text:
    Shawn Michael PAVOLKO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1394.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.

      James S. Purdy, Public Defender, Day-tona Beach, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Shawn Pavolko appeals his conviction on a charge of attempted second degree murder with a firearm, arguing fundamental error in the instruction given to the jury on the lesser charge of attempted voluntary manslaughter. He argues that the attempted manslaughter instruction, to which he raised no objection at trial, would have been understood by the jury as requiring proof beyond a reasonable doubt that he intended to kill the victim before it could lawfully return a guilty verdict on the charge, although intent to kill is not an element of manslaughter. See State v. Montgomery, 39 So.3d 252 (Fla.2010). He argues that this “Montgomery-type” error deprived the jury of its opportunity to exercise its pardon power by returning a verdict on the lesser offense of attempted manslaughter, thus requiring that his conviction be set aside — and that he be given a new trial on the charge of attempted second degree murder with a firearm. Finding that the instruction given in this case cannot reasonably be read as imposing an intent to kill element, we reject Pavolko’s argument and affirm the conviction.

In Burton v. State, — So.3d-, 2011 WL 1326258 (Fla. 5th DCA 2011), we found that Montgomery compelled a conclusion that instructing a jury using the then-standard jury instruction for attempted manslaughter by act constituted fundamental error in cases like this one where, in theory, it would have interfered with the jury’s “pardon power.” In doing so, we certified conflict with Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), rev. granted, 64 So.3d 1262 (Fla.2011). The instruction at issue in Burton and Williams incorrectly articulated that the state was required to prove that the defendant “intentionally caused the death” of the victim. In the case before us, the trial court did not use this standard instruction, but instead used an alternative non-standard instruction crafted by the State, which read:

To prove the crime of Attempted Voluntary Manslaughter, the State must prove the following element beyond a reasonable doubt:
SHAWN MICHAEL PAVOLKO intentionally committed an act, which would have resulted in the death of [the victim] except that someone prevented SHAWN MICHAEL PAVOLKO from killing [the victim] or he failed to do so.
However, the defendant cannot be guilty of Attempted Voluntary Manslaughter by committing a merely negligent act or if the attempted killing was either excusable or justifiable as I have previously explained those terms.
I will now define “negligence” for you. Each of us has a duty to act reasonably and use ordinary care toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence.
It is not an attempt to commit manslaughter if the defendant abandoned the attempt to commit the offense or otherwise prevented its commission under circumstances indicating a complete and voluntary renunciation of his criminal purpose.
In order to convict of Attempted Voluntary Manslaughter it is not necessary for the State to prove that the defendant had an intent to cause death, only an intent to commit an act which would have caused death and was not justifiable or excusable attempted homicide.”

(Emphasis added).

Pavolko argues that use of the word “would” in the italicized portion of this specially crafted instruction creates the same problem that we found in the language “intentionally caused the death” in Burton. He suggests that intentionally committing an act that “would have” caused death is the same as intentionally causing death-and that the only cure would have been for the judge to have explained that the State had to prove that he intentionally committed an act that “could” have caused death. We disagree, and do not believe that the instruction given in this case would have, or could have, reasonably been read as including an intent to cause death element. Accordingly, we affirm Pavolko’s convictions and sentences.

AFFIRMED.

ORFINGER, C.J., TORPY and LAWSON JJ, concur.

      . Pavolko weis also found guilty of burglary of a dwelling and carrying a concealed firearm, but does not raise any issue relating to those convictions or sentences on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Justus G. FOSTER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2685.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.
    Justus G. Foster, Jr., Monticello, pro se.
    Pamela J. Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 09-CF-4902, in the Circuit Court in and for Osceola County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER and JACOBUS, JJ., concur.


author: CONNER, J.

text:
    Jack LEPISTO and Nancy Lepisto, his wife, Appellants, v. SENIOR LIFESTYLE NEWPORT LIMITED PARTNERSHIP d/b/a The Pointe at Newport Place and SLC Newport, Inc., as General Partner, Appellees.
    No. 4D10-16.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Bard D. Rockenbach and Nichole J. Se-gal of Burlington & Rockenbach, P.A., West Palm Beach, and Robert T. Bergin, Jr. of Robert T. Bergin, Jr., P.A., West Palm Beach, for appellants.

      Donna J. Fudge and Matthew S. Gar-nett of Fudge & McArthur, P.A., St. Pe-tersburg, for appellees.
   ON MOTION FOR REHEARING

CONNER, J.

We grant the Appellant’s motion for rehearing, withdraw our opinion dated August 3, 2011, and issue the following in its place:

Jack and Nancy Lepisto appeal a non-final order compelling them to arbitrate a lawsuit brought under the Assisted Living Facilities Act, section 429.29, Florida Statutes. We have jurisdiction. Fla. R.App. P. 9.130(a)(3)(C)(iv). On appeal, the Lepis-tos contend the trial court erred in compelling arbitration when the agreement was not signed by Jack Lepisto or by Nancy Lepisto as his authorized representative. The Lepistos also assert that the trial court erred in failing to appoint an arbitrator when the arbitrator named in the agreement refused the appointment. Further, the Lepistos contend the agreement is undonscionable because it contains a provision that limits the assisted living facility’s liability. We reverse on the first issue, and therefore find it unnecessary to address the remaining issues.

Jack Lepisto was a resident of The Pointe at Newport Place, an assisted living facility (“Newport Place”). Prior to entering Newport Place, Jack executed a durable power of attorney naming his wife Nancy as his attorney-in-fact. To enroll Jack in Newport Place, Nancy presented the power of attorney to Newport Place and executed an Assisted Living Community Contract (“the Contract”). The Contract provided that “[i]n consideration of the Landlord’s acceptance of you as a resident at the Community, Nancy Lepisto agrees to act as the ‘Financially Responsible Party’ and/or Nancy Lepisto agrees to act as the ‘Resident’s Representative’ accepting their respective rights and obligations as set forth in this Agreement.” The Contract defined the terms “Financially Responsible Party” and “Resident’s Representative” as follows:

17. FINANCIALLY RESPONSIBLE PARTY
The “Financially Responsible Party” is jointly and severally liable with the Resident for all monetary obligations under this Agreement; including payment of the Rent, Leveling Fee and all other amounts that become due to the Landlord under this Agreement. The Financially Responsible Party may also be the Resident’s Representative.
18. RESIDENT’S REPRESENTATIVE
“Resident’s Representative” means an individual designated by the Resident to assist the Resident in making decisions about the Resident’s care or has been designated to make decisions on the Resident’s behalf regarding the Resident’s care. This may include an individual that holds a power of attorney or guardianship. The Resident’s Representative may also be the Financially Responsible Party.

Further, there was an Addendum to the Contract (“the Addendum”) which provided for arbitration of disputes between the parties. The Addendum, provides, in relevant part:

The Parties desire to resolve disputes between them as expeditiously and economically as possible. Therefore, any claim or dispute (including those based on contract, negligence or statute) amongst the Parties, involving an amount in excess of $15,000, arising out of or related to this Agreement, the Establishment or the services/care provided to the Resident, shall be resolved by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration rules....

Shortly after becoming a resident of Newport Place, Jack was injured. The Lepistos brought suit against Newport Place, seeking damages. Newport Place moved to compel arbitration based on the Addendum, and the trial court granted the motion.

The Lepistos argue that the trial court erred by compelling arbitration because although Nancy had signed the Addendum, she had signed only as the “Financially Responsible Party,” not “the Resident’s Representative.” They argue that pursuant to the express terms of the Contract, by signing only as the Financially Responsible Party, she was signing on her own behalf, not as Jack’s representative. They contend that by signing only as the Financially Responsible Party, the Addendum bound Nancy to arbitrate only a dispute over Jack’s bills, not claims arising out of services or care provided to him. Further, they assert that Jack is not bound to the Addendum, as Nancy did not sign the addendum as his representative, and Jack did not personally sign the Addendum.

The Lepistos rely on Fletcher v. Huntington Place Limited Partnership, 952 So.2d 1225 (Fla. 5th DCA 2007). There, Fletcher had signed an admissions agreement for her mother’s nursing home. The agreement contained an arbitration clause. Fletcher signed the agreement only in the place for a person who “controls funds or assets that could be used to pay the resident’s charges.” She did not sign the agreement in her capacity as her mother’s representative. Later, when the daughter sued the nursing home as representative of her mother’s estate, the trial court compelled arbitration. The Fifth District reversed because Fletcher had not signed the agreement as her mother’s representative, only in her individual capacity as the person who controlled the funds.

Newport Place makes four arguments in support of affirming the order compelling arbitration. First, Newport Place argues that Nancy clearly signed the Addendum on Jack’s behalf as his representative and therefore assented to arbitration. Relying on the layout of the Addendum, Newport Place claims Nancy signed the Addendum as a Resident’s Representative because Nancy’s name and signature appear on a signature block that visually appears immediately above the title “Resident’s Representative.”

An examination of the contract shows that there are four lines for signatures, and each signature appears below the relevant title. For example, the signature of the Facilities’ executive director, Matt Sar-nelli, appears below the title “Horizon Bay Senior Communities.” The signature line for Jack Lepisto appears below the title “Resident.” The name and signature for Nancy Lepisto appears below, the title “Financially Responsible Party.”

Nevertheless, Newport Place asserts that Nancy agreed to serve in a dual capacity as the financially responsible party and as the resident’s representative, despite signing the signature block only as the financially responsible party. Newport Place points out that the Contract provides:

In consideration of the Landlord’s acceptance of [Jack Lepisto] as a resident of the Community, Nancy Lepisto agrees to act as the “Financially Responsible Party” and/or Nancy Lepisto agrees to act as the “Resident’s Representative,” accepting their respective rights and obligations as set forth in this Agreement.

Newport Place argues that the Contract identified Nancy Lepisto by name as both the “Financially Responsible Party” and/or “Resident Representative” to the Contract and Addendum, so she should be deemed to serve both roles. There is no merit to this argument. The mere fact that the Contract allows for the same person to serve both as representative and as the financially responsible party does not mean that the person was signing in both capacities, particularly when signing a signature below a specific title indicating one capacity and not both capacities.

Newport Place further contends that the Lepistos’ characterization of the Addendum as merely an agreement to arbitrate all financial disputes is unreasonable. It argues that to accept Nancy Lepisto’s argument renders the phrase agreeing to arbitrate “any claim or dispute” to be of no effect, relying on Central National Bank of Miami v. Muskat Corp. of America, Inc., 430 So.2d 957 (Fla. 3d DCA 1983). There, a corporation borrowed money from the bank and the corporation executed a promissory note. A separate guaranty agreement was also executed and the name “Adolfo Muskat” was typed in, but the signature said “Adolfo Muskat, President.” In a suit to hold Muskat individually liable, he contended that by placing “President” after his name, he had guaranteed the note only as president of the corporation, not personally. The court held the fact that Muskat added the word “president” after his name on the guarantee could not defeat the agreement’s purpose of making him a personal guarantor of the corporation’s note. The court explained that if the guaranty was a corporate guaranty it would add nothing to the loan transaction because the corporation was already liable under the note itself. The court pointed out that the document provided for an individual signature, and Muskat should not be able to alter or destroy that individual liability by adding “president.” Id. at 958. Central National Bank is distinguishable from the present case because there the whole purpose of the guaranty was to bind Muskat individually. Here the same is not true. The Contract allows for two different types of liability: liability as a representative of Jack Lepisto or only financial liability for his care. By signing only under the heading of “Financially Responsible Party,” Nancy agreed only to individually assume financial liability.

“As a general rule, only the actual parties to the arbitration agreement can be compelled to arbitrate.” Stalley v. Transitional Hosps. Corp. of Tampa, 44 So.3d 627, 629 (Fla. 2d DCA 2010). “[A]n exception to this general rule exists when the signatory of the arbitration agreement is authorized to act as the agent of the person sought to be bound, and ‘[n]on-signatories may be bound by an arbitration agreement if dictated by ordinary principles of contract law and agency.’ ” Id. at 630 (quoting Martha A. Gottfried, Inc. v. Paulette Koch Real Estate, Inc., 778 So.2d 1089, 1090 (Fla. 4th DCA 2001)). Although in this case, unlike in Stalley, Nancy had the authority to bind Jack to both the Contract and the Addendum, there is no evidence that she did so when she merely signed the Contract and Addendum in her individual capacity as the financially responsible party.

Second, Newport Place argues that if there is a dispute over whether Nancy signed the Addendum in a representative capacity, then the Addendum is ambiguous. Noting that when a contract is ambiguous, a court must receive extrinsic evidence to resolve the ambiguity, Newport Place argues that without taking evidence, the Lepistos cannot prove their theory that Nancy Lepisto actually signed on the line for “Financially Responsible Party.” Newport Place points out that the Lepistos have not requested a remand for a determination of what any ambiguity would mean. Thus the failure to request remand requires affirmance. However, we find there is no ambiguity in the Contract. As indicated above, it is clear from the layout of the Contract and Addendum that Nancy Lepisto was signing only as the Financially Responsible Party.

Third, Newport Place argues that it is for the arbitrator, not a court, to decide whether a valid arbitration agreement exists between the Lepistos and Newport Place. Newport Place acknowledges that as a general rule a court and not an arbitrator must decide whether parties decided to arbitrate arbitrability. See First Options of Chicago Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). However, Newport Place argues that where there is clear and unmistakable evidence that the parties agreed to arbitrate, then the issue of arbi-trability is for the arbitrator, citing Terminix International Company v. Palmer Ranch Limited Partnership, 432 F.3d 1327 (11th Cir.2005). In that case, the parties had agreed that the American Arbitration Association’s (“AAA”) rules would apply to their agreement. Rule 8(a) of the AAA’s rules provided that the arbitrator “shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” Thus, the court concluded that the arbitrator would answer the question of arbitrability of disputes. The court held that by incorporating AAA rules into the agreement, the parties clearly and unmistakably agreed the arbitrator should decide whether the arbitration clause was valid. Id. at 1332. The Addendum in this case states that any claims arising out of the contract shall be resolved “by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules.” However, in Terminix there was no question that the parties had entered into a contract. Here, the parties dispute whether and in what capacity Jack and Nancy Lep-isto entered into the Contract. “The issue of the contract’s validity is different from the issue [of] whether any agreement between the alleged obligor and obligee was ever concluded.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444 n. 1, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). Therefore, it is for a court, not an arbitrator, to decide in the first instance whether a party signed a contract and assented to its terms. Id. (citing Chastain v. Robinson-Humphrey Co., 957 F.2d 851 (11th Cir.1992)).

Finally, Newport Place argues that even if Nancy signed only on the “Financially Responsible Party” line, she should be bound to the Contract as a representative of Jack based upon the holding in Consolidated Resources Healthcare Fund I, Ltd. v. Fenelus, 853 So.2d 500 (Fla. 4th DCA 2003). There, a woman was admitted to a nursing home. Her son signed the contract, which contained the arbitration clause, on her behalf. However, the representative of the nursing home failed to sign the agreement on the line for the nursing home and instead signed on the “witness” line. The representative of the nursing home testified that she signed the various documents in her capacity as a nursing home representative. When the son sued the nursing home for negligence and wrongful death of his mother, the nursing home moved to compel arbitration. The trial court found that no contract was formed because this signature was on the wrong line and the representative had signed only as a witness and not in her capacity as nursing home representative. We rejected the trial court’s analysis, noting that a contract is binding when both parties perform under it, even if only one party signs the contract, because a party’s assent to a contract can be shown by its acts or conduct. We determined that the nursing home had clearly assented to the contract by performing the contract for more than three years. Therefore, the agreement was deemed valid.

The present case is distinguishable from Consolidated, Resources. In Consolidated Resources, there was evidence that the non-signing party sought to be bound by the contract (the nursing home) had assented to the contract by providing services to the client for over three years. In this case, there was no evidence presented that the non-signing party, Jack Lepisto, assented to the contract. Despite the fact that he received services from the nursing home and those services were paid on his behalf, there is nothing in the record before us to prove those services were paid by Jack or his representative. Instead, the record shows the payments were made by Nancy Lepisto, who signed the contract as the Financially Responsible Party. Thus, there is no evidence that Jack or his representative sought to be bound to the Addendum. See Stalley, 44 So.3d at 632. Therefore, we reverse the trial court’s order compelling arbitration, and remand for further proceedings.

Reversed, and remanded.

WARNER and LEVINE, JJ., concur.

      . Either side could have requested an eviden-tiary hearing if it felt one was necessary to show Nancy signed the Contract or the Addendum as a representative of Jack. See Rowe Enters, v. Int’l Sys. & Elecs. Corp., 932 So.2d 537, 541-42 (Fla. 1st DCA 2006) (under Florida Arbitration Code, trial court must hold expedited evidentiary hearing upon request). Instead, the parties chose to proceed without an evidentiary hearing and to base their arguments on the facial appearance of the documents. Cf. Berkowitz, Dick, Pollack & Bryant, CPA & Consultants, LLP. v. Smith, 49 So.3d 309 (Fla. 4th DCA 2010).


author: RAMIREZ, J.

text:
    GEMINI INVESTORS III, L.P., et al., Appellants, v. Michael NUNEZ, et al., Appellees.
    No. 3D10-2946.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 2012.

      Alexander Angueira, South Miami, Kimberly L. Boldt; Thomas A. Culmo, Miami, for appellants.
    Kluger, Kaplan, Silverman, Katzen & Levine, Alan J. Kluger, Todd A. Levine, and Justin B. Kaplan, Miami; and Baker & McKenzie, Allan J. Sullivan, Miami, and Effie D. Silva, Miami; Sean R. Santini; Feldman Gale, and Jeffrey D. Feldman, Miami, James A. Stefan and Richard Guerra, Miami, for appellees.
    Before WELLS, C.J., RAMIREZ, J., and SCHWARTZ, Senior Judge.
   On motion for rehearing

RAMIREZ, J.

We deny the appellees’ motion for rehearing, but substitute the following opinion for our previous opinion.

Gemini Investors III, L.P. and Ticonderoga SBIC, L.P. (“plaintiffs”) appeal from an order dismissing their complaint against ABC Distributing, LLC, Michael Nunez, Victoria Ranger, David James Holt, and Luis Peleja. We reverse because the fifth amended complaint sufficiently pled claims for fraudulent misrepresentation and securities act violations.

Plaintiffs sued ABC Distributing, Nunez, Ranger, Holt and Peleja (collectively, “defendants”) for damages arising from the purchase of stock. ABC Distributing is a mail order catalog business. Nunez was its president, Ranger was Nunez’ girlfriend, while Holt was warehouse operations vice president and Peleja a former employee of ABC Distributing. Nunez incorporated DDU Express, Inc. to provide shipping services to ABC Distributing. Nunez was the controlling shareholder of DDU Express. He had also personally guaranteed a $2 million line of credit for DDU Express.

In the spring of 2004, defendants learned that ABC Distributing would be consolidating or merging its operations with its sister corporation in Chicago, Illinois in the near future. The sister corporation, LTD Distributing, already had parcel consolidation and drop shipping contracts in place with another company, APX Shipping. Knowing that this significant change was imminent, defendants approached plaintiffs about investing in DDU Express. At that time, ABC Distributing had a contract with DDU Express, which ran until the end of 2005, and represented about 60 percent of DDU Express’s business. Nunez told Gemini of the business arrangement between ABC Distributing and DDU Express, and also caused ABC Distributing to extend the DDU Express contract to 2008. In November, 2004, Gemini paid $7 million for 75 percent of DDU Express’s stock.

In its complaint, Gemini contended that Nunez fraudulently induced it to invest in DDU Express by vouching that ABC Distributing intended to continue doing business with DDU Express. During the due diligence period, plaintiffs spoke with Nunez in his capacity as President of ABC Distributing, and he affirmatively vouched for the quality of DDU Express’ performance and the fact that ABC Distributing intended to continue doing business with DDU as reflected in the parties’ contract and its recent extension. Additionally, plaintiffs alleged that Nunez failed to disclose crucial information which would have affected plaintiffs’ decision to invest in DDU Express. The undisclosed information included Nunez’ involvement with DDU Express, his romantic relationship with Ranger, the overlap in shareholders and management between DDU Express and ABC Distributing, and the imminent plans to move and consolidate ABC Distributing’s South Florida operations with those of its sister corporation in Chicago, which would not be using DDU Express for shipping.

By March, 2005, problems began emerging between ABC Distributing and DDU Express. ABC Distributing reduced the volume of its business with DDU Express. Also, ABC Distributing terminated Nunez’ employment and objected to Nunez’ oral modification to the parties’ contract regarding shipping rates. This post-Nunez ABC Distributing now claimed that DDU Express had been overpaid by $2 million, and unilaterally began withholding payment to DDU Express as a credit toward the alleged overpayment. Despite Gemini’s further infusion of funds, in December, 2005, ABC Distributing terminated its relationship with DDU Express. Having lost 60% of its annual revenues, DDU Express closed.

DDU Express sued ABC Distributing for breach of contract, breach of the covenant of good faith and fair dealing, promissory and equitable estoppel, and unjust enrichment. After discovery, DDU Express obtained leave to amend its complaint to add the individual defendants, and claims for RICO, Florida Securities Act violations, and fraud in the inducement. Upon defendants’ motion to dismiss, the trial court ordered plaintiffs to further amend the RICO claims, which plaintiffs did. Defendants again moved to dismiss. After extensive argument and briefing, the then presiding judge, Judge Scott Silverman, entered a comprehensive 28-page order: (1) dismissing the RICO claims; (2) allowing the fraudulent inducement claims against the individual defendants, but dismissing the fraudulent inducement against ABC Distributing for insufficient allegations of an agency relationship between Nunez and ABC Distributing; (3) dismissing the securities act claim against ABC Distributing, but allowing the claim against the individual defendants; (4) allowing the original counts against ABC Distributing; and (5) giving plaintiffs leave to amend further the complaint.

Plaintiffs filed their fifth amended complaint accordingly, excluding the RICO claims in accordance with Judge Silver-man’s rulings. They re-pled the exact same claims that Judge Silverman allowed, and again the defendants moved to dismiss. A successor judge then entered the order appealed from which dismissed all of plaintiffs’ claims, including those previously allowed by Judge Silverman, with the only exception being the breach of contract claim against ABC Distributing.

On appeal, plaintiffs contend that the trial court erred in dismissing the claims for fraud in the inducement and securities act violations. We review the order granting a motion to dismiss de novo, taking the factual allegations of the complaint as true regardless of whether they may later be proven at trial. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla.2002); Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002). Furthermore, while a successor judge has the authority to correct any errors in prior inter locutory rulings on matters of law, see Tingle v. Dade Cnty. Bd. of Cnty. Comm’rs, 245 So.2d 76, 77 (Fla.1971), “a successor judge should give credence to a predecessor’s rulings on issues of law.” Raymond, James & Assocs., Inc. v. Zumstorchen Inv., Ltd., 488 So.2d 843, 845 (Fla. 2d DCA 1986). Generally, the rotation of judges from one division to another should not be an opportunity to revisit the predecessor’s rulings. Here, the successor judge did not articulate any reason for revisiting Judge Silverman’s detailed and considered rulings.

To plead fraudulent inducement, Gemini must allege that the defendants: (1) made a statement concerning a material fact, (2) knowing that the statement was false, (3) with intent that the plaintiffs act on the false statement; and (4) the plaintiffs were damaged as a result of their reasonable reliance on the false statement. See Lopez-Infante, 809 So.2d at 15; Gutter v. Wunker, 631 So.2d 1117, 1118 (Fla. 4th DCA 1994); Johnson v. Davis, 449 So.2d 344, 348 (Fla. 3d DCA 1984). Generally, the fraudulent statement must concern a past or existing fact. Mejia v. Jurich, 781 So.2d 1175, 1177 (Fla. 3d DCA 2001). But, if the person making the representation has superior knowledge of the subject matter, or makes a future promise to perform with no intent of doing so, the requirement of a past or present fact does not apply. Id.; see also Telesphere Int’l, Inc. v. Scollin, 489 So.2d 1152, 1154 (Fla. 3d DCA 1986).

The securities act violation claims are based on section 517.301(l)(a), Florida Statutes (2004), which makes it unlawful for a person to “employ ... artifice to defraud,” or use “any untrue statement of a material fact or any omission ... [to] mislead[]” in connection with the sale of any investment or security. Therefore, the elements of proof required for these claims are similar to fraudulent inducement.

Here, plaintiffs sufficiently alleged all elements required for pleading fraudulent inducement and violation of the securities act. Plaintiffs alleged that the defendants had superior knowledge which plaintiffs did not know and could not have discovered through due diligence. Specifically, plaintiffs alleged that they were unaware of the interrelationship between ABC Distributing and DDU Express, and did not know the extent of Nunez’ financial stake in DDU Express. Also, Nunez, as ABC Distributing’s president, knew of ABC Distributing’s intentions to relocate to Chicago and the effect this would have on the contract with DDU Express. Because the ABC Distributing contract was a major portion of DDU Express’s business, the concealment of this information was crucial.

Accordingly, because plaintiffs were misled regarding facts material to the transaction known by defendants due to superior knowledge, which defendants concealed, the complaint sufficiently pled claims for fraudulent misrepresentation and securities act violations, and the trial court erred in dismissing these claims. We, therefore, reverse the order dismissing plaintiffs’ claims for fraudulent inducement and violation of the securities acts, and remand for further proceedings in accordance with this opinion.

Reversed and remanded.


author: STEVENSON, J.

text:
    John BALEANU, individually, and Transilvania, Inc., doing business as Transylvania Romanian Restaurant, a Florida corporation, Appellants, v. Gheorghe SANDULESCU, Appellee.
    No. 4D10-2736.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.

      Sorin Ardelean of License Lex PLLC, Fort Lauderdale, for appellants.
    Gheorghe Sandulescu, Hallandale, pro se.
   STEVENSON, J.

Appellants John Baleanu and Transilva-nia, Inc., were defendants in a breach of contract suit. Early in the litigation, both defendants were represented by the same attorney and a joint answer was filed on behalf of the defendants. Thereafter, counsel withdrew and the parties were afforded thirty days to secure counsel. While more than a year passed, neither party had retained counsel by the time of the bench trial. The trial court entered a default as to Transilvania, Inc., as the corporate defendant failed to appear with counsel. The case was tried on the merits as to Baleanu. A final judgment holding both defendants jointly and severally liable to the plaintiff for $25,000 in damages was entered. Both Transilvania, Inc., and Ba-leanu appeal. We affirm the judgment against Baleanu, but reverse the judgment against Transilvania, Inc.

Baleanu contends the judgment against him must be reversed on a number of procedural and evidentiary grounds. Baleanu, however, has failed to provide this court with a transcript of the bench trial that preceded the final judgment and such failure precludes appellate review. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Transilvania, Inc., insists the final judgment against it must be reversed as the default was entered without prior notice. This argument has merit. When a defendant fails to appear for trial, the court has two options: proceed with the trial, requiring the plaintiff to put on its case, or enter a default due to the failure to defend. See, e.g., Powers v. Gentile, 662 So.2d 374, 375 (Fla. 5th DCA 1995); Neder v. Greyhound Fin. Corp., 592 So.2d 1218, 1218 (Fla. 1st DCA 1992). The default may not be entered, however, until the defendant is served with notice of the application for default and afforded an opportunity to explain. See, e.g., Maranto v. Dearborn, 687 So.2d 940, 941 (Fla. 3d DCA 1997) (reversing default entered following failure to appear for trial where prior notice required by rule 1.500 not afforded defendant); Neder, 592 So.2d at 1218 (reversing default entered following failure to comply with court orders and appear for trial as default was entered in absence of notice and opportunity to be heard on whether conduct willful or in bad faith); Belcher v. Ferrara, 511 So.2d 1089, 1091 (Fla. 3d DCA 1987) (holding that, despite failure to appear for trial, default could not be entered without notice to defendant). Any oral notice of the default given at the hearing would be insufficient to constitute the notice required by Florida Rule of Civil Procedure 1.500. See Molina v. Watkins, 824 So.2d 959, 963 (Fla. 3d DCA 2002) (“Absent extraordinary circumstances, an ore tenus motion made in open court does not constitute prior notice of default judgment, even when the party is present.”). As Transilvania, Inc., was not afforded prior notice of the default, we are compelled to reverse the judgment against it and remand for further proceedings.

Affirmed in part; Reversed in part; and Remanded.

POLEN and TAYLOR, JJ., concur.


author: DAMOORGIAN, J.

text:
    Rhett FISHER, Appellant, v. Stacey FISHER, Appellee.
    No. 4D10-383.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Philip M. Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., and Odette Bendeck of Fisher & Bendeck, P.A., West Palm Beach, for appellant.
    Jeanne C. Brady of Brady & Brady, P.A., and Steven M. Pesso of Steven M. Pesso, P.A., Boca Raton, for appellee.
   DAMOORGIAN, J.

Rhett Fisher (“Former Husband”) timely appeals a final judgment of dissolution of marriage. We affirm the final judgment with one exception relating to the marital residence.

The final judgment provided, inter alia, that “[t]he children and Wife shall be awarded exclusive use of the marital home for a minimum of 14 years, when the parties’ youngest child will begin college or otherwise be emancipated.” Former Husband contends the trial court erred in granting Stacey Fisher (“Former Wife”) exclusive use and possession of the marital home without providing for termination of such use upon Former Wife’s remarriage. We agree. Although the trial court did provide that Former Wife’s exclusive use and possession of the marital home would terminate upon the earlier of the youngest child beginning college or becoming emancipated, it failed to provide for the contingency of Former Wife’s remarriage.

As this Court has stated:

An award of exclusive use and possession should specify the period of time for possession, and should include an express provision for termination of exclusive use and possession when the minor child attains the age of eighteen, as well as a provision that the award may be terminated if the party in residence remarries.

Arze v. Sadough-Arze, 789 So.2d 1141, 1145 (Fla. 4th DCA 2001) (quoting Todd v. Todd, 734 So.2d 537, 540 (Fla. 1st DCA 1999)). While in principle we find no error with the exclusive use award, it was error to extend exclusive use and possession of the marital residence beyond the remarriage of the Former Wife in absence of a showing of special circumstances. Arze, 789 So.2d at 1145. On remand, the trial court is directed to amend the final judgment to include a provision terminating the Former Wife’s exclusive use and possession of the marital home upon remarriage.

Affirmed in part and reversed in part.

MAY, C.J., and HAZOURI, J., concur.


text:
    Bert BRANDER, Appellant, v. Trisha STODDARD, individually and as Personal Representative of the Estate of Lily B. Frey, Roman F. Garbacik, as Trustee of The Lily B. Frey Trust Agreement dated April 6, 2006; Daniel Stoddard, Charlotte Theriault, Marcus Brander, Brooke Brander, Bert Brander, as Parent and Natural Guardian of Casey Brander, and Farmington River Watershed Association, Appellees.
    No. 4D10-4667.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.

      Mitchell D. Adler and Jessica L. Ber-man of Greenspoon Marder, P.A., Ft. Lauderdale, for appellant.
    Casey Walker of Murphy & Walker, P.L., Vero Beach, for appellees Trisha Stoddard and Roman F. Garbacik.
   DAMOORGIAN, J.

Appellant, Bert Brander, appeals the final order dismissing Brander’s amended petition to revoke a will and trust agreement. We reverse.

This appeal emanates from Appellees’ filing a motion to dismiss Brander’s petition on the grounds that Brander failed to serve certain indispensable parties within 120 days of filing the complaint. See Fla. R. Civ. P. 1.070(j). The indispensable parties consisted of Farmington River Watershed Association, Inc. (“FRWA”), Charlotte Theriault, Marcus Brander, Brooke Brander, and Casey Brander.

At the hearing on the amended motion to dismiss, Brander’s counsel mistakenly advised the trial court that the indispensable parties had not been served. The trial court granted the motion and dismissed the petition. Brander moved for rehearing, claiming that counsel’s statement that service had not been effectuated was incorrect and that all of the indispensable parties had been timely served. Without conducting a hearing, the trial court denied the motion. This appeal follows.

“A denial of a motion for rehearing is reviewed under the abuse of discretion standard.” J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008) (citing Gibson Trust, Inc. v. Office of the Atty. Gen., 883 So.2d 379, 382 (Fla. 4th DCA 2004)). Moreover, the standard of review of a trial court’s dismissal of a complaint for failing to timely effect service of process is abuse of discretion. Arison v. Offer, 669 So.2d 1128, 1129 (Fla. 4th DCA 1996); Roberts v. Stidham, 19 So.3d 1155, 1157 (Fla. 5th DCA 2009).

On the face of the record, Brander’s motion for rehearing has sufficient merit because it appears that Charlotte Theriault, Marcus Brander, Brooke Brander, and Casey Brander were timely served. See Freeland v. Freeland, 974 So.2d 477, 480 (Fla. 2d DCA 2008) (“[T]he motion [for rehearing] had sufficient merit that the trial court needed to conduct a hearing to consider the merits of the motion. To the extent that the trial court denied a hearing on this issue, it abused its discretion.”). The mistake which led to the dismissal was properly brought to the court’s attention in the motion for rehearing, and it was error for the trial court to deny Brander a hearing to address the merits of his motion. See id.

In regards to FRWA, we likewise conclude that the trial court abused its discretion in dismissing the petition because where service may be invalid, the proper procedure is to suspend jurisdiction and grant leave to submit proof of proper service. See Nationsbank, N.A. v. Ziner, 726 So.2d 364, 366 (Fla. 4th DCA 1999) (“Even though service of process against both [defendants] was invalid, the action against both should remain pending because service, although invalid, was made within the 120-day limit pursuant to Florida Rule of Civil Procedure 1.070(j).”); Re-Employment Servs., Inc. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 472 (Fla. 5th DCA 2007) (holding that defects in the return of service does not divest the trial court of personal jurisdiction over defendants, but instead suspends jurisdiction until the plaintiff submits proper proof of service); Payette v. Clark, 559 So.2d 630, 633 (Fla. 2d DCA 1990) (“When an invalid method of service is used, the proper procedure is to quash the service and permit the action to remain pending.”) (citation omitted). In this case, if on rehearing the trial court concludes that service is invalid as to any or all of the indispensible parties but that service was attempted within the time period prescribed by the rule, the proper procedure is to quash service and permit the action to remain pending so that Brander may effectuate service within a reasonable period of time set by the court. Ziner, 726 So.2d at 367.

Finally, we reject Appellees’ contention that counsel’s misrepresentation to the trial court that service of process had not been made is subject to the invited error rule. Under the rule of invited error, ‘“a party may not make or invite error at trial and then take advantage of the error on appeal.’ ” Sheffield v. Superior Ins. Co., 800 So.2d 197, 202-03 (Fla. 2001) (quoting Goodwin v. State, 751 So.2d 537, 544 n. 8 (Fla.1999)). The invited error rule is inapplicable because Brander brought the mistake to the trial court’s attention in a motion for rehearing, rather than raising the issue for the first time on appeal.

Florida Rule of Civil Procedure 1.530(a) provides, “On a motion for a rehearing of matters heard without a jury ... the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.” Fla. R. Civ. P. 1.530(a). “Moreover, this rule provides the trial court an opportunity to correct any error it has committed if it becomes convinced it has erred.” Wynocker v. Wynocker, 500 So.2d 555, 557 (Fla. 2d DCA 1986).

Accordingly, the trial court erred in dismissing the petition without granting Brander an opportunity for a rehearing. On remand, the trial court shall conduct a hearing to determine whether valid service was effectuated on the indispensable parties, and if it was not, consider granting additional time to perfect service.

Reversed and remanded for further proceedings consistent with this opinion.

WARNER and GERBER, JJ., concur.


text:
    Anat BANIEL, Appellant, v. FIFTH THIRD MORTGAGE COMPANY, Appellee.
    No. 5D10-4318.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.

      Michael E. Rodriguez, of Foreclosure Defense Law Firm, PL, Tampa, for Appellant.
    Reid Manley and Christine Irwin Parrish, of Burr & Forman LLP, Orlando, for Appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Fifth Third Mortgage Company candidly and commendably concedes that the final judgment on appeal was erroneously entered and must be reversed. We agree, reverse the final judgment of foreclosure and remand for further proceedings.

REVERSED and REMANDED.

ORFINGER, C.J., MONACO and COHEN, JJ., concur.


text:
    Kayla KEITT, Appellant, v. STEIN MART, INC., Appellee.
    No. 5D11-12.
    District Court of Appeal of Florida, Fifth District.
    Jan. 27, 2012.
    Kayla Keitt, Daytona Beach, pro se.
    Natt 0. Reifler, of Law Offices of Palmer, Reifler & Assoc., P.A., Orlando, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of Appellant’s “Motion to Vacate the Final Judgment and Request for a New Hearing.” However, our review of the record reflects a scrivener’s error in the final judgment. The sum total of the judgment should be $142,500 plus costs and fees of $1,243.71 for a total of $143,743.71. The $47,500 awarded to Appellee in Count I of its complaint is a component of the award in Count II. To include it again would improperly count it twice. On remand, the final judgment shall be corrected.

AFFIRMED and REMANDED FOR CORRECTION OF JUDGMENT.

ORFINGER, C.J., SAWAYA and EVANDER, JJ., concur.


text:
    D.W., Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 1D11-1873.
    District Court of Appeal of Florida, First District.
    Jan. 27, 2012.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant/Cross-Appellee.

      Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, and William P. Cervone, State Attorney and Lorelie A. Papel, Assistant State Attorney, Macclen-ny, for Appellee/Cross-Appellant.
   PER CURIAM.

AFFIRMED. See State v. Brockman, 827 So.2d 299, 302 (Fla. 1st DCA 2002) (“In resisting a judgment of acquittal, the state can rely on any evidence adduced, even evidence later determined to have been erroneously admitted.”).

BENTON, C.J., DAVIS, and MARSTILLER, JJ., concur.


author: SWANSON, J.

text:
    Joshua D. ZELMAN, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent.
    No. 1D11-5108.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    Joshua D. Zelman, pro se, Petitioner.
    Christian D. Lake, Assistant General Counsel, Justice Administrative Commission, Tallahassee, for Respondent.
   SWANSON, J.

In this petition for writ of certiorari, petitioner claims the trial court departed from the essential requirements of law by limiting his attorney’s fee award to double the flat fee because the court failed to consider the number of hours expended by petitioner in determining whether the fee award was confiscatory. We agree and grant the petition.

Petitioner was appointed to represent an indigent criminal defendant, who had been charged with one count of manslaughter with a firearm. Over nine months later, petitioner filed a motion to dismiss the manslaughter charge pursuant to section 776.032, Florida Statutes, which provided immunity from prosecution if the accused exercised an expanded right to self-defense that eliminated the common law duty to retreat before using deadly force in certain circumstances. After a one-day hearing, the trial court granted the motion to dismiss. The state appealed the dismissal of the charge, but later filed a voluntary dismissal of the appeal.

Petitioner then filed a motion pursuant to section 27.5304(12), Florida Statutes (2009), requesting the chief judge to declare the case to be extraordinary, authorize petitioner to bill the Justice Administrative Commission (JAC) at the rate of $75.00 per hour, and approve the attached invoice billing 230.4 hours in the total amount of $17,280.00. At the hearing on petitioner’s motion, petitioner called an expert witness, who testified that the hours billed by petitioner were reasonably necessary to properly prepare and successfully argue a motion to dismiss based upon statutory immunity. The witness further testified that the mere award of double the flat rate, which would amount to $3000.00, would be confiscatory of petitioner’s time because it would result in an hourly rate of only $13.40. No other witnesses were called at the hearing.

During argument, petitioner acknowledged JAC was objecting to $457.50 (6.1 hours) of petitioner’s intended billing on the ground the time was non-billable administrative time. However, petitioner argued that based upon the testimony and evidence presented, competent substantial evidence existed to establish that the case was extraordinary and unusual and that double the flat rate would be confiscatory. Counsel for JAC responded that JAC “did not question the reasonableness of [peti-tionerj’s hours, other than those items that he ha[d] outlined for the court as being administrative in nature.” When the court inquired whether JAC objected to the case being declared extraordinary and unusual, counsel replied JAC was not objecting to such a finding. When the court further inquired whether JAC was objecting to a ruling that $3000.00 would be confiscatory, counsel again responded in the negative.

After the hearing, the trial court entered an order finding the case required extraordinary and unusual effort, but further finding double the flat fee would not be confiscatory because “the amount of extraordinary and unusual effort required was limited.” This petition follows.

Section 27.5304(12), Florida Statutes (2009), provides in pertinent part:

(d) If the chief judge or designee finds that counsel has proved by competent and substantial evidence that the case required extraordinary and unusual efforts, the chief judge or designee shall order the compensation to be paid to the attorney at a percentage above the flat fee rate, depending on the extent of the unusual and extraordinary effort required. The percentage shall be only the rate necessary to ensure that the fees paid are not confiscatory under common law. The percentage may not exceed 200 percent of the established flat fee, absent a specific finding that 200 percent of the fiat fee in the case would be confiscatory. If the chief judge or designee determines that 200 percent of the flat fee would be confiscatory, he or she shall order the amount of compensation using an hourly rate not to exceed $75 per hour for a noncapital case and $100 per hour for a capital case. However, the compensation calculated by using the hourly rate shall be only that amount necessary to ensure that the total fees paid are not confiscatory.

In determining whether a fee award is “confiscatory under common law,” the courts must be guided by the principles set out by our supreme court in a line of cases beginning with Makemson v. Martin County, 491 So.2d 1109 (Fla.1986), which held that trial courts have inherent power to depart from statutory fee guidelines in extraordinary and unusual cases when necessary to ensure that attorneys who represent indigent criminal defendants are not compensated in an amount which is confiscatory of their time, energy, and talents. The court further defined the contours of this inherent power in a series of subsequent decisions, one of which we find to be controlling here.

In White v. Board of County Commissioners of Pinellas County, 537 So.2d 1376 (Fla.1989), the trial court denied defense counsel’s request for attorney’s fees in excess of the statutory maximum of $3500.00 where counsel expended a total of 134 reasonable and necessary hours over a period of 3 1/2 months representing his client in a first-degree murder case. The Second District Court of Appeal denied defense counsel’s petition for writ of certiorari, finding no departure from the essential requirements of law. The Florida Supreme Court granted review and quashed the Second District’s decision. In doing so, the court observed that “[i]n determining whether to exceed the statutory maximum fee cap, the focus should be on the time expended by counsel and the impact upon the attorney’s availability to serve other clients, not whether the case was factually complex.” Id. at 1380. After noting the fee award equaled a fee of $26.12 per hour, the court concluded that defense counsel suffered a double forfeiture in that “[n]ot only did he receive token compensation for his efforts, but his private practice suffered as a result of his service in this case.” Id.

Although this is not a capital case, the principles announced in White are equally applicable here. See Monroe Cnty. v. Garcia, 695 So.2d 823, 825 (Fla. 3d DCA 1997) (holding the principles of Makemson and White are applicable to noncapital cases); Bd. of Cnty. Comm’rs of Hillsborough Cnty. v. Curry, 545 So.2d 930, 931 (Fla. 2d DCA 1989) (same). Petitioner filed an hourly invoice claiming that he expended 230.4 hours to prepare and successfully argue the motion to dismiss the manslaughter charge based upon statutory immunity. At the attorney’s fee hearing, JAC did not dispute the reasonableness of these hours except for 6.1 hours, which it claimed represented non-billable administrative time. In addition, JAC did not dispute the only witness to testify at the hearing, who opined that merely awarding $3000.00, double the flat rate, would be confiscatory of petitioner’s time because it would result in an hourly rate of only $13.40. Because there was uncontradicted evidence that petitioner reasonably expended at least 224.3 hours in the case, a fee award of $3000.00 would amount to only $13.37 per hour, “token compensation” under White, absent any finding that petitioner could reasonably claim only a significantly reduced number of hours. Without making a finding regarding the reasonable number of hours expended by petitioner in the case, the trial court could not determine whether a $3000.00 fee was confiscatory.

Accordingly, we grant the petition, quash the fee award, and remand for reconsideration of the award in light of the principles announced in White. Contrary to petitioner’s request, this court cannot direct the trial court to award a specific amount of fees in a certiorari proceeding. See Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003) (“When considering ... a petition for writ of certiorari, the court has only two options — it may either deny the petition or grant it, and quash the order at which the petition is directed. It may not enter judgment on the merits, or direct the lower tribunal to enter any particular order.”).

PETITION GRANTED.

PADOVANO, J., and DANIEL, JAMES H., Associate Judge, concur.


author: DAVIS, J. THOMAS, J.,

text:
    Casey NEWICK, Appellant, v. WEBSTER TRAINING CENTER and Zenith Insurance Company, Appellees.
    No. 1D11-2091.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    Barbara L. Richard of Daniel L. High-tower, P.A., Ocala, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
   DAVIS, J.

Claimant, Casey Newick, appeals a Final Compensation Order in which the judge of compensation claims (“JCC”) concluded that the employer/carrier (“E/C”) was entitled to avail itself of the apportionment defense provided for in section 440.15(5)(b), Florida Statutes. Claimant contends that the JCC erred as a matter of law in apportioning the benefits because Claimant’s preexisting condition resulted from occupational injuries. Because the prior occupational injuries were not deemed compensable due to the actions of Claimant, we reject this argument and affirm the JCC’s order.

As found by the JCC, Claimant had three shoulder dislocations prior to the compensable April 2, 2010, work accident. These dislocations occurred while she was performing work for her own business or through her employment with someone else. Claimant did not report any of the three prior dislocations as workers’ compensation injuries and did not file workers’ compensation claims for any of them. Instead, she either paid out of pocket for treatment or used her own health insurance. The expert medical advisor opined that Claimant’s current need for surgery was sixty-five percent related to the 2010 work accident and thirty-five percent related to the three prior dislocations.

In apportioning the benefits, the JCC cited to our opinion in Staffmark v. Merrell, 43 So.3d 792 (Fla. 1st DCA 2010), and concluded that the E/C was entitled to avail itself of the apportionment defense provided for in section 440.15(5)(b) because, although Claimant’s prior injuries occurred in an occupational setting, they were never claimed or treated as compen-sable injuries under the workers’ compensation system. The JCC reasoned that, because the prior injuries were not com-pensable, industry was not required to bear the full costs of any condition Claimant now has that resulted from those injuries. She permitted the E/C to apportion out thirty-five percent of the indemnity benefits to which Claimant was entitled and thirty-five percent of the cost of Claimant’s recommended surgery. This appeal followed.

Pursuant to section 440.15(5)(b), Florida Statutes (2009), “If a compensable injury, disability, or need for medical care, or any portion thereof, is a result of aggravation or acceleration of a preexisting condition ... only the disabilities and medical treatment associated with such compensable injury shall be payable under this chapter.... ” In Staffmark, the case upon which Claimant relies in support of her argument for reversal, the E/C argued in part that the JCC erred in failing to apportion the indemnity and medical benefits awarded to the claimant as required by section 440.15(5)(b). 43 So.3d at 793. In affirming, we noted that while the term “preexisting condition” was not specifically defined in section 440.15(5)(b), we had defined and later applied the term in the context of the major contributing cause provision in section 440.09(1)(b), Florida Statutes. Id. at 797.

In Pearson v. Paradise Ford, 951 So.2d 12, 13 (Fla. 1st DCA 2007), which we relied upon in Staff-mark, we explained that the claimant was involved in two employment accidents, each of which resulted in an injury to the claimant’s back and both of which combined to cause his then-current need for compensation benefits. On appeal, the claimant argued that section 440.09(1)(b) did not apply because his injuries were caused solely by multiple employment accidents. 951 So.2d at 15. We agreed and determined that section 440.42(4), Florida Statutes, which “governs the division of liability between carriers when two or more compensable accidents combine to cause the claimant’s need for benefits,” controlled the case. Id. at 16. We determined that section 440.09(l)(b) was intended to apply only when a claimant’s need for treatment or benefits was caused by the impact of an employment accident combined with a preexisting injury or condition that was unrelated to an employment accident. Id. at 17; see also Pizza Hut v. Proctor, 955 So.2d 637, 638 (Fla. 1st DCA 2007) (holding that the E/C could not rely upon section 440.09(l)(b) because the case involved two industrial accidents and injuries without any preexisting injury attributable to a nonindustrial cause).

We noted in Staffmark that both Pearson and Proctor recognized that an underlying purpose of the Workers’ Compensation Law is to place on industry the burden of paying for all injuries and damages of occupational cause. 43 So.3d at 797. We further noted that, pursuant to our two previous opinions, rather than claiming non-compensability in a case as that presented in Staffmark, an E/C may instead find a remedy in section 440.42(4). Id. We found the policy reasons underlying Pearson and Proctor to be equally applicable in the apportionment context under section 440.15(5)(b), and we held that an E/C, in order to avail itself of the apportionment defense, must present evidence of the extent of a claimant’s preexisting condition resulting from non-occupational causes. Id. We affirmed the JCC’s order, which rejected the E/C’s apportionment defense because the E/C failed to present evidence of the extent of the claimant’s preexisting condition resulting from non-industrial causes. Id.

Claimant’s sole argument on appeal is that the JCC erred in apportioning benefits because, pursuant to Staffmark, an E/C is unable to avail itself of the apportionment defense if a claimant’s preexisting condition resulted from any accident occurring at work, whether or not the resulting injury was deemed compensable. We disagree with this contention for several reasons. First, we were not confronted in Staffmark with a claimant who chose not to seek workers’ compensation benefits for her previous injuries. Nor were we confronted with such a situation in Pearson or Proctor. There was no issue in any of those cases as to whether the previous injuries had been deemed compensable.

Moreover, Claimant’s interpretation of Staffmark would render meaningless our determination that an E/C may find a remedy in section 440.42(4). As we noted in Pearson, that statute governs the liability between carriers “when two or more com-pensable accidents” combine to cause the claimant’s need for benefits. 951 So.2d at 16 (emphasis added). By contemplating a remedy for an E/C under that statute, we recognized that compensability of the previous injury was necessary. Under Claimant’s interpretation, the E/C in this case would have no remedy pursuant to section 440.42(4) because Claimant did not seek benefits through the workers’ compensation system for her previous injuries.

In addition, although Claimant relies upon our mention in Staffmark that an underlying purpose of the Workers’ Compensation Law is to place on industry the burden of paying for all injuries and damages of occupational cause, that underlying purpose does not mandate that an E/C be required to pay for injuries that were not deemed compensable at the pertinent time because of the actions of Claimant. As the JCC correctly set forth, the law requires industry to bear the burden of paying for only those injuries that were sustained in compensable workplace accidents. See § 440.09(1), Fla. Stat. (2009) (“The employer must pay compensation or furnish benefits required by this chapter if the employee suffers an accidental compensa-ble injury or death arising out of work performed in the course and the scope of employment.”) (Emphasis added). Were we to accept Claimant’s interpretation of Staffmark, the E/C would be forced to provide benefits and medical care for injuries that, while occurring at Claimant’s former workplaces, were never deemed compensable solely because Claimant elected not to seek workers’ compensation benefits. Such a holding would contravene the pertinent statutes.

For these reasons, the JCC did not err in allowing the E/C to apportion Claimant’s benefits. We, therefore, AFFIRM the order on appeal.

VAN NORTWICK, J., concurs; THOMAS, J., concurs in result only with opinion.

THOMAS, J.,

concurring in result only.

I concur with the majority opinion, but only because we are bound by prior decisions which, in my view, were incorrectly decided. This court’s prior decisions in Staffmark v. Merrell, 43 So.3d 792 (Fla. 1st DCA 2010), and Pearson v. Paradise Ford, 951 So.2d 12 (Fla. 1st DCA 2007), incorrectly interpreted section 440.15(5)(b), Florida Statutes, regarding apportionment. These decisions establish an irrational rule, not grounded in statute, that an E/C cannot apportion a preexisting condition that was incurred in an industrial context.

Our prior decisions have mistakenly applied the definition of a preexisting condition in the context of allocating benefits and applied it to the apportionment context. Here, for example, if Claimant had in fact received workers’ compensation benefits for her previous industrial accidents, our rule would preclude E/C from obtaining apportionment, even where it is undisputed that the previous industrial accidents resulted in a preexisting condition. By conflating section 440.15(5)(b) with section 440.42(4), Florida Statutes, our court has confused the concept of apportionment, which only involves an employer and a claimant, with allocation of benefits, which involves multiple employers disputing their share of liability.

Thus, while I concur in the result here, I think this court should reconsider its prior decisions and correctly differentiate between apportionment of costs between an employer and a claimant, and the allocation of benefits between multiple employers and a claimant.

      . Section 440.09(1 )(b) provides in part that "[i]f an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes...."


text:
    Harley Lloyd COLBERT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-117.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.

      Nancy A. Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

Harley Colbert appeals his judgment of conviction and sentence, arguing the trial court erred in denying his motion to dismiss the information charging him with burglary of a dwelling under section 810.02(3)(b), Florida Statutes (2010). Colbert contends the area from which he stole a bicycle was not an “attached porch” and does not fall within the definition of a “dwelling” as provided in section 810.011(2), Florida Statutes (2010). We agree and reverse.

The victim, Alejandro Rojas, resided in a two-story townhouse. Protruding from underneath the townhouse’s front door was a concrete pad that connected to a front walkway. One side of the concrete pad was open to the front yard, while the other side abutted a layer of mulch. On the opposite side of the mulch was the exterior wall of the townhouse’s garage. The concrete pad and mulch were partially covered by the eave of the garage and the townhouse’s second floor balcony, which was not supported by posts. The concrete pad and mulch were both visually and physically open to the street.

On July 2, 2010, Rojas’s bicycle was sitting on the mulch between the concrete pad and the wall of the garage. At some point, Rojas saw Colbert walking down his driveway with the bicycle. Rojas detained Colbert until law enforcement officers arrived. Colbert was subsequently charged with burglary of a dwelling.

Section 810.011(2) defines “dwelling” to mean:

a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof.

(Emphasis added.) The sole issue on appeal is whether the area from which the bicycle was taken was an “attached porch.” While section 810.011 does not define the term, a review of how the subject has been treated by the courts of this state, as well as the relationship between the terms “attached porch” and “dwelling” in the statute, demonstrate what an “attached porch” is not. This area, which was both visually and physically open to the general public, is not a logical extension of one’s dwelling in a way that comports with the concept of an “attached porch.”

In Weber v. State, 776 So.2d 1001 (Fla. 5th DCA 2001), the Fifth District held an unenclosed cement slab abutting the rear of the victim’s first floor apartment was an “attached porch.” The slab was covered by the balcony of the upstairs apartment, which was supported by posts, and contained a barbecue grill and boxing bag, among other personal items. Id. at 1002-03. In Small v. State, 710 So.2d 591 (Fla. 4th DCA 1998), the Fourth District stated in dicta that a carport with no walls enclosing it except for a single wall shared with the house would qualify as an “attached porch.” Finally, in Blanchard v. State, 767 So.2d 573 (Fla. 5th DCA 2000), the Fifth District held that the glass-enclosed front porch of a duplex, where the victim kept plants and furniture, though it had an inoperative doorbell on the outside, was part of the dwelling rather than a common area open to the public.

The facts herein are distinguishable from the foregoing cases. Notably, those cases dealt with areas where common notions of security and privacy associated with a dwelling were present. In contrast, the area in the instant case was located in the front, rather than the rear, of the townhouse and maintained neither posts nor a sufficient enclosure to visually indicate it was an extension of, rather than just near, the townhouse. The area’s lack of visual demarcation is further demonstrated by the fact that it was only partially covered by the balcony and eave of the garage. Moreover, there was no personal property within the area suggesting it was a logical extension of the dwelling. Lastly, unlike a carport, this area was open to unknown, uninvited people. In short, the area where the bicycle was parked was not an “attached porch” as contemplated in section 810.011(2).

We construe the term “attached porch” narrowly in the accused’s favor. See State v. Hamilton, 660 So.2d 1038, 1044 (Fla.1995). The state has argued in favor of a broader interpretation for the term. The facts herein do not warrant an expansive definition and the state’s argument is rejected. In determining how narrowly to construe the term, the line between those areas falling within its reach, and those falling outside of it, are drawn logically. The structure of section 810.011(2) is significant in this regard, because it ensures that any area deemed an “attached porch” is part of the “dwelling.” This reflects the legislature’s intent to accord to an “attached porch” the same protection for one’s right of habitation as is accorded a “dwelling.” Indeed, the burglary statute “finds its theoretical basis and origin in the protection of a person’s right of habitation.” Hamilton, 660 So.2d at 1043.

In the instant case, the area outside of Rojas’s front door was both physically and visually open to the general public. Consequently, the area from which the bicycle was taken does not comport with the concept of an “attached porch” under the statute.

Based on the foregoing analysis we REVERSE Colbert’s judgment of conviction and sentence.

BENTON, C.J., and PADOVANO, J., concur.

      . In agreeing with the state, the Fifth District acknowledged the state’s point that the statutory definition of "dwelling” would also include "any attached porch.” Blanchard, 767 So.2d at 574.

      . This Court has also considered the opinion in Ferrara v. State, 19 So.3d 1033 (Fla. 5th DCA 2009), in which the Fifth District held that an unenclosed “covered porch at the front of the residence” was an "attached porch.” However, with no other factual description of the porch present in the court's opinion we cannot fairly compare or contrast it to the facts in the underlying case.

      .In addition to being open to individuals like salespeople and visitors, photographic exhibits in the record show that the area was open to mail-carriers because the townhouse's mailbox appears to be affixed on the exterior garage wall, just above where the bicycle was parked.


text:
    Paul Thomas WADDINGTON, Appellant, v. BAPTIST MEDICAL CENTER OF the BEACHES, INC., a Florida Corporation, Appellee.
    No. 1D10-6456.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    Nah-Deh Simmons of the Gregory Law Firm, Jacksonville, for Appellant.

      Charles Thomas Shad and Travase L. Erickson of Saalfield, Shad, Jay, Stokes, Inclan, & Stoudemire, P.A., Jacksonville, for Appellee.
   ORDER IMPOSING SANCTIONS

PER CURIAM.

Upon our own initiative pursuant to Florida Rule of Appellate Procedure 9.410(a), we award Appellee its appellate attorney’s fees as a sanction against counsel for Appellant for filing a frivolous appeal counsel knew or should have known would not be supported by existing law, as proscribed by section 57.105(l)(b), Florida Statutes (2010).

In 2007, Appellant filed a First Amended Complaint against Appellee, Baptist Medical Center, Sergio Li, M.D., Sergio Li, M.D., P.A., Karen A. Fleck, M.D., and Karen A. Fleck, M.D., P.A., alleging medical malpractice by Drs. Li and Fleck and negligence by Appellee based on vicarious liability and agency. After discovery, Drs. Li and Fleck and their respective P.A.s moved for summary judgment. Dr. Li asserted there was no evidence he had been negligent in treating Appellant, and Dr. Fleck asserted there was no evidence she directly or indirectly had any involvement in treating Appellant. Appellant voluntarily dismissed his complaint against Dr. Fleck and her P.A. with prejudice, and Dr. Li and his P.A. won summary final judgment. Appellant appealed the judgment to this Court (case number 1D08-2349), arguing that there remained genuine issues of material fact as to Dr. Li’s negligence, and that the trial court erred by not allowing Appellant to rely on an affidavit/opinion he had used during the presuit process. The issues raised on appeal were framed as follows in the Initial Brief:

THE TRIAL COURT CLEARLY ERRED IN GRANTING APPEL-LEE’S MOTION FOR SUMMARY JUDGMENT AND IN DENYING APPELLANT’S MOTION FOR REHEARING, AND/OR MOTION TO VACATE AND SET ASIDE SUMMARY FINAL JUDGMENT.
A. Section 766.106(5), Florida Statutes Does Not Prohibit Plaintiff From Using the Expert Affidavit of its Own Expert Witness to Contest a Motion for Summary Judgment.
B. Additional Material Facts are In Controversy Precluding The Granting of a Motion for Summary Judgment.
C. Decisional Authority Clearly Supports Appellant’s Request to Reverse The Trial Court’s Orders Granting Appellee’s Motion For Summary Judgment And Denying Appellant’s Motion For Rehearing And/Or Motion To Vacate And Set Aside The Final Summary Authority [sic].

We affirmed the final summary judgment per curiam in Waddington v. Baptist Med. Ctr. of Beaches, Inc., 7 So.3d 539 (Fla. 1st DCA 2009).

In the meantime, Appellee filed its motion for summary final judgment in March 2008 arguing that a legal basis no longer existed to hold it liable under theories of agency and vicarious liability because Appellant had dismissed Dr. Fleck from the lawsuit with prejudice, and Dr. Li was deemed not negligent by the summary final judgment in his favor. Nothing appears to have happened in the case until July 2010, when Appellee moved to dismiss for failure to prosecute. In September 2010, Appellant filed the affidavit of consultant Arthur Shorr opining that Appellee is responsible for the actions of its agent Dr. Li, and the affidavit of Dr. Barry Gustin opining that Dr. Li was negligent in treating Appellant.

At the hearing on its motions, Appellee asserted that Appellant was barred by res judicata from relitigating issues of alleged negligence by Drs. Fleck and Li. Appellee argued that the voluntary dismissal of Dr. Fleck with prejudice and the summary final judgment in Dr. Li’s favor, constitute adjudications on the merits of Appellant’s negligence claims against them. As such, Appellee argued, Appellant cannot reliti-gate those claims in order to succeed against Appellee on theories of vicarious liability and agency. Counsel for Appellant conceded that the affirmed summary judgment in favor of Dr. Li is now law of the case, but argued that the summary judgment was “based on the facts of record at that time that there were not facts — not that he was purely innocent .... ” Counsel further asserted that factual issues remain regarding the negligence of other, unnamed employees or agents of Appellee against whom no negligence was yet alleged. He sought leave to file a second amended complaint that would contain the necessary allegations even though, as he admitted, he had obtained and filed no relevant presuit affidavits, as required by chapter 766, Florida Statutes. The trial court responded, “I think that’s going to be a big problem” and denied the request. The court ultimately rendered a final order finding no genuine issue as to any material fact and entering summary final judgment for Appellee. The court also stated in the order it would have dismissed the case for failure to prosecute had summary judgment not been appropriate.

Appellant appealed the final order — the instant case — and counsel filed an Amended Initial Brief stating the issues on appeal as follows:

THE TRIAL COURT CLEARLY ERRED IN GRANTING APPEL-LEE’S MOTION FOR SUMMARY JUDGMENT AND IN DENYING APPELLANT’S MOTION FOR REHEARING, AND/OR MOTION TO VACATE AND SET ASIDE SUMMARY FINAL JUDGMENT.
A. Section 766.106(5), Florida Statutes Does Not Prohibit Plaintiff From Using the Expert Affidavit of its Own Expert Witness to Contest a Motion for Summary Judgment.
B. Additional Material Facts are In Controversy Precluding The Granting of a Motion for Summary Judgment in addition to record activity occurring within a year.
C. Decisional Authority Clearly Supports Appellant’s Request to Reverse The Trial Court’s Orders Granting Appellee’s Motion For Summary Judgment And Denying Appellant’s Motion For Rehearing And/Or Motion To Vacate And Set Aside The Final Summary Authority [sic].

We affirmed the final order per curiam, see Waddington v. Baptist Med. Ctr. of the Beaches, Inc., 75 So.3d 727, 2011 WL 6167335 (Fla. 1st DCA Dec. 8, 2011) (Table), and ordered Appellant to show cause why we should not impose sanctions against him and/or his counsel pursuant to section 57.105(1) and rule 9.410(a) for filing a frivolous appeal.

Section 57.105(1), Florida Statutes (2010), provides:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

(emphasis added). By now, it is well settled that appellate courts can award appellate attorney’s fees under this provision. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 570 (Fla.2005); Martin County Conserv. Alliance v. Martin County, 73 So.3d 856, 864 (Fla. 1st DCA 2011); Sullivan v. Sullivan, 54 So.3d 520, 522 (Fla. 4th DCA 2010); Eastern Indus., Inc. v. Florida Unemployment Appeals Comm’n, 960 So.2d 900, 901 (Fla. 1st DCA 2007); Airtran Airways, Inc. v. Avaero Noise Reduction Joint Venture, 858 So.2d 1232, 1233-34 (Fla. 5th DCA 2003); Visoly v. Sec. Pac. Credit Corp., 768 So.2d 482, 490 (Fla. 3d DCA 2000). A finding under section 57.105(1)(a) or (l)(b) is “tantamount to a conclusion that the claim was frivolous when filed, or later became frivolous.” Eastern Indus., Inc., 960 So.2d at 901 (citing Wendy’s of N.E. Fla., Inc. v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003)). “[A] ‘frivolous’ appeal is one which raises arguments a reasonable lawyer would either know are not well grounded in fact, or would know are not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.” Visoly, 768 So.2d at 491.

The instant appeal easily satisfies these criteria. Appellant’s counsel filed an Amended Initial Brief raising the same issues as those raised and ruled upon in case number 1D08-2349, relating to the summary judgment entered in favor of Dr. Li. In fact, it is evident that counsel simply used the brief from the prior case (the same law firm represented Appellant in that case), and added some argument directed to the trial court’s findings on the lack of record activity and failure to prosecute. Indeed, the Amended Initial Brief still bears the prior case number. Not only does Appellant’s counsel rely on previously made and ruled upon legal arguments wholly irrelevant to the summary judgment entered in Appellees’ favor, he presents no argument challenging the legal basis for the judgment. In the absence of a colorable argument for reversing the summary judgment, counsel’s argument on failure to prosecute — which the trial court stated would have justified dismissal if summary judgment had not been appropriate — lends no legitimacy to this appeal.

Finding that this appeal satisfies section 57.105(l)(b), we award Appellee its reasonable appellate attorney’s fees to be paid in full amount by Appellant’s counsel. Although section 57.105(1) mandates that attorney’s fees be paid in equal part by both the losing party and counsel, section 57.105(3)(c) prohibits sanctioning a represented party under subsection (l)(b). We further remand this cause to the trial court to determine the amount of the fees.

SO ORDERED.

WETHERELL, MARSTILLER and SWANSON, JJ„ concur.


text:
    David M. MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6565.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, a juvenile who was prosecuted as an adult, challenges his criminal conviction and prison sentence for attempted voluntary manslaughter on the following two grounds: (1) he was convicted of a nonexistent offense because attempted voluntary manslaughter by act is not a cognizable offense in Florida after our supreme court in State v. Montgomery, 39 So.3d 252 (Fla.2010), held that manslaughter by act does not require proof of intent to kill; and (2) the trial court violated Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it sentenced him to prison without the jury finding beyond a reasonable doubt that the public interest required the imposition of adult sanctions. We reject appellant’s second claim based upon our decision in Kirkland v. State, 67 So.3d 1147 (Fla. 1st DCA 2011). We also reject appellant’s first claim based upon binding precedent in Taylor v. State, 444 So.2d 931 (Fla.1983). However, as in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla.2011), and Minnich v. State, — So.3d -, 2011 WL 265765 (Fla. 1st DCA 2011), we certify the following question of great public importance: Is attempted manslaughter a viable offense in light of State v. Montgomery, 39 So.3d 252 (Fla. 2010)?

AFFIRMED; QUESTION CERTIFIED.

PADOVANO and SWANSON, JJ., and LEWIS, TERRY P., Associate Judge, concur.


text:
    Rachel WISELY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and World Team Restaurants, Inc., Appellees.
    No. 1D11-1547.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.

      Rachel Wisely, pro se, Appellant.
    M. Elaine Howard, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

Claimant, Rachel Wisely, appeals an order of the Unemployment Appeals Commission (UAC), reversing the determination of the appeals referee that she was entitled to unemployment benefits. We reverse.

The appeals referee found that Claimant submitted a leave of absence to her employer to deliver her baby. The referee found that, after giving birth, Claimant called her supervisor on two occasions seeking work, but he told her that there were no hours available. The referee concluded that Claimant was discharged due to the lack of available work and that she should receive unemployment compensation benefits. On appeal, the UAC reversed the referee’s determination by finding that Claimant did not go on a bona fide leave of absence because she never advised her supervisor of a specific return date. The UAC concluded that Claimant failed to make' a reasonable effort to preserve her employment and determined that Claimant was not entitled to benefits.

We disagree with the UAC’s conclusion that a leave of absence requires the employer and the employee to agree upon a specific term for the leave.

When an employer fails to notify its employee that a leave of absence from employment is not acceptable and such failure leads the employee to believe the leave is excused, the employee’s absence cannot support a finding that the employee voluntarily left employment for purpose of unemployment compensation benefits. See Meyers v. Quality Extruded Prods., Inc., 611 So.2d 54 (Fla. 3d DCA 1992). The employer has a duty to inform the employee of acceptable terms of leave; when the employer fails to inform the employee of the expected date of return, absence does not support a finding that the employee voluntarily left employment. See Goodman v. Engle Homes, Inc., 621 So.2d 523 (Fla. 4th DCA 1993).

Rodriguez v. Arby’s, Inc., 709 So.2d 632, 633 (Fla. 2d DCA 1998). Thus, it was not incumbent on Claimant to set a specific return date. Because her supervisor failed to inform Claimant of the terms of the approved leave before terminating her, the UAC erred in concluding that Claimant voluntarily left her employment.

The order of the UAC is REVERSED and REMANDED with directions to award Claimant unemployment compensation benefits.

DAVIS, CLARK, and ROWE, JJ„ concur.


text:
    HARBOR LANDING CONDOMINIUM OWNERS ASSOCIATION, INC., Appellant, v. HARBOR LANDING, L.L.C., a Florida Limited Liability Company; Roy Anderson Corp., a Foreign Profit Corporation Qualified, Registered and Doing business in Florida; Weatherguard Building Products, Inc., a Florida Profit Corporation; Dag Architects, Inc., a Florida Profit Corporation; and Rohm and Haas Chemicals LLC, a Foreign Limited Liability Company, Qualified and Registered To Do Business in Florida, Appellees.
    No. 1D11-2052.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    John P. Townsend of Becker & Polia-koff, P.A., Fort Walton Beach, for Appellant.

      J. Rice Ferrelle, Jr., of Murphy & Anderson, P.A., Jacksonville, for Appel-lees.
   PER CURIAM.

Appellant, Harbor Landing Condominium Owners Association, Inc., challenges an Order on Motions to Dismiss and argues that the trial court erred in dismissing Count XI of its complaint, which was a breach of statutory implied warranty claim under section 718.203(2), Florida Statutes, against Appellee Rohm and Haas Chemicals LLC. Finding no error in the trial court’s determination that dismissal was appropriate because Rohm and Haas was not a “supplier” under section 718.203(2), we affirm.

During the hearing on Appellee’s motion to dismiss, Appellee’s counsel argued that while Appellee manufactured the coating used on the condominium’s exterior railings, it was Appellee Weatherguard Building Products, Inc. that actually supplied the railings for the condominium project. Counsel further argued that Rohm and Haas had no knowledge of the condominium project and that the word “supplier” in section 718.203(2) did not mean “manufacturer.” The trial court granted the motion to dismiss, explaining, “Because they’re the manufacturer. They didn’t supply it.” This appeal followed.

The sufficiency of a complaint in a civil action is a question of law reviewable de novo. Rittman v. Allstate Ins. Co., 727 So.2d 391, 393 (Fla. 1st DCA 1999). Section 718.203(2), Florida Statutes (2010), which pertains to condominium warranties, provides in part that “[t]he contractor, and all subcontractors and suppliers, grant to the developer and to the purchaser of each unit implied warranties of fitness as to the work performed or materials supplied by them.... ”

Appellant erroneously argues on appeal that manufacturers should be considered suppliers for purposes of the statute. Had the Legislature wished to include manufacturers, regardless of whether they have any direct connection to a condominium project, it could have done so. See, e.g. § 320.836, Fla. Stat. (noting that a claim in writing, stating the substance of a warranty defect “may be presented to the manufacturer, dealer, or supplier”); see also In re Masonite Corp. Hardboard Siding Prods. Liab. Litig., 21 F.Supp.2d 593, 600-01 (E.D.La. 1998) (noting that the Legislature, through section 718.203, required developers to provide minimal warranties because a manufacturer’s warranties may not be automatically assigned or otherwise extended to the ultimate purchasers and that the plaintiff, the entity who built several condominium buildings in a Florida condominium, could have demanded an assignment of all applicable manufacturer’s warranties from its suppliers and contractors). Further support for our conclusion that the Legislature did not equate suppliers with manufacturers for purposes of section 718.203(2) is that the Legislature used the term “manufacturers” in subsection (1) of section 718.203, which addresses a developer’s implied warranty of fitness to unit owners. This is not to say that a manufacturer can never be considered a supplier for purposes of the warranties provided for in section 718.203(2). In this case, however, dismissal was appropriate because Rohm and Haas, a manufacturer, did not supply anything for the condominium project.

Accordingly, we AFFIRM.

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Joel L. LEWIS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D11-3901.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    Joel L. Lewis, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Respondent.
   PER CURIAM.

The circuit court erred in denying Lewis’s petition for writ of habeas corpus prior to the filing of his reply to the Florida Parole Commission’s response. See McCarthy v. Fla. Parole Comm’n, 889 So.2d 1018 (Fla. 1st DCA 2005). Although Lewis filed a reply contemporaneously with his motion for rehearing or reconsideration and the circuit court denied that motion, it is not apparent from the record whether the circuit court considered the arguments presented in petitioner’s reply. Accordingly, we are constrained to quash the order denying habeas corpus relief and remand the matter with directions to reconsider petitioner’s claim in light of the matters argued in his reply.

Petition for writ of certiorari GRANTED, order QUASHED, and REMANDED with directions.

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


text:
    Jemal X. REAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4647.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    Jemal X. Reams, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In its response to this Court’s order issued pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the state has conceded that the appellant’s convictions for armed kidnapping, a life felony, and armed sexual battery, also a life felony, should not have been enhanced by the habitual felony offender statute. See Lamont v. State, 610 So.2d 435 (Fla.1992); Carter v. State, 786 So.2d 1173 (Fla.2001) (“We hold that a habitual offender sentence, which is solely a creature of statute, is illegal where the habitual offender statute in effect at the time of the offense prohibited the imposition of a habitual offender sentence”) and noting that “improper habitualization may have collateral consequences that could ultimately increase the length of [a defendant’s] sentence” (citing Ashley v. State, 614 So.2d 486, 489 (Fla.1993)).

We therefore reverse and remand the order on appeal for the trial court to strike the habitual felony offender enhancement of the appellant’s convictions for armed kidnapping and armed sexual battery. The habitual felony offender enhancement of the appellant’s conviction for armed robbery, a first-degree felony punishable by life, need not be stricken. See Burdick v. State, 594 So.2d 267 (Fla.1992).

REVERSED AND REMANDED with directions.

WOLF, PADOVANO, and MARSTILLER, JJ„ concur.


text:
    Emilia SPENCE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Baptist Hospital of Miami, Appellees.
    No. 1D11-5059.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    Emilia Spence, pro se, Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Tallahassee, for Appel-lees.
   PER CURIAM.

The appellee’s motion, filed on December 13, 2011, seeking dismissal of the appeal as untimely is hereby granted and the appeal is hereby DISMISSED. See Fla. R.App. P. 9.420(f).

WOLF, CLARK, and WETHERELL, JJ., concur.


text:
    Sophie SUMNER, Appellant, v. BOARD OF TRUSTEES, CITY OF PENSACOLA FIREFIGHTERS’ RELIEF AND PENSION FUND, Appellee.
    No. 1D11-5463.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2012.
    Richard A. Sicking, Coral Gables, for Appellant.
    Gary B. Leuchtman, Pensacola, for Ap-pellee.
   PER CURIAM.

The order to be reviewed by this appeal is a final administrative order of the Board of Trustees, City of Pensacola Firefighters’ Relief and Pension Fund, signed by the Chairman and dated September 14, 2011. However, because the order has not been rendered by the agency, the appeal is premature. Fla. R.App. P. 9.110(Z).

An order is rendered when a signed written copy of the order is filed with the clerk of the lower tribunal. Fla. R.App. P. 9.020(h). Where an administrative order has not been filed with the agency clerk, the agency has not rendered its final order. Hill v. Division of Retirement, 687 So.2d 1376, 1377 (Fla. 1st DCA 1997). The appellant concedes that the order to be reviewed has not been filed with the agency clerk. Therefore, the Court lacks jurisdiction to review the order on appeal. Although the appellant asserts that the Board of Trustees could not properly render an appealable order because it has not designated an agency clerk, “if no person or official has been specifically so designated, the official or agent who most closely resembles a clerk in the functions performed” is the agency clerk. Fla. R.App. P. 9.020(b); see also Presidents’ Council of SD, Inc. v. Walton County, 36 So.3d 764, 765 (Fla. 1st DCA 2010) (noting that the agency clerk was the person in charge of filing the agency’s administrative orders even though her job title did not expressly identify her as the clerk); see generally § 175.061(2), Fla. Stat. (2010) (providing that the trustees shall elect a secretary who shall keep a complete minute book of the actions, proceedings, or hearings of the board).

DISMISSED.

WOLF, CLARK, and WETHERELL, JJ., concur.