author: MARSTILLER, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Matilde C. MARTIN, as Personal Representative of the Estate of Benny R. Martin, as surviving spouse and on behalf of the estate, Appellee.
    No. 1D09-4934.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.
    Rehearing Denied Feb. 11, 2011.
    See also 945 So.2d 1246.

      Charles F. Beall, Jr., and Larry Hill of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
    Gregory G. Katsas of Jones Day, Washington, D.C., pro hac vice, for Appellant.
    M. Stephen Turner, and David K. Miller of Broad and Cassel, Tallahassee, and Robert M. Loehr and Matt Schultz of Lev-in, Papantonio, Thomas, Mitchell, Eschs-ner & Proctor, P.A., Pensacola, for Appel-lee.
   MARSTILLER, J.

This is the first so-called “Engle progeny” case to reach a district court of appeal following the Florida Supreme Court’s decision in Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). Engle began as a smokers’ class action lawsuit filed in 1994 against cigarette companies and tobacco industry organizations seeking damages for smoking-related illnesses and deaths. The class included all Florida “ ‘citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.’ ” Id. at 1256. The tobacco company defendants included the appellant in this case, R.J. Reynolds Tobacco Company (“RJR”). In Engle, the supreme court decertified the class, but allowed certain jury findings from the class action to have res judicata effect in any subsequent lawsuits by individual class members seeking damages from the defendants. RJR appeals from a final judgment in one such action, seeking reversal of the compensatory and punitive damage awards.

RJR primarily contends that the trial court gave the findings approved in Engle overly broad preclusive effect and thus relieved the plaintiff below, Matilde Martin, of her burden to prove legal causation on her negligence and strict liability claims. RJR also asserts Mrs. Martin failed to prove the reliance element of her fraudulent concealment claim, and that the punitive damage award is excessive and unconstitutional. For the reasons that follow, we find the trial court correctly applied Engle and Mrs. Martin produced sufficient independent evidence to prove RJR’s liability for her husband’s death. We conclude further the punitive damage award is neither excessive nor violative of RJR’s due process rights.

I. BACKGROUND

A. Engle v. Liggett Group, Inc.

The trial proceedings in the Engle class action were divided into three phases. In Phase I the jury was to consider “common issues relating exclusively to the defendants’ conduct and the general health effects of smoking” and the class’s entitlement to punitive damages. Phase II would determine whether the three class representatives received compensatory damages and the amount of class punitive damages if entitlement was established. Engle, 945 So.2d at 1256-57. Liability to and compensatory damages for each of the estimated 700,000 class members would be decided in Phase III. Id. at 1258. Phase I concluded with a verdict finding the evidence sufficient to prove strict product liability; fraud and misrepresentation; fraud by concealment; civil conspiracy by misrepresentation and concealment; breach of implied warranty; breach of express warranty; negligence; and intentional infliction of emotional distress. Id. at 1255. The jury also found the class entitled to punitive damages. Id. at 1256-57. In Phase II, the jury awarded $12.7 million in compensatory damages to the class representatives and $145 billion in punitive damages to the entire class. Id. at 1257. Before Phase III proceedings began, the defendants appealed the verdicts.

The appeal went first to the Third District Court of Appeal sub nom. Liggett Group, Inc. v. Engle, 853 So.2d 434 (Fla. 3d DCA 2003), then to the Florida Supreme Court which made the following rulings pertinent to the case before us. First, the court vacated the punitive damage award because, with no compensatory damage award to the class for comparison, the court could not determine whether the punitive damages were unconstitutionally excessive. 945 So.2d at 1264-65, 1276. Second, the court decertified the class for Phase III, finding class treatment infeasible “because individualized issues such as legal causation, comparative fault, and damages predominate,” and allowed class members to file individual lawsuits within one year of the court’s mandate. Id. at 1268, 1277. Third, the court “retain[ed] the jury’s Phase I findings other than those on the fraud and intentional infliction of emotion [sic] distress claims, which involved highly individualized determinations,” and gave these “common core findings ... res judicata effect” in any subsequent individual actions by class members. Id. at 1269.

As a result, Engle class members opting to sue individually do not have to prove up the following matters found by the Phase I jury (“Engle findings”): (1) [generic causation] that smoking cigarettes causes aortic aneurysm, bladder cancer, cerebrovascular disease, cervical cancer, chronic obstructive pulmonary disease, coronary heart disease, esophageal cancer, kidney cancer, laryngeal cancer, lung cancer, pregnancy complications, oral cavity/tongue cancer, pancreatic cancer, peripheral vascular disease, pharyngeal cancer, and stomach cancer; (2) [addiction/dependence] that cigarettes containing nicotine are addictive or dependence producing; (3) [strict liability] that the defendants placed cigarettes on the market that were defective and unreasonably dangerous; (4) [fraud by concealment] the defendants concealed or omitted material information, not otherwise known or available, knowing the material was false or misleading, or failed to disclose a material fact, concerning or proving the health effects or addictive nature, or both, of smoking cigarettes; (5) [civil conspiracy-concealment] that the defendants agreed to conceal or omit information regarding the health effects of cigarette smoking or the addictive nature of cigarettes intending that smokers and the public would rely to their detriment; (6) [breach of implied warranty] that the tobacco company defendants sold or supplied cigarettes that were defective; (7) [breach of express warranty] that the tobacco company defendants sold or supplied cigarettes that, at the time of sale or supply, did not conform to representations of fact made by the defendants; and (8) [negligence] the tobacco company defendants failed to exercise the degree of care which a reasonable cigarette manufacturer would exercise under like circumstances. Id. at 1276-77. The supreme coui't noted, however, that the Phase I jury did not consider whether class members relied on the defendants’ statements or omissions or whether class members were injured by the defendants’ conduct. Therefore Phase I yielded no determination as to the defendants’ liability to any individual class member. Id. at 1263.

B. Martin v. R.J. Reynolds Tobacco Co.

Benny Martin was a long time smoker of Lucky Strike, a brand of cigarettes manufactured and sold by RJR, who contracted lung cancer and died in 1995. His widow sued RJR as an Engle class member seeking damages for her husband’s death. A jury trial proceeded on five claims: strict liability; fraud by concealment; conspiracy to commit fraud; negligence; and punitive damages. The parties filed a Joint Pretrial Memorandum admitting several facts which required no proof at trial, including that every Lucky Strike Benny Martin smoked contained nicotine, nicotine in cigarettes is addictive, and smoking cigarettes causes lung cancer.

The trial judge instructed the jury, in pertinent part, as follows:

This action has been brought as a part of a case known as the Engle class action. The first issue for your determination ... is whether Benny Martin was a member of the Engle class. Certain findings from that action are binding upon you, the Court and the parties. The findings may not be denied or questioned, and they must carry the same weight they would have if you had determined them yourselves. The established findings are: Finding one, is that cigarettes are addictive. Finding two, is that cigarettes cause lung cancer.
If you find that Benny Martin is a member of the Engle class, certain other findings are binding upon you, the Court and the parties. The findings may not be denied or questioned, and they must carry the same weight they would have if you had determined them yourselves. Those established findings are: Finding three, is that R.J. Reynolds Tobacco Company was negligent. Finding four, is that R.J. Reynolds Tobacco Company placed cigarettes on the market that were defective and unreasonably dangerous. Finding five, is that R.J. Reynolds Tobacco Company conspired with other companies to conceal or omit information regarding the health effect [sic] of cigarettes or their addictive nature or both. Those companies include Phillip Morris, Leggett, Lorillard, Brown <& Williamson Tobacco Corporation, individually, and as successors to the American Tobacco Company, the Council for Tobacco Research, USA, Inc., and the Tobacco Institute. Finding six, is that R.J. Reynolds Tobacco Company, in furtherance of that conspiracy, concealed or omitted material information, not otherwise known or available, knowing that material was false or misleading, or failed to disclose a material fact concerning the health effects or addictive nature of smoking cigarettes or both.
* ⅜ *
The findings that I have described to you do not establish that R.J. Reynolds Tobacco Company is liable to Mrs. Martin, nor do they establish whether Benny Martin was injured by R.J. Reynolds Tobacco Company’s conduct or the degree, if any, to which R.J. Reynolds Tobacco Company’s product was the sole or contributing cause of Benny Martin’s death. The findings establish only what they expressly state, and you must not speculate or guess as to the basis for the findings.
The first issue for your determination ... is whether Benny Martin was a member of the Engle class. In order to be a member of the Engle class, the plaintiff must prove that Benny Martin was addicted to R.J. Reynolds cigarettes containing nicotine, and, if so, that his addiction was the legal cause of his death.... Addiction is a legal cause of death if it directly and in a natural and continuous sequence produces or contributes substantially to producing such death ... so that it can reasonably be said that, but for the addiction to cigarettes containing nicotine, the death would not have occurred.
The next issue for your determination is whether the conspiracy to withhold health information or information regarding addiction and the acts proven in furtherance of that conspiracy were a legal cause of the death of Benny Martin. In order to be a legal cause of death, plaintiff must show that Benny Martin relied on statements by either R.J. Reynolds Tobacco Company or any of the other companies involved in the conspiracy that omitted material information concerning the health effect [sic] of cigarettes or their addictive nature or both made at any time during or after December 1953.... Benny Martin’s reliance on such statements to his detriment is a legal cause of loss if it directly and in natural and continuous sequence produces or contributes substantially to such loss, so that it can reasonably be said that, but for Benny Martin’s reliance, the loss would not have occurred.
* ⅜ *
Punitive damages are warranted if you find by clear and convincing evidence that ... one, the conduct causing loss to the plaintiff was so gross and flagrant as to show a reckless disregard of human life or of the safety of persons exposed to the effects of such conduct; or, two, the conduct showed such an entire lack of care that the defendant must have been consciously indifferent to the consequences; or, three, the conduct showed such an entire lack of care that the defendant must have wantonly or recklessly disregarded the safety and welfare of the public; or, four, the conduct showed such reckless indifference to the rights of others as to be equivalent to an intentional violation of those rights.

The jury found that addiction to RJR cigarettes was a legal cause of Mr. Martin’s death; RJR’s conspiracy to conceal and actual concealment of information was a legal cause of Mr. Martin’s death; RJR and Mr. Martin are respectively 66% and 34% responsible for Mr. Martin’s death; and punitive damages are warranted. The jury awarded Mrs. Martin $5 million in compensatory damages, which the court later reduced to $3.3 million based on the jury’s apportionment of fault, and $25 million in punitive damages. The trial court accordingly entered a Final Judgment for Mrs. Martin.

II. ANALYSIS

A. Application of Engle

The crux of this appeal is the extent to which an Engle class member can rely upon the findings from the class action when she individually pursues one or more Engle defendants for damages. RJR contends the Engle Phase I jury findings in the class action establish nothing relevant to any individual class member’s action for damages, and thus the trial court applied Engle too broadly in Mrs Martin’s case. In RJR’s view, the findings given res judicata effect by the supreme court facially prove only that RJR at some point manufactured and sold an unspecified brand of cigarette containing an undefined defect; RJR committed one or more unspecified negligent acts; RJR on some occasion concealed unspecified information about the health effects of smoking and the addictive nature of smoking; and RJR and several other entities agreed to conceal said unspecified information. Thus, RJR argues, notwithstanding the Engle findings Mrs. Martin was required to prove Lucky Strike brand cigarettes contained a specific defect rendering the brand unreasonably dangerous; RJR violated a duty of care it owed to Mr. Martin; RJR concealed particular information which, had it been disclosed, would have led Mr. Martin to avoid contracting lung cancer; and RJR was part of a conspiracy to conceal the specified information.

We disagree with RJR’s characterization of the Engle findings. RJR attempts to diminish the preclusive effect of the findings by claiming, based on the Phase I verdict form, that the findings “facially” prove nothing specifically relevant to Mr. Martin’s claims. In so doing, RJR urges an application of the supreme court’s decision that would essentially nullify it. We decline the invitation. See Hoffman v. Jones, 280 So.2d 431, 434 (Fla.1973) (district courts of appeal do not have the prerogative to overrule Florida Supreme Court precedent). See also, Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1335, (11th Cir.2010) (“The Phase I approved findings ... do establish some facts that are relevant to this litigation. Otherwise, the Florida Supreme Court’s statement in [Engle ] that the Phase I approved findings were to have ‘res judica-ta effect’ in trials involving former class members would be meaningless.”). No matter the wording of the findings on the Phase I verdict form, the jury considered and determined specific matters related to the defendants’ conduct. Because the findings are common to all class members, Mrs. Martin, under the supreme court’s holding in Engle, was entitled to rely on them in her damages action against RJR. The question is to what extent could Mrs. Martin use the Engle findings to establish the elements of her claims?

In support of its argument, RJR points out the Eleventh Circuit’s decision in Brown v. R.J. Reynolds Tobacco Co., supra, an interlocutory appeal in an Engle progeny lawsuit pending in the United States District Court, Middle District of Florida. The plaintiff in Brown appealed a pretrial order ruling that “the Engle Phase I findings may not be used to establish any element of an individual Engle plaintiffs claim.” Brown v. R.J. Reynolds Tobacco Co., 576 F.Supp.2d 1328, 1347-48 (M.D.Fla.2008). The Eleventh Circuit vacated the order, reasoning that the Florida Supreme Court’s decision in Engle must be given the same preclusive effect in federal courts it would have in state courts. Brown, 611 F.3d at 1331. The court then explained what it believes are the scope of the preclusive effect of Engle and the burden individual plaintiffs in federal court must carry in proving applicability of the Engle findings to their claims. It determined the supreme court, in giving the Phase I findings res judicata effect in subsequent lawsuits by Engle class members, necessarily meant issue preclusion rather than claim preclusion — both of which are included in the concept of “res judicata”— because “factual issues and not causes of action were decided in Phase I.” Id. at 1333. Then, relying on Gordon v. Gordon, 59 So.2d 40 (Fla.1952), and Seaboard Coast Line R.R. Co. v. Industrial Contracting Co., 260 So.2d 860 (Fla. 4th DCA 1972), the court concluded individual Engle plaintiffs may only use the Phase I findings to establish elements of their claims in federal court if they can demonstrate with a “reasonable degree of certainty” which facts were “actually adjudicated.” Brown, 611 F.3d at 1334-35. This they can do by pointing to relevant parts of the class action trial transcript. Id. at 1335.

While we generally agree with the Eleventh Circuit’s analysis of issue preclusion versus claim preclusion, we find it unnecessary to distinguish between the two or to define what the supreme court meant by “res judicata” to conclude the factual determinations made by the Phase I jury cannot be relitigated by RJR and the other Engle defendants. More importantly, we do not agree every Engle plaintiff must trot out the class action trial transcript to prove applicability of the Phase I findings. Such a requirement undercuts the supreme court’s ruling. The Phase I jury determined “common issues relating exclusively to the defendants’ conduct ...” but not “whether any class members relied on Tobacco’s misrepresentations or were injured by Tobacco’s conduct.” Engle, 945 So.2d at 1256 (emphasis added). The common issues, which the jury decided in favor of the class, were the “conduct” elements of the claims asserted by the class, and not simply, as characterized by the Eleventh Circuit, a collection of facts relevant to those elements.

As pertinent to Mrs. Martin’s claims, the class plaintiffs, to prove strict product liability, had to “ ‘establish the manufacturer’s relationship to the product in question, the defect and unreasonably dangerous condition of the product, and the existence of a proximate causal connection between such condition and the user’s injuries or damage.’ ” Siemens Energy & Automation, Inc. v. Medina, 719 So.2d 312, 315 (Fla. 3d DCA 1998) (quoting West v. Caterpillar Tractor Co., 336 So.2d 80, 87 (Fla.1976)). To prevail on the fraud by concealment claim, the plaintiffs had to prove the tobacco companies concealed or failed to disclose a material fact; the companies knew or should have known the material fact should be disclosed; the companies knew them concealment of or failure to disclose the material fact would induce the plaintiffs to act; the tobacco companies had a duty to disclose the material fact; and the plaintiffs detrimentally relied on the misinformation. See Friedman v. Am. Guardian Warranty Servs., Inc., 837 So.2d 1165, 1166 (Fla. 4th DCA 2003); Gutter v. Wunker, 631 So.2d 1117, 1118 (Fla. 4th DCA 1994). See generally 21 Patrick John McGinley, Fla. Frac., Elements of an Action, § 17:1 (2009-2010 ed.). The civil conspiracy claim required proof that the class defendants agreed to do an unlawful act or to do a lawful act by unlawful means, an overt act was done to further the conspiracy, and the plaintiffs were damaged as a result of the conspiracy. See Charles v. Fla. Foreclosure Placement Ctr., 988 So.2d 1157, 1159-60 (Fla. 3d DCA 2008). And the four elements of the negligence claim were “[a] duty ... requiring the [class defendants] to conform to a certain standard of conduct, for the protection of others against unreasonable risks[;]” a breach of that duty by the defendants; a “causal connection between the [defendants’] conduct and the [plaintiffs’] resulting injury ... commonly known as ... ‘proximate cause[;]” and damage to the plaintiffs. Curd v. Mosaic Fertilizer, L.L.C., 39 So.3d 1216, 1227 (Fla.2010) (quoting Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003)).

The Final Judgment and Amended Omnibus Order entered in the Engle class action sets out the evidentiary foundation for the Phase I jury’s findings on these claims, and demonstrates that the verdict is conclusive as to the conduct elements of the claims. The order reflects that Lucky Strike, the brand Mr. Martin primarily smoked, was one of the sixteen cigarette brands named by the class representatives and that the Phase I jury findings encompassed all the brands. Engle v. RJ Reynolds Tobacco Co., No. 94-08273, 2000 WL 33534572, at *1 (Fla.Cir.Ct. Nov. 6, 2000). The evidence supporting the strict liability finding showed the tobacco companies’ cigarettes contain carcinogens, nitrosa-mines, and carbon dioxide, among other ingredients harmful to health which, when combined with the nicotine cigarettes also contain, make the product unreasonably dangerous. Id. at *2. The jury based its findings on the fraud by concealment and conspiracy claims on evidence showing RJR and its co-conspirators agreed to conceal their own scientific research results revealing that cigarettes cause cancer and other diseases and that the nicotine in tobacco is addictive. There also was evidence the defendants had taken on the duty to disclose by promising to share their research results with the public. The evidence further showed that not only did the defendants conceal information about the dangers of smoking they also enticed people to keep smoking by creating a controversy over whether smoking indeed had deleterious , health effects. Id. at *2-3. And on the negligence claim, the jury determined the defendants owed all class members a duty to prevent injury from cigarettes the defendants knew to be harmful, and they breached their duty by selling cigarettes dangerous to health without taking reasonable measures to prevent injury to smokers. Id. at *4.

As does the Eleventh Circuit, we interpret the supreme court’s ruling in Engle to mean individual class plaintiffs, when pursuing RJR and the other class defendants for damages, can rely on the Phase I jury’s factual findings. But unlike the Eleventh Circuit, we conclude the Phase I findings establish the conduct elements of the asserted claims, and individual Engle plaintiffs need not independently prove up those elements or demonstrate the relevance of the findings to their lawsuits, assuming they assert the same claims raised in the class action. For that reason, we find the trial court in Mrs. Martin’s case correctly construed Engle and instructed the jury accordingly on the pre-clusive effect of the Phase I findings.

B. Evidence of Causation and Detrimental Reliance

As a corollary to its argument on the preclusive effect of Engle, RJR asserts the trial court did not require Mrs. Martin to prove legal causation on her negligence and strict liability claims. On the contrary, the trial court instructed the jury that

The first issue for your determination ... is whether Benny Martin was a member of the Engle class. In order to be a member of the Engle class, the plaintiff must prove that Benny Martin was addicted to R.J. Reynolds cigarettes containing nicotine, and, if so, that his addiction was the legal cause of his death.... Addiction is a legal cause of death if it directly and in a natural and continuous sequence produces or contributes substantially to producing such death ... so that it can reasonably be said that, but for the addiction to cigarettes containing nicotine, the death would not have occurred.

RJR stipulated pretrial that nicotine in cigarettes is addictive and smoking cigarettes causes lung cancer. RJR further stipulated that Mr. Martin smoked Lucky Strike cigarettes, every Lucky Strike cigarette he smoked contained nicotine, and Mr. Martin did not smoke any brand of cigarettes other than Lucky Strike and Camel (another RJR brand). At trial Mrs. Martin produced evidence showing that: Mr. Martin started smoking at age 14 and by age 23 was smoking two packs of non-filtered Lucky Strike cigarettes every day; he tried unsuccessfully several times over the years to quit smoking and was distraught over it; Mr. Martin was diagnosed by a physician as being addicted to nicotine; his treating pulmonologist determined his decades of smoking caused him to contract lung cancer which in turn caused his death. The record thus demonstrates Mrs. Martin was required to prove legal causation, and she produced sufficient evidence for a jury to find that Mr. Martin’s addiction to RJR’s cigarettes was the legal cause of his death.

RJR also argues that Mrs. Martin failed to prove the reliance element of her fraudulent concealment claim because she put on no direct evidence showing Mr. Martin relied on information put out by the tobacco companies omitting scientific findings on the harmful effects of smoking. But the record contains abundant evidence from which the jury could infer Mr. Martin’s reliance on pervasive misleading advertising campaigns for the Lucky Strike brand in particular and for cigarettes in general, and on the false controversy created by the tobacco industry during the years he smoked aimed at creating doubt among smokers that cigarettes were hazardous to health. Cf. Bullock v. Philip Morris USA, Inc., 159 Cal.App.4th 655, 71 Cal.Rptr.3d 775, 792 (2008) (plaintiff was not required to prove actual reliance on tobacco company’s specific misrepresentation where there was evidence that the company sustained a broad-based public campaign for many years disseminating misleading information and creating a controversy over the adverse health effects of smoking intending that current and potential smokers would rely on the misinformation); Burton v. R.J. Reynolds Tobacco Co., 208 F.Supp.2d 1187, 1203 (D.Kan.2002) (jury could infer plaintiffs reliance where evidence showed RJR and co-conspirators “represented to the public that they would take it upon themselves to investigate and determine whether there were health consequences of smoking,” but despite evidence of cigarettes’ harmful effects RJR “engaged in a publicity campaign telling the public that whether there were negative health consequences from smoking remains an 'open question.’ ”).

C. Punitive Damages

Finally, RJR challenges the $25 million punitive damage award arguing it is improperly based on the Engle findings and excessive in light of the $3.3 million in compensatory damages awarded Mrs. Martin. Section 768.72(2), Florida Statutes, requires a plaintiff seeking punitive damages to prove by clear and convincing evidence the defendant is guilty of intentional misconduct or gross negligence. See Wayne Frier Home Ctr. of Pensacola, Inc. v. Cadlerock Joint Venture, L.P., 16 So.3d 1006, 1008 (Fla. 1st DCA 2009). The evidence Mrs. Martin produced in support of her claim included, among other things, a 1972 internal RJR document stating, “In a sense, the tobacco industry may be thought of as being a specialized, highly ritualized and stylized segment of the pharmaceutical industry. Tobacco products uniquely contain and deliver nicotine, a potent drug, with a variety of physiological effects.” The same document describes nicotine as a “known ... habit forming alkaloid” and notes the “confirmed” tobacco user “primarily seek[s] physiological satisfaction derived from nicotine and perhaps other active compounds. His choice of product and pattern of usage are primarily determined by his individual nicotine dosage requirements.... ” At the time, the evidence showed, RJR was publicly denying nicotine is a drug, and tobacco companies including RJR were not only actively concealing their own research results revealing the harmful health effects of smoking cigarettes, but also purposefully misleading the public to believe the issue was unresolved. The evidence also showed that as early as 1935 it was technically possible to remove nicotine from Lucky Strike cigarettes but the company chose not to do so because it would result in an “emasculated cigarette, shorn of those very qualities which give a cigarette character and appeal.” That business decision endured, as industry documents revealed RJR in 1993 remained concerned that if it were to remove nicotine from its cigarettes people would elect not to smoke. We are satisfied Mrs. Martin produced sufficient evidence independent of the En-gle findings to allow the jury to find RJR guilty of intentional misconduct or gross negligence.

Nevertheless, the $25 million award is presumed excessive under Florida law. Section 768.73, Florida Statutes (2005) provides, in pertinent part:

(l)(a) In any civil action based on negligence, strict liability, products liability, misconduct in commercial transactions, professional liability, or breach of warranty, and involving willful, wanton, or gross misconduct, the judgment for the total amount of punitive damages awarded to a claimant may not exceed three times the amount of compensatory damages awarded to each person entitled thereto by the trier of fact, except as provided in paragraph (b). However this subsection does not apply to any class action.
(b) If any award for punitive damages exceeds the limitation specified in paragraph (a), the award is presumed to be excessive and the defendant is entitled to remittitur of the amount in excess of the limitation unless the claimant demonstrates to the court by clear and convincing evidence that the award is not excessive in light of the facts and circumstances which were presented to the trier of fact.

The punitive-to-compensatory ratio here is 7.58 to 1. Yet the trial court denied RJR’s motion for remittitur because, “[considering the cause of action leading to the award of punitive damages, the Florida statutory cap of 3 to 1 is inapplicable.” The court further concluded “[t]he award of punitive damages in this cause is not so excessive as to violate concepts of due process.” We review the trial court’s denial of remittitur for abuse of discretion but consider de novo whether the award is within the boundaries of due process. See Engle, 945 So.2d at 1263.

Turning first to whether remittitur was appropriately denied under section 768.73, the facts and circumstances in this case are significantly similar to those in Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483 (Fla.1999), in which the supreme court upheld a punitive damages award that was nearly 18 times the compensatory damages award. There the plaintiff brought a products liability action against Owens-Corning alleging he contracted mesothelioma after 30 years of exposure to Kaylo brand asbestos-laden insulation the company manufactured and sold. The jury awarded $1.8 million in compensatory damages and $31 million in punitive damages. Id. at 484-85. The evidence in the case showed that for 30 years Owens-Corning knew about the dangers of asbestos and not only concealed the information, but also intentionally misrepresented the safety of Kaylo, advertising it as “non-toxic.” Id. at 487. Further, the company refused — because it would not be profitable — to correct the defect either by removing asbestos from Kaylo or by marketing an asbestos-free substitute it had developed, and refused to warn the public of the cancer risk from exposure to asbestos. Finding the evidence sufficient to support a finding of “flagrant disregard” and “apparent indifference” to the safety of those who were exposed to Kaylo, the supreme court concluded the trial court “acted properly and responsibly under section 768.73(1) in determining that the punitive damages award ... fell within the exception to the statutory cap.” Id. at 488-89. The evidence in the instant case demonstrates with similar import RJR’s disregard for the safety of Benny Martin and other smokers of its cigarette brands: decades-long purposeful concealment of the health risks from smoking cigarettes, refusal to take nicotine out of Lucky Strike because sales would decrease, and collusion with other tobacco industry entities to affirmatively mislead the public into thinking cigarettes indeed may not be harmful. We find no abuse of discretion in the trial court’s approval, under section 768.73(l)(b), of the $25 million punitive damages award.

The second question to be answered is whether the award violates constitutional due process principles.

Despite the broad discretion that States possess with respect to the imposition of criminal penalties and punitive damages, the Due Process Clause of the Fourteenth Amendment to the Federal Constitution imposes substantive limits on that discretion. That Clause makes the Eighth Amendment’s prohibition against excessive fines and cruel and unusual punishments applicable to the States. The Due Process Clause of its own force also prohibits the States from imposing “grossly excessive” punishments on tort-feasors.

Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S. 424, 433-34, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (citations omitted). The three criteria a punitive damages award must satisfy under Florida law to pass constitutional muster are: (1) “the manifest weight of the evidence does not render the amount of punitive damages assessed out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct;” (2) the award “bears some relationship to the defendant’s ability to pay and does not result in economic castigation or bankruptcy to the defendant;” and (3) a reasonable relationship exists between the compensatory and punitive amounts awarded. Engle, 945 So.2d at 1263-64.

We find the $25 million award here is not out of proportion with what the jury clearly considered to be wanton conduct by RJR in marketing a product it knew to be harmful and misleading the public about the health risks of smoking cigarettes. Neither does the award place RJR in a precarious financial position as the evidence showed that between 2005 and 2008 it had shareholder equity of approximately $8 billion and net annual earnings of $1 billion. We recognize, as RJR points out, there are thousands of Engle progeny cases pending in the trial courts and the company’s potential financial exposure is significant. But our review is limited to the facts and circumstances of this case, and we decline to disturb an otherwise reasonable punitive damages award to mitigate RJR’s future liability. Finally, the 7.58 to 1 ratio of punitive to compensatory damages does not, under the circumstances of this case, offend due process. Neither the United States Supreme Court nor the Florida Supreme Court has adopted a bright-line limit to which punitive damages awards must adhere. RJR asserts the Supreme Court did just that and adopted a 1 to 1 ratio in Exxon Shipping Co. v. Baker, 554 U.S. 471, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008). But the Court’s review of the punitive damages award in Exxon Shipping did not invoke due process principles. Rather, the “en-quiry differ[ed] from due process review because the case [arose] under federal maritime jurisdiction,” and the Court “ex-amin[ed] the verdict in the exercise of federal maritime common law authority, which precedes and should obviate any application of the constitutional standard.” Id. at 2626. There remain “no rigid benchmarks that a punitive damages award may not surpass,” but “[s]ingle-digit multipliers are more likely to comport with due process, while still achieving the State’s goals of deterrence and retribution, than awards with” higher ratios. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). We find no justification in the record to undo the jury’s decision to award Mrs. Martin $25 million in punitive damages.

III. CONCLUSION

In summary, the Phase I jury findings given preclusive effect in Engle established the conduct elements of Mrs. Martin’s strict liability, fraudulent concealment, civil conspiracy and negligence claims against RJR. The trial court therefore correctly applied Engle. Mrs. Martin produced sufficient independent evidence to prove causation, detrimental reliance, and entitlement to punitive damages. The punitive damage award overcomes the presumption of excessiveness in section 768.73, Florida Statutes (2005), and satisfies due process in view of the evidence of decades-long wanton conduct by RJR and because the award does not financially devastate the company. Accordingly, we AFFIRM the Final Judgment in all respects.

CLARK and WETHERELL, JJ., concur.

       Judge Bradford L. Thomas heard oral argument in this case. After Judge Thomas re-cused himself, Judge T. Kent Wetherell, II, was assigned to the panel to replace Judge Thomas. Judge Wetherell has considered the record and briefs submitted in this case and the video recording of the oral argument held July 20, 2010.

      . Mr. Martin primarily smoked Lucky Strike, but he also smoked Camel, another RJR brand.

      . Also named as defendants were Philip Morris USA, Inc.; Lorillard Tobacco Company; Lorillard, Inc.; Liggett Group, LLC; and Vector Group Ltd., Inc. By joint stipulation early in the litigation, they all were dismissed from the lawsuit with prejudice.

      . American Tobacco Company, to which RJR is successor in interest, made and sold Lucky strike at that time.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SHERIFF OF PASCO COUNTY, and Pasco County Board of County Commissioner, a political subdivision of the State of Florida, Appellants, v. FLORIDA STATE LODGE, Fraternal Order of Police, Inc., and Public Employees Relations Commission, Appellees.
    No. 1D09-3106.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.
    Rehearing Denied Jan. 27, 2011.
    Wayne Helsby and Mark E. Levitt of Allen, Norton & Blue, Winter Park, and Raoul G. Cantero, III, and Kerri L. McNulty of White & Case, Miami, and Jeffrey Steinsnyder of Pasco County Attorney’s Office, Port Richey, for Appellant.
    William D. Salmon of Public Employees Relations Commission, Tallahassee, and T.A. Delegal, III of Delegal Law Offices, Jacksonville, for Appellees.
   PER CURIAM.

The Florida State Lodge, Fraternal Order of Police (“FOP”) is a union representing two bargaining units within the office of the Sheriff of Pasco County. The parties engaged in initial collective bargaining, reaching tentative agreement on some issues and impasse on others. Upon FOP’s request and pursuant to section 447.403(2), Florida Statutes, PERC assigned a special magistrate to assist in resolving the impasse issues. Ultimately, the parties rejected the special magistrate’s recommendations, necessitating submission of the impasse issues to the relevant legislative body as provided by section 447.403(4), Florida Statutes. The Sheriff, who is the public employer, deemed himself the relevant legislative body, conducted a public hearing, and resolved the impasse. FOP refused to submit the resulting collective bargaining agreement to its members. Instead it filed an Unfair Labor Practice charge with PERC alleging the Sheriff failed to submit the impasse issues to the Pasco County Board of County Commissioners (“Board”) as the appropriate legislative body. PERC concluded that under section 447.203(10), Florida Statutes, the Board is the appropriate legislative body to resolve the impasse between FOP and the Sheriff, and ordered the Sheriff to submit the impasse issues to the Board.

Section 447.203 defines “legislative body” in pertinent part as follows:

“Legislative body” means the State Legislature, the board of county commissioners, the district school board, the governing body of a municipality, or the governing body of an instrumentality or unit of government having authority to appropriate funds and establish policy governing the terms and conditions of employment and which, as the case may be, is the appropriate legislative body for the bargaining unit.

§ 447.203(10), Fla. Stat. (2007). As PERC reads this provision, there are two classes of legislative bodies authorized to resolve collective bargaining impasse issues: named (State Legislature, board of county commissioners, district school board) and unnamed (“governing body of an instrumentality or unit of government having authority to appropriate funds and establish policy governing the terms and conditions of employment and which, as the case may be, is the appropriate legislative body for the bargaining unit”). PERC determined the Sheriff is not a named entity and does not satisfy the criteria for unnamed entities because he has no authority to appropriate funds. On the other hand, PERC found, the Board both is a named entity and meets all the criteria for unnamed entities.

The Sheriff asserts that the Board lacks the authority to establish terms and conditions of employment for his employees. This may be so, but chapter 90-491, Laws of Florida, authorizes the Board to enact disciplinary processes and procedures to which the Sheriff must adhere. Such authority suffices to satisfy the statute. Further the Board appropriates the funds for the Sheriffs Office. While the Sheriff has the right to appeal certain budget decisions of the Board to the Florida Administration Commission, appeal rights do not equate to appropriations authority. It is clear the Legislature defined “legislative body” in section 447.203(10) so as to ensure the entity resolving collective bargaining impasse issues is the entity with authority to fund the resulting collective bargaining agreement. The Sheriff, as a constitutional officer within the executive branch, has no such authority. See Art. VIII, § 1(d), Fla. Const.; State v. Fla. Police Benevolent Ass’n, Inc., 613 So.2d 415, 418-19 (Fla.1992) (stating that requiring the Legislature to fully fund collective bargaining agreements would allow the executive branch, as the public employer entering into such agreements, “to invade the legislative branch’s exclusive right to appropriate funds.”); In re Advisory Op. to the Governor, 213 So.2d 716, 718 (Fla.1968) (noting that a sheriff is part of the executive branch). And see Webster’s Ninth New Collegiate Dictionary 683 (1989) (defining “legislative” as “belonging to the branch of government that is charged with such powers as making laws, levying and collecting taxes, and making financial appropriations”). Thus PERC’s interpretation of section 447.203(10) is not erroneous. See § 120.68(7)(d), Fla. Stat. (2009) (appellate court shall remand a case to the agency if it finds the agency “has erroneously interpreted a provision of law and a correct interpretation compels a particular action”).

AFFIRMED.

THOMAS, CLARK, and MARSTILLER, JJ., concur.


text:
    Donald HENRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3214.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2010.
    Rehearing Denied Feb. 7, 2011.
    Donald Henry, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, HAWKES, and THOMAS, JJ., concur.


author: MONACO, C.J.

text:
    WENWEI SUN, Xiaofen Xu, and Yuetian Sun, Appellant, v. Gilberto AVILES and Manuel Irizarry, Appellee.
    No. 5D09-3420.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.
    Rehearing Denied Feb. 14, 2011.

      Peter M. Cardillo, of Cardillo Law Firm, Tampa, for Appellant.
    Wm. Jere Tolton, III, of Ogden, Sullivan & O’Connor, Tampa, for Appellee.
   MONACO, C.J.

This is an appeal from an order dismissing the complaint of appellants, Wenwei Sun, Xiaofen Xu, his wife, and Yuetian Sun, his daughter, that was filed after Mr. Sun was injured in an automobile accident. Mr. Sun sought damages for personal injuries he allegedly suffered in the accident, and his wife and daughter filed consortium claims. The trial court dismissed appellants’ claims based on their commission of fraud upon the court after the appellees, Gilberto Aviles and Manuel Irizarry, learned that all three appellants lied repeatedly about Mr. Sun’s ability to work and function on his own after the accident. Recognizing the stringent standard applicable to dismissals based on fraud, we conclude that the trial court did not abuse its discretion when it dismissed the claims.

Trial courts have the inherent authority to dismiss an action as a sanction when it learns that a plaintiff has perpetrated a fraud on the court. Morgan v. Campbell, 816 So.2d 251, 253 (Fla. 2d DCA 2002). This authority exists because “no litigant has a right to trifle with the courts.” Id. (citing Tri Star Invs. v. Miele, 407 So.2d 292, 293 (Fla. 2d DCA 1981)). Although trial courts have the inherent authority to dismiss actions based on fraud and collusion, that power should be used “cautiously and sparingly,” and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing. Granados v. Zehr, 979 So.2d 1155 (Fla. 5th DCA 2008).

Courts act cautiously in dismissing on this basis because the Florida Constitution guarantees that the courts will be available to every person for redress of injury. Id. (citing Art. I, § 21, Fla. Const.). Thus, to ensure that this guarantee is satisfied, a party alleging fraudulent behavior on the part of another party must prove its position by clear and convincing evidence. Id. (citing Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572, 574 (Fla. 1st DCA 2003)). In Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998), this court set forth what must be proven before a trial court can dismiss a case for fraud:

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994).

Misconduct short of this, including poor recollection, dissemblance, even lying, can in many cases be well-managed through cross-examination. Bologna v. Schlanger, 995 So.2d 526, 528 (Fla. 5th DCA 2008), review denied, 7 So.3d 1098 (Fla.2009) (citing Gehrmann v. City of Orlando, 962 So.2d 1059, 1062 (Fla. 5th DCA 2007)). A mere testimonial discrepancy is ordinarily not enough; there must be clear and convincing evidence of a scheme calculated to evade or stymie the discovery of facts central to the case. Id.; see also Cox; compare Ruiz v. City of Orlando, 859 So.2d 574 (Fla. 5th DCA 2003). In other words, “allegations of inconsistency, nondisclosure, and even falseness, are best resolved by allowing the parties to bring them to the jury’s attention through cross examination or impeachment, rather than by dismissal of the entire action.” Grana-dos.

The case now before us is not one of poor recollection or dissemblance; it is one where the three claimants over a span of six years lied repeatedly about Mr. Sun’s employment and his abilities to perform even the most basic functions of daily life. Moreover, the appellees did not simply make a bald and unsupported accusation to this effect. Rather, the appellants, who now admit that they knew at all times that they were supposed to give truthful and accurate answers, repeatedly chose not to do so out of some sort of purported desperation connected with Mr. Sun’s now acknowledged employment in China. They lied on virtually every discovery occasion to their own attorneys and experts, as well as to the appellees, making it virtually impossible for the appellees to defend against the damage claims advanced by the appellants.

The utterly deceitful behavior of the appellants most certainly fits the standard for dismissal of their suit. The deceit was, indeed, sentiently set in motion in order to interfere with the judicial system’s ability to adjudicate the subject case fairly and impartially. As we conclude that the trial court did not abuse its discretion in finding that the appellants’ complaint should be dismissed, we affirm.

AFFIRMED.

PALMER and LAWSON, JJ., concur.

      . In Granados, 979 So.2d 1155 (Fla. 5th DCA 2008), we reversed a dismissal based on fraud on the court because the deceit did not rise to the level of "extreme.” The plaintiff had disclosed the name of her physician during discovery, and the information to refute her damage claims was easily obtained from that source. As we noted in that opinion, the nondisclosure "did not unfairly hamper the preparation of the defense.” Id. at 1158. That certainly cannot be said of the calculated and widespread deceit evident in the case before us.


author: WETHERELL, J.

text:
    Tommy NEVITT, Appellant, v. Nicole BONOMO and Vince Bonomo, Appellees.
    No. 1D10-3333.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.

      Jason K. Hutchinson and Scott Ellerin, of Ellerin Hutchinson, Jacksonville, for Appellant.
    Jack W. Shaw, Jr., of Jack W. Shaw, Jr., P.A., Winter Park, for Appellees.
   WETHERELL, J.

Appellant, Tommy Nevitt, seeks review of the trial court’s order dismissing his paternity action against Appellees, Nicole and Vince Bonomo. We reverse and remand for further proceedings.

Appellees’ marriage was dissolved through a final judgment entered on February 10, 2010. At the time of the dissolution, Ms. Bonomo was pregnant with Mr. Nevitt’s child. The child was conceived while Appellees were married, but the child was not born until after Appellees’ divorce was final. The record does not reflect when the child was born, but the amended complaint alleged that the child was due on or about April 20, 2010.

On February 11, 2010, Mr. Nevitt filed a complaint pursuant to chapter 742, Florida Statutes (2009), seeking a determination that he was the biological father of the child as well as other relief. The complaint alleged that, at the time of the child’s conception, Appellees were not living together and that their marriage was not intact. The complaint also alleged that Mr. Nevitt “has manifested a substantial concern for the welfare of [the] child by keeping in touch with the mother regarding the pregnancy and giving the mother financial help during the pregnancy.” An amended complaint was filed on February 25, 2010, which added an allegation regarding the dissolution of Appellees’ marriage as well as an allegation that Mr. Bonomo had undergone a vasectomy long before the conception of the child making it “biologically impossible” for him to have fathered the child.

On March 25, 2010, in response to Mr. Nevitt’s emergency motion for DNA testing, the trial court entered an order finding that Mr. Nevitt “is the biological father of Ms. Bonomo’s unborn child and shall heretofore be known as the biological father of said unborn child.” The order reflects that this finding was based upon an agreement between Mr. Nevitt and Ms. Bonomo. The order does not reflect that Mr. Bonomo was party to that agreement, but he subsequently admitted in his answer to the amended complaint that Mr. Nevitt is the child’s biological father. Ap-pellees have not contested this order, and the trial court has not vacated the order.

The amended complaint alleged that Ms. Bonomo had initiated adoption proceedings for the child. Mr. Nevitt was opposed to the adoption, and on March 31, 2010, he filed an emergency motion seeking full custody of the child when the child was born and placement of his name on the child’s birth certificate as the father. The trial court denied the motion, but prohibited the child from being placed with the prospective adoptive parents upon birth. The order directed that the child be placed with foster parents or Ms. Bonomo until further order of the court. The record does not reflect the child’s current placement, and Mr. Nevitt represented in his brief that the adoption proceeding was stayed pending resolution of this paternity action.

Appellees’ answer to the amended complaint denied the allegation that Mr. Nevitt had manifested a substantial concern for the child during Ms. Bonomo’s pregnancy. The answer acknowledged the pending adoption proceeding for the child, but stated that Appellees “are ready, willing and able to undertake full 100% responsibility for the child in the event the proposed adoption is disrupted.” The answer also stated that Mr. Bonomo, as the child’s “legal father,” “continues to have interest in the present and future well-being of the child, and this can include the right to make an adoption plan for the child in lieu of parenting the child.”

On May 6, 2010, two weeks after Appel-lees filed their answer to the amended complaint, they served a motion to dismiss the paternity action. The motion argued that Mr. Nevitt lacked standing to contest the paternity of the child because the final judgment dissolving Appellees’ marriage had been set aside and vacated nunc pro tunc to February 10, 2010, and, thus, the child was born during Appellees’ marriage. Attached to the motion was a copy of the order setting aside and vacating the final judgment of dissolution. The order, which was entered on the same day that the motion to dismiss was served in the paternity action, reflects that Appellees consented to setting aside the final judgment and that the judgment was vacated because “it failed to include a child born of the marriage.”

On May 12, 2010, the trial court entered an order granting Appellees’ motion to dismiss. The court reasoned that because the final judgment of dissolution had been set aside and vacated, Appellees had been restored to the status of a married couple and, thus, Mr. Nevitt “has no standing to assert any paternity rights or claim to a child born of the marriage.” The trial court denied Mr. Nevitt’s motion for rehearing and thereafter entered a final judgment dismissing the paternity action with prejudice. This timely appeal followed.

This court reviews de novo an order of dismissal for lack of standing. See Roos v. Morrison, 913 So.2d 59, 62 (Fla. 1st DCA 2005) (reviewing ruling on a motion to dismiss de novo); see also Alachua County v. Scharps, 855 So.2d 195, 198 (Fla. 1st DCA 2003) (stating that whether a party has standing is a pure question of law which is reviewed de novo). For purposes of ruling on a motion to dismiss, the trial court may look no further than the four corners of the complaint, and all allegations in the complaint must be accepted as true. Roos, 913 So.2d at 62. A reviewing court operates under the same constraints. Id.

A child born or conceived during marriage is legitimate, and a person seeking to challenge the child’s paternity must overcome the strong, albeit rebuttable, presumption of legitimacy. See In re Adoption of Baby James Doe, 572 So.2d 986, 988 (Fla. 1st DCA 1990) (quoting Knauer v. Barnett, 360 So.2d 399, 403 (Fla.1978)); see also Smith v. Wise, 234 So.2d 145, 146 (Fla. 3d DCA 1970) (“A child conceived in wedlock, but born after termination of the marriage is legitimate.”). The presumption is so strong that it “can defeat the claim of a man proven beyond all doubt to be the biological father.” Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305, 308 (Fla.1993); see also Dep’t of Revenue v. Cummings, 930 So.2d 604, 607 (Fla.2006) (“The presumption of legitimacy is one of the strongest rebuttable presumptions known to law.”) (internal quotations and citations omitted).

In order to contest the paternity of a child conceived while the mother was married to another man, the putative biological father must allege more than a mere genetic link to the child; he must “show that he has manifested a substantial concern for the welfare of [the] child.” See Kendrick v. Everheart, 390 So.2d 53, 60 (Fla.1980); see also L.J. v. A.S., 25 So.3d 1284, 1286-87 (Fla. 2d DCA 2010) (applying Kendrick under circumstances similar to this case); G.F.C. v. S.G., 686 So.2d 1382, 1386 (Fla. 5th DCA 1997) (“[I]n order for a man to institute an action for paternity of a child born during a marriage, the man would be required to at least allege that a developed relationship exists between himself and the child; an allegation of a mere biological link to the child would not suffice.”). However, a putative biological father “has no right to seek to establish paternity of a child who was born into an intact marriage when the married woman and her husband object.” Johnson v. Ruby, 771 So.2d 1275, 1275-76 (Fla. 4th DCA 2000); see also Tijerino v. Estrella, 843 So.2d 984 (Fla. 3d DCA 2003); S.D. v. AG., 764 So.2d 807, 809 (Fla. 2d DCA 2000); S.B. v. D.H., 736 So.2d 766 (Fla. 2d DCA 1999); I.A. v. H.H., 710 So.2d 162 (Fla. 2d DCA 1998); G.F.C., 686 So.2d at 1386. An intact marriage has been described as “the existence of a marriage without the pendency of divorce proceedings.” Lander v. Smith, 906 So.2d 1130, 1134 (Fla. 4th DCA 2005); see also S.B., 736 So.2d at 767 (“So long as the husband and wife are married and have no pending divorce proceeding, we will not authorize the trial court to conduct any qualitative evaluation of whether the marriage is ‘intact.’ ”); but cf. Lohman v. Carnahan, 963 So.2d 985, 988 (Fla. 4th DCA 2007) (characterizing this language in Lander as dicta and stating that “[a] marriage is either intact or it is not”), rev. denied, 981 So.2d 1199 (Fla.2008).

Here, the amended complaint alleged that Mr. Nevitt is the biological father of Ms. Bonomo’s child; that the child was conceived while Ms. Bonomo was married to, but separated from, Mr. Bonomo; that Mr. Nevitt manifested a substantial concern for the welfare of the child by providing support to Ms. Bonomo during the pregnancy; and that the child would not be born into an intact marriage because Appellees had divorced several months before the child was due to be born. These allegations are sufficient to withstand Appellees’ motion to dismiss.

The trial court erred in relying on the nunc pro tunc order vacating the final judgment of dissolution in dismissing the amended complaint. The order was extrinsic to the amended complaint and, thus, could not be considered by the trial court in ruling on the motion to dismiss. See Crews v. Ellis, 531 So.2d 1372, 1376 (Fla. 1st DCA 1988) (“[A] motion to dismiss may not address factual matters not disclosed by the complaint.”); see also J.W.T. v. S.T., 974 So.2d 436 (Fla. 2d DCA 2007) (reversing the dismissal of a paternity action where the trial court considered matters outside of the petition).

Moreover, under the circumstances of this case, we cannot agree with the trial court that the nunc pro tunc order (or the subsequent dismissal of the dissolution petition by Mr. Bonomo) automatically bars Mr. Nevitt’s paternity action. Even if the order had the effect of legally undoing Appellees’ divorce such that they are now considered to have been married when the paternity action was filed and when the child was born, the divorce proceeding was still pending at those times and the trial court could therefore consider the “intactness” of Appellees’ marriage. See S.B., 736 So.2d at 767.

Another factor weighing against the dismissal of the paternity action at this stage of the proceeding is that the trial court entered an order declaring Mr. Nevitt to be the biological father prior to the child’s birth. That order has not been contested or vacated, and Appellees cannot simply make the finding of Mr. Nevitt’s paternity go away by having their divorce decree vacated and then voluntarily dismissing the dissolution proceeding. See T.B. v. M.M., 945 So.2d 637 (Fla. 2d DCA 2006) (reversing the dismissal of a paternity action that was served on the mother after the child’s birth but before she married her husband); and cf. § 382.013(2)(a), Fla. Stat. (“If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.”) (emphasis added).

The circumstances of this case are distinguishable from Lohman, which Appel-lees cite in support of the trial court’s ruling. In that case, the Fourth District quashed an order denying a motion to dismiss a paternity action that was filed by the putative biological father and opposed by the child’s mother and her husband. See 963 So.2d at 989. Unlike this case, which was filed before the child was born and while Appellees were divorced, the paternity action in Lohman was filed after the child was born and after the child’s mother and her husband had reconciled. Id. at 986. And unlike this case where Mr. Bonomo has never claimed paternity of the child, and there is no indication who, if anyone, was named on the child’s birth certificate as the father, in Lohman, the husband’s name was placed on the child’s birth certificate and he also filed an affidavit irrevocably waiving any right to contest that he was the child’s father. Id. at 987. And, unlike this case where Appellees’ divorce was final, the divorce proceeding was pending in Lohman when the child was born and when the paternity action was filed but was voluntarily dismissed prior to entry of a final judgment of dissolution. Id. at 987; see also id. at 988 (noting that “[t]his is not a case where, after the initiation of a paternity action, a previously filed dissolution action continued on its way to a final judgment.”).

The circumstances of this case are similar to L.J. As in this case, the paternity action in L.J. was filed by the undisputed biological father of a child conceived while the mother was married to another man. See 25 So.3d at 1285. And, as in this case, the child in L.J. was born after the child’s mother and her husband were divorced. Id. And, as in this case, the trial court in L.J. dismissed the paternity action for lack of standing. Id. In reversing the trial court, the Second District held that it was error to dismiss the paternity action without giving the biological father an opportunity to present evidence to establish his standing. Id. at 1288-89 (citing Kendrick and Van Nostrand v. Olivieri, 427 So.2d 374 (Fla. 2d DCA 1983)). The court also noted that the biological father was willing and able to parent and support the child, whereas the legal father showed no desire to support the child. Id. at 1289. Likewise, in this case, the amended complaint alleges that Mr. Nevitt has a desire to assume the responsibilities of parenting the child himself, whereas Appellees essentially admitted in their answer to the amended complaint that they intend to give the child up for adoption and will only parent the child if the adoption is “disrupted.”

This case is also similar to T.B. Like Ms. Bonomo, the mother in T.B. was not married when the child was born. See 945 So.2d at 638. Two days after the paternity action was served, the mother married another man. Id. The mother’s husband acknowledged paternity of the child and the mother then moved to dismiss the paternity action. Id. The trial court granted the motion to dismiss and the putative biological father appealed. Id. On appeal, the Second District framed the issue as “whether a paternity action that states a proper claim on the date that it is filed and served may be barred if the mother subsequently marries a second man who files an acknowledgment of paternity,” and then held that “such defensive steps are not an automatic bar to the paternity action.” Id. at 639. Likewise, in this case, we conclude that the steps taken by Appellees to undo their divorce and retroactively reinstate their marriage after the paternity action was filed and the child was born do not automatically bar Mr. Nevitt’s paternity action.

Accordingly, consistent with L.J. and T.B., we reverse the trial court’s order dismissing this paternity action and remand for further proceedings. In doing so, we recognize that there may not be an easy answer to this case. Cases involving children are never easy, and cases involving “quasi-marital children” are particularly complicated because they “present major public policy issues that are difficult, if not impossible, to address within the case law method.” Dep’t of Revenue ex rel. Preston v. Cummings, 871 So.2d 1055, 1061 (Fla. 2d DCA 2004), approved, 930 So.2d 604 (Fla.2006). That said, it is important for the trial court to resolve this case as expeditiously as possible because the child is already eight months old and an adoption proceeding is apparently pending the outcome of this case. The sooner all of the cases related to this child are resolved and the child is. able to have permanency (whatever form it may take), the better for all concerned, especially the child; and, to that end, we urge the parties to keep the child’s best interests as their paramount concern as this case moves forward.

REVERSED and REMANDED for further proceedings.

WEBSTER and ROWE, JJ., concur.

      . The order was entered by Judge McCallum in Division FM-C. This paternity case was assigned to Judge Wiggins in Division FM-D. The record does not reflect which judge or division the adoption proceeding has been assigned to, although it appears from Mr. Nevitt's brief that it may be in Division FM-F. It may be prudent for all of these cases to be assigned to the same judge upon remand.

      . The trial court’s order also stated that Mr. Bonomo voluntarily dismissed the petition that he had filed to initiate the dissolution case. The voluntary dismissal was not referenced in Appellees’ motion to dismiss, and the record does not include the notice of voluntary dismissal or reflect the date that it was filed in the dissolution case. Presumably, the notice was filed on or after May 6, 2010, when the nunc pro tunc order vacating the final judgment of dissolution was entered.

      . This phrase, coined by Judge Altenbernd on the Second District Court of Appeal, describes a child who was born to a married woman but whose biological father is not the woman’s husband. See Chris W. Alternbernd, Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls for Statutory Reform, 26 Fla. St. U.L.Rev. 219, 220, 227-31 (1999). The child in this case was not a quasi-marital child when he or she was bom because Ms. Bonomo was not married at the time, but the child arguably became a quasi-marital child upon entry of the nunc pro tunc order vacating Appellees’ divorce decree.


author: WEBSTER, J.

text:
    NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Appellant, v. Sheila W. HARRELL, an individual, Appellee.
    No. 1D09-5733.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.
    Rehearing Denied Feb. 11, 2011.

      Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellant.
    Rebecca Bowen Creed and Bryan S. Gowdy, of Creed & Gowdy, P.A., Jacksonville, for Appellee.
   WEBSTER, J.

Appellant, appellee’s uninsured motorist carrier, seeks review of a final judgment entered in appellee’s favor following a jury trial and the subsequent denial of appellant’s motions seeking a new trial or remit-titur. Appellant contends that the trial court erred when (1) notwithstanding a timely objection, it permitted appellee to introduce into evidence (and to request from the jury) the gross amount of her medical bills, rather than the lesser amount paid by appellee’s private health insurer in full settlement of the medical bills; and (2) it denied appellant’s post-trial motion seeking a new trial or remitti-tur as to the award of future medical expenses because, given the jury’s finding that appellee did not sustain a permanent injury, the award of such future expenses was excessive. We conclude that the trial court correctly (1) applied the collateral source rule when it overruled appellant’s objection and permitted appellee to introduce into evidence (and to request from the jury) the gross amount of her medical bills; and (2) denied appellant’s motion seeking a new trial or remittitur as to the award of future medical expenses because the jury’s verdict was inconsistent, and appellant failed to preserve the issue for review by raising it before the jury was discharged. Accordingly, we affirm.

Appellant’s first contention on appeal is that the trial court abused its discretion when, notwithstanding a timely objection, it permitted appellee to introduce into evidence (and to request from the jury) the gross amount of her medical bills, rather than the lesser amount paid by appellee’s private health insurer in full settlement of the medical bills, because it misled the jury as to the true amount of appellee’s damages. In support of this position, appellant cites a number of cases, all of which appellant contends hold that it is reversible error to permit evidence of the gross amount of medical bills, rather than the amount actually paid in full settlement of those bills. However, as appellee correctly points out, all of those cases involved payments made on the injured plaintiffs behalf by Medicare, rather than by a private insurance provider. We conclude that, as a result, all of those cases are distinguishable from this case because, here, the payments were made by appel-lee’s private health insurer.

As our supreme court noted in Gormley v. GTE Products Corporation, 587 So.2d 455, 457 (Fla.1991) (plurality opinion), “ft]he collateral source rule functions as both a rule of damages and a rule of evidence” (citing 3 Jerome H. Nates et al., Damages in Tort Actions § 17 (1988)). “As a rule of damages[,] ‘[t]he collateral source rule permits an injured party to recover full compensatory damages from a tortfeasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor....’” Id. (quoting from Damages in Tort Actions). “As a rule of evidence, the collateral source rule prohibits the introduction of any evidence of payments from collateral sources, upon proper objection.” Id. (citing Damages in Tort Actions). In Florida, the damages portion of the rule has been superseded by legislative action. See § 768.76(1), Fla. Stat. (2007); Sheffield v. Superior Ins. Co., 800 So.2d 197, 200 n. 3 (Fla.2001). However, the evidentiary portion of the rule remains alive and well in Florida. See, e.g., Sheffield, 800 So.2d at 200 (stating that, “[u]pon proper objection, the collateral source rule prohibits the introduction of any evidence of payments from collateral sources”) (citing Gormley v. GTE Prods. Corp.); Citizens Prop. Ins. Corp. v. Hamilton, 43 So.3d 746, 751 (Fla. 1st DCA 2010) (quoting from Rollins v. Pizzarelli, 761 So.2d 294, 300 (Fla.2000), which, in turn, had cited Gormley v. GTE Prods. Corp.); Benton v. CSX Transp., Inc., 898 So.2d 243, 245 (Fla. 4th DCA 2005) (stating that “[t]he inadmissibility of collateral sources evidence enjoys a long history of legal precedent”) (citing, inter alia, Gormley v. GTE Prods. Corp.).

In Goble v. Frohman, 901 So.2d 830, 833 (Fla.2005), our supreme court held that “discounts” negotiated by a plaintiffs private health insurer with health-care providers constitute a collateral source which must be set off against an award of compensatory damages following trial pursuant to section 768.76(1), Florida Statutes, unless a right of reimbursement or subro-gation exists. (Pursuant to Goble, the amount of the discounts negotiated by ap-pellee’s private health insurer was set off against the award of compensatory damages in this case.) Goble’s holding that such discounts constitute a collateral source would seem to end the discussion for purposes of this appeal, given the continued viability of the evidentiary portion of the collateral source rule in Florida. However, relying on cases from other district courts of appeal, appellant argues that such is not the case.

Appellant relies principally on Thyssenkrupp Elevator Corporation v. Lasky, 868 So.2d 547 (Fla. 4th DCA 2004) (on denial of motion for rehearing); Cooperative Leasing, Inc. v. Johnson, 872 So.2d 956 (Fla. 2d DCA 2004); Miami-Dade County v. Laureiro, 894 So.2d 268 (Fla. 3d DCA 2004); and Boyd v. Nationwide Mutual Fire Insurance Co., 890 So.2d 1240 (Fla. 4th DCA 2005), correctly representing that, in all of those cases, the courts held that it was error to permit the plaintiff to introduce into evidence (and to request from the jury) the gross amount of medical bills, rather than the lesser amount actually paid in full settlement of those bills. However, as we have already noted, appel-lee correctly responds that all of those cases involved payments made by .Medicare, rather than by a private health insurer. Moreover, all of those cases (as well as the other cases cited by appellant) relied directly or indirectly on Florida Physician’s Insurance Reciprocal v. Stanley, 452 So.2d 514 (Fla.1984), to support the conclusion they reached. See, e.g., Thys senkrupp Elevator, 868 So.2d at 549-50; Cooperative Leasing, 872 So.2d at 958.

In Stanley, our supreme court held that evidence of governmental or charitable benefits available to all citizens should not be precluded by the evidentiary portion of the collateral source rule. 452 So.2d at 515. The court said:

We believe that the common-law collateral source rule should be limited to those benefits earned in some way by the plaintiff. Governmental or charitable benefits available to all citizens, regardless of wealth or status, should be admissible for the jury to consider in determining the reasonable cost of necessary future care.... We find persuasive the following reasoning advanced by the Supreme Court of Illinois in refusing to allow a plaintiff a windfall recovery for the value of free medical services received in a charitable hospital:
[T]he policy behind the collateral-source rule simply is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation. This is further made apparent upon comparison ... with a situation in which the collateral-source rule is frequently applied, that of the defendant who seeks a reduction in damages because the plaintiff has received insurance benefits. “It is a well-settled rule of damages that the amount recoverable for tortious personal injuries is not decreased by the fact that the injured party has been wholly or partly indemnified for the loss by proceeds from accident insurance where the tortfeasor did not contribute to the payment of the premiums of such insurance. This rule is usually justified on the basis that the wrongdoer should not benefit from the expenditures made by the injured party in procuring the insurance coverage.”

Id. at 515-16 (quoting from Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353, 362-63, 29 Ill.Dec. 444, 448, 392 N.E.2d 1, 5 (1979)).

Based on the foregoing, it is relatively clear that our supreme court intended to limit abrogation of the evidentiary portion of the collateral source rule to cases where the benefits received to reduce the cost of medical care were not earned (or paid for) in some way by the plaintiff. Here, there is no dispute that appellee paid the premiums for her health insurance. Accordingly, pursuant to the evidentiary portion of the collateral source rule as it currently exists in Florida, we hold that the trial court correctly ruled that appellee was entitled to introduce into evidence (and to request from the jury) the gross amount of her medical bills, rather than the lesser amount paid by appellee’s private health insurer in full settlement of the medical bills. In fact, the only Florida appellate decision we have been able to find that is directly on point reaches that result. Goble v. Frohman, 848 So.2d 406, 410 (Fla. 2d DCA 2003) (relying on Gormley v. GTE Prods. Corp.), approved on other grounds, 901 So.2d 830 (Fla.2005).

Appellant’s second contention is that the trial court erroneously denied its post-trial motion seeking a new trial or remittitur as to the award of future medical expenses because, given the jury’s finding that appellee did not sustain a permanent injury, the award of such future expenses was excessive. Here, the jury awarded appellee the precise amount she had requested based on her argument that she had sustained a permanent injury that would require treatment for the rest of her life. We conclude that, as a result, the amount of the jury’s award of future medical expenses notwithstanding its finding that appellee had not sustained a permanent injury created a true inconsistent verdict. “To preserve the issue of an inconsistent verdict, the party claiming inconsistency must raise the issue before the jury is discharged.” Fla. Dep’t of Transp. v. Stewart, 844 So.2d 773, 774 (Fla. 4th DCA 2003). Accord Wiggs & Maale Constr. Co. v. Harris, 348 So.2d 914, 915 (Fla. 1st DCA 1977). Because appellant failed to preserve the issue for review by raising it before the jury was discharged, we also affirm the trial court’s order denying the post-trial motion seeking a new trial or remittitur as to the award of future medical expenses.

For the reasons set out above, we affirm the final judgment entered in favor of ap-pellee.

AFFIRMED.

WOLF and KAHN, JJ., concur.


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    Duane ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4866.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.
    Rehearing Denied Feb. 4, 2011.
    Duane Adams, pro se, Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a facially sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850 arguing eight grounds of ineffective assistance of counsel. We affirm denial of the appellant’s first seven claims without further comment. However, for the reasons discussed below, we reverse and remand the denial of ground eight.

In ground eight of the appellant’s motion, the appellant made two different claims. The appellant claimed that his scoresheet was incorrect and that defense counsel misadvised him that he was pleading to his lowest permissible sentence of 84 months, when his scoresheet revealed a lowest permissible sentence of 58.50 months. In its order denying the appellant’s postconviction motion, the trial court addressed the first part of appellant’s claim regarding the incorrect scoresheet, but failed to address the second part of the appellant’s claim regarding his counsel’s misadvice. Because the appellant stated a cognizable claim of ineffective assistance of counsel, see Skidmore v. State, 688 So.2d 1014, 1015 (Fla. 3d DCA 1997), and that claim is not conclusively refuted by the record on appeal, we reverse that part of the order denying this claim and remand to the trial court to either attach portions of the record conclusively refuting the appellant’s claim, or, in the alternative, to hold an evidentiary hearing at which the appellant may prove his allegations.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BENTON, C.J., WETHERELL, and ROWE, JJ., concur.


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    Keith MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-2593.
    District Court of Appeal of Florida, First District.
    Jan. 6, 2011.
    Rehearing Denied Feb. 11, 2011.

      Terry P. Roberts of the Law Office of Terry P. Roberts, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

Keith Mathis appeals his convictions and sentences for possession of a firearm by a violent career criminal (Count I) and possession of a firearm by a convicted felon (Count II). We affirm the conviction and sentence on Count I. But we agree with Mathis that double jeopardy bars his conviction and sentence for possession of a firearm by a convicted felon. Like the defendant in Pryor v. State, 48 So.3d 159 (Fla. 1st DCA 2010), Mathis cannot be punished for both firearm possession by a violent career criminal and firearm possession by a convicted felon. Section 775.021(4)(b)3., Florida Statutes (2007), provides that one can be convicted and sentenced “for each criminal offense committed in the course of one criminal episode or transaction,” except for “[o]f-fenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” Because possession of a firearm by a convicted felon is a lesser-included offense of possession of a firearm by a violent career criminal, see Williams v. State, 776 So.2d 358, 359 (Fla. 1st DCA 2001), and Mathis’ convictions arose from a single incident in which he possessed a rifle, the conviction for the lesser offense cannot stand. “Dual convictions in contravention of legislative intent are a violation of the constitutional prohibition against double jeopardy....” Pryor, 48 So.3d at 162. Accordingly, we vacate Mathis’ conviction and sentence on Count II, possession of a firearm by a convicted felon.

Mathis raises four other issues on appeal that present no reversible error by the trial court. But one issue — whether the trial court erred in denying a motion to suppress which alleged no voluntary consent for a warrantless search — merits brief discussion. The target of Mathis’ suppression motion was an assault rifle Alachua County Sheriffs deputies found in a shed next to the trailer Mathis’ girlfriend lives in. Mathis asserted that his girlfriend, Anethia Curtis, was so intimidated by the deputies’ show of force that her consent to their search of her home was involuntary.

At approximately 2:00 a.m. on February 10, 2007, the sheriffs office responded to an emergency call from Scott Baty, who was at a gas station and bleeding heavily from his head. Baty said he had tried to buy drugs from a man he knew only as “Sweat,” and that “Sweat” had struck him in the head with an assault rifle. Baty’s roommate William Freeburn had witnessed the incident and took deputies to the scene of the assault — Curtis’ trailer. As four armed deputies approached the trailer from outside the fence, Curtis saw them, and after some conversation about why the deputies were there and who they were looking for, allowed two deputies to search her trailer provided they left their rifles outside and that she would be able to accompany them as they searched. Mathis, who occasionally stayed overnight at his girlfriend’s home, and two other men were in the shed located near the trailer and inside the fence surrounding both structures. One of the men emerged from the shed and told deputies Mathis, a/k/a “Sweat,” was inside; Mathis was ordered out. Deputies saw drug paraphernalia in plain view in Curtis’ trailer but no rifle. When the lead deputy, Deputy Rowlands, asked Curtis if he could also search the shed, she told him to “go ahead.” During his initial search of the shed, he saw drugs and drug paraphernalia in the open, and a second, more thorough search yielded an AK-47 assault rifle and ammunition for the firearm.

“[T]he question whether a consent to search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Accord Cox v. State, 975 So.2d 1163, 1168 (Fla. 1st DCA 2008). Consent is involuntary if one’s “will [was] overborne and his capacity for self-determination critically impaired.” Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041. Our de novo review of the facts and circumstances, see Cox, 975 So.2d at 1166, leads us to conclude, as did the trial court, that Curtis was neither forced, nor coerced, nor intimidated into consenting to the search of her trailer and shed. She was awake and saw the four deputies, who were searching for an armed suspect accused of beating a man with an assault rifle, approach her home. She halted their advance before they could enter her fenced yard. The deputies thus remained a distance away from Curtis — indeed, she was inside the trailer — while they sought her consent to search her home. Notably, Curtis negotiated the conditions of the search by insisting that the deputies leave their rifles outside and that she accompany them while they searched. And she testified at the suppression hearing that she knew all the time she could withhold consent. It cannot reasonably be said on these facts that Curtis’ “capacity for self-determination [was] critically impaired.” Rather, she knowingly, voluntarily, and clearly with a great deal of thought, consented to the warrantless search of her home and shed.

AFFIRMED in part; VACATED in part.

WEBSTER and LEWIS, JJ., concur.


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    Mohammed SHOUMAN, Appellant, v. James M. ECKER, et al., Appellees.
    No. 3D09-3369.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 2011.
    Rehearing and Rehearing En Bane Denied March 8, 2011.

      Mohammed Shouman, in proper person.
    Stephens, Lynn, Klein, P.L., and Robert M. Klein, Miami, for appellee, Ecker; and Hirschhorn & Bieber and Joel Hirschhorn and Brian H. Bieber, Coral Gables, for appellee, Bieber.
    Before RAMIREZ, C.J., and GERSTEN and LAGOA, JJ.
   PER CURIAM.

Affirmed. See § 95.11(4)(a), Fla. Stat. (2004); Steele v. Kehoe, 747 So.2d 931, 933 (Fla.1999).


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    Carl MILLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4759.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    Carl Mills, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We hereby grant the petition for writ of mandamus. The circuit court shall rule on the pending motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, within a reasonable time, not to exceed 30 days from issuance of mandate in this cause. Because we are confident that the circuit court will issue a ruling, we withhold issuance of the formal writ.

DAVIS, HAWKES, and WETHERELL, JJ., concur.


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    Roosevelt CARROLL, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4478.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    Roosevelt Carroll, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Roosevelt Carroll, Jr., is hereby afforded belated appeal from the order of the Circuit Court for Bradford County denying postconviction relief in that court’s case number 2002-CF-319-A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, KAHN, and THOMAS, JJ„ concur.


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    Alonzo V. LIGHTSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4458.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    Alonzo V. Lightsey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Alonzo Lightsey moved to disqualify the presiding judge several months after he filed his motion for postconviction relief. The motion to disqualify was properly served and the judge did not rule on the motion within the time provided by Florida Rule of Judicial Administration 2.330(j). Under that rule, the motion is therefore deemed granted and petitioner is entitled to reassignment of his postconviction motion to a different judge. See Berube v. State, 978 So.2d 893 (Fla. 2d DCA 2008). We therefore grant the petition and quash the order which denied the motion for disqualification. The cause is remanded to the circuit court with directions that the motion for postconviction relief be reassigned to a different judge.

PETITION GRANTED.

WOLF, KAHN, and THOMAS, JJ., concur.


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    Timothy COOPER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5474.
    District Court of Appeal of Florida, First District.
    Jan. 19, 2011.
    Timothy Cooper, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the August 17, 2010, order which denied defendant’s motion for postconviction relief in Duval County Circuit Court case number 2006-CF-15334. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

DAVIS, HAWKES, and WETHERELL, JJ., concur.


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    Floyd Lee BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1859.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2011.
    Rehearing Denied March 7, 2011.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Kimbrell v. State, 764 So.2d 893 (Fla. 4th DCA 2000).

POLEN, CIKLIN and LEVINE, JJ., concur.


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    Gregory W. NEALY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6857.
    District Court of Appeal of Florida, First District.
    Jan. 20, 2011.
    Gregory W. Nealy, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, ROWE, and MARSTILLER, JJ., concur.


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    Lance HARTWELL, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, and Mark Redd, Warden of Suwannee C.I., Appellees.
    No. ID10-6047.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.

      Lance Hartwell, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

DISMISSED. See Miami-Dade County v. Peart, 843 So.2d 363 (Fla. 3d DCA 2003). Any remedy the appellant may have lies with the circuit court. Cf. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

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