author: WALLACE, Judge. SHEPHERD, FRANK A., Associate Judge,

text:
    Sean ALDERMAN, Appellant, v. BCI ENGINEERS & SCIENTISTS, INC., Appellee.
    No. 2D10-1299.
    District Court of Appeal of Florida, Second District.
    Sept. 2, 2011.

      William J. Cook and Chris A. Barker of Barker, Rodems & Cook, P.A., Tampa, for Appellant.
    Stephen M. Bull and Jason B. Vrbensky of Bull & Associates, P.A., Orlando, for Appellee.
   WALLACE, Judge.

Sean Alderman appeals an adverse final judgment entered on his claims for negligence and breach of contract against BCI Engineers & Scientists, Inc. (BCI). The circuit court entered the final judgment after it made separate rulings granting BCI’s motions for summary judgment— first on the negligence claim and then on the contract claim. Because BCI did not meet the required showing for the entry of a summary judgment on either claim, we reverse the final judgment in its entirety.

I. INTRODUCTION

Mr. Alderman’s residence suffered damage caused — at least in part — by sinkhole activity. He hired BCI to perform a sinkhole investigation and to prepare a report. BCI also acted as Mr. Alderman’s engineer of record for the remediation work that was performed by another contractor. Mr. Alderman settled the sinkhole claim with his property damage insurer, and he gave the insurer a release. Later, Mr. Alderman filed an action against BCI for negligence and breach of contract. The issues arising on our review of the circuit court’s orders granting BCI’s motions for summary judgment on the negligence claim and the breach of contract claim involve two questions: (1) whether the scope of the release that Mr. Alderman gave to his property damage insurer was broad enough to include the negligence claim against BCI and (2) whether BCI’s engineering work on the investigation and report met the applicable standard of care.

II. THE FACTUAL BACKGROUND

In January 2007, Mr. Alderman became aware of a possible sinkhole problem at his residence in Lakeland. He contacted his insurer, State Farm Florida Insurance Company, and met with an adjuster. Afterward, Mr. Alderman hired BCI, an engineering firm, to help him address the problem. BCI performed its work on the project in two distinct stages, an investigative phase and a remediation phase.

The investigative phase of the work began on February 9, 2007, when Mr. Aider-man entered into a written contract with BCI for the performance of a geotechnical subsidence investigation. The scope of the services called for by the contract included an on-site inspection, appropriate testing, and the preparation of a report documenting the results of the investigation.

On March 21, 2007, BCI completed its geotechnical report presenting the results of the subsidence investigation. In the report, BCI opined “that the distress to the Alderman residence is the result of a combination of factors, including possible sinkhole activity.” BCI recommended a program of subsurface compaction grouting to stabilize Mr. Alderman’s residence against further settlement. The proposed grouting would be performed by a foundation repair contractor, not BCI. But BCI’s report also made the following recommendation for the second, or remediation, phase of its work: “In order to ensure compliance with the finding of this study and project specifications, we recommend that BCI be retained to evaluate the contractor bids and provide project monitoring and oversight services during the grouting operations.”

Mr. Alderman hired Certified Foundations, Inc. (CFI), to implement the sinkhole stabilization program recommended by BCI at his residence. CFI’s written proposal for the remediation work listed BCI as the geotechnical engineer for the project. The proposal provided further: “This proposal is based on the geotechnical exploration provided. All work shall be in accordance with this proposal and any further direction from BCI, the engineer of record.”

On April 5, 2007, BCI’s manager for the Alderman project sent a request for budget approval for the second phase of the project — the remediation phase — to State Farm’s adjuster. BCI’s request for budget approval for the remediation phase of its work said, in pertinent part:

BCI Engineers & Scientists, Inc. is pleased to have been selected to supervise the Compaction and Chemical Grout remediation program that was recommended in our Subsidence Investigation Report. We will perform the following tasks:
• Monitoring of grout casting installation
• Monitoring of compaction grout injection
• Layout and monitoring of chemical grout injection
The cost for these services will be $16,803. Please acknowledge your approval by signing below and returning it to us so that we may move forward. Should you have any questions or comments, please contact us. Thank you.

State Farm’s adjuster promptly signed the request to indicate his acknowledgment and acceptance and returned it to BCI.

CFI performed the grouting, and BCI supervised the project as Mr. Alderman’s engineer. During the grouting process, the septic tanks on the property ruptured, causing sewage effluent to back up into parts of the house. As a result, Mr. Alderman had to hire a water damage and restoration contractor to clean the affected areas of the house. More important, once the grouting process was completed, Mr. Alderman continued to experience cracking and other damage to his residence attributable to its ongoing settlement. In Mr. Alderman’s view, the grouting program recommended by BCI and implemented by CFI had not fixed the problem.

III. THE PROCEDURAL BACKGROUND

In June 2008, Mr. Alderman filed an action against BCI, CFI, and the water damage contractor. In his complaint, Mr. Alderman asserted two claims against BCI: Count I (negligence) and Count V (breach of contract). The allegations of negligence against BCI related to its performance on the second phase of the work, i.e., supervising the remediation work that was undertaken by CFI. In his claim for breach of contract, Mr. Alderman alleged that BCI had breached the written contract for the first phase of the work, i.e., the geotechnical subsidence investigation.

BCI answered the complaint and raised numerous affirmative defenses. After conducting discovery, BCI moved for summary judgment on both the negligence and breach of contract claims. The circuit court granted BCI’s motion on the negligence claim but denied the motion on the breach of contract claim. Later, BCI renewed its motion for summary judgment on the breach of contract claim, and the circuit court granted the motion, which left Mr. Alderman with no claims remaining against BCI. Accordingly, the circuit court entered a final judgment in favor of BCI and against Mr. Alderman. This appeal followed.

IY. THE STANDARD OF REVIEW

The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) “the moving party is entitled- to a judgment as a matter of law,” Aberdeen at Ormond Beach, 760 So.2d at 130. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an. issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

V. THE NEGLIGENCE CLAIM

BCI based its motion for summary judgment on the negligence claim on certain language appearing in a release that Mr. Alderman had signed and delivered to State Farm when he settled his insurance claim. BCI was not identified by name in the release. Nevertheless, BCI claimed that the coverage of the release was extensive enough to cause the release of Mr. Alderman’s negligence claim against BCI in addition to his insurance claim against State Farm.

The instrument that Mr. Alderman signed and delivered to State Farm in connection with the settlement of his insurance claim is titled “General Release of All Claims.” Mr. Alderman is identified in the release as the “Releasor.” The instrument provides, in pertinent part:

1. ... By executing this General Release, Releasor ... does hereby fully and completely release and discharge STATE FARM FLORIDA INSURANCE COMPANY (and all parent and subsidiary companies affiliated with it in anyway [sic]), hereinafter referred to collectively as “Releasees,” from any and all current or future claims, rights[,] and actions whatsoever, whether ripe or contingent, arising in relation to the filing of insurance claims by Releasor relative to or associated with insurance coverage for the [Alderman residence].
2. NOW THEREFORE in consideration of the payment [of the settlement amount], the receipt and sufficiency of which is hereby acknowledged, the Re-leasor agrees as follows:
(a) The Releasor does hereby ... release, discharge, acquit, and indemnify Releasees, and their officers, directors, shareholders, executors, administrators, insurers, insureds, suppliers, distributors, attorneys, contractors, subcontractors, successors, privies, assigns, associations, parents, subsidiaries, holding companies, or partnerships of and from any and all claims ... whatsoever including but not limited to any coverage dispute, complaints regarding claims handling or bad faith, or the termination of insurance of the Property by the Re-leasees which the Releasor now has or which may hereafter accrue on account of or in any way growing out of any and all known or unknown, foreseen and unforeseen, property damage and any consequences of the activities listed in paragraph 1 above. The parties agree that the terms of this Release do not impact any rights of either Releasor or Releasees from seeking damages (either tort, contract, or subrogation) against unrelated entities.

(Emphasis added.)

In its argument, BCI relied on the boilerplate language in the instrument that released State Farm’s “contractors” and “privies.” According to BCI, it was one of State Farm’s contractors and privies because BCI and State Farm had contracted in the budget approval request for BCI to supervise the remediation work performed by CFI.

The circuit court agreed that the instrument in which Mr. Alderman released his insurance claim against State Farm was also effective to release his claim against BCI for alleged negligence in supervising CFI’s remediation work. In the order granting BCI a summary judgment on Mr. Alderman’s negligence claim, the circuit court ruled, in pertinent part:

4. A dispute arose as to the amount of damage regarding the insurance claim. [Mr. Alderman] and [State Farm] mediated a settlement on 19 February 2008. In consideration for the monetary payments by the insurance carrier, [Mr. Alderman] executed a General Release of All Claims which specifically and unambiguously included [State Farm] and its contractors from all claims “arising in relation to the filing of insurance claims” for damage to [Mr. Alderman’s] property.”
5. The allegations of Count One involve the services performed by BCI under its contract with [State Farm]. The undisputed facts support the argument of BCI that the general release includes them as a contractor in privy ■with [State Farm] as it relates to the negligent acts alleged in Count One. The so-called “carve-out” sentence of the release clearly excludes “unrelated entities,” and is not inconsistent or ambiguous with the clear language which specifically includes contractors and those in privy with [State Farm],

We disagree with the circuit court’s ruling.

The circuit court erred in entering a summary judgment for BCI on the negligence claim based on the language of the release for two reasons. First, BCI’s argument hinged on its status as one of State Farm’s contractors or privies. But there is a substantial issue of fact concerning whether BCI ever had a contract with State Farm.

On the one hand, BCI and the circuit court viewed the signature of State Farm’s adjuster on the budget approval request for BCI’s role in the remediation phase of the work as creating a contract between State Farm and BCI. On the other hand, Mr. Alderman argued that the contract for the remediation phase of the work — like the contract for the investigative phase— was between BCI and him. Under Mr. Alderman’s view of the facts, the adjuster merely approved BCI’s budget for the work as Mr. Alderman’s insurance company, not as an independent contracting party-

Several facts support the view that the contract for the remediation phase of the work was between Mr. Alderman and BCI, not between BCI and State Farm. Mr. Alderman hired BCI initially, and he had a written contract with BCI for the first phase of the work. BCI’s report to Mr. Alderman recommended that he hire BCI to supervise the remediation phase. The conclusion that Mr. Alderman — not State Farm — hired BCI for the remediation phase of the work is consistent with these facts. Also, CFI’s proposal for the remediation work was addressed to Mr. Aider-man, not to State Farm, and the proposal listed BCI as the engineer of record for the project. In other words, BCI was Mr. Alderman’s engineer for the project, not State Farm’s. Finally, State Farm’s obligation to pay BCI arose from its contract with Mr. Alderman. Here, the circumstances are comparable to an automobile insurer’s approval of a body shop’s estimate for the costs of repairs to an insured’s automobile. Despite the insurer’s approval of the repair estimate, the contract for the repairs remains between the automobile owner and the body shop, not between the body shop and the insurer. Because there was a disputed issue of fact concerning whether BCI qualified as one of State Farm’s contractors or privies, the circuit court erred in granting BCI a summary judgment on Mr. Alderman’s negligence claim.

The second reason the circuit court erred in granting a summary judgment on the negligence claim arises from the language of the release. Thus we turn now to an examination of the release.

The only potential defendant specifically named in the release is State Farm. Thus for the instrument to be effective to release BCI or other parties not specifically named, such intent must be clearly expressed. See Hurt v. Leatherby Ins. Co., 380 So.2d 432, 433 (Fla.1980). In construing the release and determining the intent of the parties, we examine the entire instrument and not just isolated portions of it. See Commercial Trading Co. v. Zero Food Storage, Inc., 199 So.2d 109, 112 (Fla. 3d DCA 1967).

In paragraph 1 of the instrument, Mr. Alderman released State Farm and its affiliated companies from claims “arising in relation to the filing of insurance claims by [Mr. Alderman] relative to or associated with insurance coverage for the” Alderman residence in Lakeland. Paragraph 2(a) of the release purports to broaden its coverage to include multiple unnamed parties who are identified only by description. Also, paragraph 2(a) expands the instru-merit’s scope to include claims accruing out of additional insurance-related disputes with State Farm “and any consequences of the activities listed in paragraph 1 above.” Of course, Mr. Alderman’s negligence claim against BCI did not arise out of an insurance-related dispute with State Farm. Also, even as expanded, the instrument’s scope remains limited to claims that may accrue on account of or grow out of the activities listed in paragraph 1, i.e., “arising in relation to the filing of insurance claims by [Mr. Alderman] relative to or associated with insurance coverage for the” Alderman residence.

BCI insists that Mr. Alderman’s negligence claim against it is within the scope of the release. According to BCI, “[i]t is clear that [the negligence] claims arise in relation to the filing of insurance claims by Alderman and that they are relative to or associated with insurance coverage for ... the Alderman residence.” Once again, we disagree.

Mr. Alderman’s negligence claim against BCI is for its alleged negligence in supervising CFI’s remediation work on the property. BCI’s performance of its engineering work on the Alderman residence is unrelated to Mr. Alderman’s insurance coverage with State Farm, his decision to make a claim under the policy, or State Farm’s handling of the claim. The circumstance that Mr. Alderman had insurance coverage with State Farm that provided a source for the payment of BCI’s fees does not make the cause of action for negligence a claim that arises “in relation to the filing of insurance claims” by Mr. Aider-man. The conclusion that the negligence claim does not fall within the scope of the release is consistent with the “carve-out” provision in paragraph 2(a) of the release. The “carve-out” provision preserved the rights of both Mr. Alderman and State Farm to seek damages “against unrelated entities.”

It follows that BCI was not entitled to a summary judgment on the negligence claim. The trial court erred in ruling to the contrary.

VI. THE BREACH OF CONTRACT CLAIM

Mr. Alderman’s claim for breach of contract against BCI was for an alleged breach of the written contract for the first phase of the work, i.e., the initial investigation and the preparation of the subsidence investigation report. When BCI renewed its motion for summary judgment on the breach of contract claim, it raised multiple grounds in support of its motion. In one of these grounds, BCI claimed: “No geo-technical engineer has alleged BCI fell below the standard of care in the performance of the Alderman contract, and therefore there is no breach of contract action that can be maintained with regards [sic] to Alderman’s contract with BCI.” In opposition to this ground, Mr. Alderman relied on the deposition testimony of his expert witness, Sunil Gulati, P.E. Mr. Gu-lati is a geotechnical engineer with extensive experience in sinkhole investigations, foundation designs, foundation remediation, and building inspections.

After a hearing during which the parties reviewed the deposition testimony of Mr. Gulati at length, the circuit court ruled that BCI was entitled to a summary judgment based on the absence of any evidence that BCI had breached the applicable standard of care. In its order granting the summary judgment, the circuit court ruled, in pertinent part:

[N]o one disputes that the grouting recommended by BCI was a necessary element, if not the ultimate means, of addressing the sinkhole problem.
BCI undertook the contractual responsibility to identify the problem affecting [Mr. Alderman’s] residence and fulfilled the terms of that Contract with the delivery of its report. Therefore, BCI completed its contractual obligation and is not in breach of the Contract as is alleged in Count V of [Mr. Alderman’s] Complaint.

The circuit court expressly declined to rule on the remaining grounds for summary judgment asserted by BCI in its motion.

Under its contract to render professional engineering services on behalf of Mr. Alderman, BCI was obligated “to perform such services in accordance with the standard of care used by similar professionals in the community under similar circumstances.” Lochrane Eng’g, Inc. v. Willingham Realgrowth Inv. Fund, Ltd., 552 So.2d 228, 282 (Fla. 5th DCA 1989). In his deposition, Mr. Gulati testified to what he said were numerous breaches of the standard of care by BCI in connection with its sinkhole investigation and the preparation of its report. Mr. Gulati also testified in detail concerning how BCI’s numerous breaches of the standard of care had resulted in damage to Mr. Alderman. Granted, one could draw an inference from portions of Mr. Gulati’s deposition testimony — considered in isolation — that BCI had actually met the standard of care. But to draw such an inference, one would have to disregard the thrust of Mr. Gulati’s testimony as a whole.

Here, Mr. Gulati’s testimony raised a substantial question of fact concerning whether BCI’s performance had met the applicable standard of care. Under these circumstances, the circuit court erred in granting BCI’s motion for summary judgment on the breach of contract claim. When there is an issue of fact concerning whether a professional has met the standard of care, it is error to grant a summary judgment. Estate of Rotell ex rel. Rotell v. Kuehnle, 38 So.3d 783, 790 (Fla. 2d DCA 2010); Stuyvesant Ins. Co. v. Square D. Co., 399 So.2d 1102, 1104 (Fla. 3d DCA 1981); Schauer v. Blair Constr. Co., 374 So.2d 1160, 1161-62 (Fla. 4th DCA 1979). Because the circuit court expressly declined to address any of the other grounds asserted in BCI’s motion for summary judgment, we do not address them either.

VIL CONCLUSION

For the foregoing reasons, we reverse the final judgment in favor of BCI and remand this case to the circuit court for further proceedings. On remand, the circuit court may consider the remaining grounds for summary judgment on the breach of contract claim asserted in BCI’s renewed motion.

Reversed and remanded.

CASANUEVA, J., Concurs.

SHEPHERD, FRANK A., Associate Judge, Concurs specially.

SHEPHERD, FRANK A., Associate Judge,

Specially concurring.

I fully concur with sections I, II, III, IV, and VI of the court’s opinion. I concur only in the result of section V.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Willie F. JONES, Appellant, v. Carolyn H. JONES, Appellee.
    No. 5D10-637.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.

      Willie F. Jones, West Palm Beach, pro se.
    Carlton Pierce of Carlton Pierce, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

Willie Jones appeals the final judgment dissolving his marriage to Carolyn Jones. His dispute concerns an order setting aside a settlement agreement which was reached at mediation. Based on a review of the docket sheet, it appears the former wife filed a motion seeking to set aside the settlement agreement. The final judgment reflects that the trial court granted the motion based on “intentional non-disclosure of his retirement account and the associated value.”

The lack of a record or substitute as provided under Florida Rule of Appellate Procedure 9.200(b)(4) is fatal to this appeal. See Mayfield v. Mayfield, 929 So.2d 671 (Fla. 5th DCA 2006). Accordingly, we affirm.

AFFIRMED.

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


author: SAWAYA, J.

text:
    Jennifer AGUIRRE, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D10-1615.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.

      Jennifer Aguirre, Longwood, pro se.
    Louis A. Gutierrez, Sr. Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee.
   SAWAYA, J.

Jennifer Aguirre appeals a final order issued by the Unemployment Appeals Commission (the Commission) affirming an unemployment compensation appeals referee’s determination that Aguirre was ineligible for unemployment benefits because she failed to provide specific information to show she was conducting an active work search while she was receiving benefits. Because Aguirre’s testimony of her diligent job search was adequate to support her claim that she had actively sought employment and was available for work while she was receiving unemployment benefits, we reverse.

At a hearing on Aguirre’s claim for benefits, Aguirre testified that she engaged in an extensive job search. She revealed that she made job contacts every week and that she sent her resume out to hundreds of employers. In particular, Aguirre testified that she sent resumes to “Florida Hospital, Orlando Regional Healthcare Systems[,] ... healthcare recruitment companies, [and] individual private care doctors.” She further stated, “I literally sent my resume out probably ten times a day.” The referee questioned her about whether she had kept a record of her job search, and she testified that she had not. The transcript of the hearing reveals that Aguirre was caught by surprise at that request. She stated that she was never notified that she had to provide the specific dates each application was made or how many were submitted each week. The referee found that Aguirre “failed to provide specific information to show she was conducting an active work search” and concluded that Aguirre was ineligible for benefits. The Commission affirmed the referee’s determination of ineligibility. As a result, Aguirre was to repay a certain amount of benefits she was overpaid.

The court in Grell v. Florida Unemployment Appeals Commission, 44 So.3d 201, 205 (Fla. 1st DCA 2010), addressed the issue of the requirement of a job search record or log. The court explained:

We have located no statute or rule imposing a strict requirement that a claimant file a written job log specifying the jobs to which he or she has applied, and the UAC has not cited one. The rule most on point is Florida Administrative Code Rule 60BB-3.015(2)(e), which provides as follows:
At any time during the pendency of any claim for benefits, the Agency may make a written request for information or documentation from the claimant regarding any question whose resolution is necessary to ascertain the claimant’s entitlement to benefits or the amount of any such benefits. The failure of the claimant to respond will result in a determination made from the available evidence.
Even this rule, however, does not specifically provide for disqualification based solely on the absence of a job log. See Fla. Admin. Code R. 60BB-3.015(2)(e). Generally, a referee may accept a claimant’s testimony alone as competent, substantial evidence to support a finding. See Anderson v. Unemployment Appeals Comm’n, 822 So.2d 563, 567 n. 4 (Fla. 5th DCA 2002). Therefore, the “available evidence” may include a claimant’s oral testimony regarding his job search. Whether such evidence is credible is, of course, within the province of the appeals referee to decide. See Howell & O’Neal, 934 So.2d at 575 (observing that this Court cannot make credibility determinations or substitute its judgment for that of the referee); cf. Chapman, 15 So.3d at 721 (reversing and remanding for findings where it was unclear whether the referee would have denied benefits “based solely on [the claimant’s] failure to provide the state with documentation of her job contacts and the dates of those contacts”).

Id. at 205; see also Carilus v. Unemployment Appeals Comm’n, 51 So.3d 653, 655 (Fla. 4th DCA 2011) (“We agree with the First District’s conclusion [in Grell ] that a job search log is not required and that the referee must determine the case on available evidence, including the claimant’s oral testimony regarding his job search.”). We agree with the analysis in Carilus and Grell.

In the instant case, Aguirre testified that she made a diligent job search and that she was available for work. Both Carilus and Grell indicate that testimony that a claimant has submitted multiple resumes to employers providing employment reasonably suited to the claimant’s skills and experience each week is sufficient evidence of a job search. The Commission contends, however, that even if Aguirre sent out multiple resumes every day, she did not meet her burden of showing eligibility for benefits because she did not testify as to the specific date that she sent a resume to each employer. In essence, the Commission contends that it can require the testimony of the claimant to reveal the same information that would be kept in a written job search log or record. While the Commission may consider the number of job contacts made by a claimant and the dates those contacts were made, see Fla. Admin. Code R. 60BB-3.021(3)(a), this rule does not impose a strict requirement that the claimant present information that specific in order to prevail on a claim for benefits. Carilus; Grell. Moreover, if such a strict requirement is to be imposed on claimants, they should be properly notified in advance so they are not caught by surprise like Aguirre was in the instant case.

Although a job search record or log is not required, it appears from the record that the referee’s decision was based on Aguirre’s failure to have made one and to testify to the information kept in that record. We believe this is a legally incorrect basis to deny her claim for benefits. Aguirre’s testimony was sufficient to demonstrate that she made an adequate number of job contacts while she was receiving benefits, which is the pertinent determination under Rule 60BB-3.021(3)(a). Accordingly, we reverse the order under review and remand this case for entry of an order awarding Aguirre benefits.

REVERSED and REMANDED.

LAWSON and JACOBUS, JJ., concur.


text:
    Michael CHESTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1985.
    District Court of Appeal of Florida, Fifth District.
    Sept. 6, 2011.

      Michael A. Chester, Gainesville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. Sullivan v. State, 913 So.2d 762 (Fla. 5th DCA 2005).

MONACO, TORPY and JACOBUS, JJ, concur.


author: CIKLIN, J.

text:
    Ronnie WITCHARD, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-5343, 4D09-5344, 4D09-5345.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Ronnie Witchard appeals from the trial court’s order which modified the conditions of his sex offender probation to include mandatory electronic monitoring pursuant to section 948.063, Florida Statutes (2008). Section 948.063 mandates the electronic monitoring of certain sex offenders who violate their probation and remain on probation after the violation. Because we hold that section 948.063 does not apply to probationers such as Witchard whose offenses were committed before the statute’s effective date, we remand for resentencing to allow the trial court to exercise its discretion to determine whether electronic monitoring should be imposed.

In 2005, Ronnie Witchard entered a plea of nolo contendere in three different criminal cases to multiple charges of lewd and lascivious battery for engaging in sexual activity with a person twelve years of age or older but less than sixteen years of age. Importantly, all of the crimes to which Witchard pled were alleged to have occurred between June 1, 2001 and May 31, 2004. The trial court sentenced him to a total of twenty years of sex offender probation.

In June of 2009, Witchard was charged by affidavit with violating his probation. The affidavit alleged that Witchard had committed the criminal offense of driving while license suspended and that Witchard had failed to pay various costs. Witchard admitted to the violation and the court continued his probation, but over Witch-ard’s objection, modified the conditions of his probation to include electronic monitoring pursuant to the Jessica Lunsford Act (the “JLA”). On September 29, 2009, Witchard filed a motion to withdraw his plea claiming that he did not agree to the electronic monitoring.

During a hearing on November 25, 2009, the trial court granted Witchard’s motion to withdraw his plea. At the same hearing, Witchard again pled to the violation of probation, but this time with an express reservation as to whether he was subject to the provisions of the JLA requiring electronic monitoring after a violation of sex offender probation. The trial court subsequently modified Witchard’s probation to include mandatory electronic monitoring pursuant to the JLA. In modifying the probation to include electronic monitoring, the trial court noted that it believed, “based upon the reading of the Statute, that [Witchard was] subject to the terms and conditions of [the] JLA,” and that Witchard fell “within that purview, as a result of this particular violation of supervision.”

The applicability of the JLA to Witchard is the sole issue on appeal. Witchard argues that the trial court erred in finding that he was subject to the provisions of section 948.063 that require a trial court to order GPS monitoring as a condition of probation for certain probationers who violate probation and are reinstated. The statute became effective on September 1, 2005, but Witchard committed all of his crimes before June 1, 2004. Thus, Witch-ard argues that section 948.063 does not apply to him either because the legislature did not intend for the mandatory GPS monitoring condition to apply to probationers whose crimes were committed before the statute’s effective date, or because retroactive application of this section to Witchard’s offenses would violate the ex post facto clauses of the United States and Florida Constitutions. We agree.

Because the issue raised by Witchard is one of constitutional and statutory interpretation, our review is de novo. See Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 485 (Fla.2008).

Section 948.063(1), Florida Statutes, mandates the electronic monitoring of certain sex offenders who violate their probation and remain on probation after the violation. The statute reads:

If probation or community control for any felony offense is revoked by the court pursuant to s. 948.06(2)(e) and the offender is designated as a sexual offender pursuant to s. 943.0435 or s. 944.607 or as a sexual predator pursuant to s. 775.21 for unlawful sexual activity involving a victim 15 years of age or younger and the offender is 18 years of age or older, and if the court imposes a subsequent term of supervision following the revocation of probation or community control, the court must order electronic monitoring as a condition of the subsequent term of probation or community control.

§ 948.063(1), Fla. Stat. (2008) (emphasis added). Section 948.063(1) was enacted as part of the JLA and became effective on September 1, 2005. See Ch. 2005-28, § 17, at 227, Laws of Fla. Witchard was convicted for crimes that were committed between June 1, 2001 and May 31, 2004. Thus, all of Witchard’s crimes were committed before the statute became effective.

From the text of the JLA, it is unclear if the Florida Legislature intended section 948.063 to apply to probationers who committed their crimes before the JLA’s effective date. “Where legislative intent is unclear from the plain language of the statute, we look to canons of statutory construction.” Kasischke v. State, 991 So.2d 803, 811 (Fla.2008). One of the most fundamental of these rules is that “[w]e are ... obligated to construe statutes in a manner that avoids a holding that a statute may be unconstitutional.” State v. Giorgetti, 868 So.2d 512, 518 (Fla.2004).

Witchard argues that retroactive application of this section to probationers whose offenses were committed before the JLA’s effective date would violate the ex post facto clauses of the United States and Florida Constitutions. We agree.

“The constitutional prohibition of ex post facto laws forbids the enactment of ‘laws with certain retroactive effects.’ ” Shenfeld v. State, 44 So.3d 96, 100 (Fla.2010) (quoting Stogner v. California, 539 U.S. 607, 610, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003)). The Florida Supreme Court has enumerated four categories of ex post facto laws and has held that “[a]ll ex post facto claims must be evaluated in the light of these four categories.” Id. The category which is applicable to this case is a “law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.” See id.

Thus, the issue here boils down to whether the mandatory electronic monitoring requirement of section 948.063 constitutes a greater punishment than was applicable to Witchard’s crimes when committed. To date, no Florida appellate court has directly addressed this question. Nevertheless, Florida courts have consistently treated mandatory electronic monitoring as a sentencing enhancement — i.e., punishment. See, e.g., Grosso v. State, 2 So.3d 362, 365 (Fla. 4th DCA 2008) (holding that the trial court erred in modifying probation to include electronic monitoring outside the sixty-day period specified in Rule 3.800(c) because the state “was not seeking to modify the probation order to require sexual offender registration, but to add electronic monitoring”); Fields v. State, 968 So.2d 1032, 1033-34 (Fla. 5th DCA 2007) (finding no double jeopardy violation where the trial court ordered section 948.063 electronic monitoring forty days after the initial modification of probation because the trial court had failed “to impose a mandatory penalty at the original sentence” (emphasis added)); Harroll v. State, 960 So.2d 797, 798 (Fla. 3d DCA 2007) (recognizing that modifying the probation to include the mandatory condition of electronic monitoring constituted a “more severe sentence” with “harsher terms”).

Furthermore, the Florida Legislature also seems to recognize that mandatory electronic monitoring is a form of punishment. As part of the JLA, the Florida Legislature added the requirement that a trial court impose mandatory electronic monitoring on certain sex offenders who are placed on probation, but limited the requirement to probationers whose crimes were committed on or after September 1, 2005. See § 948.30(3), Fla. Stat. (2005). If the mandatory electronic monitoring was only a civil remedy, there would have been no reason for the legislature to limit the application of this subsection.

Based on the Florida appellate courts’ treatment of electronic monitoring as a form of criminal penalty, we believe that applying section 948.063 to a probationer whose crimes were committed before September 1, 2005 would violate the constitutional prohibition of ex post facto laws. As such, we construe section 948.063 as applying only to probationers whose offenses were committed on or after September 1, 2005 — the effective date of the JLA.

Such a holding is consistent with Burrell v. State, 993 So.2d 998 (Fla. 2d DCA 2007) and Harder v. State, 14 So.3d 1291 (Fla. 1st DCA 2009). In both cases, the appellate courts found that the mandatory electronic monitoring requirements of the JLA were inapplicable because the underlying crimes were committed before the JLA’s effective date. Although neither case addresses section 948.063, the defendants in both cases were being resentenced following violations of probation.

We also recognize that our holding is inconsistent with the Fifth District’s holding in State v. Petrae, 85 So.3d 1012 (Fla. 5th DCA 2010). In Petrae, the Fifth District granted the state’s certiorari petition and found that the circuit court had departed from the essential requirements of law by modifying the defendant’s probation and deleting the condition requiring electronic monitoring. Id. at 1013. The defendant in Petrae was charged by information on November 21, 2003 (thus his crimes had to be committed before September 1, 2005). The Petrae defendant violated his community control in 2006. In its opinion, the court does not address the issue of whether mandatory electronic monitoring constitutes a form of criminal punishment.

The state argues that even if we hold that the mandatory imposition of electronic monitoring is a form of criminal penalty, section 948.063 does not impose a greater punishment than was available before its enactment because the trial court could have imposed electronic monitoring even before section 948.063 was enacted. The state is correct in its assertion that the trial court could have imposed electronic monitoring prior to the enactment of the statute. See § 948.03(5)(b)(5), Fla. Stat. (2003); Burrell, 993 So.2d at 999 (finding that “electronic monitoring could have been imposed on [the defendant], even without the Act”). Nevertheless, it is well settled that a law which removes discretion from the trial court in sentencing cannot be applied retroactively. See Lindsey v. Washington, 301 U.S. 397, 400-02, 57 S.Ct. 797, 81 L.Ed. 1182 (1937) (finding an ex post facto violation where law changing discretionary maximum of fifteen years to mandatory fifteen-year sentence was applied to crimes committed before the law’s effective date). See also Miller v. Florida, 482 U.S. 423, 432-33, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) (finding an ex post facto violation even though the defendant could have received the same sentence under the sentencing guidelines in place when the crime was committed because, under the new guidelines, the sentence was no longer reviewable because it now fell within the presumptively reasonable range).

In summary, we hold that the section 948.063 requirement that a trial court impose electronic monitoring on certain sex offenders who violate their probation only applies to probationers whose offenses occurred on or after September 1, 2005. Witchard’s offenses were all committed on or before May 31, 2004; therefore, section 948.063 does not apply to him. “Because it is unclear whether the trial court would have imposed electronic monitoring as a condition of probation had it known it was not mandatory, we remand for resentencing to allow the trial court to exercise its discretion to determine whether electronic monitoring should be imposed.” Donohue v. State, 979 So.2d 1060, 1062 (Fla. 4th DCA 2008) (alteration removed) (quoting Burrell, 993 So.2d at 999-1000).

Reversed and remanded.

DAMOORGIAN and LEVINE, JJ., concur.

      . Contrarily, in other sections of the JLA, the legislature clearly indicated that those provisions only applied to probationers whose crimes were committed on or after September 1, 2005. See, e.g., §§ 947.1405(10), 948.30(3), Fla. Stat. (2008).

      . In Johnson v. United. States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), the United States Supreme Court explained that when a probationer is sanctioned for violating the conditions of his or her probation, the penalties are attributed to the original conviction rather than the violation. Id. at 700-01, 120 S.Ct. 1795. As such, it would be an ex post facto violation to apply a law that increases the penalty for a violation of probation to a probationer who committed his or her crimes before the law became effective regardless of the date of the violation of probation.

      . The question of whether mandatory electronic monitoring constitutes criminal punishment or a civil regulatory scheme is a divisive one that has resulted in differing outcomes and multiple split decisions in other jurisdictions. See State v. Bowditch, 364 N.C. 335, 700 S.E.2d 1, 13 (2010) (holding in a 4-3 split decision that mandatory electronic monitoring does not constitute criminal punishment); Commonwealth v. Cory, 454 Mass. 559, 911 N.E.2d 187, 198 (2009) (holding in a 4 — 3 split decision that mandatory electronic monitoring was a form of criminal punishment); Doe v. Bredesen, 507 F.3d 998, 1004 (6th Cir.2007) (holding in a 2-1 decision that a Tennessee law requiring mandatory electronic monitoring was not an ex post facto law because the electronic monitoring was part of a civil, nonpunitive regime).

      . Both cases dealt with the section 948.30(3), Florida Statutes, requirement that a trial court imposing an initial sentence which includes probation on certain sex offenders must include mandatory electronic monitoring as a condition of the probation. Section 948.063, however, deals with reinstatement or modification of probation following a violation of probation.

      . We recognize that section 948.063(2) did not become effective until July 1, 2006. See Ch. 2006-235, § 2, at 2710, Laws of Fla. That subsection requires the trial court to modify the sex offender probation to include electronic monitoring for any violation of probation even if the trial court does not revoke the probation as a result of the violation. § 948.063(2), Fla. Stat. (2008). We decline to make any determination as to whether section 948.063(2) would be applicable to a probationer whose offenses were committed on or after September 1, 2005, but before July 1, 2006.


author: WARNER, J.

text:
    Kevin Michael BARCOMB, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-401.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Kevin Barcomb appeals his conviction for felony driving while license revoked. During his trial the prosecutor attempted to impeach him by asking him whether he had been convicted of a felony even though the prosecutor did not have a certified copy of any conviction and only had a NCIC “rap” sheet. We hold that the prosecutor improperly impeached the defendant, and the error in this case was not harmless.

Officer Caudill stopped Barcomb for speeding. When Barcomb could not produce a driver’s license, the officer verified that Barcomb’s license was revoked. The officer questioned Barcomb to determine whether there was some sort of an emergency. Barcomb said his girlfriend, who was in the front passenger seat, had a headache and that was why he was driving. His son was in the back seat. The officer issued Barcomb a citation for speeding and driving with a suspended license but did not arrest him. He then asked the girlfriend if she could drive. When she agreed, he allowed her to drive from the scene. Barcomb was later charged with felony driving while license revoked. The state rested after the officer’s testimony.

Before beginning the defense, Bar-comb’s attorney requested the court to prevent the prosecutor from questioning Barcomb about prior convictions as the prosecutor had informed defense counsel of the existence of the conviction only the night before. The state believed that Bar-comb had previously been convicted of a felony in New York based upon an NCIC report showing a 1996 conviction in New York for DUI for which he received five years of probation. The defense disputed the record and asked the court to require that the state not cross-examine on the conviction unless the prosecutor could prove that Barcomb was, in fact, a convicted felon from New York. The judge denied the request, finding that if the prosecutor had a good faith basis to ask the question, “Have you ever been convicted of a felony?” she could ask it. The prosecutor stated that her intention was to ask Bar-comb if he was a convicted felon and if the defendant answered “no” then the inquiry would end there because the state didn’t have the certified copy of any conviction. She would then get a certified copy and prosecute the defendant for perjury. In ruling for the state, the judge relied on Peterson v. State, 645 So.2d 10 (Fla. 4th DCA 1994), and concluded that if the state has a good faith belief that the defendant has a prior criminal conviction, the prosecutor may go ahead and ask the impeachment question. The NCIC rap sheet allowed the state to have a good faith belief of a prior conviction.

The defense then presented its ease, relying on the defense of necessity to the charge. Barcomb’s girlfriend testified that after finishing their dinner at a local restaurant, she was driving home but had a migraine headache and could not drive any further. She asked Barcomb to drive because she felt very ill, and there was no other option. Barcomb’s son also testified that he was in the vehicle that evening and that the girlfriend was sick and couldn’t drive straight.

Barcomb testified that, after they had gone out to eat, his girlfriend was driving. She was swerving, said she didn’t feel well, and had to pull over as she was nauseous. She asked him to drive, and as they were on 1-95, he didn’t feel safe simply sitting on the side of the road. He felt that driving was the only way to get his family home safely in a way that didn’t require them to sit there for hours. He conceded that he didn’t have a driver’s license and that it had been suspended because he previously had a DUI. He didn’t know if it was a misdemeanor DUI or felony DUI.

On cross-examination the prosecutor asked Barcomb if he had ever been convicted of a felony. He responded that he was unsure whether he had ever been convicted of a felony. The prosecutor asked no other questions regarding a prior felony.

The jury found Barcomb guilty as charged and he was sentenced to a year in the county jail. He now appeals.

A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion. Globe v. State, 877 So.2d 663, 672 (Fla.2004). However, a court’s discretion is limited by the evidence code and a court’s erroneous interpretation of the evidence code is subject to de novo review. Gilliam v. Smart, 809 So.2d 905, 907 (Fla. 1st DCA 2002); Walden v. State, 17 So.3d 795, 796 (Fla. 1st DCA 2009) (appellate courts have de novo review of a trial court’s erroneous interpretation and application of Florida law).

Florida Rule of Evidence section 90.610(1) provides that:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment ...

Thus, an attorney may ask a witness, “Have you ever been convicted of a felony?” If the witness answers affirmatively, he may then be asked “How many times?” He may also be asked if he has been convicted of a misdemeanor involving dishonesty, and if he answers “yes”, how many times. See Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982), limited by Bobb v. State, 647 So.2d 881 (Fla. 4th DCA 1994).

“Questions regarding past convictions should not be asked unless the prosecutor has knowledge that the witness has been convicted of a crime and has the evidence necessary for impeachment if the witness fails to admit the number of convictions of such crimes.” Cummings, 412 So.2d at 439 (emphasis supplied). Accord, Peoples v. State, 576 So.2d 783 (Fla. 5th DCA 1991), decision approved on other grounds, 612 So.2d 555 (Fla.1992). “The requirement that the attorney have the evidence necessary for impeachment merely assures that [the attorney] will not ask questions which suggest a certain set of facts in the absence of a good faith belief that those facts are true.” Alvarez v. State, 467 So.2d 455, 456 (Fla. 3d DCA), rev. denied, 476 So.2d 675 (Fla.1985), disapproved of on other grounds, Riechmann v. State, 581 So.2d 133 (Fla.1991). Similarly, Charles Ehrhardt, Florida Evidence, section 610.6 (2007 Ed.), supports the need to have both the knowledge and a certified copy of a conviction before the questions may be asked:

Although section 90.610 speaks only to which convictions are admissible to impeach and not to the procedure that should be followed during the trial in examining a witness about prior convictions, Florida appellate decisions have established the method of using the convictions. Questions regarding past convictions should not be asked unless counsel has knowledge of a conviction and possesses a certified copy of the judgment of conviction.

The federal courts are in accord, explaining that “to ask a defendant whether he has had criminal convictions, without possessing a certified copy of the record, is fraught with possibilities of error....” See Ciravolo v. United States, 384 F.2d 54, 55 (1st Cir.1967); cited with approval in U.S. v. Constant, 501 F.2d 1284, 1288 (5th Cir.1974).

Some courts have crafted a “good faith” exception to the rule. In Alvarez, the court determined that a witness could be examined regarding prior felony convictions in Cuba where records of such convictions may be non-existent or exceptionally difficult, if not impossible, to obtain. Records from United States based convictions do not carry the same difficulty. See Peoples, 576 So.2d at 789. In Miller v. State, 605 So.2d 492, 494 (Fla. 3d DCA 1992), the court affirmed the trial court’s admission of impeaching questions regarding a defendant’s four prior federal felony convictions, where the prosecutor had an FBI rap sheet showing such convictions, and the prosecutor had made four different attempts to secure the certified copies but had been unable to obtain them prior to trial. The court found that this was sufficient to show good faith by the prosecutor.

Likewise, in Peterson, on which the trial court relied, the prosecutor had furnished to the defense in discovery copies of a report from New York from the Criminal Justice Service identifying Peterson’s convictions and certifying by sworn affidavit that the document was true. The state also had a national crime index computer printout (NCIC rap sheet) listing Peterson’s criminal record. Moreover, the defense stipulated to two prior convictions, and the prosecutor asked about only two convictions. Thus, the prosecutor had a good faith reason to ask the question, having an affidavit from another jurisdiction attesting to the truthfulness of the record.

In Williams v. State, 654 So.2d 261 (Fla. 2d DCA 1995), the Second District held it was not error for the prosecutor to ask about convictions when certified copies of the convictions were in the prosecutor’s office and after a short recess were introduced on rebuttal. The Second District held: “While we believe that the state should actually possess the certified copies in the event the defendant denied the convictions, we hold that is not necessary for the prosecutor to have the certified copies in hand prior to questioning a defendant where the copies are in the possession of the state and are available to be introduced into evidence if necessary.” 654 So.2d at 262.

In contrast to these cases, the prosecutor in this case obtained on the eve of trial only an NCIC sheet indicating a prior DUI conviction in New York. She did not notify defense counsel of her intent to use it until after the trial had started, and she did not have certified copies of the conviction or, as in Peterson, an affidavit from New York attesting to the accuracy of the report. Nor had the prosecutor attempted to secure a certified copy of the conviction, as in Miller. We agree with Peoples that we should not stray so far from the Cummings rationale so as to approve the questioning of the witness without more than an NCIC rap sheet to wave in front of a jury.

While not authoritative, 1 Florida Practice, section 610.6 addresses the issue in this -manner:

Some recent appellate decisions have relaxed the requirement that counsel possess a certified copy of the judgment of conviction if a “good faith basis” has been made to obtain the judgment of conviction. [Citing Peterson.] Under the rationale of these cases, counsel can attack credibility based upon a “rap sheet.” Others have rejected this relaxation and continue to require the certified copy. [Citing Williams.] The Florida courts should continue to require counsel cross-examining concerning a section 90.610 conviction to possess a judgment of conviction. Since rap sheets contain inaccurate entries, requiring the judgment of conviction ensures the court and jury are not misled. Additionally, inadequate trial preparation is often the reason that a certified copy has not been obtained, if such a conviction exists. Because of the potential for prejudice when the jury learns of a prior conviction, protections should exist to ensure that they are not misled at the expense of the adverse witness or party.

We agree that the mere possession of a rap sheet alone without any attempt to obtain certified copies of the convictions or corroborate the convictions is not sufficient to permit counsel to pose impeaching questions based upon prior convictions.

The state argues that any error would have been harmless because the defense counsel herself first raised the question of Barcomb’s prior convictions by asking Barcomb on direct exam about a prior conviction. Defense counsel, however, raised the issue on his direct examination of Barcomb after the trial court had already ruled that the state could ask the question about prior felonies even without having the certified copy. “[Ojnee a trial court makes an unequivocal ruling admitting evidence over a movant’s motion in limine, the movant’s introduction of that evidence does not waive the error for appellate review.” See Rodgers v. State, 948 So.2d 655 (Fla.2006), quoting Sheffield v. Superior Ins. Co., 800 So.2d 197, 203 (Fla.2001).

We cannot otherwise find that the eiTor was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Defense counsel informed the court that had she known about the conviction prior to jury selection, she would have changed her jury selection strategy. Further, as noted in some of the foregoing authorities, the reason that convictions for prior felonies are such effective impeachment is that the mere fact that a defendant has been convicted of a crime impacts his believability. See Bobb, 647 So.2d at 885. Here, Barcomb’s believability was critical to his defense of necessity to the charge. Thus, the error in denying the motion in limine was not harmless.

Reversed.

TAYLOR and CONNER, JJ., concur.


text:
    Leah SAAR, Appellant, v. WELLESLEY AT LAKE CLARKE SHORES HOMEOWNERS ASSOCIATION, INC., Appellee.
    No. 4D09-3301.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Richard W. Glenn of Law Office of Richard W. Glenn, Palm Beach Gardens, for appellant.
    Laurie G. Manoff of Dicker, Krivok & Stoloff, P.A., West Palm Beach, for appel-lee.
   WARNER, J.

The appellant challenges a final judgment foreclosing a claim of lien for unpaid condominium assessments. She claims that she had paid the assessments and that the association failed to prove that the claim of lien amount had not been paid. We reverse.

The appellant, Leah Saar, owns a home in Wellesley at Lake Clarke Shores. The homeowners’ association for the community has the power to impose assessments for common expenses. Saar was required to make quarterly payments of $755 for maintenance and a monthly special assessment of $163. Saar frequently paid the assessments late and was assessed a fee. Trouble started when Saar was not credited with a payment for a quarterly assessment of $755 due on October 1, 2005, which was around the time of Hurricane Wilma. Apparently, the association did not receive her check from that month. Six months later the managing agent for the association sent her a letter stating she owed $1,131. The letter did not identify the missed payment from October 2005. Saar responded by letter the next day stating that she had cancelled checks for all payments from January forward, for which the delinquency was claimed. On April 3, 2006, the attorneys for the association sent Saar a letter demanding payment in the amount of $1,580.61. The demand indicates it was for the quarterly assessment of $642 for January 1, 2006; and special assessments of $163 for each of four months — January, February, March and April 2006. It also included interest and late fees which, all totaled, amounted to $1,580.61. The managing agent sent Saar a copy of her payment history showing a balance due of $1,994, including late fees. In response, Saar sent the association copies of four cancelled checks totaling $1,994 which she believed paid the balance in full.

Thereafter on May 11, 2006, the attorneys for the association sent another letter demanding payment. This letter included quarterly assessments and special assessments included in the prior letter for which Saar had produced the cancelled checks showing payment. It added, however, an additional quarterly assessment of $863 for April 1, 2006 and a special assessment of $163 for May 1, 2006, in addition to $320 for attorney’s fees and $67 in interest. The demand letter acknowledged that Saar had made a payment of $1,831 on the previous demand, and it gave a new total of $1,076.49 which was claimed to be owed. Despite the acknowledgement that Saar had paid $1,831 of the previous demand, a claim of lien was filed on June 2, 2006, for three amounts which were past due: April 2, 2006 for $50.49, April 1, 2006 for $863 and May 1, 2006 for $163. In October 2007 the association filed an action to foreclose a lien imposed on Saar’s home for unpaid assessments in the amount of $1,076.49, late fees, interest and attorney’s fees. Saar defended the foreclosure pro se on grounds that she had paid and continued to pay her assessments.

At trial, the testimony provided by the association showed that Saar had paid all of the specific assessments and late fees claimed in all of the letters and the claim of lien, none of which included the October 2005 assessment. Saar also paid that amount when the non-receipt of her payment was brought to her attention. Also, since the foreclosure suit commenced, Saar changed the way that her payments were made, and she has remained current. Nevertheless, because of interest and attorney’s fees, and the fact that payments were applied to the oldest outstanding debt, the association’s records showed that she still owed it $2,252.41, consisting of interest, late fees, and attorney’s fees. Saar testified that several of her checks had not been deposited promptly by the law firm which was collecting the checks, thus causing additional late charges and interest.

The court found for the homeowners’ association and entered final judgment in the amount of $13,322.41 including attorney’s fees of $9,784 and costs of $731. It found that Saar was delinquent in her maintenance assessments from October 2005 through July 2009, in a total amount of $14,768, delinquent in special assessments of $4,402, delinquent in hurricane assessments in the amount of $1,315.08, found there was interest of $1,410.09 and late fees of $600 (for a total of $22,485.17), found attorney’s fees of $9,784 and costs of $731. However, contradictorily, the final judgment also finds that the association received from Saar payments of $20,561.76 to the association for this time period. Further, it is apparent from the testimony that Saar was not delinquent on all of these payments. The totals contained in the final judgment reflect the totals due to the association, less the payments made by Saar. Saar appeals.

The burden is on the association to prove the allegations of its complaint to foreclose a claim of lien. See, e.g., Berg v. Bridle Path Homeowners Ass’n, 809 So.2d 82 (Fla. 4th DCA 2002). In this case, the claim of lien that the association sought to foreclose was for two assessments from April and May 2006 plus a late fee. Section 718.116(5)(b), Florida Statutes, provides that “[t]o be valid, a claim of lien must state ... the amount due, and the due dates.” The testimony at trial showed that both of the assessments stated in the claim of lien, plus all the payments for assessments in the demand letters also attached to the complaint, had been paid at the time of the foreclosure. Based upon the plaintiffs exhibits, the amount due the day prior to the filing of the claim of lien was $775. Thus, the claim of lien was not only incorrect but overstated the amount due. It also never stated that the amounts claimed to be due consisted of interest and attorney’s fees.

When the April demand letter was sent, Saar made payments in excess of the amount claimed. The second demand letter made claims for some of the same assessment for which she had cancelled checks. She subsequently made additional payments. She was not informed of any other past due payments.

The claim of lien was not correct, nor did the complaint to foreclose the claim of lien further inform Saar of any other amounts claimed to be due. While the complaint alleged that at the time of filing there were delinquent unpaid assessments in the amount of $1,076, that was untrue. Only interest and attorney’s fees had not been paid, according to the testimony. In George v. Beach Club Villas Condominium Ass’n, 833 So.2d 816 (Fla. 3d DCA 2002), the court held that it is improper to “piggyback” unpled claimed assessments on top of those claimed in the claim of lien and the foreclosure complaint. “[T]he Florida Rules of Civil Procedure still require parties to give their opponents notice of what is going to be tried.” Id. at 820. Here, the complaint and the attached claim of lien, together with notices of nonpayment, did not provide notice that the actual claims being tried were the claims of interest and attorney’s fees.

This case is similar to Ocean Two Condominium Ass’n v. Kliger, 983 So.2d 739 (Fla. 3d DCA 2008). There the association filed for foreclosure of two liens on two condominium units owned by the Kligers. Because of a mix-up with their debit account, two assessments were not paid on their units. After notice of the missed assessments, they tendered checks to cover the amounts due, but the checks were refused because the claims had already gone to collection with the association’s attorneys. The trial court found that the complaint to foreclose the lien was premature. Agreeing with the trial court, the Third District noted, “Had the Association accepted and applied the tendered payments, the dispute would have been reduced to an inconsequential amount, and the Association’s attorneys could not in good faith have filed to foreclose the miniscule claim remaining.” 983 So.2d at 741. Similarly, in this case, many of Saar’s checks were held and not deposited promptly, causing additional interest and attorney’s fees.

What can be gleaned from this record is that the association and its accounting methods were woefully inadequate to correctly ascertain and give notice of the amounts claimed to be due. Because of this imperfect record-keeping, the association did not make a proper claim of lien, nor did it give sufficient notice in its complaint of its claim. Had it done so, in all likelihood this case would not have even been filed. Saar showed that she consistently made the payments required and had detailed records to support her payments, many of which were not properly credited by the association. She paid all sums due in accordance with the notices and claim of hen.

The court erred in granting final judgment foreclosing the claim of lien as stated.

Reversed for entry of a judgment in favor of the appellant.

TAYLOR and CONNER, JJ., concur.


text:
    William BEVINS and Sandra Bevins, Appellants, v. Jose ANTUNA and Juan Antuna, Allied Marine Group, Inc., a Florida corporation, Sean Fenniman, an individual, and David Gennett, an individual, Appellees.
    Nos. 4D10-1250, 4D10-2511.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Scott A. Wagner, A. Benjamin Chiriboga and Michael T. Moore of Moore & Company, P.A., Miami, for appellants.
    Roberto M. Vargas of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellees Jose Antuna and Juan Antuna.
   PER CURIAM.

William Bevins and Sandra Bevins, the would-be sellers in a contract for the sale of a yacht, appeal a summary judgment order and subsequent amended final judgment awarding the would-be buyers, Jose Antuna and Juan Antuna, money damages consisting of $45,000 plus prejudgment interest. While we affirm the trial court’s summary judgment order in its entirety, we reverse the amended final judgment to the extent that it permits the Antunas to recover “the principal sum of $45,000” from the Bevins rather than from Allied Marine Group, Inc., which according to the summary judgment order served as the escrow agent in the transaction and continues to hold the funds. We agree, however, that the Antunas should recover from the Bevins the accrued prejudgment interest on their escrow deposit from the date the funds should have been returned to them. See Am. Linens, Inc. v. Venmall Int'l. Grp., 645 So.2d 1059, 1060 (Fla. 3d DCA 1994). We affirm all remaining issues raised on appeal and cross-appeal without further discussion.

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    P.S., the father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D11-2058.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Kenneth B. Williams, Coral Springs, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

P.S., the father, appeals the final judgment terminating his parental rights as to his three children, contending that the Department did not make reasonable good faith efforts to rehabilitate him and reunify him with his children. The father has not provided this court with a full transcript of the proceedings below. “In the absence of an adequate transcript on appeal, a judgment that is not fundamentally erroneous must be affirmed.” A.L. v. Dep’t of Children & Families, 958 So.2d 606, 607 (Fla. 4th DCA 2007) (citation omitted); see also Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Affir-mance is required in the instant case, as the father seeks to challenge the sufficiency of the evidence and does not allege any error that is apparent on the face of the final judgment.

Affirmed.

TAYLOR, HAZOURI and LEVINE, JJ., concur.


text:
    STATE of Florida, Appellant, v. Kenneth BURCHETT, Appellee.
    No. 4D09-4974.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant.
    Philip J. Massa, Regional Counsel, and Randall Berman, Special Assistant Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Knipp & Kiser v. State, 67 So.3d 376 (Fla. 4th DCA 2011).

WARNER, POLEN and GERBER, JJ., concur.


text:
    Jeffrey JONES, Appellant, v. PUBLIX SUPERMARKETS, INC., a Florida corporation, Appellee.
    No. 4D10-2292.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Marlene S. Reiss of Marlene S. Reiss, P.A., Miami, for appellant.
    Edward G. Guedes and Laura K. Wendell of Weiss, Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, for appellee.
   STREITFELD, JEFFREY R., Associate Judge.

In this appeal from the trial court’s final order denying Plaintiff/Appellant’s Motion for Attorneys Fees pursuant to section 768.79, Florida Statutes (2007) and Fla. R. Civ. P. 1.442, we once again are faced with resolving issues arising from alleged ambiguities in the terms of a release contained within a proposal for settlement.

In his Complaint filed on October 15, 2007, Jones alleged that he was seriously injured when a flag pole fell from the ceiling and struck him while shopping at Publix on August 19, 2006. On February 20, 2008, Jones served a proposal for settlement pursuant to the above named statute and rule for $150,000. The proposal provided in part that “This proposal for settlement encompasses all damages and expenses associated with this claim even those damages or expenses as to which collateral source payments have been made,” and that Jones “will execute a full release of liability in favor of Publix Supermarkets, Inc., a Florida Corporation and it’s [sic] affiliated insurance company, and a Stipulation for Voluntary Dismissal.” No further summary of the release was included, nor was a copy of the proposed release attached to the proposal.

The case was tried in January, 2010, and the jury awarded Jones $278,348.61. The verdict included awards of $56,723.61 for past medical expenses, $60,000 for future medical expenses, and $26,625 for lost wages. The economic damages alone therefore totaled approximately $143,000. In addition, the jury awarded $85,000 in past pain and suffering damages, and $50,000 for future pain and suffering damages. Final Judgment on the verdict was entered on February 1, 2010.

The trial court, while noting that “everybody understands who is being released and who isn’t”, concluded that he was constrained by our decision in Papouras v. BellSouth Telecommunications., Inc. 940 So.2d 479 (Fla. 4th DCA 2006), and denied Jones’ motion because the release was neither summarized nor attached to the proposal for settlement. Our review of this denial is de novo. Papouras, 940 So.2d at 480.

In those cases where the release provisions contained within a proposal for settlement were deemed to be ambiguous, either there existed additional claims by and between the parties, or other related parties remained potentially liable and those claims might not be extinguished by the release.

Papouras involved an auto accident involving a BellSouth driver. The proposal and release were ambiguous because the proposal and release did not include the driver.

Similar ambiguities existed in Palm Beach Polo Holdings, Inc. v. The Village of Wellington, 904 So.2d 652 (Fla. 4th DCA 2005), where the general release attached to the proposal arguably could be interpreted to release all claims that might exist between the parties, and there was at least one other action pending between the parties at the time the defendant made its proposal.

While State Farm Mutual Automobile Insurance. Co. v. Nichols, 932 So.2d 1067 (Fla.2006) announces a bright line test that requires particularity when addressing a release as a condition, it is important to place that holding within the context of the facts of that case. State Farm’s proposal to settle Nichols’ PIP claim included the requirement that Nichols execute a general release that could be construed to include his pending, separate UIM claim arising out of the same accident.

In this case, there are no other claims, and there are no other potentially liable related parties. Therefore, under these facts and circumstances, the release provisions of Jones’ proposal were sufficiently clear, “leaving no ambiguities so that the recipient can fully evaluate its terms and conditions.” State Farm, 932 So.2d at 1079; Papouras, 940 So.2d at 483; Polo Holdings, 904 So.2d at 653.

We continue to observe that it is the preferred practice to set forth the terms of a release with particularity, either within the body of the proposal or by attaching the form of the release. However, based upon the specific facts of this case, we reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded for proceedings consistent with this opinion.

STEVENSON and GROSS, JJ., concur.


text:
    Robert A. FLINN and Frances E. Flinn, Appellants, v. Catherine M. FLINN, Appellee.
    No. 4D10-2136.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.
    Michael O’Haire of O’Haire, Quinn, Candler & Casalino, Chartered, Vero Beach, for appellants.
    Fred L. Kretschmer, Jr. and Jennifer H. Tedesco of Brennan & Kretschmer, Vero Beach, for appellee.
   PER CURIAM.

The appellants, Robert Flinn and Frances Flinn (the “Flinns”), appeal the trial court’s entry of a final summary judgment as to count one of the appellee’s, Catherine Flinn (“Catherine”), four-count complaint. Because we find that count one, requesting a declaratory judgment, is interrelated with the remaining three counts of the complaint, we dismiss this appeal for lack of jurisdiction for the reasons explained below.

Catherine filed a complaint related to a piece of property she owned along with the Flinns. Count one asked the trial court for a declaratory judgment determining what rights each party had in the property based on the language of the warranty deed. Count two requested the trial court to reform the language of the warranty deed to reflect the grantor’s true intent. Counts three and four sought a partition and accounting of the property. The trial court issued a final summary judgment as to count one only. The trial court’s interpretation of the warranty deed language was essentially the same as the reformation sought by Catherine in count two. However, counts three and four remained unresolved when the Flinns filed this appeal.

It is a long-held policy of the courts of this state that piecemeal appeals are not permitted where claims are “legally interrelated and in substance involve the same transaction.” Mendez v. W. Flagler Family Ass’n, 303 So.2d 1, 5 (Fla.1974). “The test to determine whether counts of a multi-count complaint are so interrelated as to preclude a piecemeal appeal is whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in separate counts.” Perry v. Perry, 976 So.2d 1151, 1153 (Fla. 4th DCA 2008) (citation and internal quotation marks omitted).

It is clear that the declaratory judgment sought in count one is interrelated with the other three counts. Count two was effectively rendered moot by the trial court’s interpretation of the deed in the declaratory judgment. Thus, the outcome of count two was directly dependent on the outcome of count one. Counts three and four could only proceed after the trial court determined the parties’ rights in the property and, if it became necessary, reformed the deed. Therefore, counts three and four were also dependent on the results of count one and possibly count two.

The Flinns argue that the partition claim is an “independent and separate statutory cause of action.” However, this court has long ago dispensed with the notion that “the term ‘legally interrelated’ ... is synonymous with severability of, distinction between or variation in legal theories.” Pellegrino v. Horwitz, 642 So.2d 124, 126 (Fla. 4th DCA 1994). “[PJleading or proving differing legal theories does not establish that the counts are separate and distinct for the purpose of appealability where the counts arise from a set of common facts; otherwise, the limited exception for an interlocutory appeal would consume the rule.” Id.

We conclude that the final summary judgment as to count one’s request for declaratory relief is interrelated with the complaint’s remaining three counts.

Dismissed.

CIKLIN, LEVINE, JJ., and THORNTON, JOHN W., JR., Associate Judge, concur.


author: PER CURIAM. POLEN, J.,

text:
    Darnell THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1822.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2011.

      Edward Hoeg, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The issue presented in this appeal is whether the trial court abused its discretion in awarding restitution following appellant’s conviction for burglary and grand theft. We reverse, as the trial court awarded restitution based on purchase price without adequately calculating the fair market value of the stolen items.

We review a trial court’s determination of the amount of restitution for an abuse of discretion. Soriano v. State, 968 So.2d 112, 114 (Fla. 4th DCA 2007). The amount of restitution must be supported by competent, substantial evidence. Id. Generally, the amount of restitution is established through evidence of fair market value of the stolen items at the time of the theft. Id. at 115. Fair market value is calculated by reference to four factors: (1) the original market cost; (2) the manner in which the items were used; (3) the general condition and quality of the items; and (4) the percentage of depreciation. State v. Hawthorne, 573 So.2d 330, 332 (Fla.1991). This court has consistently recognized that a trial court is not limited to consideration of fair market value, but “absent circumstances tending to show that [fair market value] does not adequately compensate the victim or otherwise serve the purpose of restitution,” fair market value should be used. Domaceti v. State, 616 So.2d 1148, 1149 (Fla. 4th DCA 1993) (citation omitted).

We find the victim’s testimony from personal knowledge regarding the purchase price and purchase date to be competent evidence to substantiate the items’ original cost. See Gonzalez v. State, 40 So.3d 86, 89 (Fla. 4th DCA 2010). The record, however, contains no competent evidence of the “general condition and quality of the items” or the percentage of depreciation that would permit the trial court to calculate market value. The trial court awarded $68,000 in restitution by reducing the purchase price of the items by “approximately ten percent” in a calculation the trial court termed “hardly scientific.” Application of such an arbitrary percentage of depreciation, without an explanation or record support, was an abuse of discretion. Kiefer v. State, 909 So.2d 572, 574 (Fla. 5th DCA 2005). The trial court also identified no special circumstances that would permit it to award purchase price in lieu of fair market value. See Wolff v. State, 981 So.2d 651, 653 (Fla. 4th DCA 2008).

Accordingly, we reverse the order of restitution and remand for an evidentiary hearing to determine either the fair market value of the stolen items or to identify special circumstances that would permit an award of restitution based on purchase price.

Reversed and remanded.

WARNER and LEVINE, JJ., concur.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I agree with the majority opinion, and write separately to address some additional aspects of the restitution sought in this case, to assist the trial court on remand.

First, by our reversal of the restitution award, we do not suggest that the amount arrived at was either too high or too low— only that the method by which the trial court determined the amount was improper.

Second, I would submit that since much of the victim’s claimed losses were gold and silver jewelry, the trial court might well take judicial notice, upon request, of the significant rise in the prices of gold and silver over the past decade.

Third, despite a number of cases which seem to make it more difficult for a victim to prove the “fair market value” of their stolen property (i.e., objections of hearsay as to sources of information as to value, absence of receipts for items bought years earlier), I believe the goal of the criminal justice system should be to strive to allow full compensation to victims — not to make them victims twice.

Finally, the trial court never specified in its restitution award whether or not it found credible the victim’s testimony that there was twenty thousand dollars in cash in the stolen safe. If it did, I believe restitution for that amount should be dollar for dollar. Either way, such a finding may assist the trial court in making its overall award, and would assist this court if the matter is again appealed.


text:
    K.R-P., Mother of D.R. and E.R., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D10-3897.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 2011.
    K.R-P., Mother, St. Petersburg, pro se.
    Rosemarie Farrell, Orlando, for Appel-lee.
    Suzanne D. Meehle, of The Meehle Law Firm, P.A., Altamonte Springs, for Guardian Ad Litem.
   PER CURIAM.

K.R-P. appeals an order terminating her parental rights to her children D.R. and E.R., finding that she consented to the termination by failing to appear at the adjudicatory hearing. We affirm.

This Court is required to affirm the trial court’s findings “[i]f, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.” Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993). We may not conduct a de novo proceeding nor substitute our judgment for that of the trier of fact. P.W. v. Dep’t of Children & Families, 10 So.3d 707 (Fla. 5th DCA 2009). After a careful review of the record, we find that there is sufficient competent evidence to sustain the trial court’s findings and conclusions, and we affirm the final judgment in all respects.

AFFIRMED.

ORFINGER, C.J., GRIFFIN and PALMER, JJ., concur.


author: EVANDER, J.

text:
    Jose L. BENITEZ and Lucila Benitez, Appellants, v. JOSEPH TRUCKING, INC., et al., Appellees.
    No. 5D10-1097.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.

      Joseph A. Frein of Joseph A. Frein, P.A., Orlando, for Appellants.
    Daniel F. Dill, of Law Offices of Daniel F. Dill, Orlando, for Appellees.
   EVANDER, J.

Jose Benitez and his wife, Lucila Beni-tez, appeal from a post-trial order setting aside the jury verdict and granting a motion for directed verdict in favor of the defendants below, Joseph Trucking, Inc., and Estela Hernandez. We conclude there was sufficient evidence to support the jury verdict and accordingly reverse.

The Benitezes filed a negligence action against the defendants after Jose (hereinafter referred to as “Benitez”) suffered personal injuries in a single-vehicle crash. The vehicle was a tractor-trailer consisting of a “trailer” or “cab” and a flat-bed trailer. The trailer consisted of a metal frame on the outside and a bed made of wood slats. The tractor-trailer was owned by- Mrs. Hernandez and was used in the normal course of business by Joseph Trucking, Inc., a company owned by Mrs. Hernandez and her husband. Joseph Trucking had retained Benitez, as an independent contractor, to operate the vehicle and transport large concrete pieces from the manufacturer in Seminole County to a construction project site in south Florida. Benitez had performed these types of services on behalf of Joseph Trucking on numerous occasions over the prior two years.

On the day of the crash, Benitez retrieved the tractor-trailer from Joseph Trucking and proceeded to the concrete manufacturer’s place of business. There, six concrete pieces were loaded onto the trailer. Each concrete piece weighed approximately 7200 pounds and was three feet in height and twelve feet in length. This load was not atypical for this tractor-trailer. As was the norm, strips of wood (commonly referred to as “dunnage”) were placed between the concrete pieces and the trailer bed, and straps were placed over the concrete pieces to hold them in place.

In their amended complaint, the plaintiffs alleged, inter alia, that (1) the defendants owed a duty to Benitez to maintain the tractor-trailer in proper working condition, and (2) the trailer was unsafe because it had been negligently maintained by the defendants. It was Benitez’s position that as a result of its deteriorating condition, the trailer bed had broken during the transportation of the concrete pieces. As a result, a concrete piece had sunk into the trailer bed, causing a shifting of the load’s weight and subsequent tipping over of the tractor-trailer. The defendants denied liability and also pled the affirmative defense of comparative negligence. It was defendants’ position that the crash was caused by Benitez driving too fast when he tried to negotiate a curve and/or by Benitez improperly loading the concrete pieces.

The issues of liability and damages were bifurcated and the liability issue proceeded to trial. By its verdict, the jury determined that both Benitez and Joseph Trucking were negligent and that each party’s negligence was a legal cause of injury to Benitez. Seventy percent of the negligence was apportioned to Joseph Trucking and thirty percent to Benitez.

In granting the motion for directed verdict, the trial court determined that the plaintiffs’ evidence was insufficient to establish a nexus or causal connection between the alleged defective condition of the trailer and the crash. We respectfully disagree.

The standard of review on appeal of a trial court’s order on a motion for directed verdict is the same as the test to be used by the trial court in ruling on that motion. Etheredge v. Walt Disney World Co., 999 So.2d 669, 671 (Fla. 5th DCA 2008). A motion for directed verdict should be granted only where there is no reasonable evidence upon which a jury could legally predicate a verdict-in favor of the non-moving party. Id. In considering the motion, the court is required to evaluate the evidence in the light most favorable to the non-moving party and any reasonable inferences deduced from the evidence must be drawn in the non-moving party’s favor. Id. If there are conflicts in the evidence or if different reasonable inferences could be drawn from the evidence, then the issue is a factual one that should be decided by the jury and not by the trial court. Id.

In the instant case, the evidence was hotly disputed. However, taking the evidence in the light most favorable to the plaintiffs, the following facts supported a finding of a causal relationship between the defendants’ alleged negligence and the crash:

1. The trailer was in generally poor condition. There were holes in the floor and some of the wood slats were warped and/or rotted.

2. The defendants had knowledge of the trailer’s poor condition.

B. Joseph Trucking had utilized various pieces of wood that were inconsistent with the wood typically used on flat-bed trailers when attempting to effect repairs.

4. Joseph Trucking was unable to produce any records relating to the maintenance and/or repair of the trailer.

5. On the day of the crash, the concrete pieces had been properly strapped and secured.

6. Benitez was an experienced tractor-trailer driver and had a valid commercial driver’s license.

7. Benitez was familiar with the road on which the crash occurred. The load was secure on the trailer at the time he negotiated the curve. He exited the curve at approximately ten to fifteen miles per hour when he felt an impact and heard a cracking-sound coming from the trailer bed. He looked through his rearview mirror and saw a concrete piece start to sink into the trailer and fall toward the driver’s side of the trailer. Immediately thereafter, the tractor-trailer flipped onto its left side.

We conclude that the jury could reasonably find from the evidence that the trailer-bed was in poor condition as a result of the defendants’ negligent maintenance; that the concrete piece sank and shifted because the deteriorating trailer-bed’s wood slats had given way; and that the sudden shifting of this substantial amount of weight caused the tractor-trailer to flip onto its side.

Furthermore, we reject the defendants’ argument that plaintiffs were required to present expert testimony on the causation issue. Expert testimony is only necessary to establish legal causation where the issue is beyond the common knowledge of laymen. Greene v. Flewelling, 366 So.2d 777, 780 (Fla. 2d DCA 1978). It is not beyond the common knowledge of laymen that the deterioration of a trailer’s wooden bed will reduce its load-bearing capacity and that the sudden shifting of thousands of pounds of weight on a trailer bed could cause a tractor-trailer to flip over. Because the causation issue could properly be considered by the jury, it was error for the trial court to grant the defendants’ motion for directed verdict.

REVERSED AND REMANDED FOR REINSTATEMENT OF JURY VERDICT.

SAWAYA and TORPY, JJ., concur.

      . We also reject the defendants’ suggestion that Joseph Trucking had no legal duty to provide Benitez with a safe vehicle. By providing Benitez with the equipment to perform the contracted-for work, Joseph Trucking assumed a duty to exercise ordinary and reasonable care under the circumstances to supply equipment that would be reasonably safe and suitable. Noel v. M. Ecker & Co., 445 So.2d 1142, 1144 (Fla. 4th DCA 1984). Any knowledge on the part of Benitez concerning the vehicle's dangerous condition would go to the issue of comparative negligence. Id.; see also Dearing v. Reese, 519 So.2d 761 (Fla. 1st DCA 1988).


text:
    Michelle WROBLEWSKI, Appellant, v. AMERICAN HOME MORTGAGE SERVICING, INC., Appellee.
    No. 5D10-1068.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.

      Tanner Andrews of Tanner Andrews, P.A., Deland, for Appellant.
    Michael Cavendish and Ana D. Johnson of Gunster, Yoakley & Stewart, P.A., Jacksonville, for Appellee.
   PER CURIAM.

We reverse the summary judgment of foreclosure because Appellee failed to overcome Appellant’s assertion in her answer that Appellee had failed to comply with the condition precedent contained in the mortgage, requiring notice and opportunity to cure. Morrison v. U.S. Bank, N.A., 36 Fla. L. Weekly D1646 (Fla. 5th DCA July 29, 2011); Konsulian v. Busey Bank, N.A., 61 So.3d 1283 (Fla. 2d DCA 2011).

REVERSED and REMANDED.

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    Christopher T. DEALE, Appellant, v. Diana DEALE, Appellee.
    No. 5D10-2820.
    District Court of Appeal of Florida, Fifth District.
    Sept. 9, 2011.
    Richard J. Mockler and Allison M. Gluv-na, of Richard J. Mockler, P.A., Tampa, for Appellant.
    Lorena L. Kiely, Tampa, for Appellee.
   PER CURIAM.

Christopher T. Deale [“Husband”] appeals the trial court’s order dismissing a temporary injunction for protection against domestic violence. Husband argues that the trial court erred by finding that there was insufficient evidence to warrant the issuance of an injunction for protection against domestic violence by Diana Deale [“Wife”].

In June 2010, Husband filed a petition for injunction for protection against domestic violence, alleging that he was either the victim of domestic violence or had reasonable cause to believe that he was in imminent danger of becoming such a victim because Wife “committed or threatened to commit domestic violence defined in s. 741.28, Florida Statutes ...” “previously threatened, harassed, stalked, or physically abused” him, “threatened to conceal, kidnap, or harm [his] child or children,” and “engaged in ... other behavior or conduct that le[d] ... [him] to have reasonable cause to believe he ... [was] in imminent danger of becoming a victim of domestic violence.” Husband specifically alleged:

Since August 2008, Respondent has continuously called Petitioner, Petitioner’s supervisors, Petitioner’s co-workers, and Petitioner’s family, sometimes as often as 15 to 20 times per hour and more than 100 times per day. Respondent’s actions serve no legitimate purpose, and her actions have resulted in substantial emotional distress to Petitioner.
Respondent perpetually harasses Petitioner. For example, between June 5, 2010, and June 6, 2010, Respondent called Petitioner’s mobile phone approximately 290 times and left multiple harassing messages. Respondent had no legitimate reason for contacting Petitioner in this manner. Respondent also demonstrates similar behavior via email and text-messaging. These actions have had serious, negative professional repercussions for Petitioner, including adverse performance evaluations based on the Respondent’s actions.
Also on June 6, 2010, after Petitioner refused to speak with her, Respondent drove for an hour and a half to Petitioner’s residence and stole Petitioner’s automobile. Petitioner and Respondent are separated, and Respondent had no right to take Petitioner’s vehicle. As a result, Petitioner did not have transportation to go to work the next day, and Petitioner’s employment was put at further risk.
Respondent has also engaged in a willful, malicious, and repeated pattern of stalking Petitioner. Among other things, Respondent has followed Petitioner and confronted him in public locations. Respondent has also pursued Petitioner in her vehicle. These events have often occurred in public and at times with the Parties’ children present. Respondent frequently tracks Petitioner by using personally identifiable information such as his social security number and website password. With this information, Respondent either calls up Petitioner’s bank using an automated system or hacks into Petitioner’s internet accounts to track Petitioner down by the location of his latest purchases. Respondent used this method to follow Petitioner over 260 miles, from Spring Hill to Boynton Beach, Florida, where Petitioner was visiting siblings.
Respondent’s actions have forced Petitioner’s mother, two sisters, and brother to change their home and mobile telephone numbers. Petitioner changed his extension at work to prevent harassment, but Respondent repeatedly calls Petitioner’s co-workers and supervisor to get his number. Respondent has caused Petitioner to be reprimanded at work for her constant calls. Respondent’s actions have caused Petitioner and Petitioner’s co-workers difficulty in completing their assignments and have created a backlog in the phone system at Petitioner’s work.
Petitioner’s supervisor has advised him that, because of Respondent’s interference, Petitioner may need to find a new job.
Respondent’s actions have increased steadily in frequency since December 2009.

Husband asserted that he had reported “[t]his or other acts” to the Tampa Police Department and that Wife had “a history of mental health problems.” He also asserted that he had filed a petition for dissolution of marriage in Hernando County, Florida in March of 2010, which was pending.

The trial court entered a temporary injunction for protection against domestic violence, scheduling a hearing to be held on June 22, 2010. Thereafter, the trial court, based upon the parties’ stipulation, entered another temporary injunction for protection against domestic violence, adjusting the terms of the temporary injunction and scheduling a hearing to be held on July 20, 2010. On July 20, 2010, the trial court conducted a hearing, during which it heard testimony from numerous witnesses. At the conclusion of the hearing, the trial court found:

All right, I find that the evidence is insufficient to issue an injunction, although I certainly believe that the petitioner has suffered from emotional turmoil as a result of the separation and, as you term it, the potential loss of his family. You know, I recognize there was a flurry of phone calls after the parties spent Memorial Day weekend together and were planning ... further marriage counseling and a cruise, but ... collectively the isolated incidences don’t constitute from my view a sufficient basis to issue an injunction for harassment or stalking. I am not able to issue an injunction to address the family law issues solely for that purpose with the dissolution pending. There’s case law that prohibits me from doing that, that’s why I tried to see if /all could stipulate to that. I’m not issuing the injunction.

Although we agree with Husband that he offered evidence to support his allegations and claims, the trial court was not persuaded. We are not in a position to substitute our judgment for that of the trial court.

AFFIRMED.

GRIFFIN, SAWAYA and COHEN, JJ., concur.