author: MORRIS, Judge.

text:
    James GARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4109.
    District Court of Appeal of Florida, Second District.
    June 17, 2011.

      James Garrett, pro se.
   MORRIS, Judge.

James Garrett appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of his motion except for his claim that counsel was ineffective for failing to investigate and call a witness at trial.

Garrett was charged in 2007 with sexual battery on a child less than twelve, three counts of lewd and lascivious molestation, showing obscene material to a minor, and lewd and lascivious exhibition. A mistrial was declared during the first trial when the jury could not reach a verdict. He ultimately entered a no contest plea to the reduced charges of attempted sexual battery on a child less than twelve, one count of lewd molestation, and one count of lewd and lascivious exhibition in exchange for concurrent sentences of fifteen years in prison followed by ten years’ probation.

In his rule 3.850 motion, Garrett claimed that his trial counsel was ineffective for failing to call Jarrod Quackenbush to testify at his second trial. Garrett claimed that Quackenbush lived next door to the victim and could have testified that the victim admitted to him that she and her mother had lied about Garrett and that the victim was worried that her mother would get into trouble if the lies were ever revealed. Garrett claimed that although his prior trial counsel had attempted to contact Quaekenbush to testify at the first trial, his new counsel — who represented him at the time of the scheduled second trial and the plea — failed to follow up. Garrett alleged that he was ready to proceed to a second trial and would not have entered the plea if counsel had investigated the witness and had him ready to testify-

In denying this claim, the postconviction court adopted and incorporated the State’s response, in which the State argued that a 2006 letter from Garrett’s first counsel to Garrett demonstrates that witness Quack-enbush was not willing to testify. The State claimed that the witness was therefore unavailable and that Garrett knew the witness was unavailable prior to the date he entered his plea.

In order to demonstrate that counsel was ineffective for failing to call a witness at trial, a defendant must identify the witness and the substance of his or her testimony, state that the witness would have been available to testify, and explain how the omission of the witness’s testimony prejudiced the outcome. See Nelson v. State, 875 So.2d 579, 582-83 (Fla.2004). Here, Garrett did not proceed to trial. Rather, he entered a plea. Therefore, he must demonstrate that had counsel investigated and subpoenaed Quaekenbush to testify at trial, he would not have entered his plea and would have instead proceeded to trial. See Smith v. State, 815 So.2d 707, 707 (Fla. 1st DCA 2002) (holding that appellant’s claim that his counsel was ineffective for failing “to properly investigate and interview a potential defense witness” was facially sufficient and “was not negated by the appellant’s plea, as the motion indicates that he would not have entered such a plea in the absence of the alleged failure”).

Garrett alleged the requisite elements, but by adopting the State’s response, the postconviction court concluded that Quaekenbush was not available because he was unwilling to testify. However, a defendant need not demonstrate that a witness would have been willing to testify, only that the witness was available to testify. See Highsmith v. State, 617 So.2d 825, 827 (Fla. 1st DCA 1998).

The letter from Garrett’s first counsel, which Garrett attached to his motion, indicates that Garrett knew that Quaekenbush was uncooperative in 2006, and Garrett also admitted in his motion for rehearing filed below that Quaekenbush had not been subpoenaed to testify at his first trial in 2007. But there is no record before us that conclusively refutes Garrett’s claim that he believed he was ready to proceed to trial a second time in 2008, that Quaekenbush was willing to testify, and that Garrett “[had] requested his attorney to locate ... Quaekenbush and call him as a defense witness.” While a defendant may not go behind a plea when the record indicates that the plea was freely and voluntarily entered, see Stano v. State, 520 So.2d 278, 279-80 (Fla.1988), a defendant may have a claim of ineffective assistance of counsel when counsel’s failure to investigate resulted in the entry of an ill-advised plea, see Nelson v. State, 996 So.2d 950, 952 (Fla. 2d DCA 2008).

The postconviction court did not attach the record of the plea colloquy; therefore, it is not clear whether this specific issue was addressed with Garrett and his counsel before he entered his plea. We note that the plea colloquy record may not be sufficient to refute this claim if this specific issue was not addressed. See id.

Because Garrett stated a sufficient claim that is not refuted by the record before us, we reverse the portion of the order summarily denying this claim and remand for the postconviction court to either attach portions of the record that conclusively refute this claim or hold an evidentiary hearing.

Affirmed in part; reversed in part; remanded.

WALLACE and KHOUZAM, JJ., Concur.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Joshua Jermaine NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5439.
    District Court of Appeal of Florida, Second District.
    June 22, 2011.
    James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Joshua Jermaine Neal challenges the revocation of the probation that he had been serving on one count of felon in possession of a firearm. We affirm the revocation of Neal’s probation without comment. However, because the record before us indicates an error in the imposition of a public defender’s lien and an error on the face of the revocation order, we reverse the lien and remand for correction of the errors.

The transcript of the sentencing hearing indicates that the trial court did not give Neal notice of his right to a hearing to contest the amount of the $100 public defender’s lien that was imposed as part of his sentence. This was error. See Fla. R.Crim. P. 3.720(d)(1) (“Notice of the accused’s right to a hearing to contest the amount of the [public defender’s] lien shall be given at the time of sentence.”). As such, we reverse the imposition of the public defender’s lien and remand to the trial court with instructions to strike the lien and afford Neal the opportunity to properly object to the amount imposed. See Vick v. State, 37 So.3d 951, 953 (Fla. 2d DCA 2010).

Additionally, the revocation order contains an error on its face in that it indicates that Neal admitted the alleged violations of his probation. This is incorrect as a hearing was held on the allegations. On remand, the trial court also shall correct this scrivener’s error.

Neal’s appellate counsel also points out that it appears that the trial court’s fee order does not comport with its oral imposition of fees at the sentencing hearing. At sentencing, the trial court orally announced the imposition of the following fees: $100 “cost of prosecution associated with the hearing on your violation, $50 application fee for the Public Defender and [$100] for the attorney’s fee of the Public Defender.” At first blush it does appear that the written fee order contradicts the oral pronouncement by imposing a $300 “Public Defender Assistant Fee” and a $200 “Prosecution/Investigative costs” fee. However, the written revocation order properly reflects the imposition of these costs at $100 each. Our review of the record indicates that the written fee order entered upon revocation of probation simply adds these $100 amounts to the costs previously imposed when Neal was originally convicted in February 2009. The 2009 fee order reflects a $200 public defender’s lien and a $100 prosecution cost. As such, the new fee order encompasses the 2009 costs and the costs incurred as a result of this VOP proceeding. Neal therefore is not entitled to relief on this basis.

In conclusion, we affirm the revocation of Neal’s probation but reverse the imposition of the $100 public defender’s lien for the reasons detailed above and remand to the trial court with instructions to strike the lien. On remand, Neal shall have thirty days from the issuance of this court’s mandate to file a written objection to the amount of the lien. See Vick, 37 So.3d at 953 (“On remand, Vick shall have thirty days from this court’s mandate to file a written objection to the public defender lien amount assessed. If Vick files an objection, the trial court shall hold a hearing; if he fails to timely object, the trial court may reimpose the lien.” (citing Webster v. State, 998 So.2d 655, 656-57 (Fla. 2d DCA 2009))). On remand, the trial court also shall correct the scrivener’s error on the revocation order. Neal’s sentence is affirmed in all other respects.

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

KHOUZAM and BLACK, JJ., Concur.

      . This issue has been preserved by Neal via a Florida Rule of Criminal Procedure 3.800(b)(2) motion and brought to this court’s attention by appellate counsel in a brief filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: PER CURIAM.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. CONGREGATION ADAS DEJ MACLEI ZEDEX, Appellee.
    No. 3D11-495.
    District Court of Appeal of Florida, Third District.
    June 22, 2011.

      Hinshaw & Culbertson, and Maureen G. Pearcy and Paul Wallace, Miami, for appellant.
    Ginsberg & Schwartz, and Arnold R. Ginsberg, for appellee.
    Before RAMIREZ, C.J., and SALTER and EMAS, JJ.
   PER CURIAM.

On Confession of Error

Following the candid and commendable confession of error by the appellee, the order compelling appraisal is hereby reversed and remanded to the trial court for an evidentiary hearing regarding the ap-pellee’s compliance with post-loss conditions. See Citizens Prop. Ins. Corp. v. Mango Hill Condo. Ass’n, 54 So.Sd 578 (Fla. 3d DCA 2011).

Reversed and remanded.


text:
    T.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D 10-2147.
    District Court of Appeal of Florida, Third District.
    June 22, 2011.
    Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   CONFESSION OF ERROR

PER CURIAM.

The juvenile, T.H., was charged with escape pursuant to section 985.721(3), Florida Statutes (2009). After an adjudicatory hearing, the trial court withheld adjudication and sentenced her to community control. The State properly concedes that the trial court erred in denying the motion for judgment of dismissal because it failed to prove that T.H. was being “transport[ed] to or from any ... secure detention facility or residential commitment facility.” § 985.721(3), Fla. Stat. (2009). Accordingly, we vacate the disposition below and remand for dismissal.


text:
    Michael LEE, Appellant, v. Rey GOMEZ, Appellee.
    No. 3D10-1726.
    District Court of Appeal of Florida, Third District.
    June 22, 2011.
    Lawrence R. Metsch, Miami, for appellant.

      De La O, Marko, Magolnick and Leyton, and Miguel M. de la 0 and Daniel L. Leyton, Miami, for appellee.
    Before RAMIREZ, C.J., and SHEPHERD and SALTER, JJ.
   PER CURIAM.

CONFESSION OF ERROR

Based on the appellee’s proper confession of error, we reverse the final judgment on attorney’s fees and costs and remand for further proceedings. On remand, the trial court shall make the findings required under Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985). Johnson v. Amritt, 48 So.3d 976 (Fla. 3d DCA 2010).

Appellant’s remaining point lacks merit.


author: ROTHENBERG, J.

text:
    Martha GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1183.
    District Court of Appeal of Florida, Third District.
    June 22, 2011.
    Carlos J. Martinez, Public Defender, and Joanna G. Ingalls and Daniel Tibbit, Assistant Public Defenders, for appellant.
    Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before ROTHENBERG and LAGOA, JJ, and SCHWARTZ, Senior Judge.
   CONFESSION OF ERROR

ROTHENBERG, J.

The defendant, Martha Garcia (“Garcia”), was charged by Information with five counts: burglary of an unoccupied dwelling; grand theft; criminal mischief affecting property valued between $200 and $999.99; battery; and criminal mischief affecting property valued over $1000. The evidence established that Garcia committed the above offenses with several eode-fendants. After determining Garcia was a minor participant, the trial court withheld adjudication, sentenced her to five years probation, and ordered restitution for the damage. In determining the amount of restitution owed, the trial court relied on an estimate from a body shop over a properly-raised hearsay objection from Garcia’s counsel. At issue in this appeal is whether the trial court erred in relying solely on a hearsay document providing an estimate for the repairs in determining the amount of restitution to be paid by the defendant.

Based on the State’s proper confession of error, and our independent review, we conclude the trial court erred in relying on the estimate. See J.D. v. State, 693 So.2d 146, 146 (Fla. 3d DCA 1997) (upon confession of error, holding value cannot be established solely on hearsay evidence); J.L. v. State, 684 So.2d 883, 884 (Fla. 3d DCA 1996) (reversing because value was based only on hearsay evidence, to which defendant properly objected); accord Sanchez-Gutierrez v. State, 981 So.2d 632, 632 (Fla. 2d DCA 2008) (remanding for a new restitution hearing because the value had been established by hearsay evidence that was properly objected to); Louis v. State, 654 So.2d 1290, 1290 (Fla. 3d DCA 1995) (vacating the portion of the trial court order that was based on hearsay evidence and remanding for a new value determination).

Reversed and remanded.


author: ALTENBERND, Judge.

text:
    NORTH POINTE CASUALTY INSURANCE COMPANY, Appellant, v. M & S TRACTOR SERVICES, INC.; Glenn Hines, individually; and Aimee Hines, as parent and natural guardian of Charles Hines, a minor, Appellees.
    No. 2D10-2057.
    District Court of Appeal of Florida, Second District.
    June 24, 2011.

      Joseph T. Metzger and Kari A. Metzger of Metzger Law Group, P.A., Tampa, for Appellant.
    Frank A. Ashton and Kevin W. Moore of Hardesty, Tyde, Green & Ashton, P.A., Jacksonville, for Appellee Aimee Hines.
    No appearance for Appellee M & S Tractor Services, Inc.
    No appearance for Appellee Glenn Hines.
   ALTENBERND, Judge.

North Pointe Casualty Insurance Company appeals a declaratory judgment determining that its liability insurance policy issued to M & S Tractor Services, Inc., provides coverage for an accident in which the young son of Glenn and Aimee Hines was severely injured. Mr. Hines is the president of M & S Tractor Services and was operating a farm tractor in the course and scope of his employment with the corporation when his son sustained these injuries by falling off the tractor. Although North Pointe undoubtedly intended to exclude coverage for this claim, we conclude that the trial court correctly determined that the liability policy’s exclusion for injuries to children of employees of the named insured was not effective to exclude North Pointe’s coverage for this claim.

In June 2007, Mr. Hines allowed his seven-year-old son to ride on a John Deere tractor operated by Mr. Hines in the course and scope of his employment with M & S Tractor Services. M <& S Tractor Services is apparently a small, family corporation, and Mr. Hines is both president of the corporation and an employee. The young boy fell from the tractor, and one of the tractor’s wheels hit him. He sustained serious injuries.

Aimee Hines, as parent and natural guardian, filed a lawsuit against M & S Tractor Services alleging that the tractor’s operator, her husband, had been negligent and that his negligence resulted in these injuries. The parties to this appeal agreed to stay that lawsuit while they determined whether North Pointe provided coverage for this occurrence. In the separate coverage lawsuit, the trial court declared that North Pointe provided coverage for this occurrence, and North Pointe now appeals to this court.

The interpretation of an insurance contract is a matter of law; accordingly, we review the trial court’s rulings de novo. Kattoun v. N.H. Indem. Co., 968 So.2d 602, 604 (Fla. 2d DCA 2007). Several basic principles of insurance contract interpretation guide our analysis. Florida law requires courts to construe insurance contracts “in accordance with the plain language of the policies as bargained for by the parties.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000). Where the policy language is plain and unambiguous, no special rule of construction or interpretation applies, and the court should give the plain language in the contract the meaning it clearly expresses. Fla. Farm Bureau Ins. Co. v. Birge, 659 So.2d 310, 312 (Fla. 2d DCA 1994) (Parker, Acting C.J., dissenting) (citing Jefferson Ins. Co. of N.Y. v. Sea World of Fla. Inc., 586 So.2d 95 (Fla. 5th DCA 1991); U.S. Liab. Ins. Co. v. Bove, 347 So.2d 678 (Fla. 3d DCA 1977)). However, “[i]f the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and the [other] limiting coverage, the insurance policy is considered ambiguous.” Anderson, 756 So.2d at 34. The court interprets ambiguous provisions “liberally in favor of the insured and strictly against the drafter.” State Farm Mut. Auto. Ins. Co. v. Fischer, 16 So.3d 1028, 1031-32 (Fla. 2d DCA 2009) (citing Anderson, 756 So.2d at 34).

It is undisputed that North Pointe issued a comprehensive liability insurance policy to M & S Tractor Services for the period in which this accident happened. The policy provides coverage and a duty of defense for claims involving bodily injury and property damage as defined within the policy.

There is no dispute that the primary policy provides coverage for a bodily injury of the sort sustained by this young boy. Accordingly, to deny coverage North Pointe had the burden to establish that a specific exclusion removes this particular risk from coverage.

The main body of North Pointe’s policy contains a standard exclusion for bodily injury to a child of an employee of the insured when the injury was a consequence of the employment. If that language applied in this case, it would appear to exclude coverage for this claim. But in this particular policy, a special endorsement has replaced the standard exclusion language. The endorsement in its entirety follows, but this case concerns primarily provision III.

This insurance does not apply to:

I.“Bodily Injury” to any employee of any insured, to any contractor hired or retained by or for any insured or to any employee of such contractor, if such claim for “bodily injury” arises out of and in the course of his employment or retention of such contractor by or for any insured, for which any insured may be liable in any capacity;
II. Any obligation of any insurance to indemnify or contribute with another because of damages arising out of the “bodily injury”; or
III. “Bodily injury” sustained by the spouse, child, parent, brother or sister of any employee of any insured, or of a contractor, or of an employee of a contractor of any insured as a consequence of “bodily injury” to such employee, contractor, or employee of such contractor, arising out of and in the course of such employment or retention by or for any insured.

(Emphasis added.)

The controversy in this case centers on the restrictive clause “as a consequence of ‘bodily injury5 to such employee, contractor, or employee of such contractor.” There are eight commas in the critical sentence that make it difficult to determine the subject that this clause restricts.

North Pointe asserts that the plain language of this sentence means “[t]his insurance does not apply to ... [bjodily injury sustained by the ... child ... of an employee of any insured ... arising out of and in the course of employment or retention by or for any insured.” This is essentially the same language contained in the standard policy before the special endorsement superseded it. This reading of the exclusion requires that the restrictive clause apply only to the phrase, “of an employee of a contractor of any insured.” Thus, the following paragraph contains the exclusion as read by North Pointe with underlining to highlight the proposed impact of the restrictive clause.

This insurance does not apply to ... “[b]odily injury” sustained by the ... child ... of any employee of any insured, or of a contractor, or of an employee of a contractor of any insured as a consequence of “bodily injury’’ to such employee, contractor, or employee of such contractor, arising out of and in the course of such employment or retention by or for any insured.

This interpretation arguably excludes coverage for the claim in this lawsuit, but it would exclude coverage for the children of employees of contractors only if those injuries were the consequence of injuries to “such employee, contractor, or employee of such contractor.” This interpretation would result in better coverage for the children of employees of contractors of the insured than for those of employees of the insured for no apparent reason.

North Pointe’s interpretation would arguably make better sense if we were to substitute the word “by” for the word “of’ in two places:

This insurance does not apply to ... “[bjodily injury” sustained by the spouse, child, parent, brother or sister of any employee of any insured, or of by a contractor, or of by an employee of a contractor of any insured as a consequence of “bodily injury” to such employee, contractor, or employee of such contractor, arising out of and in the course of such employment or retention by or for any insured.

This interpretation, however, seems to overlap extensively with the exclusion in subsection I, and it would not address the children of contractors or- the children of employees of contractors. Of course, it also requires the court to substitute words in the contract in order to give it meaning.

The appellees read the sentence as follows:

This insurance does not apply to ... “[bjodily injury” sustained by the ... child ... of any employee of any insured ... as a consequence of “bodily injury” to such employee ..., arising out of and in the course of such employment or retention by or for any insured.

Consequently, they argue that because the young boy’s injuries were not the result of an injury to an employee of an insured, the exclusion does not apply to his injuries. North Pointe argues that this interpretation is strained and that it would be illogical for the drafter of the policy to have intended to exclude payment for bodily injuries to children only if those injuries were in turn the result of bodily injury to the parent while at work. Such a factual situation might be possible, but North Pointe suggests it would be a rather bizarre accident. We agree that this exclusion is unlikely to address the underwriting concerns of the drafter. Nevertheless, we cannot simply ignore the restrictive clause. The drafter included it, and so we must attempt to give it meaning. The bizarre accident required under the appel-lees’ reading is comparable to the accident required under North Pointe’s reading as it relates to the children of employees of contractors. The appellees’ interpretation allows for all words in the sentence to remain unchanged and gives meaning to all of the drafter’s chosen words.

After grappling with the cumbersome critical sentence, we conclude that the exclusion at issue here is ambiguous. The truth is the plethora of commas that punctuate this provision, along with the placement of the restrictive clauses, probably allows for no interpretation that has a clear meaning, and the provision is susceptible to more than one debatable meaning. The trial court properly concluded that the special endorsement does not unambiguously exclude this claim.

Affirmed.

KHOUZAM and CRENSHAW, JJ., Concur.

      . North Pointe issued this policy relying on ISO standard forms. The main section of the policy is identified as CG-00-001-12-04 under a 2003 copyright. The critical endorsement, entitled “Exclusion of Injury to Employees, Contractors and Employees of Contractors,” is identified as NP-08-16-02-06.


text:
    BACON & BACON MANUFACTURING CO., INC., a Florida corporation; Michael R. Bacon; and April R. Bacon, Appellants, v. BONSEY PARTNERS, a Florida general partnership; Bonsey Properties, a Florida general partnership; Louis J. Bonsey, Jr.; Louis J. Bonsey, Sr.; Joseph J. Bonsey; and B & B Manufacturing, Inc., a Florida corporation, Appellees.
    No. 2D10-1795.
    District Court of Appeal of Florida, Second District.
    June 24, 2011.

      Gregory T. Elliott of Elliott-Berger, P.A., Largo, for Appellants.
    Leonard S. Englander and Courtney L. Fish of Englander & Fischer, P.A., St. Petersburg, for Appellees.
   ALTENBERND, Judge.

Mr. and Mrs. Bacon, as well as their corporation, Bacon & Bacon Manufacturing Co., Inc. (the Bacons), appeal a judgment in favor of B & B Manufacturing, Inc., Bonsey Partners, and various members of the Bonsey family (the Bonseys). We reverse and remand the judgment entered after a nonjury trial because the trial court relied upon the wrong burden of proof. Additionally, the trial court claimed to have been troubled by a stacking of inferences within the evidence. It relied upon the law relating to the granting of a directed verdict in a case that is tried by a jury. But there was no jury in this case, and because of the nature of the circumstantial evidence, we are unconvinced that the trial court was required to rule against the Bacons. Accordingly, we reverse the judgment and remand this case for the trial court to utilize the correct burden of proof and to reconsider the role of the circumstantial evidence in this record.

This case involves claims of fraudulent and negligent misrepresentation during the negotiations leading up to the creation of a contract to sell the Bonseys’ machine shop to the Bacons. The Bacons argue that the Bonseys induced them to enter into the contract by making several misrepresentations. Primarily, they argue that the Bonseys knew the machine shop’s best client was in the final stages of building an in-house machine shop that could produce parts that were even more sophisticated than the parts the Bonseys had supplied for many years. The Bacons claim that the Bonseys required them to sign certain confidentiality and nondisclosure agreements that prevented the Ba-cons from discovering these facts on their own during the due diligence period. During the negotiations, the Bacons specifically asked whether the Bonseys knew of anything that might affect the machine shop’s retention of its best customer. It is essentially undisputed that the Bonseys told the Bacons that there were no such circumstances and that the Bacons could expect “business as usual.” The Bacons maintain that they would not have purchased the shop, or perhaps would have purchased the shop at a reduced price, if they had known that the Bonseys’ best customer was expanding its machine shop. It is undisputed that this critical client of the machine shop ended its long-term relationship with the shop within forty-five days of the Bacons’ purchase of the business.

At the close of the Bacons’ case and in written submissions at the end of the trial, the Bonseys’ attorney argued that the Bacons were required to prove this case by clear and convincing evidence. Their attorney relied on this court’s decision in Century Properties, Inc. v. Machtinger, 448 So.2d 570 (Fla. 2d DCA 1984). That case admittedly states that fraud must be proven by clear and con vincing evidence. Id. at 573 (“[I]t is always incumbent upon the person asserting fraud to prove it by clear and convincing evidence.”). Until today, no subsequent case has expressly stated that Century Properties is no longer good law. On the other hand, the supreme court changed the burden of proof for fraud to the greater weight of the evidence in 1985. See Wieczoreck v. H & H Builders, Inc., 475 So.2d 227, 228 (Fla.1985). The Bacons provided the trial court with more recent authority demonstrating the correct burden of proof. This lesser burden of proof has long been described in the standard jury instruction for use in cases of fraud and misrepresentation. See Fla. Std. Jury Instr. (Civ.) 409.2. It is difficult to fathom how the Bonseys’ attorney made this error or why the trial court relied upon it, but the trial court rejected the Bacons’ claims because they had not proven the claims “with certainty.” In context, it is obvious that the trial court relied on the wrong burden of proof in this case. Accordingly, we must remand this case to the trial court for it to apply the correct burden of proof.

We are also concerned that the trial court appears to have misapplied the law relating to inferences within the evidence. The trial court’s judgment does not contain a section with extensive findings of fact. There is no requirement that a trial court include such a section in a Florida judgment in a nonjury trial. However, the judgment here does state:

The proof offered by the Plaintiffs in that regard is largely circumstantial. The Plaintiffs suggest that the “writing was on the walls,” and urge this Court to consider the force and effect of the evidence and draw reasonable inferences. However, in doing so, where the evidence could suggest other reasonable possibilities for the loss, this Court concludes that it would have to make ultimate findings based upon the impermissible stacking of inferences. Stanley v. Marceaux, 991 So.2d 938 (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, citing Voelker v. Combined Ins. Co. of Am., 73 So.2d 403 ([Fla.] 1954)). As such, the Plaintiffs are unable to establish the necessary facts to sustain a cause of action.

Admittedly, the rules associated with inferences in Florida are sometimes difficult to apply. The rules in a civil case are more favorable to a plaintiff than the rules in a criminal case are to the State. Compare Voelker v. Combined Ins. Co. of Am., 73 So.2d 403 (Fla.1954), with Davis v. State, 90 So.2d 629 (Fla.1956).

In Voelker, the supreme court explained that when a litigant must rely on circumstantial evidence to prove its case:

if the circumstances established by the evidence be susceptible of a reasonable inference or inferences which would authorize recovery and are also capable of an equally reasonable inference, or inferences, contra, a jury question is presented. ... Of course, if none of the inferences on the one hand accords with logic and reason or human experience, while on the other hand an inference which does square with logic and reason or human experience is deducible from the evidence, the question is not for the jury but is one of law for the court.

73 So.2d at 406. The rules announced in Voelker were intended to permit more cases involving circumstantial evidence to be submitted to the finder of fact. Voelker was also intended to limit the trial court’s power to grant directed verdicts in cases where the evidence was largely circumstantial.

In this case, there was no jury, and the trial court was not granting a motion for involuntary dismissal. The trial court’s order seems to rely upon a perceived stacking of inferences in order to eliminate the need to decide disputed questions of fact by the greater weight of the evidence.

In order to prove a fraudulent misrepresentation, a plaintiff must establish the five elements described in the case law and in the standard jury instruction for use in such cases: (1) the defendant intentionally made a false statement about a material fact; (2) the defendant either knew the statement was false when he or she made it or made the statement without knowledge of its truth or falsity; (3) the defendant intended the plaintiff to rely on the false statement; (4) the plaintiff relied on the defendant’s false statement; and (5) the plaintiff suffered damage as a result of relying on the false statement. See, e.g., Butler v. Yusem, 44 So.3d 102, 105 (Fla. 2010); Fla. Std. Jury Instr. (Civ.) 409.7.

The primary dispute in this case seems to hinge on whether persons on the Bonsey side of these negotiations knowingly made false statements of material fact concerning their best client’s business and their ongoing relationship with that client. We have reviewed the evidence presented at trial. Much of the evidence is not circumstantial. The documentary evidence speaks for itself. Without restricting the trial court on remand, it seems that this issue depends significantly upon the credibility of several witnesses. The “writing on the walls” referred to in the final judgment may be circumstantial evidence, but it is evidence that would suggest either that a witness is telling the truth or not. Circumstantial evidence can be useful in context to decide credibility. When circumstantial evidence is relevant to a single element of a party’s proof, it is unusual for the evidence to result in an impermissible stacking of inferences. Without findings of fact or a greater explanation within the judgment, we cannot determine what elements of the Bacons’ causes of action the trial court believes to be supported by impermissible inferences arising from circumstantial evidence, and we are inclined to believe that no such stacking of inferences actually exists in this case.

Accordingly, we reverse and remand this case to the trial court for further proceedings. We are not mandating a new trial, and it may not be necessary for the trial court to receive any additional evidence. We are not, however, prohibiting the trial court from considering additional evidence in light of this opinion. The trial court must make a new decision using the proper burden of proof and utilizing the direct and circumstantial evidence in the record in accordance with the applicable law.

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

      . The Bonseys’ theory was that the equipment being installed by their best customer could not efficiently make the type of simple products that the Bonseys produced in their more basic machine shop. At trial, they claimed that the new, sophisticated machinery at the customer's factory actually was a basis to anticipate more business in the future from the client. If this theory were accurate, it would seem to have been in their best interests to affirmatively disclose these facts to a potential purchaser rather than to enter into confidentiality agreements that severely limited the potential buyers’ access to their best customer prior to closing.


text:
    In the Interest of M.M. and G.M., children. S.M., Petitioner, v. Department of Children and Family Services, Respondent.
    No. 2D11-2511.
    District Court of Appeal of Florida, Second District.
    June 24, 2011.
    John E. Hendry, Regional Counsel, Second District, Office of Criminal Conflict and Civil Regional Counsel, Bartow; and Cynthia Cholmondeley, Special Assistant Regional Counsel, New Port Richey, for Petitioner.
    Bernie McCabe, State Attorney, and Jennifer Barbookles, Assistant State Attorney, Clearwater, for Respondent Department of Children and Family Services.
   ALTENBERND, Judge.

S.M., the father, has filed a petition for writ of certiorari seeking to vacate a nonfi-nal order entered after a status review hearing in a dependency proceeding. The order suspended his supervised visitation and contact with his children, M.M. and G.M. The Department of Children and Family Services concedes that the trial court departed from the essential requirements of law in suspending visitation without finding that visitation was not in the best interest of the children. Based on this concession of error, we grant the petition for writ of certiorari, vacate the order, and remand for further proceedings as we did recently in V.S. v. Department of Children & Family Services, 61 So.3d 414 (Fla. 2d DCA 2010). See also R.P. v. Dep’t of Children & Families, 41 So.3d 432 (Fla. 3d DCA 2010).

Petition granted.

WHATLEY and KELLY, JJ., Concur.


author: BLACK, Judge.

text:
    Daniel GETMAN, Appellant, v. TRACEY CONSTRUCTION, INC., a Florida corporation, Appellee.
    No. 2D10-2318.
    District Court of Appeal of Florida, Second District.
    June 24, 2011.

      Matthew S. Toll of Lusk, Drasites, Toli-sano & Smith, P.A., Cape Coral, for Appellant.
    Debra Potter Klauber of Haliczer, Pettis & Schwamm, Fort Lauderdale, for Appel-lee.
   BLACK, Judge.

Daniel Getman appeals the final summary judgment and award of damages entered in favor of Tracey Construction, Inc., in a breach of contract action. Because Tracey Construction failed to establish that it was entitled to summary judgment, we reverse. We do not reach the issue of whether the trial court erred in awarding damages without first holding an eviden-tiary hearing because we hold that Tracey Construction was not entitled to summary judgment at this stage of the proceedings.

Tracey Construction filed an unverified three-count complaint against Getman, alleging an action for breach of contract or, in the alternative, quantum meruit and lien foreclosure. Getman did not answer the complaint but instead filed a motion to dismiss. While Getman’s motion was pending, Tracey Construction filed a motion for summary judgment. After a hearing on Tracey Construction’s motion, the trial court entered an order granting summary judgment in favor of Tracey Construction and awarding damages.

As a threshold matter, Tracey Construction contends that the order granting summary judgment is not a final, appealable order. Although the order awards damages without expressly providing for execution of the judgment, “the language ‘for which let execution issue’ is not essential to the finality of a judgment.” City of Haines City v. Allen, 549 So.2d 678, 678 (Fla. 2d DCA 1989) (citing Chan v. Brunswick Corp., 388 So.2d 274, 275 (Fla. 4th DCA 1980)); see also Oliveri v. Bateman Group, Inc., 874 So.2d 1290, 1291 (Fla. 2d DCA 2004). Moreover, “[a] final order or judgment is one which evidences on its face that it adjudicates the merits of, and disposes of, the matter before the court and leaves no judicial labor to be done.” Cardillo v. Qualsure Ins. Corp., 974 So.2d 1174, 1175-76 (Fla. 4th DCA 2008). We note, however, that while phrases like “for which let execution issue” are not essential for finality, the order must otherwise evidence finality on its face and the inclusion of such language will prevent both appealability and execution issues in the future. See Willis v. Red Reef, Inc., 921 So.2d 681, 685 (Fla. 4th DCA 2006). We have jurisdiction. Fla. R.App. P. 9.110(k).

As a general rule, “[a] movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). However, when the plaintiff moves for summary judgment before an answer has been filed, “the burden is upon the plaintiff to make it appear to a certainty that no answer which the defendant might properly serve could present a genuine issue of fact.” Settecasi v. Bd. of Pub. Instruction of Pinellas Cnty., 156 So.2d 652, 654 (Fla. 2d DCA 1963) (citations omitted). “Thus, the standard to establish entitlement to summary judgment requires the plaintiff to establish that ‘the defendant could not raise any genuine issues of material fact if the defendant were permitted to answer the complaint.’” Howell v. Ed Bebb, Inc., 35 So.3d 167, 168-69 (Fla. 2d DCA 2010) (quoting BAC Funding Consortium Inc. ISAOA/ATIMA v. Jean-Jacques, 28 So.3d 936, 938 (Fla. 2d DCA 2010)). The standard is extremely high and the plaintiff’s burden is extremely heavy. See W. Fla. Cmty. Builders, Inc. v. Mitchell, 528 So.2d 979, 980 (Fla.1988); Brakefield v. CIT Group/Consumer Finance, Inc., 787 So.2d 115, 116 (Fla. 2d DCA 2001).

During the hearing in the present case, counsel for Getman argued that the pleadings were still open and that summary judgment would be inappropriate. Counsel for Tracey Construction argued that no facts were in controversy and that Getman had not filed affidavits in opposition to the motion for summary judgment. Immediately thereafter, the trial court granted summary judgment, finding that Getman failed to file affidavits opposing Tracey Construction’s motion.

It appears the trial court applied an incorrect standard in ruling on the motion. The court granted summary judgment in favor of Tracey Construction based on Getman’s failure to file affidavits in opposition to the motion rather than on any affirmative showing by Tracey Construction. See Howell, 35 So.3d at 169. Further, Tracey Construction failed to conclusively establish that no answer which Getman might have properly served could present a genuine issue of material fact. See id.

Accordingly, we reverse the judgment and remand for further proceedings.

KHOUZAM and MORRIS, JJ., Concur.


text:
    O.Y., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2148.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Carlos J. Martinez, Public Defender, and Melissa del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri Joseph, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and SALTER and EMAS, JJ.
   PER CURIAM.

Confession of Error

Based on the state’s proper confession of error, we reverse O.Y.’s adjudication of delinquency on count 1 for the lesser included offense of assault on a law enforcement officer. This adjudication is fundamental error because the charging document did not allege the elements of assault, and assault is not a necessarily lesser included offense to the charge of battery on a law enforcement officer. VC. v. State, 63 So.3d 831, 2011 WL 1878004 (Fla. 3d DCA 2011).

The adjudication is affirmed in all other respects.


text:
    Ydel Noel CASTELLANOS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2758.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.

      Carlos J. Martinez, Public Defender, and Joanna G. Ingalls, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and EMAS, JJ.
   ON MOTION TO CORRECT SCRIVENER’S ERROR

PER CURIAM.

We hereby grant appellant’s motion to correct scrivener’s error in our opinion issued May 4, 2011. The corrected opinion is as follows:

Ydel Noel Castellanos (“the defendant”) appeals the denial of his Florida Criminal Rule of Procedure 3.800 motion for post-conviction relief. We reverse.

In 1996, the defendant was convicted and sentenced to life in prison as a habitual felony offender. Two cases were used to qualify the defendant for habitual felony offender status: (1) a 1992 case in which adjudication was withheld and the defendant was placed on probation; and (2) a 1993 case which the defendant committed while on probation. The defendant accepted a global plea for violation of probation on the 1992 case and the new 1993 case, and the trial court sentenced him on both cases together. The defendant then filed a motion to correct illegal sentence, alleging the 1992 case was incorrectly used to qualify him as a habitual felony offender. The lower court denied the motion, and this appeal followed.

On appeal, the defendant asserts that the trial court erred in denying the defendant’s motion because the record does not show two sequential prior felony convictions. The State contends that the trial court properly denied the defendant’s motion because the record shows two sequential prior felony convictions. We agree with the defendant.

In 1996, a defendant could be classified as a habitual felony offender if he or she had previously been convicted of two or more felonies prior to the current offense. § 775.084(l)(a), Fla. Stat. (1996). The pri- or felony “must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.” § 775.084(5), Fla. Stat. (1996). Also, a sentence of probation without an adjudication of guilt could only be treated as a prior conviction “if the subsequent offense for which he is to be sentenced was committed during such probationary period.” § 775.084(2), Fla. Stat. (1996). Thus, a prior offense, for which the defendant received a withhold of adjudication and probation and had completed probation, could not be counted as a prior conviction. Wright v. State, 691 So.2d 1140 (Fla. 1st DCA1997).

Here, the 1992 case record shows that the defendant received a withhold of adjudication and completed his probation prior to committing the 1996 charges. The 1992 case, therefore, could not be counted as one of the two sequential prior felony convictions required to sentence the defendant as a habitual felony offender in 1996. Thus, the trial court erred in denying the defendant’s motion for postconviction relief.

Accordingly, we reverse the order denying the defendant’s motion, and remand for further proceedings.

Reversed and remanded.


author: SALTER, J. ROTHENBERG, J.

text:
    Cesar and Ana Maria FABREGAS, Appellants, v. NORTH MIAMI BAKERIES, INC., etc., Appellee.
    No. 3D09-3047.
    District Court of Appeal of Florida, Third District.
    Feb. 16, 2011.
    Rehearing Denied June 29, 2011.
    Roy D. Wasson, Miami, and Roberta G. Mandel; Alan Goldfarb and Liah C. Cata-nese, for appellants.
    Richard A. Sherman, Sr., and James W. Sherman, Fort Lauderdale; Esther B. Nickas and Craig Lee Montz, for appellee.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

Cesar and Ana Maria Fabregas appeal a final summary judgment in their action against North Miami Bakeries, Inc. Our review of the record demonstrates that genuine issues of material fact remain precluding summary judgment; therefore, we reverse.

Cesar Fabregas went with Armando Garcia Sr. and Jr., the owners of Armando Filter Cleaning Services, to clean Sunset Bakery’s exhaust vents over the cooking stove. To do the work, the men placed boards over a deep fat fryer vat to access the hood and vents. They testified that the area could not be accessed with a ladder. During the cleaning, the board broke or shifted. Fabregas, who was working on the vent, fell into the fryer vat and was severely burned.

Garcia Sr. testified that the restaurant owner is responsible for turning off the equipment under the hood in sufficient time for it to cool down. He testified that the stove was not hot as the work began. Garcia Jr. testified that there was no smoke, heat, or smell emanating from the fryer indicating that the oil in the fryer was hot. The bakery owner testified that she had turned off the fryer about an hour before Fabregas and the Garcias arrived to perform the work, because she knew they would be working on the vents.

The testimony diverged, however, regarding any warning by the bakery owner. She testified that she did in fact warn the cleaners to be careful because the oil was still hot. Fabregas and the Garcias denied that any such warning was given.

Fabregas sued the bakery as a business invitee. As an invitee, Fabregas argued that the bakery owed him a duty to maintain the premises in a reasonably safe condition and to warn of dangerous conditions that are known or should be known to the bakery.

The bakery moved for summary judgment, asserting that it owed no duty to Fabregas, the employee of an independent contractor. Fabregas argued that by not turning the oil off earlier, the bakery created a hidden danger. After a hearing, the trial court granted the bakery’s motion. The court found that there were no genuine issues regarding any material fact. Thereafter, the court denied Fabregas’s motion for rehearing, and this appeal followed.

Analysis

When a record reveals the existence of disputed, material issues of fact, summary judgment is error. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000); Real Estate Inv. Group LLC v. Attorneys’ Title Ins. Fund, Inc., 47 So.3d 868 (Fla. 3d DCA 2010). In this case, the facts surrounding the accident were disputed. There was sufficient evidence to allow a jury to resolve the issue of whether the placement of boards to perform the cleaning operation was reasonable under the circumstances; whether the failure to turn the fryer off earlier was reasonable under the circumstances; and whether the owner did adequately alert the men to the existence of a dangerous condition, a fryer vat with dangerously hot oil (despite the absence of perceptible indications to the contrary). The issue in this case is not a question of law that can be determined by entry of summary judgment. Volusia County, 760 So.2d at 131.

The bakery argues that the trial court was correct because of two lines of cases regarding the parties’ respective duties. The first of these is the “general rule” that “one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in their work.” Armenteros v. Baptist Hosp. of Miami, 714 So.2d 518, 520-21 (Fla. 3d DCA 1998) (citations omitted). Exceptions to that general rule exist, however, including an exception when an owner “who has actual or constructive knowledge of latent or potential dangers on the premises, has breached a duty to warn employees [of the independent contractor] of such danger.” Johnson v. Boca Raton Cmty. Hosp., Inc., 985 So.2d 593, 596 (Fla. 4th DCA 2008) (citations omitted). In this case, the bakery owner’s action in turning off the fryer, but doing so with an inadequate lead time to permit the oil within the vat to cool to a safe temperature, created a latent, non-obvious danger. The testimony concerning a warning was material and conflicting.

The second line of cases relied upon by the bakery owner relates to an injury sustained by an independent contractor’s employee which occurs in performing the independent contractor’s specialized work. In Morales v. Weil, 44 So.3d 173 (Fla. 4th DCA 2010), the contractor was hired to demolish a barn with a roof damaged by-two hurricanes. The damage was obvious and included a hole through the roof that was visible to the employees. However, in the course of the work one of the employees fell through a weakened roof panel and was injured. The Fourth District reviewed the applicable law and affirmed a summary judgment for the barn owners. The Court concluded that “the [owners] were in no better position than the [injured contractor employee] to assess the level of danger that the job posed. Consequently, the [owners] owed him no duty to maintain the roof in a reasonably safe condition.” Id. at 179.

In this case, however, the bakery owner arguably was in a better position than Fabregas to appreciate the special hazard in the work area. The focus of the independent contractor’s work was the hood, vents, and filters — not the stove, fryer vat, and other equipment in the bakery. We conclude, therefore, that neither of the legal principles relied upon by the bakery warrants summary judgment.

The summary judgment is therefore reversed and the cause remanded for further proceedings.

SHEPHERD, J., concurs.

ROTHENBERG, J.

(dissenting).

Cesar Fabregas (“Fabregas”) was hired by Armando Filter Cleaning Services, a filter cleaning service that contracted with Sunset Bakery to clean an exhaust hood located over a stove and deep fryer filled with oil in Sunset Bakery’s kitchen. While performing this service, Fabregas fell into the deep fryer and was burned by hot oil. Because: (1) Fabregas was an employee of an independent contractor; (2) Sunset Bakery did not participate in, directly influence, or exercise control over the services Fabregas performed; (3) hot oil in a deep fryer under the exhaust hood in the kitchen which was still open for business was an open and obvious danger; and (4) Fabregas failed to use ordinary caution and created the dangerous condition that was the proximate cause of his injury, the trial court correctly granted summary judgment in favor of Sunset Bakery. I therefore respectfully dissent from the majority opinion reversing the trial court’s order.

Because some of the important facts have been omitted from the majority opinion, a more complete recitation of the facts follows. For the past five years, the owners of Sunset Bakery, Diane Fernandez and her husband (“Mr. and Mrs. Fernandez”), contracted with and relied on Frank Filter Service to clean the oil from the vents and hood located over the stove and deep fryer of the bakery three to four times a year. On this particular occasion, because the owner of Frank Filter Service was out of the country, Sunset Bakery hired Armando Filter Cleaning Services, Inc. (“Armando, Inc.”) which had never done any work on the premises. The sole employees of Armando, Inc. were Armando Garcia, Sr. (“Armando Sr.”) and his son, Armando Garcia, Jr. (“Armando Jr.”). On the date of the incident, however, Armando Sr. hired Fabregas to assist them with the Sunset Bakery cleaning job.

It is undisputed that when Armando, Inc. arrived between 2:30 and 3:00 p.m. to clean the exhaust hood and vents located over the stove and deep fryer, the bakery was open for business, the kitchen was in use, the stove was still being used, the deep fryer had been turned off for at least forty-five minutes, and the oil in the deep fryer was still hot. While the evidence is in dispute as to whether Mrs. Fernandez advised Armando Sr. that the oil in the deep fryer was still hot, it is undisputed that she did not instruct the company or its employees on how to clean the exhaust hood and vents, did not monitor their work, and was not in the kitchen while they performed their services.

Unbeknownst to Mr. and Mrs. Fernandez, Fabregas, Armando, Inc.’s employee, removed items from the stove, placed plywood on the stove, broiler, and deep fryer, covered the boards with nylon, climbed up onto the boards, and began scraping the exhaust hood. While Fabregas was scraping the filter, the plywood slipped and he fell into the deep fryer and burned his feet. While it was Armando, Inc.’s general practice to clean exhaust hoods and filters in this fashion, none of the cleaning companies that had serviced the bakery for over sixteen years had ever climbed up on top of the stove, deep fryer, or kitchen equipment to clean the exhaust hood and filters. All of the other companies would cover the equipment with plastic and boards and stand on ladders, not the appliances, to perform their cleaning service.

The gravamen of Fabregas’ complaint against Sunset Bakery is that the bakery had a duty to either turn the deep fryer off earlier to allow the oil to fully cool, or to warn Armando, Inc. and its employees that the oil was hot. Fabregas argues that the trial court erred in granting Sunset Bakery’s motion for summary judgment because there exists a material issue in dispute — whether Mrs. Fernandez warned Armando, Inc. that the oil in the deep fryer was still hot. The majority apparently concludes that Sunset Bakery had a duty to warn Armando, Inc. that the oil was hot, and therefore, whether Mrs. Fernandez warned Armando Sr. is a material issue precluding summary judgment. For the reasons that follow, I respectfully disagree.

Legal Analysis

As a general rule, one who hires an independent contractor is not liable for injuries sustained by that contractor’s employees in performing their work. Fla. Publ’g Co. v. Lourcey, 141 Fla. 767, 193 So. 847, 847-48 (1940); Armenteros v. Baptist Hosp. of Miami, Inc., 714 So.2d 518, 520-21 (Fla. 3d DCA 1998). However, an owner may be held liable for damages suffered by an employee of an independent contractor if: (1) he actually participates in, directly influences, or exercises direct control over the project or the work (but not if he is a passive nonparticipant); or (2) he negligently creates or negligently approves the dangerous condition. Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973). Additionally, where a known or potential danger exists on the premises, the owner has a duty to warn an independent contractor who is performing work at the premises. Holsworth v. Fla. Power & Light Co., 700 So.2d 705, 708 (Fla. 4th DCA 1997). However, that duty only extends to latent defects or latent dangers. Id. “A latent defect is one ‘not apparent by use of one’s ordinary senses from a casual observation of the premises, or ‘hidden from the knowledge as well as from the sight and ... not discoverable by the exercise of reasonable care.’” Id. (citations omitted).

Based on these legal principles, Sunset Bakery is not liable for Fabregas’ injuries. First, it is undisputed that Sunset Bakery and its employees did not participate in, influence, supervise, or exercise direct control over the work they hired Armando, Inc. to do, and in fact, were not present when Fabregas placed plywood on top of the stove, broiler, and deep fryer and stood on the plywood to clean the exhaust hood and filters. Second, it was Fabregas, not Sunset Bakery, who created the dangerous condition by standing on plywood he had placed on top of a stove and a deep fryer full of oil to clean the exhaust hood above these appliances rather than using a ladder. Thus, it was Fabregas’ own negligence that was the proximate cause of his damages. His fall was the result of the manner in which he chose to perform his duties, which could have caused him to hit his head on any number of objects in the kitchen, break a leg or arm, or burn himself on the recently used stove or oil in the deep fryer. And lastly, Sunset Bakery had no duty to warn because the dangerous conditions that existed in the kitchen were apparent by the use of one’s ordinary senses, casual observation, and the exercise of reasonable care.

In Florida Power & Light Co. v. Price, 170 So.2d 293, 298 (Fla.1964), the Florida Supreme Court noted that an “independent contractor is usually placed in charge of the work site and is responsible for all incidental contingencies and is aware or presumed to be aware of the usual hazards incident to the performance of his contract.” Likewise, this Court in Roberts v. Dacra Design Associates, Ltd., 766 So.2d 1184, 1185 (Fla. 3d DCA 2000), held that a repairman at a construction site who fell on a piece of pipe lying on the floor could not recover for his injuries because he should have anticipated that construction materials may have been present and a reasonable inspection would have revealed the potential hazards.

The following are several more examples where this Court found no liability for injuries where the danger was inherent in the job, open and apparent, or which could have been discovered by a reasonable inspection. In Lonis v. Flagler Federal Savings & Loan Ass’n, 164 So.2d 41, 43 (Fla. 3d DCA 1964), a construction worker suffered permanent hearing loss while working near a loudspeaker located on the roof of the building. The trial court directed a verdict in favor of the defendant. Id. at 42. On appeal, this Court affirmed, finding that the defendant could not be held liable for the injury suffered by the plaintiff since it would be unreasonable to require the defendant to anticipate that a person working on the roof and knowing the presence of the speaker, would place himself in such close proximity that sound emitting from the speaker would damage his ear. Id. at 43. This Court concluded that “[wjhere a reasonable man should expect and anticipate the potential hazard, the plaintiffs duty is at least as great as that of the land owner,” and quoted the following passage taken from Quinnelly v. Southern Maid Syrup Co., 164 So.2d 240, 242-43 (Fla. 2d DCA 1964):

There [was] no superior knowledge of danger on the defendant’s part existing in this case.... It was not the duty of the land owner to furnish the plaintiff a safe place to work, but to use due care in maintaining his premises. Notice or warning is not required where the dangerous condition is open and obvious to a person who is exercising reasonable care for his own safety.

In addressing the duty to warn in Kagan v. Eisenstadt, 98 So.2d 370, 372 (Fla. 3d DCA 1957), this Court affirmed the trial court’s order granting summary judgment in favor of the defendant, Eisenstadt. Kagan, an experienced lumber salesman, was injured when, as he passed an open stairwell of an apartment building under construction to count the number of rafters and ceiling joists needed to complete the job, his foot got caught in a hole, he lost his balance, and he fell through the stairwell. Id. at 371. In affirming the order granting summary judgment, this Court noted that, although it is incumbent upon those in control of the premises

to warn [invitees] of latent dangers, i.e., those which are not apparent from a casual observation of the premises!,] [t]he Supreme Court of Florida has continually adhered to the proposition that requires a person to see what is there to be seen by the ordinary use of his senses, and if it is there to be seen, it is deemed, in law, to have been seen.

Id. Thus, we agreed with the trial court that Eisenstadt had no duty to warn. Id. at 372.

This Court also found no duty to warn in Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978). As in the previously mentioned cases, we held that the duty owed by a landowner to an invitee is to maintain the premises in a reasonably safe condition and to warn of latent perils which the invitee could not discover by the exercise of due care. Id. at 839. Further, we found that:

An “owner is entitled to assume that the invitee will perceive that which would be obvious to him upon the ordinary use of his own senses, and is not required to give the invitee notice or warning of an obvious danger. Nor need he alter the premises to eliminate known and obvious dangers.”

Id. at 839 (quoting Hall v. Holland, 47 So.2d 889, 891-92 (Fla.1950) (citations omitted)).

As these cases clearly demonstrate, Sunset Bakery had no duty to warn Armando, Inc. and its employee, Fabregas, that the oil in the deep fryer, which was located beneath the exhaust hood and filters they were hired to clean, was still hot. When Armando, Inc. arrived between 2:30 and 3:00 p.m., the bakery, which was open until 7:00 p.m., was in full operation — the kitchen was in use, as was the stove, which was also located under the exhaust hood. The undisputed evidence was that, after Armando, Inc. entered the kitchen to clean the exhaust hood, an employee of Sunset Bakery turned off the stove and Fabregas removed items from the top of the stove. Fabregas therefore was clearly put on notice that the stove, broiler, and deep fryer could have been hot. It is also undisputed that the deep fryer had no lid and thus, with minimal effort, Fabregas could have determined that the oil was still hot. Upon determining that the oil was hot, Fabregas could have moved the deep fryer to another area of the kitchen because it was on wheels and the undisputed evidence was that it could have been easily moved. But, rather than exercising reasonable caution and due diligence, Fabre-gas either failed to determine whether any of these appliances posed a danger, or simply ignored the danger.

I would conclude that hot oil in a deep fryer located directly below an exhaust hood is a “usual hazard[ ] incident to the performance of the contract,” Price, 170 So.2d at 298, and Fabregas should have anticipated that the oil may have been hot when the bakery was clearly open for business and the kitchen was in use when he arrived. See Roberts, 766 So.2d at 1185. That the oil may have been hot was an inherent danger of the job, which was apparent or which could have been discovered by a reasonable inspection. See Lonis, 164 So.2d at 43. Because the danger was open and obvious to a person exercising reasonable care for his own safety, Fabre-gas had a duty to check it and Sunset Bakery had no duty to warn. Rice, 363 So.2d at 839; Quimielly, 164 So.2d at 242-43; Kagan, 98 So.2d at 371-72. The peril was not latent. The deep fryer was directly below the exhaust hood, it contained no lid or covering, and the fryer was full of oil. Sunset Bakery was “ ‘entitled to assume that [Fabregas] [would] perceive that which would be obvious to him upon the ordinary use of his own senses, and [was] not required to give [him] notice or warning of an obvious danger. Nor need [Sunset Bakery] alter the premises to eliminate known and obvious dangers.’” Rice, 36B So.2d at 839 (quoting Hall, 47 So.2d at 891-92 (citations omitted)).

Even the plaintiffs own expert, David Talty, testified (in deposition) that the most dangerous piece of equipment in any kitchen is the deep fryer, and he admitted that it was common sense to check the deep fryer to make sure it was not hot before placing a board on top of it. “Yes, a reasonable person — it would be expected that any reasonable person that was working around oil that was being heated for cooking would check to see if whether or not it was still hot.” Mr. Talty also testified that stoves (and deep fryers) are not made to be stood on, and placing unsecured boards on top of a bakery stove and standing on the wood was not a smart way to clean the overhead exhaust hood and filters. He also agreed that a reasonable person would determine whether the oil in the deep fryer was hot, and because this deep fryer was on wheels, it could have been relocated during the cleaning process. Thus, by the plaintiffs expert’s own admissions, hot oil in a deep fryer in a kitchen is a “usual hazard[ ] incident to the performance of the contract.” Price, 170 So.2d at 298. It was an open and obvious danger, and one that a reasonable person should have perceived and have taken reasonable steps to neutralize if exercising reasonable care for his own safety. Thus, Sunset Bakery had no duty to warn.

In addition to the obvious danger and Fabregas’ duty to make a reasonable inspection of an open peril inherent to the job, is the fact that rather than covering the appliances and then using a ladder to reach the exhaust hood and filters as the prior cleaning services had done, Fabregas covered the appliances with plywood and then stood on top of the plywood to perform his services. Sunset Bakery certainly had no reason to anticipate that Fabre-gas would attempt to balance himself on top of its appliances to clean the hood, and in doing so, to not even perform a cursory examination of the very same appliances he intended to stand on to determine if they were hot or posed a danger. The deep fryer was on wheels. Surely, a reasonable inspection and the exercise of reasonable caution would have suggested that the fryer should have been moved rather than using it as a pedestal to reach the exhaust hood.

I therefore would find that the trial court correctly granted summary judgment in favor of Sunset Bakery, and respectfully dissent from the majority opinion finding otherwise.

      . Sunset Bakery has been in operation for approximately thirty-two years. Prior to their business relationship with Frank Filter Service, Mr. and Mrs. Fernandez relied on the services of Ross Filter.