assets in Bizzell upon Bryan’s death. The Trust provision mandates distribution “[u]pon my death.” The last clause of the sentence, “if he is living at the time of distribution,” must be interpreted in the context of the entire sentence and can only lead to the conclusion that the time of distribution intended by Bryan was at his death. The clause “if he is living at the time of distribution” does not establish a requirement that the assets be distributed before Bizzell’s right vested.

Moreover, the Trust provision does not require that some other event, such as an age requirement, occur before the devise vests. Contrary to the appellants’ contention that the distribution. is the event which vests the assets in Bizzell, the provision can be read only to require that Biz-zell be living at the time of Bryan’s death in order for the assets to vest. There is no doubt in this case that Bizzell met the testator’s explicit survival requirements. Therefore, Bizzell’s death did not divest his estate of its interest in the assets of the Trust that remained to be distributed. Sorrels, 89 Fla. at 465, 105 So. at 110. Accordingly, we affirm the summary judgment entered below and affirm the non-final order entered below ordering the liquidation of an asset of the Bryan estate.

Affirmed.

      . In case number 3D06-2441, the Appellants separately filed a petition for certiorari to quash a subsequent non-final order of the trial court ordering the liquidation of an estate asset. We treat that petition as a non-final appeal pursuant to Florida Rule of Appellate Procedure 9.130 and affirm that order as well.

      . In their Reply, Appellants argue that parol evidence should be considered in construing the Trust provision since both sides ascribe different meanings to the language of the Trust provision. We disagree. "The fact that both sides ascribe different meanings to the language does not mean the language is ambiguous so as to allow the admission of extrinsic evidence." See Kipp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003). Because we find no ambiguity in the language of the Trust provision, it would be inappropriate for this Court to consider parol evidence.

      . Paragraph 8.1 of the Trust provides for a 90 day survivorship requirement for any beneficiary.


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    SOUTHWOOD TIMBER CO. and TIG Specialty Insurance, Appellants, v. Alfred HICKS, Appellee.
    No. 1D05-3045.
    District Court of Appeal of Florida, First District.
    May 17, 2007.

      Kevin G. Malchow and Keef F. Owens, of Zimmerman, Kiser & Sutcliffe, P.A., Orlando, for Appellants.
    Arthur C. Beal, Jr., of Arthur C. Beal, Jr., PA, Tallahassee, for Appellee.
   PER CURIAM.

Southwood Timber Co. and TIG Specialty Insurance, the employer and carrier, appeal a workers’ compensation order awarding Alfred Hicks, the claimant, attendant care benefits from the date of hearing. We affirm the award of attendant care benefits, but remand for clarification of the tasks to be performed and time required. The remaining issues raised on appeal are affirmed.

The claimant was rendered a T3 paraplegic when he was struck by falling timber in 1974. The claimant was eighteen years old at the time of the injury. In a petition for benefits dated August 26, 2004, the claimant sought attendant care benefits. The judge of compensation claims awarded attendant care benefits “for no more than 20 hours per week and for such time as said attendant care services are necessary and proper.”

The employer and carrier argue that the Judge of Compensation Claims erred in awarding attendant care for household services, and that cases allowing attendant care for household services were superced-ed by the statutory definition of attendant care. We disagree.

At the time the claimant was injured, section 440.13(1), Fla. Stat. (1974), provided:

Subject to the limitations specified in paragraph (3)(b), the employer shall furnish to the employee such remedial treatment, care, and attendance under the direction and supervision of a qualified physician or surgeon, or -other recognized practitioner, nurse or hospital, and for such period as the nature of the injury or the process of recovery may require, including medicines, crutches, artificial members, and other apparatus.

There was no definition of attendant care. The Judge of Compensation Claims correctly found this case to be similar to the circumstances in Walt Disney World Company v. Harrison, 443 So.2d 389 (Fla. 1st DCA 1983). See also Beverly Enters. v. Collingsworth, 670 So.2d 102 (Fla. 1st DCA 1996); Diana v. HLS Cos., 670 So.2d 125 (Fla. 1st DCA 1996).

Although the Judge of Compensation Claims did not err in awarding attendant care benefits in this case, the order does not clearly set forth the specific type and amount of attendant care services that should be performed in the future. Accordingly, we reverse that portion of the order awarding attendant care benefits for “no more than 20 hours per week” and remand for a determination of the specific number of hours and the specific types of compensable attendant care services which are to be awarded. On remand, the Judge of Compensation Claims may take additional evidence if deemed necessary.

AFFIRMED in part, REVERSED in part, and REMANDED.

BARFIELD, BENTON, and POLSTON, JJ., Concur.

      . Although “the general rule [is] that ordinaiy services of a purely household nature are not usually compensable, especially when those services merely reflect a claimant’s individual choice as to ‘quality of life.,' ” numerous "decisions of this court have established that there are a variety of situations in which household services may be awarded.” Diana v. HLS Cos., 670 So.2d 125 (Fla. 1st DCA 1996).

        . "The JCC erred by ruling that the amendment to section 440.13(2)(f), adding language describing attendant care as ‘beyond the scope of household duties’ could be applied to preclude an award for such services after the effective date of the statute without regard to the date of the claimant's injury. The amendment became effective July 1, 1990, and the claimant’s accident was May 11, 1990. To the extent that this statutory language might be read to constitute a substantive change, it may not be applied retroactively.” Diana v. HLS Cos., 670 So.2d 125, 126-127 (Fla. 1st DCA 1996).


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    Robert E. McDANNOLD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5481.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Rehearing Denied July 13, 2007.

      Appellant Robert E. McDannold, pro se.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Robert McDannold appeals the summary denial of his 3.850 postconviction motion. We affirm the trial court’s order and write only to address two issues.

In ground eight of the postconviction motion, appellant argues defense counsel rendered ineffective assistance by not objecting to improper bolstering of the state’s expert witness — Dr. Aruzza. Although the doctor’s reference to the “study” was indeed improper, see Schwarz v. State, 695 So.2d 452, 455 (Fla. 4th DCA 1997), the record attachments provided by the trial judge conclusively refute appellant’s claim that, in the absence of the “bolstered” testimony, the outcome of the trial may have been different. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring defendant to show defense counsel’s purported error undermined confidence in outcome of trial). Here, the record contains substantial testimony from Dr. Aruz-za, based on her personal experience and expertise, that two separate blows to the head caused the child’s fatal injuries, not a single fall from a bed. Accordingly, even in the absence of the minimal bolstering, Dr. Aruzza’s testimony dismissed a fall from a bed as a possible cause of the victim’s fatal skull and brain injuries. See Theus v. State, 922 So.2d 391, 391(Fla. 1st DCA 2006) (holding improper bolstering of expert testimony amounted to harmless error pursuant to State v. DiGuilio, 491 So.2d 1129 (Fla.1986)).

The second issue we address is appellant’s eleventh ground for relief, which appellant presented in a second supplement to the original motion. The trial judge failed to address this ground in the final order. Although we would generally remand an issue not addressed by a trial court in a postconviction motion, see, e.g., Sassnett v. State, 838 So.2d 650 (Fla. 1st DCA 2003), we deny appellant’s claim as facially invalid. When arguing that newly discovered evidence calls for a new trial, a defendant must show that the evidence was “ ‘unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.’ ” Jones v. State, 591 So.2d 911, 916 (Fla.1991) (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.1979)). The defendant is also required to demonstrate the evidence is “of such nature that it would probably produce an acquittal on retrial.” Id. at 915. Here, appellant fails to make either showing.

AFFIRMED.

BARFIELD, KAHN and PADOVANO, JJ., concur.


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    C.D.M., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D07-1158.
    District Court of Appeal of Florida, First District.
    May 17, 2007.
    Rehearing Denied June 21, 2007.
    C.D.M., pro se, Appellant.
    Raymond R. Deekert, SunCoast Region Deputy Chief Legal Counsel, Department of Children and Family Services, Tampa, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of March 27, 2007, the Court has determined that the appellant’s notice of appeal was not timely filed and therefore failed to timely invoke the Court’s jurisdiction. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BARFIELD, KAHN, and PADOVANO, JJ., concur.