author: BURKE, Judge.

text:
    STATE of Alabama v. Elston Howard TURNER.
    CR-10-0501.
    Court of Criminal Appeals of Alabama.
    Dec. 16, 2011.
    Rehearing Denied Jan. 27, 2012.
    Certiorari Denied May 11, 2012
    Alabama Supreme Court 1110542.

      Luther Strange, atty. gen., and Robin D. Scales, asst, atty.' gen., and John C. Nei-man, Jr., deputy atty. gen., for appellant.
    L. Daniel Mims, Mobile, for appellant.
   BURKE, Judge.

The State of Alabama appeals the trial court’s pretrial dismissal of the charges against Elston Howard Turner charging him with using his official position or office for personal gain, a violation of § 36-25-5, Ala.Code 1975. We reverse and remand.

Turner was the women’s basketball coach at Bishop State Community College (“Bishop State”). In addition to his duties as the women’s basketball coach, Turner was also a project administrator for the National Youth Sports Program. That program was administered by the National Youth Sports Corporation, a nonprofit corporation that received grants for the purpose of operating summer sports camps for disadvantaged youth at various locations throughout the United States, one of which was Bishop State.

In April 2009, the grand jury returned two indictments against Turner. Count I of each indictment charged Turner with theft of property in the first degree. Count II of each indictment charged Turner with an ethics violation under § 36-25-5(a), Ala. Code 1975. Specifically, count II of one of the indictments alleged that Turner

“[d]id while employed as an instructor and/or basketball coach at Bishop State Community College, intentionally use or cause to be used his official position or office for personal gain for himself and/or a family member in that he caused to be submitted documents enabling financial aid and/or tuition credits and/or checks and/or lawful United States currency to be awarded to Yolanda J. Johnson a.k.a. Yolanda Denise Smoots Johnson Turner, his wife, between the years 2002 through 2006 when she was not eligible to receive such funds or benefits or aid and as such Yolanda J. Johnson a.k.a. Yolanda Denise Smoots Johnson Turner did unlawfully receive such funds and/or benefits and/or aid from Bishop State Community College, in violation of § 36-25-5(a) of the Code of Alabama.”

(C. 18.) Count II of the other indictment alleged that Turner

“[d]id while employed as Project Administrator of the National Youth Sports Program at Bishop State Community College, intentionally use or cause to be used his official position or office for personal gain for himself and/or a family member in that he caused to be submitted documents enabling a salary to be paid to Yolanda J. Johnson a.k.a. Yolanda Denise Smoots Johnson Turner, his wife, between the years 2003 through 2005, falsely representing her to be an employee in the National Youth Sports Program when she was not due to receive such funds and as such Yolanda J. Johnson a.k.a. Yolanda Denise Smoots Johnson Turner was unlawfully paid a salary as an employee in the National Youth Sports Program from Bishop State Community College, in violation of § 36-25-5(a) of the Code of Alabama.”

(C. 19.)

On November 19, 2009, Turner filed a motion to dismiss the ethics charges. In that motion, Turner argued that § 36-25-5(a), Ala.Code 1975, is unconstitutionally vague and unconstitutional because, he said, “§ 36-25-5(a) does not require an element of intent prior to a criminal conviction.” (C. 42.) On April 14, 2010, the State responded to Turner’s motion to dismiss, arguing that § 36-25-5(a) was not unconstitutional. On April 15, 2010, the trial court conducted a hearing on Turner’s motion to dismiss. On December 28, 2010, in a lengthy order, the trial court dismissed the ethics charges against Turner, holding that § 36-25-5(a) was unconstitutionally vague because, according to the trial court, “the statute is not sufficiently definite or explicit to inform those who are possibly subject to it exactly what conduct will render them liable for a criminal act under the statute.” (C. 69.) The trial court also held that § 36-25-5(a) was unconstitutionally vague because, according to the trial court, “ § 36-25-5(a) does not require scienter prior to a criminal conviction (at least for a lesser included misdemeanor).” (C. 75.) The State appealed.

On appeal, the State contends that the trial court erred in holding that § 36-25-5(a) is unconstitutionally vague. As he did in the trial court, Turner contends that § 36-25-5(a) is unconstitutionally vague because, he says, the statute does not sufficiently inform ordinary people what conduct it prohibits and the statute gives law-enforcement officers virtually complete discretion in determining whether a person has violated it.

In considering whether a legislative act is unconstitutional, we are guided by the following principles:

“This Court ‘“should be very reluctant to hold any act unconstitutional.” ’ Ex parte D.W., 835 So.2d 186, 189 (Ala.2002) (quoting Ex parte Boyd, 796 So.2d 1092,1094 (Ala.2001)). ‘[I]n passing upon the constitutionality of a legislative act, the courts uniformly approach the question with every presumption and in-tendment in favor of its validity, and seek to sustain rather than strike down the enactment of a coordinate branch of the government.’ Alabama State Fed’n of Labor v. McAdory, 246 Ala. 1, 9, 18 So.2d 810, 815 (1944) (emphasis added). This is so, because ‘it is the recognized duty of the court to sustain the act unless it is clear beyond reasonable doubt that it is violative of the fundamental law.’ 246 Ala. at 9, 18 So.2d at 815 (emphasis added).”

McInnish v. Riley, 925 So.2d 174, 178 (Ala.2005).

Section 36-25-5(a), Ala.Code 1975, provides:

“No public official or public employee shall use or cause to be used his or her official position or office to obtain personal gain for himself or herself, or family member of the public employee or family member of the public official, or any business with which the person is associated unless the use and gain are otherwise specifically authorized by law. Personal gain is achieved when the public official, public employee, or a family member thereof receives, obtains, exerts control over, or otherwise converts to personal use the object constituting such personal gain.”
This Court has held:
“ ‘To withstand a challenge of vagueness, a statute must: 1) give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, and, 2) provide explicit standards to those who apply the laws. Grayned [v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972) ].
“ ‘ “[T]his prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness, for ‘[i]n most English words and phrases there lurk uncertainties.’ Robinson v. United States, 324 U.S. 282, 286, 65 S.Ct. 666, 668, 89 L.Ed. 944 (1945). Even trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions before they may say with any certainty what some statutes may compel or forbid.”
‘Rose v. Locke, 423 U.S. 48, 49-50, 96 S.Ct. 243, 244, 46 L.Ed.2d 185 (1975). “A defendant who challenges a statute on the ground of vagueness ‘must demonstrate that the statute under attack is vague as applied to his own conduct, regardless of the potentially vague applications to others.’ ” Serf v. State, 622 So.2d 435, 437 (Ala.Cr.App.1993), quoting Aiello v. City of Wilmington, 623 F.2d 845, 850 (3rd Cir.1980). (Emphasis supplied).’ ”

State v. Randall, 669 So.2d 223, 225-26 (Ala.Crim.App.1995) (quoting Culbreath v. State, 667 So.2d 156, 158-59 (Ala.Crim.App.1995)).

This Court has previously held that a former version of § 36-25-5(a), Ala.Code 1975, was not unconstitutionally vague. Hunt v. State, 642 So.2d 999, 1026-29 (Ala.Crim.App.1993). Likewise, federal courts have held that the former version of § 36-25-5(a) was not unconstitutionally vague. Hunt v. Anderson, 794 F.Supp. 1557, 1564 (M.D.Ala.1992); Hunt v. Tucker, 875 F.Supp. 1487,1517-18 (N.D.Ala.1995).

In the present case, Turner bases his specific vagueness argument on the language in § 36-25-5(a) that provides an exception for obtaining personal gain that is “specifically authorized by law" and on the possibility that the definition of the term “personal gain” might be unclear in some situations. On those bases, Turner argues that § 36-25-5(a) is unconstitutionally vague because, he says, it

“sweeps into its scope any number of otherwise legal acts or types of conduct which are thereby deemed illegal because they have never been specifically authorized by a specific act of the legislature. The scope of the statute is virtually limitless given its requirement that the legislature bless conduct in advance before that conduct is considered legal.”

(Turner’s brief, at 22.) Turner’s basic premise is that, if § 36-25-5(a) is constitutional, “almost any conduct which results in any benefit to any relative of a public employee can be deemed to be illegal simply because the Alabama legislature has not thought to specifically authorize that conduct.” (Turner’s brief, at 24-25.) Similarly, Turner states that, if § 36-25-5(a) is constitutional, “any number of offenses that are not specifically prohibited by statute (such as those Turner has been required to defend) will be rendered illegal simply because they are not specifically authorized or permitted by a specific act of the legislature.” (Turner’s brief, at 16-17.)

Turner’s premise is simply incorrect, and his argument is without merit. Section 36-25-5(a) does not render actions illegal “simply because they are not specifically authorized or permitted by a specific act of the legislature.” Section 36-25-5(a) renders specific conduct illegal, i.e., a public official or public employee’s using his or her official position or office to obtain personal gain for himself or herself or a family member. Contrary to Turner’s apparent implication, the statute does not completely prohibit his wife from receiving personal gain through otherwise innocent acts that are not specifically authorized by law. See (Turner’s brief, at 22-23) (asserting that “[u]nder the State’s view of the statute, innocent acts (such as Turner’s wife receiving a scholarship for which she was eligible and her continuing to work for the [National Youth Sports Program] after her marriage to Turner) are made criminal in nature regardless of the fact that she may have earned the alleged benefits and in spite of the fact that Turner did not have sole decision making authority”). Instead, the statute prohibits Turner only from using or causing to be used his official position or office to obtain personal gain for his wife. The exception in the statute for personal gain that is “specifically authorized by law” does not render § 36-25-5(a) unconstitutionally vague. That provision simply gives notice that, if a public official or public employee uses his or her official position or office to obtain personal gain, that person will not be subject to prosecution under § 36-25-5(a) if there is a specific provision in the Alabama Code that authorizes that use and gain.

Furthermore, the possibility that the definition of the term “personal gain” might be unclear in some situations does not render § 36-25-5(a) unconstitutionally vague in the present case. As applied to Turner’s alleged conduct, there is no doubt that the plain, ordinary meaning of the term “personal gain,” as found in § 36-25-5(a), would include direct financial gain through financial aid or a salary. See IMED Corp. v. Systems Eng’g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992) (“Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says.”). Turner’s hypothetical situations involving possibly vague applications of the term “personal gain” to other person’s potential conduct are inapposite. “ ‘That a statute might be susceptible of misapplication does not necessarily result in its unconstitutionality.’ ” Hunt, 642 So.2d at 1028 (quoting Comer v. City of Mobile, 337 So.2d 742, 750 (Ala.1976)). Therefore, we conclude that, as applied to Turner’s alleged conduct, § 36-25-5(a), Ala.Code 1975, gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited.

Turner further argues that § 36-25-5(a) is unconstitutionally vague because, he says, it gives law-enforcement officers virtually complete discretion in determining whether a person has violated it. See Randall, supra; see also Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (holding that “the void-for-vagueness doctrine requires that a penal statute define a criminal offense ... in a manner that does not encourage arbitrary and discriminatory enforcement”). However, Turner’s argument is without merit because § 36-25-5(a) objectively defines the conduct that is proscribed. Under § 36-25-5(a), if a public employee uses his official position to obtain financial gain for his wife, and if no other statute specifically authorizes the employee’s actions, the employee has violated the statute. That statute provides explicit standards to those who apply the laws, and nothing in the statute gives any discretion to law-enforcement officials. Therefore, the statute does not encourage arbitrary and discriminatory enforcement. Because § 36-25-5(a) gives a person of ordinary intelligence a reasonable opportunity to know what is prohibited and does not encourage arbitrary and discriminatory enforcement, we hold that the statute is not unconstitutionally vague.

Finally, contrary to Turner’s assertion and the trial court’s holding, the penalty provisions that apply to § 36-25-5(a) do not render the statute unconstitutionally vague. Section 36-25-5 does not contain any penalty provisions, but § 36-25-27(a), Ala.Code 1975, provides, in relevant part:

“(1) Except as otherwise provided, any person subject to this chapter who intentionally violates any provision of this chapter other than those for which a separate penalty is provided for in this section shall, upon conviction, be guilty of a Class. B felony.
“(2) Any person subject to this chapter who violates any provision of this chapter other than those for which a separate penalty is provided for in this section shall, upon conviction, be guilty of a Class A misdemeanor.”

As he did in the trial court, Turner argues that “§ 36-25-5(a), when read in pari materia with § 36-25-27(a)(2), is unconstitutionally vague because it does not require a culpable mental state prior to a conviction for a lesser included misdemeanor.” (Turner’s brief, at 34.) However, that argument is without merit because “the absence of an express statement in [a statute] as to the requisite mental state does not render that statute unconstitutionally vague.” Scott v. State, 917 So.2d 159, 173 (Ala.Crim.App.2005) (plurality opinion).

Section 13A-2-4(b), Ala.Code 1975, provides:

“Although no culpable mental state is expressly designated in a statute defining an offense, an appropriate culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state. A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, states a crime of mental culpability.”

Section 36-25-5(a) does not indicate any legislative intent to impose strict liability; thus the statute states a crime of mental culpability. Our criminal code recognizes four culpable mental states: (1) intentional, (2) knowing, (3) reckless, and (4) criminally negligent. § 13A-2-2, Ala. Code 1975. Section 36-25-5(a) does not exclude any of those mental states; thus, the offense of using an official position or office for personal gain may be committed intentionally, knowingly, recklessly, or as the result of criminal negligence. Contrary to Turner’s assertion, § 36-25-27(a) does not allow someone to be convicted of a misdemeanor without a showing of mental culpability. Instead, § 36-25-27(a)(l) simply increases the degree of the offense or its punishment based on a higher level of mental culpability, which is not unusual in the law. To be convicted of a misdemeanor, the offense of using an official position or office for personal gain still must be committed knowingly, recklessly, or as the result of criminal negligence. Therefore, contrary to Turner’s argument, § 36-25-5(a), when construed with § 36-25-27(a)(2), does not state an offense that does not require a culpable mental state; thus, Turner’s argument does not provide any basis for finding that § 36-25-5(a) is unconstitutionally vague.

Furthermore, we note that the present situation is not a situation where the indictments failed to allege a culpable mental state. See Ex parte Seymour, 946 So.2d 536, 539 (Ala.2006) (holding that such a defect in the indictment “may be error, see Rule 15.2(d), Ala. R.Crim. P. — or even constitutional error, see Ala. Const., Art. I, § 8”). In the present case, the indictments specifically alleged that Turner “intentionally” used or caused to be used his official position or office to obtain personal gain for his wife.

Based on the foregoing, we hold that § 36-25-5(a), Ala.Code 1975, is not unconstitutionally vague. Therefore, we reverse the judgment of the trial court, and we remand the case for proceedings consistent with this opinion.

REVERSED AND REMANDED.

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

      . The former version of § 36-25-5(a), Ala. Code 1975, provided: “No public official or employee shall use an official position or office to obtain direct personal financial gain for himself, or his family, or any business with which he or a member of his family is associated unless such use and gain are specifically authorized by law.” Hunt, 642 So.2d at 1022-23.

      . Turner states that, hypothetically, under § 36-25-5(a), "an all star high school football player would not be allowed to accept a scholarship at an institution where his father was a coach, because the father (a public employee) would be guilty of a criminal ethics violation” and "if a Judge has a daughter graduating with honors from law school and recommends her to another Judge for a clerkship, that Judge has committed an ethics violation because no statute specifically permits the daughter of one Judge to work for another, despite her qualifications, and despite the absence of evidence of any quid pro quo.” (Turner’s brief, at 23.)

      . For example, Alabama’s criminal homicide statutes increase the degree of the offense or its punishment based on the level of mental culpability. Under § 13A-6-2, Ala.Code 1975, if a person, “with intent to cause the death of another person, ... causes the death of that person or another person,” the crime is murder, and it is a Class A felony. Under § 13A-6-3, Ala.Code 1975, if a person "recklessly causes the death of another person,” the crime is manslaughter, and it is a Class B felony. Under § 13A-6-4, Ala.Code 1975, if a person “causes the death of another person by criminal negligence,” the crime is criminally negligent homicide, and it is a Class A misdemeanor.


source: Caselaw Access Project

author: SILBERMAN, Chief Judge.

license: Public Domain

text:
    Vickie JONES, Appellant, v. BASHA, INC., d/b/a Central Food Market, Appellee.
    No. 2D10-2887.
    District Court of Appeal of Florida, Second District.
    Sept. 7, 2011.
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, and Scott
    S.Warburton of Adams, Coogler, Watson, Merkel, Barry & Kellner, P.A., West Palm Beach, for Appellant.
    ■ Hank B. Campbell of Valenti, Campbell, Trohn, Tamayo & Aranda, P.A., Lakeland, for Appellee.
   SILBERMAN, Chief Judge.

Vickie Jones seeks review of the final summary judgment in favor of Basha, Inc., d/b/a Central Food Market in this premises liability action. Jones argues that the trial court erred in granting final summary judgment because there were genuine issues of material fact regarding whether Basha had responsibility for providing reasonable security at Central Food Market. However, there was no evidence to suggest that Basha exercised any control over the premises and public access to it. Therefore, we conclude that the trial court did not err in granting final summary judgment in favor of Basha and affirm.

On July 3, 2000, Jones was the victim of an attempted carjacking outside a convenience store known as Central Food Market. Jones filed a premises liability action against Basha, whom she alleged was the owner of the store and surrounding property. Basha moved for summary judgment, arguing that it had sold the store to Becker Enterprises, Inc., had no involvement or control over the management or operation of the store, and therefore had no duty to ensure security at the store.

In support of its motion, Basha filed the deposition and affidavit of Ghazi Habbas, the president of Basha. Habbas asserted that while he, through Basha, owned the building housing the store, he had sold Central Food Market to Becker Enterprises in 1997. He claimed that after the sale, neither he nor Basha had any control over Central Food Market or its business. Ba-sha also filed the deposition of Becker Nafel, the president of Becker Enterprises, who confirmed that Basha had sold Central Food Market to him in 1997. Naf-el explained that he ran the day-to-day business of Central Food Market and was responsible for maintaining the premises.

Basha filed the sales agreement and corresponding security agreement and promissory note, all of which memorialized the sale of Central. Food Market to Becker. In conjunction with the sale of Central Food Market, Basha and Becker entered into a lease agreement in which Basha leased the property to Becker for a five-year renewable term. The lease agreement, which Basha also filed in support of its motion for summary judgment, did not contain any specific language regarding the provision of security at Central Food Market. However, it placed the responsibility for maintaining the premises and using it in a careful and proper manner exclusively on Becker. Additionally, it required Becker to maintain a comprehensive public liability insurance policy and to defend, hold harmless, and indemnify Ba-sha from all liabilities, losses, and damages arising from Becker’s use of the premises.

The trial court granted final summary judgment in favor of Basha. In this appeal of the judgment, Jones argues that there were genuine issues of material fact as to whether Basha had responsibility for providing reasonable security at Central Food Market. In support of her argument, Jones points to the following: (1) the lease is silent regarding the duty to provide a reasonably safe premises; (2) Basha procured an insurance policy on the building and premises; and (3) Habbas kept in contact with Nafel.

It is generally the court’s responsibility to determine as a matter of law the question of whether a duty exists. Williams v. Davis, 974 So.2d 1052, 1056-57 n. 2 (Fla.2007). In moving for summary judgment, the movant bears the burden of proving the nonexistence of genuine issues of material fact. Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). However, once the movant meets this burden, then the burden shifts to the opposing party to present evidence to reveal a genuine issue of material fact. Id. at 43-44.

A landlord and a tenant can have concurrent duties to provide a reasonably safe premises. Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12, 15 (Fla. 1st DCA 1996), approved on other grounds, Merrill Crossings Assocs. v. McDonald, 705 So.2d 560 (Fla.1997). However, the question for the court is whether the landlord exercised some control over the premises and public access to it. Id.; see also Brown v. Suncharm Ranch, Inc., 748 So.2d 1077, 1078 (Fla. 5th DCA 1999); Publix Super Markets, Inc. v. Jeffery, 650 So.2d 122, 124 (Fla. 3d DCA 1995). If the landlord surrenders possession and control over the leased premises to the tenant, the landlord is not liable for injury to a third party that occurs on the premises. Brown, 748 So.2d at 1078; Wal-Mart, 676 So.2d at 14.

Jones has not pointed to any evidence establishing a question of fact regarding whether Basha maintained any control over Central Food Market. To the contrary, Habbas testified that neither he nor Basha had any control over the operation of Central Food Market, and Nafel testified that he ran Central Food Market’s daily operations and was responsible for maintaining the premises. The fact that the lease did not specifically address security or responsibility for maintaining a safe premises does not create an issue of fact because the record establishes that Becker had this responsibility. Similarly, the fact that Basha maintained its own insurance policy on the building and premises does not create an issue of fact because the policy does not establish that Basha had control over the premises or public access to it. The lease agreement expressly requires Becker to maintain liability insurance, including for injuries or damages arising from Becker’s use of the premises. Finally, the fact that Habbas kept in contact with Nafel does not create an issue of fact because there was no evidence any of this contact was for the purpose of Habbas’s exercising control over the premises.

Accordingly, the trial court did not err in granting final summary judgment in favor of Basha.

Affirmed.

MORRIS and BLACK, JJ., Concur.


author: TAYLOR, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Jan GROSSMAN, as Personal Representative of the Estate of Laura Grossman, deceased, Appellee.
    No. 4D10-2993.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Rehearing Denied Sept. 21, 2012.

      Eric L. Lundt and Gordon James III of Sedgwick, Detert, Moran & Arnold LLP, Fort Lauderdale, and Charles Morse of Jones Day, New York, New York, and Stephanie E. Parker, John F. Yarber and John M. Walker of Jones Day, Atlanta, Georgia, for appellant.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Steven J. Hammer and Jonathan Gdanski of Schlesinger Law Offices, P.A., Fort Lauderdale, for appellee.
   TAYLOR, J.

R.J. Reynolds appeals the final judgment entered on a jury verdict for the Estate of Laura Grossman. R.J. Reynolds argues that the trial court erred in precluding it from contesting certain factual issues, pursuant to Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). We affirm. See R.J. Reynolds v. Brown, 70 So.3d 707, 717-18 (Fla. 4th DCA 2011) (affirming the use of the Engle findings to establish the conduct element of strict liability claim and duty and breach elements of negligence claim). R.J. Reynolds also argues that the trial court improperly admitted lay witness testimony regarding the decedent’s addiction to cigarettes. We disagree and affirm on this issue as well. Brown, 70 So.3d at 717 (“Mrs. Brown and her daughter provided lay opinion testimony, which, when viewed with the expert testimony, supported a finding of addiction.”). However, on the cross-appeal filed by Jan Grossman, the decedent’s husband and personal representative of her estate, we reverse. The trial court erred by placing Jan Grossman on the verdict form as a liable party and allowing evidence and argument concerning his failure to prevent the decedent from smoking.

Laura Grossman passed away on November 'll, 1995, at the age of thirty-six years, after a prolonged battle with lung cancer. She was survived by her husband and her two young children.

Jan met Laura while operating the register at his variety store, J-Mart Variety. Every day Laura walked across the street to purchase a pack of cigarettes from Jan. They started dating, and they married after a two-year courtship. Throughout their marriage, Laura was a heavy smoker; she smoked “all the time.” She never sought professional help to quit smoking, and Jan never asked her to stop smoking or tried to help her quit. When testifying on the subject of her addiction, Jan testified that, “when she ran out, she was temperamental,” and “it was hard to live with.” He recalled that she once threw a plate of food at him when he would not get her a pack of cigarettes. Another time, Jan had to drive through a blizzard to find a pack for her. According to Jan, “she couldn’t do anything unless she had the cigarettes.” He remembered numerous times when he would have to pull up the gate, disable the alarm, and reopen the J-Mart so she could get a pack or carton of cigarettes.

At the commencement of Phase II of the trial, the Estate orally objected to any argument by R.J. Reynolds that Jan was a comparatively negligent party at fault for Laura’s death. The claim R.J. Reynolds made against Jan, and its reasoning for adding him to the verdict form for apportionment of some fault to him, was essentially that he failed to control Laura’s smoking behavior and supported her habit. Specifically, R.J. Reynolds accused Jan of supplying Laura with cigarettes, smoking in front of her when she was trying to quit smoking, and never discussing the evils of smoking with Laura or encouraging her to quit.

Over the Estate’s objection, the trial court allowed R.J. Reynolds to include Jan on the verdict form as a negligent party and allowed evidence and argument concerning his failure to prevent Laura from smoking. The Estate argues that the trial court’s error in doing so negatively and unfairly limited the damages verdict. The jury awarded only $290,000 to Jan in past damages for the death of his wife and nothing for future emotional damages, $500,000 for pain and suffering to the youngest child, and $800,000 to the oldest child. The jury determined that Jan was 5% at fault for the injuries suffered by his late wife. It apportioned 70% liability to Laura and 25% to R.J. Reynolds. Of the total jury verdict award of $1,934,727.89, the final judgment for the Estate amounted to $483,681.85. The Estate claims it is entitled to a new trial on damages and apportionment of liability.

A nonparty defendant, also known as a Fabre defendant, may not be included on the verdict form until a defendant has proved the nonparty’s negligence at trial:

In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiffs injuries.

§ 768.81(3)(b), Fla. Stat. (2006). R.J. Reynolds was required to prove Jan’s fault, including the breach of a duty he owed to his late wife, before he could be placed on the verdict form as a nonparty defendant.

The existence of a legal duty is purely a question of law and is subject to de novo review. See McCain v. Fla. Power Corp., 593 So.2d 500, 501-02 (Fla.1992). Additionally, “the mere relationship of husband and wife does not in and of itself constitute a sufficient basis upon which to impute to the wife or husband the negligence of the other.” Ward v. Baskin, 94 So.2d 859, 860 (Fla.1957) (citing Bessett v. Hackett, 66 So.2d 694, 698 (Fla.1953)).

R.J. Reynolds argues that Jan owed Laura a duty because “Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeav- or creates a generalized and foreseeable risk of harming others.” McCain, 593 So.2d at 503. While R.J. Reynolds cites the correct legal rule, we find the argument that Jan created a “zone of risk” to be unpersuasive under the facts of this case. It is patently unreasonable to conclude that Jan created a zone of risk by not preventing Laura from smoking or by acquiescing to her demands that he purchase cigarettes for her. As the Estate points out in its reply brief on cross-appeal, “R.J. Reynolds created the zone of risk by manufacturing a defective product. In essence, Defendant is arguing that Jan created a zone of risk not by engaging in some course of conduct, but by failing to change another person’s course of conduct.”

The Estate argues, and we agree, that R.J. Reynolds could not prove fault on the part of Jan because it failed to present any evidence that he breached a duty. The Estate cites section 314 of the Restatement (Second) of Torts, which provides, “[t]he fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” Moreover, as the Estate argues, there is no statutory or common law duty on the part of a husband to control the actions of a wife, nor is there liability on the part of a husband for purchasing a product which is defective.

R.J. Reynolds’s argument concerning Jan’s failure to protect his wife from the foreseeable risk of buying her cigarettes is analogous to a claim that an adult who buys an alcoholic beverage for an alcoholic is liable for the person’s drunkenness. Just as one may legally provide alcohol to another without breaching a duty, one may provide cigarettes to another without breaching a duty. See Bennett v. Godfa ther’s Pizza, Inc., 570 So.2d 1351, 1358 (Fla. 3d DCA 1990) (“The rationale for not holding the establishment liable is that ‘the voluntary drinking of the alcohol, not the furnishing of [the alcohol], [is] the proximate cause of the injury.’ ” (alterations in original) (quoting Barnes v. B.K. Credit Serv., Inc., 461 So.2d 217, 219 (Fla. 1st DCA 1984))). We conclude that a person does not have a legal duty to prevent his or her spouse from voluntarily smoking. Cf. Madison v. Williamson, 241 S.W.3d 145, 154 (Tex.App.2007) (“Nothing inherent in this husband-wife relationship gives rise to a fact issue that either spouse had the right to control the other.”); West v. Hilton Hotels Corp., 714 So.2d 179, 182-83 (La.Ct.App.1998) (husband does not owe a special duty to his wife to prevent her intoxication or to supervise her so as to prevent her from being harmed by the negligence of a third person).

At trial, Jan acknowledged his lack of judgment and “fault” in buying cigarettes for Laura. However, his testimony was an admission of moral responsibility, not legal liability. R.J. Reynolds failed to establish Jan’s breach of any legal duty. Consequently, the trial court erred when it included Jan Grossman on the verdict form.

Having determined that the trial court erred by placing Jan on the verdict form, we now address what remedy the Estate will be entitled to on remand. The Estate argues that it is entitled to a new trial on damages and apportionment because the error — allowing R.J. Reynolds to blame Jan for failing to prevent his wife from smoking and for purchasing cigarettes for her — infected the jury’s determination of damages. According to the Estate, R.J. Reynolds presented Jan as a callous and uncaring spouse, and the jury responded by awarding a small amount of damages for the loss of his wife. In arguing that the jury should include Jan as someone else to blame for Laura’s death, counsel for R.J. Reynolds told the jury:

Jan was not an innocent bystander here. He supplied her with cigarettes from the time they first met back in 1982, all the way through her diagnosis, including the free cigarettes from the store, and the cigarettes he would buy at the Indian Reservation.
He smoked in front of her until 1990, including when she was pregnant with [the oldest child] and when she had quit, including when she went to hypnosis, including when she tried the plastic cigarette, including when she tried the gum.
He never discussed smoking with Laura. That’s the testimony. He never discussed it, let alone encouraged her to quit.

When a Fabre defendant is improperly included on the verdict form, the proper remedy may be an entirely new trial. See Abbott v. Dorleans, 41 So.3d 984, 987 (Fla. 4th DCA 2010). Appellate courts have refused to speculate as to the prejudice resulting from the improper inclusion of a Fabre defendant on a verdict form. Id.; see also Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So.2d 968, 970-71 (Fla. 3d DCA 2002).

The Third District Court of Appeal has held that the improper inclusion of the personal representative of an estate on the verdict form constitutes harmful error and warrants an entirely new trial. Probkevitz v. Velda Farms, LLC., 22 So.3d 609, 615 (Fla. 3d DCA 2009), rev. denied, 39 So.3d 321 (2010). In Probkevitz, a fifteen-year-old girl died in an automobile accident when the vehicle she was (unlawfully) driving collided with a truck owned and operated by Velda Farms. Id. at 611-12. Vel-da Farms filed a motion asserting that the mother, in her individual capacity, was comparatively negligent and that her damages should be reduced based upon her negligence. Id. at 612. They argued that the mother, who was asleep at home when the accident occurred, was to blame for her daughter’s death. Id. The trial court ultimately allowed Velda Farms to argue that the mother’s comparative negligence caused her daughter’s death, and the court permitted Velda Farms to include the mother on the verdict form. Id. The jury returned a verdict in favor of the defense. Id. at 614. The mother appealed, arguing that the trial court’s ruling was baseless. Id.

The Third District Court of Appeal agreed with the mother and reversed. The court held that there was no evidence of the mother’s negligence in the record, and that the trial court erred when it allowed Velda Farms to argue that the mother’s negligence was a cause of her daughter’s death. Id. at 615. The court remanded for an entirely new trial, stating “[inadmissible evidence constitutes grounds for a new trial where the evidence likely results in jury confusion as to the issues and evidence considered.” Id. (citing Goldman v. Bernstein, 906 So.2d 1240, 1241 (Fla. 4th DCA 2005)). “The evidence of [the mother’s] negligence, as well as a question of her negligence on the verdict form, allowed the jury to base their determination of [the driver’s] negligence on facts and circumstances irrelevant to his fault as a driver. This may have improperly confused the jury, influenced their thought process, and prejudiced [the mother].” Id.

Here, the Estate makes a compelling argument that Jan’s inclusion on the ver-diet form prejudiced the jury against him. The jury had already expressed misgivings regarding Jan’s procurement of cigarettes for Laura, and his inclusion on the verdict form could have served as a judicially endorsed vindication of then* misgivings. Furthermore, the low damages awarded may indicate that the jury was prejudiced by evidence and argument regarding Jan’s negligence. As in Probkevitz, there is no way to know how the jury would have decided damages and apportionment had this issue not been injected into the trial. Accordingly, we reverse the final judgment and remand the case for an entirely new trial on all Phase II issues.

Affirmed in part, Reversed in part, and, Remanded for proceedings consistent with this opinion.

CIKLIN and GERBER, JJ., concur.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993), receded from on other grounds, Wells v. Tallahassee Mem’l Reg'l Med. Ctr., Inc., 659 So.2d 249, 254 (Fla.1995).

      . We acknowledge that there are certain factual scenarios under which a duty may be created by the negligent furnishing of alcoholic beverages. E.g., § 768.125, Fla. Stat. (1980). However, these duties were created by statute; the old common law rule was that no cause of action could be brought for the negligent sale of alcoholic beverages. Ellis v.

        N.G.N. of Tampa, Inc., 586 So.2d 1042, 1044-45 (Fla.1991).

      . After Jan's testimony, a juror asked if "Mr. Grossman [felt] he enabled Laura’s smoking behavior/habit?” and "[c]ould he have done more to encourage her to quit?” The question was objected to, and the objection was sustained.


author: EVANDER, J.

text:
    Joe Edwin ROGERS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3008.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2012.

      Joseph H. Lang, Jr., Joshua D. Moore and Rachel May Zysk, of Carlton Fields, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

We affirm Rogers’ convictions and sentences on 125 counts of possession of child pornography. Although the State’s evidence was certainly not overwhelming, we conclude that it was sufficient to survive Rogers’ motion for judgment of acquittal.

Rogers received a composite sentence of seventy-five years in prison. Given that the 125 child pornographic images were on a single CD-ROM and given that Rogers had no prior felony convictions, one might well conclude that the sentence was unduly harsh. However, we cannot accept Rogers’ argument that his sentence violates the cruel and unusual punishment clauses of the United States and Florida constitutions. See, e.g., Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003) (upholding sentence of twenty-five years to life for theft of golf clubs under California’s “Three Strikes and You’re Out” law); Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991) (imposition of life imprisonment sentence for trafficking in cocaine did not constitute cruel and unusual punishment notwithstanding defendant’s lack of prior felony convictions); Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (sentence of two consecutive terms of twenty years’ imprisonment for possession with intent to distribute nine ounces of marijuana and distribution of marijuana was constitutional); Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (upholding imposition of mandatory life sentence under Texas recidivist statute where defendant’s third felony conviction was for obtaining $120.75 by false pretenses).

Finally, Rogers challenges the admission of an unredacted recording of an approximate one hour conversation between Rogers and his former girlfriend. He argues that the recording includes several improper and prejudicial statements made by the former girlfriend as well as certain inadmissible hearsay. However, no contemporaneous objection was made to the introduction of the recording at trial, and its admission did not constitute fundamental error. These arguments are more appropriately addressed in a post-conviction motion.

AFFIRMED.

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

      . Amend. VIII, U.S. Const.

      . Art. I, § 17, Fla. Const.


author: KHOUZAM, Judge.

text:
    Travis QUESADA, Appellant, v. CITY OF TAMPA, Appellee.
    No. 2D11-4552.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.
    Frances Martinez of Escobar & Associates, P.A., Tampa, for Appellant.
    Erin G. Jackson and Thomas M. Gonzalez of Thompson Sizemore Gonzalez & Hearing, P.A., Tampa, for Appellee.
   KHOUZAM, Judge.

Travis Quesada appeals the circuit court’s order denying his motion to vacate an arbitration award which determined that the City of Tampa (the City) had properly terminated his employment with Tampa Fire Rescue. We reverse and vacate the arbitration award.

On September 24, 2007, Quesada was dismissed from his employment with Tampa Fire Rescue after a second drug test came back positive for suspicious levels of the metabolite 19-norandrosterone. This result suggested that Quesada had taken the anabolic steroid Nandrolone and had been untruthful in his responses to departmental and medical inquiries regarding steroid use. Quesada filed a grievance, maintaining that he had not taken illegal anabolic steroids and that his use of the legal, over-the-counter supplement 17-Halo-Methyl-Dianadrone (17-HD) had produced false positive test results. After the grievance was denied, the parties went to arbitration pursuant to a collective bargaining agreement between the City and International Association of Firefighters (the Union), which represented Quesada. A hearing was held. Both the City and the Union presented expert testimony regarding anabolic steroid testing generally and the possibility that legal supplements such as 17-HD could produce a false positive result on a test for steroids.

The City’s expert testified that he had become acquainted with 17-HD the day of the hearing and did not know enough about it to comment on whether it could have caused Quesada’s positive test results. But he was not aware of any cases where the reporting limit of the metabolite 19-norandrosterone had been exceeded with anything other than Nandrolone or a related steroid. The Union’s expert, on the other hand, characterized 17-HD as a legal pro-steroid that “has the potential of producing the same metabolite, the same breakdown product as the illicit Nandro-lone.” He noted that Quesada’s levels of 19-norandrosterone were low compared to documented Nandrolone users and concluded that there was a very reasonable probability that Quesada’s consumption of 17-HD caused false positive test results.

On November 13, 2009, the arbitrator entered a written award determining that the City had not unjustly terminated Que-sada’s employment. In the award, the arbitrator acknowledged that she had conducted independent research on the supplement 17-HD. She noted that Vyo-tech — the company that produces 17-HD — states on its website that the supplement will not show up on drug tests. She attached several pages of information, apparently gathered from Vyotech’s website and a dietician acquainted with 17-HD. These pages contained an assessment of 17-HD’s ingredients and the dietician’s opinion that “17-HD is just a bunch of herbs with a name that tries to sound like a prohormone or even a potent steroid.”

After mentioning this outside research, the arbitrator concluded that Quesada’s positive test result could not have been caused by 17-HD, that his responses regarding steroid use were untruthful, and that he had not been unjustly terminated. Quesada moved to vacate the arbitration award because the arbitrator had conducted independent research. The circuit court denied Quesada’s motion on August 16, 2011, and he timely appealed the circuit court’s order.

On appeal, Quesada argues that the arbitrator’s independent investigation of the facts constitutes misconduct under section 682.13(1), Florida Statutes (2011), and that he has been prejudiced by this misconduct. We agree. Section 682.13(1) provides that a court shall vacate an arbitration award when:

(a) The award was procured by corruption, fraud or other undue means.
(b) There was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or umpire or misconduct prejudicing the rights of any party.
(c) The arbitrators or the umpire in the course of her or his jurisdiction exceeded their powers.
(d) The arbitrators or the umpire in the course of her or his jurisdiction refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of s. 682.06, as to prejudice substantially the rights of a party.
(e) There was no agreement or provision for arbitration subject to this law, unless the matter was determined in proceedings under s. 682.03 and unless the party participated in the arbitration hearing without raising the objection.

Subsection 682.1S(l)(b) “requires vacation of an award when there is misconduct by an arbitrator which prejudices the rights of any party.” Int’l Med. Ctrs., Inc. v. Sabates, 498 So.2d 1292, 1293 (Fla. 3d DCA 1986).

Here, the arbitrator’s independent research constitutes misconduct because “arbitration panels should not, in the course of their deliberations, go outside the evidence presented to them.” Id.; cf. Fla. Code Jud. Conduct, Canon 3 commentary (“A judge must not independently investigate facts in a case and must consider only the evidence presented.”). And Quesada has been prejudiced by the arbitrator’s misconduct because her independent research yielded information not only different from any of the evidence in the record but also damaging to Quesada’s case. We note that the collective bargaining agreement did not provide that the arbitrator was free to conduct independent research. Accordingly, we reverse the circuit court’s order and vacate the arbitrator’s award.

Reversed; arbitration award vacated.

ALTENBERND and WHATLEY, JJ., Concur.


text:
    Jason McDANIEL and catherine McDaniel, Appellants, v. FIRSTBANK PUERTO RICO d/b/a FirstBank Florida; Baltic Brothers, L.L.C.; and Indycal Inc., Appellees.
    No. 2D11-1742.
    District Court of Appeal of Florida, Second District.
    July 6, 2012.

      David S. Cohen and Jose L. Benson of Law Offices of David S. Cohen, LC, Orlando, for Appellants.
    Cherish A. Thompson and Otto E. Berg-és of Cherish A. Thompson and Associates, P.A., Miami, for Appellee FirstBank Puer-to Rico d/b/a FirstBank Florida.
    No appearance for remaining Appellees.
   KHOUZAM, Judge.

Jason and Catherine McDaniel appeal the trial court’s order denying their motion to quash service of process. Because the requirements of section 48.031(6), Florida Statutes (2010), were not met in effectuating substitute service against the McDan-iels, we reverse the order denying the motion to quash.

To collect sums allegedly owing on a promissory note, FirstBank Puerto Rico (“FirstBank”) sued four defendants: two corporations and their two principals, the McDaniels. To accomplish service of process on all four defendants, FirstBank delivered on September 21, 2010, a copy of the summons and complaint to an employee at the private mailbox registered to the corporations. The McDaniels, in their individual capacities, filed a limited notice of appearance and motion to quash service of process against them on October 11, 2010. They argued that FirstBank’s use of substitute service via a private mailbox was improper where public records disclosed that the McDaniels had a registered homestead address in Florida and no service was attempted at that address. The motion was denied and the McDaniels timely appealed.

In reviewing a trial court’s ruling on the sufficiency of substitute service under section 48.031(6), a de novo standard of review applies. Beckley v. Best Restorations, Inc., 13 So.3d 125, 126 (Fla. 4th DCA 2009). Section 48.031(6) provides in full:

If the only address for a person to be served, which is discoverable through public records, is a private mailbox, substitute service may be made by leaving a copy of the process with the person in charge of the private mailbox, but only if the process server determines that the person to be served maintains a mailbox at that location.

Because of the fundamental constitutional implications of service of process, “statutes governing service of process are to be strictly construed and enforced.” Shurman v. Atlantic Mortg. & Inv. Corp., 795 So.2d 952, 954 (Fla.2001). The burden to prove the validity of sendee of process is on the party seeking to invoke the court’s jurisdiction. Henzel v. Noel, 598 So.2d 220, 221 (Fla. 5th DCA 1992).

The McDaniels argue that the trial court erred in denying their motion to quash service of process because First-Bank failed to comply with the statutory requirements of section 48.031(6) in serving the individual defendants in this case. FirstBank does not contest that service was insufficient. Rather, it argues that the order denying the motion to quash should be affirmed because the McDaniels waived objections to personal jurisdiction by actively participating in the litigation and because they did not suffer prejudice as a result of the insufficient service.

Active participation in the proceedings in the trial court can constitute a submission to the court’s jurisdiction and a waiver of any objection to personal jurisdiction. Solmo v. Friedman, 909 So.2d 560, 564 (Fla. 4th DCA 2005) (citing Bush v. Schiavo, 871 So.2d 1012, 1014 (Fla. 2d DCA 2004)). However, neither a notice of appearance nor a motion to quash insufficient service of process qualifies as active participation because neither addresses the merits of the case or requests affirmative relief inconsistent with a defense of lack of personal jurisdiction. See Oy v. Carnival Cruise Lines, Inc., 632 So.2d 724, 725-26 (Fla. 3d DCA 1994). Because the McDaniels’ only participation in the case in their individual capacities was the filing and arguing of these two documents, and the scope of each was explicitly limited to the issue of insufficient service, they have not waived the defense of lack of personal jurisdiction.

FirstBank argues alternatively that the order denying the motion to quash should be affirmed because the defective service of process did not prejudice the McDaniels. It argues essentially that because the McDaniels had actual knowledge of the suit due to their involvement in defending the actions against the corporate entities, any defect in service of process against the individual defendants should be treated as harmless error. We disagree.

A number of Florida cases specifically hold that actual knowledge of a suit will not cure insufficient service of process. See, e.g., Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Due, 160 Fla. 120, 33 So.2d 716, 718 (1948). The determination of whether service of process is sufficient is limited to “whether the requisites of the controlling statute have been complied with and such compliance appears of record.” Id. Although Napoleon was decided before the enactment of section 48.031(6), subsequent cases have upheld the same rule in various circumstances. See, e.g., Bedford Computer Corp. v. Graphic Press, Inc., 484 So.2d 1225, 1227 (Fla.1986) (holding that actual knowledge of suit by nonresident corporate defendant does not render constructive service of process valid); S.H. v. Dep’t of Children & Families, 837 So.2d 1117, 1118 (Fla. 4th DCA 2003) (holding that actual knowledge of dependency proceeding does not waive requirement of proper service under section 39.502(5)); Panter v. Werbel-Roth Sec., Inc., 406 So.2d 1267, 1268 (Fla. 4th DCA 1981) (concluding that “actual knowledge of ... attempted service cannot be used to justify the appellee’s failure to strictly observe and substantially comply with service requirements”). Accordingly, First-Bank’s attempt at substitute service of process upon the McDaniels individually was insufficient and we must reverse the order denying the McDaniels’ motion to quash.

Reversed.

ALTENBERND and KELLY, JJ., Concur.

      . FirstBank also asserts in its brief that affir-mance is proper because the McDaniels’ former attorney provided the private mailbox address for future correspondence before he withdrew. Because no support for this factual assertion could be found in the appellate record, we need not consider this argument.


author: MAY, C.J.

text:
    ERP OPERATING LIMITED PARTNERSHIP, a foreign limited partnership, d/b/a Gatehouse on the Green Apartments, Appellant, v. Shandalyn SANDERS, as Personal Representative of the Estate of Clara Sanders, deceased, and Chauncey Sanders, deceased, Appellee.
    No. 4D09-5188.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2012.
    Rehearing Denied Oct. 8, 2012.

      Richard Sherman and James W. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Joel R. Wolpe and Alexander Alvarez of Wolpe, Leibowitz, Alvarez & Fernandez, LLP., Miami, for appellant.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Thaddeus Hamilton, Plantation, and Jeffrey Allen of Law Office of Jeffrey Allen, Miami, for appellee.
   MAY, C.J.

This case involves a sad and tragic loss of life when two young adults were murdered in their apartment. A lawsuit resulted in a judgment against the owner of the apartment complex. The owner appeals and raises six issues. The first issue concerns whether the trial court should have granted a directed verdict on liability because the plaintiff failed to prove causation where there was no evidence of forcible entry. We find Brown v. Motel 6 Operating, L.P., 989 So.2d 658 (Fla. 4th DCA 2008) dictates the outcome of this case and reverse the judgment.

In late 2004, two young adults moved into an apartment complex marketed as a “gated community” with a gated front entrance. Water surrounded approximately seventy percent of the complex, and a wall or fence surrounded the remainder. The complex had a policy of providing reasonable lighting, locks, and peepholes. The apartments contained alarm systems, which the residents could activate.

A year after they moved in, the victims were shot to death by unknown assailants inside their apartment. Although there was no sign of forced entry, an engagement ring, cash, credit cards, and a computer modem were stolen from the apartment.

Evidence revealed that in the three years prior to the murders, there were two criminal incidents where the gate had been broken and perpetrators followed the residents onto the premises. One of these incidents resulted' in an armed robbery; the other resulted in an assault. The entrance gate was broken for approximately two months prior to the murders.

The defendant, a national company owning approximately one hundred properties, owned the complex. It had a manual providing that a notice to residents is recommended when “a significant crime” occurs on the property, especially a violent crime or forced entry burglary. The manual recommended that such notice be provided to residents on the same day that management becomes aware of the incident, and provided a form for such notices. No notices were sent to the residents of the twenty criminal incidents (including seven apartment burglaries, two robberies, and ten motor vehicle thefts) that occurred in the three years prior to the murders.

The plaintiff, as personal representative of the decedents’ estate, filed a complaint against the defendant, alleging the defendant’s negligence was a proximate cause of the deaths. The complaint alleged the defendant did not maintain the premises in a reasonably safe condition by failing to: (1) maintain the front gate; (2) have adequate security; (3) prevent dangerous persons from gaining access to the premises; and (4) protect and warn residents of dangerous conditions and criminal acts.

During discovery, the defendant deposed the boyfriend of one of the decedents. He testified that he was on the phone with the decedent prior to eleven o’clock in the evening. The call ended when the decedent told him that two identified people known to the decedent were at the door. When the boyfriend called back, no one answered.

The case proceeded to trial. The plaintiff moved in limine to exclude the boyfriend’s statement about who was at the door on the night of the murders. The plaintiff argued that the statement constituted hearsay — in fact double hearsay— because the boyfriend did not testify at trial. The defendant argued that the statements were admissible as spontaneous statements. Alternatively, the statements were admissible because they did not fall within the definition of hearsay. The trial court ruled the statements inadmissible and provided the following explanation:

TRIAL COURT: This is a very important portion. I mean, purportedly from your standpoint just before the woman was murdered she answered the door and then told this fellow who was at the door. And then that was her last conversation with him from your standpoint.
And your argument is she knew who murdered these two people. And that’s a very important ruling in the case. And I’ll tell you right now unless he’s here to fill me in with a little more on the situation because I’m not clear from reading the deposition, the depo is not coming in.

Later in the trial, the plaintiff offered the testimony of a criminology expert. He testified that most of the crimes at the complex in the three years prior to the murders were opportunistic in nature. Opportunistic crimes are those committed by perpetrators who look for easy targets. He further testified that such precursor crimes need to be monitored by the landowner because awareness is the cornerstone of crime prevention. He also noted that the defendant’s training video informed its personnel that they needed to minimize such problems “through awareness.”

The expert noted that the training video also addressed the importance of repairs to mechanical failures. Yet, the evidence demonstrated the gate had been inoperable for four months during the year of these murders. The expert testified that it appeared the murders occurred in the course of another felony, such as a home invasion — an opportunistic crime. However, the expert agreed that there had never been a murder, shooting, or rape at the complex. The expert acknowledged there was no way of knowing precisely how the murders took place.

The defense expert, a security consultant, testified that the murders were not foreseeable. Of the twenty crimes which occurred on the premises in the three years leading up to the murders, none were violent crimes nor predicted homicide.

The defense expert explained that crimes such as stabbings, shootings, murders, or rapes constitute “predictors” of future violent crimes, but none of those had occurred at the location so there was no reason to foresee these murders. The defense expert opined that the security measures were “more than reasonable” and met or exceeded the industry standard of security for complexes in that location. He did not believe the gate was necessary given the low level of crime reported at that location. In conclusion, the defense expert testified:

The [complex] provided [the decedents] with a secure locked environment, an apartment with one entrance, a steel door, and a dead bolt lock. There is no sign of forced entry. The materials that I received lead me to believe that the door was opened to the person that committed this particular crime.

The defendant moved for directed verdict, arguing the plaintiff had not established proximate cause or that the defendant had control over the apartment complex. The trial court denied the motion. The jury found the defendant forty percent comparatively negligent, and awarded damages of 4.5 million dollars apportioned to various survivors of the decedents.

The defendant moved for a new trial and a judgment notwithstanding the verdict, which the trial court denied. From the judgment and these orders, the defendant now appeals.

On appeal, the defendant argues the trial court erred in denying its motion for directed verdict because the plaintiff failed to establish proximate cause for the deaths. In support, the defendant relies on the plaintiffs inability to explain how the assailants gained entry into the apartment. The defendant also argues that the murders were not reasonably foreseeable in light of the relatively small number of property crimes that occurred on the premises in the three years prior to the murders. The plaintiff responds that the murders were reasonably foreseeable and that the proof of gaps in security established the requisite causation.

We have de novo review of a trial court’s ruling on a motion for directed verdict. Schein v. Ernst & Young, LLP, 77 .So.3d 827, 830 (Fla. 4th DCA 2012).

A directed verdict is appropriate “when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law.” Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). “In negligence actions Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiffs injury.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). “In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.” Id. at 1020.

Motel 6 dictates the result in this appeal. In Motel 6, the victim was shot to death in his motel room. Motel 6, 989 So.2d at 658. His estate brought a wrongful death claim against Motel 6, alleging that “in light of past criminal activity, [it] was negligent in failing to take greater security precautions.” Id.

There, we affirmed a summary judgment in favor of Motel 6 because “there was no evidence of a forced entry, nor any evidence that the shooting could have been prevented with greater security.” Id. at 658-59. Although we acknowledged that a “jury could find that the motel breached its duty to provide adequate security,” we explained that the facts did not demonstrate that the victim’s death “resulted from [this] breach of duty.” Id. at 659.

Here, although there was evidence to support a breach of duty to provide adequate security, the plaintiff could not establish that the breach was the proximate cause of the murders. As in Motel 6, the victims were murdered inside their apartment. There was no sign of a forced entry. The plaintiffs expert acknowledged that it was unknown what happened on the night of the murders. Without proof of how the assailants gained entry into the apartment, the plaintiff simply could not prove causation.

Reversed and Remanded.

TAYLOR and CIKLIN, JJ., concur.

      . Because we resolve this appeal based on the plaintiff's failure to prove causation, we do not reach this evidentiary issue.

      . The plaintiff relies on Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980) to argue that a reasonable jury could have found the defendant's failure to provide adequate security was the proximate cause of the deaths. We find this case factually distinguishable and unpersuasive. There, the complex had been plagued with violent crime, and evidence established that an intruder entered the apartment through a second story window facing a common walkway.