author: JOINER, Judge.

text:
    J.M.A. v. STATE of Alabama.
    CR-09-1540.
    Court of Criminal Appeals of Alabama.
    May 27, 2011.

      Brett Ashley King, Locust Fork, for appellant.
    Troy King, atty. gen., and Audrey K. Jordan, asst. atty. gen., for appellee.
   JOINER, Judge.

Two delinquency petitions were filed in the Blount Juvenile Court, charging the appellant, J.M.A., with unlawfully possessing and unlawfully distributing a controlled substance in violation of § ISA-12-212 and § 13A-12-211, Ala.Code 1975. The juvenile court found both charges to be true, adjudicated J.M.A. delinquent, and placed J.M.A. on probation. J.M.A. appealed to this Court. We reverse and render a judgment in J.M.A.’s favor.

At J.M.A.’s trial, Cindy Seaver testified that she is an assistant principal at Hayden High School. Seaver stated that on December 2, 2009, the school resource officer, Deputy Joe Franklin, turned over two orange oval-shaped pills to her and she began an investigation into the source of the pills. Seaver stated that her investigation began with student A.S., who admitted to possessing the pills, and that the investigation led to J.M.A. Seaver testified that she took written statements from A.S. and two other students, K.F. and O.B.

Seaver recalled that during the course of her investigation, she interviewed J.M.A. with his mother present. According to Seaver, J.M.A. did not make any admission regarding the pills.

Brian Kirk testified that he is an assistant principal at Hayden High School. Kirk stated that the school administration received a tip that J.M.A. had been distributing pills and commenced an investigation. Kirk testified that, during the course of the investigation, he and Seaver interviewed J.M.A. and J.M.A. denied distributing pills. According to Kirk, he and Seaver took written statements from three students: M.D., A.S., and O.B.

M.D. testified that he is a student at Hayden High School and that he knew J.M.A. when J.M.A. attended Hayden High. M.D. stated that he saw J.M.A. give pills to O.B. while M.D. was standing only 5 to 10 feet from J.M.A. in the school hallway. M.D. testified that J.M.A. then offered him white pills for two dollars. M.D. stated that he refused the pills, went to the administration office, and told Assistant Principal Kirk what he had seen. In the written statement he gave Kirk and Seaver, M.D. did not mention seeing J.M.A. give pills to O.B.

O.B. testified that in December 2009, he solicited J.M.A. for pills during physical-education class. According to O.B., J.M.A. gave him pills in exchange for two dollars in the school bathroom the next day. O.B. stated that he understood the pills to be Adderall. O.B. testified that he later took the pills.

William Joseph Franklin testified that he is a Blount County Sheriffs Deputy and the school resource officer at Hayden High School. Deputy Franklin stated that on December 2, 2009, two students brought pills to him and he turned the pills over to Assistant Principal Seaver. Deputy Franklin testified that Seaver and the school administration then conducted an investigation that he was not involved in and that Seaver later returned the pills to him. Deputy Franklin stated that he then placed the pills into an evidence locker at the Blount County Sheriffs Department, where the pills were later picked up by the narcotics officer, Deputy Jeff Kirkland.

Deputy Jeff Kirkland testified that he is a narcotics officer with the Blount County Sheriffs Department and confirmed that he picked up the pills Deputy Franklin deposited in a narcotics-evidence locker. Deputy Kirkland then packaged the pills for delivery to the Department of Forensic Sciences (“DFS”), and he delivered the pills to DFS on April 20, 2010.

Raena Motes-Garmon testified that she is a forensic scientist working in the drug-chemistry section of DFS. Motes-Garmon testified that she analyzed the pills delivered to DFS by Deputy Kirkland and that her testing of the pills revealed them to be methylphenidate.

At the conclusion of testimony, the juvenile court adjudicated J.M.A. delinquent on both petitions. The juvenile court denied J.M.A.’s motion for a judgment of acquittal made at the close of the State’s evidence and again posttrial. This appeal ensued.

I.

Initially, we address a procedural issue raised by the State. The juvenile court entered its order adjudicating J.M.A. delinquent on May 26, 2010. On June 8, 2010, J.M.A. timely filed a motion to alter, amend, or vacate the juvenile court’s decision. J.M.A.’s motion was denied by operation of law on June 22, 2010, under Rule 1(B), Ala. R. Juv. P. J.M.A. timely filed a notice of appeal on July 6, 2010. The juvenile court entered an order on July 12, 2010, purporting to amend its previous finding of delinquency to instead adjudicate J.M.A. delinquent of attempted possession and distribution of a controlled substance. On July 22, 2010, this Court entered an order declaring void the juvenile court’s order of July 12, 2010, pursuant to Rule 1(B).

On appeal, the State contends that J.M.A.’s June 8, 2010, motion was not denied by operation of law on June 22, 2010. Therefore, the State argues, the juvenile court’s order of July 12, 2010, purporting to amend its original finding of delinquency, should not have been declared void by this Court. Specifically, the State argues that Rule 24.4, Ala. R.Crim. P., governed J.M.A.’s posttrial motion, giving the juvenile court 60 days to rule on J.M.A.’s motion before it was denied by operation of law. Rule 1(B), Ala. R. Juv. P., states:

“All postjudgment motions, whether provided for by the Alabama Rules of Civil Procedure or the Alabama Rules of Criminal Procedure, must be filed within 14 days after entry of order or judgment and shall not remain pending for more than 14 days. A postjudgment motion is deemed denied if not ruled on within 14 days of filing.”

Despite the clear language of Rule 1(B), the State contends that Rule 1 applies only to civil matters because of a comment to the Rule stating:

“Because juvenile jurisdiction may be exercised by district courts as well as circuit courts, the reference in Rule 1 to the Alabama Rules of Civil Procedure contemplates the Rules of Civil Procedure as modified for applicability in the district courts where juvenile jurisdiction is exercised at the district court level. This Rule is meant to apply in dependency, custody, or other proceedings of a civil nature filed in the juvenile court where no rule of juvenile procedure addresses the matter.”

(Emphasis added.)

The comment’s “reference in Rule 1” to the Alabama Rules of Civil Procedure is a reference to Rule 1(A), which states, in relevant part:

“If no procedure is specifically provided in these Rules or by statute, the Alabama Rules of Civil Procedure shall be applicable to those matters that are considered civil in nature, and the Alabama Rules of Criminal Procedure shall be applicable to those matters that are considered criminal in nature.”

Rule 1(A) and its comment indicate that the Alabama Rules of Civil Procedure applicable to district courts shall apply to juvenile proceedings of a civil nature in district courts where no rule of juvenile procedure addresses the matter. See Ex parte Vaughn, 495 So.2d 83, 86 n. 2 (Ala.1986) (“Because juvenile jurisdiction may be exercised by district courts as well as by circuit courts, the Alabama Rules of Civil Procedure referred to in the juvenile rule contemplate the civil rules as modified for applicability in the district courts where juvenile jurisdiction is exercised at the district court level. Committee Comments to Rule 1, Ala. R. Juv. P.”).

The cited comment does not contradict that plain language of Rule 1(B) stating that a postjudgment motion provided for by the Alabama Rules of Criminal Procedure is denied by operation of law if not ruled on within 14 days. Accordingly, at the time of the juvenile court’s July 12, 2010, attempt to modify its earlier order, J.M.A.’s posttrial motion had been denied by operation of law. Thus, this Court will review the juvenile court’s original finding adjudicating J.M.A. delinquent on a charge of possessing and distributing a controlled substance.

II.

The sole issue J.M.A. raises on appeal is the sufficiency of the evidence to support the juvenile court’s adjudication of delinquency. A juvenile court may find a child delinquent “on proof beyond a reasonable doubt, based upon competent, material, and relevant evidence[] that the child committed the acts by reason of which the child is alleged to be delinquent.” § 12-15-212(a), Ala.Code 1975. The general standard for assessing the sufficiency of the evidence is applicable to our review of juvenile proceedings. See J.W.B. v. State, 651 So.2d 73, 75 (Ala.Crim.App.1994) (applying “ ‘[t]he general standard by which we review the evidence’ ” to a juvenile proceeding (quoting Robinette v. State, 531 So.2d 682, 687 (Ala.Crim.App.1987))).

“ ‘ “In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution.’ ” Ballenger v. State, 720 So.2d 1033, 1034 (Ala.Crim.App.1998), quoting Faircloth v. State, 471 So.2d 485, 488 (Ala.Crim.App.1984), aff'd, 471 So.2d 493 (Ala.1985). ‘ “The test used in determining the sufficiency of evidence to sustain a conviction is whether, viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found the defendant guilty beyond a reasonable doubt.” ’ Nunn v. State, 697 So.2d 497, 498 (Ala.Crim.App.1997), quoting O’Neal v. State, 602 So.2d 462, 464 (Ala.Crim.App.1992). ‘“When there is legal evidence from which the jury could, by fair inference, find the defendant guilty, the trial court should submit [the case] to the jury, and, in such a case, this court will not disturb the trial court’s decision.” ’ Farrior v. State, 728 So.2d 691, 696 (Ala.Crim.App.1998), quoting Ward v. State, 557 So.2d 848, 850 (Ala.Crim.App.1990). ‘The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.’ Ex parte Bankston, 358 So.2d 1040, 1042 (Ala.1978).”

Oliver v. City of Opelika, 950 So.2d 1229, 1230 (Ala.Crim.App.2006).

Moreover,

“ ‘ “This Court is well aware that where ‘circumstantial evidence points to the guilt of the accused, it will support a conviction as strongly as direct evidence.’ Newsome v. State, 570 So.2d 703, 710 (Ala.Cr.App.1989). Accord, Jones v. State, 514 So.2d 1060, 1067 (Ala.Cr.App.), cert. denied, 514 So.2d 1068 (Ala.1987). However, ‘no rule is more fundamental or better settled than that convictions cannot be predicated upon surmise, speculation, and suspicion to establish the accused’s criminal agency in the offense charged.’ Benefield v. State, 286 Ala. 722, 724, 246 So.2d 483, 485 (1971), quoted in Crafts v. State, 439 So.2d 1323, 1325 (Ala.Cr.App.1983).”
‘Atwell v. State, 594 So.2d 202, 213 (Ala.Cr.App.1991), cert. denied, 594 So.2d 214 (Ala.1992).
““““While a jury is under a duty to draw whatever permissible inferences it may from the evidence, including circumstantial evidence, mere speculation, conjecture, or surmise that the accused is guilty of the offense charged does not authorize a conviction. [Citations omitted.] A defendant should not be convicted on mere suspicion or out of fear that he might have committed the crime. Harnage v. State, 49 Ala.App. 563, 274 So.2d 333 (1972). While reasonable inferences from the evidence may furnish a basis for proof beyond a reasonable doubt, Royals v. State, 36 Ala.App. 11, 56 So.2d 363, cert. denied, 256 Ala. 390, 56 So.2d 368 (1951), mere possibility, suspicion, or guesswork, no matter how strong, will not overturn the presumption of innocence. [Citations omitted.]” ’ ”
‘Patterson v. State, 538 So.2d 37, 42 (Ala.Cr.App.1987), conviction rev’d, 538 So.2d 43 (Ala.1988), quoting Ex parte Williams, 468 So.2d 99, 101-02 (Ala.1985).’
“Mullins v. City of Dothan, 724 So.2d 83, 86 (Ala.Cr.App.1998).”

Boyington v. State, 748 So.2d 897, 901 (Ala.Crim.App.1999).

To establish a prima facie case of unlawful possession of a controlled substance, the State must prove that J.M.A. “possessed] a controlled substance enumerated in Schedules I through V.” § 13A-12-212, Ala. Code 1975. To establish a prima facie case of unlawful distribution of a controlled substance, the State must prove that J.M.A. “[sold], furnish[ed], [gave] away, deliver[ed], or distributed] a controlled substance enumerated in Schedules I through V.” § 13A-12-211, Ala.Code 1975. Both methylphenidate and Adde-rall are Schedule III controlled substances. § 20-2-27(a)(l), Ala.Code 1975.

In the present case, the State presented insufficient evidence for the juvenile court to adjudicate J.M.A. delinquent of possessing or distributing a controlled substance. The evidence presented by the State concerns two sets of pills. First, the State presented evidence indicating that two students brought orange pills to Deputy Franklin and that Franklin turned the pills over to Assistant Principal Seaver. The pills were ultimately sent to DFS for testing that revealed them to be methyl-phenidate. Assistant Principal Seaver and Assistant Principal Kirk testified that their investigation led them to J.M.A., but the State presented no evidence of the substance of the investigation linking the pills to J.M.A. The State presented no competent, material, and relevant evidence demonstrating that the pills given to Deputy Franklin were ever possessed or distributed by J.M.A.

Second, the State presented the testimony of M.D. and O.B. M.D. testified that he saw J.M.A. give white pills to O.B. in the school hallway and that he was then offered pills by J.M.A. O.B. testified that he received pills from J.M.A. in the school bathroom that he understood to be Adde-rall and that he consumed the pills immediately upon receiving them.

The State presented no evidence indicating that the pills given to O.B. by J.M.A. were the same pills delivered to Deputy Franklin and ultimately tested by DFS and confirmed to be a controlled substance. This Court has upheld convictions for possession of a controlled substance despite a lack of scientific testing where a witness who confiscated or took possession of the substance testified to having sufficient knowledge or expertise to identify the substance. See Hanks v. State, 562 So.2d 536, 540 (Ala.Crim.App.1989), rev’d on other grounds, 562 So.2d 540 (Ala.1989) (upholding admission of police officer’s opinion testimony that substance was marijuana, despite lack of scientific testing, where “the record contain[ed] ample evidence of the testifying police officer’s experience and training in the area of drug enforcement and drug detection and identification”); Headley v. State, 720 So.2d 996, 998 (Ala.Crim.App.1998) (“The evidence does not have to consist of scientific testing, so long as the proper foundation for the arresting officer’s own experience in identifying marijuana is laid.”); Powell v. State, 804 So.2d 1167, 1170 (Ala.Crim.App.2001) (affirming conviction where “the witness who identified the substance as marijuana[ ] had experience in recognizing marijuana[ ] and was familiar with its odor and appearance”). Cf. Robinson v. State, 686 So.2d 1264, 1265 (Ala.Crim.App.1993) (finding insufficient evidence to sustain a prison disciplinary action where “[t]he record fail[ed] to show the officer’s expertise or the knowledge that he relied on in concluding that the seeds were marijuana”).

In the present case, however, O.B. did not testify that he had any knowledge or expertise that would allow him to identify the pills given to him by J.M.A. as Adde-rall. Nor did O.B. testify as to any circumstantial evidence indicating that the pills were a controlled substance, such as the effect the pills had on him after he consumed them.

Finally, although O.B.’s testimony is unclear, O.B.’s testimony could be read as stating that J.M.A. told him that the pills were Adderall. However, without competent corroborating evidence, J.M.A’s statement to O.B. is insufficient evidence upon which to adjudicate him delinquent.

“The mere ‘confession’ or statement of a defendant to a given offense, without any corroborating evidence, is not sufficient to sustain a conviction. See, e.g., Smith v. United States, 348 U.S. 147 (1954) (the general rule is that an accused may not be convicted on his own uncorroborated confession); State v. Chatelain, 220 Or.App. 487, 188 P.3d 325 (2008) (defendant’s confession is not legally sufficient to support a conviction unless there is adequate corroboration); and People v. O’Neil, 18 Ill.2d 461, 165 N.E.2d 319 (1960) (voluntary confession of an accused is insufficient, without corroborating evidence, to authorize a conviction).”

G.E.G. v. State, 54 So.3d 941, 948 (Ala.Crim.App.2008), rev’d on other grounds, 54 So.3d 949, 956 (Ala.2010) (“The issue before this Court is whether the rule that a defendant may not be convicted solely on the basis of a confession should also apply to a guilty-plea conviction. We hold that the issue of the admissibility of the defendant’s confession without corroboration is waived by the defendant’s plea of guilty.” (emphasis added)).

The State presented no competent, material, and relevant evidence indicating that the pills given to O.B. by J.M.A. were actually Adderall, methylphenidate, or any other controlled substance. Even when viewing the evidence in the light most favorable to the State, the State presented insufficient evidence for the juvenile court to adjudicate J.M.A. delinquent based on proof beyond a reasonable doubt.

Based on the foregoing, the juvenile court’s adjudication of delinquency is reversed, and a judgement is rendered in J.M.A.’s favor.

REVERSED AND JUDGMENT RENDERED.

WELCH, P.J., and WINDOM, KELLUM, and BURKE, JJ., concur.

      . O.B. testified as follows:
      "Q. [PROSECUTOR:] And, did you discuss what kind of pills they were?

        "A. [O.B.:] No, sir.
      "Q. Ok, you didn’t—
      "A. Not that I remember.
      "Q. You don’t remember?
      "A. I think we did, sir.
      "Q. Ok, you think what?
      "A. I think we did. I think I say, yes, sir.
      “Q. Ok, what kind of pills did you understand them to be?
      "A. Adderalfl].
      "Q. Adderalfl]?
      "A. Sir, yes, sir.”
      (R. 49-50.)

      . The juvenile court’s order was signed on May 21, 2010. The order was entered into the State Judicial Information System on May 26, 2010. Thus, under Rule 58(c), Ala. R. Civ. P., and Rule 1(A), Ala. R. Juv. P., the order adjudicating J.M.A. delinquent was “entered” on May 26, 2010.

      . J.M.A.'s motion to "alter, amend, or vacate” is treated as a motion for a new trial provided for under Rule 24.1, Ala. R.Crim. P. State v. Monette, 887 So.2d 314, 315 (Ala.Crim.App.2004) ("A motion to alter, amend, or vacate a sentence is the functional equivalent of a motion for a new trial and 'should be treated the same procedurally as a motion for new trial or a motion in arrest of judgment.... ’ Melvin v. State, 583 So.2d 1365, 1366 (Ala.Crim.App.1991).”).

      . "No motion for new trial or motion in arrest of judgment shall remain pending in the trial court for more than sixty (60) days after the pronouncement of sentence, except as provided in this section." Rule 24.4, Ala. R.Crim. P.

      . Also known as Concerta.

      . Adderall is composed of amphetamine compounds, a Schedule III controlled substance.

      . There is a variance between the petitions, which allege that J.M.A. possessed and distributed a controlled substance, namely generic Concerta (methylphenidate), and the evidence presented at trial attempting to show that J.M.A. possessed and distributed Adderall (amphetamine) (also a controlled substance). J.M.A. did not raise the issue of variance at trial, however, and raises the issue for the first time on appeal only as an argument against the sufficiency of the evidence. Regardless of the variance, however, the State presented insufficient evidence to support a finding of delinquency based on the possession and/or distribution of either methylphe-nidate or amphetamine.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    Magloire R. ISAAC and Marie R. Isaac, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee for the Certificate Holders of Soundview Home Loan Trust 2006-Opt5 Asset-Backed Certificates, Series 2006-OPT5, Appellee.
    No. 4D09-3036.
    District Court of Appeal of Florida, Fourth District.
    April 6, 2011.
    Philippe Symonovicz of Law Offices of Philippe Symonovicz, Fort Lauderdale, for appellants.
    Asher Perlin and Robyn Spalter of Ben-Ezra & Katz, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

In this appeal from a final summary judgment of mortgage foreclosure, the appellants claim that the court erred in entering a summary judgment because ap-pellee, Deutsche Bank, failed to establish its standing to bring the foreclosure action. In particular, they argue that Deutsche Bank failed to provide sufficient documentation reflecting how it obtained ownership of the mortgage and note from the original assignee, an entity called Option One. Deutsche Bank argues that it established its standing to foreclose based upon its possession of the original note and mortgage, combined with the affidavit of a representative of Option One’s successor in interest affirming Deutsche Bank’s ownership. We agree with Deutsche Bank that no material issues of fact remain and affirm.

To prove its ownership, Deutsche Bank filed with the court the original mortgage, note, and an allonge from Option One, payable to bearer, together with the aforementioned affidavit. The allonge, signed by an assistant secretary of Option One, did not state a payee. In this case, because the allonge did not state a payee, the note is “payable to bearer.” A promise or order is “payable to bearer” if it: “(a) [sjtates that it is payable to bearer ...; (b) [d]oes not state a payee; or (c) [sjtates that it is payable to or to the order of cash or otherwise indicates that it is not payable to an identified person.” § 673.1091(1), Fla. Stat. “If an instrument is payable to bearer, it may be negotiated by transfer of possession alone.” § 673.2011(2), Fla. Stat. A “holder” is defined as “[tjhe person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.” § 671.201(21)(a), Fla. Stat.

Thus, Deutsche Bank, by virtue of its possession of an instrument payable to bearer, is a valid holder of the note and, therefore, is entitled to enforce it. The affidavit from Option One’s successor in interest, also uncontested, provides proof of Deutsche Bank’s right to foreclose the mortgage. See Servedio v. U.S. Bank Nat’l Ass’n, 46 So.3d 1105, 1107 (Fla. 4th DCA 2010); see also BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938-39 (Fla. 2d DCA 2010); Stanley v. Wells Fargo Bank, 937 So.2d 708 (Fla. 5th DCA 2006).

We also reject the appellants’ claim that the trial court should have granted their motion to amend their answer. The trial court did not abuse its discretion in denying the motion, made for the first time at the hearing on summary judgment and without attaching a copy of the proposed amended pleading. See Fla. R. Civ. P. 1.190(a).

Because no genuine issue of material fact remained, the trial court properly entered summary judgment for the bank.

Affirmed.

TAYLOR and LEVINE, JJ., concur.

      . “An allonge is a piece of paper annexed to a negotiable instrument or promissory note, on which to write endorsements for which there is no room on the instrument itself. Such must be so firmly affixed thereto as to become a part thereof.” See Booker v. Sarasota, Inc., 707 So.2d 886, 887 n. 1 (Fla. 1st DCA 1998). Although Florida's Uniform Commercial Code does not specifically mention an allonge, the Code provides that ”[f]or the purpose of determining whether a signature is made on an instrument, a paper affixed to the instrument is a part of the instrument.” § 673.2041(1), Fla. Stat.


author: PER CURIAM.

text:
    Leslie J. McNEIL, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1218.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2011.

      Leslie J. McNeil, Miami, 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 09-31750-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    Johnathan L. BELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1274.
    District Court of Appeal of Florida, First District.
    July 14, 2011.
    Rehearing Denied Sept. 6, 2011.
    Johnathan L. Bell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

WOLF, DAVIS, and MARSTILLER, JJ., concur.


author: NORTHCUTT, Judge. ALTENBERND, Judge, KHOUZAM, Judge,

text:
    Stephen S. COLLETTI, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4341.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2011.
    Rehearing Denied Nov. 15, 2011.

      Andrea M. Norgard and Margaret H. White-Small, Special Assistant Public Defenders, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

A jury convicted Stephen Colletti of third-degree felony murder. See § 782.04(4), Fla. Stat. (2008). On appeal, he contends that the State failed to prove the underlying felony and that, therefore, the evidence was insufficient to support his felony murder conviction. See Sori v. State, 477 So.2d 49, 50-51 (Fla. 2d DCA 1985). We agree, and we reverse Colletti’s conviction.

Colletti was initially tried on three charges: second-degree murder, third-degree felony murder, and aggravated battery with a firearm. At his first trial the jury acquitted him of second-degree murder and aggravated battery. The jury hung on the third-degree felony murder count, and the State retried Colletti on that charge.

The information identified Colletti’s underlying felony as the grand theft of items he took from the victim’s residence. Section 812.014(2)(d), Florida Statutes (2008), establishes the crime of third-degree grand theft when property valued at $100 or more is taken from a dwelling or the curtilage of a dwelling. After the State rested its case at Colletti’s retrial, Colletti moved for judgment of acquittal. The trial court remarked that the State had presented no evidence of the value of the items stolen. It noted that the State had the burden of proving that the value of the property taken was $100 or more. The prosecutor replied that the evidence showed that a safe was taken from the wall of the victim’s home and that the safe may have contained money and drugs worth over $100. The court also noted that a DVR was taken and that the safe itself, the contents of the safe, and the DVK, provided sufficient evidence for the jury to find a value of more than $100. In addition, one of Colletti’s alleged accomplices testified that a laptop computer and a mobile phone, which he described as an “iPod phone,” were taken. The court denied Colletti’s motion for judgment of acquittal.

To convict an accused of grand theft, the State must prove the value of the items taken beyond a reasonable doubt. Evans v. State, 452 So.2d 1040, 1041 (Fla. 2d DCA 1984). The value of tangible property is established by “the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l). Here, as the trial court pointed out, the State presented no evidence of value at all. But the statute defining the term “value” provides that if the actual value cannot be ascertained, the jurors may find that it is “not less than a certain amount[.]” § 812.012(10)(b). On the other hand, the statute also provides that “if no such minimum value can be ascertained, the value is an amount less than $100.” Id.

We have found only one reported case in which, as here, the State presented no admissible evidence of the stolen property’s value and the value nevertheless was deemed to meet the grand theft minimum amount. That decision, Jackson v. State, 413 So.2d 112, 114-15 (Fla. 2d DCA 1982), was the first to apply section 812.012(10)(b) so as to permit the jury to find that stolen property was worth “not less than a certain amount.” In Jackson, the stolen property was a nearly new, thirty-seven-foot sailboat. The Jackson court held that, considering the nature of the property, no reasonable person could doubt that its value exceeded $100. But the court cautioned that such a valuation “should occur only in those rare instances when the minimum value is indisputable and the jury cannot ascertain a specific value from the evidence or lack of evidence before it.” Id. at 112.

The Florida Supreme Court recently disapproved Jackson, holding that it had misinterpreted the “minimum value” provision of the theft statute. Marrero v. State, 71 So.3d 881 (Fla.2011). “Jackson improperly breathes an extremely broad interpretation of a narrow statutory provision into the criminal theft statute,” the court wrote. “Section 812.012(10)(b) provides that ‘[i]f the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount.’ (Emphasis supplied.)” Id. at 888.

A plain reading of this criminal theft provision reveals that a jury is only allowed to determine a minimum value instead of an actual value if the value of property cannot be ascertained. Jackson replaces the requirement that the value of the stolen property be impossible to ascertain with a completely unrelated condition of the State’s failure to present evidence of value (although capable of valuation) and jurors “could not doubt that its value exceeded” the required amount. See Jackson, 413 So.2d at 112. This misinterpretation of the criminal theft statute is not supported by any authority whatsoever and in fact runs contrary to the plain language of the criminal theft statute and the criminal mischief statute. We therefore disapprove of Jackson’s disregard of the impossibility prerequisite articulated in section 812.012(10)(b).

Id.

In Colletti’s case, the State did not demonstrate, and the record does not reflect, that it was impossible to prove the value of the stolen items, i.e., “the market value of the property at the time and place of the offense or, if such [could not] be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l). That being the case, the “minimum value” exception to the State’s burden to prove the value of the stolen property was not applicable.

In any event, we note that a number of cases decided before Marrero have held that allowing a jury to determine a minimum value under section 812.012(10)(b) is permissible only in “those rare cases where the minimum value of an item of property is so obvious as to defy contradiction.” Weatherspoon v. State, 419 So.2d 404, 405 (Fla. 2d DCA 1982); see also K.W. v. State, 13 So.3d 90, 92 (Fla. 3d DCA 2009). Such cases are rare indeed; in nearly every reported decision involving proof of valuation based on the “minimum value” theory, Florida’s appellate courts have found the evidence wanting. See D.H. v. State, 864 So.2d 588, 589 (Fla. 2d DCA 2004) (rejecting State’s argument that the sheer number of items, including DVD player, a Sony Playstation, and cameras, was sufficient to prove that the stolen items had a value that met the grand theft minimum); see also A.D. v. State, 30 So.3d 676, 678 (Fla. 3d DCA 2010) (declining State’s invitation to find a minimum value for stolen items, i.e., a cell phone, a fishing rod, an iPod, a truck radio, and a boat battery charger, sufficient to meet the grand theft threshold when the State presented slim evidence of the condition of the items); K.W., 13 So.3d at 92 (rejecting the notion that a nice cell phone automatically met the “minimum value” for grand theft under section 812.012(10)(b)); Doane v. State, 847 So.2d 1015, 1018 (Fla. 5th DCA 2003) (holding that when the State presented insufficient evidence of market value of stolen items — two computer monitors, two central processing units, two keyboards, a scanner, a printer, and a 35 mm Nikon camera — “the value of the stolen equipment was not ‘so obvious as to defy contradiction’ ”).

In the opinions just cited, it was not apparent that it was impossible to ascertain the value of the items stolen, and for that reason the cases may have limited vitality in light of Marrero. Even so, those cases demonstrate that, assuming the applicability of the “minimum value” provision of the theft statute, the scant evidence here did not support a determination that the value of the stolen items so obviously equaled or exceeded $100 that such valuation was “indisputable” or was “so obvious as to defy contradiction.” As mentioned, here the stolen items were a wall safe, a DVR, a laptop computer, and a mobile phone. The State presented no evidence about the age, condition, or quality of the items. No evidence established what, if anything, the safe contained when it was taken. Although some testimony suggested that the victim had sometimes used the safe to store drugs and money, no one could say that any such items were in the safe when it was removed.

At the hearing on Colletti’s renewed motion for judgment of acquittal after the verdict was entered, the State advanced an additional theory in support of its proof of value. The State reminded the court that Colletti had told different people that the victim owed him, variously, $1500, $3000, $10,000 or $30,000, and that he wanted his money back. There was testimony that Colletti offered to pay two men between $500 and $1000 to accompany him to the victim’s house to help him recover payment of the debt. Specifically, the plan was to convince the victim to open his wall safe so that Colletti could obtain his repayment. Thus, the State asserted, it proved that Colletti had “endeavored” to commit grand theft because he was seeking repayment of sums in excess of the $100 threshold. See § 812.014(1) (“A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or use, the property of another.... ”); State v. Sykes, 484 So.2d 325, 327 (Fla.1983) (holding that the crime of theft is fully proved by showing that defendant endeavored to steal; there is no separate crime of attempted theft). The trial court agreed with the State that the endeavor theory was sufficient to prove the amount of the theft, citing State v. Santo, 693 So.2d 139 (Fla. 2d DCA 1997).

But Santo did not involve an attempt to prove value under the endeavor theory. In that case, the defendants were charged with multiple counts of grand theft based on their false representations to homeowners that their air conditioning units needed cleaning or replacement and that failure to do so would be a health hazard. The defendants moved to dismiss the charges, and the State filed a traverse. See Fla. R. Crim. P. 3.190(c)(4), (d). The trial court dismissed the counts involving victims who had refused to purchase services or replacement units. The Santo court reversed the dismissals because “evidence of an actual purchase ... is not necessary to prove that the appellees endeavored to obtain or use the property of another.” It relied on McMillian v. State, 566 So.2d 291 (Fla. 1st DCA 1990), for the proposition that a defendant may be convicted of grand theft when he committed the overt acts of posing as a naive wealthy person to trick the victim into withdrawing $4,000 from the bank, even though the victim never withdrew money. Santo, 693 So.2d at 139.

Thus, Santo merely recounted that, under the theft statute, an endeavor to obtain or use the property of another is the same as a completed obtainment or use. See Sykes, 434 So.2d at 327. Santo did not hold that the State may prove the value of the stolen property with evidence of what the accused thought it might be worth.

To the contrary, under the theft statute an accused’s understanding or state of mind is implicated only in regard to whether the taking itself is a criminal act. A person commits theft if he “knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently” deprive the owner of the property or appropriate the property to his own use. § 812.014(1) (emphases supplied). The statute pays no heed to the perpetrator’s knowledge or intent when delineating the degrees of the crime based on the value of the property taken. Thus, as was alleged in this case, the theft would be a third-degree felony “if the 'property stolen is valued at $100 or more, but less than $300” and is taken from a dwelling. § 812.014(2)(d) (emphasis supplied). The methods for proving value set forth in section 812.012(10) make no reference to the defendant’s subjective belief about the value of the property.

The State’s reliance on Colletti’s alleged specific endeavor to take the contents of the wall safe in repayment of the victim’s debt was unavailing for another important reason: there was no proof that the safe contained anything at all. In Capaldo v. State, 679 So.2d 717 (Fla.1996), the supreme court interpreted section 812.019(1), Florida Statutes (1993), which provides that any person who traffics in, “or endeavors to traffic in” stolen property is guilty of a second-degree felony. The court accepted review of the case to address the following certified question: “Is it necessary to prove the existence of actual property in order to convict under section 812.019(1)?” Id. at 718. Answering the question in the affirmative, the court rejected the State’s assertion that, although there must be some property that forms the basis of a trafficking charge, there need not be any actual property when the defendant is charged with endeavoring to traffic in stolen property. In so doing, the court drew heavily on its previous treatment of the “endeavors to obtain” language in the theft statute.

In construing statutory language similar to the instant statute, this Court concluded that the words “or endeavors” reveals a legislative intent to define the substantive offense as including the attempt to commit the substantive offense. See Sykes, 434 So.2d at 327 (finding that second-degree grand theft, as defined in section 812.014, included an attempt to commit second-degree grand theft). Under such circumstances, “[t]he substantive, completed crime is fully proved when an attempt, along with the requisite intent, is established.” Id.

Capaldo, 679 So.2d at 719.

“Thus,” the court wrote, “trafficking and endeavoring to traffic in stolen property have the same elements of proof. Accordingly, we find that there must be some property which forms the basis of either charge.” Id. As is manifest in the Capaldo court’s direct reliance on its interpretation of the theft statute, the same is true of committing a theft and endeavoring to commit a theft.

In Colletti’s case, there was no proof that the victim’s wall safe held any contents whatever. As such, the theft charge could not have rested on Colletti’s supposed endeavor to steal those contents, regardless of what he may have believed about their existence or value.

We must reverse Colletti’s conviction for third-degree felony murder because the evidence was insufficient to prove the underlying felony, grand theft. Although the evidence would have supported a conviction for petit theft, § 812.014(3)(a), that crime cannot form the basis of a felony murder charge. See Brown v. State, 959 So.2d 218 (Fla.2007). Further, because third-degree felony murder has no lesser included offenses, it was the only charge submitted to the jury. For this reason, we must remand to the circuit court with directions to discharge Colletti.

Reversed and remanded.

ALTENBERND, J., Concurs specially.

KHOUZAM, J., Concurs specially.

ALTENBERND, Judge,

Specially concurring.

The property that was stolen in this case was never recovered. There is evidence that it was discarded when Mr. Colletti and others were returning to West Palm Beach after the events in Lee County. I think this is an appropriate case to permit the jury to rely on the replacement value. It seems obvious to me that it would cost more than $100 to replace an iPhone, a wall safe, and the other items. But in light of the supreme court’s recent decision in Marrero v. State, 71 So.3d 881 (Fla. 2011), I must concur in the decision to discharge Mr. Colletti, even though Jackson v. State, 413 So.2d 112 (Fla. 2d DCA 1982), was the law in this district at the time the case was tried. I fully agree that the State failed to prove any “endeavor” theory to establish value in this case.

KHOUZAM, Judge,

Specially concurring.

This court is bound by current precedent to reverse Colletti’s felony murder conviction because the underlying felony was grand theft and the State failed to present any evidence showing the value of the items Colletti took from the victim’s home. I write to note that the State could have avoided this result by showing beyond a reasonable doubt that the items stolen were worth over $100. The items, which included, among other things, a wall safe, a DVR, a laptop computer, and an “iPod phone,” were likely worth more than $100. But the State neither presented any evidence of their value nor asserted that their value could not be established. Therefore, we are compelled to reverse.


author: NORTHCUTT, Judge.

text:
    Steven TIDWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3191.
    District Court of Appeal of Florida, Second District.
    Sept. 21, 2011.
    James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Judge.

The circuit court found that Steven Tid-well violated the terms of the probation to which he had been sentenced for the crime of lewd battery, and it sentenced him to ten years’ imprisonment. On appeal, defense counsel filed an Anders brief, stating that she could find no meritorious argument to support reversal. We agree, but when reviewing the record we discovered an error in the sentencing documents.

Tidwell was designated a youthful offender when he was originally sentenced for the lewd battery crime. His sentence on the violation of probation is permissible under the youthful offender act because he committed a new law offense and his sentence does not exceed the statutory maximum for the crime. See § 958.14, Fla. Stat. (2009). But when a youthful offender commits a violation of probation, even a substantive one as described in section 958.14, his status as a youthful offender cannot be revoked. Vantine v. State, 66 So.3d 350 (Fla. 2d DCA 2011); see also Blacker v. State, 49 So.3d 785 (Fla. 4th DCA 2010). The written sentence entered after Tidwell’s probation violation does not designate him as a youthful offender. Accordingly, we remand with directions to correct the sentencing documents to reflect that the designation continues. Tid-well does not need to be present for the correction.

Affirmed; remanded for correction of sentencing documents.

DAVIS and CRENSHAW, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: MORRIS, Judge.

text:
    STATE of Florida, Petitioner, v. Randall Leon WRIGHT, Respondent.
    No. 2D10-5784.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2011.
    Rehearing Denied Oct. 31, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Petitioner.
    John E. Hendry, Regional Counsel, Second District, and Mark P. Brewer, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Sarasota, for Respondent.
   MORRIS, Judge.

The State seeks a writ of certiorari to quash the trial court’s order which precluded the State from presenting evidence of Wright’s prior acts of domestic violence against the victim. We conclude that the trial court departed from the essential requirements of the law by applying section 90.404(2), Florida Statutes (2008), to exclude the evidence. We therefore grant the State’s petition.

I. FACTS

In April 2009, Wright was charged with armed kidnapping with intent to commit bodily harm or terrorize. The State alleges that Wright was in a relationship with the victim, but on March 24, 2009, the victim sought and obtained an injunction for protection against domestic violence. The victim informed Wright of the injunction and told him he had to remove his belongings from her home. Although the victim asked Wright to arrive at a prearranged time when the victim would not be at the home by herself, the victim was surprised to find Wright inside the home when she arrived home from work. Wright then held the victim in the home against her will, armed himself with a knife, threatened to kill himself as well as the victim, and refused to let the victim use the phone. Eventually, the victim’s friends arrived and contacted the police. The police forcibly entered the home and arrested Wright.

The State filed two notices of intent to use evidence of other crimes, but only one is relevant here. Specifically, the State sought to admit evidence of prior acts of domestic violence committed by Wright against the victim. Wright filed an objection to the State’s notices, and a hearing was conducted.

At the hearing, the victim testified in detail about the prior acts of domestic violence as well as threats Wright made against her on prior occasions. The victim also testified about an incident in which she and Wright were arguing in the car and Wright refused to let her out of the car for several hours.

On November 8, 2010, the trial court issued its order denying the admission of the other crimes evidence. With respect to the victim’s testimony, the trial court ruled that it failed to meet the requirements of section 90.404(2) because it was relevant “solely to prove bad character evidence or propensity.”

II. ANALYSIS

A trial court’s order excluding evidence is reviewable by common law certio-rari. See State v. Pettis, 520 So.2d 250, 253 (Fla.1988); State v. Smith, 586 So.2d 1237, 1238 n. 3 (Fla. 2d DCA 1991). Orders which prevent the State from effectively prosecuting its case demonstrate irreparable harm, see Pettis, 520 So.2d at 253, but in order to obtain relief, the State must also prove that the trial court departed from the essential requirements of the law, State v. Gillespie, 227 So.2d 550, 552 (Fla. 2d DCA 1969).

Section 90.404(2)(a) provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

However,

“[ejvidence of ‘other crimes’ is not limited to other crimes with similar facts. So-called similar fact crimes are merely a special application of the general rule that all relevant evidence is admissible unless specifically excluded by a rule of evidence. The requirement that similar fact crimes contain similar facts to the charged crime is based on the requirement to show relevancy. This does not bar the introduction of evidence of other crimes which are factually dissimilar to the charged crime if the evidence of other crimes is relevant.”

Sexton v. State, 697 So.2d 833, 836-37 (Fla.1997) (quoting Bryan v. State, 533 So.2d 744, 746 (Fla.1988)). Thus “if evidence of a defendant’s collateral bad acts bears no logical resemblance to the crime for which the defendant is being tried, then section 90.404(2)(a) does not apply and the general rule [of relevancy] in section 90.402[] controls.” Id. at 837.

In Dennis v. State, 817 So.2d 741 (Fla.2002), the Florida Supreme Court was asked to determine whether a trial court erred by admitting collateral crime evidence that Dennis previously stalked, threatened, and assaulted the woman whom he eventually murdered. In affirming the admission of the evidence, the court cited Sexton and held that “the nature of Dennis’s relationship with the victim was relevant to establish Dennis’s motive.” Id. at 762.

Applying Dennis to the facts of this case, we believe that the evidence of Wright’s prior acts of domestic violence and threats is relevant to the issues of motive and intent. Although the prior acts may not bear a striking similarity to the charged offense of armed kidnapping so as to be admissible pursuant to section 90.404(2)(a), they are generally relevant pursuant to section 90.402.

We recognize that relevancy is not the only issue in determining whether to admit evidence of prior acts. Rather, the trial court must also consider whether the probative value outweighs the danger of unfair prejudice, confusion of the issues, or misleading the jury. See § 90.403; Sexton, 697 So.2d at 837. And while it is true that the evidence of Wright’s prior acts of domestic violence and threats would be prejudicial, see State v. Gad, 27 So.3d 768, 770 (Fla. 2d DCA 2010) (noting that relevant evidence is inherently prejudicial but that only unfairly prejudicial evidence should be excluded), it is also true that without this evidence, the jury might not understand what motive or intent Wright had in kidnapping the victim, see Sexton, 697 So.2d at 837 (discussing probative value versus prejudicial effect and determining that if trial court had excluded evidence about the victim’s having knowledge of Sexton’s activities, “the jury would not have understood why Sexton perceived [the victim] as a threat” and wanted the victim killed). Accordingly, we believe that under the facts of this case, the probative value of the evidence outweighs the prejudicial effect.

We therefore hold that the trial court departed from the essential requirements of the law when it applied section 90.404(2)(a) to bar the victim’s testimony in this case.

Certiorari granted; order quashed.

DAVIS and KHOUZAM, JJ„ Concur.

      . As the State is seeking certiorari review of a pretrial order excluding evidence, the facts have not yet been proven. After the trial court denied the State’s motion to introduce evidence of other crimes, the State filed a motion to toll the proceedings in the trial court pending this certiorari proceeding.

      . This evidentiary rule is also known as the "Williams rule.” See Williams v. State, 621 So.2d 413, 414-15 (Fla.1993).

      . Section 90.402 provides that “[a]ll relevant evidence is admissible, except as provided by law.”


author: CIKLIN, J.

text:
    FIDELITY WARRANTY SERVICES, INC., a Florida corporation; and Jim Moran & Associates, Inc., a Florida corporation, Appellants, v. FIRSTATE INSURANCE HOLDINGS, INC., Firstate Insurance by Eldridge, Firstate Insurance Company PR, Inc., Charles Eldridge and Renee Eldridge, Appellees.
    No. 4D09-2411.
    District Court of Appeal of Florida, Fourth District.
    Oct. 5, 2011.
    Rehearing Denied Dec. 16, 2011.

      Kannon K. Shanmugam of Williams & Connolly LLP, Washington, DC, and Nancy A. Copperthwaite of Akerman Senter-fitt, Miami, for appellants.
    James L. Pruden of James L. Pruden, P.A., Boca Raton, and James M. Williams of Gauthier, Houghtaling & Williams, LLP, Metairie, Louisiana, for appellees.
   CIKLIN, J.

This appeal arises from a complex commercial case involving a failed business relationship between Fidelity Warranty Services, Inc. and Jim Moran & Associates, Inc. (collectively referred to as “JMA”), on the one hand, and Firstate Insurance Holdings, Inc., Firstate Insurance by Eldridge, Inc., Firstate Insurance Company of Puerto Rico, Inc., Charles El-dridge, and Rene Eldridge (collectively referred to as “Firstate”) on the other hand. After a four-week trial, a jury returned a verdict in Firstate’s favor on its counterclaims for tortious interference and defamation and found that Firstate was entitled to a combined $6,750,000 on these two counts. The jury rejected all other claims and counterclaims.

JMA now raises four issues on appeal: (1) that the trial court erred in permitting Charles Eldridge (a co-owner of Firstate and party to this suit) to testify regarding the “market value” of his insurance agency; (2) that its motion for a directed verdict on Firstate’s counterclaim for defamation should have been granted because Firstate failed to prove any actionable defamatory statements made by JMA; (3) that its motion for a directed verdict on Firstate’s tortious interference claim should have been granted because Firstate failed to show any improper conduct by JMA; and (4) that it is entitled to a new trial on its contractual claims because the trial court erred in permitting parol evidence with regard to the parties’ written agreement. Firstate has cross-appealed arguing that it is entitled to prejudgment interest on its tortious interference damages award.

We find that JMA’s fourth contention lacks merit and affirm the trial court’s judgment on all of JMA’s contract claims. We agree with JMA, however, that Firs-tate failed to present proof at trial on the correct measure of damages for its tor-tious interference claim and that Firstate failed to present evidence of any actionable statements attributable to JMA on its defamation claim. We therefore reverse and remand with directions to the trial court to enter a final judgment in favor of JMA on Firstate’s defamation and tortious interference claims. We affirm the final judgment as to all other counts. This disposition makes it unnecessary for us to address JMA’s third contention or to address Firs-tate’s cross-appeal regarding its entitlement to prejudgment interest.

Background

In May 2001, JMA and Firstate entered into an Administrative Agreement (the “Agreement”) under which Firstate would market and sell JMA’s automotive extended warranty service contracts in Puerto Rico. Under the Agreement, JMA was responsible for processing any claims on the service contracts should a customer’s automobile need a covered repair, and JMA bore the sole risk of loss should the repair costs exceed the paid premiums. Firstate had responsibility for both marketing the program to dealers and finding banks to finance the purchase of the contracts. Contract payments were to be made directly to Firstate which in turn was responsible for making a remittance payment to JMA. Finally, the agreement permitted either party to terminate the contract for any reason upon ninety days’ written notice, or, in the case of a “material ] breach,” upon immediate written notice.

Soon thereafter, a dispute arose between the parties regarding when Firstate was required to make payments to JMA. Firs-tate contended that payments were not due until after the banks funded the contracts which could take up to sixty days in Puerto Rico (as opposed to the United States where contracts were usually funded within days). JMA claimed that Firs-tate’s payments to it were due within fifteen days after the end of the month in which the sales were reported regardless of when the contract was actually funded. As a result of this dispute, JMA’s books showed a growing accounts receivable due from Firstate.

By about March 2003, JMA alleged that Firstate’s debt to it had grown to over $600,000. As a result, JMA threatened to cancel the Agreement if Firstate did not agree to amended terms. In May 2003, the parties entered into a fourth amendment to the Agreement and Firstate signed a promissory note showing that it owed $537,169 to JMA. Under the amended agreement, dealers and banks would make all checks directly payable to JMA, and Firstate would hold all proceeds “in a fiduciary capacity for JMA” until it deposited them into JMA’s account. The amended agreement also permitted JMA to apply Firstate’s share of the proceeds to reduce the note balance and to send to Firstate the amounts owed for dealer commissions, which Firstate was obligated to pay to the dealers within forty-eight hours of receipt.

The relationship after entering into this amended agreement deteriorated further, and on October 27, 2003, JMA notified Firstate that it was terminating the Agreement, effective immediately, alleging that Firstate had materially breached the Agreement. The parties’ theories as to what happened that led up to JMA terminating the Agreement vastly differed. JMA contended that Firstate continued to fall behind on its payments, failed to report that it still received checks made directly to Firstate, diverted funds into its own account, and failed to disburse dealer commissions within forty-eight hours. Firstate, on the other hand, alleged that JMA had devised a scheme to seize control over Firstate’s program by essentially cutting out Firstate as the middleman. Firs-tate alleged that JMA’s complaints regarding Firstate’s untimely payments were part of the scheme to give JMA the opportunity to cancel the contract without giving Firstate the ninety days’ notice as required by the Agreement.

In December 2003, JMA filed suit against Firstate alleging that Firstate had diverted funds contractually owed to JMA. JMA asserted claims for breach of contract, breach of a promissory note, breach of fiduciary duty, conversion, and open account. Firstate filed a counterclaim asserting claims for breach of contract, tor-tious interference with business relations, fraud in the inducement, civil theft, deceptive and unfair trade practices, defamation, infringement of trade name, and breach of fiduciary duty. JMA filed multiple motions for summary judgment which were denied — except for a motion to limit Firs-tate’s damages on its breach-of-contract counterclaim to ninety days’ worth of commissions.

The case was tried before a jury beginning in late October 2008. The trial lasted about four weeks. Several issues arose during the course of the trial which are at issue in this appeal.

As to its counterclaim, Firstate sought to establish damages through its proposed expert, Ronald Patella, on the theory that JMA’s immediate termination without ninety days’ notice, and other alleged bad acts, had destroyed Firstate’s business. After JMA moved to exclude Patella’s testimony, Patella gave a proffer that, under the “income approach” to business valuation, Firstate had been worth $9,124,787 as of October 27, 2003 — the date that JMA terminated the Agreement. That figure, however, was based on a projection of lost profits for five years into the future. Because JMA possessed the right to terminate for any reason with ninety days’ notice, the trial court agreed that any future income more than ninety days out was too speculative and excluded Patella’s testimony. Firstate then requested a short recess to determine if its expert could testify as to the value of Firstate’s business based on either an asset value or market value analysis. JMA argued that permitting the expert to change his opinion midstream would be highly prejudicial.

After a break, however, counsel returned and announced that Firstate’s intention had “always” been to establish “business destruction” damages through a “market value analysis” offered by Charles Eldridge (the co-owner of the insurance agency). JMA objected that this theory of damages was an entirely new one and that JMA would be unfairly prejudiced if the trial court permitted Firstate to change its damages analysis in the middle of trial. Reasoning that the owner of property can always testify to what he or she believes the value of the property to be, the trial court permitted Eldridge to testify, subject to Firstate’s making Eldridge available for a mid-afternoon deposition.

After having deposed Eldridge, JMA renewed its objections to his testifying. JMA argued that if Eldridge were permitted to testify, JMA would need to delay the trial for a little more than one week to prepare its own expert rebuttal. The trial court determined that it would resolve this issue by refusing to permit “any expert testimony at all with respect to this new proposed theory.” Eldridge was then permitted to testify.

After explaining that he had thirty years’ experience as an insurance agent, Eldridge testified that the “market value” of an insurance agency is determined by multiplying the previous year’s gross commissions by a multiplier somewhere between one and three. Eldridge then proceeded to review an unaudited financial statement covering the previous six months of Firstate’s business in Puerto Rico, “annualized” the commissions by doubling the value reported in the financial statement, and then tripled the annualized figure, resulting in an estimated net worth of $6,579,006. Eldridge justified his application of a triple multiplier on the ground that Firstate was a “niche” agency. El-dridge further testified that he had bought and sold insurance agencies more than ten times and had used this valuation methodology in those transactions.

With regard to Firstate’s defamation claim, Firstate read into evidence from the deposition transcript of one dealer representative concerning a single allegedly defamatory statement. That representative, Joseph Aixala of San Juan Suzuki, testified that, when he asked Juan Gonzalez, a JMA salesman, about the outstanding commissions that were owed to the dealership, Gonzalez claimed that “[JMA] ha[d] paid Firstate and Firstate was using fraudulent rates and there was a problem with the rates.” Gonzalez then explained that, whereas Suzuki’s vehicles were “class two” automobiles, Firstate had erroneously classified them as “class one,” resulting in an improperly low contract price. Aixala acknowledged that he understood the “fraudulent rates” statement to refer to a business dispute relating to rate classification — and he subsequently demanded that both parties resolve their disagreement and make payment to his dealership. Aix-ala also testified that, while he subsequently decided to stop doing business with Firstate, that decision had nothing to do with the “fraudulent rates” statement.

At the end of the parties’ cases-in-chief and Firstate’s defense, JMA moved for a directed verdict on each count of Firstate’s counterclaim. The trial court granted a directed verdict on the counts for fraudulent inducement, civil theft, deceptive and unfair trade practices, and infringement of trade name. The trial court ultimately denied JMA’s motion for directed verdict as to defamation and tortious interference.

The jury rejected all of JMA’s claims. The jury also rejected Firstate’s counterclaims for breach of contract and breach of fiduciary duty, but it awarded Firstate $3.25 million for tortious interference and $2.5 million for defamation (consisting of $1.5 million in general damages and $1 million in punitive damages). The trial court denied JMA’s post-trial motions for relief, including a motion for judgment in accordance with its earlier directed-verdict motions.

Prior to the trial court entering a final judgment, Firstate filed a motion to tax prejudgment interest which the trial court denied. Subsequently, the trial court entered a final judgment based on the jury verdict. JMA filed a timely notice of appeal and Firstate filed a cross-appeal. This appeal follows.

Market Value of Firstate

JMA argues that the trial court erred in allowing Eldridge, one of Firs-tate’s owners, to testify to the market value of his company as of October 27, 2003— the date that JMA terminated the Agreement. JMA contends that Firstate “ambushed” JMA by asking the trial court mid-trial to permit Eldridge’s undisclosed testimony regarding his opinion as to the value of Firstate. Furthermore, JMA also contends that Eldridge’s testimony should have been excluded because it was based on speculation and conjecture. We agree that in this case Eldridge was testifying as an expert witness, and that his testimony should have been excluded both because Firstate had failed to properly disclose it during pretrial discovery and because it was too speculative.

The trial court ruled that it would permit Eldridge to testify to his opinion as to what his property was worth, but that it would not permit any “expert” to testify on the issue:

THE COURT: I am not going to permit any expert testimony at all with respect to this new proposed theory, so [Firstate’s expert] will not testify on it. However, as an owner, I will permit the testimony that he believes, Mr. Eldridge believes that his agency was worth X on the theory an owner can always express an opinion as to what they believe the value of the property is. So I will permit Mr. Eldridge to testify as to what he thinks his business was worth. An owner can basically testify.

The error in the trial court’s analysis was that Eldridge’s testimony was more than just that of an “owner” testifying to the value of his property. See Trailer Ranch, Inc. v. Levine, 523 So.2d 629, 632 (Fla. 4th DCA 1988) (“An owner may ordinarily testify as to the value of property owned.”). The Florida Evidence Code provides that a lay witness cannot offer opinion testimony when, among other limitations, the opinion requires “a special knowledge, skill, experience, or training.” See § 90.701(2), Fla. Stat. (2008). Otherwise, a witness can only give opinion testimony if the witness is “qualified as an expert by knowledge, skill, experience, training, or education.” See § 90.702, Fla. Stat. (2008).

Here, Eldridge’s testimony turned into “expert” testimony when he claimed to have specialized knowledge regarding the proper mathematical formula which should be used to calculate the market value of a niche insurance agency in Puerto Rico. He further testified that he acquired this knowledge through thirty years’ experience as an agent in the insurance industry and that he had bought and sold insurance agencies more than ten times in the past using the same valuation methodology.

Thus, Mr. Eldridge was testifying not to just having knowledge of the value of his own property, but also to having specialized knowledge of the insurance agency market in Puerto Rico acquired through his experience in the industry. This is the very essence of expert testimony.

We have consistently held that surprise, changed, or undisclosed expert testimony may result in prejudice sufficient to require a new trial. See, e.g., Belmont v. N. Broward Hosp. Dist., 727 So.2d 992, 994 (Fla. 4th DCA 1999) (reversing judgment and remanding for new trial where defendant doctors surprised and prejudiced plaintiff by altering their previous testimony in the middle of trial); Office Depot, Inc. v. Miller, 584 So.2d 587, 590-91 (Fla. 4th DCA 1991) (affirming order granting new trial on basis of surprise where, during trial, expert witness “recanted” his opinion given during discovery). We believe that the same rules apply where an owner of property is testifying to the value of that property based not just on his or her familiarity with the property, but also on his or her specialized knowledge. Otherwise, a party could circumvent the discovery and disclosure rules aimed to protect parties from “trial by ambush.”

In Belmont, we reversed and found that the trial court erred in permitting two defendant physicians to change them opinions midstream during the trial. 727 So.2d at 994. This court wrote, “We are not impressed with defendant’s argument that [the physicians] were parties, not expert witnesses, and that this was factual, not opinion, testimony. The issue of the condition of the aorta was clearly opinion evidence.” Id. Likewise, here Eldridge’s status as party to this lawsuit does not change the prejudice that resulted from Firstate’s failure to disclose in pretrial discovery the nature of his testimony. Also, as in Belmont, Eldridge’s testimony was clearly opinion evidence.

The trial court attempted to cure any prejudice to JMA by allowing JMA to first conduct a mid-trial deposition of Eldridge to question him on his previously undisclosed theory as to the market value of Firstate on the date that JMA terminated the Agreement. However, the mid-trial deposition here was insufficient to cure the prejudice because the only way JMA could have countered the testimony was through its own expert testimony. See, e.g., Grau v. Branham, 626 So.2d 1059, 1061 (Fla. 4th DCA 1993) (“[Wjhile the depositions of the experts regarding their mid-trial examinations allowed the defendants to know what they would testify when asked in trial, they did not allow the defendants to counter such testimony with sufficient expert testimony of their own”).

Thus, while it would have been within the trial court’s discretion to completely exclude Eldridge’s testimony, the trial court erred in denying JMA the opportunity to present its own expert testimony in rebuttal once it decided to allow Eldridge to testify. See id. In this case, JMA specifically asked for time to consult with an expert witness and possibly offer rebuttal testimony through the same expert witness. The trial court denied this request, apparently believing that the mid-trial deposition of Eldridge and preventing Firs-tate from presenting other expert testimony in support of Eldridge’s theory was sufficient to cure the prejudice.

Generally, after finding that a trial court erroneously failed to cure the prejudice caused by surprise, changed or undisclosed expert testimony, we would reverse and remand for a new trial. See, e.g., Dep’t of Health and Rehabilitative Servs. v. J.B., 675 So.2d 241, 244 (Fla. 4th DCA 1996). In this case, however, El-dridge’s testimony, even if it had been properly disclosed, should have been excluded because it was based on speculation and conjecture. See M.A. Hajianpour, M.D., P.A. v. Khosrow Maleki, P.A., 932 So.2d 459, 464 (Fla. 4th DCA 2006) (“When the expert’s opinion is based on speculation and conjecture, not supported by the facts, or not arrived at by recognized methodology, the testimony will be stricken.”).

At trial, Firstate claimed that its business was completely destroyed as a result of JMA’s tortious interference with Firstate’s business relationships with dealerships and banks in Puerto Rico. “If a business is completely destroyed, the proper total measure of damages is the market value of the business on the date of the loss.” Montage Grp., Ltd. v. Athle-Tech Computer Sys., Inc., 889 So.2d 180, 193 (Fla. 2d DCA 2004) (citing Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983)).

To prove the market value of Firstate’s business on the date of loss, Firstate proffered the testimony of its properly disclosed expert witness, Patella, who claimed that under the income-based approach to business valuation, Firstate had been worth $9,124,787 as of October 27, 2003. To calculate that figure, however, Patella used projected lost profits for five years into the future. Because JMA possessed the right to terminate for any reason with ninety days’ notice, the trial court agreed with JMA that any future income more than ninety days out was too speculative and excluded Patella’s testimony.

The trial court indicated that it would consider Patella’s testimony if he could base his valuation on either an asset-based approach or a market-based approach. After a break, Firstate argued that instead of asking Patella to analyze the business value of its insurance agency on the date of loss, it was going to have Eldridge (one of its co-owners) testify to the agency’s business value using a market-based approach. After a mid-trial deposition and proffer of Eldridge’s testimony, the trial court permitted Eldridge to testify that the market value of insurance agencies is determined by multiplying the previous year’s gross commissions by a multiplier. Eldridge testified that he had “recently” purchased an insurance agency in Puerto Rico using this methodology and a multiplier of two. Eldridge claimed that a higher multiplier (three) should be used in this case because Firstate was a “niche” agency. Eldridge then took Firstate’s gross commissions from the previous six months and doubled it to get an annualized value. He multiplied these annualized commissions by three to get a market value of $6,579,006.

Eldridge’s valuation methodology suffered from the same defects as Patella’s income-based valuation. “It is as inappropriate to use purely speculative forecasts of future revenue to determine the market value of a business as it is to use such speculative forecasts in determining lost future profits.” Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 921 So.2d 43, 46 (Fla. 3d DCA 2006); see also Parc Royale E. Dev., Inc. v. U.S. Project Mgmt., Inc., 38 So.3d 865, 869 (Fla. 4th DCA 2010) (finding that trial court erred “by allowing the expert to testify to damages based upon a faulty factual foundation that the trial court had already declared to be inadmissible”). As such, the trial court erred by allowing Eldridge’s market-value testimony and by denying JMA’s motion for a directed verdict on its tortious interference claim because of Firstate’s failure to prove any damages.

In sum, Firstate failed to meet its burden of proving the market value of its insurance agency on October 27, 2003 as it was required to do to support its claim that JMA’s tortious conduct resulted in the complete destruction of its business. Because there was no proof presented at trial on the correct measure of damages, the trial court should have granted JMA’s motion for directed verdict on the tortious interference counterclaim. See Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So.2d 1124, 1131 (Fla. 4th DCA 2007); M.A. Hajianpour, M.D., P.A., 932 So.2d at 464; Teca, Inc. v. WM-TAB, Inc., 726 So.2d 828, 830 (Fla. 4th DCA 1999) (en banc) (holding that a plaintiff is not entitled to “a second bite at the apple when there has been no proof at trial concerning the correct measure of damages”). We therefore reverse the final judgment for tortious interference and remand for entry of a judgment for JMA on this count.

Defamation

JMA claims that Firstate’s counterclaim for defamation was based on a single statement, namely, that Firstate was charging “fraudulent rates,” made by a JMA salesman to a representative from a car dealership. JMA argues that when read in context, this statement constituted pure opinion because the JMA salesman immediately divulged the underlying facts, the dealer representative acknowledged that he interpreted the statement to mean there was a contract dispute between JMA and Firstate (as opposed to an allegation of criminal conduct), and the dealer representative also testified that the comment did not influence him in any way. We agree.

The standard for reviewing a trial court’s ruling on a motion for directed verdict is de novo. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). “[A]n appellate court must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party.” Id.

A party cannot recover for defamation based on statements which are pure opinion. See Morse v. Ripken, 707 So.2d 921, 922 (Fla. 4th DCA 1998). “To determine whether a statement is actionable, the court must examine it in the context in which it was published.” Id. This means that the court should “consider all of the circumstances surrounding the statement, including the medium by which the statement is disseminated and the audience to which it is published.” Id. Furthermore, a “statement is pure opinion, as a matter of law, when it is based on facts which are otherwise known or available to the reader or listener.” Razner v. Wellington Reg’l Med. Ctr., Inc., 837 So.2d 437, 442 (Fla. 4th DCA 2002).

Here, read in its full context, the statement which Aixala, the Suzuki dealer, testified that the JMA sales representatives had made to him, clearly constituted an opinion. First, Aixala testified that the JMA sales representatives explained to him the underlying facts to their claim that “Firstate was using fraudulent rates”:

Question: And did they indicate what the fraudulent rates were, what they were or what that was about?
Answer: They claimed that Suzuki was a class two automobile and Firstate has classified it as a class one.

During the same deposition, in response to Firstate’s counsel’s question as to whether the allegation that Firstate was charging fraudulent rates was one of the reasons that the Suzuki dealership decided to work directly with JMA instead of Firs-tate, Aixala responded: “No. I figured that Firstate and JM & A were having some differences and it would be a matter of time.”

Thus, considering that the statement in this case was “published” to an audience of one, that the underlying facts were explained to that party, that the recipient of the message indicated that he interpreted the statement as nothing more than a contractual business dispute between Firstate and JMA, and that there was no evidence presented that Aixala ever repeated this statement to anyone else, we find that the JMA’s statement that Firstate was charging fraudulent rates was pure opinion and therefore not actionable. As such, the trial court erred in not granting JMA’s motion for a directed verdict on Firstate’s defamation claim.

On appeal, Firstate now alleges that the following testimony from one of its officers also supported its defamation counterclaim against JMA:

Well, one of the [automobile] dealers ... told our customer service rep when we went there, oh, Chuck [Eldridge] must be in big trouble for stealing half a million dollars, or for taking all that money. And our corporate rep said, you know, what are you talking about. And he said, oh, no, like — how could he have found out, or got this information, or the idea that Firstate and Chuck had stolen — and Chuck in particular — had stolen all this money, after the JM & A people went there and visited them?

Aside from the clear hearsay problems with this statement, the officer’s testimony is insufficient to support defamation because it contains no proof that JMA ever made a statement to anyone. Inferring from this testimony alone that JMA had originally made a defamatory statement to the dealer would be pure conjecture and speculation. See Stanley v. Marceaux, 991 So.2d 938, 940 (Fla. 4th DCA 2008) (“The rule that an inference may not be stacked on another inference is designed to protect litigants from verdicts based upon conjecture and speculation.”).

Conclusion

In summary, we find that the trial court erred in denying JMA’s motion for directed verdict on Firstate’s counterclaim for tortious interference and defamation. We reverse those portions of the trial court’s order awarding damages to Firstate on its tortious interference and defamation counts and remand with instructions to the trial court to direct a verdict for JMA on those counts. This disposition renders Firstate’s cross-appeal on the issue of prejudgment interest moot. We affirm the judgment as to all other counts.

Affirmed in part, reversed in part, and remanded with instructions.

GROSS and HAZOURI, JJ., concur.

      . The extended service warranty contracts were described by the parties as an insurance product that provides coverage for automotive service and repair upon expiration of a vehicle’s factory warranty.

      . Firstate also included a claim for civil conspiracy to commit tortious interference, but the trial court entered a stipulated order granting judgment to JMA on this claim before trial.

      . We folly appreciate the difficult situation that the trial court faced. The trial court was likely concerned that it would be error to prevent Eldridge from testifying as to the value of his own business. The trial court also apparently recognized the prejudice to JMA as Firstate was attempting to use this undisclosed testimony to circumvent objections that JMA would make if Firstate had its disclosed expert change his theory of valuation mid-trial. The trial had already been ongoing for three weeks when this issue arose, and JMA had indicated that it would need to delay the end of the trial by at least one week to prepare its own expert rebuttal. The trial court likely believed that such a delay would cause a substantial disruption in the orderly and efficient trial of the case. We believe, however, that had the trial court recognized that Eldridge was effectively testifying as an expert, it would have excluded Eldridge’s testimony. See Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981) ("Other factors which may enter into the trial court’s exercise of discretion are: (i) the objecting party’s ability to cure the prejudice ...; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases).”).

      . As Eldridge’s testimony regarding the market value of Firstate’s insurance agency in Puerto Rico was only relevant in determining the amount of damages (as opposed to liability), we would have remanded for a new trial on damages only. See J.B., 675 So.2d at 244 ("Since the basis of this court’s reversal was testimony affecting damages, we remand for a retrial on damages only.”).

      . Florida courts have recognized three valuation methods for determining the value of a business. See Sys. Components Corp. v. Fla. Dep't of Transp., 14 So.3d 967, 979-80 (Fla.2009). First, the income-based approach values the business based on the predicted current and future revenue streams discounted to a total present value. Id. at 980. A market-based approach values the business based on a comparison to comparable businesses existing in the particular market adjusted for the individual characteristics and risks associated with the specific business. Id. Third, an asset-based approach values the business based on its total assets minus its total liabilities and is typically used when the business is not profitable. Id.

      . Although Eldridge claimed to be using the previous year’s commissions rather than future profits to value the company, the previous year’s commissions in Eldridge’s calculation were being used as a predictor of future profit. As such, Eldridge’s methodology was at its core the same income-based methodology that the trial court had already found to be too speculative. We note that for Eldridge to use a "market-based” approach, he would have had to compare Firstate's value to that of other insurance agencies in Puerto Rico and adjust for the individual characteristics and risks associated with each business. We would expect this to include an analysis of any risk associated with all of its commissions coming from a single insurer with which the agency had a troubled relationship and where the agreement with that insurer was terminable-at-will with ninety days’ notice.


author: CONNER, J.

text:
    LOWER FEES, INC., Appellant, v. BANKRATE, INC. and Thomas Evans, Appellees.
    No. 4D10-1695.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.
    Rehearing Denied Dec. 8, 2011.
    Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, and David B. Rosemberg of Broad and Cassel, Miami, for appellant.
    Jack J. Aiello and John F. Mariani of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellees.
   CONNER, J.

Lower Fees, Inc. (“Lower Fees”) appeals the dismissal of its third amended complaint with prejudice. The issue presented by this appeal is whether a “no-reliance” clause in a purchase contract precludes a claim of fraud in the inducement as grounds for rescinding the contract. Although Appellee, Bankrate, Inc. (“Bank-rate”), contends the issue is a matter of first impression in Florida, we determine that our supreme court has already spoken on the issue and reversal is required.

Lower Fees is a corporation that provided comprehensive closing cost information to consumers and real estate and mortgage professionals, as well as a unique listing service for real estate service providers. As part of its business, Lower Fees created an internet-based system called the “Lower Fees System” and sold memberships in the system to real estate service providers. The Lower Fees System was designed using a group of four software systems and programming languages collectively called “LAMP”.

Bankrate entered into an asset purchase agreement with Lower Fees to purchase the Lower Fees System and other assets. In addition to a cash payment and assumption of certain liabilities, Bankrate hired Lower Fees’s president and promised to pay Lower Fees a portion of the net revenue from membership sales in the Lower Fees System over a five-year period. The parties contemplated that the Lower Fees System would be integrated and merged into the main computer operating system maintained by Bankrate. The asset purchase agreement was forty-seven pages in length with seventy-six pages of attachments and related agreements. The largest section of the agreement contained more than two hundred representations upon which the parties relied. Both parties consider themselves “sophisticated” business entities, and both were represented by skilled attorneys in negotiating and preparing the agreement.

At issue in this case is the effect of Section 7.17 of the asset purchase agreement, titled “Entire Agreement” but referred' to by the parties as the “no-reliance clause,” which states:

This Agreement and the Ancillary Agreements constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter of this Agreement. No representation, inducement, promise, understanding, condition, or warranty not set forth in this Agreement has been made or relied upon by the Parties. None of the provisions of this Agreement and the Ancillary Agreements is intended to confer upon any Person other than the Parties to this Agreement any rights or remedies under the Terms of this Agreement.

(emphasis added). Lower Fees contends the emphasized language is nothing more than a “merger and integration” clause; Bankrate contends the emphasized language is much more.

During negotiations and prior to entering into the asset purchase agreement, Lower Fees became concerned about Bankrate’s experience with LAMP technology and Bankrate’s ability to develop and operate the LAMP-based Lower Fees System. A conference call was arranged between Lower Fees’s chief executive officer and Bankrate’s chief technology officer and senior software engineers so that Lower Fees could determine whether Bankrate had the experience and expertise with LAMP technology to successfully operate and integrate the Lower Fees System. Bankrate’s chief technology officer told Lower Fees’s chief executive officer that Bankrate had extensive experience with LAMP-based systems and Bankrate’s technology department was trained in and highly skilled in working on LAMP-based systems.

After completing the purchase, Bank-rate’s chief executive officer admitted to Lower Fees’s former president that Bank-rate did not have any personnel capable of using LAMP technology and therefore memberships in the Lower Fees System could not be sold. When Bankrate tried to merge the Lower Fees System into its own non-LAMP based platform, the Lower Fees System was destroyed.

Lower Fees filed suit against Bankrate and its chief executive officer. After amending its complaint several times, Lower Fees ultimately sought rescission of the asset purchase agreement on the grounds that Bankrate fraudulently induced Lower Fees to enter into the agreement by its representations that Bankrate had the expertise to operate its LAMP-based Lower Fees System. Bankrate moved to dismiss the third amended complaint on several grounds, one of which was that a “no-reliance clause” in the contract precluded rescission. The trial court granted the motion to dismiss with prejudice, holding the “no-reliance clause” of the asset purchase agreement barred the fraudulent inducement claim.

Appellate review of a trial court decision granting a motion to dismiss is de novo. Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009).

Lower Fees argues that Section 7.17 of the asset purchase agreement does not bar its claim for rescission based on fraudulent inducement because (1) the asset purchase agreement in its entirety was procured by fraud; (2) the claimed misrepresentations do not concern the subject matter of the agreement; (3) the claimed misrepresentations are not expressly contradicted by the agreement; and (4) the “no-reliance clause” does not specifically bar fraud claims. Most of the Florida case law upon which Lower Fees relies in support of its arguments deals with what are commonly referred to as “merger and integration” clauses. However, in support of its last argument, Lower Fees relies on a supreme court case we find controlling. Although Bankrate contends the contract provision at issue is a “no-reliance” clause and there are no Florida cases addressing a “no-reliance” clause, our supreme court has declared one can avoid a fraudulent inducement claim only by contract language which specifically and explicitly negates the right to bring such a claim.

As early as 1941, our supreme court held in Oceanic Villas, Inc. v. Godson, 148 Fla. 454, 4 So.2d 689 (1941), that a fraudulent inducement claim cannot be defeated by a contractual agreement unless the contract specifically states a fraud claim is not sufficient to negate the contract. In Oceanic Villas, a lessee sought rescission of a 99-year lease on grounds the lessor induced the lessee to execute the lease by misrepresenting the gross earnings of the property. The lease contained a provision stating “no verbal agreements, stipulations, representations, exceptions or conditions whatsoever have been made or entered into in regard to the above described property which will in any way vary, contradict or impair the validity of this lease, or of any of the terms and conditions herein contained.” Id. at 690. The court held that the clause did not bar the fraudulent inducement claim because

[i]f the lease was procured by fraud and misrepresentation as to a material fact, the truth or falsity of which was known only to the lessor (and it is so alleged in the bill of complaint), and which misrepresentations, if proved, would be sufficient basis for a decree of rescission, then such fraudulent misrepresentation vitiated every part of the lease contract and the Lessee was not bound by the above quoted clause.

Id. Further, the court stated that interpreting the clause to hold that the lessee is bound by the fraud of the lessor “would be against the fundamental principles of law, equity, good morals, public policy and fair dealing.” The court went on to say:

We recognize the rule to be that fraud in the procurement of a contract is ground for rescission and cancellation of any contract unless for consideration or expediency the parties agree that the contract ... may be made incontestable on account of fraud, or for any other reason.

Id. (citations omitted). The court also interpreted the clause to be a “stipulation” that no fraud had been committed and not a provision to make the contract incontestable because of fraud.

Bankrate cites numerous authorities from other jurisdictions in an attempt to persuade us there is a distinction between a “merger and integration” clause and a “no-reliance” clause, and we should follow the precedents of other jurisdictions that a “no-reliance” clause precludes rescission based on fraud in the inducement. However, we conclude our supreme court has spoken clearly that no contract provision can preclude rescission on the basis of fraud in the inducement unless the contract provision explicitly states that fraud is not a ground for rescission.

The facts of this case rather strongly suggest that there is some logic to the argument that allowing Lower Fees to proceed with its suit condones a fraud. When one-third of a lengthy written contract is a listing of over two hundred representations the parties relied upon in entering the contract and there is an explicit provision that “No representation, inducement, promise, understanding, condition, or warranty not set forth in this Agreement has been made or relied upon by the PaHies,” one can forcefully argue the party who seeks to use a representation that is not made in the contract as grounds to rescind the contract stated a lie when signing the contract. However, there is a countervailing logic to the position taken by our supreme court: the lies one tells to get a contract signed trumps the lie one tells when signing the contract itself.

It may also appear troublesome that if Lower Fees felt it so important for Bank-rate to be knowledgeable and skilled in LAMP technology, a representation that Bankrate had such knowledge and skill could have easily been added to the list of over two hundred representations relied upon by the parties. Moreover, the asset purchase agreement could have easily specified that Bankrate had made no representations that it had expertise with LAMP-based systems or that Bankrate had made no guarantees that it would successfully integrate and operate the Lower Fees System. Such specific statements would have placed Lower Fees on notice whether it could or could not rely on the Bankrate chief technology officer’s assurances to Lower Fees that Bankrate’s technology staff could handle the operation of the Lower Fees System. A generic disclaimer is not sufficient to do that. It has been the law of this state for some time that a claim of fraud in the inducement will not be defeated by contract clauses. If Bankrate wanted to contractually avoid a fraud claim, it should have specifically stated that in the contract it signed.

For the reasons stated, we reverse and remand the case for further proceedings.

MAY, C.J., and TUTER, JACK B., JR., Associate Judge, concur.

      . The representations were divided into two separate sections, one for each party. Pages 18-33 of the agreement listed the representations and warranties by Lower Fees, followed by two pages of representations and warranties by Bankrate.

      . The supreme court stated, “We think there is clearly a distinction in the effect of a stipulation of a contract which recognizes that fraud may have been committed and stipulates that such fraud, if found to have been committed, should not vitiate the contract, and one in which the parties merely stipulate that no fraud has been committed and that neither party has relied upon the representations of the other party made prior to the execution of the contract." Id. at 691.