text:
    Kenneth John GORMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-864.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.
    Carey Haughwout, Public Defender, and Ian Seldin, 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.
   PER CURIAM.

Affirmed. See D.P.B. v. State, 877 So.2d 770, 771 (Fla. 4th DCA 2004).

CIKLIN, GERBER and CONNER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Isaac BINDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-493.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Colon v. State, 738 So.2d 1023 (Fla. 4th DCA 1999).

MAY, C.J., WARNER and GROSS, JJ., concur.


author: GERBER, J.

text:
    James BONA, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-797, 4D10-798.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.
    Fred Haddad of Fred Haddad, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his judgment and sentence for violating his probation. We affirm the judgment without discussion. However, we reverse the sentence. Although the sentence was legally permissible, the circuit court erred in failing to renew the offer of counsel before sentencing. See Capitaine v. State, 58 So.3d 438, 439 (Fla. 4th DCA 2011) (“Sentencing is a critical stage of a criminal proceeding, and a trial court must renew the offer of counsel even if the defendant has previously waived counsel.”) (citation omitted). We remand for resentencing after a renewal of the offer of counsel.

Affirmed in part, reversed in part, and remanded for resentencing.

TAYLOR and DAMOORGIAN, JJ., concur.


text:
    Terry LONG, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4813.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 2011.

      Carey Haughwout, Public Defender, and Ellen Griffin, 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.
   PER CURIAM.

In this case, appellant raises an ineffectiveness of counsel claim on direct appeal. We affirm because the ineffectiveness complained of is not apparent on the face of the record. See Dennis v. State, 696 So.2d 1280 (Fla. 4th DCA 1997); Ross v. State, 726 So.2d 317 (Fla. 2d DCA 1998); Henley v. State, 719 So.2d 990 (Fla. 4th DCA 1998).

MAY, C.J., WARNER and GROSS, JJ., concur.


text:
    Dennis A. BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0955.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Dennis A. Barnes, appeals his conviction and sentence for possession of a firearm by a convicted felon. He raises three issues on appeal, only one of which merits discussion. He contends that the trial court erred in denying his motion to suppress because his estranged wife, who was not staying in the marital home, had no authority to consent to a search of the home. We reject this argument and affirm Appellant’s conviction and sentence.

Based upon the wife’s testimony below, she left the marital home due to Appellant’s abuse. A few days later, she called the police to report the abuse. She told the authorities that there were weapons inside the couple’s home, and she consented to a search of the premises. Appellant, who was home alone when the officers arrived, did not object to the search. A rifle was retrieved from the couple’s bedroom. After being charged with the offense at issue and felony battery, Appellant filed a motion to suppress, which the trial court denied. This appeal followed.

A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). An appellate court is bound by the trial court’s factual findings if they are supported by competent, substantial evidence. Id. A trial court’s legal determinations are reviewable de novo. Id.

Authority to consent to a search arises from the mutual use of the property by persons generally having joint access, common authority over, or other sufficient relationship to the premises or effects to be inspected. State v. Purifoy, 740 So.2d 29, 30 (Fla. 1st DCA 1999) (citing U.S. v. Matlock, 415 U.S. 164,170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). Although Appellant argues that his wife had no authority to consent to the search because she had voluntarily left the home a few days before, there was no evidence that she had restricted access to the home when she gave consent or that she had formally changed her residence. Moreover, as the Eleventh Circuit Court of Appeals reasoned when faced with a similar situation, “There is a difference between voluntarily giving up your home and being forced to flee from it in fear for your life.... ” U.S. v. Backus, 349 F.3d 1298, 1304 (11th Cir.2003) (affirming the lower court’s denial of the defendant’s motion to suppress because the defendant’s wife, who fled as a result of the defendant’s abuse, still had enough common authority over, or a sufficient relationship to, the marital home to consent to a search of it). In this case, the evidence supports the trial court’s determination that Appellant’s wife had the authority to consent to a search of the couple’s home.

Accordingly, we AFFIRM Appellant’s conviction and sentence.

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


text:
    Joe Lewis JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4621.
    District Court of Appeal of Florida, First District.
    Dec. 20, 2011.

      Petition Alleging Ineffective Assistance of Appellate Counsel — Original Jurisdiction. Joe Lewis Jenkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

By timely petition, Joe Lewis Jenkins presents a claim of ineffective assistance of appellate counsel. Following a jury trial, Jenkins was convicted of one count of second-degree murder and one count of attempted second-degree murder. We found no merit to appellate counsel’s argument that the evidence was insufficient and affirmed Jenkins’ convictions without comment in Jenkins v. State, 60 So.3d 1057 (Fla. 1st DCA 2011). Jenkins now asserts that his appellate counsel was ineffective for failing to identify and pursue two facially meritorious claims of fundamental error in the jury instructions. We agree that appellate counsel was ineffective in that regard, and therefore grant the petition.

The first issue identified by petitioner concerns the jury instruction relating to manslaughter as a lesser included offense of the charge of second-degree murder. For reasons not clear from the record available to us, the trial court instructed the jury solely on manslaughter by culpable negligence, and omitted any instruction on the alternate theory of manslaughter by act. Although it is not a decision of this court, Bolin v. State, 8 So.3d 428 (Fla. 2d DCA 2009), supports the proposition that this omission amounted to fundamental error, and although Bo-lin was available to appellate counsel, this argument was not presented on appeal.

Secondly, Jenkins points out that in instructing the jury on attempted manslaughter as a lesser included offense of the attempted second-degree murder charge, the trial court did instruct on the theory on manslaughter by act, but the instruction suffered from the same infirmities as the instruction in State v. Montgomery, 39 So.3d 252 (Fla.2010), approving, Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009). Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009), supports the proposition that this too was fundamental error. We acknowledge that there is an as yet unresolved split of authority among the district courts of appeal on the question of whether an error of the sort identified in Montgomery is fundamental when the instruction relates to attempted manslaughter. See Davis v. State, 69 So.3d 1021 (Fla. 4th DCA 2011), and cases cited therein. Nonetheless, the existence of Lamb, which likewise was available to appellate counsel, yields the conclusion that appellate counsel was ineffective for failing to present this issue.

Accordingly, the petition alleging ineffective assistance of appellate counsel is granted. Under the circumstances of this case, we conclude that the proper remedy is to order a new appeal. See King v. State, 15 So.3d 27 (Fla. 1st DCA 2009). Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal directed to petitioner’s judgment and sentence in Escambia County Circuit Court case number 2008-CF-004267-A. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him on appeal. The new appellate proceeding authorized by this opinion shall be limited to the two issues identified above.

WOLF, HAWKES, and ROBERTS, JJ., concur.


text:
    Kevin SLEEM, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3392.
    District Court of Appeal of Florida, Fourth District.
    Dec. 21, 2011.
    Rehearing Denied Jan. 10, 2012.
    Kevin Sleem, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant appears to be appealing the denial of a motion for correction or modification of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Such orders are not appealable. Howard v. State, 914 So.2d 455 (Fla. 4th DCA 2005).

Dismissed.

POLEN, HAZOURI and CONNER, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Larry JOHNSON, Respondent.
    No. 1D11-6076.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2011.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.100(c) (providing that a petition for writ of certiorari shall be filed within 30 days of rendition of the order to be reviewed).

LEWIS, ROWE, and RAY, JJ., concur.


author: LAGOA, J.

text:
    Randy CHAVIANO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2000.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2011.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   CONFESSION OF ERROR

LAGOA, J.

Appellant Randy Chaviano (“Chaviano”) appeals from his conviction and sentence for second degree murder and possession of drugs with intent to sell. We vacate the judgment and sentence under review, and remand the case to the trial court to conduct a new trial.

In 2009, after an eight-day trial, Chavi-ano was convicted of second degree murder and possession of drugs with intent to sell. However, with the exception of a suppression hearing, the court reporter was unable to produce a transcript of the eight-day trial for use in Chaviano’s appeal. After this Court relinquished jurisdiction to the trial court to allow for reconstruction of the record pursuant to Florida Rule of Appellate Procedure 9.200(b)(4), the trial court entered an order finding that based on the matters raised in the respective pleadings, the complexity of the trial, and the number of significant matters in dispute, the transcript in this case cannot be reconstructed.

Because the parties have been unable to reconstruct the trial transcript, and Chavi-ano has shown specific prejudice, see Jones v. State, 923 So.2d 486, 489 (Fla.2006); cf. Lewis v. State, 992 So.2d 421, 423 (Fla. 3d DCA 2008), the State concedes that his conviction and sentence should be reversed and the case remanded for a new trial. See N.B. v. State, 48 So.3d 1084 (Fla. 2d DCA 2010); A.B. v. State, 816 So.2d 1269 (Fla. 3d DCA 2002). We agree. Accordingly, we vacate Chaviano’s judgment and sentence and remand the case for a new trial.

REVERSED and REMANDED for new trial.


text:
    Dorothy HERBER, Appellant, v. MARTIN MEMORIAL MEDICAL CENTER, INC., Appellee.
    No. 4D10-1373.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 2011.
    Rehearing Denied Jan. 12, 2012.

      Pamela Beckham and Kevin O’Connor of Beckham & Beckham, North Miami Beach, for appellant.
    Arthur J. England, Jr. of Greenberg Traurig, P.A., Miami, and Janet W. Adams and Heidi J. Livingston of Hill, Adams, Hall & Schieffelin, P.A., Winter Park, for appellee.
   PER CURIAM.

We reverse the trial court’s order dismissing this case for failure to comply with section 766.206, Florida Statutes (2009). In Martin Memorial Medical Center, Inc. v. Herber, 984 So.2d 661, 664 (Fla. 4th DCA 2008), we wrote that “[b]ecause Martin Memorial did not provide [certain] [medical] records within ten days, the statute provides that Ms. Herber was under no obligation to furnish a corroborating affidavit with her notice of intent or any time thereafter.” Under subsection 766.204(2), Florida Statutes (2009), the hospital’s failure to timely provide medical records waived the requirement of a “written opinion” under subsection 766.202(5) and section 766.203, Florida Statutes (2009).

When a trial court must decide whether a claim “rests on a reasonable basis” within the meaning of subsection 766.206(1), “the standard as to whether a reasonable basis has been shown should be similar to the standard that is applied to determine whether a complaint states a cause of action.” Holden v. Bober, 39 So.3d 396, 400 (Fla. 2d DCA 2010). This ruling is reviewed de novo. See Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005). The MRSA cluster at the hospital, the timing of Herber’s surgery, and the 2009 affidavit of Dr. Bakken were sufficient to establish that the claim rested on a reasonable basis at this early stage of the proceedings. See Kukral v. Meleras, 679 So.2d 278, 284 (Fla. 1996) (observing that a “fully verified corroborating expert opinion in support of the claim,” along with the other circumstances of the claim, “mooted any issue as to the existence of a reasonable basis for the claim”). In so holding, we note that “[t]he provisions of sections 766.201-.212, Florida Statutes, are not to be allowed to impinge upon plaintiffs’ right of access to the courts and must be construed as imposing upon plaintiffs only a reasonable and limited duty before allowing them to file a suit.” Shands Teaching Hosp. & Clinics, Inc. v. Barber, 638 So.2d 570, 571 (Fla. 1st DCA 1994) (citations omitted).

The reasonableness of an investigation under section 766.206(2) is a factual matter, which is reviewed on appeal for competent, substantial evidence. See Duffy v. Brooker, 614 So.2d 539, 542, 545 (Fla. 1st DCA 1993), abrogated on other grounds by Shands Teaching Hosp. v. Miller, 642 So.2d 48, 49 (Fla. 1st DCA 1994). It appears that the trial court determined that the reasonableness of the investigation had to be determined as of the date that the notice of intent was filed. However, the Supreme Court has not imposed such a draconian time limitation on presuit requirements; “the failure to comply with the presuit requirements of the statute is not necessarily fatal to a plaintiffs claim so long as compliance is accomplished within” the statute of limitations period. Kukral, 679 So.2d at 283-84. In March and April, 2005, before the statute of limitations ran, Herber’s attorney reviewed the case against every potential defendant and consulted with Dr. Bakken, who informed him “that there were reasonable grounds to believe” that the hospital was negligent in the treatment of Herber, which caused her injury. This satisfied the reasonable investigation requirement of the statute.

Reversed and remanded.

STEVENSON, GROSS, JJ., and STREITFELD, JEFFREY E., Associate Judge, concur.

      . We note that it was appropriate to consider Dr. Bakken’s affidavit on this issue because it was filed before the March, 2010, hearing in this case.


author: EHRLICH, MERRILEE, Associate Judge.

text:
    NORTHWOOD SG, LLC, Northwood SG 2, LLC, Northwood SG 4, LLC, Northwood SG 5, LLC, Scott Thomson, and Gary Goldstein, Appellants, v. BUILDER FINANCIAL CORPORATION, Builder Funding, LLC, BFSPE, LLC, BFWEST, LLC, WESTLB AG, New York Branch, and Indigo Real Estate LLC, Appellees.
    No. 4D10-1457.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 2011.

      Robert S. Gershman, West Palm Beach, and Gary A. Goldstein, Baltimore, Maryland, for appellants.
    James W. Carpenter and Eric C. Edison of Angelo & Banta, P.A., Fort Lauderdale, for appellees Builder Financial Corporation, Inc., Builder Funding, LLC, BFSPE, LLC, and BFWEST, LLC.
    Philip V. Martino and S. Douglas Knox of Quarles & Brady LLP, Tampa, for ap-pellees WESTLB AG, New York Branch, and Indigo Real Estate LLC.
   EHRLICH, MERRILEE, Associate Judge.

This appeal revolves around a single order of summary judgment which determined the usury count in four separate cases that had been consolidated for all purposes other than for trial. The issue is whether the circuit court erred by granting summary judgment in favor of appel-lees, based on the court’s findings that they did not charge or intend to charge usurious interest. We conclude that there was no error and affirm.

The usury counts arose out of a series of promissory notes which appellees executed in favor of appellants as consideration for various loans. Each loan was for a stated period. During that period, interest would accrue and appellants would be required to make monthly interest payments. At the end of the period, the principal would be due.

After the loans matured, appellants did not repay the loans. Instead, they filed four separate lawsuits. The first count of each lawsuit sought a declaratory judgment that the subject loan was usurious. Appellees filed motions for summary judgment on the usury counts only. Appellants filed responses and cross-motions for summary judgment.

After hearing argument on the motions, the court entered an order denying appellants’ motions and granting appellees’ motions. The court found the loans not to be usurious and that appellees lacked corrupt intent to make usurious loans. The court denied appellants’ motion for reconsideration and appellants timely filed this appeal.

As a preliminary matter, this Court has jurisdiction to review these orders. Although piecemeal appeals should not be permitted where claims are legally interrelated and in substance involve the same transaction, the summary judgment, in this case, as to one count, is appealable. The usury count in all four cases is not interdependent with the other pleaded claims because it must be resolved on a separate set of facts than the breach of contract and fraud counts. Further, resolution of the usury count by summary judgment in this case terminated litigation between one party and another and is final as to them. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 100 (Fla.1974); see also Fla. R.App. P. 9.030(b)(1)(A). Such resolution serves judicial economy. See Ferere v. Shure, 65 So.3d 1141, 1147 n. 1 (Fla. 4th DCA 2011).

Turning to the merits, appellate courts review orders granting summary judgment de novo. Saris v. State Farm Mut. Auto. Ins. Co., 49 So.3d 815, 817 (Fla. 4th DCA 2010); Fina v. Hennarichs, 19 So.3d 1081, 1084 (Fla. 4th DCA 2009). The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law. Id. If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by the jury. Id.

The elements of usury are: (1) a loan express or implied; (2) an understanding between the parties that the money lent shall be returned; (3) a payment of or an agreement to pay a greater rate of interest than is allowed by law; and (4) a corrupt intent to take more than the legal rate for the use of the money loaned. See, e.g., Dixon v. Sharp, 276 So.2d 817, 819 (Fla.1973). The parties agree that appellants established the first and second elements. As set forth below, we hold that appellants did not establish the third element.

Criminal usury, which appellants allege, requires that the interest be in excess of 25% per annum. §§ 687.071(2) & (3), Fla. Stat. (2005). Because each loan was structured as requiring a series of advances rather than receiving the entire stated amount of the loan up front, the spreading statute contained in section 687.071(3) controls the calculation of the interest rate. St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071, 1074 (Fla.1982) (section 687.03(3) supersedes section 687.03(1) “when an advance is required in a loan transaction.... ”). We conclude that the circuit court correctly applied the spreading statute, and the calculations on each note yields a non-usurious rate of less than 25%. Accordingly, without establishing the third element of usury, appellants cannot establish that ap-pellees had criminal corrupt intent to commit usury/charge usurious interest, the fourth element.

Affirmed.

WARNER and POLEN, JJ., concur.


author: MAY, C.J.

text:
    Roberto LOPEZ-LOARCA, as guardian over person and property of Mario Miguel, incapacitated, Appellant, v. Angel Luis COSME and Aida Luz Dejesus, a/k/a Aida Luz Rivera, Appellees.
    No. 4D09-5149.
    District Court of Appeal of Florida, Fourth District.
    Oct. 19, 2011.
    Rehearing Denied Jan. 10, 2012.

      Jason D. Weisser of Schuler, Halvorson & Weisser, P.A., West Palm Beach, and Philip M. Burlington and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.
    George A. David, Coral Gables, for ap-pellees.
   MAY, C.J.

The relation back doctrine and its application in a subrogation action form the basis for this appeal. The guardian of the injured party (plaintiff) appeals a final summary judgment that found the plaintiffs individual claim barred by the statute of limitations. The guardian argues the trial court erred in two respects: (1) granting the final summary judgment finding the individual claim barred; and (2) vacating an order of default. We hold the trial court erred in entering summary judgment and reverse. We find no error in the trial court’s order vacating the default.

In January 2002, attorneys for the workers’ compensation carrier (carrier) filed a subrogation action in the name of the plaintiff against two defendants, the driver and owner of the vehicle who struck the plaintiff while he was working. The complaint alleged that on May 4, 2000, the plaintiff sustained “bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, loss of earnings, loss of the ability to earn money[,] and aggravation of a previously existing condition.” The wherefore clause requested “damages, costs of suit, and any and all further relief the court deems legal and proper.”

The defendants’ insurer tendered its $10,000 policy limits to the carrier. The carrier then took the defendants’ depositions to determine if they were collectable or if there were other responsible parties. Through those depositions, the carrier found the original defendants had no means to pay beyond the insurer’s policy limits.

In December 2002, the plaintiff filed a First Amended Complaint, which now identified the plaintiff as filing the action for the use and benefit of the carrier. The new complaint alleged the carrier had paid $1,472,230.01 in benefits to the plaintiff as a result of the accident. The wherefore clause again requested general damages, not limiting the request to those damages paid by the carrier.

The carrier filed a Second Amended Complaint, adding newly-discovered defendants. The case was again styled as a subrogation claim, but now limited its request for damages to those available under section 440.39, Florida Statutes (2000).

In June, 2004, the plaintiff filed a Third Amended Complaint, again for the use and benefit of the carrier. At the same time, a new lawyer filed a notice of appearance for the plaintiff. About ten months after the Third Amended Complaint was filed, the carrier filed an Amended Motion for Approval of Settlement.

The plaintiffs new lawyer filed a Motion for Case Management Conference, advising the court that the carrier had tendered the $10,000.00 policy limits and agreed to settle the case. The plaintiffs guardian, however, did not agree to the settlement and desired to prosecute the plaintiffs individual claim. He requested clarification of the status of the proceedings, or alternatively, leave to file yet another amended complaint naming the guardian as plaintiff.

Later that month, the defendants and their counsel failed to appear at the case management conference. The trial court entered the following order:

The Third Amended Complaint, though, appears to limit the damages sought solely to those due [the carrier], possibly excluding a claim for damages in excess of that amount, which would redound to the employee. The Third Amended Complaint, too, like the prior complaints, is in the name of [the plaintiff] and not his guardian. Finally, a dispute has arisen between counsel for [the carrier], which wants to settle with [the defendants], and counsel for [the guardian], who opposes the settlement.

The court ordered the plaintiff to file a Fourth Amended Complaint in the name of the guardian, and for the parties to attempt to resolve their pleading disputes.

On October 13, 2006, more than six years after the accident, the plaintiff filed the Fourth Amended Complaint. This time the plaintiff was identified as the guardian of the person and property of the injured party. The allegations of negligence and damages remained the same. There was, however, no mention of damages on behalf of the carrier, subrogation rights, or section 440.39.

The guardian moved for entry of default against the defendants, maintaining that a copy of the motion for default was sent to defense counsel via certified mail. The trial court granted the motion and entered default against the defendants. A week after the default was entered, defense counsel sent the carrier a release to be executed. In exchange, the insurer agreed to send a check for $10,000 upon return of the executed release. Defense counsel sent the plaintiffs attorneys a letter the following month with a check for $10,000. The plaintiffs attorney returned the check. No other information was exchanged between the parties.

Over the course of the next year and a half, the case proceeded on damages with no involvement of the defendants. The plaintiff filed notices of deposition, witness lists, a notice for jury trial, and deposition transcripts. Trial was set for the period of May 5-June 6, 2008.

Approximately fifteen months after the plaintiffs attorney returned the cheek, and about a week after the calendar call, the defendants filed an Emergency Motion to Vacate Default, Motion to Remove Case from Trial Docket and/or Motion to Continue Trial. In support, the defendants filed a Proposed Answer, Affirmative Defenses and Jury Demand. The defendants also submitted affidavits of their lead attorney, a legal assistant, and an associate.

The associate’s affidavit explained that he was instructed to attend a pretrial conference by the lead attorney. He reviewed the file, but did not find the Fourth Amended Complaint, the Motion for Default, the Order of Default, or any other documents. The associate was not aware of the default until informed by the plaintiffs attorney. The associate returned to the office and had staff search for the missing filings. The legal assistant discovered they had been misfiled.

The legal assistant also filed an affidavit explaining that she had misfiled the documents because she thought the carrier’s action against the defendants was on hold because the policy limits had been tendered. She did not realize her error until the associate attended the pretrial conference.

The lead attorney attested that he saw the case set for a pre-trial conference, reviewed the file, and enlisted his associate to attend the conference. He did not see the Case Management Order, the Fourth Amended Complaint, the Motion for Default, the Order of Default, or any other documents.

The plaintiff filed an affidavit listing various documents that had been mailed to the defense counsel, including eighteen pleadings, notices, and other documents. The trial court granted the motion and vacated the default; the Motion for Rehearing was denied.

Almost two months later, the defendants filed a Motion for Final Summary Judgment, arguing the Fourth Amended Complaint violated the applicable statute of limitations under sections 95.11 and 440.39, Florida Statutes (2000). The trial court entered Final Summary Judgment in favor of the defendants, from which they now appeal.

The guardian argues the trial court erred in entering summary judgment because the Fourth Amended Complaint relates back to the filing of the original complaint and therefore does not violate the statute of limitations. The defendants respond that the complaint violates sections 95.11 and 440.39 because it transformed the cause of action from a subrogation claim to a direct negligence claim six years after the accident occurred.

We review summary judgments de novo. Fini v. Glascoe, 936 So.2d 52, 54 (Fla. 4th DCA2006).

Section 440.39, Florida Statutes (2000), provides:

(4)(a) If the injured employee ... fail[s] to bring suit against such third-party tortfeasor within 1 year after the cause of action thereof has accrued, the ... insurance carrier, may, after giving 30 days’ notice to the injured employee ... institute suit against such third-party tortfeasor, either in his or her own name or as provided by subsection (3), and, in the event suit is so instituted, shall be subrogated to and entitled to retain from any judgment recovered against, or settlement made with, such third party, the following: All amounts paid as compensation and medical benefits under the provisions of this law and the present value of all future compensation benefits payable, to be reduced to its present value, and to be retained as a trust fund from which future payments of compensation are to be made.... The remainder of the moneys derived from such judgment or settlement shall be paid to the employee....

§ 440.39(4)(a), Fla. Stat. (2000).

The statute allows the workers’ compensation carrier to file suit if the injured party fails to do so within one year from the accrual of the cause of action. “[Ojnce the employer files suit under subsection (4)(a), or undertakes to negotiate a settlement!,] • ■ • the employee is required to co-operate with the effort.” Aetna Cas. & Sur. Co. v. Bortz, 271 So.2d 108, 114 (Fla.1972).

The carrier can either intervene in pending litigation brought by the employee, or it can proceed with its own action in the second year following the accident. Liberty Mut. Ins. Co. v. Batch Air Universal Inc., 559 So.2d 1189, 1190 (Fla. 3d DCA 1990). Here, the carrier gave the plaintiff notice of its intent to initiate suit under section 440.39(4)(a), and filed the original complaint in the second year following the accident.

Section 95.11, Florida ■ Statutes (2000), provides a four year statute of limitations for negligence actions. § 95.11(3)(a), Fla. Stat. (2000). Here, the Fourth Amended Complaint was filed six years after the accident occurred. The issue is then whether the Fourth Amended Complaint relates back to the filing date of the original complaint.

The relation back doctrine is set forth in Florida Rule of Civil Procedure 1.190, which provides: “When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the original pleading.” Fla. R. Civ. P. 1.190(c) (emphasis added). The rule allows for “‘[a]n amendment which merely makes more specific what has already been alleged generally, or which changes the legal theory of the action, [to] relate back even though the statute of limitations has run in the interim.’ ” Maraj v. N. Broward Hosp. Dist., 989 So.2d 682, 685 (Fla. 4th DCA 2008) (quoting Lefebvre v. James, 697 So.2d 918, 920 (Fla. 4th DCA 1997)).

Here, the original complaint was styled in the name of the plaintiff, not as a subrogation action. The wherefore clause requested damages in general; it did not restrict the request to those damages paid by the carrier. While subsequent amendments to the complaint changed the style to reflect a subrogation claim and appeared to restrict the claim for damages to those paid by the carrier, section 440.39(4) specifically provides for the carrier to bring a claim for all damages. To the extent any recovery exceeds amounts paid by the carrier, those “moneys derived from such judgment or settlement shall be paid to the employee.” § 440.39(4)(a), Fla. Stat. (2000).

If the new and original plaintiffs “have an identity of interest so as not to prejudice the defendant,” then the defendant has been given fair notice of the common interest among the plaintiffs. Roger Dean Chevrolet, Inc. v. Lashley, 580 So.2d 171, 173 (Fla. 4th DCA 1991). The touchstone of the identity of interest requirement “ ‘is whether the defendant knew or should have known of the existence and involvement of the new plaintiff.’ ” Id. (quoting R.A. Jones & Sons v. Holman, 470 So.2d 60, 68 (Fla. 3d DCA 1985)).

Here, the original plaintiff was the injured party; the guardian serves only in a representative capacity to the injured party. These two persons are sufficiently related so that the defendants are not prejudiced. They share an identity of interest such that the defendants have been given fair notice of the allegations, and both seek the same type of damages under the same theory of negligence.

The Fourth Amended Complaint proceeds on the same general allegations as the original complaint. They both arise out of the same accident, of which the defendants were put on notice prior to the filing of the original complaint. The Fourth Amended Complaint therefore relates back to the original complaint and does not run afoul of the statute of limitations.

We therefore reverse the summary judgment and remand the case for further proceedings. We find no error in the trial court’s order vacating the default.

Reversed and Remanded.

CONNER, J., and TUTER, JACK, B., JR., Associate Judge, concur.


author: PICKETT, Judge.

text:
    Wilbert BATES, et ux. v. E.D. BULLARD COMPANY, et al.
    No. 11-187.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Lawrence J. Centola, III, Martzell & Bickford, New Orleans, LA, for Plaintiffs/Appellants, Wilbert and Edna Bates.
    Katherine Marie Loos, Attorney at Law, Lafayette, LA, for Defendant/Appellee, Southern Silica of Louisiana, Inc.
    Scott W. Browne, Coffey & Browne, L.L.P., Beaumont, TX, for Defendant/Ap-pellee, Specialty Sand Company.
    Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   PICKETT, Judge.

It The plaintiff, who contracted silicosis as a result of his exposure to silica dust in his employment as a sandblaster, and his wife appeal the trial court’s grant of summary judgment dismissing their claims against the defendants that supplied sand to his employer for sandblasting. For the following reasons, we affirm.

FACTS

Wilbert Bates was employed by SBA Shipyards for the period 1980-1989. During that time, Mr. Bates’ work duties included cleaning and/or sandblasting, both of which exposed him to silica dust. In June 2009, Mr. Bates was diagnosed with silicosis, a lung disease caused by the inhalation of small pieces of sand known as respirable silica which are a result of sandblasting. Mr. Bates and his wife filed suit against numerous defendants, asserting strict liability, negligence, and products liability claims against them.

In their suit, the Bates alleged that the sand “manufactured and/or sold” to his employer by two defendants, hereinafter referred to as the sand defendants, was unreasonably dangerous or defective because the sand defendants failed to warn and instruct him and SBA of the hazards of the sand and failed “to properly design products in that products were defective for failure to instruct and warn.” The sand defendants, Specialty Sand Company and Southern Silica of Louisiana, Inc., filed motions for summary judgment, asserting they had no duty to warn Mr. Bates or SBA of the dangers of sand they sold to SBA for sandblasting.

After a hearing, the trial court granted summary judgment in favor of the sand defendants. The Bates appealed, assigning four errors with the trial court’s judgment.

|,ASSIGNMENTS OF ERROR

The Bates assign these issues for our consideration:

1. Prior to the passage and effective date of the Louisiana Products Liability Act, did a manufacturer or supplier have a duty to warn the “end user” of their product of a danger associated with its product?
2. Are there issues of fact regarding Mr. Bates’s knowledge of the danger of contracting silicosis from sandblasting with silica sand?
3. Are there issues of fact regarding whether SBA was a “sophisticated user” of the defendants’ sand?
4. Did the Hazardous Communication Standard in 1983 establish a tort duty for the sand defendants to warn end users, such as Mr. Bates, of the dangers sand presents when used for sandblasting?

SUMMARY JUDGMENT

Motions for summary judgments are subject to de novo review on appeal. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. The appellate court asks the same questions the trial court asks to determine whether summary judgment is appropriate, which is does any genuine issue of material fact exist and is the mover entitled to judgment as a matter of law? La.Code Civ.P. art. 966(B).

“A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute.” Ardoin v. Cleco Power, L.L.C., 10-815, p. 3 (La.7/2/10), 38 So.3d 264, 266. A genuine issue of fact is “one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate.” King v. Ill. Nat'l Ins. Co., 08-1491, p. 6 (La.4/3/09), 9 So.3d 780, 784.

^DISCUSSION

The basis of the sand defendants’ motions for summary judgment is the fourth circuit’s opinion in Damond v. Avondale Industries, Inc., 98-1275 (La.App. 4 Cir. 8/19/98), 718 So.2d 551, unit denied, 98-2854 (La.1/8/99), 735 So.2d 637. Damond held that Pearl Specialty Sands, Inc., a supplier of sand, such as the sand defendants, had no duty as a matter of law to provide the plaintiff sandblaster with a warning of the dangers presented by sand when it is used for sandblasting. That conclusion was based on a number of factors, including: 1) the defendant sold the plaintiffs employer ordinary sand which it had collected, dried, and separated according to size; 2) sand is not unreasonably dangerous per se because it is a natural substance used in its natural state as a playground on the beach, for filling gardens, lawns, and children’s sandboxes and for mixing with concrete; and 3) the danger presented by sand when used for sandblasting results from the manner in which it is used, not the condition of the sand itself.

The fourth circuit further determined the supplier did not have a duty to warn the purchaser/employer’s employee’s because the purchaser/employer was subject to and presumed to know the Occupation and Safety Health Act (OSHA) 29 C.F.R. § 1910.1-1450, which are detailed regulations that require employers engaged in various industries, including shipyards, provide respiratory protection for their employees. The court concluded the purchaser/employer was a “sophisticated user” to whom no duty to warn was owed. More importantly, the court determined that the supplier did not have a duty to warn the purchaser/employer’s employees because, although the supplier may have known the sand it sold to the employer would be used for sandblasting, “it had no control over how [the employer] would conduct its operations” and because there was no | ¿practical means by which the supplier could provide such warning to the purchaser/employer’s employees. Id. at 553.

Damond relied in part on its earlier decision in Longo v. E.I. Dupont De Nemours & Co., 93-756 (La.App. 4 Cir. 2/18/94), 632 So.2d 1193, writ denied, 94-673 (La.4/29/94), 637 So.2d 464, where the court had reached the same result with regard to DuPont whose product, Teflon, had been incorporated in the plaintiffs oral implant that had been used to replace her right temporomandibular joint. The implant failed and had to be replaced with one of plaintiffs ribs. The plaintiff sued DuPont, alleging it was liable to her under the theory of strict liability. The court determined DuPont had no duty to warn the plaintiff of potential dangers Teflon presented because, although DuPont may have known the implant manufacturer would incorporate Teflon in a product it manufactured, it had “no control over the design, composition, testing or manufacture” of the product. Id. at 1197.

The fourth circuit reached the same result in Cowart v. Avondale Industries, Inc., 01-894 (La.App. 4 Cir. 7/3/01), 792 So.2d 73, writ denied, 01-2719 (La.1/4/02), 805 So.2d 211, where the plaintiff sued a supplier of sand used for making molds at a foundry. The foundry was held to be a sophisticated user because foundries are also subject to the above-cited OSHA regulations; therefore, the supplier had no duty to warn the employer or its employees of the dangers presented by sand when used for sandblasting.

The sand defendants attached to their motions affidavits which show that the factors present in Damond are present here. The sand defendants’ affidavits show: 1) they obtain ordinary sand by dredging water bottoms; 2) after dredging, the sand is separated from the gravel then separated into various sizes of sand; 3) the sand is dried and screened, after which it is sold and delivered to purchasers. The sand is | ¡-.utilized for different purposes and in different manners depending on the purchaser, e.g., foundry sand, masonry sand, blasting sand, and fill sand. Mr. Bates testified that the sand was delivered by eighteen wheelers which deposited the sand into a large tank. In turn, the sand would be hauled by a smaller truck to where it was needed for sandblasting.

The Bates argue the sand defendants have not established they are entitled to summary judgment because they have not shown that SBA is a “sophisticated user.” They contend Damond is not applicable. A sophisticated user is defined as one who is “familiar with the product,” Hines v. Remington Arms Co., Inc., 94-455, p. 10 (La.12/8/94), 648 So.2d 331, 337, or as one who “possesses more than a general knowledge of the product and how it is used.” Asbestos v. Bordelon, Inc., 96-525, p. 44 (La.App. 4 Cir. 10/21/98), 726 So.2d 926, 955. As a result of their familiarity with a product, sophisticated users are presumed to know the dangers presented by the product; hence, there is no duty to warn them. Hines, 648 So.2d 331.

The Bates further argue there is a genuine issue of material fact as to whether SBA knew the dangers of sand used for sandblasting. Counsel for the sand defendants point out that as early as 1944 the dangers posed to those who work in silica dust were considered by the United States Supreme Court to be “a matter of common knowledge” that the defendant employer “was bound to know.” Urie v. Thompson, 337 U.S. 163, 180, 69 S.Ct. 1018, 1029, 93 L.Ed. 1282 (1949) (quoting Sadowski v. Long Island R. Co., 292 N.Y. 448, 456-457, 55 N.E.2d 497 (1944)). Additionally, OSHA regulations applicable to shipyards for sand/silica have been in place since 1971. 29 C.F.R. § 1915.3h1. Being a shipyard, SBA is required to comply with applicable OSHA regulations and presumed to know the regulations. Damond, 718 So.2d 551. As a result, SBA knew or should have known the danger sand | presents when used for sandblasting. Ducote v. Liberty Mut. Ins. Co., 451 So.2d 1211 (La.App. 4 Cir.), writ denied, 457 So.2d 15 (La.1984). For these reasons, there is no genuine issue of material fact that SBA is a “sophisticated user” of sand to whom no duty to warn was owed by the sand defendants.

We further find, as the fourth circuit did in Damond, that SBA is legally obligated to comply with safety regulations to protect its employees from the dangers presented by sandblasting. See La.R.S. 23:13 Likewise, we cannot say it would be practical for the sand defendants to warn SBA’s employees of the dangers sand presents when used for sand blasting. Accordingly, we agree with the fourth circuit’s conclusion that the sand defendants did not have a duty to warn SBA or Mr. Bates of the danger sand presents when used for sandblasting.

The Bates also urge that Damond is not applicable to all of their claims because it applies only to cases that occurred after the effective date of the Louisiana Products Liability Act (LPLA), September 1, 1988. They assert instead that Mr. Bates’ employment with SBA began in 1980 and that their claims include pre-LPLA claims and LPLA claims. To the contrary, Da-mond was decided solely on pre-LPLA product liability law outlined by the supreme court in Halphen v. Johns-Manville Sales Corp., 484 So.2d 110 (1986).

Next, the Bates claim that the Hazard Communication Standard, 29 C.F.R. § 1910.1200 disseminated by the Occupational Safety and Health Administration in l7November 1983 resulted in a duty being imposed on the sand defendants to notify Mr. Bates and other like employees of SBA of the danger sand presents when it is used for sandblasting. This assertion has no merit. Courts have determined that OSHA is a regulatory provision enforced by fines or criminal prosecutions. It does not create a private right of action. Fullen v. Philips Elec. N.A. Corp., 266 F.Supp.2d 471 (N.D.W.V.2002); Wickham v. Am. Tokyo Kasei, Inc., 927 F.Supp. 293 (N.D.Ill.1996); Dukes v. Sirius Const., Inc., 316 Mont. 226, 73 P.3d 781 (2003).

Lastly, the Bates claim summary judgment was improvidently granted because discovery was incomplete. The record shows otherwise, however. Suit was filed February 2009, and Mr. Bates was deposed in May 2009. The sand defendants did not file their motion for summary judgment until December 2010. In their memorandum opposing the motion for summary, the Bates stated the deposition of Specialty Sand Company was being scheduled for January 2011, but the corporate deposition of Southern Silica of Louisiana, Inc. was the subject of a motion to compel. No motion to compel discovery is in the record, and there was no mention of a request for a continuance during the hearing on the motions for summary judgment. For these reasons, we find the Bates have not shown summary judgment was improvidently granted on this basis. See LeCroy v. Byrd Reg’l Hosp., 10-904 (La.App. 3 Cir. 2/2/11), 56 So.3d 1167.

DISPOSITION

The judgment granting summary judgment in favor of Specialty Sand Company and Southern Silica of Louisiana, Inc. dismissing Wilbert and Edna Bates’s claims against them is affirmed. All costs are assessed to Wilbert and Edna Bates.

AFFIRMED.

      . La.R.S. 23:13 provides:
      Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees.


text:
    Jane WESTERVELT, Appellant, v. THYSSENKRUPP ELEVATOR CORPORATION and Toscana North Condominium Association, Inc., Appellees.
    No. 4D08-3037.
    District Court of Appeal of Florida, Fourth District.
    Nov. 2, 2011.
    Rehearing Denied Jan. 12, 2012.

      Amy D. Shield of Amy D. Shield, P.A., and Glick Law Firm, P.A., Boca Raton, for appellant.
    Susan S. Lerner of Josephs Jack, Miami, for appellee Toscana North Condominium Association, Inc.
    Richard P. Hermann and Jeannine C. Jacobson of Sedgwick Detert Moran & Arnold, L.L.P., Fort Lauderdale, and Helen Ann Hauser of Restani, Dittmar & Hauser, P.A., Coral Gables, for appellee Thyssenkrupp Elevator Corporation.
   TOWBIN SINGER, MICHELE, Associate Judge.

In this case we consider whether the trial court erred in directing a verdict against the plaintiff, Jane Westervelt (“Westervelt”), as to her negligence claims against Thyssenkrupp' Elevator Corporation (“Thyssenkrupp”) and Toscana North Condominium Association, Inc. (“Tosca-na”). Westervelt appeals the directed verdict in favor of Thyssenkrupp and Tos-cana. Because Westervelt presented evidence to support her claims as to whether Thyssenkrupp and/or Toscana were negligently responsible for Westervelt’s injuries, we reverse.

Westervelt worked as a concierge at a Toscana condominium building. Wester-velt was injured as a result of riding in a condominium elevator, which suddenly stopped while traveling from an upper floor to the lobby. Toscana had hired Thyssenkrupp to maintain and repair the condominium elevators. Following West-ervelt’s injuries, she filed a complaint alleging various counts of negligence against Thyssenkrupp and Toscana.

“The standard of review of a trial court’s ruling on a motion for directed verdict is de novo.” Borda v. E. Coast Entm’t, Inc., 950 So.2d 488, 490 (Fla. 4th DCA 2007).

The power to direct a verdict should be exercised with caution, and it should never be granted unless the evidence is of such a nature that under no view which the jury might lawfully take of it, favorable to the adverse party, could a verdict for the latter be upheld. The movant admits every reasonable inference that a jury might fairly and reasonably arrive at favorable to the adverse party.

Id. (quoting Little v. Publix Supermarkets, Inc., 284 So.2d 132, 133 (Fla. 4th DCA 1970)). In Pascale v. Federal Express Corp., 656 So.2d 1351 (Fla. 4th DCA 1995), this court further held:

In negligence cases, a motion for directed verdict should be treated with special caution because it is the function of the jury to weigh and evaluate the evidence. Upon a directed verdict motion, the weight of the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. Thus, a trial court should direct a verdict against the plaintiff only if there is no evidence, or reasonable inferences therefrom, upon which a jury may find for the nonmoving party. Accordingly, if there is conflicting evidence if differing reasonable inferences may be drawn therefrom, the directed verdict motion must be denied.

Id. at 1358 (citations omitted).

In this case, Westervelt’s expert, Jack Ennis, testified that within a reasonable degree of engineering probability the accident was the result of a small piece of wood hitting a mechanism of the elevator. Ennis also testified that the installation of chicken wire in the pit would have prevented any wood or other debris from falling onto the elevator and thus, would have prevented this accident. Ennis explained that this procedure is commonly done during the construction phase of a building when workers are frequently bringing construction materials in the elevators. While construction of the building in question had been completed over two years before, the individual units were being sold to buyers in an unfinished state. Both Tos-cana and Thyssenkrupp were aware that many tenants were bringing construction materials in the elevators to finish their respective units. Joe Russo, the Thyssen-krupp employee assigned to maintain and repair the elevators at the Toscana condominium, had noticed wood in the elevator pit, as well as on top of the elevator car. Russo had reported this observation to Toscana.

Based on Ennis’s testimony as well as other evidence at trial, there was sufficient evidence for the jury to have found that the accident was caused by a piece of wood or other debris falling onto a critical piece of the elevator, which then caused the accident. Also based on Ennis’s testimony, the jury could have found that the installation of chicken wire in the elevator pit would have prevented such debris from falling onto an elevator part, and thereby prevented the accident in this case.

One of the elements of a negligence cause of action is a “duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003) (quoting Prosser and Keeton on the Law of Torts 164-65 (W. Page Keeton ed., 5th ed. 1984)). “Whether a legal duty exists in a negligence action is a question of law for the court.” Daimler-Chrysler Ins. Co. v. Arrigo Enters., Inc., 63 So.3d 68, 73 (Fla. 4th DCA 2011) (citing Biglen v. Fla. Power & Light Co., 910 So.2d 405, 408 (Fla. 4th DCA 2005)).

Westervelt submitted evidence without objection that Toscana had a duty to maintain its premises. Thus, Toscana’s duty of care was clearly established at trial. Likewise, the evidence at trial established that Thyssenkrupp’s duty of care was to maintain and repair the elevators. Whether or not there was a breach of their respective duties should have been left for the jury to decide. There was sufficient evidence for the jury to have found that Toscana breached its duty by failing to install chicken wire or otherwise prevent debris from falling into the elevator pit. There was also sufficient evidence for the jury to have found that Thyssenkrupp breached its duty as well. Despite Ennis’s opinion that Thyssenkrupp “did nothing wrong,” there was sufficient evidence for the jury to have found that Thyssenkrupp did breach its duty to maintain the elevators by (1) either failing to install the chicken wire or by (2) failing to apprise Toscana of the potential dangers of debris falling into the elevator pit as well as the simple solution of installing chicken wire.

In sum, because a proper view of the evidence could sustain a verdict in favor of Westervelt, we reverse the directed verdict and remand for a new trial.

Reversed and Remanded.

TAYLOR and CIKLIN, JJ., concur.


author: LEVINE, J.

text:
    STATE of Florida, Appellant, v. Brian BLAYLOCK, Appellee.
    No. 4D11-1754.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Rehearing Denied Jan. 12, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Sr. Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented for our review is whether the trial court erred in granting a motion to suppress where it found that a law enforcement officer did not have reasonable suspicion to stop appellee. We find that the trial court erred since, based on the officer’s observations, there was probable cause that a crime had been or was being committed. We therefore reverse the order granting the motion to suppress.

Detective Redi of the Broward County Sheriff’s Office was working as part of a selective enforcement team targeting narcotics and prostitution. On December 10, 2009, Detective Redi and another detective drove to a hotel, which was known for narcotics and prostitution, within the City of Oakland Park. Detective Redi had made previous narcotics arrests at the hotel. In the parking lot, the detective observed ap-pellee in a parked vehicle with the window down. He observed appellee lift the open part of a soda can horizontally to his mouth, while holding a lighter to the closed end of the soda can. Appellee inhaled and exhaled a white powdery smoke from what the detective described as a “makeshift crack pipe.” During the motion to suppress hearing, the detective conceded that appellee could have been smoking something legal such as tobacco, but that with the “white powdery smoke,” it resembled the smoke of “crack cocaine.”

The detective approached the vehicle and asked for appellee’s identification. Appellee appeared startled and dropped the soda can on the floorboard of the vehicle. The detective asked appellee to exit the vehicle. The detective retrieved the can and field tested the can, which came back positive for cocaine.

Appellee was arrested and charged with possession of cocaine. Appellee challenged the stop and the trial court granted a motion to suppress the cocaine. The trial court stated:

Well, this one was an interesting case as all the suppression motions usually are. The Court can say if I were a law enforcement officer and I was on duty that night and I witnessed someone smoking out of a converted can, I probably would have taken the same actions.
[I]n this case, the Court does not find it to be enough. Even though if we are looking at what is more probable, more probable that is a crushed cola can, carburetor on the side or whatever it had in order to convert it into a smoking device, was more likely to probably contain a narcotic, then it was to have some type of pipe tobacco.

The trial court granted the motion to suppress, concluding that the detective did not have a “well-founded suspicion before having Mr. Blaylock exit the vehicle.... Mr. Blaylock was seized without the officer first having a well-founded suspicion of criminal activity before detaining Mr. Blaylock.”

As a result of the trial court’s order granting the suppression of evidence, this appeal ensues.

The standard of review applicable to a motion to suppress requires an appellate court to defer to the trial court’s factual findings but review legal conclusions de novo. State v. Abbey, 28 So.3d 208, 210 (Fla. 4th DCA 2010).

Although the trial court found that the detective did not have a well-founded suspicion of criminal activity, we disagree and find that the detective, in fact, had probable cause to believe that a crime had been or was being committed.

Probable cause is, of course, one of the three levels of police-citizen encounters as outlined by the Florida Supreme Court in Popple v. State, 626 So.2d 185, 186 (Fla. 1993). The first level is a consensual encounter, the second level involves an investigatory stop based on reasonable suspicion, and the third level is an arrest based on probable cause. Id.

In the present case, we find that there was sufficient evidence to constitute probable cause. “Probable cause to arrest or search exists when the totality of the facts and circumstances within an officer’s knowledge sufficiently warrant a reasonable person to believe that, more likely than not a crime has been committed.” League v. State, 778 So.2d 1086, 1087 (Fla. 4th DCA 2001). Even though the detective in this case acknowledged that the substance, although appearing to emit crack cocaine smoke, could theoretically have been tobacco, this is not dispositive as to whether the detective had probable cause to believe a crime was being committed. “A police officer does not have to ‘know’ that a certain item is contraband” in order to establish probable cause. State v. Hafer, 773 So.2d 1223, 1225 (Fla. 4th DCA 2000). Thus, “[a] finding of probable cause does not require absolute certitude.” Curtis v. State, 748 So.2d 370, 374 (Fla. 4th DCA 2000).

We find that probable cause existed for the detective to believe that more likely than not, a crime was being committed in his presence. See League, 778 So.2d at 1087. The trial court recognized, despite its decision to suppress, that the “crushed cola can ... was more likely to probably contain a narcotic, than it was to have some type of pipe tobacco.” We agree that the detective personally observed a “crushed cola can” being used as a “makeshift crack pipe,” and thus, personally observed, “more likely than not,” a crime being committed.

In conclusion, we find the detective properly seized the soda can containing cocaine, based upon probable cause that appellee had committed or was committing a crime. We, therefore, reverse and remand for further proceedings.

Reversed and remanded.

TAYLOR and HAZOURI, JJ., concur.


text:
    Andrew DARIAN, as Personal Representative of the Estate of James E. Hughes, Deceased, and as Successor Trustee under the James F. Hughes Living Trust dated August 17, 2000, Appellant, v. Elizabeth Ann WEYMOUTH, as Personal Representative of the Estate of Martha Mayfield Hughes, Deceased, Jean McCarthy, Raymond Hughes, James P. Hughes, William Hughes, William and Felicia Hughes, as Natural Guardians for Hannah Joy Hughes, a Minor, Morgan Darian, Andrew and Shea Darian, as Natural Guardians for Willa Darian, a Minor, Vanessa Hughes, Jacqueline McCarthy, Peter McCarthy, Emma J. Hughes, Nicoletta Calhoun, Alexis Janito and Ursula West, Appellees.
    No. 4D10-550.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Rehearing Denied Jan. 12, 2012.

      Keith T. Grumer and Maidenly Macalu-so of Grumer & Macaluso, P.A., Fort Lauderdale, for appellant.
    John H. Pelzer of Ruden McClosky P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Andrew Darían, personal representative of the estate of his father, James E. Hughes, and trustee of the James E. Hughes Living Trust, appeals a final summary judgment entered in favor of Elizabeth Ann Weymouth, personal representative of the estate of her mother, Martha Mayfield Hughes. The probate court ruled that Mrs. Hughes’ interest under the Hughes Trust vested upon the creation of the Trust and did not lapse upon her death. Accordingly, the probate court awarded Mrs. Hughes’ interest in the Trust to her estate. For reasons explained below, we reverse.

Factual Background

On March 15, 1999, James E. Hughes and Martha Mayfield entered into a prenuptial agreement. Shortly thereafter, they were married. In August of the following year, James executed the James E. Hughes Living Trust Agreement in compliance with the prenuptial agreement. The Trust made provisions for disposition of Hughes’ estate upon his death. Upon his death, Martha would receive the family home in Florida, the country home in North Carolina, a sum of one million dollars, the contents of the residences, and various other items of personal property. His will was a pour-over will that expressly incorporated the terms of the James E. Hughes Living Trust. The Trust did not specifically indicate what was to be done with the property bequeathed to Martha in the event that James survived Martha.

On September 3, 2004, James and Martha Hughes were shot and killed by Thomas Kleingartner, Martha’s adopted son from a prior marriage. Both died as a result of gunshot wounds to the head. Because the coroner was unable to determine which spouse predeceased the other, the probate court deemed their deaths to be simultaneous, pursuant to section 732.601(1), Florida Statutes, and entered an order to that effect in the probate of Mr. Hughes’ estate. Accordingly, Mr. Hughes’ property was to be disposed of as if he survived Mrs. Hughes.

To determine whether Mrs. Hughes was required to survive Mr. Hughes in order to receive benefits under the Trust, Andrew Darían, son of Mr. Hughes and personal representative of his estate, filed a “Complaint for Construction of Trust Instrument and Determination of Beneficial Interests Under Trust.” Elizabeth Wey-mouth, daughter of Mrs. Hughes and personal representative of her estate, filed an answer and counterclaim, seeking to enforce the provisions of both the Prenuptial Agreement and the Hughes Trust. Both parties, after a long and acrimonious battle, filed motions for summary judgment. Weymouth argued that her mother’s interest became vested upon the creation of the Trust and was contingent solely upon Mr. Hughes not revoking it prior to his death. Darían argued that Mrs. Hughes’ interest was contingent upon her surviving Mr. Hughes, and lapsed when she pre-de-ceased him. The trial court determined that Mrs. Hughes’ interest in the Trust vested prior to Mr. Hughes’ death, and accordingly awarded the disputed property to Mrs. Hughes’ estate.

Analysis

Both parties agree that there are no genuine issues of material fact and that the issues presented are pure questions of law. We review a trial court’s order granting summary judgment de novo. Mobley v. Gilbert E. Hirschberg, P.A., 915 So.2d 217, 218 (Fla. 4th DCA 2005).

First, we note that the common law controls this case. Section 736.1106(2), Florida Statutes, Florida’s antilapse statute, applies only to trusts which became irrevocable on or after July 1, 2009. Section 737.6035(2)(c), Florida Statutes, Florida’s previous antilapse statute, applied only to trusts executed on or after June 12, 2003. The James E. Hughes Living Trust was executed in August of 2000 and became irrevocable in September of 2004. Thus, neither statute controls.

In Florida, the creation of a living trust, standing alone, is not an event which vests the interests provided by a trust agreement. Travis et. Al. v. Ashton et al., 156 Fla. 529, 23 So.2d 725, 727 (Fla.1945) (holding that beneficiary of trust deed who predeceased grantors did not receive a vested interest at time of trust creation. Where element of futurity was annexed to substance of gift rather than enjoyment of it, vesting was suspended and the gift was “contingent.”); Brundage v. Bank of Am., 996 So.2d 877, 882 (Fla. 4th DCA 2008) (stating that the settlor of a revocable trust, of which he is the sole beneficiary until death, may change or revoke the trust at any time); Fla. Nat’l. Bank of Palm Beach Cty. v. Genova, 460 So.2d 895, 897 (Fla.1984) (stating that beneficiaries of revocable living trust do not come into possession of trust property until the death of the settlor, and even then their interest is contingent upon the settlor not exercising the power to revoke). A beneficiary’s interest in a trust vests upon the death of the settlor. Sorrels v. McNally, 89 Fla. 457, 105 So. 106, 107 (1925).

In this case, no sufficient event existed to vest Mrs. Hughes’ interest in the Trust prior to her husband’s death. In Travis, the Florida Supreme Court held that an intended beneficiary’s interest is suspended during the life of the grantor. 23 So.2d at 726. The intended beneficiary’s interest lapses should the beneficiary predecease the grantor. Id. Mr. Hughes was the sole trustee and beneficiary under the Trust during his life. Mrs. Hughes was among the contingent residual beneficiaries whose interest came into creation only upon the death of Mr. Hughes and who were entitled to distribution of the then remaining corpus of the trust. Because it was judicially determined that Mrs. Hughes predeceased her husband, her interest in the Trust lapsed upon her death.

We therefore reverse and remand for entry of summary judgment in favor of appellant.

Reversed and Remanded.

TAYLOR, HAZOURI, and LEVINE, JJ., concur.

      . Section 732.601(1), Florida Statutes, states: When title or property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived. Fla. Stat. § 732.601(1) (2004).


author: WARNER, J.

text:
    Saint Remy YLOMON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3381.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Rehearing Denied Jan. 10, 2012.
    Gerald M. Kuchinsky, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Saint Remy Ylomon appeals from his conviction for possession of cocaine with intent to sell or deliver, possession of cannabis, possession of drug paraphernalia, and resisting arrest without violence. He claims that the state failed to present any evidence of his ability to exert control over the drugs, thus precluding his conviction for possession. We agree and reverse. As to his conviction for resisting arrest, we affirm because the issue he raises on appeal was not preserved at trial.

Members of a Broward County SWAT team executed a search warrant on an apartment in the county. The search warrant had been obtained based upon evidence that Derrick Akins had sold drugs to a confidential informant from that address. After two SWAT members broke down the door, the lead SWAT member entered the apartment and observed two males sitting on a couch in front of a coffee table. One was the co-defendant Hayvert Walters. The detective identified the other person as the appellant Ylomon. Ylo-mon jumped up and fled out the back of the house. The detective yelled “runner” to SWAT team members outside. One pursued Ylomon, who was eventually captured in a home around the corner from the apartment.

When the investigating detective entered the apartment after the SWAT team had secured it, he saw a coffee table and, in plain view, a pill bottle wrapped in black electrical tape. There was also a clear plastic baggie with smaller, individual prepackaged baggies of powder cocaine that were in plain view on the table, as well as a large bag with smaller prepackaged baggies of marijuana on the floor. No evidence was seized from the apartment showing any connection to Ylomon, and the state did not present anything at trial to show that he was an occupant.

The defense moved for a judgment of acquittal, contending that the state had failed to prove constructive possession. The state argued that the drugs were in ready reach of Ylomon. The trial court denied the motion, and the jury convicted Ylomon as charged, prompting this appeal.

On appeal, Ylomon argues that the state failed to prove a prima facie case of constructive possession of the drugs, because the state proved only that he was sitting on a sofa in close proximity to controlled substances and paraphernalia which were in plain view. He argues that this was not enough to show that he had the ability to exercise dominion or control over these substances. We agree.

Where the state prosecutes a defendant for possession of drugs on a constructive possession theory, the state must prove that the defendant had: “(1) dominion and control over the contraband, (2) knowledge the contraband was within his presence, and (3) knowledge of the illicit nature of the contraband.” Lee v. State, 835 So.2d 1177, 1178 (Fla. 4th DCA 2002). The defendant’s knowledge and control can be presumed where defendant has exclusive possession of the premises where the contraband is found. See Brown v. State, 428 So.2d 250, 252 (Fla.1983). ‘Where, however, the premises are in the defendant’s and another’s joint possession, knowledge of the contraband’s presence and the defendant’s ability to control the same will not be inferred and must be established by independent evidence.” Edmond v. State, 963 So.2d 344, 346 (Fla. 4th DCA 2007). Mere proximity to the contraband is insufficient to establish dominion and control. See Person v. State, 950 So.2d 1270, 1272 (Fla. 2d DCA 2007).

In this ease, all the state proved was mere proximity to the contraband, which is insufficient to establish the defendant’s control over the drugs. No evidence connected Ylomon to the residence at all. He was not shown to have been an owner or even an occupant of the premises. The detectives at the scene did not testify that Ylomon had actual possession of any of the drugs, nor did they test the packaging to ascertain whether his fingerprints were on any of the packaging. Thus, no evidence was presented from which the state could infer that the defendant had the ability to exercise control over the drugs.

This case is nearly identical to Person v. State. In Person, as in this case, a SWAT team entered a residence to execute a search warrant. Contraband was observed in plain view in the common areas of the residence. Various people in the residence, including Person, fled the scene. No evidence connected Person with the premises, and no fingerprints were found on the drug packaging. The Second District held that, even if knowledge of the contraband could be proved, the evidence was insufficient to prove dominion and control.

The Second District also explained that Person’s flight was insufficient to prove that Person had dominion and control:

Although “[e]vidence of flight is relevant to infer consciousness of guilt where there is a sufficient nexus between flight and the crime with which a defendant is charged,” Powell v. State, 908 So.2d 1185, 1187 (Fla. 2d DCA 2005), here there is no necessary connection between Person’s attempt to run out the back door and any control he may have had over the cocaine. Person’s and the others’ flight can be explained by the distraction devices used by the SWAT team when it entered the residence, which created a scene of chaos according to one of the testifying officers. At worst, Person’s flight can be taken as evidence that he was aware of the illegal activity taking place in the residence, but it does not necessarily imply that, among the twelve people in the house, he was able to exert control over the cocaine.

Id. at 1273.

We relied on Person in Edmond v. State, also under similar facts. There, police executed a search warrant on a home and found Edmond trying to hide inside. He attempted to flee when found. Close by him, the police discovered contraband. We held that the evidence was insufficient to prove knowledge and control of the contraband. Specifically, we also held that Edmond’s flight was insufficient to prove constructive possession, citing to Person and Agee v. State, 522 So.2d 1044, 1046 (Fla. 2d DCA 1988).

Because the state failed to prove constructive possession of the contraband, defendant’s motion for judgment of acquittal should have been granted. We thus reverse and remand for the court to vacate his conviction and sentence on these charges. We affirm, however, his conviction for resisting arrest, as the appellant failed to preserve the issue raised on appeal. See Archer v. State, 613 So.2d 446, 448 (Fla.1993).

Affirmed in part; reversed in part and remanded to vacate his convictions, except for resisting arrest.

POLEN and CONNER, JJ., concur.


author: SWANSON, J.

text:
    CATEGORY 5 MANAGEMENT GROUP, LLC, Appellant, v. COMPANION PROPERTY AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 1D11-1007.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

      Kevin F. Masterson, Mobile, Alabama, for Appellant.
    Christopher W. Wadsworth and Mark A. Levine of Wadsworth Huott, LLP, Miami, for Appellee.
   SWANSON, J.

Appellant seeks review of a summary final judgment entered for appellee after the trial court found appellee had no duty to defend appellant in a personal injury action that fell within the automobile exclusion of the parties’ commercial general liability policy. Because we agree with appellant that the complaint in the personal injury action alleged facts that fairly brought the suit outside the automobile exclusion, we reverse the summary final judgment and remand for further proceedings.

Appellant, a limited liability company owned by John and Dorothy Sims and located in Pensacola, purchased a commercial general liability policy from appel-lee for one year commencing on June 1, 2007, and ending on June 1, 2008. In the summer of 2007, appellant was hired by Young’s General Contracting to supervise subcontractors and their crews performing cleanup operations in New Orleans following Hurricane Katrina. One of these subcontractors was Colonel McCrary Trucking, which performed certain transportation-related services at the project site. Joe Johnson, an employee of Colonel McCrary Trucking, worked at the site. On July 11, 2007, while driving a pickup truck owned by R.D. Construction (a subcontractor of Colonel McCrary Trucking), Johnson ran a stop light in Alabama and struck a car occupied by the Stewart family, severely injuring three family members.

The Stewart family subsequently filed a complaint in Alabama state court against several defendants, including Joe Johnson, R.D. Construction, Colonel McCrary Trucking, Young’s General Contracting, and appellant, for “Negligence and/or Wantonness,” Negligent and/or Wanton Hiring,” “Negligent and/or Wanton Training,” “Negligent and/or Wanton Supervision,” and “Negligent/Wanton En-trustment.” In particular, the complaint contained the following general allegation:

37. Defendant Joe Edward Johnson was driving a truck owned by defendant R.D. Construction at the time of the wreck and prior to the wreck and was an employee of Colonel McCrary Trucking at the time of the wreck. Defendant Joe Edward Johnson was operating said vehicle with permissive use on behalf of Colonel McCrary Trucking and for the benefit and economic well being of all of the defendants.

In addition, the complaint alleged as to each count that “Joe Edward Johnson was hired by or under the direction, control and supervision of John Sims and/or Dorothy Sims who are major shareholders and/or managers of’ appellant.

Shortly thereafter, appellant sought a legal defense and indemnity from appellee. After reviewing the claim, appellee denied a defense and indemnity based on the following exclusion contained in the insurance policy:

This insurance does not apply to:

g. Aircraft, Auto or Watercraft “Bodily injury” or “property damage” arising out of the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and “loading or unloading.” This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by the insured, if the “occurrence” which caused the “bodily injury” or “property damage” involved the ownership, maintenance, use or entrustment to others of any aircraft, “auto” or watercraft that is owned or operated by or rented or loaned to any insured.

Appellant then retained counsel at its own expense and eventually consented to a judgment of six million dollars in the Alabama lawsuit.

Appellant also filed a complaint in Florida seeking a declaratory judgment that the insurance policy issued by appel-lee provided coverage to appellant in the Alabama lawsuit. Appellee moved for summary judgment on the ground that appellant was not entitled to a defense or indemnity due to the automobile exclusion contained in the policy. Appellant responded that the automobile exclusion did not apply because the claims against appellant did not arise out of “the ownership, maintenance, use or entrustment to others” of any automobile “owned or operated by or rented or loaned to any insured.” The trial court granted appellee’s motion and entered summary final judgment for appellee. This appeal follows.

At the outset, we acknowledge that an insurer’s duty to defend is distinct from, and broader than, its duty to indemnify and is to be determined solely by the allegations in the complaint. Colony Ins. Co. v. G & E Tires & Serv., Inc., 777 So.2d 1034, 1036-37 (Fla. 1st DCA 2000); Grissom, v. Commercial Union Ins. Co., 610 So.2d 1299, 1306-07 (Fla. 1st DCA 1992). The duty to defend arises when the complaint alleges facts that fairly and potentially bring the suit within policy coverage even if the facts alleged are actually untrue or the legal theories are unsound. State Farm Fire & Cas. Co. v. Higgins, 788 So.2d 992, 995-96 (Fla. 4th DCA 2001), approved, 894 So.2d 5 (Fla.2004). Accord Colony Ins. Co., 777 So.2d at 1037; Grissom, 610 So.2d at 1307. If the complaint alleges facts partially within and partially outside the coverage of the policy, the insurer is obligated to defend the entire suit. Colony Ins. Co., 777 So.2d at 1037; Grissom, 610 So.2d at 1307. Any doubts as to whether there is a duty to defend in a particular case must be resolved against the insurer and in favor of the insured. Colony Ins. Co., 777 So.2d at 1037; Grissom, 610 So.2d at 1307.

Appellant claims the trial court erred in entering summary judgment for appellee upon finding appellee had no duty to defend appellant because the personal injury action in Alabama fell within the automobile exclusion of the policy. Because they tend to limit or avoid liability, exclusionary clauses are construed more strictly than coverage clauses. Psychiatric Assocs. v. St. Paul Fire & Marine Ins. Co., 647 So.2d 134, 138 (Fla. 1st DCA 1994). By its own terms, the exclusionary clause in this case did not apply to all claims arising out of the ownership, maintenance, use or entrustment to others of any automobile, but only to such claims involving automobiles “owned or operated by or rented or loaned to any insured.” The policy defined “insured” as including appellant and its employees. Accordingly, appellant correctly argues the automobile exclusion did not apply in this case because the complaint alleged the pickup truck involved in the collision was owned by R.D. Construction (not appellant) and operated by Joe Johnston, an employee of Colonel McCrary Trucking (not appellant), and there was no allegation the truck was rented or loaned to appellant. See Scottsdale Ins. Co. v. Subscription Plus, Inc., 299 F.3d 618, 620 (7th Cir.2002).

However, appellee notes the complaint also alleged that Joe Johnson “was hired by or under the direction, control and supervision of John Sims and/or Dorothy Sims who are major shareholders and/or managers of’ appellant. According to appellee, this alleged that Johnson was an employee of appellant, rendering him an insured under the policy and triggering the automobile exclusion. While this allegation might acknowledge a more generalized principal-agent relationship between appellant and Johnson, there is nothing that explicitly indicates the existence of an employer-employee relationship, especially in light of the complaint’s earlier allegation that Johnson was an employee of Colonel McCrary Trucking. Based upon our review of the allegations in the complaint after resolving all doubts in favor of appellant as the insured, we conclude the trial court erred in finding that appellee had no duty to defend based upon the automobile exclusion.

To the extent appellee argued below that appellant did not intend to purchase automobile liability coverage from appellee and could not reasonably expect coverage from appellee for a claim arising out of an automobile collision, we observe that the doctrine of reasonable expectations has been rejected by Florida courts and cannot be applied where there is no ambiguity in the contract. See Deni Assocs. of Fla., Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1140 (Fla. 1998). Furthermore, to the extent appel-lee argues on appeal that the summary judgment should be affirmed because (1) the accident occurred outside the geographic scope of coverage and (2) the doctrines of judicial and equitable estoppel precluded appellant from arguing that the automobile exception did not apply, we agree with appellant that those defenses could not be asserted for the first time in appellee’s answer brief. Am. States Ins. Co. v. McGuire, 510 So.2d 1227, 1229-30 (Fla. 1st DCA 1987). See also Coastal Masonry, Inc. v. Gutierrez, 30 So.3d 545, 549 n. 3 (Fla. 3d DCA 2010).

In conclusion, because the complaint in the personal injury action against appellant alleged facts that fairly brought the suit outside the automobile exclusion, we reverse the trial court’s summary final judgment for appellee and remand for further proceedings consistent with this opinion. In doing so, we note where a liability insurer has notice of a proceeding against its insured and is afforded an opportunity to appear and defend, a judgment rendered against the insured, in the absence of fraud or collusion, is conclusive against the insurer as to all material matters determined therein. Gallagher v. Dupont, 918 So.2d 342, 348 (Fla. 5th DCA 2005).

REVERSED and REMANDED.

BENTON, C.J., and VAN NORTWICK, J., concur.


author: WELLS, Chief Judge.

text:
    Anthony Glenn MORGAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2580.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 2011.
    Anthony Glenn Morgan, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SHEPHERD, and EMAS, JJ.
   WELLS, Chief Judge.

Anthony Glenn Morgan appeals an order summarily denying his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) as successive. On appeal from a summary denial, this court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record before us fails to make the required showing, we reverse the order on appeal and remand for an eviden-tiary hearing, or for the attachment of record excerpts conclusively showing that the appellant is not entitled to relief. See Fla. R.App. P. 9.141(b)(2)(D).

Moreover, because there is no indication in the record that the trial court entered a show cause order before barring Morgan from filing further pro se post-conviction motions, we reverse that aspect of the order under review as well. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999) (finding that the trial court must first provide the defendant with notice and an opportunity to respond before prohibiting further pro se attacks on a conviction and sentence as a sanction for prior repeated and frivolous motions); Fitzgerald v. State, 18 So.3d 1145, 1145 (Fla. 3d DCA 2009) (reversing an order prohibiting the defendant from filing further pro se pleadings where there was no indication in the record that the trial court had first entered a show cause order).

Reversed and remanded for further proceedings.


text:
    Jimmy SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3594.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Rehearing Denied Jan. 10, 2012.
    Jimmy Sanders, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Petitioner is cautioned that filing frivolous actions or appeals, including further appeals of double jeopardy challenges to his convictions as raised in a motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a), may result in sanctions, State v. Spencer, 751 So.2d 47 (Fla.1999), and/or referral to prison officials for consideration of disciplinary procedures, which may include loss of gain time. §§ 944.279(1), 944.28(2)(a), Fla. Stat.

MAY, C.J., GROSS and LEVINE, JJ„ concur.


text:
    Mary WHITTINGHAM, Appellant, v. HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for Home Equity Loan Trust Series ACE 206-HE1, Earl Whittingham, and City of Lauderhill, Appellees.
    No. 4D10-3632.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Andrean Eaton, Miami, for appellant.
    Joseph J. Huss and Joshua J. Shore of Krinzman Huss & Lubetsky, Fort Lauder-dale, for appellee HSBC Bank USA, National Association, as Trustee for Home Equity Loan Trust Series ACE 206-HE1.
   PER CURIAM.

Affirmed. See Palm Beach Sav. & Loan Ass’n, F.S.A. v. Fishbein, 619 So.2d 267 (Fla.1993).

STEVENSON, HAZOURI and LEVINE, JJ., concur.


text:
    Atrayo GIGGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2407.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Meshell, 2 So.3d 132 (Fla.2009).

POLEN, GROSS, and CONNER, JJ., concur.


text:
    Leighann Lightsey MARSOCCI, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Treasure Coast Cardiology, Appellees.
    No. 1D11-0412.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2011.
    Leighann Lightsey Marsocci, pro se, Appellant.
    A. Robert Whaley, General Counsel, and M. Elaine Howard, Deputy General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

Leighann Lightsey Marsocci appeals an order of the Unemployment Appeals Commission (UAC) affirming an appeals referee’s order that found Ms. Marsocci disqualified for unemployment benefits from July 4, 2010, through September 10, 2010, because she was not able and available for work. Because we find that some of the appeals referee’s findings are not supported by competent, substantial evidence, we reverse and remand for clarification.

At the hearing before the appeals referee on September 10, 2010, Ms. Marsocci testified that she filed a claim for unemployment benefits effective July 4, 2010, after she lost her full-time job as a medical assistant. When asked if she was looking for full-time or part-time work, she first answered “part time,” but then immediately stated, “[e]ither/or, whichever I can find I will take.” She also testified that nothing had kept her from looking for work, that if offered a full-time position she would be able to accept it, and that she had made seven job contacts since July 4 and had searched the internet for available positions.

The appeals referee made findings of fact that Ms. Marsocci made at least seven part-time job contacts. But the referee then concluded that Ms. Marsocci “failed to show a genuine attachment to the labor market by testifying to a limited work search,” and that she was not able and available for work as defined by statute. The UAC affirmed the referee’s order. The appeals referee made no mention of her uncontradicted testimony of searching the internet for jobs in Okeechobee County-

To be eligible to receive unemployment benefits in any week, a claimant must show, among other requirements, that she is “able to work and is available for work.” § 443.091(l)(d), Fla. Stat. (2010). “Able to work” means “physically and mentally capable of performing the duties of the occupation in which work is being sought.” § 443.036(1), Fla. Stat. (2010). “Available for work” means “actively seeking and being ready and willing to accept suitable employment.” § 443.036(6), Fla. Stat. (2010). Florida Administrative Code Rule 60BB-3.021 sets out relevant criteria in determining whether a claimant is able and available for work:

To be eligible for a claimed week of unemployment, a claimant must be:
(1) Authorized to work in the United States; and
(2) Able to work and available for work during the major portion of the claimant’s customary work week; and
(3) Actively seeking work in a manner customary to the occupation in which work is being sought. Factors to be considered in determining whether the claimant has conducted an active work search are:
(a)The number of job contacts made by the claimant and the dates the contacts were made; and
(b) Whether the type of work being sought is reasonable considering the claimant’s background, training, abilities, and duration of unemployment; and
(c) Whether the claimant possesses the necessary license, certification and tools to perform the type of work being sought; and
(d) Whether the claimant is on a temporary layoff; and
(e) Whether the claimant is on a seasonal layoff and resides in a geographical area in which no suitable off-season work prospects are available.
(4) Free of unreasonable occupational restrictions regarding wages, hours, place and type of work in relation to the claimant’s training, experience, work history, and local labor market conditions.
(5) Free of personal circumstances which would substantially limit or restrict the claimant from conducting an active work search or accepting an offer of suitable work. Examples of such circumstances include:
(a) Attendance at school or a training course during customary work hours unless the claimant continues to actively seek work and is willing to change or forego classes or training that interfere with the claimant’s ability to accept work;
(b) Absence from the local area unless the absence is for the primary purpose of seeking work or working; or
(c) Domestic responsibilities and conditions which substantially interfere with the claimant’s ability to seek and accept suitable work.

In the present case, there was no evidence that Ms. Marsocci was not able to work, as defined by statute. Additionally, Ms. Marsocci testified that nothing had prevented her from looking for work and that she was able to accept a full-time job. Given this testimony, the appeals referee could have only statutorily denied her benefits if it found that she was not actively seeking work or that she placed unreasonable restrictions regarding hours on her search. See Fla. Admin. Code R. 60BB-3.021(3)-(4). To this end, the referee’s finding that Ms. Marsocci only made job contacts for part-time work is not supported by competent, substantial evidence. Ms. Marsocci testified that she was searching for either part-time or full-time work, and she did not expressly state whether her job contacts were for part-time or full-time positions. Without this finding, there is no evidence to support a finding that Ms. Marsocci placed unreasonable restrictions on her work search. See Fla. Admin. Code R. 60BB-3.02K4).

We reverse the UAC’s order and remand with instructions to make findings based solely on the evidence in the record. See Chapman v. Fla. Unemployment Appeals Comm’n, 15 So.3d 716, 717 (Fla. 1st DCA 2009) (“Because some of the referee’s factual grounds for finding Chapman ineligible for benefits are not supported by competent substantial evidence and we cannot discern from the order whether the referee would have drawn the same conclusions based on the fact-supported findings, we reverse the final order and remand for clarification.”).

Reversed and remanded.

BENTON, C.J., VAN NORTWICK, and SWANSON, JJ., concur.