author: STEVENSON, J. GROSS, C.J., FARMER, J.,

text:
    Robert HURT, Michael Weis, Kenneth Beck, Perry Brock and Randy Moore, Appellants, v. Mitchell I. KITROSER, as Personal Representative of the Estate of Rhina M. Castro Lara, Benigno Rodriguez, Individually, Gloria Rodriguez, Individually, and Felicita Lara, Individually, Appellees.
    No. 4D09-4685.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.

      Dinah Stein and Mark Hicks of Hicks, Porter, Ebenfeld & Stein, P.A., and Brad Redlien and Frank A. Zacherl of Shutts & Bowen LLP, Miami, for appellants.
    Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Steven G. Calamusa of Gordon & Doner, P.A., Palm Beach Gardens, for appellees.
   STEVENSON, J.

Appellants, all individuals and non-residents of Florida, challenge an order of the trial court denying their motions to quash service and to dismiss the wrongful death complaint filed against them for lack of personal jurisdiction. The complaint alleges that appellants were negligent while in Florida conducting business on behalf of their corporate employer. Because the so-called “corporate shield doctrine” is applicable, we must conclude that no personal jurisdiction exists over appellants and reverse.

The relevant jurisdictional facts are contained in the complaint and the uncontested affidavits. A commercial truck driven by Airgas Carbonic, Inc., employee Dale Dickey struck a car driven by Rhina Castro Lara, who was killed. Castro Lara’s estate and survivors filed a wrongful death action. The third amended complaint (hereinafter the “complaint”) named as defendants Airgas Carbonic, Inc., a foreign corporation; Dickey — the truck’s driver; and the appellants, non-resident Airgas employees Robert Hurt — the vice-president of distribution for Airgas’s Bartow, Florida, plant, Perry Brock — the Director of Safety for Airgas, Randy Moore — the safety manager for Airgas, and Michael Weiss and Kenneth Beck — managers of the Bartow facility. The complaint alleged that each of these men was responsible for training, or overseeing the training, of Air-gas drivers, including Dickey; that each had personally trained Dickey and had been physically present at the Bartow facility when they did so; and that each had reviewed Dickey’s performance while physically present in Bartow, Florida. The complaint asserted negligent training, supervision and retention claims against appellants.

The appellants each filed similar motions seeking to quash service of process and to dismiss the complaint, arguing that Florida’s corporate shield doctrine precluded the exercise of personal jurisdiction over a non-resident defendant sued personally, but whose contacts with the forum were initiated and performed for the benefit of his employer. The appellants filed affidavits in support of their motions, with each asserting that they resided in a foreign state, i.e., either Georgia or Texas; that they were at all material times acting within the scope of their employment and as agents of Airgas; that they worked at Airgas’s Georgia site; that they did not own, rent or lease any property in Florida, have any bank accounts in Florida, pay any Florida taxes, or hold any licenses issued by the state of Florida; that they had not conducted any personal business in Florida; and that they were not in Florida at the time of the accident. The appellants did not dispute that they had been physically present in Florida in connection with their obligations to train Air-gas drivers, including Dickey, as alleged in the complaint. The plaintiffs opposed the motions insisting that the corporate shield doctrine did not apply because the appellants committed the alleged negligent acts while physically present in Florida. After a hearing, the trial court denied the motions to quash service and to dismiss; this appeal followed.

We review de novo the trial court’s ruling on a motion to dismiss for lack of jurisdiction. See, e.g., Golant v. German Shepherd Dog Club of Am,., Inc., 26 So.3d 60, 62 (Fla. 4th DCA 2010). We believe it to be fairly clear that, unless precluded by the application of the corporate shield doctrine, the allegations of the complaint establish personal jurisdiction for each of the individual appellants in Florida’s courts. See § 48.193(l)(b), Fla. Stat.; see also Krilich v. Wolcott, 717 So.2d 582, 583 (Fla. 4th DCA 1998) (recognizing that “[t]he commission of a tort in Florida is sufficient to establish minimum contacts and satisfy federal due process concerns”). Thus, for the purpose of resolving the primary issue presented in this appeal, the proper scope and application of the corporate shield doctrine controls.

In Doe v. Thompson, 620 So.2d 1004 (Fla.1993), the Florida Supreme Court adopted the so-called corporate shield doctrine. There, after being sexually assaulted while working, a convenience store employee sued various officials of Southland Corporation, the company that owned and operated the convenience store, including president and CEO Jere Thompson. The plaintiff alleged Thompson had been grossly negligent in failing to take adequate security measures to make the store safe. Id. at 1004; see also Thompson v. Doe, 596 So.2d 1178, 1179 (Fla. 5th DCA 1992). Thompson, a Texas resident, alleged the Florida court lacked personal jurisdiction over him, filing an affidavit asserting that Southland was headquartered in Texas, that his office was in Texas, and that he never “personally” conducted business or committed a tort within Florida. Id. at 1181. Our supreme court affirmed the fifth district’s holding that Florida’s courts could not assert jurisdiction over Thompson.

In reaching its conclusion in Doe, the supreme court began its analysis with the two-step inquiry for establishing long-arm jurisdiction over a non-resident defendant: first, the complaint must allege sufficient jurisdictional facts to bring the action within one of the statutory requirements of Florida’s long-arm statute and, second, the defendant’s activities must constitute sufficient minimum contacts with Florida to satisfy federal due process concerns. 620 So.2d at 1005 (citing Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989)). The court found that the “statutory requirement, the first step in the Venetian Salami inquiry, was not met,” under either section 48.193(l)(a) (engaging in business in Florida), (b) (commission of a tort in Florida), or (f) (causing injury in Florida). Id. The Doe court reasoned:

“Personally” means: “In person; without the intervention of another.” The American Heritage Dictionary 926 (2d college ed. 1985). Thompson’s affidavit states that he did not personally do anything in Florida: he did not personally operate a business in Florida, commit a tortious act in Florida, or cause injury in Florida.... While Southland Corporation, which operates businesses in Florida, could be haled into court because of its minimum contacts, its chief executive officer is not by virtue of his position subject to personal jurisdiction.... Doe alleges that he was acting within the scope of his employment. The distinction between a corporate officer acting on one’s own and a corporate officer acting on behalf of one’s corporation is set out clearly in Bloom v. A.H. Pond Co., 519 F.Supp. 1162, 1170-71 (S.D.Fla.1981) (cited with approval in Kennedy v. Reed, 533 So.2d 1200, 1202 (Fla. 2d DCA 1988)). This distinction is recognized in many other jurisdictions; it is referred to as the “corporate shield” or “fiduciary shield” doctrine, [citation omitted]. “The rationale of the doctrine is ‘the notion that it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer.’ ” [Estabrook v. Wetmore, 129 N.H. 520, 529 A.2d 956, 959 (1987) ] (quoting Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 902 (2d Cir.1981)). We approve this distinction.

620 So.2d at 1005-06.

As recognized in Marine Midland Bank, N.A. v. Miller, 664 F.2d 899 (2d Cir.1981), which was quoted in Doe, the corporate shield doctrine does not imply that an individual who commits a tort while acting on behalf of his employer should be immune from personal liability; rather, it addresses whether such individual may be sued in a particular forum.

It is undisputed that an individual who commits a tort while acting in his capacity as a corporate officer or employee may be held personally liable....
... [TJhere is a dichotomy between the principles governing the personal liability of corporate agents for torts committed in their corporate roles and the principles governing the amenability of such agents to personal jurisdiction solely on the basis of those acts.... [I]f an individual has contact with a particular state only by virtue of his acts as a fiduciary of the corporation, he may be shielded from the exercise, by that state, of jurisdiction over him personally on the basis of that conduct. Thus, his conduct, although it may subject him to personal liability, may not form the predicate for the exercise of jurisdiction over him as an individual.

Id. at 902 (citations omitted).

In the instant case, it was undisputed that appellants were carrying out their duties on behalf of their corporate employer while they were present in Florida. “The corporate shield doctrine protects corporate agents from being subjected to Florida jurisdiction for acts performed while conducting business in Florida on behalf of a corporation.” Oesterle v. Farish, 887 So.2d 412, 415 (Fla. 4th DCA 2004) (refusing to apply corporate shield doctrine because non-resident defendant was alleged to have committed an intentional tort when negotiating a contract on behalf of his corporate employer while present in Florida). The rationale for the rule, i.e., that “it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his benefit but for the benefit of his employer,” is no less applicable because the individual performs those acts that solely benefit his employer while physically present in Florida. Doe, 620 So.2d at 1006. Consistent with the reasoning in Doe, appellants did not “personally” do any of the acts which would subject them to personal jurisdiction under Florida’s long-arm statute. Consequently, the statutory requirement, the first step of the Venetian Salami inquiry, was not met.

Accordingly, we reverse the order of the trial court and remand this cause with directions to vacate the order denying appellants’ motions to quash service of process and dismiss for lack of jurisdiction and to enter an order granting the same. Moreover, we certify to the supreme court the question stated in the special concurrence.

Reversed, and remanded.

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

FARMER, J., dissents with opinion.

GROSS, C.J.,

specially concurring.

I concur in the majority opinion because I believe its holding is truest to the version of the corporate shield doctrine adopted by the Florida Supreme Court in Doe v. Thompson, 620 So.2d 1004 (Fla.1993). However, I agree with Judge Farmer that this case involves something that Doe did not — the allegation here.is that the corporate agents actively committed acts of negligence in Florida, while in Doe the defendant was the president of a corporation, who had a residence and office outside of Florida and who was accused of negligence for “failing to take adequate security measures to make [a] store reasonably safe.” Id. at 1005.

In Doe, it appears that the Supreme Court adopted a version of the corporate shield doctrine described in Estabrook v. Wetmore, 129 N.H. 520, 529 A.2d 956 (1987) and Marine Midland Bank, N.A. v. Miller, 664 F.2d 899, 902 (2d Cir.1981). Doe, 620 So.2d at 1006. This doctrine “denies personal jurisdiction over an individual whose presence and activity in the state in which the suit is brought were solely on behalf of his employer or other principal.” Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir.1994). The “underpinning” of this iteration of the doctrine “is the notion that it is unfair to force an individual to defend a suit brought against him personally in a forum with which his only relevant contacts are acts performed not for his own benefit but for the benefit of his employer.” Marine Midland, 664 F.2d at 902. “The fiduciary shield doctrine is not a constitutional principle, but is rather a doctrine based on judicial inference as to the intended scope of the long arm statute.” Id. at n. 3.

Other federal circuits have departed from the approach to the fiduciary shield doctrine taken in Marine Midland. For example, the Sixth Circuit has held that

the mere fact that the actions connecting defendants to the state were undertaken in an official rather than personal capacity does not preclude the exercise of personal jurisdiction over those defendants. Hence, where an out-of-state agent is actively and personally involved in the conduct giving rise to the claim, the exercise of personal jurisdiction should depend on traditional notions of fair play and substantial justice; i.e., whether she purposely availed herself of the forum and the reasonably foreseeable consequences of that availment.

Balance Dynamics Corp. v. Schmitt Indus., 204 F.3d 688, 698 (6th Cir.2000); see also Columbia Briargate Co. v. First Nat’l Bank in Dallas, 713 F.2d 1052, 1064 (4th Cir.1983).

Given the disagreement over the proper application of the corporate shield doctrine, and the factual differences between Doe and this case, we certify the following question as being of great public importance:

WHERE AN INDIVIDUAL, NONRESIDENT DEFENDANT COMMITS NEGLIGENT ACTS IN FLORIDA ON BEHALF OF HIS CORPORATE EMPLOYER, DOES THE CORPORATE SHIELD DOCTRINE OPERATE AS A BAR TO PERSONAL JURISDICTION IN FLORIDA OVER THE INDIVIDUAL DEFENDANT?

FARMER, J.,

dissenting.

Plaintiffs alleged that while personally present in Florida these non-resident defendants committed negligent acts within this state injuring other persons here. They based jurisdiction over these nonresident actors on the part of the Florida long-arm statute, which specifies:

“Any person, whether or not a citizen or resident of this state, who personally ... does any of the acts enumerated in this subsection thereby submits himself ... to the jurisdiction of the courts of this state for any cause of action arising from ... committing a tortious act within this state.” [e.s.]

§ 48.193(l)(b), Fla. Stat. (2009). Again, plaintiffs alleged precisely these facts in their pleading: while each was present here they acted tortiously and injured plaintiffs.

A brief perusal demonstrates on the face of subsection (l)(b) that it requires actual presence in Florida during which one has committed a tortious act in this state resulting in injury to another person here. In this case, plaintiffs did not allege that defendants committed a negligent act in Florida through, or by reason of, the acts of an agent acting on their behalf in this state. It alleges that defendants themselves were here and acted tortiously within this state. As subsection (l)(b) makes clear, one can be sued here when one himself is personally present in Florida and commits negligence injuring another person here.

In Doe v. Thompson, 620 So.2d 1004 (Fla.1993), the supreme court held that a nonresident corporate agent, who had committed acts outside this state on behalf of the corporation, was not subject to subsection (l)(b), even though the corporation for whom the agent had acted could be sued here. There, defendant’s affidavit made clear he had never done anything in Florida and that all his acts on behalf of the corporation were done outside this state. The conduct alleged to support jurisdiction in Doe had been that while carrying out his corporate duties in Texas the agent had caused injury to someone in Florida.

An appellate decision must be understood to be based on — and limited to — the particular facts and circumstances on which it was decided. The entire basis for the corporate shield doctrine in Doe is that the corporate official had been outside Florida, acting only on behalf of the corporation, when in Texas he committed the negligent act that injured someone in Florida. The holding is manifestly that because of those circumstances he cannot be personally sued in Florida.

Doe is inapplicable to this case. Here the defendants themselves were personally present in Florida when they committed acts injuring other persons here. Nothing in subsection (l)(b) suggests that a defendant personally acting within Florida and causing injury here is outside our jurisdiction if he was acting for the benefit of another. The complaint alleges that their acts within the state were tortious. They are not being sued for out-of-state conduct traceable to injury in Florida. That is the significant difference between this case and Doe. Reliance on Doe necessarily adds new text to this part of the statute.

The argument is also made here that jurisdiction is lacking because defendants were acting in their capacity as agents. But it is especially well settled that agents are always liable for the torts they commit because:

“[I]t is almost universally held that the existence of a principal and agent relationship is immaterial, the tort liability of the agent not being based upon the existence of any contractual relationship between the agent and a principal but upon the common law obligation that every person must so reasonably act or use that which he or she controls as not to harm another. See 3 Am.Jur.2d, Agency § 809 (1986); Restatement Second of Agency § 343.”

Liberty Surplus Ins. Corp. Inc. v. First Indem. Ins. Serv. Inc., 31 So.3d 852, 856 (Fla. 4th DCA 2010); Sussman v. First Fin. Title Co. of Fla., 793 So.2d 1066, 1069 (Fla. 4th DCA 2001). Acting in a representative capacity does not give an agent license to act unreasonably to harm another.

The majority’s decision effectively extends the rationale of Doe to hold that even individuals who have personally committed acts within Florida are protected by a corporate shield. Their decision would pardon corporate agents who exceed authority or act in some way the corporation could disown. Absolutely nothing in the statute implies such a dispensation from liability for one’s own conduct. I therefore dissent.

      . The court in Doe recognized that there is a fraud or intentional misconduct exception to the corporate shield doctrine. 620 So.2d at 1006 n. 1.

      . Judge Posner has characterized Marine Midland as "an impaired precedent because it was an interpretation of New York law. and New York’s highest court later repudiated the entire doctrine” in Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460, 527 N.Y.S.2d 195, 522 N.E.2d 40, 44-47 (1988). Rice v. Nova Biomedical Corp., 38 F.3d 909, 912 (7th Cir.1994).

      . Notably, plaintiffs did not allege they were subject to jurisdiction because they, or their corporate employer, do business in this state.

      . See Ansin v. Thurston, 101 So.2d 808 (Fla.1958) ("A conflict of decisions ... must be on a question of law involved and determined, and such that one decision would overrule the other if both were rendered by the same court; in other words, the decisions must be based practically on the same state of facts and announce antagonistic conclusions”); City of Miami Beach v. Prevatt, 97 So.2d 473 (Fla.1957) (decision of supreme court necessarily based on existing facts): Miller v. Moylan, 72 So.2d 380 (Fla.1954) (rejecting cited authority because based on "dissimilar facts”); Henderson v. Boose, 142 Fla. 804, 196 So. 671 (1940) (trial court decision must be based on same facts to be within case authority cited).


source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    PAN AMERICAN WEST, LTD., and Pan American West Property Owners’ Association, Inc., Appellant/Cross-Appellees, v. CARDINAL COMMERCIAL DEVELOPMENT, LLC, Appellee/Cross-Appellant.
    No. 3D09-3349.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2010.

      Brian K. Goodkind, Miami; Yoss LLP and Stephen J. Smulowitz, Miami, and Janine N. Rucaba, for appellant/cross-appel-lees.
    Morgan, Lewis & Bockius and Derek E. León and Benjamin Weinberg, Miami; Erik W. Scharf, Coconut Creek, for appel-lee/cross-appellant.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

The defendant, Pan American West, Ltd. (“the owner”), appeals from a final summary judgment in favor of the plaintiff, Cardinal Commercial Development, Inc. (“the buyer”). The buyer cross-appeals from a final summary judgment in favor of the owner and Pan American West Property Owners’ Association (“the POA”). We affirm the trial court’s decision as to both the owner’s appeal and the buyer’s cross-appeal.

The Owner’s Appeal

This appeal centers on a dispute over a $1,078,110 deposit (“the deposit”). The buyer entered into a pre-development agreement to purchase a 16.5 acre lot (“the Property”) located within the owner’s industrial park (“the Park”). The deposit— representing ten percent of the purchase price — was placed in escrow upon execution of the agreement. The parties then executed an addendum to the agreement (“the first addendum”) which provides in relevant part as follows:

In the event that the Property does not contain at least 17,647.05 buildable square feet[] (as determined by Miami-Dade County standards) per acre of Property, the [buyer] shall have the right to terminate the Contract by providing written notice to [the owner] at least fifteen (15) days prior to Closing, whereupon all parties hereto shall be relieved from any further obligation under the contract and the deposit shall be refunded to the [buyer].

The parties do not dispute that 17,647.05 buildable square feet per acre were generally allocated to the entire Park. However, that general concurrency allocation was non-exclusive and subject to reduction if other developments in the Park consumed a greater per-acre share on a “first-come, first-served” basis. The closing date was set for April 30, 2008. On April 10, having discovered that no specific minimum allocation of concurrency had been recorded for the Property in the County’s records, the buyer notified the owner in writing that it was terminating the contract. The owner refused to release the deposit.

The buyer sued the owner for breach of the contract (“Count I”), arguing that in the first addendum, the buyer bargained for a specific allocation of concurrency. The trial court agreed and entered final summary judgment for the buyer on Count I. The owner’s appeal of that decision followed.

The trial court found that the first addendum was unambiguous and called for the Property, not the Park, to contain at least 17,647.05 buildable square feet per acre. Accordingly, the trial court determined that because the owner failed — as of April 10, 2008 — to specifically allocate the bargained-for level of concurrency to the Property, the buyer timely exercised its right to terminate the agreement and was entitled to a return of the deposit. The trial court also set forth an alternative basis for its decision, finding that even if the first addendum was ambiguous, the outside evidence supports the same conclusion. However, because we agree that the first addendum was unambiguous, we need not address the trial court’s alternative ruling.

“A contract is ambiguous when its language is reasonably susceptible to more than one interpretation, or is subject to conflicting interests.” Specialty Rests. Corp. v. City of Miami, 501 So.2d 101, 103 (Fla. 3d DCA 1987). Where a contractual provision is unambiguous, no issue of fact is presented as to the meaning of the language or the parties’ intent, and the moving party is entitled to judgment as a matter of law. Id.

The trial court ruled that the first addendum “unambiguously calls for the Property specifically, not just the Park, ” to be exclusively allocated a certain level of concurrency. However, as of the termination date, that specific allocation had not been made or filed with the County in any manner. The trial court also concluded that the alternative interpretations set forth by the owner were “inconsistent, contradictory, and irreconcilable with the plain terms” of the first addendum. We agree.

In executing the first addendum, the parties plainly bargained for an exclusive concurrency allocation specific to the Property, not the Park. However, the owner failed to make the necessary allocation by the date of the buyer’s termination of the agreement. Furthermore, because the owner failed to set forth a reasonable alternative interpretation of the language in the first addendum, the trial court properly ruled that the language of the first addendum was unambiguous, and that the buyer was entitled to judgment on Count I as a matter of law. We find no error in the trial court’s ruling that the owner’s affirmative defenses fail as a matter of law.

Thus, as to the owner’s appeal, we affirm the trial court’s decision in all respects.

The Buyer’s Cross-Appeal

The buyer’s complaint included six additional counts (for breach of an alleged Office Allocation Agreement, unjust enrichment, and negligent misrepresentation) against both the owner and the POA (“Counts II-VII”) based on the following events.

In the middle of 2006, after the execution of the first addendum, the buyer contacted the owner to explore the possibility of developing office space on the Property. To do so would require a large additional allocation of buildable square feet. The owner and the buyer exchanged a number of e-mails attempting to figure out how to obtain the increase in buildable square feet. The parties estimated that required pump station upgrades would cost approximately $100,000, but the buyer never promised to pay a specific amount, and the owner did not promise to deliver a specific, certain amount of additional concurrency. The buyer sent a $5,000 check to the owner to pay for a preliminary engineer’s study seeking to determine how to obtain the increase. Eventually, the owner obtained a general concurrency allocation with no additional cost required for pump station or other upgrades. No concurrency allocation was made specific to the Property.

Counts II and III allege that the above exchange of e-mails resulted in the formation of an enforceable Office Allocation Agreement, which the owner and the POA breached by failing to obtain a specific allocation of additional concurrency for the Property. The unjust enrichment claims, Counts IV and V, seek to recoup from the owner and the POA any increase in the value of the Park due to the increase in buildable square feet attributable to the buyer’s efforts. And finally, the negligent misrepresentation claims, Counts VI and VII, seek damages for falsely stating in the proposed declaration accompanying the signing of the agreement that each purchased lot would receive a specific concurrency allocation. The owner moved for, and obtained, final summary judgment on Counts II-VII. The buyer’s cross-appeal followed.

We agree with the trial court that the owner is entitled to judgment as a matter of law on Counts II-VII.

As to Counts II and III, we conclude that there was never a meeting of the minds, and the parties did not form a separate Office Allocation Agreement. The buyer never agreed to pay a fixed amount. In exchange for this unknown amount, the owner never agreed to obtain a fixed additional amount of concurrency. Neither party was required to perform these indefinite obligations upon or by a fixed date. Thus, the undisputed facts reveal that there was no enforceable separate contract, and summary final judgment was properly entered on Counts II and III. See Bankers Trust Co. v. Basciano, 960 So.2d 773, 777 (Fla. 5th DCA 2007) (holding that a contract cannot be created without “mutual assent to a certain and definite proposition”); Dows v. Nike, Inc., 846 So.2d 595, 602 (Fla. 4th DCA 2003) (“Where essential terms of an agreement remain open, and subject to future negotiation, there can be no enforceable contract.”).

As to Counts IV and V, we hold that the trial court correctly entered summary final judgment because the record is utterly devoid of any evidence that any efforts expended or amounts paid by the buyer resulted in an increase in the value of the Park. See Moynet v. Courtois, 8 So.3d 377, 379 (Fla. 3d DCA 2009) (noting that a cause of action for unjust enrichment requires that plaintiff has conferred a benefit upon defendant).

Finally, as to Counts VI and VII— the negligent misrepresentation claims— we hold that the trial court correctly determined that the owner was entitled to judgment as a matter of law. The negligent misrepresentation upon which the buyer claims to have relied, states in relevant part as follows: “In connection with the approval of the plat, each Lot has been assigned a capacity reservation in the affected public services and facilities based on the anticipated square footage and type of development for each Lot.”

The foregoing quotation was contained in the proposed, unrecorded declaration that was delivered to the buyer around the time of the execution of the agreement. By signing the agreement, the buyer expressly acknowledged that the owner’s delivery of the proposed declaration was made “without representation or warranty of any kind.” A proposed document is, by its very nature, unsettled and subject to future changes. And here, the proposed declaration was accompanied by an expressly acknowledged disclaimer of responsibility for any representations therein. Thus, we conclude that the buyer cannot establish that it justifiably relied on the contents of the proposed declaration. See Coral Gables Distribution, Inc. v. Milich, 992 So.2d 302, 303 (Fla. 3d DCA 2008) (providing that a showing of justifiable reliance is necessary to prove negligent misrepresentation).

In addition, Counts VI and VII are based on representations related to, and later made part of, the owner’s contractual obligations under the first addendum. Thus, the economic loss rule applies, and bars the buyer’s claims for negligent misrepresentation. See Concept Stores Miami, Inc. v. Bakery Assocs., Ltd., 990 So.2d 1118, 1118-19 (Fla. 3d DCA 2008); Taylor v. Maness, 941 So.2d 559, 564 (Fla. 3d DCA 2006); Straub Capital Corp. v. L. Frank Chopin, P.A., 724 So.2d 577, 579 (Fla. 4th DCA 1998). The trial court properly ruled that the owner was entitled to judgment as a matter of law on Counts VI and VII.

Conclusion

The trial court correctly determined that the language of the first addendum was unambiguous, and the buyer was entitled to judgment on Count I as a matter of law. Similarly, because the undisputed facts reveal that there was no enforceable separate Office Allocation Agreement, no unjust enrichment, and no grounds for an independent tort action based on negligent misrepresentation, the trial court properly entered summary final judgment for the owner on Counts II-VTI. The judgment of the trial court is affirmed.

Affirmed.

      . "Buildable square feet,” "capacity reservation,” and "concurrency,” are interchangeable terms used to describe the infrastructure requirements that must be in existence before a subdivision development can be approved.

      . We decline to specifically address the additional arguments made by the owner, as we find they are without merit.

      . In February 2008, after the alleged formation of the Office Allocation Agreement, the parties executed a second addendum which made no mention of the alleged Office Allocation Agreement.


author: PER CURIAM.

text:
    Royal HAYES, Appellant, v. Samuel J. ROGERS, John L. Rogers and Laura Rogers, Individually and as Trustees of the Mary June Rogers Trust Dtd. September 29, 1978, Appellees.
    No. 4D09-3230.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Rehearing Denied Jan. 18, 2011.
    Freeman W. Barner, Jr., and Brett C. Barner of Freeman Barner & Associates, P.A., Palm Beach Gardens, for appellant.
    Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., and Michael J. Pike of Burman, Critton, Luttier & Coleman, LLP, West Palm Beach, for appellees, Samuel J. Rogers and John L. Rogers.
   PER CURIAM.

Affirmed. See TeGrotenhuis v. Rice, 744 So.2d 1057, 1057-1058 (Fla. 4th DCA 1999).

STEVENSON, HAZOURI and DAMOORGIAN, JJ., concur.


author: STEVENSON, J.

text:
    Mary S. TOLAN and Danny Garza, Appellants, v. Douglas R. COVIELLO, Debra A. Coviello, Michael P. Elgar, Marjorie Dawn Johnson, Pamela Jaworski and Geico Indemnity Company, Appellees.
    Nos. 4D09-3597, 4D09-4147.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.

      Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, and Steven B. Phillips of Littky, Smith, Phipps, Casas & Phillips, P.A., West Palm Beach, for appellants.
    Rhea P. Grossman of Rhea P. Gross-man, P.A., Fort Lauderdale, for appellee Marjorie Dawn Johnson.
   STEVENSON, J.

This case stems from a summary judgment entered in favor of Marjorie Johnson, one of the defendants involved in a multiple-car rear-end collision. The driver of the leading car, Mary S. Tolan, and her son, Danny Garza, filed negligence suits against the driver of each of the cars behind them, i.e., Johnson, the driver of the car immediately behind Tolan; Coviello, the driver of the car behind Johnson; and Jaworski, the driver of the car behind Coviello. Johnson, the driver of the car immediately behind Tolan, asserted that the undisputed evidence established she brought her car to a stop behind Tolan and was then herself rear-ended and pushed into Tolan, and, thus, there was no negligence on her part that was a cause of the accident. Because there was record evidence that Johnson was negligent in placing her car abruptly between the Tolan and Coviello vehicles immediately prior to impact, we reverse the summary judgment entered in her favor.

Summary judgment is proper only where “[t]he facts ... [are] ‘so crystallized that nothing remains but questions of law’ ” and, in ruling on a motion for summary judgment, “ ‘the court must draw every possible inference in favor of the non-moving party.’ ” Cohen v. Cooper, 20 So.3d 453, 455 (Fla. 4th DCA 2009) (quoting Moore v. Morris, 475 So.2d 666, 668 (Fla.1985), and Edwards v. Simon, 961 So.2d 973, 974 (Fla. 4th DCA 2007)). It is true that the deposition testimony was to the effect that Johnson was able to stop her car behind Tolan, Coviello was able to stop his car behind Johnson, and, when Jaworski rear-ended Coviello, Coviello struck Johnson and pushed her into Tolan. It is also true, however, that the deposition testimony supports an inference that, while driving through an intersection, Johnson changed lanes right in front of Coviello and then suddenly stopped short, causing Coviello to slam on his brakes and stop short such that he was only six to twelve inches from Johnson’s car. The evidence offered in support of summary judgment thus failed to demonstrate that there was no negligence on the part of Johnson that was a cause of the accident or that the presumption of negligence attaching to Jaworski, as the rear driver, was unrebutted. Cf. McCloud v. Swanson, 681 So.2d 898, 900 (Fla. 4th DCA 1996) (finding “[a] reasonable inference” from the evidence was that “the [lead driver] defendant overtook the [rear driver] plaintiffs vehicle, quickly pulled into the lane in front of her, and then came to a sudden stop” and that such evidence precluded the entry of a directed verdict, based on the rear-end presumption, in favor of the defendant lead driver).

Reversed and Remanded.

GROSS, C.J., and FARMER, J., concur.


author: LEVINE, J.

text:
    Richard SCHUMAN, individually, Appellant, v. INTERNATIONAL CONSUMER CORPORATION, a Florida corporation, and Just in Sales Corp., a Florida corporation, Gregory Socherman, individually, STB Group International, Inc., a Florida corporation, Rodrigo Martin, individually, Inversiones Lainof JC S.A., a foreign business entity; Lower End S.A., a foreign business entity, and Probenic S.A., a foreign business entity, Appellees.
    No. 4D09-951.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.

      Bart A. Houston of Genovese Joblove & Battista, P.A., Fort Lauderdale, for appellant.
    Jeff Barnes of W.J. Barnes, Boca Raton, for appellees.
   LEVINE, J.

The issue presented is whether the trial court erred in denying a motion for relief from judgment without an evidentiary hearing. We find the trial court erred since the trial court should not have denied the motion without an evidentiary hearing where there was a “colorable” claim of entitlement to relief.

In 2005, appellees International Consumer Corp. and Just In Sales Corp. filed a complaint against appellant, claiming fraud in the inducement and constructive fraud, among other claims. Eventually, the case was set for a four-week trial docket beginning on January 5, 2009. Docket call was scheduled for December 19, 2008. Appellant’s attorney moved to withdraw, and the trial court granted the motion on December 18. The order granting the motion, which was mailed to appellant, provided appellant with “a reasonable time from the date of this order within which to retain new counsel.” On January 22, 2009, a new counsel for appellant filed a notice of appearance. A trial was held starting on January 26, 2009, with other defendants present. Appellant and his counsel were not present. Subsequently, a jury returned a verdict against the absent appellant for $340,000 in damages for actual fraud and $20,000 in damages for constructive fraud. The trial court entered the judgment against appellant, finding that he did not appear for trial despite receiving “proper notice.”

Appellant filed a motion for new trial and relief from the judgment, alleging that he did not receive notice of the trial. The counsel for appellant had just been retained and had not received any papers regarding the trial date. Further, prior counsel advised the new counsel only that there was an upcoming calendar call on this matter. The trial court denied appellant’s motion and this appeal ensues.

The trial court’s denial of the motion for relief from judgment pursuant to rule 1.540(b) is reviewed for abuse of discretion. Shiver v. Wharton, 9 So.3d 687, 690 (Fla. 4th DCA 2009). “A judgment is void if, in the proceedings leading up to the judgment, there is ‘[a] violation of the due process guarantee of notice and an opportunity to be heard.... Generally, due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered.’ ” Id. (citation omitted). Further, “[generally, a prior judgment, decree or order must be set aside where there is excusable neglect in the form of a litigant’s failure to receive notice of a pending hearing or trial.” Liberty Mut. Ins. Co. v. Lyons, 622 So.2d 621, 622 (Fla. 5th DCA 1993).

In the present case, appellant claims to have not received notice of the pending trial held in January 2009. Nothing in the record indicates that appellant received notice of the trial date. The prior counsel, who withdrew on December 18, never attended the docket call scheduled for December 19, and the new counsel did not submit a notice of appearance until Thursday, January 22, a mere four days before the commencement of trial on Monday, January 26.

We conclude that the trial court abused its discretion by failing to hold an evidentiary hearing on the motion for relief from judgment. “A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief.” Schleger v. Stebelsky, 957 So.2d 71, 73 (Fla. 4th DCA 2007) (quoting Smith v. Smith, 903 So.2d 1044, 1045 (Fla. 5th DCA 2005)). Clearly, in the present case, the motion for relief from judgment stated a claim of “colorable entitlement to relief’ that would require the trial court to conduct an evidentiary hearing before dismissing the motion. We reverse and remand for an evidentiary hearing.

Reversed and remanded for further proceedings.

HAZOURI and CIKLIN, JJ., concur.

      . The appeal from the final judgment was untimely. The motion for new trial did not suspend rendition of the final judgment, as it was served more than ten days after the verdict. The only issue for review is the motion for relief from judgment. A request for relief from judgment may be filed within one year after the final judgment is entered. Fla. R. Civ. P. 1.540(b).


author: SHEPHERD, J.

text:
    Karl JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-990.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2010.

      Karl Johnson, in proper person.
    Bill McCollum, Attorney General, and Lunar C. Alvey, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and SALTER, JJ.
   SHEPHERD, J.

This is an appeal from a summary denial of a motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which the defendant, Karl Johnson, seeks the restoration of 550 days of jail credit. Because the defendant signed an acknowledgement waiving all credit for time served, we affirm the trial court’s summary denial of his Rule 3.800(a) motion, but for the reason explained below do so without prejudice to his filing a Florida Rule of Criminal Procedure 3.850 motion to withdraw his plea if he so chooses.

This proceeding arises out of a probation violation proceeding. According to Johnson’s motion, the State offered him thirty-six months in state prison with credit for all time served and a judicial recommendation for participation in the Modality substance abuse program while serving the sentence to close the case. Johnson states he was agreeable to this resolution. Johnson next alleges that at sentencing, the trial court expressed the belief the defendant had to serve the full thirty-six months to be eligible for the Modality program. Based upon this representation, Johnson states he agreed to waive all credit for time served in order to preserve the opportunity.

The defendant now claims the Modality program was eliminated prior to his sentence and, even if the Modality program still existed, it only required an eighteen-month incarceration, rather than thirty-six months believed by the trial court. Johnson claims he was induced to waive his jail credit based upon a false assumption.

A sentence is illegal “if the terms or conditions of the punishment for a particular offense are impermissible as a matter of law.” Carter v. State, 786 So.2d 1173, 1181 (Fla.2001). In this case, the defendant’s sentence is not illegal because it was a certain term below the maximum sentence of ten years for two counts of child abuse, see § 827.03, Fla. Stat. (2006), with an express waiver of all credit for time served. Thus, the trial court properly denied the defendant’s motion to correct illegal sentence.

However, if the defendant’s allegations in his motion are true, the plea agreement may have been made upon a mistaken assumption. In such cases, the proper remedy is not to award the defendant credit for time served that he waived, but rather allow “the defendant [to] stand by the plea bargain as is, or [ ] withdraw his plea and proceed to a hearing on the original revocation of probation charges.” Rivera v. State, 954 So.2d 1216, 1218 (Fla. 3d DCA 2007) (citing Fulcher v. State, 875 So.2d 647, 650 (Fla. 3d DCA 2004)). Thus, we affirm without prejudice for the defendant, if he so chooses, to file a proper and timely Rule 3.850 motion to withdraw his plea. It appears the defendant is still within the two-year period to file such a motion. We express no view on the merits of any such motion.

Affirmed.


text:
    Daniel MICHEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1126.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 2010.
    Daniel Michel, in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before GERSTEN and SUAREZ, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Napolitano v. State, 875 So.2d 1290 (Fla. 3d DCA 2004).


author: MARSTILLER, J. PADOVANO, J.,

text:
    STATE of Florida, Appellant, v. Kayla Diane NOWLIN, Appellee.
    No. 1D10-0172.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.

      Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellant.
    Lisa A. Anderson of Lisa A. Anderson Law, Panama City, for Appellee.
   MARSTILLER, J.

Seventeen-year-old Kayla Diane Nowlin was at her home babysitting a neighbor’s two-year old daughter on March 9, 2009. She had been caring for the child for approximately two weeks while the child’s mother worked. Nowlin was under instruction by the mother not to keep the child in Nowlin’s home because she owned a pit bull. The dog had bitten another neighborhood child in October 2008, although the two-year-old in Nowlin’s care had been around the dog several times without incident. At some point on March 9, Nowlin and the child left Nowlin’s home. Upon returning, Nowlin opened the front gate to her fenced yard, placed the toddler on the ground, and walked ahead of her toward the front door of the house. Moments later Nowlin heard the child screaming and turned around to see the pit bull mauling her. A passer-by was able to extricate the baby from the dog’s grip, and she was taken to the hospital to treat her significant injuries.

The State charged Nowlin with neglect of a child causing great bodily harm, a second-degree felony under section 827.03(3)(b), Florida Statutes (2009). Nowlin moved to dismiss the charge pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), and the trial court granted the motion. The court determined Nowlin cannot be held criminally liable for child neglect because she was a juvenile when the dog attack occurred and thus was not a “caregiver” as defined in chapter 39, Florida Statutes. The court also found the facts do not show that Nowlin’s conduct constitutes culpable negligence. Reviewing the dismissal de novo, see State v. Sholl, 18 So.3d 1158, 1160 (Fla. 1st DCA 2009), we conclude the trial court incorrectly relied on the definition of “caregiver” in chapter 39, and that the undisputed facts create a jury question precluding the granting of Nowlin’s motion to dismiss.

Under Rule 3.190(c)(4), a criminal charge can be dismissed if “[tjhere are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the defendant.” As we explained in Sholl, supra:

To avoid dismissal under Rule 3.190(c)(4), the State must present sufficient facts that, when viewed in a light most favorable to the State, show a reasonable jury could find in its favor. See State v. Termo, 997 So.2d 1174, 1177-78 (Fla. 3d DCA 2008) (stating the State is entitled to the most favorable construction of the facts possible); State v. Ortiz, 766 So.2d 1137, 1141-42 (Fla. 3d DCA 2000) (stating that when considering a Rule 3.190(e)(4) motion, “the [Sjtate is entitled to the most favorable construetion of the evidence with all inferences being resolved against the defendant”).

18 So.3d at 1160. Nowlin was charged with child neglect causing great bodily harm under section 827.03(3), which provides in pertinent part:

(3)(a) “Neglect of a child” means:
1. A caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child; ...
Neglect of a child may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.
(b) A person who willfully or by culpable negligence neglects a child and in so doing causes great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 827.03(3), Fla. Stat. (2009). As used in chapter 827, a “caregiver” is “a parent, adult household member, or other person responsible for a child’s welfare.” § 827.01(1), Fla. Stat. (2009).

In its Order Granting Defendant’s Motion to Dismiss, the trial court determined the “other person responsible for a child’s welfare” portion of the definition of “caregiver” in section 827.01(1) “does not encompass the seventeen (17) year old Defendant in this case.” Without articulating a reason, the court looked to section 39.01(47), Florida Statutes (2009), which for purposes of chapter 39 defines “other person responsible for a child’s welfare” to include “an adult sitter ... entrusted with a child’s care.” The trial court concluded “[t]he clear language of [section 39.01(47) ] requires that a babysitter be an adult in order to be responsible under [section 827.03(3) ] to the victim in this case.” The court further found that although the facts showed Nowlin knew her dog had previously bitten a small child, she could not be liable under section 767.13, Florida Statutes, for the acts of her dangerous dog since one must be an adult to be a responsible dog “owner” under section 767.11(7). And “[t]here are no other facts to show that the act of allowing a two (2) year old child to walk on her own for a period of ten (10) seconds would constitute ‘culpable negligence’ ” under section 827.03(3)(b).

Neither chapter 39 nor chapter 827 reveals a legislative intent that terms common to both chapters be defined according to chapter 39. Cf. Agency for Persons with Disabilities v. Dallas, 38 So.3d 831, 834 (Fla. 1st DCA 2010) (noting that chapter 916, Florida Statutes, which provides procedures for dealing with mentally incompetent criminal defendants, expressly imports definitions from chapter 393 governing treatment and support services for persons with developmental disabilities in non-criminal settings). Indeed, “there is no need to refer to the section 39.01(47) definition of ‘other person responsible for a child’s welfare’ in considering a neglect charge under section 827.03.” State v. Christie, 939 So.2d 1078, 1079 (Fla. 3d DCA 2005). In Christie, a public school teacher was charged under section 827.03(3)(a) with child neglect with no bodily harm, and the trial court dismissed the charge, relying on the definition in section 39.01(47), which the appellee argued did not cover public school teachers. The Third District found the trial court’s application of section 39.01(47) to the criminal child neglect statute in error:

Contrary to the trial court’s conclusion, there is nothing vague or ambiguous about the phrase “other person responsible for a child’s welfare.” Thus, because the statute’s language is clear and unambiguous, the statute must be given its “plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). The plain and obvious meaning of “caregiver” has been applied to neglect prosecutions under 827.03(3). Durand v. State, 820 So.2d 381 (Fla. 5th DCA 2002).

Id. “[B]ecause the phrase ‘other person responsible for a child’s welfare’ has a plain and obvious meaning in everyday parlance, there is no need to resort to the statutory definition given in section 39.01(47)....” Id. at 1080. Cf. DuFresne v. State, 826 So.2d 272 (Fla.2002) (reading chapter 39 in pan materia with section 827.03 to supply a definition for “mental injury” where the term is not defined in chapter 827 and the statute was challenged as unconstitutionally vague).

The language at issue in Chnstie is equally plain and unambiguous when applied to Nowlin, and the phrase “other person responsible for a child’s welfare” is not on its face limited to persons over eighteen years of age. To be sure, a juvenile can be prosecuted for child abuse under section 827.03. See K.B.S. v. State, 725 So.2d 448, 449 (Fla. 2d DCA 1999) (holding the State could bring a petition for delinquency against a fourteen-year-old for child abuse under section 827.03(1) because the statute penalizes “a person who knowingly or willfully abuses a child” and “the legislature did not place an age-based restriction on these types of prosecutions”). And nothing in section 827.03 supports drawing a distinction between child abuse and child neglect to exempt a seventeen-year-old from criminal liability for the latter.

Thus, the question properly put is not whether a juvenile can be prosecuted for child neglect, but whether the undisputed facts in this case demonstrate Now-lin was “responsible for a child’s welfare.” According to the State’s traverse, Nowlin had been the child’s sitter for two weeks before the pit bull mauling, and the hours of the day during which she watched the child varied depending on the mother’s work schedule. Viewing the facts and inferences most favorably to the State as we must on a motion to dismiss, see Sholl, we find the State made a prima facie showing that Nowlin regularly, if not daily, took care of the two-year-old victim while the mother was at work, and was entrusted with and responsible for the child’s care and welfare during those times. We note, however, that the State need not in every prosecution for child neglect show long term or regular babysitting responsibility to establish a defendant’s status as a caregiver under section 827.01(1).

Turning to whether the State has made a prima facie showing of culpable negligence on Nowlin’s part, the undisputed facts must demonstrate her reckless indifference or grossly careless disregard for the safety of the two-year-old child in her care. See State v. Greene, 348 So.2d 3, 4 (Fla.1977). But “it is well-established that if, based on the undisputed facts, a jury question exists a [Rule 3.190](c)(4) motion to dismiss should not be granted.” State v. Franchi, 746 So.2d 1126, 1128 (Fla. 4th DCA 1999). Here the undisputed facts show Nowlin’s pit bull had bitten another small child six months before it attacked the two-year-old victim in this case; Nowlin knew about the prior incident and even signed paperwork required by animal control, listing herself as the dog’s owner; the victim’s mother directed Nowlin that because of the dog, she was to care for the child in the child’s home and not in Nowlin’s home; Nowlin nonetheless took the child home with her and, instead of carrying the child through the yard where the pit bull was, she put the child on the ground to walk approximately twenty feet on her own to the front door. Within seconds, and after Nowlin had turned her back and begun to move toward the door expecting the toddler to follow her, the pit bull attacked. We find these facts establish a prima facie showing of culpable negligence by Nowlin. The facts also show, however, that on several prior occasions the child had played with the dog and it had not displayed aggression or hostility toward her. In our view, this creates a jury question as to whether Nowlin displayed recklessness or careless disregard for the victim’s safety. As such, the trial court should not have granted Nowlin’s motion. For this reason, and because the trial court incorrectly relied on the definition of “caregiver” in chapter 39, we REVERSE the Order Granting Defendant’s Motion to Dismiss.

HAWKES, J., concurs.

PADOVANO, J., Dissents with Opinion.

PADOVANO, J.,

dissenting.

I respectfully dissent. The text of section 827.03(3)(b), does not provide adequate notice that a child may be held criminally liable for the negligent care of another child. One possible reading of the statute is that it creates potential criminal liability only for an adult who is caring for a child. Because the statute is ambiguous, the rule of lenity compels us to affirm the dismissal of the charges against the child who was the defendant in this case.

Section 827.03(3)(b) provides that a caregiver who neglects a child and thereby causes great bodily injury to the child is guilty of a second-degree felony. The term “caregiver” is defined in section 827.01(a) as “a parent, adult household member, or other person responsible for a child’s welfare.” The first two classes of defendants listed in the statute are very specific and the third is very general.

The first class is limited to “parents” and thus it includes only those who already have a legal obligation to care for the child. This part of the statute might be construed to apply to a defendant who is a child, but only if he or she is the parent of the child who is the victim. The second class of potential defendants is limited to “adult household members” who are responsible for the care of the child. If we consider the language the legislature used in this part of the statute, a child who is a member of the household cannot be subjected to criminal liability for the negligent care of another child. The household member who is the defendant must be an adult. In contrast, the third class of potential defendants is very general, in that it could include any “other person,” who is responsible for the child’s welfare.

If we were to construe this third class too literally, as I believe the majority has done, it could be applied in any case, regardless of the age of the person named as the defendant and regardless of the age of the child named as the victim. Given its most literal meaning, the phrase “other person” could include a defendant who is five years old. Furthermore, the five-year-old defendant could face criminal liability, even if it were alleged that he or she negligently cared for a seventeen-year-old child. The statute defines a “child” as a person who is under the age of eighteen. See § 827.01(2), Fla. Stat.

I do not think that the court can reasonably interpret the phrase “other person” in its most literal sense to mean any person, regardless of his or her age or relationship to the victim. The problem with such an interpretation is that it renders the rest of the statute meaningless. It would have been pointless for the legislature to say that the statute can be applied to a parent if, in fact it can be applied to anyone regardless of his or her familial or biological relationship to the victim. Likewise, it would have been pointless for the legislature to say that the statute can be applied to a household member, provided that he or she is an adult, if in fact it can be applied to anyone at all, even a person who is not an adult or a member of the household.

The general phrase “other person” necessarily draws some meaning from the specific phrases that precede it in the statute. Yet the majority construes this phrase in isolation, as if it were not connected with the rest of the sentence in which it appears. If the majority is correct, the statute could be rewritten to simply say that any person who negligently cares for a child and thereby causes great bodily harm to the child is guilty of a crime.

For these reasons, I believe that the trial court was correct in dismissing the charge in this case and that the dismissal should be affirmed. In my view, the statute does not give fair notice that a child may be held criminally liable for the negligent care of another child. Because the meaning of the phrase “other person” is ambiguous, I would give the defendant the benefit of the doubt.


text:
    Dennis T. HUTTO, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3784.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.
    Dennis T. Hutto, pro se, Appellant.
    Bill McCollum, Attorney General, and Thomas H. Duffy, Assistant Attirbet General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant has filed a facially sufficient rule 3.800(a) motion stating that in November 2009 he was arrested for driving while license suspended or revoked, and thereafter entered into a negotiated plea agreement with the state which called for a sentence of 18 months’ imprisonment. He scored 14.1 points on his guidelines scoresheet. The court sentenced him to 18 months’ imprisonment. The appellant states that the court did not make any findings that he could be a danger to the public if the court did not sentence him to prison, and the record does not contain any such written findings.

In the instant motion the appellant argues that his sentence is illegal because, for the reason set forth below, he should have been sentenced to a nonstate prison sentence based upon his score of 14.1 points. The trial court denied the motion without any analysis or record attachments.

The appellant bases his illegal sentence claim on the fact that section 775.082(10), Florida Statutes (2009), which took effect just prior to the appellant’s arrest, states that anyone who commits a crime:

on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a nonstate prison sanction. However, if the court makes written findings that a nonstate prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

As noted, the appellant scored 14.1 points on his scoresheet, and the record before this Court does not contain any written findings from the lower court that the appellant could present a danger to the public if not sentenced to prison. It thus appears from the record that the appellant should have been sentenced to a nonstate prison sentence.

We therefore reverse and remand the order on appeal for the lower court to either attach record documents conclusively refuting the appellant’s claim or for further proceedings. See e.g., West v. State, 818 So.2d 637 (Fla. 1st DCA 2002).

REVERSED AND REMANDED.

VAN NORTWICK, LEWIS, and CLARK, JJ., concur.


text:
    Billy LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3272.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The appellant was convicted of attempted robbery with a firearm, aggravated assault with a firearm, armed kidnapping with a firearm, and resisting arrest with violence. The only issue we discuss is whether the trial court erred in failing to grant the motion for judgment of acquittal on the charge of armed kidnapping. We find that the -trial court erred and should have granted the judgment of acquittal. The evidence demonstrated that the appellant’s actions, which formed the basis of the armed kidnapping, were slight, inconsequential, and merely incidental to the charge of armed robbery. Although we affirm on all the other counts, we reverse the conviction for armed kidnapping and remand for further proceedings.

In 2004, the appellant entered a check cashing store in Hollywood and told the manager, Dorothy McReynolds, that he was robbing the store. The appellant pulled out a gun, took McReynolds to a bathroom, placed her in handcuffs, and threatened to shoot her. The appellant went to lock the front door, and while he stepped away, McReynolds hit a silent panic button. The appellant then returned and took McReynolds to the counter, told her to lie down on the floor, and asked for the combination to the safe. McReynolds gave the appellant the incorrect combination to the safe, and when the appellant entered those wrong numbers, a ten-minute delay period was triggered before another combination could be entered. The appellant then threatened McReynolds that she should give him the correct numbers to the safe, or the appellant would “blow [her] away.”

At this point, another woman came to the store, and the appellant opened the door for her. The appellant relocked the door and told the woman, Julissa Rios, that it was a hold-up. The appellant pointed a gun at Rios and ordered her to lie on the floor next to McReynolds. The appellant told Rios that what he wanted was in the safe, and he repeated his demands for McReynolds to open the safe. The appellant threatened McReynolds by saying he knew where she lived and by reciting her home address.

The police arrived at that point and telephoned the store. The appellant answered and said that everything was fine. The appellant wanted McReynolds to tell the police that the situation was normal, but he could get only one handcuff off of McReynolds. Instead, he told Rios to go to the police and tell them everything was fine. Rios ran out of the store and told police that the appellant was inside with a gun and another woman in handcuffs. Officers surrounded the building, and the appellant ran into the bathroom. When McReynolds heard a crash in the bathroom, she ran out of the store. The appellant escaped from the store by climbing through the ceiling, and police found him hiding in a neighboring building a short time later.

A motion for judgment of acquittal is reviewed de novo on appeal. Jones v. State, 869 So.2d 1240, 1242 (Fla. 4th DCA 2004). The sole issue we discuss is whether the constraints placed by the appellant on McReynolds were sufficient to constitute the separate and distinct crime of kidnapping. The Florida Supreme Court adopted in Faison v. State, 426 So.2d 963 (Fla.1983), a three-part test for determining whether a defendant’s actions during the commission of another felony would also constitute a separate and distinct crime of kidnapping. The court explained, in pertinent part, as follows:

[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnapping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.

Id. at 965 (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)).

The act of moving a victim from one room to another during the course of a robbery is insufficient to establish a kidnapping separate and distinct from the robbery. In Wilcher v. State, 647 So.2d 1013 (Fla. 4th DCA 1994), the defendant entered a store at gunpoint and ushered employees into a room fifty to sixty feet from the front of the store. The employees were forced to lie on the floor while the manager was taken to the front of the store to open the safe. The court found that the alleged kidnapping was incidental to the robbery and insufficient to establish a separate kidnapping charge. To reach this conclusion, this court relied on the Florida Supreme Court’s decision in Walker v. State, 604 So.2d 475 (Fla.1992), where the defendant ordered four occupants of a store during a robbery to move approximately forty feet to the back of the store. The supreme court held that the evidence was insufficient to sustain a conviction for kidnapping, as the “limited movement and confinement of the four occupants within the interior of the store were not significant.” Id. at 477.

Further, a kidnapping charge cannot stand where the victim’s confinement ceases when the accompanying crime ends. In Russell v. State, 874 So.2d 1256 (Fla. 4th DCA 2004), a clerk was standing outside of a convenience store when the defendant and an accomplice approached and pulled the clerk back inside the store by his shoulders. The clerk opened the safe and the cash drawer, and the defendant and his accomplice fled. The court held that this act was insufficient to support a kidnapping conviction, finding that the “confinement was the sort of confinement likely to naturally accompany the underlying crime.” Id. at 1259. By contrast, in Berry v. State, 668 So.2d 967 (Fla.1996), the Florida Supreme Court held that a confinement was not “slight, inconsequential, and merely incidental’^ to the other crime where the robbers did not untie the victims when they left the scene. The court acknowledged, however, that “any confinement accompanying [a] robbery” would be incidental if it “cease[d] naturally with the robbery.” Id. at 969.

In the present case, the appellant ordered McReynolds into a different room of the store, the bathroom, so that the appellant could lock the front door. Shortly thereafter, the appellant ordered McReynolds to lie on the floor by the safe. The appellant eventually also unlocked one of the handcuffs on McReynolds so that neither victim was bound or barricaded when the appellant fled the store. McRey-nolds’s confinement “ceased naturally” with the end of the robbery, as she was free to exit the store when the appellant climbed through the bathroom ceiling.

In conclusion, the evidence as it related to the kidnapping did not satisfy the “test enunciated in Faison and the trial court erred in denying the motion for judgment of acquittal on the kidnapping charge.” Russell, 874 So.2d at 1259. We therefore reverse the appellant’s kidnapping conviction and remand for further proceedings. We affirm as to all other counts.

Affirmed in part; reversed in part; remanded.

HAZOURI, and CIKLIN, JJ„ concur.


author: GROSS, C.J.

text:
    Jay WALLSHEIN, M.D., Appellant, v. Richard G. SHUGARMAN, M.D., Appellee.
    No. 4D10-211.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Rehearing Denied Dec. 30, 2010.
    Robert I. Chaskes, llana Tabacinic, and Ryan Roman of Akerman Senterfitt, Miami, for appellant.
    Patrick J. Casey of Casey, Ciklin, Lu-bitz, Martens & O’Connell, West Palm Beach, for appellee.
   GROSS, C.J.

We affirm the circuit court’s order compelling arbitration.

Dr. Richard Shugarman went to work for the Palm Beach Eye Center in 2005. The two parties entered into a Professional Employment Agreement. The Agreement contains an arbitration clause, which stated in pertinent part:

16. ARBITRATION. All controversies arising out of or connected with this Professional Employment Agreement, including any of its terms or conditions, the transactions contemplated hereby, or the alleged breach or enforceability of any of its terms or conditions, and including any controversy as to whether or not such dispute is arbitrable, shall be settled by arbitration....

A numbered paragraph within the Agreement provided that Dr. Jay Wallsh-ein, the president of the Center, would act as its guarantor:

26. GUARANTEE. As an inducement to Employee’s entry into this Agreement and as a continuing condition of Employee’s performance hereunder, the undersigned Guarantor, Jay Wallsh-ein, M.D. agrees to execute this Agreement as Guarantor and guarantee payment and performance of all obligations of the Corporation hereunder to and for the benefit of the Employee.

Wallshein signed the Agreement twice. First, as the Center’s president. And, separately, as the Center’s “guarantor.” These two signatures appear along with Shugarman’s at the end of the Agreement.

The Center terminated Shugarman’s employment in 2007. Thereafter, Shugar-man demanded arbitration against both the Center and Wallshein. His arbitration demand alleged that the Center violated its Employment Agreement with him and that Wallshein breached his written guaranty by failing to pay the amounts the Center failed to pay.

From the circuit court, Wallshein sought a declaratory judgment that he was not required to arbitrate because he had no agreement to do so with Shugarman.

Responding to Wallshein’s action, Shu-garman sought to compel arbitration, arguing that as the Center’s guarantor, Wallshein was bound by the arbitration provision of the Agreement. After a brief hearing, the circuit court granted Shugar-man’s motion to compel arbitration. It found that Shugarman and Wallshein had both signed the Employment Agreement, so that a valid and binding arbitration agreement existed, and concluded that as the guarantor of the Center’s obligations, Wallshein was bound by the arbitration provision.

Wallshein contends the circuit court erred in compelling him to arbitrate because, as a guarantor, he was not a party to the Employment Agreement and thus, was not subject to the arbitration clause. He relies upon the Agreement’s language, and also makes the subjective argument that, as a guarantor, he did not intend to agree to arbitrate.

We reject Wallshein’s arguments. The language of the Employment Agreement compelled Wallshein to arbitrate in his capacity as a guarantor. Because the language of a contract is viewed objectively to determine its scope, Wallshein’s after-the-fact reliance on his subjective intent in signing the Agreement as a guarantor does not alter the meaning of the Agreement.

We review a trial court’s order compelling arbitration de novo. See Powertel, Inc. v. Bexley, 743 So.2d 570, 573 (Fla. 1st DCA 1999). “[Tjhere are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). Here, the parties dispute only the first element — whether a valid agreement to arbitrate exists between Shugarman and Wallshein, as guarantor.

In interpreting an arbitration agreement, courts resort to traditional rules of contract interpretation. See id. Thus, “the determination of whether an arbitration clause requires arbitration of a particular dispute necessarily ‘rests on the intent of the parties.’ ” Id. (quoting Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1352 (11th Cir.1982)). The parties’ intent is best reflected by the plain language of the agreement. BallenIsles Country Club, Inc. v. Dexter Realty, 24 So.3d 649, 652 (Fla. 4th DCA 2009). “The arbitration clause must be read together with the other provisions in the contract.” Id. (citation omitted). Shugarman’s subjective intent is not material in determining the meaning of the Employment Agreement. As the Florida Supreme Court wrote in Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957), quoting Justice Oliver Wendell Holmes:

The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not on the parties having meant the same thing but on their having said the same thing.

(quoting Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 464 (1897)).

Here, the plain language and organization of the Employment Agreement demonstrate that Wallshein was bound by the arbitration clause. The guaranty was a numbered paragraph within the Agreement, not a separate contract altogether. Wallshein agreed to “execute this Agreement” as a guarantor and “guarantee[d] payment and performance” of all of the Center’s obligations under it, objectively indicating Wallshein’s intent to be bound by the entire Agreement, not just one paragraph of it. Wallshein’s liability under the guarantee is a “controvers[y] arising out of or connected with” the Employment Agreement within the meaning of the arbitration clause.

Asserting that the Agreement’s arbitration clause does not bind him, Wallshein relies primarily on Sitarik v. JFK Medical Center Limited Partnerships, 7 So.3d 576, 577-78 (Fla. 4th DCA 2009), where we held that an anesthesiologist was not a party to an arbitration clause in a professional services agreement. The anesthesiologist had signed the agreement not as a party, but as a “Contractor’s Representative” in an addendum. Id. at 578. The arbitration clause in Sitarik bound “parties” to the agreement and we found that the agreement did not define a “Contractor’s Representative” as a “party.” Id. at 578-79. Sitarik is thus distinguishable from this case, because it involves a different contract and dissimilar operative language.

Wallshein next argues that the circuit court erred because it did not conduct an expedited evidentiary hearing pursuant to section 682.03, Florida Statutes (2007). Subsection 682.03(1) provides that a party to an arbitration agreement may apply to a court for an order compelling a reluctant party into arbitration. That subsection describes the procedure the court must follow in considering the party’s application:

If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

Florida courts have interpreted this statutory procedure as contemplating “an expedited evidentiary hearing.” Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127, 128-29 (Fla. 4th DCA 1982).

However, an evidentiary hearing is required only when “a substantial issue is raised” as to the making of the arbitration agreement. Linden v. Auto Trend, Inc., 923 So.2d 1281, 1288 (Fla. 4th DCA 2006). The circuit court “will decide if there is a disputed issue before setting the expedited evidentiary hearing.” Id. at 1282-83; see also Affinity Internet, Inc. v. Consol. Credit Counseling Servs., Inc., 920 So.2d 1286, 1289 (Fla. 4th DCA 2006) (holding that the trial court did not err in denying a motion to compel arbitration without holding an evidentiary hearing, because “no factual issues were in dispute and the issue of whether a valid arbitration agreement existed was a matter of law”).

Here, Wallshein identified no issue to the circuit court that required an eviden-tiary hearing. The interpretation of the Employment Agreement was a question of law, not one of fact. The Agreement was not ambiguous, so there was no need for the circuit court to consider extrinsic evidence about the parties’ intent. What Wallshein subjectively believed when he executed the Agreement as a guarantor had no bearing on the application or interpretation of the arbitration clause.

Affirmed.

FARMER and STEVENSON, JJ., concur.


author: POLEN, J.

text:
    STATE of Florida, Appellant, v. Eddie WATANA, Appellee.
    No. 4D09-4176.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellant.
    Gene Reibman, Plantation, for appellee.
   POLEN, J.

The State appeals an order suppressing evidence. We affirm, finding that the record supports the trial court’s determination that there was no voluntary consent.

Around 3:00 a.m. on the morning in question, Fort Lauderdale Police Sergeant Florenco stopped defendant for “careless driving.” According to Florenco, defendant’s vehicle was traveling between 90 and 100 miles per hour over the 17th Street bridge, and was crossing all lanes of traffic. Defendant did not pull over immediately, but proceeded a short distance and parked behind a closed business. Floren-co said this was “very unusual,” because “there was [sic] ample places to pull over on 17th Street.” As defendant sat in the driver’s seat, Florenco, who was in uniform, asked for defendant’s license and registration. Defendant was “extremely nervous,” and kept looking around and over his shoulder. He “was very distracted” as the officer was talking to him, picking up items in the car not relevant to the traffic stop, and was sweating “profusely.” Florenco testified:

Based on [defendant’s] behavior and his actions, his erratic motions, his failure to interact as if it was just a routine traffic stop, it led me to believe that something more had occurred in the car. I didn’t know what it was at that time. It was merely suspicious behavior.

(emphasis added). In response to this suspicion, Florenco did not cite defendant for careless driving as he had originally intended, but asked defendant to step out of his vehicle. Florenco claimed he then asked for permission to search defendant’s person, and that defendant complied, never resisting or withdrawing his consent. When asked whether he had reason to believe defendant had any weapons, Flo-renco testified, “I just had a heightened suspicion.” Florenco put his hand inside of defendant’s right front pocket and pulled out a small baggy containing cocaine residue. Defendant moved to suppress the cocaine, alleging in part that it was obtained during an unlawful detention and that he did not consent to the officer’s request to search, but rather, acquiesced to his authority.

Defendant testified at the suppression hearing. He did not remember exactly how fast he was driving that night, but it was not 90 to 100 miles per hour. He was nervous when he saw the police car behind him because it was 3:00 a.m., and he was out later than he had told his wife. Defendant looked for a safe spot to pull over. When he saw the officer approaching his vehicle, he rolled down his window. He presented his license, registration and insurance, upon the officer’s request. When the officer returned shortly thereafter, he told defendant to step out of the vehicle. Defendant complied. He did not know he had the option to say “no.” The officer asked defendant to go to the back of the police vehicle and turn around. Then “he just started searching” defendant. Prior to that, the officer never told defendant what he was doing. Defendant thought the officer might give him a sobriety test. The officer did not point a gun at him, threaten him or make any promises to him.

When the State asked defendant if he had consented to the search, the following colloquy ensued:

A It was not really a consent. It was get out of your vehicle, come to the back, turn around.
Q Did he ask?
A It was free flowing.
Q It was a couple of minutes?
A Yes. Everything. It was not long before I was in the police vehicle.

Defendant testified that the officer did not ask for permission to search him.

The trial court ruled that, although defendant was properly stopped for speeding, he did not give the officer consent to search his person. The court found that, any consent given was a submission to authority and not voluntary, stating:

I find that under the circumstances, the defendant — a reasonable person when asked to exit, would not believe that he had or when even being asked to be searched, under the totality of circumstances that the Court heard, would not believe that he had the ability to decline the request of the law enforcement officer .... [T]he police had his license. I find that the officer — this was not a pleasant conversation. This was ... serious. The officer was heightened to what he viewed as the defendant stopping in an unusual location and that he simply was not nicely asked out of the car, but he was ordered out of the car....

The court agreed it was finding that defendant was ordered out of the vehicle, stating:

I believe that he was asked and his compliance was simply acquiescent to what he perceived to be an order from law enforcement .... yes, I am finding that it was an order.... And the reason is that I find based upon the totality. It wasn’t one thing ... I am weighing the totality of the entire encounter in making this determination. There is not one thing I am pointing to that ah-ha, that is there. I am granting the motion. I am basing it on the totality of the stop. The totality of the circumstances of the contact. I do find that this was an acquiescence to police authority.

“[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002). Review of the trial court’s application of the law to the facts is de novo. See Alvarez v. State, 15 So.3d 738, 741 (Fla. 4th DCA 2009). We defer to a trial court’s factual findings if supported by competent, substantial evidence. Id. at 741.

The State is correct that, “Once a motor vehicle has been lawfully detained for a traffic violation, the police officer may order the driver to exit the vehicle without violating the fourth amendment’s proscription of unreasonable searches and seizures.” Stanley v. State, 559 So.2d 460, 461 (Fla. 4th DCA 1990) (quoting Pennsylvania v. Mimms, 434 U.S. 106, 112, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977)). To validate a warrantless search, however, the State must show that the search falls within a constitutional exception, one of which is voluntary consent. Hicks v. State, 852 So.2d 954, 960 (Fla. 5th DCA 2003).

As this court recently reiterated: “[T]he State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The state must prove its burden by a preponderance of the evidence. Jorgenson v. State, 714 So.2d 423, 426 (Fla.1998).

E.J. v. State, 40 So.3d 922, 923 (Fla. 4th DCA 2010). “To conclude that a search is involuntary the court must find that the defendant’s ‘will ha(d) been ... overborne and his capacity for self-determination critically impaired.’ ” Id. (quoting United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973))); see also Wilson v. State, 952 So.2d 564, 569 (Fla. 5th DCA 2007).

“[T]he voluntariness of a defendant’s consent to search is a question of fact to be determined from the totality of the circumstances.” Wyche v. State, 987 So.2d 23, 26 (Fla.2008) (citing Schneckloth, 412 U.S. at 227, 93 S.Ct. 2041). “The standard for measuring the scope of a person’s consent under the Fourth Amendment is that of objective reasonableness: what an ordinary reasonable person would have understood to be the scope of consent by the exchange between the officer and the consenting person.” J.J.V. v. State, 17 So.3d 881, 884 (Fla. 4th DCA 2009) (citing Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)).

Here, Florenco testified that, when he asked defendant to step out of his vehicle, and then for permission to search his person, that defendant complied with all of the officer’s requests. He did not resist or withdraw his consent. Defendant testified, however, that the officer never asked for permission to search him, that “he just started searching” defendant. According to defendant, “[i]t was not really a consent. It was get out of your vehicle, come to the back, turn around.” These facts support the trial court’s finding that defendant did not give his consent, as the trial court was free to reject the officer’s testimony. See Navamuel v. State, 12 So.3d 1283, 1285 (Fla. 4th DCA 2009) (“The trial court is vested with the authority to determine the credibility of the witnesses and the weight of the evidence ....”) (citation omitted).

Alternatively, the finding that any consent given was a submission to authority and not voluntary, is also supported by competent substantial evidence. Defendant testified that he was told by the uniformed officer, who had not yet written him a traffic ticket, to get out of his vehicle, come to the back, and to turn around. Then the officer “just started searching” defendant. The officer had asked for and retained defendant’s license and registration. As defendant argues, “there is nothing in this record to indicate to [him] that a search of his person was [anyjthing other than one more ordinary step in the ticket writing process.”

For the foregoing reasons, we affirm the trial court’s order granting defendant’s motion to suppress.

Affirmed.

WARNER and LEVINE, JJ., concur.

      . Florenco testified that he wrote the citation "later.”


text:
    Richard Lee TERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2503.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2010.
    Richard Lee Terry, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: FARMER, J.

text:
    Joey NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4535.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.

      Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   FARMER, J.

Defendant was charged with armed robbery but convicted of robbery with a weapon. The incident involved a cab driver. The driver testified that at the trip’s destination, the passenger and another man outside the cab robbed him. He said that the one outside the cab had a gun in his hand but he did not know if it was real. The driver called police at once and followed the fleeing perpetrators. Police responded immediately. Defendant was captured minutes later, a short distance away. No gun was ever found. At trial a police officer was permitted to testify that, under these circumstances, it is not unusual when a gun is not found. We reverse the conviction.

A trial court is given broad discretion in determining whether to admit or exclude evidence, but its discretion is limited and governed by the statutory Evidence Code. Johnston v. State, 863 So.2d 271, 278 (Fla.2003) (“The trial court’s discretion is limited by the rules of evidence.”); Nardone v. State, 798 So.2d 870, 874 (Fla. 4th DCA 2001) (court’s discretion narrowly limited by rules of evidence.). The evidence code excludes evidence solely proving propensity to commit a crime.

Defendant argues reversible error in admitting police testimony to the effect that it is not unusual to fail to find any gun in an armed robbery case. He complains about the following testimony:

State: Detective, from your experience, is it unusual not to find a gun in the armed robbery?
Witness: Not at all, a lot of times we never find a gun.
Defense: Objection, relevance.
Court: Overruled.
State: Go ahead.
Witness: No, it’s not unusual. A lot of times we never find a gun.

This testimony was inadmissible and highly prejudicial. It is well established that:

“[gjeneral criminal behavior testimony is not allowed as substantive proof of a defendant’s guilt because ‘every defendant has the right to be tried based on the evidence against him, not on the characteristics or conduct of certain classes of criminals in general.’ ”

Dean v. State, 690 So.2d 720, 723 (Fla. 4th DCA 1997) (quoting Lowder v. State, 589 So.2d 933, 935 (Fla. 3d DCA 1991), dismissed, 598 So.2d 78 (Fla.1992)). In Dean, we held the testimony of arresting detectives regarding the general behavior patterns of drug traffickers was error. We explained:

“The jury is asked to infer that because defendant’s behavior was similar to the behavior of other drug dealers that the officer had previously arrested or observed, defendant must likewise be guilty. The only purpose of testimony regarding criminal behavior patterns ‘is to place prejudicial and misleading inferences in front of the jury.’ The prejudicial effect is compounded because the defendant is deprived of any meaningful ability to cross-examine concerning the officer’s prior experience to determine whether the other cases are in fact similar.”

690 So.2d at 723.

Based on the rationale of the cases, we conclude that it was error to allow police to testify that it is common not to find a gun in armed robbery cases. Criminal guilt is particular. This testimony patently embodies general criminal behavior. It was used to bolster the charge that this was an armed robbery even though no gun was found and tied to this defendant. Being armed during the robbery was an essential element of the crime charged, namely “carrying a firearm or other deadly weapon.” The jury was asked to infer that defendant committed an armed robbery because other such robbers are often found without a gun.

Guilt in this case turned on the credibility of the driver as against the contrary testimony of defendant. We conclude that it “cannot be said that the patently prejudicial testimony was harmless.” Lowder, 589 So.2d at 936. Although the jury did not find that defendant possessed a firearm while committing the robbery, the State has failed to satisfy us beyond a reasonable doubt that the officer’s testimony did not contribute to the conviction of robbery with a weapon, which is itself an enhanced offense beyond simple robbery. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

Reversed for new trial.

WARNER and POLEN, JJ., concur.

      . See § 90.404(2)(a), Fla. Stat. (2009).

      . See also Shelton v. State, 654 So.2d 1295 (Fla. 4th DCA 1995) (finding reversible error where an officer was allowed to testify that money marked for identification was not always recovered and the lack of recovery was not abnormal); Lowder, 589 So.2d at 935 (holding it was error for the detective to testify that "[pjeople who sell narcotics usually have cash in their pocket.”).

      . See § 812.13(2)(a), Fla. Stat. (2010) ("If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084”).

      . See Mashburn v. State, 745 So.2d 453 (Fla. 5th DCA 1999) (defendant should be adjudicated guilty of and sentenced for offense of robbery with a weapon, rather than robbery with a firearm, where jury returned verdict finding defendant guilty with special finding that he did not possess a firearm).

      . See n. 3 above; see also § 812.13(2)(b) & (c) (robbery with weapon not classified as life sentence; robbery without any weapon classified as second degree felony).


text:
    Wilbert BASSETT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2733.
    District Court of Appeal of Florida, Third District.
    Dec. 15, 2010.
    Wilbert Bassett, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., GERSTEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Williams v. State, 22 So.3d 688 (Fla. 5th DCA 2009).