author: LEVENSON, JEFFREY R., Associate Judge. FARMER, J.,

text:
    Joyce DREW, Appellant, v. TENET ST. MARY’S, INC. d/b/a St. Mary’s Hospital, Appellee.
    No. 4D08-3499.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2010.
    Rebecca Mercier Vargas and Jane Kreusler-Walsh of Kreusler-Walsh, Com-piani & Vargas, P.A., and Casey D. Shomo of Casey D. Shomo, P.A., West Palm Beach, for appellant.
    Donna M. Krusbe, Bruce M. Ramsey, and Michael V. Baxter of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, for appellee.
   LEVENSON, JEFFREY R., Associate Judge.

Joyce Drew appeals from a final judgment in a medical malpractice case in favor of St. Mary’s Hospital. The court below denied Drew’s motion for directed verdict on the issue of comparative negligence. The jury subsequently found Drew to be 70% comparatively negligent. Drew then filed a motion for new trial on the ground that the verdict was against the manifest weight of the evidence. The trial court denied the motion. We affirm, but write to discuss appellant’s contention that the trial court erred in denying her motion for directed verdict.

After being diagnosed with breast cancer and treated with a lumpectomy, Drew sought radiation treatment at Kaplan Cancer Center. Before starting treatment, Drew and her surgeon had a phone conference with Dr. Ann Lewis, a radiation oncologist, to discuss the course of treatment and the role the radiation would play in the reduction of possible cancer recurrences. During the conference call, Drew inquired as to whether transportation needed to be arranged after radiation treatment. She was informed that radiation did not affect one’s physical or mental functioning and that no arrangements were necessary at that time.

Upon arrival at Kaplan the following Monday, the doctors noted that Drew required an additional procedure to inflate a balloon previously inserted in her lumpectomy cavity. The radiation oncologist prescribed two milligrams of Ativan, an anti-anxiety drug, in order to help Drew relax. Ativan, a Class IV controlled substance, is typically used for sedation because of its tranquilizing effect on the central nervous system. The drug produces various side-effects in the user that vary based on the individual.

Shortly after the Ativan was ordered, nurse Lisa Shoemaker entered Drew’s room with it. Drew inquired as to whether she could drive home after taking the drug. During this time, Drew indicated her familiarity with medicine, noting she had a “background with meds” and that she had never seen an Ativan the size of the one presented to her. Further examination of Drew’s history reveals that she had been prescribed Ativan after the passing of her husband and was familiar with similar anti-anxiety medications. In response to Drew’s inquiry about her ability to drive, nurse Shoemaker replied that she could not tell Drew if she could drive and that she should, or could, ask Dr. Lewis.

Approximately an hour and twenty minutes after receiving Ativan, Drew found it necessary to leave the Kaplan facility. A nurse and radiation physicist consulted the treatment schedule and came to the conclusion that Drew would not begin radiation treatment until the next day and informed her that she could leave Kaplan and return the following day for the radiation treatment. The nurse, however, did not review Drew’s chart and was unaware of the Ativan. While driving home, Drew crashed her car into a tree in her neighborhood and suffered serious injuries. The emergency room noted that her accident was a result of the Ativan.

On appeal, Drew contends that her lack of medical aptitude precludes her from any allocation of negligence. Accordingly, she argues that the trial court erred in denying her motion for a directed verdict on the issue of comparative negligence. We disagree and hold that the court below did not err in denying the motion.

We review the trial court’s denial of Drew’s motion de novo. Dep’t of Children & Family Servs. v. Amora, 944 So.2d 431, 435 (Fla. 4th DCA 2006). “A motion for directed verdict should be granted only when the evidence viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ as to the existence of a material fact and that the movant is entitled to judgment as a matter of law.” Id. Thus, “an appellate court must affirm the denial of a motion for directed verdict if any reasonable view of the evidence could sustain a verdict in favor of the non-moving party.” Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009) (citing Amerifirst Fed. Sav. & Loan Ass’n v. Dutch Realty, Inc., 475 So.2d 970, 971 (Fla. 4th DCA 1985)).

Drew specifically argues that there can be no comparative negligence on her part because the hospital had not presented her with the proper information about driving while on Ativan. Comparative negligence “is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection.” Restatement (Second) of Torts § 463 (1965). In order to establish the defense of comparative negligence, a medical defendant must prove each of the following three elements of negligence: first, that the patient owed himself a duty of care; second, that the patient breached that duty; and, third, that the breach was the proximate cause of the damages the patient sustained. See Borenstein v. Raskin, 401 So.2d 884, 886 (Fla. 3d DCA 1981).

Contrary to Drew’s argument, courts have consistently recognized comparative negligence as a defense in cases where the plaintiff herself has knowledge of the danger that led to the injury, which requires the plaintiff to exercise adequate care for her own safety given the known danger. See, e.g., Langmead v. Admiral Cruises, Inc., 610 So.2d 565 (Fla. 3d DCA 1992) (comparative fault of employee was properly submitted to the jury where the employee admitted having knowledge that the elastic band which injured her had broken in the past, so the employee “did not exercise adequate care for her own safety); Gonzalez v. G.A. Braun, Inc., 608 So.2d 125 (Fla. 3d DCA 1992) (evidence supported finding that products liability plaintiff was negligent where he had knowledge of the product’s defects but continued to use it); Kolosky v. Winn Dixie Stores, Inc., 472 So.2d 891 (Fla. 4th DCA 1985) (issue of comparative negligence was presented where customer who was knocked down by children in the store had observed the children running in the store and, therefore, had knowledge of the dangerous condition).

The question of whether or not anyone definitively told Drew that she could not drive home after taking the Ati-van is not dispositive of whether she bears an apportioned share of responsibility for her injuries. Rather, the critical question is whether, given the circumstances of this case, Drew exercised adequate care for her own safety when she took the medication and proceeded to drive home without awaiting clarification from Dr. Lewis as to the safety of driving on the drug. It is in this query that there is a reasonable question of Drew’s comparative negligence. Drew’s possible negligence was highlighted by her prior knowledge and experience regarding the effects of Ativan and her repeated outward suspicions that she might not be able to drive. Her experience with the drug, her judgment to drive without clarification from the doctor, and the information provided by nurse Shoemaker about the possible effects of anxiety medication certainly raise a comparative negligence question for the jury.

The type of negligence attributed to Drew in this case is that of ordinary negligence and not the type contributing to a worsened medical condition caused by medical staff with required expertise. Drew argues that a plaintiff in a medical malpractice case cannot be held comparatively negligent because patients are not held to the same standard of expertise as medical personnel. While this may be true, her negligence was the failure to use adequate care for her own safety; Drew, after taking the medicine, proceeded to drive home despite not obtaining an answer from Dr. Lewis as to whether it was safe or not.

Drew was aware of the possible dangers of taking an anti-anxiety medication and driving, and the comparative negligence question was properly submitted to the jury in order to determine her responsibility for the accident. On these facts, there was certainly a question whether her conduct was reasonable based on her knowledge and experience. The jury determined that it was not, and the evidence supports that finding.

Accordingly, we affirm the judgment entered below.

TAYLOR, J., concurs.

FARMER, J., dissents with opinion.

FARMER, J.,

dissenting.

Medicine is a learned art. A very learned art. Actually, a very, very learned art. Doctors begin with 4 years undergraduate college education, concentrating in the life sciences. Then they have 3 or 4 years of medical school dealing significantly with all manner of health care subjects. That is usually followed by internships, residencies and fellowships, often adding another 6 or 7 years of highly specialized education and training. So it is that when a Doctor becomes Board Certified in a medical specialty, the only person qualified to challenge that Doctor’s judgment is another, equally qualified Doctor with comparable education, training and experience. Surely no patient without medical training can do so.

On medical subjects, therefore, Doctors and their patients are usually on different levels. On very different levels. No, on very, very different levels. They are as far apart as it is possible to be. They are separated by a mammoth chasm in medical knowledge. As a matter of law we should acknowledge that the average patient cannot be deemed to know what a Doctor knows about a medical subject.

The major part of a Doctor’s treatment tools today is neither technique nor implement. It is chemicals. Medicine. Substances introduced by the Doctor into the patient. Altering a patient’s interior biochemistry. Many such chemicals — some controlled substances — can have adverse effects on patients. Doctors must know all possible side effects of these substances, as well as their specific indications and efficacy. I mean, no competent patient would knowingly exchange a current medical problem for a worse one. Here again the level of inequality in knowledge is Grand Canyon vast.

Because of this disparity, Doctors are fiduciaries in medicine for their patients. And the fiduciary duty imposed on Doctors who administer substances to their patients could not be more plain. Doctors must spontaneously and voluntarily make prior disclosure of all possible side effects from a substance they administer, whether or not a patient asks. Because the Doctor is bound by fiduciary ties, the patient is entitled to rely not only on what the Doctor tells the patient but equally on what the Doctor does not say.

In this case, before she even visited the Doctor she inquired about possible effects on driving caused by the planned treatment. She asked his office — hence, she asked him — whether she should arrange for transportation home after the planned treatment. His office — hence, he personally — responded that such transportation was not indicated.

At her treatment, the Doctor later decided he should administer a substance to assist the procedure. Yet when he gave the substance to her, he said nothing to indicate any adverse effect. The Doctor is deemed to know that the substance could cause side effects diminishing her ability to drive herself home. Did he ask her if she has a ride? Did he ask if she needed assistance? Did he warn her not to drive herself? The answer to all these questions is indisputably shown by the record as an unrefuted NO. He said nothing about the substance; he gave her no warnings. The gulf in knowledge between them about the substance remained undisturbed.

The law presumes she knew of her legal right to informed consent in medical treatment. That he has a duty to tell her of any adverse effects from any treatment he administered to her. As the beneficiary in the fiduciary relationship, she was therefore entitled to understand that the response of his office to her inquiry represented his medical judgment about anything done to her during the treatment. Especially because his office had responded that she could do so when she had previously asked him about driving, she could reasonably rely on his apparent medical judgment there was no medical basis to instruct her to the contrary.

The trial judge and majority think there is evidence of her personal negligence to allow the jury to make a factual finding that she was negligent in driving herself home from the treatment. But the only evidence they cite is that she drove herself home after his office had told her she would be able to do so and later one of his nurses told her during the visit that only the Doctor could say whether the substance could affect driving.

Again, the Doctor had the duty to warn her of side effects but gave no such warning when she herself raised the issue. Because of his superior medical knowledge in this fiduciary relationship, she had every reason to take his earlier response when she had raised that very subject as a positive indication of no adverse effects on driving. No evidence in the record on appeal transformed his fiduciary duty to warn her correctly into a patient duty to worry about his judgment in advising her that she could drive herself — that is, instead to keep asking him until he finally relents and says don’t drive.

According to the majority, she must magically divine what he knew about the drug in spite of his prior advice — which was left unchanged during the visit. They hold she must be deemed aware of adverse effects because she raised the subject rather than because he had responded by warning her about driving. They hold she had a duty to ignore his first answer and instead somehow deduce he had actually breached his fiduciary duty to give her some warning. Verily, they hold her to knowing what he knew!

Obviously, some patients do neglect instructions from their Doctors. But to impose comparative negligence on them, the cases require Doctors to specifically plead and prove that the patient failed to follow a specific instruction or warning actually made by the Doctor. To repeat myself— perhaps overmuch — here the record is clear that this Doctor, in fact, never instructed or warned his patient, nor pleaded nor proved that he had. Rather, that record is clear that he breached his fiduciary duty of informed consent by failing to disclose adverse effects of the substance.

The fiduciary principle governing the comparative negligence defense may be succinctly stated thus: the Doctor must protect his patient from his own treatment and ministrations. And so, physician-patient law does not require patients to assume they must protect themselves at all times from a Doctors’ prescribed ministrations and treatment. Such a view would contravene the expectations and goals of both sides in health care practice. For this reason, the cases hold that to trigger a duty of patient self-protection from his treatment the Doctor must first prove he gave a suitable warning/instruction indicating that his patient should protect herself from something he was doing or giving to her. Because this patient asked for and received no warning to the contrary, she was entitled to rely on the safety of the substance and the absence of danger. There is no evidence that she was anything but appropriately trusting with her Doctor.

Hence, this case does not involve any comparative negligence or duty of patient self-protection. The basis for this decision is a chimera. It was legal error to allow the Doctor’s naked affirmative defense go to the jury when it so obviously lacked competent supporting evidence.

This case should be reversed for a new trial.

      . See § 766.012(5), Fla. Stat. (2009).

      . See § 766.103(3)(a)2, Fla. Stat. (2010) (Doctor must furnish sufficient information under the circumstances to give reasonable individual general understanding of the substantial risks and hazards inherent in the proposed treatment or procedures).

        .See Gracey v. Eaker, 837 So.2d 348, 354 n. 6 (Fla.2002) ("This Court ... has determined that a fiduciary relationship exists between physician and patient, whether the physician is a psychotherapist or not”); Nardone v. Reynolds, 333 So.2d 25, 39 (Fla. 1976) (recognizing the fiduciary relationship of physician and patient and imposing duty on the physician to disclose known facts, but not conjecture or speculation).

      . See n. 2 above.

      . "Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 546; see also Moore v. Regents of Univ. of Cal., 51 Cal.3d 120, 271 Cal.Rptr. 146, 793 P.2d 479, 485 n. 10 (term fiduciary signifies that physician must disclose all medical facts material to the patient’s decision). See also n. 8 below.

      . Because the nurse is his agent, the Doctor is deemed by law to know what his nurse knows.

      . See n. 2 above.

        .See e.g. Vidal v. Macksoud, 933 So.2d 659, 661 (Fla. 3d DCA 2006) (defendant in medical malpractice action has burden to plead and prove specific acts of patient negligence); Riegel v. Beilan, 788 So.2d 990, 991 (Fla. 2d DCA 2000) (if healthcare provider does not provide patient sufficient information patient cannot be charged with comparative negligence); Swamy v. Hodges, 583 So.2d 1095, 1096 (Fla. 1st DCA 1991) (to prove comparative negligence, Doctor had to show that patient had a duty, that the duty was breached, and that such breach was the cause of the damage about which plaintiff complains); Borenstein v. Raskin, 401 So.2d 884, 886 (Fla. 3d DCA 1981) (to establish defense of comparative negligence in medical malpractice action, Doctor had to prove that patient owed herself a duty of care, that patient breached that duty, and that such breach was proximate cause of damages patient sustained).

      . See nn. 2 & 5 above.

      . Few patients would use and trust Doctors whose judgment and treatment required self-protection.

      . See n. 8, above.


source: Caselaw Access Project

author: DAMOORGIAN, J.

license: Public Domain

text:
    Ira C. KING, III, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4207.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2010.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appel-lee.
   DAMOORGIAN, J.

Defendant appeals his revocation of probation, judgment and sentence on three counts of DUI with serious bodily injury, raising four issues for our consideration. We affirm defendant’s judgment and sentence, and write only to address defendant’s argument that the trial court failed to render a proper written order revoking his probation by failing to specifically identify the conditions of probation defendant violated.

By way of background, in 2001, defendant pled no contest to three counts of DUI with serious bodily injury and one count of DUI with property damage. In that same year, defendant received a composite sentence of two years’ community control followed by three years’ probation on his three counts of DUI with serious bodily injury. Defendant received a sentence of “time-served” on his one count of DUI with property damage.

In 2005, the State filed its first violation of probation (VOP) affidavit, alleging that defendant violated three conditions of probation. Shortly thereafter, the State filed two amended VOP affidavits. Defendant ultimately entered an open plea with the trial court, wherein he admitted to violating the conditions of his probation.

Before defendant was sentenced on these violations of probation, the State filed a new VOP affidavit in 2006, alleging that defendant violated the conditions of his probation by committing the crimes of arson and battery. Following a VOP hearing on the new law violations, the trial court orally pronounced that defendant’s probation was revoked and sentenced defendant to 150.3 months in prison on the 2005 and 2006 violations of probation. Defendant then filed the instant appeal.

While his appeal was pending, defendant filed a Florida Rule of Criminal Procedure 3.800(b) motion, contending, among other things, that the trial court failed to render a written order revoking his probation. The trial court granted defendant’s rule 3.800(b) motion solely on this issue and entered an order of revocation of probation. The revocation order noted that defendant violated his probation in a material respect “for the reasons announced in open court” at his VOP hearing. We now review the sufficiency of this order.

On appeal, defendant challenges the sufficiency of the order of revocation of probation because it failed to specify the conditions of probation he violated. In response, the State contends that the order was sufficient, as written, because the trial court orally pronounced on the record each condition defendant violated, finding the violations to be willful, substantial, and material, and incorporated them by reference in the written order. Defendant is correct.

If a trial court revokes a defendant’s probation, the court is required to render a written order noting the specific conditions of probation that were violated. See Delisa v. State, 910 So.2d 418, 421 (Fla. 4th DCA 2005); Defontes v. State, 889 So.2d 217, 217 (Fla. 4th DCA 2004); Anderson v. State, 879 So.2d 688, 688 (Fla. 4th DCA 2004); Campbell v. State, 776 So.2d 1036, 1037 (Fla. 4th DCA 2001). Because the order of revocation of probation here does not specify the conditions defendant violated, we remand for the trial court to amend the order to include the conditions that the court found were violated at defendant’s VOP hearing. We find no merit to defendant’s remaining arguments, and affirm the revocation of his probation, as well as his judgment and sentence.

Affirmed, but Remanded.

MAY and GERBER, JJ., concur.

      . Defendant’s argument is preserved for review because it was raised in his rule 3.800(b) motion. See Fla. R.App. P. 9.140(e) (noting that sentencing errors must be preserved either through a contemporaneous objection or by motion under rule 3.800(b)); Jackson v. State, 983 So.2d 562, 571 (Fla.2008).


author: FARMER, J.

text:
    In re Jane DOE.
    No. 4D10-4445.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 2010.

      Ana Gomez-Mallada, Fort Lauderdale, for Jane Doe.
   FARMER, J.

This is an appeal by a minor from a final order dismissing her petition to waive the parental notice requirement for a termination of pregnancy. We reverse.

The petition’s basis for seeking a waiver of parental notice was two-fold. First, she stated that was not ready to herself to become a parent because of the expenses and the experience. Second she described significant health issues in her family that would be exacerbated by parental notification, a stress she could not bear to bring about. The final order states in its dispos-itive holding:

“The court finds that 4(a) and 4(c) [sic-(d)?] reasons given for the waiver of Parental notice are not shown by clear and convincing evidence and the Petition is Dismissed. No other grounds were presented. F.S. 390.01114(4)(c).”

The Court’s rationale is not sufficient to deny the petition.

We note that the statute in question requires the trial judge to “issue written and specific factual findings and legal conclusions supporting its decision .... ” [e.s.] § 390.01114(4)(e), Fla. Stat. (2010). As Judge Northcutt cogently explained:

“Requiring trial courts to set forth findings to support their rulings serves important purposes. In cases such as this, involving the application of a statute that so directly touches on an individual’s constitutional right, requiring written findings helps to ensure that the decision has been reached strictly according to constitutionally permissible criteria.”

In re Doe, 932 So.2d 278, 282 (Fla. 2d DCA 2005). As in that decision, the trial judge’s stated findings in this case lack the specificity required by this statute and are merely conclusory:

“the findings included in the order are insufficient to serve this critical purpose. Manifestly, nothing in the order’s few recited facts supports a conclusion that Doe is not sufficiently mature to decide whether to terminate her pregnancy or that she failed to prove that notifying her parents of her decision would not be in her best interest.”

932 So.2d at 282.

Petitioner’s first ground is that she has the emotional maturity to make the decision. According to the statement of evidence, petitioner has had significant academic success and is a leader in her school. Having a baby would adversely affect her plans for college, and she lacks the financial resources to have or care for a baby. The order omits any statement that the trial judge did not believe her testimony. We therefore conclude that the record fails to support the trial court’s denial on the ground of emotional maturity. See In re Doe, 932 So.2d at 284-85.

Her second ground — that notification is not in her best interests — is not governed by the clear and convincing evidentiary standard and is instead explicitly made by statute to fall under the ordinary greater weight of the evidence used generally in civil proceedings. See § 390.01114(4)(d) (“If the court finds, by a preponderance of the evidence, that ... the notification of a parent or guardian is not in the best interest of the petitioner” [e.s.j). Here again, the testimony of petitioner in her sworn petition and at the hearing state clear reasons why it is not in her best interest to notify her parent.

In considering this particular ground, “the trial court should weigh the advantages and disadvantages of parental notification in the minor’s specific situation.” In re Doe, 973 So.2d 548, 553 (Fla. 2d DCA 2008). We agree that trial courts should consider, among other factors made relevant by evidence, at least the “the minor’s emotional or physical needs ... the stability of the minor’s home and the possibility that notification would cause serious and lasting harm to the family structure; the relationship between the parents and the minor and the effect of notification on that relationship.” 973 So.2d at 553.

Here, petitioner’s testimony was clear that the act of notifying her parent would have a considerable impact on petitioner. Petitioner’s fear that such notification would adversely affect the health of her parent and thereby cause her to suffer her own emotional harm is not refuted by anything in the record and is not facially unreasonable. We conclude that the trial court’s finding on this also ground is not supported by the record. See In re Doe, 932 So.2d at 286; see also In re Doe, 921 So.2d 753, 755 (Fla. 1st DCA 2006) (presumption of correctness and deference to factual findings in parental notification cases “are less compelling when the evidence is undisputed and is presented to a judge sitting without a jury, and an appellate court is not required to disregard record evidence that disproves the lower court’s findings or reveals its ruling to be an abuse of discretion”).

Because of the time constraints applicable in this case, the Clerk of this court shall give petitioner’s counsel, the trial judge, and the clerk of the lower tribunal telephone and electronic notice of this opinion.

Reversed; petition to waive parental notification granted.

HAZOURI and LEVINE, JJ., concur.


author: MORRIS, Judge.

text:
    TWO WORLDS UNITED, a Florida not-for-profit corporation, Appellant, v. Roel ZYLSTRA, Kiffani Irby, Melissa Billings, Irene Graham, Robin Becker, and Rick Jackson, Appellees.
    No. 2D09-3195.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2010.

      Geoffrey E. Parmer of Geoffrey Parmer, P.A., Tampa (withdrew after briefing); Jose D. Sosa of the Law Office of Jose D. Sosa, Palm Beach Gardens (substituted as counsel of record), for Appellant.
    James B. Thompson, Jr., of Thompson Goodis Thompson Groseclose Richardson & Miller, P.A., St. Petersburg, for Appel-lee Roel Zylstra.
    No appearance for Appellees Kiffani Irby, Melissa Billings, Irene Graham, Robin Becker, and Rick Jackson.
   MORRIS, Judge.

Two Worlds United (“Two Worlds”) appeals an order dismissing its complaint against Roel Zylstra for lack of personal jurisdiction. For the reasons discussed below, we affirm the order of dismissal.

I. Facts

Two Worlds, a Florida not-for-profit corporation whose principal place of business is in Tampa, filed suit alleging that Zyls-tra, a California resident, and other defendants posted defamatory statements on a website owned and operated by Zylstra. Two Worlds alleged the following causes of action against Zylstra: defamation, tor-tious interference, civil conspiracy, and negligent blogging. In response to the complaint, Zylstra filed a motion to quash service of process and to dismiss, asserting that Zylstra is not a resident of Florida. That same day, Zylstra filed a motion for attorney’s fees pursuant to section 57.105, Florida Statutes (2007). Zylstra then filed an amended motion to dismiss, asserting lack of personal jurisdiction, which was accompanied by an affidavit from Zylstra. In opposition, Two Worlds relied upon an affidavit of a legal assistant from a law firm in California and the depositions of Zylstra and defendant Richard Jackson. The trial court granted Zylstra’s motion to dismiss “[ajfter reviewing the affidavits, materials and memoranda on file and after hearing argument of counsel.”

II. Analysis

A. A motion for attorney’s fees under section 57.105 does not waive the defense of lack of personal jurisdiction.

On appeal, Two Worlds first claims that Zylstra waived his objection to personal jurisdiction by seeking affirmative relief by virtue of his motion for attorney’s fees. A defendant waives an objection to personal jurisdiction by going beyond matters of defense and by seeking affirmative relief from the trial court. See Babcock v. Whatmore, 707 So.2d 702, 704 (Fla.1998). But here, Zylstra did not seek affirmative relief. Rather, Zylstra filed a defensive motion for attorney’s fees as sanctions against Two Worlds for filing suit against him when the Florida court lacked jurisdiction over him.

A motion for fees pursuant to section 57.105 directly relates to the opposing party’s cause of action and is substantively defensive in nature because it seeks to dissuade the opposing litigant from proceeding with allegedly frivolous litigation. See Dep’t of Highway Safety & Motor Vehicles v. Salter, 710 So.2d 1039, 1041 (Fla. 2d DCA 1998) (“The purpose of [section 57.105] is to dissuade litigants and attorneys from pursuing ‘baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag ... on losing parties who engage in these activities.’” (quoting Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 505 (Fla.1982))); see also Heineken v. Heineken, 683 So.2d 194, 197-98 (Fla. 1st DCA 1996) (holding that request for attorney’s fees incurred in prosecuting motion to dismiss for lack of personal jurisdiction was a defensive-in-nature request and did not seek affirmative relief and therefore did not serve to waive objection to personal jurisdiction). Because a motion for fees in this case was defensive and did not seek affirmative relief, the defense of lack of personal jurisdiction was not waived when Zylstra filed the motion.

B. Two Worlds did not establish personal jurisdiction over Zylstra

Two Worlds also contends on appeal that the Florida court has personal jurisdiction over Zylstra under the long-arm statute because Zylstra committed tortious acts within Florida, see § 48.193(l)(b), Fla. Stat. (2007), and because, alternatively, Zylstra’s contacts within Florida are extensive and ongoing, see § 48.193(2). Two Worlds further argues that Zylstra maintains minimum contacts in Florida so as to satisfy due process requirements for long-arm jurisdiction.

Once a nonresident defendant files an affidavit contesting the allegations contained within a complaint concerning personal jurisdiction, as Zylstra did in this case, the burden shifts to the plaintiff to prove by affidavit the basis for personal jurisdiction. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). If the affidavits can be reconciled or harmonized, the trial court can decide the matter without the need for an evidentiary hearing. Id. at 503. Neither party has argued that the trial court should have held an evidentiary hearing in this case. Our review of the trial court’s order of dismissal for lack of personal jurisdiction is de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002).

In order to establish personal jurisdiction over a nonresident defendant, a plaintiff must satisfy a two-part test. The first part of the test is whether the complaint alleges sufficient jurisdictional facts to satisfy Florida’s long-arm statute, section 48.193. Internet Solutions Corp. v. Marshall, 39 So.3d 1201, 1207 (Fla.2010) (citing Wendt, 822 So.2d at 1257). The second part of the test is whether it has been demonstrated that the defendant has had sufficient minimum contacts with Florida to satisfy due process requirements “such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. (quoting Wendt, 822 So.2d at 1257).

As to the first prong of the test, Two Worlds first relies on the specific long-arm jurisdiction set forth in section 48.193(l)(b), which requires that the defendant personally committed a tortious act within the state. The relevant, unrefuted sworn testimony was that Zylstra denied personally owning the website in question but admitted to being the sole stockholder of Global Notion, Inc., the corporation which owns the website. Zylstra also denied personally placing any postings on the website regarding Two Worlds and denied committing any tortious act against Two Worlds. Two Worlds filed the affidavit of a legal assistant in a California law firm, in which she offered hearsay evidence that Global Notion, Inc., had a suspended business license. But there was no evidence regarding what “suspended” legally means in the context of California law or that the corporation was dissolved. The corporate shield doctrine applies here to shield Zyls-tra from being haled into court based on personal jurisdiction because he denied committing the alleged negligent and intentional acts and Two Worlds did not rebut Zylstra’s sworn affidavit. See Doe v. Thompson, 620 So.2d 1004, 1006 (Fla.1993) (holding that corporate shield doctrine protects a defendant from being haled into court in an out-of-state forum for alleged negligent acts committed within scope of defendant’s capacity as corporate officer or employee); Radcliffe v. Gyves, 902 So.2d 968, 972 n. 4 (Fla. 4th DCA 2005) (holding that corporate shield doctrine was fully applicable, although plaintiffs alleged defendants “committed intentional willful acts,” where defendants’ sworn affidavits denied those acts and plaintiffs never rebutted defendants’ sworn affidavits).

Two Worlds claims that the recent holding in Marshall applies to the instant case to establish Two Worlds’ compliance with section 48.193(l)(b). In Marshall, the court held that

[a] nonresident defendant commits the tortious act of defamation in Florida for purposes of Florida’s long-arm statute when the nonresident makes allegedly defamatory statements about a Florida resident by posting those statements on a website, provided that the website posts containing the statements are accessible in Florida and accessed in Florida.

39 So.3d at 1216. In Marshall, the nonresident owner and operator of the website personally posted defamatory statements regarding the plaintiff company. Id. at 1202-03. Marshall did not address the application of the corporate shield doctrine. As noted above, Zylstra did not personally own the website and denied, without any refuting evidence, personally making any posts on the website relating to Two Worlds. Therefore, the holding in Marshall is inapplicable to this case.

Two Worlds also claims that the trial court has personal jurisdiction over Zylstra pursuant to section 48.193(2), the general jurisdiction provision of Florida’s long-arm statute, which provides that “a defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.” “Substantial and not isolated activity” is that which is “continuous and systematic.” Bafitis v. Ara, 815 So.2d 702, 703 (Fla. 3d DCA 2002). Zylstra testified that he has not lived in Florida since 1994 and that he comes to Florida only a few times a year to visit friends and family. His contacts in Florida are insufficient to satisfy section 48.193(2). See Radcliffe, 902 So.2d at 972 n. 4 (holding that “sporadic or occasional family vacations” to Florida are “insufficient” to establish general jurisdiction under section 48.193(2)). For this same reason, the minimum contacts necessary to meet the due process requirements for long-arm jurisdiction are lacking. See id. at 973.

III. Conclusion

We conclude that the trial court properly determined that Two Worlds did not establish personal jurisdiction over Zyls-tra. Accordingly, we affirm the trial court’s order dismissing Two Worlds’ complaint against Zylstra.

DAVIS and SILBERMAN, JJ., Concur.


author: CRENSHAW, Judge.

text:
    Juan C. ACOSTA, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2725.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2010.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   CRENSHAW, Judge.

Juan C. Acosta filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court granted the motion and summarily resentenced Acosta. Because Acosta’s resentencing was not a ministerial act, the trial court erred by conducting the resentencing without the presence of Acosta or his counsel.

In 2003, Acosta pleaded no contest to trafficking in cocaine in the amount of four hundred grams or more, possession of cannabis in the amount of twenty grams or more, and possession of drug paraphernalia. The trial court adjudicated Acosta guilty and sentenced him to a suspended sentence of fifteen years in prison and two years of community control followed by thirteen years of probation for trafficking in cocaine, a concurrent suspended sentence of five years in prison and two years of community control followed by three years of probation for possession of cannabis, and time served for possession of drug paraphernalia.

Unfortunately, Acosta violated the terms of his community control in 2004 by imper-missibly moving to the Dominican Republic. Law enforcement returned Acosta to the United States in 2008, wherein the trial court conducted a revocation hearing in the presence of Acosta and his counsel. The trial court found Acosta in violation of his community control, adjudicated him guilty, and sentenced him to a mandatory minimum term of fifteen years in prison for trafficking in cocaine and five years in prison for possession of cannabis.

Acosta subsequently filed a motion to correct an illegal sentence pursuant to rule 3.800(a). The trial court granted his motion, finding that the mandatory minimum provision of his sentence was improper because the trial court failed to orally pronounce the mandatory minimum portion of his sentence back in 2003. See, e.g., Williams v. State, 957 So.2d 600, 605 (Fla.2007) (recognizing that “a discrepancy between oral and written sentence is cognizable in a rule 3.800(a) proceeding”). The trial court then resentenced Acosta to fifteen years in prison for trafficking in cocaine without the mandatory minimum requirement. However, the trial court did so without conducting a hearing where Acosta would have an opportunity to be present with counsel. Acosta argues this was error pursuant to Cross v. State, 18 So.3d 1235 (Fla. 1st DCA 2009). The State concedes error.

A defendant has a right to be present and to be represented by counsel at any resentencing proceeding from a rule 3.800(a) motion except when it concerns issues that are purely ministerial in nature. See Rivers v. State, 980 So.2d 599, 600 (Fla. 2d DCA 2008); Bines v. State, 837 So.2d 1146, 1147 (Fla. 1st DCA 2003). However, where the resentencing is within the trial court’s discretion, the resentenc-ing is not purely ministerial, and a defendant is entitled to be present at the hearing. See Mullins v. State, 997 So.2d 443, 445 (Fla. 3d DCA 2008).

In Cross, the trial court entered an amended sentence striking the mandatory minimum terms of Cross’ ten-year sentences while keeping the length of his ten year sentences otherwise intact. Cross, 18 So.3d at 1235-36. This occurred without Cross’ presence or that of his counsel. Id. at 1235. The First District determined that the striking of the minimum mandatory term was not ministerial and further proceedings were warranted. Id. at 1236.

Here, the record reflects Acosta’s counsel requested at the 2008 community control hearing that Acosta be sentenced to a term of less than fifteen years, but the trial court noted it lacked the discretion to sentence him to anything less than fifteen years because of the mandatory minimum requirements. However, the trial court’s sentencing discretion was restored with the removal of the mandatory minimum term, and the resentencing was no longer a ministerial act. Accordingly, we find the trial court’s decision to resentence Acosta without his presence or his counsel’s presence was error, and we remand for further proceedings consistent with this opinion.

Reversed and remanded.

KELLY and YILLANTI, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    Corey BENNETT, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-940.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2010.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Corey Bennett was convicted of trafficking in cocaine, possession of marijuana, and possession of paraphernalia, all based on circumstantial evidence that he was in constructive possession of the contraband. We are required to reverse because the evidence was insufficient to support the convictions. This disposition makes it unnecessary for us to reach a suppression issue Bennett has raised on appeal, but we will comment briefly on it.

The evidence at trial reflected that Bennett was wanted on felony charges, although no arrest warrant had been issued. A Tampa police officer received a tip that Bennett could be found at a certain residential address. The tipster reported that Bennett was outside the front of the residence, possibly participating in a drug deal.

At the given address there was a main house in the front and a second dwelling, a cottage of sorts, in the rear. Bennett’s grandmother and some other family members lived in the main residence. The State presented no evidence to show who lived in the rear building, which was a small, one-bedroom dwelling with a living room, kitchen, and bath.

As the officer made his way to the location, the tipster reported that Bennett had run to the rear building. When the officer arrived, he proceeded to the cottage and knocked on the door. Receiving no response, he then walked around the structure and observed a broken window. He looked through the window into the bedroom and spied Bennett peeking out from the adjoining bathroom. The officer announced his presence and his intention to arrest Bennett. Bennett refused the officer’s order to come out, whereupon the officer climbed through the broken window and made the arrest.

After waiving his rights, Bennett first told the officer that he did not live in the cottage and did not know who did. He claimed that he had found the door open and had run inside. After the officer mentioned the possibility of burglary or trespass charges, Bennett said that he stayed there sometimes. The officer asked for and received Bennett’s permission to search the premises.

The search revealed contraband in the living room and bedroom. On the lower shelf of an entertainment center in the living room, the officer found two slabs of crack cocaine, a baggie of marijuana, and a digital scale and razor blade with cocaine residue. In the bedroom, a second officer found an open cardboard box full of men’s clothing. Also inside was a small plastic sandwich bag box, and it contained seven slabs of crack cocaine. A man’s shirt was lying draped in or across the top of the cardboard box, and Bennett’s driver’s license was found in the shirt pocket. There was also a letter, addressed to Bennett, somewhere in the cardboard box.

At the conclusion of the State’s case, Bennett moved for a judgment of acquittal, arguing that the State failed to prove his constructive possession of the drugs and paraphernalia. The trial court denied the motion, and Bennett argues the same point on appeal.

We review the denial of a motion for judgment of acquittal under a de novo standard. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Where, as here, the evidence of the defendant’s guilt is entirely circumstantial, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence. State v. Law, 559 So.2d 187, 188 (Fla.1989). This is so regardless of how, strongly the evidence may suggest the defendant’s guilt. Id. To be sure, the question of whether the evidence fails to exclude all reasonable hypotheses of innocence ultimately is for the jury, and a conviction that is supported by substantial, competent evidence will not be reversed. Jackson v. State, 995 So.2d 535, 539 (Fla. 2d DCA 2008) (citing Law, 559 So.2d at 188). But if the State does not offer evidence that is inconsistent with the defendant’s hypothesis, “ ‘the evidence [would be] such that no view which the jury may lawfully take of it favorable to the [state] can be sustained under the law.’ ” Law, 559 So.2d at 189 (quoting Lynch v. State, 293 So.2d 44, 45 (Fla. 1974)).

Here, Bennett was not shown to have physically possessed the contraband. See Sundin v. State, 27 So.3d 675, 676 (Fla. 2d DCA 2009) (explaining that actual possession is shown when contraband is found in the defendant’s hand, on his or her person, or within reach and under the defendant’s control). Thus it was necessary for the State to prove that he had it in his constructive possession. See id; Santiago v. State, 991 So.2d 439, 441 (Fla. 2d DCA 2008). To prove constructive possession, the State must show beyond a reasonable doubt that the defendant knew of the presence of the contraband and that he had the ability to exercise dominion and control over it. Wagner v. State, 950 So.2d 511, 512 (Fla. 2d DCA 2007); see also Evans v. State, 32 So.3d 188,189 (Fla. 1st DCA 2010) (“Constructive possession exists where the accused does not have physical possession of the contraband but knows of its presence on or about the premises and can maintain dominion and control over it.”) (citing Brown v. State, 428 So.2d 250, 252 (Fla.1983)).

The jury could reasonably conclude that Bennett knew of the contraband in the living room because it was in plain view. But this in itself did not suffice to prove that he had dominion and control over the contraband. To satisfy this element of the State’s proof, the surrounding circumstances must support the inference of “ ‘a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.’ ” Jackson, 995 So.2d at 539 (quoting Reynolds v. State, 92 Fla. 1038, 111 So. 285, 286). Mere proximity to contraband is not enough. Isaac v. State, 730 So.2d 757, 758 (Fla. 2d DCA 1999). Therefore, the fact that contraband was in the defendant’s plain view does not support an inference that the defendant had control over it unless the defendant had control over the premises. Sundín, 27 So.3d at 676-77 (rejecting any inference of control over glass pipe in plain view when evidence showed that defendant was only visitor to hotel room and not occupant of room).

Here, the evidence failed to show that Bennett had control over the premises. There was no evidence to prove that this was Bennett’s residence (a point made clear by the State’s argument on the suppression issue, i.e., that Bennett lacked standing to assert an expectation of privacy in the premises). The only evidence on this topic was Bennett’s statement to the arresting officer that he sometimes stayed at the cottage. In other words, the evidence proved at most that Bennett was a visitor.

Because Bennett’s dominion and control of the contraband could not be inferred from his control of the premises, the State was obliged to prove this element by independent evidence. See Sundin, 27 So.3d at 677; see also J.S.M. v. State, 944 So.2d 1143 (Fla. 2d DCA 2006). Generally, such independent proof can be established by the admission into evidence of a pretrial statement made by the accused, by witness testimony, or by scientific evidence. Santiago, 991 So.2d at 442. But Bennett made no incriminating statements, and no eyewitness testimony or scientific evidence such as fingerprints linked him to the drugs. We conclude that the State failed to prove Bennett was in constructive possession of the contraband found in plain view in the living room.

An additional fact requires further analysis vis-a-vis the drugs in the bedroom. Bennett’s driver’s license and a piece of his mail were found on or in the cardboard box that contained unidentified clothing and the sandwich bag box containing drugs. In some cases, a defendant’s knowledge of and dominion and control over contraband may be inferred where the contraband is found in or about other personal property that is owned or controlled by the defendant. Jackson, 995 So.2d at 540. Thus, the contraband at issue in Jackson was found in Jackson’s residence, inside a change purse that, along with a cigarette case containing Jackson’s credit card, had spilled from a larger purse belonging to Jackson.

Here, in contrast, the evidence did not show that this was Bennett’s residence, nor did it suggest how many or when others may have visited or used the cottage. Neither did the evidence prove who owned the clothes in the open box. Certainly, the location of Bennett’s personal items in proximity to the sandwich bag box in which the drugs were concealed might be consistent with his having knowledge of the drugs and dominion and control over them. But it is equally susceptible of the reasonable hypothesis that the drugs were in the possession and control of the owner or another occupant of the premises and that Bennett simply threw his belongings over or into the open cardboard box without knowing of the drugs inside. See J.S.M., 944 So.2d at 1144 (citing Taylor v. State, 319 So.2d 114 (Fla. 2d DCA 1975)). Thus, the State’s circumstantial evidence failed to prove that Bennett was in constructive possession of the contraband, and the trial court erred in denying Bennett’s motion for judgment of acquittal.

Although our decision renders moot the suppression issue in this case, we discuss it briefly. The officer’s warrantless entry into the cottage was pursuant to a “felony pick-up order” for Bennett’s arrest on outstanding drug charges. The officer explained that a pick-up order is signed by a police supervisor based on a criminal report affidavit and then taken to dispatch where it is entered into a database. He explained that a warrant, on the other hand, is based on a charging document, is signed by a judge, and is thereafter entered into the computer system.

In his motion to suppress and on appeal, Bennett argues that a pick-up order is not a warrant and did not authorize the officer’s entry into the premises. The State convinced the trial court that the officer’s warrantless entry was justified by section 901.19(1), Florida Statutes (2007), which provides in pertinent part as follows: 901.19 Right of officer to break into building.

(1) If a peace officer fails to gain admittance after she or he has announced her or his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, the officer may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.

We agree that the pick-up order authorized a warrantless arrest. See § 901.15(2) (authorizing officer to make warrantless arrest when “[a] felony has been committed and [the officer] reasonably believes that the person committed it”). But we cannot agree that the statute was a proper basis for the officer’s entry into the dwelling.

The United States Supreme Court has clearly held that “the Fourth Amendment to the United States Constitution, made applicable to the States by the Fourteenth Amendment, prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.” Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (citations omitted). In reaching this result, the Supreme Court had before it New York statutes, similar to the Florida statute cited by the State and described above, which (1) allowed a warrantless arrest when a felony was committed and the officer had reasonable cause to believe it was committed by the person to be arrested, and (2) allowed an officer, announcing his office and purpose, to break into a building after being refused admittance. Id. at 578 n. 6., 100 S.Ct. 1871 In fact, the Supreme Court cited Florida’s statute, section 901.19, in its discussion of similar statutes enacted by some twenty-four states, id. at 598 n. 46, 100 S.Ct. 1371; and the Court later noted that Florida was one of only two states whose courts had found warrantless entries under such circumstances to be constitutional, id. at 600,100 S.Ct. 1871.

While there are exceptions to the warrant requirement, such as consent, exigent circumstances, and hot pursuit, the State did not rely on any exceptions here. It relied solely on the statute to give effect to the pick-up order. But the statute must be applied within the constitutional framework set forth by the Supreme Court. See Art. I, § 12, Fla. Const, (requiring the Florida Constitution’s protection from unreasonable search and seizures to be interpreted in conformity with the United States Supreme Court’s Fourth Amendment jurisprudence).

To be arrested in the home involves not only the invasion attendant to all arrests but also an invasion of the sanctity of the home. This is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority and when probable cause is clearly present.

Payton, 445 U.S. at 588-89, 100 S.Ct. 1371 (quoting with approval United States v. Reed, 572 F.2d 412, 423 (2d Cir.1978)). Thus, the State’s reliance on probable cause and section 901.19 is misplaced.

This was made clear in Minnesota v. Olson, 495 U.S. 91, 94, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), where the Supreme Court applied Payton to hold that the Fourth Amendment rights of an overnight guest were violated by law enforcement’s entry into a dwelling based solely on “a pickup order, or ‘probable cause arrest bulletin.’ ” See also Stevens v. State, 552 So.2d 1082, 1084 (Fla.1989) (recognizing that Florida had previously “authorized a warrantless arrest of a person in his or her home based on probable cause” but that the Supreme Court, in Payton, “rejected the Florida view and held that it was unlawful to effect a routine felony arrest in a private residence absent exigent circumstances unless a warrant was obtained”) (citations and footnote omitted).

The State also argues that Bennett lacked standing to challenge the officer’s entry. See McCauley v. State, 842 So.2d 897, 900 (Fla. 2d DCA 2003) (allowing State to raise standing for first time on appeal). Given our decision to reverse Bennett’s convictions based on the insufficiency of the evidence, we find it unnecessary to reverse on the suppression issue or remand for a new suppression hearing.

We reverse Bennett’s convictions and remand with instructions to discharge him.

WHATLEY and KELLY, JJ., Concur.


author: COHEN, J.

text:
    John GILLIAND and Wendy McAllister, Appellants, v. Heather HEIDERICH, Appellee.
    No. 5D09-2791.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2010.

      Richard T. Zimmer, Jr., and Christopher J. Shipley of Shipley Law Firm, Mount Dora, for Appellants.
    Jonathan B. Sbar and Jodi L. Corrigan of Rocke, McLean & Sbar, P.A., Tampa, for Appellee.
   COHEN, J.

Robert Frost questioned the wisdom of the age-old adage, “Good fences make good neighbors.” Appellants, John Gill-iand and Wendy McAllister, continue that debate, appealing an order which granted their neighbor declaratory and injunctive relief relating to a fence and gate. We affirm.

The legal issue involves the language of an easement over property located in rural Marion County. In 2003, Appellants purchased the first of two five-acre parcels from Carl and Carmelita Davidson. Appellants’ parcel, the dominant estate, was landlocked and required an easement over property retained by the Davidsons, the servient estate, for ingress to and egress from State Road 19. A fifty-foot-wide easement for “free and unencumbered access,” was conveyed with the purchase of the first five-acre parcel in 2003.

In 2007, Appellee, Heather Heiderich, purchased the servient estate from the Davidsons, subject to Appellants’ easement. At the time of the purchase, a PVC fence stood on either side of the dirt driveway easement, but there was no gate. The driveway passes through a narrow portion of Appellee’s property that abuts S.R. 19 and continues along one side of her property to a gate between the two properties.

Not long after the purchase, Appellee discussed with Appellants her plan to erect an electronically controlled gate across the shared common driveway to insure that horses kept on the property would not wander onto S.R. 19. The gate would be activated by a remote control, keypad or manual override. When Appellants objected to the installation of a gate, Appellee filed suit seeking declaratory and injunc-tive relief. Appellants answered, demanding the easement remain ungated, and asserting their right to the unobstructed use of the driveway.

While the litigation was pending, Appel-lee erected a gate. In response, Appellants removed the existing gate from the opposite end of the easement and installed it as a second gate along the front of the easement and adjacent to the electronic gate. On a few occasions Appellants chained their gate open, and on one occasion Appellee chained the gate shut. The Lake County Sheriffs Office was called to the property several times to attempt to settle the neighbors’ squabbles.

At trial, Appellee testified that she erected a gate with a keypad next to the driver’s side of the driveway. A plate beneath the keypad displayed the entry code for visitors and delivery personnel. The gate’s remote control was solar-powered with a battery backup and featured a manual override. By the time of trial, Appellants had relocated and leased their property. Their tenant testified that both he and his guests had no problems using the gate over the past year. Appellants presented testimony that the value of their property was impaired by the existence of the gate. Additionally, Appellants testified that they refused to use the remote control provided or otherwise use the electronic gate to avoid any argument that they consented to its existence.

The trial court entered a final judgment declaring that the language of the easement did not prevent Appellee from erecting a gate across the easement and that the gate was not an unreasonable interference with Appellants’ access to their property. The trial court found the manual gate erected by the Appellants created an unreasonable burden on Appellee and enjoined Appellants from using or maintaining their separate gate to and from S.R. 19. It further ordered the removal of Appellants’ gate and restoration of the fence as near as possible to its original condition.

The issue on appeal is whether the language of the easement providing for “free and unencumbered access” precluded construction of a gate. Appellants interpret this language to mean an open, unobstructed pathway. This court’s de novo review leads us to conclude otherwise. Amer. Quick Sign, Inc. v. Reinhardt, 899 So.2d 461, 467 (Fla. 5th DCA 2005). Central to the analysis is that a landowner burdened by an easement may use property in any manner that does not interfere with the dominant estate owner’s rights under the easement. Perlini v. Seminole Woods Cmty. Ass’n, Inc., 582 So.2d 1221, 1224 (Fla. 5th DCA 1991).

The court in BHB Development, Inc. v. Bonefish Yacht Club Homeowners Association, Inc., 691 So.2d 1174, 1176 (Fla. 3d DCA 1997), set forth the general rule concerning the right of a servient landowner to construct a gate across an easement:

[T]he grant of a way without reservation of the right to maintain gates does not necessarily preclude the owner of the land from doing so, and unless it is expressly stipulated that the way shall be an open one, or it appears from the terms of the grant or the circumstances that such was the intention, the owner of the servient estate may erect gates across the way, if they are constructed so as not to interfere unreasonably with the right of passage.
20 Fla. Jur. 2d Easements § 36 (1980).

To insure certainty, parties who want to keep an easement free of gates or other obstacles can specifically express that intention in the document. However, failure to do so does not preclude the right to erect a gate so long as it does not interfere unreasonably with the right of way. We do not agree that the language Appellants rely on clearly expresses a prohibition on gates. Further, the trial judge did not err in determining that the gate did not unreasonably interfere with Appellants’ easement, and there was substantial, competent evidence to support that finding. We find no merit to Appellants’ other issues.

AFFIRMED.

LAWSON and EVANDER, JJ„ concur.

      . Robert Frost, Mending Wall.

      . Appellants later purchased the second five-acre parcel.

      . There was testimony presented at trial establishing the electronic gate was a redundant measure.

      . Although the tenant's lease required him to use the manual gate Appellants erected, he used the electronic gate because the manual gate was off its hinges and had to be dragged open and shut.

      .Because Appellants failed to seek a stay, removed the gate and restored the original fence, this issue was abandoned for purposes of appeal.


text:
    Maurice LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1452.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2010.
   NORTHCUTT, Judge.

Maurice Lawson challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, without comment, the denial of ground one of the motion. Because Lawson was illegally sentenced in excess of the statutory máxi-mums for the offenses in question, we reverse the denial of ground two, and we remand for resentencing.

Lawson was convicted after a jury trial of two counts of sexual battery in violation of section 794.011(5), Florida Statutes (1993), and one count of committing a lewd and lascivious act in violation of section 800.04(2), Florida Statutes (1993). All three offenses are second-degree felonies punishable by a maximum of fifteen years in prison. § 775.082(3)(c), Fla. Stat. (1993). Lawson was sentenced to ten years’ prison followed by five years’ probation concurrent on each count. Following his release from prison, the trial court twice adjudicated Lawson guilty of violating probation. On the third violation, the trial court revoked Lawson’s probation on all three counts and orally sentenced him to twenty-two years’ prison, which was the bottom of the recommended range under the sentencing guidelines. The trial court, at the sentencing hearing, did not specify how the overall twenty-two-year prison sentence was to be structured in relation to the three offenses. However, the written sentences, which were signed by the trial court, imposed a sentence of twenty-two years’ prison on each count, with the sentences running concurrently.

In ground two of the motion, Lawson alleged that his sentences on all three counts are illegal because they exceed the statutory maximum for a second-degree felony. Prior to January 1, 1994, a trial court could not impose a guidelines sentence that went beyond the statutory maximum for the offense in question. Mays v. State, 717 So.2d 515, 516 (Fla.1998). Thus, although the overall sentence of twenty-two years’ prison that was orally imposed by the trial court at the sentencing hearing was not illegal, the written sentences are illegal because they are in excess of the statutory maximum. We therefore reverse the postconviction court’s denial of ground two of the motion and vacate the written sentences. On remand, the trial court may reimpose the overall sentence of twenty-two years’ prison by structuring consecutive sentences that are within the statutory maximum for a second-degree felony. See McClain v. State, 633 So.2d 1131 (Fla. 3d DCA 1994). As it did previously, the trial court shall award jail credit and prior prison credit.

Affirmed in part, reversed in part, and remanded.

VILLANTI and LaROSE, JJ., Concur.

      . Absent a showing that it is necessary for another judge to preside at sentencing, the same judge that revoked Lawson’s probation and imposed the overall twenty-two-year prison sentence shall resentence Lawson. See Kramer v. State, 970 So.2d 468 (Fla. 2d DCA 2007); Fla. R. Crim. P. 3.700(c)(1).


author: PER CURIAM.

text:
    J.A., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4218.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2010.
    James S. Purdy, Public Defender, and Peter A. Ames, Sr., Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the restitution order entered after hearing during which he was not present. We reverse.

“A juvenile has a constitutional right to be present at hearings to determine the imposition and amount of restitution absent a voluntary and intelligent waiver of that right.” I.M. v. State, 955 So.2d 1163, 1164 (Fla. 1st DCA 2007). The State bears the burden of proving that Appellant knowingly and voluntarily waived his right to be present. Thar v. State, 8 So.3d 1204, 1205 (Fla. 2d DCA 2009). Here, indisputably, Appellant did not receive notice of the hearing, nor did he waive his right to be heard.

Appellant also challenges the award of restitution for the value of personal property removed from the stolen vehicle. The record before us fails to establish that Appellant’s crime was the cause of this loss. See L.R.L. v. State, 9 So.3d 714, 715 (Fla. 2d DCA 2009) (quoting § 985.437(2), Fla. Stat. (2007)).

Accordingly, we reverse the restitution order and remand this cause for further proceedings.

REVERSED AND REMANDED.

MONACO, C.J., TORPY and JACOBUS, JJ„ concur.


text:
    Gene Edward LEPHEW, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4469.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2010.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Based upon the State’s confession of error, the case is remanded for the trial court to conduct a restitution hearing after notice to all parties. See Brinson v. State, 606 So.2d 476 (Fla. 5th DCA 1992).

REMANDED.

GRIFFIN, COHEN and JACOBUS, JJ., concur.


text:
    Darius YOUNG, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-3084.
    District Court of Appeal of Florida, Fifth District.
    Nov. 5, 2010.
    Darius Young, Crawfordville, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2008-CF-00419-C-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, C.J., GRIFFIN and COHEN, JJ., concur.


text:
    Jermaine L. KENNEDY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Americas Mortgage Professional, Appellees.
    No. 1D10-0669.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2010.
    Jermaine L. Kennedy, pro se, Appellant.
    Geri Atkinson-Hazelton and Louis A. Gutierrez, Unemployment Appeals Commission, Tallahassee, for Appellees.
   PER CURIAM.

The Unemployment Appeals Commission erred as a matter of law when it determined that Jermaine L. Kennedy received an overpayment of unemployment compensation benefits during his period of unpaid training. Kennedy’s uncompensated training did not constitute employment so as to disqualify him from receiving unemployment benefits. See Winters v. Fla. Unemployment Appeals Comm’n, 858 So.2d 1218 (Fla. 4th DCA 2003); Smith v. Bankers Life & Cas. Co., 852 So.2d 297 (Fla. 2d DCA 2003).

REVERSED and REMANDED for further proceedings consistent with this opinion.

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Marisela GONZALEZ, Appellant, v. UNIVERSITY OF MIAMI and Gallagher Bassett, Appellees.
    No. 1D10-2645.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2010.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Martha D. Fornaris of Fornaris & Associates, P.A., Coral Gables, for Appellant.
    Eduardo E. Neret of the Law Offices of Eduardo E. Neret, P.A., Miami, for Appel-lees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred in denying her claims for palliative medical care for her low back injury, an increase in the permanent impairment rating for the low back injury from 3% to 7%, and attorney’s fees and costs for obtaining those benefits. The Employer/Carrier has filed a Notice of Confession of Error advising this court it has abandoned any challenge to Claimant’s arguments on these issues. Accordingly, we REVERSE the JCC’s denial of the benefits described above, and REMAND for entry of an order awarding those benefits.

HAWKES, C.J., DAVIS and THOMAS, JJ., concur.


text:
    DEPARTMENT OF REVENUE, obo Tiffany Marie CLAUSEN, v. Daniel Allen McDONALD, Respondent.
    No. 1D10-3730.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2010.
    Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Petitioner.
    Daniel Allen McDonald, pro se, Respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the order compelling appearance for genetic testing, because the administrative law judge did not have jurisdiction to order genetic testing to determine paternity in the child-support proceeding under section 409.2563, Florida Statutes (2009). See Dep’t of Revenue ex rel. Gardner v. Long, 987 So.2d 1235 (Fla. 1st DCA 2006); Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157 (Fla. 1st DCA 2007).

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    NFL EUROPA and ACE/ESIS, Inc., Appellants, v. Earl CHARLES, Appellee.
    No. 1D10-3849.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2010.
    Sylvia A. Krainin of Ford & Harrison, LLP, Miami, for Appellants.
    No appearance for Appellee.
   PER CURIAM.

Upon review of Appellants’ response to this court’s order to show cause, entered August 9, 2010, we conclude the order being appealed is a non-appealable, non-final order. See Fla. R.App. P. 9.180(b)(1). The order neither awards nor denies workers’ compensation benefits, but rather concludes as a procedural matter, that the statute of limitations is tolled relative to any claim for knee replacement surgery that may be, or has been, filed. This ruling, of necessity, contemplates a need for additional judicial labor to determine Claimant’s entitlement to the only substantive benefit in question. Accordingly, the order, not entered to put an end to judicial labor regarding Claimant’s entitlement to knee surgery, but entered in express anticipation of, and for the purpose of facilitating, ongoing or future litigation regarding such entitlement, is non-final. See Augustin v. Blount, Inc., 573 So.2d 104, 105 (Fla. 1st DCA 1991) (“A final order is one which constitutes an end to the judicial labor in the cause.”); see also Town of Palm Beach v. Watts, 426 So.2d 1312, 1313 (Fla. 1st DCA 1982) (“Compensation proceedings may, of course, generate successive ap-pealable final orders, each covering all benefits then due and not agreed to by the parties.” (emphasis added)).

Under circumstances similar, but significantly distinguishable from those presented here, this court has exercised jurisdiction over a final order wherein a Judge of Compensation Claims (then Deputy Commissioner) denied the substantive medical benefit at issue, and refused to extend the statute of limitations for treatment which was likely to occur after the expiration of the statute of limitations — thus, putting an end to the judicial labors necessary to resolve the claimant’s entitlement to the benefit at issue in the lower tribunal. See Mahoney v. Sears, Roebuck & Co., 438 So.2d 174 (Fla. 1st DCA 1983). We find no authority for the exercise of jurisdiction over an order where entitlement to the substantive benefit at issue (the sine qua non of workers’ compensation litigation) is unresolved, and expressly forestalled, by the lower tribunal. Because the order on appeal is neither a final order nor an ap-pealable non-final order specifically referenced in Rule 9.180(b)(l)(A)-(C), we do not have jurisdiction over this appeal. Accordingly, the appeal is DISMISSED for lack of jurisdiction.

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    CITY OF PEMBROKE PINES and Gallagher Bassett Services, Inc., Appellants, v. Michael HONES, Appellee.
    No. 1D10-0216.
    District Court of Appeal of Florida, First District.
    Nov. 9, 2010.
    Gregory G. Coican and Edward D. Schuster of Massey, Coican, Schuster, Riedhammer & King, LLC, Fort Lauder-dale, for Appellants.
    Barbara A. Eagan of Eagan Appellate Law, PLLC, Orlando, Kelli Biferie Hastings of the Law Office of Kelli Biferie Hastings, PLLC, Maitland, and Robert S. Winess of Robert S. Winess, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See City of Pembroke Pines v. Ortagus,-So.3d -, 2010 WL 4292823 (Fla. 1st DCA 2010).

BENTON, THOMAS, and ROWE, JJ., concur.


author: BENTON, J. THOMAS, J.,

text:
    Debora L. COCHRAN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and King Pin Inc., Appellees.
    No. 1D10-1813.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.

      Debora L. Cochran, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, M. Elaine Howard, Deputy General Counsel, and Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   BENTON, J.

Debora L. Cochran appeals a final order of the Unemployment Appeals Commission affirming an appeals referee’s decision disqualifying her for unemployment benefits on grounds she voluntarily left work without good cause attributable to her employer. Because we find no competent, substantial evidence in the record to support a finding that she left work voluntarily — and because the appeals referee did not address whether she was discharged for misconduct warranting disqualification — we reverse and remand with directions for the appeals referee to determine whether or not Ms. Cochran was discharged for misconduct.

Section 443.101(l)(a), Florida Statutes (2009), governs disqualification for unemployment benefits, and provides, insofar as pertinent here, that the former employee is disqualified if the former employee “has voluntarily left his or her work without good cause attributable to his or her employing unit or ... [if] the individual has been discharged by his or her employing unit for misconduct connected with his or her work.” The unemployment statutes are to be “liberally construed in favor of a claimant of unemployment benefits who is unemployed through no fault of his or her own.” § 443.031, Fla. Stat. (2009).

Initially, the Agency for Workforce Innovation denied Ms. Cochran unemployment benefits, deeming her disqualified because, the Agency first concluded, she had been discharged for misconduct connected with work. She appealed this initial determination, and the Agency set a telephone hearing to determine, according to the hearing notice, whether she had voluntarily left work without good cause or whether she had been discharged for misconduct connected with work.

On the basis of the testimony adduced at the telephonic hearing, the referee made the following findings of fact (and no others):

The claimant worked for a bowling center as a bartender from March 31, 2005, until October 2, 2009. The general manager noticed that tickets were being ran, and they were not being cashed out. The manager decided to start tracking the claimant’s transaction record. The manager then presented two transactions that were not placed in the system. The claimant denied that she was doing anything. The claimant was then informed that they were going to call the police to present the evidence to them. At that time the claimant walked out, and never returned to work.

But he also concluded that Ms. Cochran was the “moving party in the separation” and should be “considered to have voluntarily quit.”

“After a claimant proves that her employment has ended and that she has not worked for at least a week, the burden shifts to the employer to prove either a voluntary quit, see Gulf County Sch. Bd. v. Washington, 567 So.2d 420 (Fla.1990), or a discharge attributable to the employee’s misconduct connected with work.” Gilbert v. Dep’t of Corn., 696 So.2d 416, 417-18 (Fla. 1st DCA 1997); Lewis v. Lakeland Health Care Center, 685 So.2d 876, 878 (Fla. 2d DCA 1996). At the hearing before the referee, the employer never even alleged that Ms. Cochran left her job voluntarily. Both the general manager and Ms. Cochran testified that she was fired. On this point, their testimony was clear, straightforward and consistent.

Whether an “employee left [his or] her job voluntarily and without good cause is a question of fact within the province of the unemployment appeals referee,” Grossman v. Jewish Cmty. Ctr. of Greater Fort Lauderdale Inc., 704 So.2d 714, 716 (Fla. 4th DCA 1998), but it is not within the province of the referee to make fact findings that have no evidentiary support — or, as here, contradict all the evidence adduced on the point. The uncon-troverted testimony — from both sides— was, not that Ms. Cochran resigned her employment, but that the general manager discharged her. An employer who alleges that a former employee applying for unemployment compensation benefits left employment voluntarily has the burden of proof on that issue. See Porter v. Fla. Unemployment Appeals Comm’n, 1 So.3d 1101, 1102 (Fla. 1st DCA 2009); Willick v. Unemployment Appeals Comm’n, 885 So.2d 440, 442 (Fla. 2d DCA 2004). The employer did not carry this burden in the present case.

Because the appeals referee found (erroneously) that Ms. Cochran left her job voluntarily, he did not reach the question whether she was guilty of dishonesty or other misconduct of a kind that would have disqualified her for unemployment benefits if she had been discharged. “Misbehavior serious enough to warrant an employee’s dismissal is not necessarily serious enough to sustain a forfeiture of unemployment compensation benefits.” Yost v. Unemployment Appeals Comm’n, 848 So.2d 1235, 1288 (Fla. 2d DCA 2003) (citing Frazier v. Home Shopping Club LP, 784 So.2d 1190, 1191 (Fla. 2d DCA 2001)). ‘Whether a claimant commits misconduct connected with work is a question of law.’” Boyd Bros., Inc. v. Fla. Unemployment Appeals Comm’n, 41 So.3d 419, 420 (Fla. 1st DCA 2010) (quoting Sauerland v. Fla. Unemployment Appeals Comm’n, 923 So.2d 1240, 1241 (Fla. 1st DCA 2006)).

“[T]he employer has the burden of establishing an employee’s misconduct.” Borland v. Unemployment Appeals Comm’n, 910 So.2d 320, 322 (Fla. 2d DCA 2005) (citing Gunther v. Barnett Banks, Inc., 598 So.2d 243, 245 (Fla. 2d DCA 1992)). The employer put on evidence of such misconduct, but the referee found only that “two transactions ... were not placed in the system.” The referee did not find the claimant responsible or at fault for these omissions, or conclude that she had been guilty of disqualifying misconduct. The employer is entitled to a ruling on this issue.

Accordingly, we reverse and remand for the referee to determine whether or not Ms. Cochran committed misconduct disqualifying her from receiving unemployment compensation benefits.

ROWE, J., Concurs.

THOMAS, J., Dissents with Opinion.

THOMAS, J.,

Dissenting.

I respectfully dissent. There is competent, substantial evidence to support the finding that Appellant voluntarily left her employment, and the Agency’s finding to that effect must be sustained under the law.

As the majority opinion states, whether an “employee left [his or] her job voluntarily and without good cause is a question of fact within the province of the unemployment appeals referee.” Grossman v. Jewish Cmty. Ctr. of Greater Fort Lauderdale, 704 So.2d 714, 716 (Fla. 4th DCA 1998). The employer has the initial burden to establish that the employee voluntarily left employment. See Willick v. Unemployment Appeals Comm’n, 885 So.2d 440, 442 (Fla. 2d DCA 2004) (citing Lewis v. Fla. Unemployment Appeals Comm’n, 685 So.2d 876, 878 (Fla. 2d DCA 1996)). If the employer meets this burden, then the employee “must present evidence to prove that he or she left the employment for good cause attributable to the employer.” Id. “Good cause” is a circumstance that would “reasonably impel the average able-bodied qualified worker to give up his or her employment.” Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So.2d 827, 829 (Fla. 4th DCA 1973).

Under the law, employees must make a reasonable effort to preserve their employment. See Glenn v. Fla. Unemployment Appeals Comm’n, 516 So.2d 88, 89-90 (Fla. 3d DCA 1987); Bd. of County Comm’rs, Citrus County v. Fla. Dep’t of Commerce, 370 So.2d 1209, 1211 (Fla. 2d DCA 1979). Appellant did just the opposite. Rather than respond to inquiries regarding allegations of impropriety, she simply left her employment. It is certainly understandable that it would be an unpleasant task to respond to the allegations, but we have held that employees are required to respond to an employer’s reasonable efforts to resolve disputes. Under the majority’s holding, employees may now simply quit any time there is an employment dispute, and they will then qualify for unemployment compensation. This is an incorrect application of the law. See Quick v. N. Cent. Fla. Cmty. Mental Health Ctr., 316 So.2d 301, 302 (Fla. 1st DCA 1975) (employee voluntarily left employment when she did not use available grievance procedure).

In addition, this is unsound public policy. With this standard, unemployment funds will be used in a manner not contemplated by the legislature. As argued by the Agency, the purpose of the unemployment compensation statute is to provide economic assistance to persons unemployed through no fault of their own. § 443.031, Fla. Stat. (2009). Thus, the statute disqualifies workers who voluntarily leave employment. § 443.101(l)(a), Fla. Stat. This statute excuses only those employees who leave employment because of circumstances not present here.

The fact that the employer testified that Appellant was discharged for misconduct is not dispositive here; what is dispositive is that the Agency found Appellant voluntarily left her employment, and the evidence demonstrates that this finding may not be overturned on appeal. See His Kids Daycare v. Fla. Unemployment Appeals Comm’n, 904 So.2d 477, 480 (Fla. 1st DCA 2005) (noting the fact evidence exists contrary to the finding made by the appeals referee is of no import where the referee’s finding is supported by competent substantial evidence). The appeals referee found that Appellant was the moving party in the separation and should be considered to have voluntarily quit. We should affirm these factual findings.

Where an agency’s findings are supported by competent, substantial evidence, we are not empowered to reverse those findings. Forehand v. School Bd. of Washington County, 481 So.2d 953, 955 (Fla. 1st DCA 1986); § 120.68(7)(b), Fla. Stat. Thus, I réspectfully dissent from the majority’s holding reversing the Agency’s factual findings that Appellant voluntarily left her employment.

      . Legal conclusions are entitled to less deference than findings of fact. See generally Jacob v. Sch. Bd. of Lee County, 519 So.2d 1002, 1004-05 (Fla. 2d DCA 1987); Heifetz v. Dep’t of Bus. Reg., 475 So.2d 1277, 1282-83 (Fla. 1st DCA 1985).

      . The unemployment compensation law defines misconduct as:
      (a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
      (b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.
      § 443.036(29), Fla. Stat. (2009).


author: LEVINE, J.

text:
    Napoleon G. BEQUER and Glenna G. Bequer, Appellants, v. NATIONAL CITY BANK f/k/a Fidelity Federal Bank Trust, Appellee.
    No. 4D10-1454.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 2010.

      Stephen E. Tunstall of Stephen E. Tun-stall, P.A., Coral Gables, for appellant.
    Temple Fett Kearns and Don A. Lynn of Shutts & Bowen, LLP, Fort Lauder-dale, and John W. Bustard of Shutts & Bowen, LLP, Miami, for appellees.
   LEVINE, J.

The issue presented is whether the trial court erred in setting aside the default final judgment. We find that the trial court erred in setting aside the default since appellee failed to establish excusable neglect.

On September 22, 2009, appellants served a third-party complaint on appellee at its operations center. On November 19, 2009, a default was entered against appel-lee for failure to serve a timely pleading. On November 20, 2009, counsel served on National City a cover letter to the court with a copy of the default, an affidavit of damages, and a proposed default judgment. The court reviewed it and returned it for additional work. On December 15, 2009, the attorney served on National City a second cover letter, the default, a clients’ affidavit, and a second proposed default judgment. This too was sent back. Then on January 7, 2010, he served National City with a third cover letter, an affidavit of damages, a motion for entry of default judgment, and a notice of hearing, along with a proposed default final judgment. On January 20, 2010, the trial court entered a default final judgment against ap-pellee in the amount of $90,865.93, including prejudgment interest.

On February 9, 2010, appellee served a motion to set aside the default and vacate the default final judgment. It also submitted affidavits which outlined appellee’s policies and procedures to ensure the timely response to lawsuits. The affidavit of Charles Buettner, who received the original complaint on behalf of appellee according to the sheriffs return, outlined the policies and procedures National City had in place to ensure the timely response to lawsuits. While he did not recall being served, he attested that he believed he followed his customary practices and sent the complaint to the legal department in an interoffice mail envelope. The other affidavit, signed by attorney Chris Meyer, outlined how the legal department enters the complaint into a database and assigns in-house counsel and then outside counsel to respond to a lawsuit. Meyer’s affidavit stated that he never received a copy of appellant’s third-party complaint. Meyer first became aware of the lawsuit on February 3, 2010, and he immediately retained outside counsel. Neither Buettner’s nor Meyer’s affidavit addressed the other motions, notice of hearing, or proposed final judgments served on appellee at its operations center.

The trial court found that tfye “closest call” had to do with the fact that “counsel did send additional pleadings after the default was entered, which in theory should have given notice that something was going on.” Nevertheless, the trial court granted the motion to set aside the default and default final judgment.

An order granting a motion to vacate a default final judgment is reviewed under the standard of gross abuse of discretion. DND Mail Corp. v. Andgen Props., LLC, 28 So.3d 111 (Fla. 4th DCA 2010). “Florida public policy favors the setting aside of defaults so that controversies may be decided on the merits.” Elliott v. Aurora Loan Servs., LLC, 31 So.3d 304, 306 (Fla. 4th DCA 2010) (citation omitted). Still, the trial court must find all of the following conditions in order to set aside a default under rule 1.540(b): “(1) whether the defendant has demonstrated excusable neglect in failing to respond!;] (2) whether the defendant has demonstrated a meritorious defense; and (3) whether the defendant, subsequent to learning of the default, had demonstrated due diligence in seeking relief.” Id. at 307 (citation omitted). We do not address the issue of meritorious defense or due diligence, since we find appellee failed to demonstrate excusable neglect, and as such, the trial court erred in vacating the default final judgment.

Excusable neglect occurs “where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir.” Id. (citation omitted). Here, the default was entered on November 19, 2009, and appellee did not file a motion to vacate until February 9, 2010. Appellee claims that it did not find out about the lawsuit until February 3, 2010; yet the record also includes substantial correspondence from appellants to appellee informing it of the default on November 20, 2009, December 15, 2009, and January 7, 2010.

The case of Hurley v. Government Employees Insurance Co., 619 So.2d 477 (Fla. 2d DCA 1993), is instructive. In Hurley, the court found the trial court’s setting aside the default final judgment was a gross abuse of discretion, since the defendant did not demonstrate excusable neglect. The affidavits submitted by the defendant failed to explain what happened to the complaint or suit papers other than admitting that the complaint was received and then was lost or misfiled. The Hurley court relied on Otero v. Government Employees Insurance Co., 606 So.2d 443, 444 (Fla. 2d DCA 1992), where the court held that the defendant was grossly negligent in not responding to “a continuing shower of legal pleadings,” and that gross negligence does not constitute excusable negligence. Hurley, 619 So.2d at 479 (quoting Otero, 606 So.2d at 444). Based on this holding, the Hurley court concluded that the defendant was grossly negligent and therefore could not establish excusable neglect.

Like Hurley, appellee did not explain what happened to the correspondence advising of the default. Appellee merely claims that when it learned of the lawsuit on February 3, 2010, it immediately retained outside counsel to file the motion to vacate. While appellee’s inaction to respond to the complaint alone might have constituted excusable neglect given the system appellees had in place, the failure to respond to the complaint, when coupled with the correspondence sent on three different occasions, constitutes gross negligence. Missing the complaint and the correspondence is not evidence of a “system gone awry” but rather a defective system altogether. We find that in light of the facts of this case, like Hurley, the finding of excusable neglect was in error.

Reversed and remanded.

WARNER and POLEN, JJ., concur.

      . This court recognizes the "extremely high standard of review” when reviewing for gross abuse of discretion. Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So.2d 300, 302 (Fla. 2d DCA 2004). However, if we were to find that the particular facts of this case did not violate the standard of gross abuse of discretion for failure to demonstrate excusable neglect, we would be hard pressed to find violations of this standard in other cases and ultimately the standard would effectively countenance any type of negligent conduct as being "excusable.”