source: Caselaw Access Project

author: CORTINAS, J.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Kimberly BRABSON, III, Appellee.
    No. 2D07-5619.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 2008.

      Bill McCollum, Attorney General, and Elba Caridad Martin, Assistant Attorney General, Tampa, for appellant.
    Kynes, Markman & Felman and James E. Felman and Katherine Earle Yanes, Tampa, for appellee.
    Before GERSTEN, GREEN, and CORTINAS, Associate Judges.
   CORTINAS, J.

We review the trial court’s order granting the defendant’s motion to dismiss nineteen counts of the information against Kimberly Brabson, III. Those counts charged the defendant, Brabson, with promotion of a sexual performance by a child, in violation of section 827.071(3), Florida Statutes (2007). We reverse because, under the facts of this case, the determination of whether a particular performance constitutes “actual lewd exhibition of the genitals” creates a factual inquiry for a jury and not a legal question for the court.

Defendant coached a girls’ swim team at the school where he was employed. Over a period of several months, defendant approached numerous girls on the swim team with variations of the same story. The girls were asked to try on the swimsuits under the pretense of determining sizes for purposes of placing orders for the team swimsuits. Brabson convinced the girls to try on the swimsuits in his office. Unbeknownst to the girls, prior to their entering, Brabson had set up a video camera in his office and had positioned the swimsuits at specific locations that would place the girls within the camera’s view as they changed clothing.

The video tape created by the defendant is essentially broken up into three distinct parts. In the first portion of the video, the bathing suits are placed at a certain distance away from the girls such that the camera’s view ranges from below the shoulders of each of the victims to above their knees. The faces of the girls are visible depending on the individual victim’s height and whether she bends down. Brabson is clearly seen setting up the camera and positioning the bathing suits in his office at various points throughout the video while the girls are out of his office.

The footage of the second segment of the video shows that Brabson modified the location of the camera within the office and also altered the proximity of the bathing suits to the camera. During the second segment of the video, the camera was placed much closer to the victims as they undressed, causing them to be videotaped at waist-level. This segment clearly focused on the genital region of the victims when they faced the camera. The third segment of the video essentially contains the same footage as the first segment, but retains the actual time lag in between girls entering and exiting Brabson’s office.

In response to the charges, Brab-son filed a motion to dismiss the nineteen counts of promoting a sexual performance by a child. The court granted the motion and dismissed all nineteen counts. We review this matter de novo. See State v. Pasko, 815 So.2d 680, 681 (Fla. 2d DCA 2002).

In criminal cases, motions to dismiss should be granted as sparingly as motions for summary judgment in civil cases. State v. Ortiz, 766 So.2d 1137, 1141-42 (Fla. 3d DCA 2000). “Dismissals in criminal cases are to be cautiously granted.” State v. Feagle, 600 So.2d 1236, 1240 (Fla. 1st DCA 1992) (citing State v. Hargrove, 552 So.2d 281, 283 (Fla. 4th DCA 1989)). In order to defeat a motion to dismiss, “[t]he State need only specifically dispute a material fact alleged by the defendant or add additional material facts that meet the minimal requirement of a prima facie case.” State v. Kalogeropolous, 758 So.2d 110, 112 (Fla.2000). “In meeting its burden of establishing a prima facie case, the State can use circumstantial evidence, and all the inferences made are resolved in its favor.” Id. (citing Boler v. State, 678 So.2d 319, 323 (Fla.1996)). In opposing a motion to dismiss, the State does not need to demonstrate facts sufficient for sustaining a conviction, but instead must only show the barest prima facie case. Hargrove, 552 So.2d at 282. Moreover, it is not within the province of the trial court to make factual determinations on a motion to dismiss or to consider the weight of conflicting evidence or the credibility of witnesses. Ortiz, 766 So.2d at 1142.

Section 827.071(3), Florida Statutes (2007) provides, in pertinent part, as follows:

A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
“Sexual performance” is defined as:
Any performance or part thereof which includes sexual conduct by a child of less than 18 years of age.

Section 827.071(l)(h), Florida Statutes (2007).

“Sexual conduct” is defined within the statute as:

actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

Section 827.071(l)(g), Florida Statutes (2007) (emphasis added).

The Florida Supreme Court interpreted an earlier version of section 827.071 in Schmitt v. State, 590 So.2d 404 (Fla.1991). Schmitt involved a father who was accused of taking nude photographs of his daughter while she was between the ages of eight and twelve years old. Among the issues reviewed in Schmitt was whether an affidavit was sufficient to support a finding of probable cause in the issuance of a search warrant. The probable cause affidavit recited the daughter’s assertions of the various nude photographs taken of her by her father as well as the various photography and video equipment and tapes and recordings kept by the father in their home. The affidavit also alleged a violation of section 827.071(5), which prohibited any depiction known to include “sexual conduct” by a child. Id. at 408. As part of its analysis, the Florida Supreme Court noted that the terms “lewd” and “lascivious” are synonymous and “require an intentional act of sexual indulgence or public indecency, when such act causes offense to one or more persons viewing it or otherwise intrudes upon the rights of others.” Id. at 410 (citing Rhodes v. State, 283 So.2d 351, 356-57 (Fla.1973)) (footnote omitted). The Court further noted that “it is evident beyond all doubt that any type of sexual conduct involving a child constitutes an intrusion upon the rights of that child, whether or not the child consents and whether or not that conduct originates from a parent.” Id. at 410-11. In distinguishing mere nudity from a lewd or lascivious display, the court considered the photographer’s intent and actions. Id.

While it is conceivable that one might view the allegations in the present affidavit as depicting simple nudity, we believe the magistrate had a substantial basis for concluding otherwise. The affidavit’s factual allegations indicated that Schmitt did not treat the nudity of himself, his daughter, and others in the offhand, natural manner that might be expected if the conduct were purely innocent-for example, if they were nudists. Rather, the affidavit shows he made nudity a central and almost obsessive object of his attention. Thus, the magistrate reasonably could have believed that Schmitt’s conduct toward his daughter included the “lewdness” element required by the statute. While nudity alone would not have sufficed, this overall focus of Schmitt’s conduct tended to show a lewd intent and thus created a substantial basis for believing that the search would fairly probably yield evidence of a violation of section 827.071. Thus, the magistrate must be upheld. [Illinois v.] Gates [462 U.S. 213] 103 S.Ct. [2317] at 2332 [76 L.Ed.2d 527 (1983) ].

Schmitt, 590 So.2d at 411 (emphasis added).

Thus, the lewdness requirement under section 827.071(l)(g) may be satisfied by the intent of the person promoting the performance which included sexual conduct by the child. See id. In the case before us, the victims were completely unaware that they were being filmed and any right to privacy they may have expected while changing in the closed, windowless office was violated. Furthermore, the girls were not engaged in what could be considered typical day-to-day activities as they were most certainly manipulated into changing their clothes, which they would not otherwise have done in Brabson’s office.

Although there are no Florida cases addressing the specific facts before us, other jurisdictions have addressed similar statutes in nearly identical factual scenarios. For example, one Ohio court applied a similar statute prohibiting the creation, production, direction or transfer of material or a performance that shows a minor in a state of nudity, in a case where the owner of a tanning salon was secretly recording his female patrons during tanning sessions, including at least one underage girl. State v. Huffman, 165 Ohio App.3d 518, 2006-Ohio-1106, 847 N.E.2d 58. In Huffman, the tanning salon’s owner had placed hidden wireless cameras in different areas of his salon, with a direct feed into his DVD players. After being noti-fíed, and receiving what appeared to be photographic evidence of one of the hidden cameras, police obtained a warrant and executed it, finding camera equipment and numerous DVDs containing videos of female patrons using the tanning rooms. Id. at 522-23, 847 N.E.2d 58. Several DVDs containing pornographic images of children were also discovered. Id. at 523, 847 N.E.2d 58. In challenging his convictions for the illegal use of a minor in nudity-oriented performance, Huffman argued that the state failed to prove that graphic displays or lewd exhibitions were involved. Id. at 533, 847 N.E.2d 58. The appellate court disagreed, noting that:

In this case, the state presented evidence of two digital videos of a 16-year-old gill as she used Huffman’s tanning facilities on two different dates. The images were captured by a camera hidden behind a fan near the tanning bed. The camera was positioned to focus on the girl’s genitals. During the recording of one of the videos, the camera was manually adjusted to capture a clearer image of the girl’s genitals.
Given the secretive nature of the videotaping and its blatant focus on the victim’s genitals, we hold that the state presented sufficient evidence of lewdness to sustain Huffman’s convictions for illegal use of a minor in nudity-oriented material or performance.

Id. at 534, 847 N.E.2d 58 (emphasis added.). As explained by the Ohio appellate court, the secretive nature of the recording coupled with the blatant focus on the genitalia of the victims sufficiently demonstrated lewdness. While no Florida cases have addressed this specific issue, we are persuaded by the Ohio court’s acknowledgement that the very nature of the filming with a focus on the genitalia demonstrates lewdness. In Fletcher v. State, 787 So.2d 232 (Fla. 2d DCA 2001), this court found that a warrant application which alleged, in part, the presence of hidden cameras in the bathroom of Fletcher’s home and in his daughter’s bedroom did not provide sufficient probable cause to issue a warrant. The warrant application also alleged that, based upon the information received from Fletcher’s daughter, the police believed that the purpose of the hidden cameras was to produce child pornography. Child pornography, in turn, requires that suspect videos show children engaged in “sexual conduct” as defined in section 827.071(l)(g), Fla. Stat. (1997). Fletcher, 787 So.2d at 235. The Fletcher court, while finding that the warrant application was not sufficient to justify the issuance of a warrant, distinguished Schmitt by noting that beyond alleging mere nudity, the warrant also “showed that Schmitt ‘made nudity a central and almost obsessive object of his attention’ and that an ‘overall focus of Schmitt’s conduct tended to show a lewd intent-’ ” Fletcher, 787 So.2d at 235-36 (quoting Schmitt, 590 So.2d at 411). The very issues Fletcher used to distinguish Schmitt are the same points that render Fletcher distinguishable from the case before us. In the instant case, as demonstrated by the defendant’s videotapes, nudity and female genitalia were the focus of Brabson’s filming. The second portion of the videotape shows that Brabson positioned the camera at waist-level and placed the bathing suits in relation to the camera in such a way that the victims’ genitalia became the focal point of the recording.

The Fletcher opinion relied on Lockwood v. State, 588 So.2d 57 (Fla. 4th DCA 1991). In Lockwood, the Fourth District Court of Appeal found that a video tape depicting a sixteen-year-old girl, apparently unaware that she was being filmed, “undressing, showering, towling herself dry, and performing other acts of feminine hygiene and donning clothing” did not meet the definítion of “sexual conduct” set forth in section 827.071(l)(g), Florida Statutes (1989) as applicable to section 827.071(5), Florida Statutes (1989). Lockwood, 588 So.2d at 57. The Lockwood court specifically held:

The issue presented for our determination is whether the tape contained a presentation that defendant knew included sexual conduct by a child. The record reflects that the tape does not show a presentation of sexual conduct as defined by the statute. The presentation shows, rather, the innocent, normal everyday occurrence of a female child undressing, showering, performing acts of female hygiene and donning her clothes, none of which meets any of the detailed sexual acts contained in the statute. It thus appears that the motion for judgment of acquittal should have been granted.

Id. at 58.

The case before us, however, does not involve mere nudity as did Fletcher and Lockwood, nor does it involve “normal everyday occurrence[s] of a female child undressing.” See Lockwood, 588 So.2d at 58. The video also does not involve seemingly voluntary and willing participation in “naturism.” See State v. Kerrigan, 168 Ohio App.3d 455, 458, 2006-Ohio-4279, 860 N.E.2d 816 (Ohio Ct.App.2006) (finding that videotapes depicting nude minors, along with nude adults in certain instances, engaging in activities such as swimming, boxing, or playing ball, did not violate a similar statute because they did not include “a lewd exhibition or a graphic focus on the genitals”). In Lockwood and Fletcher, the cameras were apparently placed in static locations and videotaped the nude victims in everyday activities, such as showering or dressing, occurring in bedrooms or bathrooms where such activities normally occur. In the instant case, Brabson placed the camera in his school office. Brabson then lured the girls to his office, where they otherwise would not have been undressing and changing into bathing suits, but for Brabsoris cajoling. Furthermore, the victims seem to have been enticed to change in the office with the intent that their nude bodies be visible to the camera and recorded. What we have before us is a clearly orchestrated plan by Brabson to videotape unsuspecting underage girls in a place where, but for Brabsoris machinations, they would never have undressed.

In deciding cases involving the photography of nude minors, other jurisdictions have found that “the issue ... becomes whether lewdness is determined only by what is depicted, by the photographer’s intent, or both.” Purcell v. Commonwealth of Kentucky, 149 S.W.3d 382, (Ky.2004). In Purcell, the defendant had taken a nude photograph of a minor male child under the pretense that the defendant had met with two women who were interested in having sex with him and the minor, but only after they exchanged nude photographs. Id. at 385. Although the defendant claimed to have destroyed the picture, the artist’s rendition, consistent with the boy’s testimony, depicted a full-frontal nude image of the child with his arms at his sides. Id. Identifying that “[a] few jurisdictions have held that a nude depiction of a child absent any explicit sexual conduct on the child’s part is per se not lewd,” the Supreme Court of Kentucky “[found] more persuasive the holdings of other jurisdictions that consider other factors, including the photographer’s intent and the intended reaction of the expected viewer, in determining whether a particular performance was a ‘lewd exhibition.’ ” Id. at 391 (citing United States v. Knox, 32 F.3d 733, 747 (3rd Cir.1994)). Our Supreme Court’s holding in Schmitt appears to be entirely consistent with the Kentucky Supreme Court’s view that the lewdness requirement may be satisfied by the defendant’s intent. See Schmitt, 590 So.2d at 411. The Purcell court relied on the test set forth in United States v. Dost, 636 F.Supp. 828 (S.D.Cal.1986), where:

[T]he [.Dost ] court enumerated six factors that may be considered in determining whether a particular exhibition is lewd, viz:
1) whether the focal point of the visual depiction is the child’s genitalia or pubic area;
2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Purcell, 149 S.W.3d at 392 (citing Dost, 636 F.Supp. at 832). Dost did not require that all six factors be present before a depiction could be found to be lewd, but rather that the overall circumstances surrounding the visual depiction be examined, taking into account the age of the child. Dost, 636 F.Supp. at 832; see also Purcell, 149 S.W.3d at 392. The vast majority of jurisdictions that have addressed the issue have adopted the Dost factors for determining what constitutes a lewd or lascivious exhibition. See United States v. Arvin, 900 F.2d 1385, 1391 n. 4 (9th Cir.1990) (approving jury instruction based on Dost factors); United States v. Wolf, 890 F.2d 241, 244-45 (10th Cir.1989); United States v. Villard, 885 F.2d 117, 122 (3d Cir.1989); United States v. Rubio, 834 F.2d 442, 448 (5th Cir.1987); United States v. Mr. A., 756 F.Supp. 326, 328 (E.D.Mich.1991); Cummings v. State, 353 Ark. 618, 110 S.W.3d 272, 279 n. 1 (2003); People v. Gagnon, 997 P.2d 1278, 1282 (Colo.Ct.App.1999); People v. Bimonte, 187 Misc.2d 677, 726 N.Y.S.2d 830, 835-36 (N.Y.Crim.Ct. 2001) (noting that Dost factors distinguish between innocent photographs and child pornography); Alexander v. State, 906 S.W.2d 107, 110 (Tex.Crim.App.1995).

We find the Dost test helpful in determining whether a particular exhibition is lewd. In the case before us, at least two of the factors are present. While the initial part of the tape shows a wider angle and focuses mainly on the area between the victims’ shoulders and above the knees, during the second segment, the defendant modified the camera’s location as well as the placement of the bathing suits so that “the focal point of the visual depiction is on the child’s genitalia or pubic area.” See Dost, 636 F.Supp. at 832. Furthermore, many of the child victims are shown in complete nudity as they are changing into the bathing suits. Because the Dost test does not require that all factors be present, we are satisfied that enough evidence has been presented by the State to demonstrate a prima facie case against Brabson. See Hargrove, 552 So.2d at 282.

Accordingly, whether a depiction meets the Dost test is best left to the fact-finder. Purcell, 149 S.W.3d at 393 (citing Knox, 32 F.3d at 747); see also Arvin, 900 F.2d at 1390 (“[WJhether the item to be judged is lewd ... is a determination that lay persons can and should make.” (citing United States v. Thoma, 726 F.2d 1191 (7th Cir.1984))). Because issues of fact cannot and should not be resolved by a court on a motion to dismiss a criminal case, we reverse the trial court’s order granting dismissal.

Reversed and remanded.

      . The first segment appears to edit together the same separate instances visible in the third segment, but without the natural progression of time in between different girls present in the third segment.

      . The relevant language in section 827.071, for purposes of this opinion, is unchanged.

      . The statute applied was Ohio Rev. Code Ann. § 2907.323(A)(1).


author: VILLANTI, Judge.

text:
    Brian WHATLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1599.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 2009.
   VILLANTI, Judge.

Brian Whatley appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of grounds one, four, five, and six without further comment. However, we reverse the summary denial of grounds two and three and remand for an eviden-tiary hearing on these two claims.

Whatley was originally charged with one count of capital sexual battery, one count of lewd and lascivious molestation on a child under age twelve, and one count of lewd and lascivious conduct by a person over the age of eighteen. Whatley subsequently pleaded guilty in a negotiated plea agreement with the State to a reduced charge of attempted sexual battery on a child under age twelve and to the charged counts of lewd and lascivious molestation and lewd and lascivious conduct. In accordance with the plea agreement, the trial court sentenced Whatley to concurrent terms of twenty-five years in prison on the sexual battery and lewd and lascivious molestation counts and to a consecutive term of fifteen years’ probation on the lewd and lascivious conduct count.

Whatley did not take a direct appeal of Ms judgment and sentences; however, he did seek postconviction relief. In ground two of Whatley’s second amended motion for postconviction relief pursuant to rule 3.850, Whatley alleged that his trial counsel was ineffective for failing to move to suppress Whatley’s confession, which he alleged was coerced. Whatley also alleged that had counsel moved to suppress the confession, Whatley would not have pleaded guilty but instead would have gone to trial. In ground three of his motion, Wfliatley alleged that his trial counsel did not advise him that he could move to suppress his confession on the grounds of coercion. Thus, according to Whatley, trial counsel was ineffective for failing to advise him of his rights, and he was prejudiced because he entered his plea without full knowledge of the options available to him. The postconviction court summarily denied relief on these grounds, referencing only the transcript of Whatley’s plea colloquy that was attached to the State’s response. Whatley now seeks review of that denial.

“A trial attorney’s failure to investigate a factual defense or a defense relying on the suppression of evidence, which results in the entry of an ill-advised plea of guilty, has long been held to constitute a facially sufficient attack upon the conviction.” Williams v. State, 717 So.2d 1066, 1066 (Fla. 2d DCA 1998). To state such a claim, a defendant must allege that counsel was ineffective for failing to advise the defendant of or failing to investigate a possible defense and must allege that there is “a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial.” Grosvenor v. State, 874 So.2d 1176, 1181 (Fla.2004); see also Flowers v. State, 793 So.2d 36, 36 (Fla. 2d DCA 2001); Robinson v. State, 972 So.2d 1115, 1116 (Fla. 5th DCA 2008). This type of claim is not waived by the entry of a guilty plea. See Flowers, 793 So.2d at 36; Jenrette v. State, 761 So.2d 414, 415 (Fla. 2d DCA 2000); Williams, 717 So.2d at 1066.

In this case, the State does not dispute that Whatley’s motion alleges facially sufficient claims for relief based on his trial counsel’s alleged failure to advise him of and/or to investigate the option of filing a motion to suppress his confession. Instead, the State contends that these two claims are conclusively refuted by the transcript of the plea colloquy. We disagree.

At the change-of-plea hearing, Whatley told the court that he was accepting the State’s plea offer because he had promised his wife and daughter that he would not go to trial to spare them the trauma of having to testify against him. The State argues that this statement reflects Whatley’s sole motive in entering the plea and establishes that Whatley’s confession was irrelevant to his decision to accept the State’s plea offer. However, Whatley’s statement at the plea hearing was made based on his understanding that his confession would be admissible. Given Whatley’s current allegations that there was no physical evidence showing that he committed this crime and that the State’s case was based exclusively on his confession and the nine-year-old victim’s statement, the postconviction court cannot conclusively say that Whatley would have made the same decision had he been aware that his confession might be subject to suppression. While Whatley’s statement at the change of plea hearing may constitute some evidence of his motive in entering his plea, his statement is not so inconsistent with his current claims as to conclusively establish that as his sole motive for entering his plea. Therefore, the postconviction court erred in denying these two facially sufficient claims based solely on the transcript of the plea hearing.

Accordingly, because grounds two and three of Whatley’s motion state facially sufficient claims for relief that are not conclusively refuted by the record, we reverse and remand for an evidentiary hearing on grounds two and three of Whatley’s motion. In all other respects, we affirm.

Affirmed in part; reversed in part; and remanded for further proceedings.

CASANUEVA and KHOUZAM, JJ., Concur.


author: PER CURIAM.

text:
    Philip W. JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-3911.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2009.
    Rehearing Denied April 23, 2009.
    Philip W. Jones, pro se, Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, PADOVANO, and CLARK, JJ., concur.


text:
    Larry Gene WILLIAMS, Husband, Appellant, v. Wanda Elaine WILLIAMS, Wife, Appellee.
    No. 1D08-4470.
    District Court of Appeal of Florida, First District.
    Feb. 24, 2009.
    Rehearing Denied April 23, 2009.
    Lynn W. Martin, Jacksonville, for Appellant.
    J. Nickolas Alexander, Jr., Orange Park, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of September 17, 2008, the Court has determined that its jurisdiction was not timely invoked. Fla. R.App. P. 9.110(b). Accordingly, the appeal is hereby DISMISSED. Cf. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

VAN NORTWICK, PADOVANO, and CLARK, JJ., concur.


text:
    George Logan HARRIS, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D08-1948.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.
    Rehearing Denied April 23, 2009.
    George Logan Harris, pro se, Appellant.
    Bill McCollum, Attorney General, Kathleen Von Hoene, General Counsel, and Holly N. Simcox, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED for lack of jurisdiction. See Gaither v. McDonough, 968 So.2d 57, 58 (Fla. 1st DCA 2007).

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


text:
    NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Petitioner, v. DEPARTMENT OF COMMUNITY AFFAIRS, Robin Olin, Dan Katz, Lynn DeCaterina, Leisure Properties Ltd., Water Management Services, Inc., and Jocelyn F. Harrison, Respondents.
    No. 1D08-4993.
    District Court of Appeal of Florida, First District.
    March 10, 2009.
    Rehearing Denied April 23, 2009.

      Kevin X. Crowley of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Petitioner.
    Shaw P. Stiller, General Counsel, and Kelly A. Martinson, Assistant General Counsel, Tallahassee, for Respondent Department of Community Affairs; Daniel W. Hartman and Jeanne B. Curtin of Hartman Curtin & Way, P.A., Tallahassee, for Respondents Leisure Properties Ltd., and Water Management Services, Inc.; no appearance for Respondents Robin Olin, Dan Katz, Lynn DeCaterina, and Jocelyn F. Hari'ison.
   PER CURIAM.

The Northwest Florida Water Management District (District) petitioned this Court for a writ of prohibition or writ of quo waiTanto, raising a challenge to the authority of the Department of Community Affairs (Department) to require property owners who wished to drill wells on their property to obtain permits from the Department. The petition for writ of prohibition was previously denied in accoi’-dance with Broward County v. Florida National Properties, 613 So.2d 587 (Fla. 4th DCA 1993). Having now considered the arguments of the parties regarding the District’s entitlement to the writ of quo warranto, we gi-ant the petition.

The properties where the wells would be located are in St. George Island Plantation in Fi-anklin County which was the subject of a Development of Regional Impact order (DRI) issued by the Department in 1977. Freshwater wells were prohibited under the oi’iginal DRI but an amendment was passed in 1993 allowing such wells under certain circumstances because the water utility sexving the development was unable to meet demand. No wells were ever permitted under this provision, however, and the utility has increased its capacity so that it is now able to meet demand. The property owners applied for permits to exti’act non-potable water for irrigation and the District announced its intention to issue those permits. The developer and the water utility opposed issuance of the permits and petitioned the District for a formal administrative heai’ing. Later, the Department issued notices of violation to the property owners, asserting that the proposed wells were in violation of the development order and the Depai’tment’s approval had not been obtained. At that juncture, the instant petition was filed with this Court. We find that quo warranto is an appropriate remedy. Crist v. Fla. Ass’n of Criminal Defense Lawyers, 978 So.2d 134 (Fla.2008). We also find that this court is the proper foi'um. Leonard v. Morgan, 548 So.2d 803 (Fla. 1st DCA 1989) (extraordinary writ jui’isdiction follows appellate jurisdiction).

Section 373.217, Florida Statutes (2008), provides:

(2) It is the further intent of the Legis-latui’e that Part II of the Florida Water Resources Act of 1972, as amended, as set forth in ss. 373.203-373.249, shall provide the exclusive authority for requiring permits for the consumptive use of water and for authorizing transportation thereof pursuant to s. 373.223(2).
(3) If any provision of Part II of the Florida Water Resources Act of 1972, as amended, as set forth in ss. 373.203-373.249, is in conflict with any other provision, limitation, or restriction which is now in effect under any law or ordinance of the state or any political subdivision or municipality, or any rule or regulation promulgated thereunder, Part II shall govern and control, and such other law or ordinance or rule or regulation promulgated thereunder shall be deemed superseded for the purpose of regulating the consumptive use of water. However, this section shall not be construed to supersede the provisions of the Florida Electrical Power Plant Siting Act.
(4) Other than as provided in subsection (3) of this section, Part II of the Florida Water Resources Act of 1972, as amended, preempts the regulation of the consumptive use of water as defined in this act.

We agree with petitioner that this expressed intention of the Florida Legislature to provide the “exclusive authority” to the water management districts of this state for permitting the consumptive use of water is clear and requires this Court to grant the petition and exclude the Department from the process of approving the wells in question. In construing the statute, it is instructive that the Legislature specifically created an exception to the exclusive jurisdiction of the water management districts for the Florida Electrical Power Plant Siting Act. No similar exception is made for the Department’s authority under the Environmental Land and Water Management Act of 1972 on which it here relies. The only reported Florida appellate decision which resolved the conflict between the requirements of Chapters 373 and 380, Florida Statutes, is Pinellas County v. Lake Padgett Pines, 333 So.2d 472 (Fla. 2d DCA 1976) but that case was decided before the enactment of the preemption provisions appearing in Chapter 373 quoted above. The court nevertheless held for the water management district, deciding that the installation of wells did not require approval through the DRI process. Other decisions, although not involving the Department of Community Affairs, support the conclusion that the preemption language of section 373.217 does in fact mean what it says and permitting by the water management district is all that is required to obtain approval for consumptive use of water in this state. See Thomas v. Southwest Fla. Water Mgmt. Dist., 864 So.2d 455 (Fla. 5th DCA 2003); Southwest Fla. Water Mgmt. Dist. v. Charlotte County, 774 So.2d 903 (Fla. 2d DCA 2001); City of Cocoa v. Holland Props. Inc., 625 So.2d 17 (Fla. 5th DCA 1993).

In light of the above-described authorities and analysis, we find that the Department acted in excess of its authority by issuing the notices of violation relating to the proposed wells on properties within St. George Island Plantation. We therefore grant the petition and issue the writ, directing the Department to withdraw such notices immediately upon issuance of mandate in this cause.

PETITION GRANTED.

HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.


author: PHILLIPS, CAROL-LISA, Associate Judge.

text:
    ZUPNIK HAVERLAND, L.L.C., and Platte River Insurance Company, Appellants, v. CURRENT BUILDERS OF FLORIDA, INC., and Power Design, Inc., Appellees.
    Nos. 4D08-1169, 4D08-3257, 4D08-3432.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.

      Kimberly A. Ashby of Akerman Senter-fitt, Orlando, John A. Hockin and Adam C. Linkhorst of Linkhorst & Hockin, P.A., Jupiter, for appellants.
    Vincent F. Vaccarella and Jordan M. Keuseh of Vincent F. Vaccarella, P.A., Aventura, for appellee Current Builders of Florida, Inc.
    Robert S. Jones, II, of Law Offices of Bobby Jones, P.A., Clearwater, for appel-lee Power Design, Inc.
   PHILLIPS, CAROL-LISA, Associate Judge.

Appellants, Zupnik Haverland, LLC and Platte River Insurance Company, appeal the final judgment in favor of Current Builders of Florida, Inc., in which the trial court enforced a foreclosure of a transfer bond on a construction lien. Appellants also appeal the final judgment in favor of the subcontractor, Power Design, Inc., in accordance with a directed verdict. We affirm on all issues, only two of which warrant discussion.

A developer (Zupnik) and contractor (Current) entered into a contract for the construction of an apartment complex. A dispute arose regarding the performance of the contract. The parties entered into a settlement agreement resolving the dispute and agreed to appoint a third party to resolve “punch list” issues, including reviewing the work and determining whether it was completed and the value of the incomplete work. The settlement agreement required Zupnik to make two payments to Current: (1) $480,000.00, payable to Current within fifteen days of mutual acceptance of a certificate of payment, and (2) $60,000.00, to be placed in escrow in the same time frame but not be disbursed until Current completed the work contemplated in the agreement. The third party could hold back amounts from the escrow for the value of work deemed incomplete. Current’s work included certain parking lot work, which was not part of the construction contract but requested by Zupnik as part of the settlement agreement.

Current submitted to Zupnik the certificate of payment, which Zupnik forwarded to the project architect with instructions to approve it, which he did. Zupnik never paid Current the $480,000.00, nor placed the $60,000.00 in escrow, as required by the settlement agreement.

Current completed the parking lot work and recorded its amended claim of lien for the entire $540,000 owed under the settlement agreement. Zupnik disputed Current’s claim that it had completed all of the work required by the settlement agreement, so the parties appointed Richard Slider, P.E., as the third party to resolve the punch list issues. In his final report, Slider stated that Current had not completed only a handful of items he valued at $13,891.

Current sued Zupnik for breach of the settlement agreement and against both Zupnik and its surety to foreclose the lien against the transfer bond. Zupnik counterclaimed for breach of the agreement and fraudulent lien, asserting it was untimely recorded and willfully exaggerated.

Appellants contend that the trial court erred in excluding from evidence the expert testimony regarding latent defects and building code violations resulting from the contractor’s work on the stairs. The trial court’s decisions regarding exclusion of evidence are reviewed for abuse of discretion. Nationwide Mut Fire Ins. Co. v. Bruscarino, 982 So.2d 758, 754 (Fla. 4th DCA 2008). Further, a trial court has broad discretion in determining the range of subjects on which an expert witness will be allowed to testify. State v. Townsend, 635 So.2d 949, 958 (Fla.1994). We hold that the trial court did not abuse its discretion by excluding the expert’s testimony.

Appellants also contend that the trial court erred in enforcing the contractor’s construction lien in a separate non-jury proceeding because it was untimely filed and willfully exaggerated. The ruling on a motion for directed verdict is reviewed de novo. Flagstar Cos., Inc. v. Cole-Ehlinger, 909 So.2d 320, 321 (Fla. 4th DCA 2005). A trial court should grant a motion for directed verdict “only when the evidence shows that the jury could not reasonably differ as to the existence of a material fact.” Union Carbide Corp. v. Kavanaugh, 879 So.2d 42, 44 (Fla. 4th DCA 2004).

The lower court’s ultimate factual determinations during a non-jury trial may not be disturbed on appeal unless shown to be unsupported by competent and substantial evidence or to constitute an abuse of discretion. Berlin v. Pecora, 968 So.2d 47, 50 (Fla. 4th DCA 2007), rev. denied, 982 So.2d 684 (Fla.2008).

As for the developer’s argument that the lien was untimely filed, the record reflects otherwise. The “punch list” was a blending of work to be performed pursuant to the contract and additional work required under the settlement agreement. While some of the work may not have tolled the time to record a lien, the parking lot work was additional work not in the scope of the original contract. This court has stated that “there are no steadfast rules to apply to determine if work constitutes a ‘final furnishing’; rather, the lower courts are to apply the Aronson test.” Michnal v. Palm Coast Dev., Inc., 842 So.2d 927, 933 (Fla. 4th DCA 2003), rev. denied, 882 So.2d 385 (Fla.2004) (citing Aronson v. Keating, 386 So.2d 822 (Fla. 4th DCA 1980)). The parking lot work fulfilled the elements of the Aronson test in that it was done (1) in good faith, (2) within a reasonable time, (3) in pursuance of the terms of the contract, and (4) was necessary to do a “finished job.” See id.

The developer also contends that the construction lien was fraudulent, because the contractor willfully exaggerated the amount of the lien. “[A] good faith dispute as to the amount due does not constitute a willful exaggeration that operates to defeat an otherwise valid lien.” § 713.31(2)(b), Fla. Stat. It is within the trial court’s discretion to determine the intent and good or bad faith of the lienor, and thus, it would be inappropriate for this court to substitute its judgment for that of the lower court. Castiello v. Sweetwater Homes of Citrus, Inc., 843 So.2d 1019, 1021 (Fla. 5th DCA 2003). Further, a disagreement regarding the amount of money owed does not convert a good faith dispute into a fraudulent lien. Id. at 1020-21. Here, the undisputed testimony reflects that the contractor believed in good faith that, at the time it recorded its lien, it had completed all of the work required under the settlement agreement and, therefore, was entitled to receive the full amount listed in the lien.

We affirm as to all other issues raised without further discussion.

Affirmed.

STEVENSON and DAMOORGIAN, JJ., concur.

      . Section 713.08, Florida Statutes, provides that a claim of lien "may be recorded at any time during the progress of the work or thereafter, but not later than 90 days after the final furnishing of the labor or services or materials by the lienor.”


text:
    Helen CUMMINGS, Petitioner, v. Tammy CAMPBELL, Luke Campbell and William Faron Cobb, Respondents.
    No. 4D08-4927.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.

      Robert C. Gindel Jr. of Robert C. Gindel Jr., P.A., West Palm Beach, for petitioner.
    No appearance for respondents.
   PER CURIAM.

Helen Cummings petitioned this court for review of three separate postjudgment orders in the underlying case. The attempt at seeking review of three separate orders in this one proceeding creates procedural problems because the orders are reviewable by different methods. Nevertheless, without belaboring the procedural improprieties, we deny one aspect of the relief sought, dismiss another aspect as premature, and summarily affirm without prejudice for Cummings to pursue a separate action.

Tammy and Luke Campbell (“The Campbells”) obtained a judgment requiring Cummings to specifically perform on a contract to sell the Campbells real property. Cummings refused to cooperate with the closing process, so the court eventually entered an amended judgment that provided for a forced transfer of title. See Fla. R. Civ. P. 1.570(d). The Campbells’ counsel, respondent William Cobb, complied with the court’s judgment and deposited the net proceeds of the sale into the court registry. The judgment was satisfied and the case closed.

Cummings, however, filed a series of motions and documents in the trial court which alleged that the Campbells had engaged in improper acts in the closing process and had improperly deducted amounts from the proceeds of the sale. Cummings raised many factual allegations, which are subject to dispute, and contended she was still entitled to more than $25,000 from the Campbells. One of Cummings’ many motions sought sanctions against the Campbells’ counsel for allegedly depositing in the court registry an amount less than what Cummings alleges she is owed. Counsel deposited the net amount from the closing, which was at the price called for in the contract, and counsel filed a closing statement which included an itemized list of every deduction made from the sale price.

Because the judgment in this case had been satisfied, the court found it lacked jurisdiction to consider these motions. The court permitted Cummings to file a motion to set aside the judgment under rule 1.540(b) if she had a valid ground for doing so. Cummings did not do so. Almost a year later, Cummings filed another series of motions seeking to “enforce” the judgment in this case and seeking sanctions against the Campbells and their counsel, and asking the court to hold them in contempt, for allegedly failing to deposit the correct amount of funds in the court registry. Cummings did not seek to set aside the judgment under rule 1.540(b), but instead argued that the court retained inherent jurisdiction to order restitution and resolve the factual disputes that had arisen regarding the amount deposited.

In response, the Campbells filed a motion for sanctions because of these many-improper filings and the allegations of fraud levied against the Campbells’ attorney, Cobb. The court held a hearing and again determined that it lacked jurisdiction to “enforce” the judgment in this case, explaining that the judgment had long ago been satisfied when the proceeds of the court-ordered closing had been deposited in the court registry. The court refused to set an evidentiary hearing to resolve the factual issues raised by Cummings’ motions. The court then heard argument on the Campbells’ motion for sanctions and determined that Cummings’ allegations that Cobb had committed fraud were baseless. The court then sanctioned Cummings, and her attorney, requiring the pair to pay attorney’s fees. § 57.105, Fla. Stat. (2008). Cummings then moved to disqualify the trial judge, and the motion was denied.

This petition for writ of certiorari followed, and Cummings seeks review of the order denying her motion to disqualify the trial judge, the order imposing sanctions upon herself and counsel, and the order denying her motions to enforce judgment and hold an evidentiary hearing. The petition seeks an improper remedy, but we treat the petition as if the proper remedy had been sought. Fla. R. App. P. 9.040(c).

The portion of the petition which seeks review of the order denying Cummings’ motion to disqualify the trial judge is hereby treated as a petition for writ of prohibition. Sutton v. State, 975 So.2d 1073, 1076-77 (Fla.2008). This aspect of the petition is denied with prejudice. The motion to disqualify was legally insufficient and appears designed to frustrate the process by which Cummings received an adverse ruling. Fischer v. Knuck, 497 So.2d 240, 242 (Fla.1986).

Cummings’ attempt at review of the order which imposed attorney’s fees as a sanction under section 57.105, Florida Statutes, is dismissed as premature. Ross v. Blank, 958 So.2d 437, 441 (Fla. 4th DCA) (citing Winkelman v. Toll, 632 So.2d 130 (Fla. 4th DCA 1994)), review denied, 969 So.2d 1015 (Fla.2007). The trial court has not yet determined the amount of fees to be imposed as a sanction, so this order is not ripe for review. Dismissal is without prejudice for petitioner to seek review of the sanction order after the trial court determines the amount of fees to be imposed.

As for Cummings’ attempt at review of the order which denied the motion to set an evidentiary hearing and denied the other postjudgment motions, this petition is treated as an appeal of a post-judgment order under the non-final appeal rule. See Fla. R.App. P. 9.130(a)(5). The petition for writ of certiorari is treated as appellant’s notice of appeal and initial brief. Fla. R. App. P. 9.130(b). Because Cummings fails to present any basis for reversal, the order denying the post-judgment motions is summarily affirmed. Fla. R. App. P. 9.315(a). The trial court correctly determined that it lacked jurisdiction to “enforce” the judgment in the manner sought by appellant. The judgment in this case was satisfied.

Affirmance is without prejudice for Cummings to bring a separate cause of action raising the alleged improprieties that occurred during the closing on the contract and seeking damages for the allegedly improper deductions from the purchase price. The trial court in this case did not have continuing inherent authority to determine these extrinsic, fact-intensive matters in postjudgment proceedings.

Denied in part; Dismissed in part; and Redesignated and Affirmed in part.

WARNER, POLEN and STEVENSON, JJ., concur.


author: HAZOURI, J.

text:
    LIBERTY TRANSPORTATION, LLC, a Foreign Corporation, Appellant, v. BANYAN AIR SERVICES, INC., a Florida corporation, and General Electric Capital Corporation, a foreign corporation, Appellee.
    Nos. 4D07-4835, 4D07-4836.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.
    Rehearing Denied April 2, 2009.

      Robert A. Sweetapple and Alexander D. Varkas, Jr., of Sweetapple, Broeker & Varkas, P.L., Boca Raton, for appellant.
    Edward R. Curtis, Stephanie Alexander and William T. Cotterall of Tripp, Scott, P.A., Fort Lauderdale, for appellee Banyan Air Services, Inc.
   HAZOURI, J.

This is the second appeal arising from a contract dispute between Appellant, Liberty Transportation, LLC, and Appellee, Banyan Air Services, Inc. This court issued a decision in the first appeal in Liberty Transportation, LLC v. Banyan Air Services, Inc., 982 So.2d 1231 (Fla. 4th DCA 2008). While that appeal was pending, the trial court imposed an equitable lien on the subject matter of the first appeal (an aircraft of Liberty’s), and awarded prejudgment interest to Banyan.

In this appeal, Liberty contests the equitable lien and the award of prejudgment interest. We affirm the equitable lien because that issue is moot, but reverse the award of prejudgment interest, as the trial court was without jurisdiction to award it.

The trial court rendered a final judgment in favor of Banyan, awarding Banyan $84,878.46 in damages. The trial court also reserved and retained jurisdiction to determine Banyan’s entitlement to, and the amount of, attorney’s fees, costs, and prejudgment interest. The trial court, however, did not calculate prejudgment interest. Liberty filed a notice of appeal with this court, contesting the final judgment. This led to this court’s ruling in Liberty Transportation, LLC v. Banyan Air Services, Inc., 982 So.2d 1231 (Fla. 4th DCA 2008).

Later, the trial court rendered a second final judgment, awarding attorney’s fees, costs, and prejudgment interest on the damage award, which was the subject of the original final judgment. To enforce the second final judgment, as well as to enforce the original damage judgment, the trial court imposed an equitable lien on the aircraft. Liberty subsequently filed its second notice of appeal, contesting the award of prejudgment interest and the imposition of the equitable lien. In order to prevent foreclosure of the equitable lien, Liberty paid Banyan the amount of both judgments.

Banyan contends that the issue of whether the equitable lien was proper is moot because Liberty has already paid the damage award. We agree.

An issue is moot when the controversy has been so fully resolved that a judicial determination will have no actual effect. Godwin v. State, 593 So.2d 211, 212 (Fla.1992). In this case, the validity of the equitable lien is moot because, even if the court upholds or reverses the award of the equitable lien, Liberty is still obligated to pay the damage award. In fact, to prevent foreclosure on its aircraft, Liberty has already paid the damage award. As such, a decision regarding the equitable lien would have no actual effect on the parties, making the issue moot.

Liberty argues that the trial court, after entering the original final judgment, did not have jurisdiction to subsequently calculate and award prejudgment interest. We agree.

The Florida Supreme Court has stated that:

While a judgment or order which reserves jurisdiction to award prejudgment interest technically is not a final order, if a trial court improperly renders such a judgment which appears to be, or has the attributes of a final judgment, the order will be deemed to have become a final judgment requiring review by immediate appeal. Further, because an appellate court’s jurisdiction is exclusive with respect to the subject matter of an appeal, once the appeal is taken the trial court will lack the jurisdiction to take any further action in the matter. Thus, the parties will be deemed to have waived any matter reserved for future adjudication by the trial court, with the exception of attorneys’ fees and costs.

McGurn v. Scott, 596 So.2d 1042, 1045 (Fla.1992) (citations omitted).

As such, when a trial court reserves jurisdiction to award prejudgment interest, but fails “to perform the calculation and express the prejudgment interest,” it has committed an “error that should have been corrected by the plaintiffs timely motion for rehearing under Florida Rule of Civil Procedure 1.530(b).” Avatar Dev. Corp. v. DeAngelis, 944 So.2d 1107, 1108 (Fla. 4th DCA 2006). If a plaintiff “fail[s] to move for rehearing to correct the error,” or fails to request that the appellate court “relinquish jurisdiction to permit the trial court to undertake the interest calculation,” it has “waived its right to the prejudgment interest.” Id.

In this case, the trial court, in the original final judgment, reserved jurisdiction to award attorney’s fees and costs, as well as prejudgment interest. The trial court, however, failed to calculate the award of prejudgment interest. Although the judgment was technically not final, it, in accordance with McGum, was properly treated as a final judgment and appealed. Banyan, by failing to move for rehearing within ten days, and by failing to petition this court to relinquish jurisdiction to undertake interest calculation, waived its right to the prejudgment interest. As a result, the trial court lacked jurisdiction to subsequently award prejudgment interest. Banyan’s award of prejudgment interest was therefore improper, and we reverse its allocation.

Lastly, Liberty attempts to raise as error the trial court’s failure to properly apply Florida Rule of Civil Procedure 1.440. We need not address this issue because it should have been raised in the first appeal.

Affirmed in Part; Reversed in Part.

WARNER and POLEN, JJ., concur.


author: FARMER, J.

text:
    E.E., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2040.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

The disposition imposed for burglary of a dwelling places this child in a moderate-risk residential program contrary to the assessment and recommendation of the Department of Juvenile Justice (DJJ) calling simply for probation. At the disposition hearing in March 2008, the State called no witnesses, presented no evidence, and instead merely urged the court to disregard the DJJ recommendation. The State pointed out that the Child had already been placed on probation for a prior offense when the new offense was committed and had failed to comply with the conditions imposed thereby.

In pronouncing the disposition, the trial judge explained why he disregarded the DJJ assessment and recommendation:

“I’ve considered the comments made by the attorneys, the Department, the State and Mr. Long as well. I’ve considered the seriousness of the offense to the community. I’ve considered the fact that there’s a 985.433 — the seriousness of the offense to the community; the protection of the community in [subjection (b) requires adjudication and commitment when the offense was committed in a premeditated or willful manner; the record — previous criminal history of this child, including his periods of probation; the prospects in [subjection (g) of adequate protection of the public; and likelihood for rehabilitation if he’s committed to a community services program, and (f) I find ... that’s not true; the fact that he’s tested [while] he was on probation, he’s testing positive for marijuana when he’s testing for this case; he’s not doing anything in school. He really did very little on the, when he was on the prior probation. So he’s a, really doesn’t have much direction at the present time. I’m going to disregard by the preponderance of the evidence the recommendation of the Department of Juvenile Justice.”

On appeal counsel for the Child argues it was an abuse of discretion to disregard the recommendation of DJJ. First, he points out that the trial court’s pronouncement fails to “articulate the characteristics [of the restrictiveness level imposed] vis-a-vis the needs of the child.” Second, he disputes whether the State produced any evidence at the disposition hearing as a basis for disregarding the DJJ recommendation. Third he asserts that the Court’s disposition reflects mere disagreement with the DJJ recommendation and is thereby improper. Finally, he maintains that the Child’s actual history involves only a minor misdemeanor offense of possession of marijuana, indicative of substance abuse and not criminal behavior. He contends that placing him now in a “juvenile jail” for a non-violent property crime defeats his real needs, which are “ongoing drug treatment and counseling.”

The outcome is controlled by the recent decision in E.A.R. v. State, 4 So.3d 614 (Fla.2009). Reversing this Court’s decision in a similar appeal, the Supreme Court has now required that in pronouncing the disposition the Judge must:

“(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential ‘lengths of stay’ associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
“(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.”

4 So.3d at 638.

We conclude that the trial court’s explanation for disregarding the DJJ assessment and recommendation does not comply with the requirements for pronouncing disposition since laid down by the Supreme Court. It seems to us that the trial court’s pronouncement expresses cogent reasons why more severe punishment rather than another bout of probation would more likely address the Child’s primary need to appreciate and comply with his duty to control his own behavior and at the same time protect the public from his present unwillingness to do so. Even so, the Judge’s pronouncement (however cogent it may be to us) does not comport with the specific methodology for pronouncing disposition the Court has now required in E.A.R. Unless the Legislature specifies otherwise in new legislation, Juvenile Court judges will simply have to follow the E.A.R. pronouncement method in all cases.

Reversed and remanded for a new disposition hearing.

GROSS, C.J., and MAASS, ELIZABETH T., Associate Judge, concur.

      . E.A.R. v. State, 975 So.2d 610, 610-11 (Fla. 4th DCA 2008) (holding that the statutes do not require the disposition Judge to “specifically identify the characteristics of the restrictiveness level imposed vis-á-vis the needs of the juvenile” in disregarding a DJJ recommendation).

      . The court is free to require an updated PDR, and all parties should be allowed to present new evidence and argument for the ultimate disposition.


author: LaROSE, Judge.

text:
    Erik B. ROMERHAUS, Appellant, v. Julia Ann ROMERHAUS, Appellee.
    No. 2D08-1075.
    District Court of Appeal of Florida, Second District.
    March 13, 2009.
    Carlos A. Ramirez and Monica P. Lopez of Escobar, Ramirez & Associates, P.A., Tampa, for Appellant.
    Eileen H. Griffin of Griffin & Associates, P.A., Brandon, for Appellee.
   LaROSE, Judge.

Erik B. Romerhaus (the Former Husband) appeals a final judgment dissolving his marriage to Julia Ann Romerhaus (the Former Wife). We affirm, without discussion, the trial court’s judgment as it relates to equitable distribution, authority over the children’s welfare, visitation schedules, transportation costs, child care, and matters relating to the foreclosure of marital real estate.

The Former Wife concedes that the trial court erred in including health insurance costs in the Former Husband’s child support calculations and then ordering him to pay one-half of the health insurance premiums as additional child support. This double assessment was error. See § 61.30(3), Fla. Stat. (2007). Thus, on this point, we reverse and remand for correction of the final judgment.

Finally, we dismiss the Former Husband’s challenge to the trial court’s finding that the Former Wife was entitled to attorney’s fees. Because the trial court did not determine the amount of fees, the judgment on this issue is nonfinal and nonappealable. See Castaldi v. Castaldi, 968 So.2d 713, 714 (Fla. 2d DCA 2007) (holding that where trial court decides only entitlement to and not the amount of fees, that portion of the final judgment is nonfi-nal and nonreviewable).

Affirmed in part, reversed in part, and dismissed in part.

NORTHCUTT, C.J., and SILBERMAN, J., Concur.


text:
    PALM BEACH PAIN MANAGEMENT, INC., a Florida corporation, Anthony Rogers, and AR Global Investing Trust, a/k/a AR Global Trust, Appellants, v. Gary D. CARROLL and April Carroll, his wife, Appellees.
    No. 4D07-4240.
    District Court of Appeal of Florida, Fourth District.
    March 18, 2009.
    Rehearing Denied April 24, 2009.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., and Gary Roberts & Associates, P.A., West Palm Beach, for appellants Palm Beach Pain Management, Inc., a Florida corporation, and Anthony Rogers.
    Robert W. Wilkins of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, and Steven L. Robbins of Steven L. Robbins, P.A., Jupiter, for appellees.
   HAZOURI, J.

The trial court granted the Appellees’ (Gary D. Carroll and April Carroll) motion for summaiy judgment. On appeal, the Appellants, Palm Beach Pain Management and Anthony Rogers, contend that: (1) summary judgment was improper; and (2) the trial court erred when it denied a motion to disqualify the Carrolls’ attorney. We agree that the summary judgment was improper and reverse; however, we affirm point (2), as the trial court did not abuse its discretion in denying the motion to disqualify.

Gary D. Carroll owned all of the stock in, and was the President and CEO of, Palm Beach Pain Management, Inc., a Florida Corporation. Carroll and Rogers entered into an agreement whereby they agreed that Rogers would receive a base contractor’s fee from PBPM of $250,000 and a year-end bonus of fifty percent (50%) of net profits. Approximately a year and a half later, Carroll and Rogers entered into a second agreement, where Rogers was to receive 50% of PBPM’s shares of stock. The second agreement had a termination provision which stated that Carroll and Rogers agreed to relinquish, waive, and forfeit any and all benefits whatsoever retained by them under the first agreement. The provision also stated that the first agreement was terminated and canceled, effective immediately.

During the time that the first agreement was operative, Carroll and his wife, April, opened two checking accounts. It is alleged that the accounts named only the Carrolls as authorized signatories. The money deposited into these bank accounts by the Carrolls related to services provided by PBPM. However, the money deposited into these two accounts was not accounted for by PBPM. Rogers claims he received no payments for a share of the money deposited into these accounts, and that the funds in both accounts were withdrawn by the Carrolls for personal use. Due to this alleged conduct, Rogers and PBPM filed a claim against the Carrolls for breach of fiduciary duty, civil theft, conversion, and constructive trust.

“The standard of review applicable to orders on summary judgment is de novo.” Lander v. Smith, 906 So.2d 1130, 1132 (Fla. 4th DCA 2005). This Court may reverse a trial court’s grant of summary judgment if it finds that there was a “ ‘genuine issue of material fact,’ ” and that the moving party was not “ ‘entitled to judgment as a matter of law.’ ” Id. (quoting Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 131 (Fla.2000)). The “burden of proving the absence of a genuine issue of material fact is upon the moving party.” Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). This burden is shifted to the nonmoving party once “the movant has successfully met his burden.” Id. at 43-44. However, “ ‘[a]ll doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.’ ” Lander, 906 So.2d at 1132 (quoting Reeves v. N. Broward Hosp. Dist., 821 So.2d 319, 321 (Fla. 4th DCA 2002)).

If a contract’s terms are clear and unambiguous, the “language itself is the best evidence of the parties’ intent and its plain meaning controls,” warranting summary judgment. See Fecteau v. Se. Bank, N.A., 585 So.2d 1005, 1007 (Fla. 4th DCA 1991). If, however, there are “two reasonable interpretations” of a contract, “summary judgment is inappropriate because there is a genuine issue of material fact.” Id. This is because “ ‘[wjhen a contract is ambiguous and the parties suggest different interpretations, the issue of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the contract bearing upon the intent of the parties.’ ” Id. (quoting Bacardi v. Bacardi, 386 So.2d 1201, 1203 (Fla. 3d DCA 1980)).

In this case, the Carrolls contend that the second agreement’s termination provision is clear in that it eliminates the first agreement and any benefits Rogers had under that contract. The Carrolls contend the benefits waived include the right to sue for the misallocation of net profits during the time the first agreement was operative. In contrast, Rogers argues that the provision’s language does not operate to retroactively destroy Rogers’s right to sue for net profits accrued during the time the first agreement was operative. Rather, Rogers contends that the second agreement is an ongoing agreement which terminates any benefits Rogers would have obtained if the second agreement had not been enacted and the first agreement had continued as the operative agreement.

In examining the termination provision’s language, it is clear that the Carrolls’ interpretation, as well as Rogers’s interpretation, is reasonable. As such, there exists an ambiguity regarding this provision’s meaning. As a result, there is a genuine issue of material fact and, accordingly, summary judgment was not an appropriate remedy. We, therefore, reverse the trial court’s grant of summary judgment.

Affirmed in Part; Reversed in Part; Remanded.

POLEN and CIKLIN, JJ., concur.


author: CASE, JAMES R., Associate Senior Judge.

text:
    Jarvis McBRIDE, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1244.
    District Court of Appeal of Florida, Second District.
    March 20, 2009.

      James Marion Moorman, Public Defender, and Gonzalo Alberto Gayoso, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   CASE, JAMES R., Associate Senior Judge.

Jarvis McBride seeks review of his judgment and sentence for manslaughter and providing a false name, but his issues on appeal relate solely to the manslaughter conviction. McBride argues that the trial court abused its discretion in giving a principals jury instruction and in denying his motion for judgment of acquittal. We reverse based on the second argument.

On April 13, 2005, at approximately 9 p.m., Annie Hicks heard gunshots coming from the neighboring duplex. Hicks’ grandson, Cornelius Hicks, lived in the neighboring duplex next to a man named Gregory Hart. Hicks phoned her grandson, who rushed to his duplex in his car. When Cornelius Hicks arrived, approximately ten minutes later, he found Hart lying dead on the floor at Hart’s doorstep.

Domingo Gaspar and Enrique Villago-mez, who were across the street at the time, also heard the shots. The pair reported seeing two men running from the scene of the crime just after the shots rang out. The witnesses described one man as wearing a red shirt and having dreadlocks and described the other man as wearing a white shirt and having short hair. They reported that the man in the white shirt fell to the ground and got back up as he ran away.

The police who responded to the scene found a set of car keys where the witnesses reported the white-shirted man fell, and the police located a vehicle to which the keys belonged. As the police were examining the vehicle, a locksmith approached the vehicle in his van. Behind the locksmith’s van was a car occupied by two men fitting the witnesses’ descriptions and two other people. The police stopped the car and detained its occupants. Records showed that Natasha McBride, one of the occupants of the car that was stopped, was the owner of the vehicle to which the keys belonged.

The police brought one of the eyewitnesses to the area where the suspects were stopped, and the witness said the man with the red shirt and dreadlocks looked like the same man he had seen running from the scene of the shooting. The man with the white shirt gave the name “Raymond Moore” but was later identified as Jarvis McBride, the son of Natasha McBride. Shoe impressions found near Natasha McBride’s vehicle were consistent with the shoes McBride was wearing. Natasha McBride testified that her son had asked her to accompany him to the vehicle, and the locksmith confirmed that he told someone on the telephone that he needed the owner’s consent to make new keys for the vehicle.

Detective Matthew Sellers questioned McBride, and McBride admitted that he had been at the scene of the shooting. Detective Sellers testified regarding McBride’s statements as follows:

Q. Let me ask you, specifically, what did Jarvis McBride tell you about being at Gregory Hart’s residence; and, specifically, at the front door where the shooting occurred?
A. Uh, later during the interview, uh, he admitted to being at Greg’s house. And when he was asked, “Did Greg have a gun at the door?” he said, “Yes.”
Uh, when he was asked who shot first? His reply was, he did, referring to Greg.
Q. All right. And what, if anything, did he tell you about whether he was sorry over the incident?
A. We asked him if he was sorry what happened — for what happened, and he said, “Yes.”
Q. All right. And did he say anything about wanting to take it back, if he could?
A. Yes. Uh, yes, he did.

The police did not recover the gun used to shoot Hart, and the test for gunshot residue on McBride’s hands was negative. The police did recover a firearm lying near Hart’s body, but it was not the weapon that had been used to shoot Hart. Hart’s goddaughter testified that Hart sold marijuana from his home and would always approach the door with a weapon.

The State charged McBride with second-degree murder with a firearm and providing a false name. At trial, the State acknowledged that it could not prove that McBride fired the gun that shot Hart. Instead, the State proceeded on the theory that McBride was a principal in the killing. After the State presented its case, McBride moved for a judgment of acquittal, arguing that the evidence did not establish that he was a principal in the killing. The jury found McBride guilty as charged for providing a false name and found McBride guilty of the lesser-included offense of manslaughter. The court sentenced McBride to 364 days in prison for providing a false name and thirteen years in prison for manslaughter. The court awarded McBride 672 days of credit for time served.

On appeal, McBride argues that the trial court erred in denying his motion for judgment of acquittal. We review the denial of a motion for judgment of acquittal de novo. State v. Shearod, 992 So.2d 900, 903 (Fla. 2d DCA 2008). A judgment of acquittal should be granted “where ‘the evidence is insufficient to warrant a conviction.’ ” Id. (quoting Fla. R.Crim. P. 3.380). The trial court should not grant a motion for judgment of acquittal “[ujnless ‘there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law.’ ” Id. (quoting Williams v. State, 967 So.2d 735, 755 (Fla.2007)).

In order to convict a defendant as a principal, the State must prove that (1) the defendant intended for the offense to be committed and that (2) the defendant assisted in the commission of the offense. Acord v. State, 841 So.2d 587, 589 (Fla. 2d DCA 2003). “Mere presence at the scene, knowledge of the crime, and flight are insufficient to justify a conviction.” A.B.G. v. State, 586 So.2d 445, 447 (Fla. 1st DCA 1991).

The State’s evidence established that McBride witnessed the shooting and ran from the scene of the crime. However, the State failed to present any evidence regarding the circumstances of the shooting or the reason for McBride’s visit to Hart’s apartment. There was no evidence that McBride fired a gun, and gunshot residue was not found on his hands. Even assuming that the person -with the red shirt and dreadlocks was the shooter, there was no evidence that McBride intended for the crime to be committed or committed an act in furtherance thereof. While McBride said he was sorry for what had happened and wished he could take it back, he never admitted that he was actually involved in the shooting.

The facts of this case are analogous to those in J.L.W. v. State, 642 So.2d 1198 (Fla. 2d DCA 1994). In J.L.W., a police officer received a radio transmission concerning a robbery and drove the victim to a stopped Ford Taurus. J.L.W. was inside the Taurus, and a search of the vehicle revealed a handgun. J.L.W. admitted that he had possessed the gun at some point prior to the robbery but denied any involvement in the robbery. J.L.W. claimed he had stayed inside the car during the robbery.

This court reversed J.L.W.’s conviction for attempted armed robbery based on its determination that the evidence was insufficient to show that he was a principal. The court concluded that the State had established nothing more than J.L.W.’s “mere presence in the car when the offense was committed,” which was “not the same as participation with criminal intent.” Id. at 1199. The court also noted that there was no evidence J.L.W. possessed the gun on the day of the robbery or gave the gun to a participant.

As in J.L.W., the State’s evidence in this case established nothing more than McBride’s mere presence when the offense was committed. The State failed to present any evidence that established McBride’s intent that the victim be shot or that he committed an act in furtherance of the shooting. In fact, the State failed to establish any facts at all to establish “participation with criminal intent.”

While it is true that the defendant in J.L.W. did not flee the scene of the crime, McBride’s act of doing so does not in itself give rise to a presumption of his intent or participation in the crime. See J.H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979). In J.H., the defendant and another male named Mack approached a female who was sitting on a bus bench. Id. at 1219. Mack sat on the bench next to the female, and the defendant stood behind the bench. Mack struggled with the victim and grabbed her purse. Then Mack and the defendant fled the scene together. The Third District held that the evidence did not support the defendant’s adjudication as a principal in the robbery. Id. at 1220. The court explained that there was no direct evidence of the defendant’s intent to participate in the crime and that the circumstantial evidence merely established that the defendant was present at the scene and fled after the crime had been committed.

Because the State has not presented evidence that McBride intended for the shooting to be committed and assisted in the commission of the shooting, the trial court erred in denying McBride’s motion for judgment of acquittal. We therefore reverse the manslaughter conviction on this basis. Our resolution of this issue renders McBride’s challenge to the jury instructions moot. McBride’s conviction for providing a false name is affirmed.

Affirmed in part, reversed in part, and remanded.

FULMER and VILLANTI, JJ., Concur.


author: WHATLEY, Judge.

text:
    Stephen W. THOMPSON, M.D., Appellant, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 2D08-3445.
    District Court of Appeal of Florida, Second District.
    March 20, 2009.
    Bruce M. Stanley, Sr. of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellant.
    Wings S. Benton, Assistant General Counsel, Tallahassee, for Appellee.
   WHATLEY, Judge.

Stephen W. Thompson, M.D., appeals the final administrative order denying his application for attorney’s fees pursuant to section 57.111(4)(a), Florida Statutes (2007) (Florida Equal Access to Justice Act). We reverse.

The Department of Health filed an administrative complaint against Thompson based on a finding by a probable cause panel of the Board of Medicine. The complaint alleged that Thompson deviated from the accepted standard of care by leaving his surgical patient, who was under general anesthesia, for several minutes to attend to another patient. An administrative law judge heard the case, found that the Department had not proven its allegations by clear and convincing evidence, and recommended that the complaint be dismissed. The Board of Medicine adopted the judge’s recommended order in favor of Thompson as its own. Thompson then filed an application for attorney’s fees, which was denied by the administrative law judge based on her finding that the actions taken by the Department were substantially justified. See § 57.111(4)(a).

Section 57.111(4)(a) provides:

Unless otherwise provided by law, an award of attorney’s fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

The sole issue in this appeal is whether the Department was substantially justified in bringing the action. We find no justification, substantial or otherwise. A recitation of the facts is enlightening. Thompson was going to perform several surgical procedures on T.C. at a surgery center across the street from the Birth Place at North Collier Hospital. He had arranged for his partner to cover his other patients. The Birth Place called and advised Thompson that an obstetrical patient of his was making rapid progress toward delivering her first child and that his partner was stuck in traffic. Thompson advised the Birth Place to find another obstetrician for the delivery. While in the operating room, Thompson received a second call from the Birth Place advising that no in-house physician was available and that no other physician could be located. If a physician did not arrive quickly, the child would be delivered without an attending physician.

At the time of the second call to Thompson from the Birth Place, it had been determined that an instrument necessary for the next procedure on T.C. was not in the operating room and that the instruments needed for another of the procedures were not sterilized. Sterilization would take fifteen minutes. Thompson made the decision to run across the street and deliver the child. The delivery was made without complication for the mother or the child. Thompson then returned to the surgery center and completed successful surgery on T.C. He was gone from the surgery center for fifteen minutes.

The administrative law judge erred in finding that the Department was substantially justified in filing the complaint against Thompson and that, therefore, Thompson is not entitled to attorney’s fees. The transcript of the meeting of the probable cause panel shows no discussion of the facts or issues before a panel member moved to find probable cause. See Kibler v. Dep’t of Prof'l Regulation, 418 So.2d 1081, 1084 (Fla. 4th DCA 1982) (“Apparently item twenty on the docket was the charge against appellants. There was no evidence submitted or further discussion of the charge. In our view, this dialogue is better described as a ‘rubber stamp’ than a determination.... ”). Another panel member mentioned a Massachusetts incident in which a surgeon left a patient to go to the bank, but there was no discussion of the differences and similarities between that case and Thompson’s. Clearly, leaving one patient to attend to another differs widely from leaving a patient to visit a bank. It is clear that Thompson’s actions were taken in the arena of real world circumstances and not classroom discussion. Most telling is the fact that while seven pages of the documents submitted to the panel members regarding Thompson’s case were completely obscured, none of the panel members indicated such when asked by the chairman if they had found any missing pages or illegible copies among the materials they had received.

Under the circumstances presented, the Department was not substantially justified in filing a complaint against Thompson. Accordingly, we reverse the order denying Thompson’s application for attorney’s fees and remand for proceedings consistent with this opinion.

Reversed and remanded.

CASANUEVA and KHOUZAM, JJ., Concur.

      . Subsequent to the initial finding of probable cause, the Department secured a second expert opinion. This opinion added the claim of failure to adequately document records in leaving the patient, T.C., to attend the other patient. The Department cannot use this second opinion to defeat Thompson’s attorney fee claim because the crux of the case was whether probable cause existed at the time the probable cause panel made its initial finding. If we were to address the issue of lack of documentation on the merits, we would reject it.


text:
    Sterling S. POPE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4291.
    District Court of Appeal of Florida, Fourth District.
    March 25, 2009.
    Sterling S. Pope, Jr., Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Martinez v. State, 976 So.2d 68 (Fla. 4th DCA), rev. denied, 991 So.2d 387 (Fla.2008).

POLEN, FARMER and STEVENSON, JJ., concur.


author: SUAREZ, J.

text:
    Charles Robert SILBERMAN, Appellant, v. Lesli Kim RADCLIFFE f/k/a Lesli Kim Silberman and James D. Keegan, Appellees.
    No. 3D08-2076.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Rehearing and Rehearing En Banc Denied May 1, 2009.
    Charles Robert Silberman, in proper person.
    James D. Keegan, for appellees.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


author: TAYLOR, J.

text:
    Sheila M. HULICK and The Reynolds and Reynolds Company, an Ohio corporation registered to do business in Florida, Appellants, v. Stephen J. BEERS, as Personal Representative of the Estate of Lesley N. Beers, Appellee.
    Nos. 4D07-3703, 4D07-4641.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.
    Rehearing Denied May 28, 2009.

      June Galkoski Hoffman of Fowler White Burnett P.A., Miami and Ann H. King of Quintaros Prieto Wood & Boyer, P.A., Miami, for appellants.
    Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, and Christian D. Searcy, John Scarola and William B. King of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, for appel-lee.
   TAYLOR, J.

This appeal arises from a fatal automobile accident on the Sawgrass Expressway that began when the defendant Sheila Hu-lick struck the rear of the vehicle driven by decedent Lesley Beers. After the impact, Mrs. Beers’ vehicle crossed the median into oncoming traffic and was struck head-on by a second vehicle, and then by a third. Mrs. Beers died at the scene of the accident. Defendants Sheila Hulick and Reynolds and Reynolds Co., the owner of the vehicle, appeal final judgments of over $21 million entered upon jury verdicts for Mrs. Beers’ estate and survivors. We affirm on all issues raised in this appeal, but write to discuss the issue regarding a trial witness’s unsolicited comment about a “criminal traffic trial.”

The defendants admitted that Hulick was negligent in rear-ending the decedent’s vehicle. During opening statement, defense counsel admitted that Hulick was following the decedent’s car too closely and was not paying attention as well as she should have been. However, defendants denied that Hulick’s negligence proximately caused the decedent’s fatal injuries. They attributed fault to the decedent and drivers of the third and fourth vehicles. According to the defense, the decedent was comparatively negligent by stepping on the accelerator instead of the brake after being struck from behind. They asserted that this driving error is what caused decedent’s vehicle to cross the median and get struck by other drivers, who they claimed were also negligent.

Witnesses who were at the scene of the crash testified about the traffic and road conditions and the speed and impact of the vehicles involved in the accident. Two witnesses recounted their attempts to comfort and console the decedent while they waited for the paramedics to arrive. Ron Riddle testified that he held Mrs. Beers’ hand as she kept saying “Help, help.” He recalled that her last words before she died were “Please, ... call my husband.”

Just before the close of the plaintiffs case-in-chief, the decedent’s brother-in-law, David Moll, testified about Ron Riddle’s attempts to comfort the decedent at the scene. Moll testified that several months after Mrs. Beers’ death, Riddle approached him and other family members and told them about his contact with Mrs. Beers. During Moll’s direct examination by plaintiffs counsel, the following exchange occurred:

Q. Did there come a time, I believe it was some months following Lesley’s death when you were in Florida when you and other family members were approached by a gentleman?
A. Yes.
Q. Ron Riddle, who described himself as having been at the scene and holding Lesley’s hand and trying to comfort her?
A. Yes, this was—
Q. I don’t want you to tell me everything he told you because what is going to be relevant is what he told you that you and Jennifer then told Steve.
A. Yes.
Q. So what I’d like for you to do, if you would, is to tell us what it was that he told you that you then related to Steve?
MR. MONELLI: Objection, based upon my previous ground.
THE COURT: Noted, but my ruling is the same.
THE WITNESS: We were at the criminal traffic trial, I believe.
MR. SEARCY: I don’t want to know anything about—
MR. MONELLI: Objection. May we approach?

At that point, defense counsel moved for a mistrial. The trial court asked if he wanted a curative instruction, but the defendants declined the offer, explaining that no instruction could cure the prejudicial effect of the testimony and that any instruction would draw even more attention to the “criminal traffic trial” reference. Defense counsel also declined individual voir dire of the jury for the same reason. Ultimately, the court denied their motion for mistrial. Moll went on to testify about what Riddle told him at the accident scene and what he, in turn, told the decedent’s husband.

After the jury returned a verdict for the plaintiff, the defendants filed a motion for new trial, asserting that the reference to the “criminal traffic trial” was inadmissible and highly prejudicial. The trial court denied the motion.

Defendants argue on appeal that the trial court abused its discretion in refusing to grant them a new trial because the witness’s reference to the criminal traffic trial clearly implied that the defendant, Sheila Hulick, received a citation in connection with the accident.

Where fault is an issue, evidence of the presence or absence of a traffic citation will almost always constitute prejudicial error and warrant a mistrial. The rationale for such a rule is as follows:

Common sense (and experience as well) tells us that to the average juror the decision of the investigating police officer, i.e., whether to charge one driver or the other with a traffic violation based upon the result of his investigation, is very material to, if not wholly dispositive of, that juror’s determination of fault on the part of the respective drivers.

Albertson v. Stark, 294 So.2d 698, 699-700 (Fla. 4th DCA 1974).

Royal Indemnity Co. v. Muscato, 805 So.2d 228, 229 (Fla. 4th DCA 1974), instructs, however, that the particular circumstances of each case must be examined in ruling on a motion for new trial. In Muscato, a parade float passenger and his wife sought damages for the float driver’s negligent operation of the float. The plaintiffs’ attorney repeatedly asked the driver whether he had received a traffic citation as a result of the accident. After a final judgment was entered in favor of the plaintiffs, the defendants appealed, arguing that the trial court should have granted their motion for a mistrial based on plaintiffs’ counsel’s repeated inquiries about a traffic citation.

We agreed, stating: “The law is well settled that such questions will constitute prejudicial error and warrant granting of a mistrial. The trial court’s instruction to the jury to disregard the allusions to a traffic citation could not possibly erase the effect of the prejudicial questions from the mind of the jury “in their consideration of liability.” Muscato, 305 So.2d at 229 (emphasis added). However, we went on to hold that because those improprieties had no material effect on the amount of damages, a new trial was warranted on liability only. This suggests that the trial court must examine liability and damages independently in deciding the proper relief in such cases.

Certainly, a reference to the issuance or non-issuance of a traffic citation can have a prejudicial impact on questions of both liability and damages. For example, in Lindos Rent A Car v. Standley, 590 So.2d 1114, 1115 (Fla. 4th DCA 1991), defense counsel elicited the absence of a ticket for the apparent purpose of suggesting that the accident was too minor to have warranted a ticket. In that case, the most highly contested issue was the extent of injuries the plaintiff sustained as a result of the accident. Id. at 1115. We held that the trial court properly granted a new trial on the issue of damages as well as liability. However, in the case before us, it is undisputed that the impact and damages resulting from the rear-end collision were significant enough to have warranted a traffic citation.

In Budget Rent A Car Systems, Inc. v. Jana, 600 So.2d 466, 467 (Fla. 4th DCA 1992), negligence was not disputed. Nonetheless, we reversed the denial of a mistrial where evidence of traffic citations became known to the jury. We stated:

It is clear that questions to a party or a witness, propounded by an adverse party, about whether traffic citations were issued will require that a mistrial be granted or that there be reversal on appeal. Royal Indem. v. Muscato, 305 So.2d 228 (Fla. 4th DCA 1974), cert. denied, 321 So.2d 76 (Fla.1975); Albertson v. Stark, 294 So.2d 698 (Fla. 4th DCA), cert. dismissed, 299 So.2d 602 (Fla.1974). We do not agree with the appellees that the directed verdict in their favor as to negligence would remove the prejudice caused by the elicited testimony. We are also not convinced that the non-personal nature of the testimony concerning the traffic citations renders the error harmless.
Although Cassidy’s name was not mentioned, the inference was clear that he received the citation. The question about the citation was asked by plaintiffs counsel to the officer who was called to the scene of the accident, which, we feel, made enough impact on the jury to cause prejudice even as to the award of damages.

Id. Because our original opinion in Jana seemed to suggest a per se rule of reversal, even where liability was clear, we clarified on rehearing that “we did not intend to create a per se reversal rule.” We recognized that “improper questioning as to traffic citations may not, in every case, amount to such prejudicial error that a mistrial must be granted or a judgment reversed on appeal.” Id. at 468.

Although it is not clear from the opinion in Jana how evidence of a traffic citation would have affected damages in that case, we are satisfied that Jana simply belongs in the class of cases, like Standley, where the citation could have affected damages and thus warranted a mistrial. In this case, however, the defendant driver admitted to careless driving and overwhelming evidence was presented that this careless driving caused a significant impact with the rear of the decedent’s car. The only issues were whether she was responsible for the ensuing head-on collision (including comparative negligence and Fabre defenses) and the survivors’ damages. We fail to see how the fact that the jury may have known that a traffic citation was issued for the admitted careless driving could have had any prejudicial impact on the jury’s resolution of these issues.

As to the reference to a “criminal” traffic trial, a curative instruction could have informed the jury that neither Hulick nor anyone else was criminally prosecuted in connection with the accident. Where the defendant rejects the trial court’s offer to cure the effect of inadmissible testimony, a mistrial should not be granted except in the extreme case where the comment is “so prejudicial as to vitiate the entire trial.” Lubin v. State, 754 So.2d 141, 143 (Fla. 4th DCA 2000). If the trial court could have reasonably decided that a curative instruction could have clarified any possible misunderstanding, then denial of the mistrial motion is warranted. See id.

Based on the foregoing, we affirm the judgments entered for plaintiff.

STEVENSON and MAY, JJ., concur.


text:
    John W. THADEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0393.
    District Court of Appeal of Florida, First District.
    April 29, 2009.
    John W. Thaden, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Smith v. State, 951 So.2d 965 (Fla. 1st DCA 2007).

BARFIELD, KAHN, and WEBSTER, JJ., concur.


text:
    Shernerd RICHARDSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1695.
    District Court of Appeal of Florida, First District.
    April 29, 2009.
    Shernerd Richardson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Frazier v. State, 964 So.2d 797 (Fla. 1st DCA 2007).

BARFIELD, KAHN, and WEBSTER, JJ., concur.


text:
    FLORIDA GRAND OPERA and Bridgefield Employers Insurance Company, Petitioners, v. Daniel A. MONTES, Respondent.
    No. 1D09-0107.
    District Court of Appeal of Florida, First District.
    May 7, 2009.
    H. George Kagan and Michelle White of Miller, Kagan, Rodriguez & Silver, P.L., for Petitioners.
    Mark L. Zientz, Miami, for Respondent.
   PER CURIAM.

DENIED. See Brown & Williamson Tobacco Corp. v. Carter, 680 So.2d 546, 547 (Fla. 1st DCA 1996) (holding “the time, trouble, and expense of an unnecessary trial is not ‘irreparable harm’ when determining whether the threshold elements of certiorari jurisdiction have been met”). Cf. Weinstein v. Aisenberg, 758 So.2d 705 (Fla. 4th DCA 2000) (holding a claim for money damages is an adequate remedy at law and so it does not provide a sufficient basis for injunctive relief, “notwithstanding the possibility that a money judgment will be uncollectible”).

BARFIELD, THOMAS, and CLARK, JJ., concur.


text:
    Saram GILANI, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1291.
    District Court of Appeal of Florida, First District.
    May 11, 2009.
    Nancy A. Daniels, Public Defender, Archie F. Gardner, Jr., Assistant Public Defender, for Appellant.
    Bill McCollum, Attorney General, Trisha Meggs Pate, Assistant Attorney General, for Appellee.
   PER CURIAM.

REVERSED. See State v. Kelly, 999 So.2d 1029 (Fla.2008); Hlad v. State, 585 So.2d 928 (Fla.1991).

HAWKES, C.J., VAN NORTWICK and BROWNING, JJ., concur.


text:
    Lee J. KRAMER, Appellant, v. PUBLIX SUPER MARKET, INC., Appellee.
    No. 1D08-2138.
    District Court of Appeal of Florida, First District.
    May 11, 2009.

      R. Frank Myers, and Fred E. Pearson, Jr., of Pearson & Myers, P.A., Tallahassee, for Appellant.
    Harold R. Mardenborough, Jr., Ellen C. Pappas, and P. David Brannon of Carr Allison, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1980).

BARFIELD, WEBSTER, and PADOVANO, JJ., concur.