author: GROSS, C.J.

text:
    Rose SPANO, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2993.
    District Court of Appeal of Florida, Fourth District.
    May 4, 2011.
    Carey Haughwout, Public Defender, and Anthony Calvello, 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.
   GROSS, C.J.

We reverse a portion of appellant’s sentence because a special condition of probation preventing a mother from having any contact with her daughter was an abuse of discretion under the facts of this case.

Rose Spano entered pleas of guilty to two counts of practicing law after she had been suspended from the practice in violation of section 454.31, Florida Statutes (2008). She was placed on one year of community control followed by three years of probation. In March, 2009, after admitting a material violation of community control, she was again placed on one year of community control followed by three years of probation.

One of the conditions of community control was that Spano remain confined to her residence except for 80 minutes before and after approved employment, community service work, or any other activities approved by the community control officer. In June, 2009 the officer filed an affidavit of violation; the crux of the charge was that Spano had requested that she be allowed to visit her daughter, her supervising officer said no, but Spano visited her daughter anyway.

Spano and her daughter had a difficult relationship. At one point, there was no contact between them because the daughter had obtained a restraining order against Spano. After hearing evidence, the trial court ruled that Spano had committed a willful and substantial violation of her community control. The court again withheld adjudication of guilt and sentenced Spano to one year of community control followed by three years of probation. As a special condition, the court ordered that Spano have no direct or indirect contact with her daughter. Spano filed a motion to correct a sentencing error challenging the imposition of the special condition, but the trial court did not rule on it, so it is deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B).

The trial court abused its discretion in imposing a special condition that Spano have no contact with her daughter. See Williams v. State, 879 So.2d 49, 50 (Fla. 1st DCA 2004) (applying abuse of discretion standard to “[a] review of the special conditions imposed”). The discretion to impose a special condition of probation or community control “is not unbridled.” Kominsky v. State, 330 So.2d 800, 801 (Fla. 1st DCA 1976). Thus,

[i]n determining whether a [special] condition of probation is reasonably related to rehabilitation, we believe that a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

Rodriguez v. State, 378 So.2d 7, 9-10 (Fla. 2d DCA 1979) (citations omitted), approved, Biller v. State, 618 So.2d 734, 734-35 (Fla.1993); see Zeigler v. State, 647 So.2d 272, 273-74 (Fla. 4th DCA 1994). The rationale behind these limitations is that “[a] special condition of probation cannot be imposed if it is so punitive as to be unrelated to rehabilitation.” Williams v. State, 474 So.2d 1260, 1260 (Fla. 1st DCA 1985) (citing Kominsky, 330 So.2d at 801-02).

If at least one of the Rodriguez conditions exists, then a special condition of probation may be upheld. “While the [sentencing] judge need not make a finding, a special condition of probation, when challenged on grounds of relevancy, will only be upheld if the record supports at least one of the circumstances outlined in Rodriguez.” Biller, 618 So.2d at 735; see also Fernandez v. State, 677 So.2d 332, 334 (Fla. 4th DCA 1996) (same).

Here, the special condition is not “reasonably related” to practicing law after suspension. Carter v. State, 677 So.2d 1349, 1350 (Fla. 4th DCA 1996) (holding in part that a special condition requiring AA meetings where defendant’s crime of grand theft was not “reasonably related to the use of intoxicants”). Establishing contact with one’s own child is not a criminal act, in the absence of a restraining order. Although the third Rodriguez factor is closer, we cannot say that Spano’s desire to maintain contact with her daughter is an invitation to future criminality. The daughter may have good reasons for wanting Spano out of her life, but a community control violation proceeding arising from an incident unrelated to the mother-daughter relationship is not the proper forum to bring closure to the relationship. Nothing in the record supports the imposition of the condition as being “reasonably related to [the] defendant’s rehabilitation.” Zeigler, 647 So.2d at 274.

We reverse in part, affirm in part, and remand to the circuit court for the striking of the special condition of probation.

HAZOURI and CIKLIN, JJ., concur.

      . In the other point on appeal, we find no abuse of discretion in the trial judge's finding of a community control violation.


source: Caselaw Access Project

author: PER CURIAM. THOMAS, J.,

license: Public Domain

text:
    Molly STOKES, Appellant, v. SCHINDLER ELEVATOR CORP./BROADSPIRE, Appellees.
    No. 1D10-1748.
    District Court of Appeal of Florida, First District.
    May 9, 2011.

      Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Appellant.
    Carlos D. Cabrera of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant, the surviving spouse of an injured and now-deceased worker, challenges an order of the Judge of Compensation Claims (JCC) that denies death benefits claimed under section 440.16(l)(a)-(b), Florida Statutes (2006). Claimant argues the JCC erred in admitting and relying upon the opinion of a non-physician toxicologist in determining issues of medical causation, and by concluding that the opinion testimony of two pathologists (medical doctors) was insufficient “as a matter of law” to establish the cause of the worker’s death. We agree and reverse.

Background

As a result of a compensable accident and injury, Michael Stokes underwent an authorized ankle surgery, after which his surgical incisions did not heal. Notwithstanding the administration of professional wound care and a course of strong antibiotics, Stokes’ wounds became swollen, pus-filled, odorous, and inflamed. While under the care of a wound-care nurse, Stokes became febrile, collapsed, and died. An autopsy performed by the county medical examiner revealed visible colonies of coc-coid bacteria which had formed in Stokes’ heart, causing acute inflammation of the heart tissues, the presence of which was preserved on slides and confirmed by microscopic inspection. A post-mortem examination of Stokes’ body, performed by a pathologist, revealed marked redness and swelling around the oozing surgical wounds, but, despite a full autopsy, no other source of infection was located. The medical examiner, having ruled out all other possible causes of death and sources of infection, officially concluded that the cause of Stokes’ death was the acute bacterial infection in the heart, caused by bacterial infection resulting from the ankle surgery. After the cause of death was certified for official purposes, Stokes’ body was cremated.

Claimant filed a petition for death and funeral benefits under the Workers’ Compensation Law. The employer/carrier (E/C) denied the claim on the basis that Stokes’ death was not caused by the ankle infection, and on the additional grounds that Claimant was not substantially dependent on Stokes. The doctor who performed the autopsy (a pathologist), and a pathologist who performed an independent medical examination (IME) on Claimant’s behalf (both medical doctors whose opinions were admissible before the JCC), testified that based on their experience, education, and training, and examination of the existing evidence, the cause of Stokes’ death, within a reasonable degree of medical certainty, was infectious endocarditis caused by the ankle infection.

The E/C did not introduce medical evidence supporting its theory that Stokes’ death was not caused by the ankle infection. Rather, it retained a non-physician toxicologist who testified that Stokes could have died from other causes, and that one could not scientifically determine the cause of death without culturing the ankle wound to match the bacteria in the ankle and the heart, or identifying epidemiologic studies linking ankle wounds to endocarditis— propositions which were soundly refuted by the medical experts, and enjoyed no other support in the record. The JCC although cautioning that she would not consider medical opinions expressed by the toxicologist — sustaining Claimant’s objection in this regard — denied death benefits “as a matter of law,” because no culture was taken of Claimant’s ankle wound and because no epidemiological studies were produced establishing a causal relationship between ankle wounds and endocarditis.

Analysis

In reaching her conclusion regarding the legal (in)sufficieney of the pathologists’ testimony, the JCC of necessity adopted or accepted the toxicologist’s opinion on issues of medical causation upon which he was not qualified to testify under the Workers’ Compensation Law. See § 440.13(5)(e), Fla. Stat. (2007) (stating no medical opinion other than an authorized treating provider, an IME, or an expert medical advisor is admissible in proceedings before the JCC); see also § 440.09(1), Fla. Stat. (2007) (providing occupational causation must be established to a reasonable degree of medical certainty and demonstrated by medical evidence only). This court has recently held that a JCC may not rely upon the opinion of a Ph.D. toxicologist — a non-physician — in determining medical causation under the Workers’ Compensation Law. See Witham v. Sheehan Pipeline Constr. Co., 45 So.3d 105, 108-109 (Fla. 1st DCA 2010) (“Because Dr. Harbison is not a medical doctor, he was not qualified to testify as to the medical cause of Claimant’s condition in this particular case.”). Here, the essence of the toxicologist’s testimony was that, absent a culture from the ankle wound, one could not be absolutely certain that the bacteria found clumped in Stokes’ heart in fact entered through the ankle wound. Nevertheless, Claimant was not charged with the duty of proving beyond any question and to all degrees of certainty that Stokes’ fatal infection resulted from the ankle wound, as was seemingly concluded by the JCC; rather, she had the obligation of proving this was so within a reasonable degree of medical certainty — not absolute certainty, or the reasonable degree of certainty exacted by some other unspecified field of science. See § 440.09(1), Fla. Stat. (2005); see generally Castillo v. E.I. Du Pont De Nemours & Co., 854 So.2d 1264, 1276 (Fla.2003) (explaining under circumstances where evidence of Benlate exposure was equivocal, plaintiffs did not have to “establish” that Benlate was sprayed; rather, “they need only present the greater weight of the evidence [the applicable burden of persuasion] that it was”). The Workers’ Compensation Law requires that occupational causation be established within a reasonable degree of medical certainty and by medical evidence only. Accordingly, the JCC erred in relying on the non-physician toxicologist’s (non-medical) testimony as to other possible causes of Stokes’ death, and by accepting his opinion regarding the protocols, testing, and the degree of certainty used in the medical community to determine the cause of death. Moreover, the JCC’s conclusions that the medical experts’ opinions were legally infirm because of the lack of epidemiological studies linking endocarditis to ankle wounds, and her conclusion that no evidence established that the fatal heart infection stemmed from the ankle wound, misapprehends the use of expert opinion testimony in Florida courts. See U.S. Sugar Corp. v. Henson, 823 So.2d 104, 109 (Fla.2002) (stating when expert’s opinion is based upon generally accepted scientific principles and methodology reasonably relied upon by experts in relevant field of expertise, it is not necessary that expert’s deductions based thereon and opinion also be generally accepted as well). Here, the pathologists’ expert opinion testimony was evidence demonstrating causation, from which the JCC could conclude a sufficient causal relationship, established within a reasonable degree of medical certainty, as required by the Workers’ Compensation Law. See § 90.702, Fla. Stat. (providing qualified expert witness may testify in form of opinion); see also § 90.703, Fla. Stat. (providing expert testimony in form of opinion or inference is not objectionable because it includes an ultimate issue to be decided by trier of fact).

Accordingly, we REVERSE and REMAND for the JCC to make those findings of fact necessary to determine Claimant’s entitlement, if any, to benefits, without reliance on the opinion testimony of the non-physician toxicologist. We do not address the E/C’s ill-suited attempt to reverse the JCC’s factual findings regarding Claimant’s dependency, because the request for the affirmative relief of reversal by the E/C through its Answer Brief is improper. On remand, however, the JCC shall make ultimate conclusions and findings regarding Claimant’s dependency.

WOLF and ROWE, JJ., concur; THOMAS, J., concurs with opinion.

THOMAS, J.,

concurring.

I concur in the panel opinion, but write to address a claimant’s appropriate burden of persuasion. (Generally, “burden of persuasion” is the better phrase to refer to the standard by which a party must convince the fact finder, as the phrase “burden of proof’ includes two burdens: (1) that of moving forward with evidence, and (2) the obligation to establish a requisite degree of belief concerning a fact in the mind of the trier of fact — the latter being the burden of persuasion.)

Claimant contends that the proper burden of persuasion in workers’ compensation proceedings is “competent, substantial evidence” and not the elevated “preponderance of the evidence” standard — meaning a claimant need not prove anything to the satisfaction of the JCC, but must only present a prima facie case on causation to prevail. This argument relies on indisputable authority, as the supreme court concluded 50 years ago in Johnson v. Koffee Kettle Restaurant, 125 So.2d 297, 299 (Fla.1961):

[Workers’] compensation is a complete departure from the civil and criminal code; the issues are different and require a different procedure to resolve them. As heretofore stated, in [workers’] compensation, it is essential that claimant prove or show a state of facts from which it may be reasonably inferred that deceased was engaged in his master’s business when the accident resulting in his injury took place. If the evidence to establish such a state of facts is competent and substantial and comports with reason or from which it may be reasonably inferred that deceased was engaged in his master’s business when he was injured, it is sufficient.

(Emphasis supplied.)

This court, in Schafrath v. Marco Bay Resort Ltd,., 608 So.2d 97, 102 (Fla. 1st DCA 1992), relied on Johnson to reject the idea that 1990 legislative amendments to the workers’ compensation statute (which eliminated a statutory presumption that a claim by an employee was covered under chapter 440) altered a claimant’s burden of persuasion, and reaffirmed the claimant’s lesser burden of persuasion of competent, substantial evidence.

Schafrath, however, incorrectly rejected implicit legislative intent to establish a preponderance of the evidence burden of persuasion in workers’ compensation cases. Although the Legislature has not reacted specifically to abrogate either Johnson or Schafrath, this court has clarified those holdings in more recent decisions to, in essence, apply the preponderance standard. See, e.g., Alston v. Etcetera Janitorial Servs., 634 So.2d 1138, 1134 (Fla. 1st DCA 1994) (holding that “while the broad language in Schaf-rath and Johnson addressed the burden of proof ..., the decisions do not compel application of the doctrine merely upon a prima facie evidentiary predicate”). Although I may agree with the actual holding of Alston that the claimant did not demonstrate entitlement to relief on appeal, the rationale there fails, because the “broad language” in Schafrath and Johnson does in fact hold that where a claimant comes forward with evidence that could support a finding in a claimant’s favor, the JCC could not require more evidence sufficient to disprove an equally likely “logical cause.” This is especially clear in Schafrath.

Notwithstanding this court’s decision in Schafrath, it is inescapable that the legislature, by eliminating the presumptions in favor of claimants in effect prior to 1990, and requiring that a claimant prove his or her case “on the merits,” intended to require claimants to prove entitlement to relief by a preponderance of the evidence, or a greater weight of the evidence, a standard which represents the lowest burden of persuasion in the law. See Allstate Ins. Co. v. Vanater, 297 So.2d 293, 295 (Fla.1974) (describing three basic standards of proof); see also Black’s Law Dictionary 196-97 (6th ed. 1990) (defining burden of proof, and stating “burden of establishing” a fact means burden of persuading the trier of fact that existence of the fact is more probable than its nonexistence); State v. Edwards, 536 So.2d 288, 292-93 (Fla. 1st DCA 1988) (explaining that substantial evidence standard is used for preliminary rulings on admissibility of evidence, not for adjudication of ultimate facts); Fla. Std. Jury Instr. (Civ.) 401.3 (“Greater weight of the evidence” means more persuasive and convincing force and effect of entire evidence in case.); Fla. Std. Jury Instr. (Civ.) 601.1 (explaining jury may use reason and common sense to make factual findings and may draw reasonable inferences from the evidence in determining facts); § 90.301(3), Fla. Stat. (explaining nothing in Florida Evidence Code prevents drawing of appropriate inference).

It should be axiomatic that competent, substantial evidence is a standard of appellate review relating to the legal sufficiency of evidence, and not a standard of proof by which a claimant must persuade the finder of fact. Conceptually, “competent, substantial evidence” is not a burden of persuasion at all, as such would eviscerate the essential role of the JCC as the finder of fact. In other words, if a JCC is required to find facts on less than 50% plus one iota of evidence, this means that superior proof must be rejected.

The majority correctly concludes that discussion of the proper standard of proof in workers’ compensation cases is unnecessary to the disposition of the issue presented here, as the JCC incorrectly concluded that Claimant failed to introduce competent or substantial evidence establishing an occupational causation of death, preventing the award of benefits as a matter of law. The best course, however, would be for this court to explicitly hold that Schafrath was in error, and conclude that a claimant’s burden of persuasion is by the greater weight of the evidence, in light of the 1990 legislation eliminating any presumption in favor of claimants or employers and requiring that “worker’s compensation cases shall be decided on their merits.” § 440.015, Fla. Stat. (Supp.1990).

        See Pic N’ Save Cent. Fla., Inc. v. Dep't of Bus. Reg., Div. of Alcoholic Beverages & Tobacco, 601 So.2d 245, 249-50 (Fla. 1st DCA 1992); Fla. Dep't of Health & Rehabilitative Servs. v. Career Serv. Comm’n of Dep’t of Admin., 289 So.2d 412, 415 n. 2 (Fla. 4th DCA 1974); see also Douglas N. Higgins, Inc. v. Fla. Keys Aqueduct Auth., 565 F.Supp. 126, 129-30 (S.D.Fla.1983) (recognizing distinction between preponderance of the evidence standard of proof applicable in an administrative hearing and competent, substantial evidence standard of review).


author: PER CURIAM.

text:
    Dennis T. HUTTO, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1063.
    District Court of Appeal of Florida, First District.
    May 9, 2011.
    Dennis T. Hutto, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant argues that the trial court erred in summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We agree and reverse and remand for an evi-dentiary hearing or for record attachments conclusively refuting the appellant’s claims of ineffective assistance of counsel. The appellant’s claim that his counsel was ineffective for failing to investigate and determine that his prior DUI convictions were uncounseled and thus improperly used to enhance his current DUI conviction is cognizable in a rule 3.850 motion. See Hutto v. State, 981 So.2d 1236 (Fla. 1st DCA 2008). His claim that his counsel was ineffective for failing to explain the critical elements of the charged crime is similarly cognizable in a rule 3.850 motion. See Pitts v. State, 855 So.2d 681 (Fla. 1st DCA 2003).

REVERSED and REMANDED.

HAWKES, THOMAS, and ROBERTS, JJ., concur.


author: LEVINE, J.

text:
    Gail LEVIN, Appellant, v. William LEVIN, individually, and as Trustee of the Shirley Sunshine Levin Declaration of Trust Agreement Dated May 22, 2008, Jessica Lynn Levin, and Benjamin Levin, Appellees.
    Nos. 4D09-4291, 4D09-4293.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.

      Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellant.
    James G. Pressley Jr. and David S. Pressly of Pressly & Pressly, P.A., West Palm Beach, for appellees.
   LEVINE, J.

Appellant, Gail Levin, challenges the will and trust executed on May 22, 2008, by the decedent, Shirley Sunshine Levin. Appellant challenges the execution on several grounds, but we find only one issue is of merit. We affirm the finding of the trial court in determining that there was no presumption of undue influence in the execution of the will and trust. We also find that the trial court did not err by denying appellant’s motion for continuance and by excluding the testimony of her expert witness. We reverse only for the trial court to determine from the record, or after an evidentiary hearing, whether the decedent suffered from an “insane delusion” at the time of the execution of the will and trust.

In 1987, the decedent executed a will in which she divided her estate equally between both of her children, appellant Gail and appellee William Levin. The mother then executed a new will and trust on May 22, 2008. In this new will, William was appointed personal representative and named as trustee of the trust. When William’s children, appellees Jessica and Benjamin Levin, each reached thirty years of age, they would receive $100,000 and $50,000, respectively. William, as trustee, was given the discretion to use the monies to pay for their education, among other things. Gail was to receive $350,000 from the trust. William received the remainder of the assets in the will and trust.

The mother died on August 16, 2008, and the May 22, 2008, will was admitted to probate. There was evidence that the estate was valued in excess of $3 million at the time of the mother’s death. Gail filed an objection to the Petition for Administration and Counter Petition for Administration. After a trial, the trial court determined that William did not exert undue influence over the will and trust and that the mother had testamentary capacity. From the trial court’s judgment, this timely appeal ensues.

Before the trial, Gail filed a motion for continuance on July 27, 2009, based on a letter from her doctor stating that she was scheduled for surgery on July 30, 2009. In April, the court set this case for trial to commence on August 6, 2009. Gail also requested a continuance due to the fact that she did not receive the medical records from Dr. Davis, a psychiatrist who evaluated the mother, until the eve of trial. The motion to continue the trial was denied. The trial court arranged for Gail to attend the trial by telephone.

We review the denial of a motion for continuance under the standard of abuse of discretion. A.P.D. Holdings, Inc. v. Reidel, 865 So.2d 682, 683 (Fla. 4th DCA 2004). We cannot say that the trial court abused its discretion by denying the motion for continuance where the request was made days before a trial which had been set several months in advance. Further, the trial court observed that Gail offered no evidence to clarify whether the surgery performed on the eve of trial was elective or whether the surgery was medically required to be done on July 30. Finally, Gail was able to testify and participate in the trial by telephone, despite not being able to travel to the courtroom in person. Gail, in fact, received the records from Dr. Davis before trial and had the benefit of the records at trial.

During trial, Gail wanted to introduce the testimony of an expert witness, an experienced practitioner in estate law. His testimony would have concerned whether the mother was signing something that she did not want to sign. We find that the trial court did not abuse its discretion by refusing to permit this witness to testify what is required by the law in the execution of a will. See Doctors Co. v. Dep’t of Ins., 940 So.2d 466, 469 (Fla. 1st DCA 2006) (“[T]he well established standard of review [is] that acceptance or rejection of expert testimony is a matter within the sound discretion of the lower tribunal, and such decision will not be overturned on appeal absent a showing of abuse of discretion.”) (citation and quotation omitted).

As to the issue of undue influence, Gail, as the individual contesting the will, “had the burden of proving the undue influence alleged.” In re Estate of Carpenter, 253 So.2d 697, 701 (Fla.1971). “When a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” Raimi v. Furlong, 702 So.2d 1273, 1287 (Fla. 3d DCA 1997). In order to raise the presumption of undue influence, Gail must show that William (1) was a substantial beneficiary (2) who occupied a confidential relationship and (3) was active in procuring the will and trust. Ca'rpenter, 253 So.2d at 701.

The trial court found that William conceded to these first two factors and that “[t]he controversy concerning the claim of undue influence centered on whether or not [William] was active in procuring the will and trust.” The trial court, in weighing the various factors outlined in Carpenter, found that the evidence was “overwhelming that [William] did not use undue influence to procure the May 8, will and trust.” We find that the trial court did not abuse its discretion in determining that the facts did not show active procurement. See id. (“[T]he trier of fact is vested with discretion to determine whether or not the facts show active pro-curement_”). We also find that Gail failed to carry her burden of showing a lack of testamentary capacity and that substantial competent evidence supports the trial court’s finding that the mother had the testamentary capacity to execute the will and trust. See Hendershaw v. Estate of Hendershaw, 763 So.2d 482, 483 (Fla. 4th DCA 2000) (“The probate court’s findings in a will contest shall not be overturned where there is substantial competent evidence to support those findings, unless the probate judge has misapprehended the evidence as a whole.”).

Finally, Gail claims that the will and trust were based upon an “insane delusion.” The law states that “[w]here there is an insane delusion in regard to one who is the object of the testator’s bounty, which causes him to make a will he would not have made but for that delusion, the will cannot be sustained.” Miami Rescue Mission, Inc. v. Roberts, 943 So.2d 274, 276 (Fla. 3d DCA 2006) (quoting Newman v. Smith, 77 Fla. 633, 82 So. 236, 236 (1919)). “An insane delusion is a ‘spontaneous conception and acceptance as a fact, of that which has no real existence adhered to against all evidence and reason.’ ” McCabe v. Hanley, 886 So.2d 1053, 1055 (Fla. 4th DCA 2004) (citation omitted).

In the present case, the mother persisted in the belief that Gail had visited her only once in about ten years. The mother told William and the attorney who prepared the will and trust that she had not seen Gail anywhere from ten to eleven years ago. The mother sent Gail an email complaining that Gail had been to see her only once in eleven years. Gail replied and disputed in detail the mother’s contention.

In the record, there was evidence that the mother and Gail had seen each other multiple times within the seven-year period preceding the execution of the testamentary documents. The trial court did not address the evidence of visitations between the mother and Gail or that the evidence appeared to contradict the many assertions by the mother that Gail had not visited her in seven to eleven years. Thus, the trial court never decided whether this contradiction in evidence rose to the level of “insane delusion” and whether this incorrect statement repeated by the mother was linked to reducing the bequest to Gail from the 1987 will to the amount given to her in the disputed will and trust. We therefore reverse on this issue for the trial court to make findings on this issue either after reviewing the record or, in its discretion, after an evidentiary hearing.

In summary, we reverse and remand with directions for the trial court to decide whether the mother suffered from an insane delusion at the time she executed the will and trust that caused her to make a will that she “would not have made but for that delusion.” We affirm on all other grounds.

Affirmed in part, reversed in part, and remanded.

WARNER and TAYLOR, JJ„ concur.

      . In the taped execution of the will and trust documents, the mother again repeated to the attorney that she had not “seen my daughter but one time in seven years."

      . The record denotes that Gail and her mother saw each other in February 2001, August 2002, January 2003, September 2003, January 2004, January 2005, and March 2007.

      .We note that an evidentiary hearing would allow Gail another opportunity to attend in person, as opposed to by telephone.


author: GERBER, J.

text:
    PNCEF, LLC, Appellant, v. SOUTH AVIATION, INC. and Fred Machado, Appellees.
    No. 4D10-2861.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.

      Thomas A. Dye and Dean A. Morande of Carlton Fields, P.A., West Palm Beach, for appellant.
    Charles R. Morgenstein of Mmo Legal Services, LLC, Boca Raton, for appellees.
   GERBER, J.

The appellant lender moved for a prejudgment writ of replevin pursuant to Section 78.055, Florida Statutes (2010), to recover four aircraft which the borrowers’ lessee maintained in Broward County. The circuit court denied the motion. We reverse, concluding that the lender met its burden of showing that its motion for a prejudgment writ of replevin- should have been granted.

The lender initially filed an action to recover the aircraft from the borrowers in Illinois, where the borrowers were based. In response, the borrowers alleged that they had leased the aircraft to appellee South Aviation, Inc. (the “lessee”) which maintained the aircraft in Broward County. According to the borrowers, the lessee filed liens against the aircraft and refused to return the aircraft because of the liens.

Based on the borrowers’ response, the lender and the borrowers agreed to submit a proposed order to the Illinois court. The order provided that the lender and the borrowers would establish a joint escrow account into which the lessee would be required to “deposit all sums payable to the [borrowers pursuant to [the lessee’s] use of the Aircraft.” The order further provided: “Nothing contained herein shall constitute a waiver of any right or remedy of [the lender] to pursue its legal and equitable rights against the [borrowers], the [lessee], and/or the [aircraft] to the full extent permitted under all applicable agreements and laws.” The Illinois court entered the order.

The lender then sued the lessee and its owner, appellee Machado, in Broward County for replevin, conversion, and in-junctive relief. The lender’s verified complaint:

(1) described the four aircraft by model number, serial number, and registration number, and stated that, to the best knowledge, information, and belief of the lender, the aircraft’s value was between $9,749,000 and $11,200,000, and that the aircraft’s location was the Fort Lauder-dale/Hollywood International Airport;
(2) stated that the lender is entitled to possession of the aircraft pursuant to notes and mortgages which the borrowers executed in favor of the lender or its predecessor, copies of which the lender attached to the complaint;
(3) stated that the aircraft are being wrongfully detained by the lessee or its owner, who came into possession thereof by virtue of lease agreements between the borrowers and the lessee, and that the cause of such detention is that the lessee’s owner has refused, upon the borrowers’ request, to return possession of the aircraft to the borrowers;
(4) stated that the aircraft have not been taken for a tax, assessment, or fine pursuant to law; and
(5) stated that the aircraft have not been taken under an execution or attachment against the lender’s property.

The verified complaint further alleged that the Broward action was necessary because the Illinois court questioned whether it had jurisdiction to order the lessee and its owner to surrender the aircraft.

Along with the complaint, the lender moved for an order directing the lessee to show cause why the court should not enter a prejudgment writ of replevin by which the aircraft would be taken from the lessee’s possession and delivered to the lender. The Broward court entered the order to show cause.

In response to the order to show cause, the lessee raised three material arguments: (1) the lessee’s liens on the aircraft were superior to the lender’s liens; (2) the Broward court lacked jurisdiction due to the Illinois court first exercising jurisdiction over the aircraft; and (3) the Broward court lacked jurisdiction over two aircraft which were not located in Broward County for the entire day on which the lender filed the verified complaint and over one aircraft which was not located in Broward County at any time that day.

In rebuttal, the lender argued that it was entitled to possession of the aircraft pursuant to the following section in the borrowers’ mortgages:

6.6 Return of Aircraft. Upon the occurrence of an Event of Default and demand by Lender, Borrower [sic] shall return the Aircraft by delivering the same forthwith to Lender....

The lender also relied on two sections in the leases between the borrowers and the lessee:

13.2 Quiet Enjoyment. So long as no Event of Default shall have occurred and be continuing!,] Lessor[s] shall not disturb Lessee’s quiet and peaceful use and enjoyment of the Aircraft for its intended purpose. NOTWITHSTANDING THE FOREGOING OR ANY OTHER PROVISION HEREOF, IT IS EXPRESSLY UNDERSTOOD BY [THE LESSEE] THAT ITS QUIET ENJOYMENT OF THE AIRCRAFT IS AT ALL TIMES, EVEN WHEN NO EVENT OF DEFAULT EXISTS HEREUNDER, SUBJECT AND SUBORDINATE TO THE RIGHTS OF [THE LENDER] IN AND TO THE AIRCRAFT.
16.4 No Lessee Liens. Lessee shall not create or suffer to exist any Liens on the Aircraft or any of its rights under the Lease except, ... (iii) inchoate material men’s, workmen’s, repairmen’s ... or other like Liens.... All Liens created by repairers or vendors in the ordinary course of Lessee’s business shall be cleared by Lessee....

After the hearing, the Broward court entered an order denying the lender’s motion for a prejudgment writ of replevin. The order did not contain any findings of fact or conclusions of law.

The lender then filed this appeal. Our review is de novo. See United Healthcare of Fla., Inc. v. Brown, 984 So.2d 583, 585 (Fla. 4th DCA 2008) (“As the trial court made no findings of fact or law, we review the order de novo, applying the relevant law to the facts available in the record.”).

We conclude that the Broward court erred in denying the lender’s motion for a prejudgment writ of replevin. We base our conclusion on three grounds. First, the lender’s verified complaint recited and showed all of the information required to obtain an order authorizing the issuance of a prejudgment writ of replevin. Section 78.055, Florida Statutes (2010), provides that “[t]o obtain an order authorizing the issuance of a writ of replevin prior to final judgment, the plaintiff shall first file ... a complaint reciting and showing the following information”:

(1) A description of the claimed property that is sufficient to make possible its identification and a statement, to the best knowledge, information, and belief of the plaintiff of the value of such property and its location.
(2) A statement that the plaintiff is the owner of the claimed property or is entitled to possession of it, describing the source of such title or right. If the plaintiffs interest in such property is based on a written instrument, a copy of said instrument must be attached to the complaint.
(3) A statement that the property is wrongfully detained by the defendant, the means by which the defendant came into possession thereof, and the cause of such detention according to the best knowledge, information, and belief of the plaintiff.
(4) A statement that the claimed property has not been taken for a tax, assessment, or fine pursuant to law.
(5) A statement that the property has not been taken under an execution or attachment against the property of the plaintiff or, if so taken, that it is by law exempt from such taking, setting forth a reference to the exemption law relied upon.

Here, the lender’s verified complaint, which we outlined earlier in this opinion, recited and showed the required information to support all five of these statements.

Second, at the show cause hearing, the lender met its burden of proof. Section 78.067(2), Florida Statutes (2010), provides, in pertinent part:

[T]he court shall at the hearing on the order to show cause consider the affidavits and other showings made by the parties appearing and make a determination of which party, with reasonable probability, is entitled to the possession of the claimed property pending final adjudication of the claims of the parties. This determination shall be based on a finding as to the probable validity of the underlying claim alleged against the defendant. If the court determines that the plaintiff is entitled to take possession of the claimed property, it shall issue an order directing the clerk of the court to issue a writ of replevin,

(emphasis added). Here, the lender proved, with reasonable probability, that it is entitled to possession of the aircraft pending final adjudication of the parties’ claims. Section 6.6 of the underlying mortgages provides that upon the occurrence of an event of default and the lender’s demand, the borrowers “shall return the Aircraft by delivering the same forthwith to Lender.” The lender further proved the probable validity of its underlying claim alleged against the lessee. In Section 13.2 of the lease between the borrowers and the lessee, the lessee expressed its understanding that its quiet enjoyment of the aircraft is subordinate to the lender’s rights in the aircraft. In section 16.4 of the lease, the lessee agreed not to create any liens on the aircraft.

Third, the lender satisfied the additional requirements of section 78.068, Florida Statutes (2010), which provides, in pertinent part:

(1) A prejudgment writ of replevin may be issued and the property seized delivered forthwith to the petitioners when the nature of the claim and the amount thereof, if any, and the grounds relied upon for the issuance of the writ clearly appear from specific facts shown by the verified petition or by separate affidavit of the petitioner.
(2) This prejudgment writ of replevin may issue if the court finds, pursuant to subsection (1), that the defendant is engaging in, or is about to engage in, conduct that may place the claimed property in danger of destruction, concealment, waste, removal from the state, removal from the jurisdiction of the court, or transfer to an innocent purchaser during the pendency of the action or that the defendant has failed to make payment as agreed.

Here, the lender’s verified complaint alleges specific facts which clearly show the nature of the lender’s claim, the amount thereof, and the grounds relied upon for the issuance of the writ. The lender further proved at the show cause hearing that the lessee is engaging in conduct that may place the aircraft in danger of removal from the state and the court’s jurisdiction by removing the aircraft from Broward County.

We reject the three arguments which the lessee raised in the circuit court. First, we are unconvinced by the lessee’s argument that its liens on the aircraft were superior to the lender’s liens. We conclude that the lessee waived any priority which its liens may have had because it agreed in sections 13.2 and 16.4 of the leases that its quiet enjoyment of the aircraft would be subordinate to the lender’s rights in the aircraft and that it would not create any liens on the aircraft. See Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009) (elements of waiver are: existence of a right which may be waived; actual or constructive knowledge of the right; and intent to relinquish the right).

Second, we are unconvinced by the lessee’s argument that the Broward court lacked jurisdiction due to the Illinois court first exercising jurisdiction over the aircraft. We conclude that the Illinois court did not exercise jurisdiction over the aircraft. Rather, the Illinois court merely exercised jurisdiction over the “sums payable” to the borrowers pursuant to the lessee’s use of the aircraft. As such, the principle of priority, which requires the identity of subject matter, does not apply. See Siegel v. Siegel, 575 So.2d 1267, 1272 (Fla.1991) (“As a matter of comity ... a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state.”) (citation omitted). Further, the Illinois court agreed that nothing in its order constituted a waiver of the lender’s ability to pursue its rights against the lessee or the aircraft. Consistent with that order, the lender’s Broward action supplements the Illinois action instead of conflicting with it.

Third, we are unconvinced by the lessee’s argument that the Broward court lacked jurisdiction over the two aircraft which allegedly were not located in Bro-ward County for the entire day on which the lender filed the verified complaint and over the one aircraft which allegedly was not located in Broward County at any time that day. “It has long been established in this and other jurisdictions that a court which has obtained in personam jurisdiction over a defendant may order that defendant to act on property that is outside of the court’s jurisdiction, provided that the court does not directly affect the title to the property while it remains in the foreign jurisdiction.” Gen. Elec. Capital Corp. v. Advance Petroleum, Inc., 660 So.2d 1139, 1142 (Fla. 3d DCA 1995) (“GECC ”) (citations omitted).

GECC is very persuasive. There, a fuel supplier sued an aircraft owner in Dade County to foreclose the supplier’s lien upon the aircraft. The circuit court granted the supplier’s motion for summary judgment. On appeal, the owner argued that the circuit court did not have subject matter jurisdiction over the aircraft because the aircraft was not in Dade County or the State of Florida when the supplier filed its lien or when the court entered its summary judgment and foreclosure orders. The third district disagreed with that argument, holding that the circuit court properly exercised jurisdiction over the aircraft. Our sister court reasoned:

[The owner] incorrectly assumes that the trial court was bound to utilize in rem or quasi in rem jurisdiction to give effect to its orders. In advancing this argument, [the owner] overlooks the trial court’s valid assertion of in personam jurisdiction over it. We find that this assertion of personal jurisdiction over [the owner] clearly comports with the mandates of the Federal and Florida Due Process Clause[s]. As stated by the Florida Supreme Court in White v. Pepsico [, Inc., 568 So.2d 886 (Fla.1990) ]:
Due process recognizes that while the privilege to do business in a forum carries with it the benefits and protections of law of the forum state, it also carries with it certain obligations, such as the obligation to respond to suits brought against it in that forum. A corporation may be compelled to answer suits through a state court’s exercise of personal jurisdiction....
White, 568 So.2d at 888.
Accordingly ... the trial court in the instant case has the power to require [the owner] to locate and return the subject aircraft to Dade County, so as to proceed with the court’s order of foreclosure. In the event that the trial court finds that it is necessary to decree such an order, the court may, within the exercise of its powers, do whatever is necessary, including issuing an order of contempt, to compel [the owner] to acquiesce to its demands. The court may not, however, issue any orders which directly act on the aircraft, since the aircraft is not within the court’s in rem or quasi in rem jurisdictional domain. As a consequence, the order of foreclosure, naturally, may not be enforced until the aircraft is returned to Dade County.

GECC, 660 So.2d at 1142-43 (other internal citations omitted).

We conclude that the third district’s reasoning and directions apply here. We reverse and remand for the Broward court to enter an order granting the lender’s motion for a prejudgment writ of replevin. Based on that order, the Broward court shall have the power to require the lessee and its owner to locate and return the subject aircraft to Broward County, so as to proceed with the court’s replevin order. If the lessee and its owner do not do so, then the Broward court may do whatever is necessary, including issuing civil contempt and indirect criminal contempt orders, to compel the lessee and its owner to acquiesce to the court’s demands. However, the court may not issue any further orders which directly act on the aircraft until the court confirms that the aircraft are within its in rem or quasi in rem jurisdictional domain.

Reversed and remanded.

GROSS, C.J., and STEVENSON, J., concur.


author: HAZOURI, J. GROSS, C.J.,

text:
    DEVON MEDICAL, INC., Devon Health Services, Inc., and Supply Marketing, Inc., Appellants, v. RYVMED MEDICAL, INC., a Florida corporation, Appellee.
    No. 4D10-57.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.

      Paul Crowley of Law Offices of Paul Crowley, Downingtown, Pennsylvania, for appellants.
    Justin R. Parafinczuk, Daniel L. Koch and Bradley H. Trushin of Koch & Trush-in, P.A., Fort Lauderdale, for appellee.
   HAZOURI, J.

Appellants, Devon Medical, Inc. (“Devon”), Devon Health Services, Inc. (“DHS”), and Supply Marketing, Inc. (“SMI”) (collectively “Devon Companies”), appeal the jury’s award of $1,413,394.00 to Appellee, Ryvmed Medical, Inc. (“Ryvmed”), and the denial of their motion for directed verdict. Devon Companies raise four issues on appeal: (1) that Ryvmed’s promissory estoppel claim was barred by the statute of frauds; (2) that Ryvmed failed to prove the existence of an enforceable written contract; (3) that Ryvmed’s tortious interference claim should fail as a matter of law; and (4) that Ryvmed failed to establish lost profit damages. We find that the first three contentions lack merit and affirm the trial court’s denial of Devon Companies’ motion for directed verdict as related to these claims without discussion. However, we find that Ryvmed failed to establish lost profit damages and accordingly, we reverse and direct the trial court to enter judgment for Devon Companies on the claim for lost profits. We affirm Ryvmed’s recovery of tortious interference damages.

Ryvmed is in the business of marketing, selling, and distributing medical devices. Devon Companies are also in the business of manufacturing, marketing, selling, and distributing medical products and devices. In July 2005, representatives of Ryvmed and Devon Companies began a series of oral conversations and emails culminating in an agreement: Ryvmed would purchase containers of medical syringes from Devon Companies in exchange for Devon Companies providing Ryvmed with products, marketing support, and access to their substantial network of physicians. The terms of the agreement were memorialized in an email dated August 18, 2005, and titled “Devon Agreement.”

Relying on this agreement, Ryvmed committed time and resources to developing the product and claimed it lost momentum with the Ryvmed brand and many of its customers. In late 2005, however, Devon informed Ryvmed that it would no longer provide telemarketing services. Consequently, a market for Devon syringes never developed and Ryvmed asserted that it lost profits it would have realized, had Devon Companies performed their obligations under the agreement. Ryvmed then filed suit, and its fourth- amended complaint alleged seven counts: (1) breach of written contract; (2) breach of oral contract; (8) fraudulent misrepresentation; (4) negligent misrepresentation; (5) . fraud in the inducement; (6) tortious interference with a business relationship; and (7) promissory estoppel. The tortious interference count was based on a business relationship Ryvmed had with Indigo Orb, Inc., to which Ryvmed supplied syringes prior to the agreement with Devon.

The parties proceeded to trial and two experts testified regarding Ryvmed’s lost profits. First, Michael L. Sperdutti, an expert in telemarketing, testified that Ryvmed could have expected a ten percent closing ratio, a figure representing the number of people telemarketers convert into buying customers. In formulating his lost profit calculation, Sperdutti testified that he compared Ryvmed’s business with another business called Medi Supply:

I actually had an account that was very similar, even in terms of size of Ryvmed; and went to that and went to the books of that particular client and discussed with them, you know, what they were doing, what their pricing was and matched everything up. And then I also took a look at the internet; and then, you know, started looking at the product categories and the pricing and making sure that I was up to date on at least ... the current pricing and prices.

By “[tjaking a look at the Ryvmed books, as well as taking a look at my client who had a very similar business,” Sperdutti opined that Ryvmed’s gross profits would have been between thirty-five and forty percent.

Next, Richard Dotson, a Certified Public Accountant, testified regarding his year-by-year • calculation of the damages Ryvmed suffered from the breach of contract. In order to estimate Ryvmed’s damages, Dotson designed a financial model after reviewing Ryvmed’s financial information and using multiple databases such as Integra and IBIS World. Dotson explained that

Integra is a publicly accessible database that — what they do is they compile financial statistics from a number of companies. They’ll get the financial statements and determine what are the average cost of sales, or cost of sales margin and gross profit margin. They’ll determine what is the average rent paid. They may determine what is the average overhead. And it will be stratified by business size, such as sales from a million to two-and-a-half million, two-and-a-half to five million, five million to ten million. So we can kind of narrow down to where we would be looking as far as a comparable company. It’s generally ... for benchmarking and comparing your existing company to what’s the average nationally.

Further, in determining Ryvmed’s profit margin, Dotson relied on Sperdutti’s estimate and examined “the Integra database for companies in that size market,” which documented profit margins of between twenty-seven to twenty-eight percent. Dotson estimated the present value of Ryvmed’s damages to be $10,244,000.00 over a five-year period. Dotson had no experience in telemarketing or in the sales of syringes.

At the close of trial, Devon Companies moved for a directed verdict. The trial court granted the motion for directed verdict on Ryvmed’s breach of oral contract claim, determining that it was barred by the statute of frauds. The trial court, however, denied that the promissory es-toppel claim was similarly barred. Thus, claims for breach of written contract, promissory estoppel, and tortious interference were submitted to the jury.

Ultimately, the jury determined that Devon breached the written contract with Ryvmed; the jury found that neither DHS nor SMI had entered into a written agreement with Ryvmed and, thus, there was no breach. However, the jury found all three of the companies liable on the promissory estoppel claim and awarded Ryvmed $1,400,000.00 in damages. The jury found Devon solely liable on the tortious interference claim and awarded Ryvmed $13,394.00 in damages. Notably, the verdict form had only a single line for damages on both the promissory estoppel claim and the breach of contract claim.

“The standard of review on appeal of the trial court’s ruling on a motion for directed verdict is de novo.” Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006) (citing Flagstar Cos. v. Cole-Ehlinger, 909 So.2d 320 (Fla. 4th DCA 2005)). “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.” Pascale v. Fed. Exp. Corp., 656 So.2d 1351, 1353 (Fla. 4th DCA 1995) (citing Kowkabany v. Home Depot, Inc., 606 So.2d 716 (Fla. 1st DCA 1992)).

A trial court’s award of damages is reviewed to determine if it is supported by competent, substantial evidence. Emerald Pointe Prop. Owners’ Ass’n v. Comm. Constr. Indus., Inc., 978 So.2d 873, 879 (Fla. 4th DCA 2008) (citations omitted). “The general rule is that anticipated profits of a commercial business are too speculative and dependent upon changing circumstances to warrant a judgment for their loss. But the rule is not an inflexible one, and if profits can be established with reasonable certainty, they are allowed.” Levith-ANSCA Towne Park P’ship v. Smith & Co., Inc., 873 So.2d 392, 396 (Fla. 4th DCA 2004) (citations omitted). Lost profits are typically proven by one of two methods: (1) the before and after theory; or (2) the yardstick test. River Bridge Corp. v. Am. Somax Ventures ex rel. Am. Home Dev. Corp., 18 So.3d 648, 650 (Fla. 4th DCA 2009) (citations omitted).

In the instant case, Ryvmed established its lost profits with the yardstick test. “The yardstick test is generally used when a business has not been established long enough to compile an earnings record that would sufficiently demonstrate lost profits and compares the profits of businesses that are closely comparable to the plaintiffs.” Id. (citation omitted) (internal quotation marks omitted). “ ‘[L]ost profits must be established with a reasonable degree of certainty and must be a natural consequence of the wrong,’ and ‘[s]uch an award cannot be based upon speculation or conjecture.’ ” Id. at 650-51 (quoting Sostchin v. Doll Enters., Inc., 847 So.2d 1128, 1128 (Fla. 3d DCA 2003)).

In River Bridge, this court examined the yardstick measure of damages. In that case, a builder brought an action against a developer for breach of a right of first refusal contained in a development contract. Id. at 649. When calculating lost profits, the builder’s expert used the actual sales made by builders of the subsequent stage of the project to determine its lost profits. Id. at 650. The expert took the number of actual closings and multiplied it by his estimated profit rate. Id. However, the expert testified that he was unaware as to whether the other builders ever realized a profit in the homes sold and did not know the extent of their costs. Id. In finding that the claim for lost profits was too speculative, this court observed:

[Builder] suggests an adequate yardstick was provided by the contractors that built out the subsequent parcels. While those contractors might have provided the trappings of a yardstick, it was not enough to simply assume those contractors were comparable and made a profit; it was necessary to prove both. To do so, it was essential that the actual profit realized be proven or that the profit be determined by subtracting their expenses from their gross sales. It was also essential to establish that those contractors were “closely comparable’’ to [Builder], -The expert in this case did neither.

Id. at 651 (emphasis added).

Likewise, in the instant case, neither of Ryvmed’s expérts provided evidence of profits made by a comparable company. While Michael Sperdutti testified that he compared Ryvmed’s business with another business called Medi Supply, he failed to establish that Medi Supply was closely comparable to Ryvmed. Sperdutti only made a blanket statement regarding similarity and did not prove how Medi Supply resembled Ryvmed in size, location, profits, and position.

Further, Ryvmed’s second expert witness, Richard Dotson, did not testify as to the profits, costs, or expenses of a similar company. Rather, Dotson testified that in designing his financial model he

reviewed a number of the financial information for Ryvmed; the Quick Books, the purchase orders. We reviewed Devon’s website. We tried to review anything pertaining to Ryvmed on the Internet. We utilized publicly accessible databases, such as Integra information, IBIS World, and pretty much basic modeling and financial modeling formulas as well.

Notably, Dotson did not establish that Medi Supply or any other company in the databases were in the same “start-up” position as Ryvmed, did not introduce any evidence of costs and expenses of a similar company, and did not testify that a similar company made a profit, Thus, the testimony of both of Ryvmed’s experts lacked “the reasonable certainty necessary to support the yardstick approach to lost profits, rendering the testimony too speculative to sustain the damages.” Id. at 651.

While Ryvmed’s lost profit damages were too speculative, we affirm the $13,394.00 in damages for Ryvmed’s tor-tious interference claim. There was competent, substantial evidence to support the claim for tortious interference. The testimony presented by deposition of the president of Indigo Orb clearly established the existence of a business relationship with Ryvmed. The business relationship existed several months prior to any discussion between Devon and Ryvmed. The arrangement between Ryvmed and Indigo Orb was that Ryvmed would place orders for Indigo Orb through Devon, but Indigo Orb would pay Ryvmed, not Devon. Devon interfered with Ryvmed’s relationship with Indigo Orb when it unilaterally altered the arrangement and instructed Indigo Orb to pay Devon instead of Ryvmed. Ryvmed never received any money from the sales to Indigo Orb.

Accordingly, we affirm Ryvmed’s damages for the tortious interference claim and reverse Ryvmed’s lost profit damages for the promissory estoppel and breach of contract claims. We remand to the trial court with directions to enter a judgment in favor of Devon Companies on the lost profit damages.

Affirmed in Part; Reversed in Part, and Remanded.

CIKLIN, J., concurs.

GROSS, C.J., concurs specially with opinion.

GROSS, C.J.,

concurring specially.

I concur in the majority opinion’s conclusion that appellee failed to prove its entitlement to lost profits and write to make two observations about the application of promissory estoppel in this case.

As the majority opinion notes, the jury determined that Devon had breached a written contract with Ryvmed, but that DHS and SMI did not. Also, the jury found all three companies liable on the promissory estoppel claim and awarded $1,400,000 in damages on a single line in the verdict form that allowed the jury to determine damages for both the promissory estoppel claim and the contract claim.

First, the jury’s finding of a Ryvmed-Devon contract precluded Devon’s recovery on a promissory estoppel theory. The contract involved the same subject matter that formed the basis of the promissory estoppel. See Advanced Mktg. Sys. Corp. v. ZK Yacht Sales, 830 So.2d 924, 928 (Fla. 4th DCA 2002). “Promissory estoppel is not available as a remedy when parties have a written contract addressing the relevant issues[.]” Univ. of Miami v. Intuitive Surgical, Inc., 166 F. App’x. 450, 454 (11th Cir.2006) (citing Advanced Mktg. Sys.). Consequently, only DHS and SMI could have received promissory estoppel damages.

Second, and as to DHS and SMI, Florida appears to follow the view that promissory estoppel does not support lost profits damages, although the issue has not been definitively decided in this state. There are three approaches to the issue of what measure of damages is available to the litigant who establishes a promissory es-toppel: “[1] the reliance measure, [2] the expectancy measure, and [3] a flexible or discretionary approach.” Mary E. Becker, Promissory Estoppel Damages, 16 Hofstra L. Rev. 131,131 n. 1 (1987).

The first approach is the plurality view, and it does not allow the party to recover his lost profits. See, e.g., Creative Demos, Inc. v. Wal-Mart Stores, Inc., 142 F.3d 367, 369 (7th Cir.1998) (“[I]n Indiana, as in most other states, promissory estoppel does not support lost-profits damages.”). According to this view, under promissory estoppel a plaintiff may recover only reliance damages, “the amount necessary to restore the injured party to the position it would have occupied had the promise not been made.” Id. at 369.

This state appears to follow the first approach. Three Florida cases have approved reliance damages for promissory estoppel in commercial law cases. In Young v. Johnston, 475 So.2d 1309, 1314— 15 (Fla. 1st DCA 1985), the first district allowed a plaintiff whose putative contract with a homebuilder had fallen apart after the plaintiff failed to receive construction financing the damages he incurred in relying on the putative contract, ie., the money he spent in securing a loan commitment from the bank. The first district reversed the verdict for benefit-of-the-bargain damages, however, because there was no actual contract. Id. at 1312-14. Next, in Revlon Group Inc. v. LJS Realty, Inc., 579 So.2d 365, 367-68 (Fla. 4th DCA 1991), this court approved recovery of $144,000 for leasehold improvements made by the assignee of a lease, holding that the assignor was responsible under the “doctrine of promissory estoppel.” Finally, in Sunshine Bottling Co. v. Tropicana Products, Inc., 757 So.2d 1231, 1232 (Fla. 3d DCA 2000), on a promissory estoppel claim, the third district allowed recovery of $592,000 that a bottling company “expended in restructuring its plant.”

Also, unsuccessful bidders for public contracts have been allowed reliance damages but not lost profits from local governments under the promissory estoppel theory. See Baxter’s Asphalt & Concrete, Inc. v. Liberty Cnty., 406 So.2d 461, 467-68 (Fla. 1st DCA 1981) (on rehearing) (allowing “costs in preparing ... bids as well as other ‘reliance’ damages,” but excluding lost profits because “it would be unjust to allow a recovery for loss of profits based on the theory of promissory estoppel due to a violation of a public bidding statute”), reversed, on other grounds by 421 So.2d 505 (Fla.1982); Royal Am. Dev., Inc. v. City of Jacksonville, 508 So.2d 528, 529 (Fla. 1st DCA 1987) (allowing “precon-struction expenditures”); City of Cape Coral v. Water Servs. of Am., Inc., 567 So.2d 510, 512-14 (Fla. 2d DCA 1990) (allowing “bid preparation costs” but expressly excluding lost profits).

Even those jurisdictions that allow the recovery of lost profits through promissory estoppel, however,- require that the party prove them with reasonable certainty, something not done in this case. E.g., Walters v. Marathon Oil Co., 642 F.2d 1098, 1100-01 (7th Cir.1981) (holding that promissory estoppel, as an equitable doctrine, allowed the recovery of lost profits where the party had proven “the amount of the lost profits ... with reasonable certainty”); ZBS Indus., Inc. v. Anthony Cocea Videoland, Inc., 93 Ohio App.3d 101, 637 N.E.2d 956, 960 (1994) (“[W]e find that a plaintiff may recover expectancy damages, including lost profits, in a promissory estoppel action where ... the promise relied upon obligates the promisor into the future and those damages are demonstrated with reasonable certainty.”); Seattle First Nat’l Bank, N.A. v. Siebol, 64 Wash. App. 401, 824 P.2d 1252, 1256 (1992) (“Lost profits are recoverable in promissory es-toppel cases as long as there is a substantial and sufficient factual basis supporting the amount awarded.”).

Taken together, these two observations demonstrate that only DHS and SMI could have received damages premised on a promissory estoppel theory, and, under the view this state appears to follow, those damages could not have included lost profits.

      . See also Eric Mills Holmes, The Four Phases of Promissory Estoppel, 20 Seattle U. L. Rev. 45, 51 (1996) (same, and explaining that each approach corresponds to a stage in the doctrine’s evolution, starting with (1) the estoppel stage, where it was used as a “defensive equitable estoppel and offensive equitable estop-pel;’’ to (2) the contract stage, where it was used “as a consideration substitute ... to validate promises and award traditional contract expectation damages;” then to (3) the tort stage, where it was used as an offensive theory “(independent of contract) to award reliance damages;” to finally (4) the equitable stage, where it has been applied "to rectify wrongs by awarding relief based on the discrete facts of each case”).

      . See id. at 65, 70, 824 P.2d 1252 (noting that there are sixteen jurisdictions that follow the expectation damages approach, twenty that follow the reliance damages approach, and fourteen that follow the flexible or discretionary approach).

      . The seminal cases on this approach are Goodman v. Dicker, 169 F.2d 684, 685 (D.C.Cir.1948) (in a promissory estoppel case, reversing an award for lost profits because "[t]he true measure of damage is the loss sustained by expenditures made in reliance”), and Wheeler v. White, 398 S.W.2d 93, 97 (Tex.1966) ("Where the promisee has failed to bind the promisor to a legally sufficient contract, but where the promisee has acted in reliance upon a promise to his detriment, the promis-ee is to be allowed to recover no more than reliance damages measured by the detriment sustained.”).

      . See also Fretz Constr. Co. v. S. Nat'l Bank of Houston, 626 S.W.2d 478, 483 (Tex.1981) (stating that '[d]amages recoverable in a case of promissory estoppel are not the profit that the promisee expected, but only the amount necessary to restore him to the position he would have been in had he not acted in reliance on the promise” (citations omitted)); Bechtel Corp. v. CITGO Prods. Pipeline Co., 271 S.W.3d 898, 927 (Tex. Ct.App.-Austin 2008) ("[Ejxpectancy damages like lost profits, for example, are not recoverable based on promissory estoppel.” (citing Fretz Constr. Co.)).

      . See Holmes, The Four Phases of Promissory Estoppel, supra, note 1 at 70 n. 73 (counting Florida as among the twenty jurisdictions that follow the reliance approach); see also Holmes, Restatement of Promissory Estoppel, 32 Willamette L. Rev. 263, 360-67 (1996) (collecting the promissory estoppel cases from Florida).


author: WARNER, J.

text:
    Frankie NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1206.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.

      Samuel J. Montesino of Samuel J. Mon-tesino, P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Frankie Neal appeals convictions for possession of cocaine with intent to sell and sale of cocaine, crimes for which he was sentenced as a habitual offender to 30 years in the Department of Corrections. He represented himself at trial and the issues on appeal address whether the court made an adequate Nelson inquiry, whether the court failed to conduct a proper Faretta hearing, and whether the court erred in failing to offer him counsel at subsequent proceedings. In addition, he claims that the court erred in sentencing him as a habitual offender, because the state failed to prove the conviction from which he was released from prison occurred within five years of the current offense. However, because he admitted under oath his recent release from prison, the habitual offender sentence was proper. We affirm on all issues.

During the course of the proceedings, the trial court appointed Neal four different attorneys, at least two of which moved to withdraw because of irreconcilable differences with the client. Neal was quite adamant about the way he wanted his defense conducted and the preparation he expected. When he got into a disagreement with his fourth counsel on the eve of trial with respect to discovery, he asked to represent himself, with stand-by counsel. The judge thoroughly questioned Neal regarding the rights that he would be giving up and explained to him the pitfalls of self-representation. Neal was adamant that he wanted to represent himself. The court granted his request, appointing his last counsel as stand-by to assist. The court also continued the trial and released Neal on bond so that he could better prepare his defense.

Through many subsequent hearings, Neal continued his representation, even though the trial court offered to appoint counsel. Neal consistently refused. He represented himself at trial and was convicted. His family secured a lawyer to represent him at sentencing and on appeal.

On appeal, Neal claims that the court failed to conduct a proper Faretta hearing when he sought to represent himself. On the contrary, we find that the trial court’s examination was sufficient and warned Neal of the dangers of self-representation. A trial court’s decision as to self-representation is subject to the abuse of discretion standard of review. See Guilder v. State, 899 So.2d 412, 419-20 (Fla. 4th DCA 2005). The trial court did not abuse its discretion.

Florida Rule of Criminal Procedure 3.111(d) requires an inquiry into the accused’s comprehension of the offer of counsel and his capacity to make a knowing and intelligent waiver of his right to counsel. There is no exact form of inquiry, and there are no “magic words” required under Faretta. Rather, the focus is on the defendant’s understanding of his rights. Potts v. State, 718 So.2d 757, 760 (Fla.1998). Although a prior version of the rule required the court to find on the record that the defendant had made a competent choice of self-representation based on his “mental condition, age, education, experience, the nature or complexity of the case, or other factors,” that express requirement was eliminated in the current version of the rule.

Instead, the court must conduct a thorough inquiry of “the accused’s comprehension of that offer [of counsel] and the accused’s capacity to make a knowing and intelligent waiver.” Fla. R. Crim. P. 3.111(d)(2). A request for self-representation should not be denied “if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself-” Rule 3.111(d)(3). These changes responded to the supreme court’s pronouncement in State v. Bowen, 698 So.2d 248, 250 (Fla.1997), that under Far-etta it is the defendant “who must be free personally to decide whether in his particular case counsel is to his advantage.” And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of respect for the individual. Courts must ensure that the accused is competent to make the choice and that self-representation is undertaken “with eyes open.”

Recently, in Edenfield v. State, 45 So.3d 26 (Fla. 1st DCA 2010), the First District explained that the amount of questioning needed to assure that the defendant made his self-representation choice with his “eyes open” would differ depending on each defendant. No model Faretta inquiry can be applicable in each case. While the model colloquy contained in the rules is very helpful, failure to follow it to the letter does not compel a finding that a defendant has not made a knowing and intelligent choice of self-representation.

We have examined the court’s interrogation in this case, and the fact of the court’s dealings with Neal in various other hearings and conclude that the court did not abuse its discretion in concluding that Neal knowingly and intelligently waived his right to counsel.

Even if he waived his right, Neal claims that the court thereafter failed to renew an offer of counsel at subsequent hearings. The court is required to make such an offer at every critical stage of the proceedings, See Traylor v. State, 596 So.2d 957, 968 (Fla.1992). He contends that there were eight subsequent hearings in which the trial court failed to raise the issue of counsel. We find his argument to be without merit because, for some of those hearings, he has failed to provide a transcript of the hearing and thus cannot establish that the court erred in failing to offer counsel. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). And for other hearings the court actually did renew the offer. He has not pointed to any critical stage of the proceedings where the trial court did not offer counsel.

With respect to the discharge of his last attorney, Neal contends that the court should have conducted a Nelson inquiry before discharging him. See Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). Nelson holds that where a defendant, before commencement of trial, requests discharge of his court-appointed counsel, the trial judge should make an inquiry of the defendant as to the reason for the request and, if incompetency of counsel is assigned as the reason, should make a sufficient inquiry of the defendant and his appointed counsel to determine whether there is cause to believe that counsel is not rendering effective assistance to the defendant. A Nelson hearing is not necessary where a defendant presents only general complaints about defense counsel’s trial strategy and no formal allegations of incompetency have been made, or where the defendant merely expresses dissatisfaction with his attorney. See Morrison v. State, 818 So.2d 432, 440 (Fla.2002). In Johnson v. State, 560 So.2d 1239, 1240 (Fla. 1st DCA 1990), the court explained that where the incompetency of counsel is not the stated basis for the defendant’s motion to discharge, then the trial court is not required to conduct a full inquiry as set out in Nelson. Here, Neal did not accuse his attorney of any incompetency. He simply disagreed with his attorney’s defense strategy. No Nelson inquiry was mandated.

Finally, Neal challenges the proof of a 2002 Georgia conviction used to habit-ualize him. Before the trial court may impose a habitual felony offender sentence it must find, based on record evidence, that the defendant has been previously convicted of any combination of two or more felonies; and that the current felony occurred either: a) while the defendant was serving a prison sentence or lawfully imposed supervision as a result of a felony conviction; or b) within five years of the date of the conviction for the defendant’s last prior felony or within five years from the date of the defendant’s release from prison or supervision for a prior felony offense. Boyd v. State, 776 So.2d 317, 318 (Fla. 4th DCA 2001).

Without relying on the 2002 Georgia conviction, the state proved multiple qualifying felonies. The Georgia conviction was needed to show, not a qualifying offense, but that the current offense occurred within five years of the date of the defendant’s release from prison for his last prior felony offense. When the state could not prove the 2002 Georgia conviction through the use of fingerprints, it requested the court to listen to Neal’s taped statement under oath at the bond hearing in which he admitted that he had been released from prison in Georgia in August 2002, less than five years prior to the commission of the current offense. We think that this admission is sufficient to provide the proof necessary to establish the second element for habitual offender status.

For the foregoing reasons we affirm both the conviction and sentence.

STEVENSON and GERBER, JJ„ concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).


text:
    Casey KIRKBRIDE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-230.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant argues that the trial court erred by allowing the state to waive its initial closing argument and give only a rebuttal closing argument, which he claims went beyond the scope of his closing argument. The defendant did not raise this argument at trial and, therefore, he must show fundamental error. Based on our review of the record and the parties’ arguments, the defendant has not shown fundamental error. See Boyd v. State, 45 So.3d 557 (Fla. 4th DCA 2010) (“Improper comments rise to the level of fundamental error only where the error ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’”) (citation omitted). However, we use this opportunity to remind the state that “[t]he proper limit of a rebuttal is ‘a reply to what has been brought out in the defendant’s [closing] argument.’” Brown v. State, 18 So.3d 1149, 1151 (Fla. 4th DCA 2009) (citation omitted).

Affirmed.

STEVENSON and TAYLOR, JJ., concur.


text:
    Edwin COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1947.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Edwin Cooper, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Edwin Cooper appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. We affirm without prejudice to Cooper’s right to exhaust all administrative remedies at the Department of Corrections with regard to any entitlement to gain time credit. See Jackson v. State, 971 So.2d 208 (Fla. 4th DCA 2007). Inasmuch as Cooper asserts a conclusory entitlement to jail credit, we affirm. See Petscher v. State, 936 So.2d 639, 639 (Fla. 5th DCA 2006) (Orfinger, J., concurring specially).

Affirmed.

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


text:
    STATE of Florida, Appellant, v. Wilnerson JULES, Appellee.
    No. 4D10-2391.
    District Court of Appeal of Florida, Fourth District.
    May 11, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellant. •
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state appeals from a downward departure sentence imposed on appellee. We reverse because there was no evidence presented that the need for restitution outweighed the need for a prison sentence.

After accepting a plea, the trial court adjudicated appellee guilty of attempted burglary of a structure, possession of burglary tools, and criminal mischief. During the sentencing hearing, the prosecutor represented that restitution was $100 to replace a broken window. Over the state’s objection, the court imposed a mitigated sentence under section 921.0026(2) (e), Florida Statutes, based on the court’s opinion that the victim’s need for restitution outweighed the need for a prison sentence.

A trial court’s decision to mitigate a sentence under section 921.0026(2)(e) is reviewed for competent, substantial evidence that the victim’s need for restitution outweighs the need for incarceration. Kirby v. State, 863 So.2d 238, 245 n. 10 (Fla.2003); Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). A downward departure sentence may be justified “[i]f the harm suffered by the victim as a result of the [offense] was greater than normally expected, and restitution could mitigate that increased harm.” State v. Prasad, 889 So.2d 204, 205 (Fla. 4th DCA 2004). Reversal is warranted, however, “[w]here there is no evidence of a pressing need for restitution, or that a downward departure is required to ensure that restitution is in fact made.” State v. Schillaci, 767 So.2d 598, 600 (Fla. 4th DCA 2000).

The trial court erred in granting a downward departure sentence, as the defense presented no evidence that the need for restitution outweighed the need for a prison sentence. The owner of the business whose window was broken did not testify at the restitution hearing, and there was no testimony that the owner needed or even requested restitution. Additionally, there was no evidence regarding the amount of the loss, only the prosecutor’s unsworn, unverified statement. See Wright v. Emory, 41 So.3d 290, 292 (Fla. 4th DCA 2010) (noting an attorney’s “un-sworn, unverified statements do not establish competent evidence”).

Accordingly, we reverse appellee’s sentence and remand for resentencing.

Reversed and remanded.

MAY, DAMOORGIAN and LEVINE, JJ., concur.