author: BLACK, Judge. KELLY, Judge, RAIDEN, MICHAEL E., Associate Judge,

text:
    STATE of Florida, Petitioner, v. Richard T. CATALANO, Respondent, State of Florida, Petitioner, v. Alexander Schermerhorn, Respondent.
    Nos. 2D10-973, 2D10-974.
    District Court of Appeal of Florida, Second District.
    May 11, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helen Brewer Fouse, Assistant Attorney General, Tampa, and Scott D. Makar, Solicitor General, and Timothy D. Osterhaus, Deputy Solicitor General, Office of the Attorney General, Tallahassee, for Petitioner.
    Richard T. Catalano, pro se.
    Richard T. Catalano, Clearwater, for Respondent Alexander Schermerhorn.
    Andrea Flynn Mogensen, Sarasota, Cooperating Attorney for Amicus Curiae ACLU Foundation of Florida Inc., and Randall C. Marshall, Miami, for Amicus Curiae ACLU Foundation of Florida, Inc.
   BLACK, Judge.

Defendants, Richard T. Catalano and Alexander Schermerhorn, were issued traffic citations under section 316.3045, Florida Statutes (2007). Section 316.3045 restricts the volume at which a car stereo system may be played on a public street, but it exempts vehicles being used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. For the reasons stated below, we deny the State’s petition for certiorari.

I. Factual Background,

Mr. Catalano, a practicing attorney, and Mr. Schermerhorn were cited for playing their car radios too loudly, in violation of section 316.3045, which states as follows:

Operation of radios or other mechanical soundmaking devices or instruments in vehicles; exemptions—
(1) It is unlawful for any person operating or occupying a motor vehicle on a street or highway to operate or amplify the sound produced by a radio, tape player, or other mechanical soundmak-ing device or instrument from within the motor vehicle so that the sound is:
(a) Plainly audible at a distance of 25 feet or more from the motor vehicle; or
(b) Louder than necessary for the convenient hearing by persons inside the vehicle in areas adjoining churches, schools, or hospitals.
(2) The provisions of this section shall not apply to any law enforcement motor vehicle equipped with any communication device necessary in the performance of law enforcement duties or to any emergency vehicle equipped with any communication device necessary in the performance of any emergency procedures.
(3) The provisions of this section do not apply to motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices. The provisions of this subsection shall not be deemed to prevent local authorities, with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power, from regulating the time and manner in which such business may be operated.
(4) The provisions of this section do not apply to the noise made by a horn or other warning device required or permitted by s. 316.271. The Department of Highway Safety and Motor Vehicles shall promulgate rules defining “plainly audible” and establish standards regarding how sound should be measured by law enforcement personnel who enforce the provisions of this section.
(5) A violation of this section is a noncriminal traffic infraction, punishable as a nonmoving violation as provided in chapter 318.

In county court, Mr. Catalano and Mr. Schermerhorn both pleaded not guilty and moved to dismiss their citations on the grounds that section 316.3045(1) is unconstitutionally vague and overbroad, invites arbitrary enforcement, and impinges free speech rights. The trial judge denied the motions, whereupon Mr. Catalano and Mr. Schermerhorn changed their pleas to nolo contendere and reserved the right to appeal the denial of their motions to dismiss. The trial judge accepted the pleas, withheld adjudication, and imposed court costs. Mr. Catalano and Mr. Schermerhorn appealed the decision to the circuit court.

On appeal, the circuit court focused its analysis on two Florida decisions that discuss the meaning of the term, “plainly audible” in the context of whether that phrase is vague and invites arbitrary enforcement. In Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863, 867 (Fla. 2d DCA 1996), the court held that the “plainly audible” standard in a county noise ordinance was unconstitutionally vague, overbroad, and invited arbitrary enforcement. Although Easy Way involved a county noise ordinance and not a traffic control statute, Mr. Catalano argued that section 316.3045(1)(a) must also fail, inasmuch as the statute utilized the “plainly audible” standard.

The State argued that Easy Way was not controlling, but rather the Fifth District’s decision in Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998), compelled the conclusion that section 316.3045(1) is constitutional. In Davis, a previous version of section 316.3045 was deemed to be constitutional against a vagueness and over-breadth challenge. Id. at 635.

The circuit court carefully considered each argument and concluded that the issue ruled on by the two district courts was essentially the same, i.e., whether the “plainly audible” standard was too vague and overbroad to pass constitutional scrutiny. The court concluded that the decision in Davis conflicts with the decision in Easy Way. The court reasoned that the different purpose of the ordinance and the statute — one addressing general county noise ordinance standards and the other addressing the safe operation of motor vehicles on highways — did not change the fact that the test to determine the facial constitutionality of nearly identical language was the same. Since the Second District had decided the issue, the court held the statute must fail because the court was “obliged to follow the ruling of the Second District.” See Pardo v. State, 596 So.2d 665, 667 (Fla.1992) (“[I]f the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it”) (quoting State v. Hayes, 338 So.2d 51, 53 (Fla. 4th DCA 1976)).

The State of Florida filed this timely petition for certiorari review arguing that the circuit court departed from the essential requirements of the law because section 316.3045 does not invite arbitrary enforcement, it comports with free speech rights, and binding precedent found this section constitutional.

II. Standard of Review

In a petition for certiorari that seeks review of an appellate decision from the circuit court, the standard of review is narrow. Bennett v. State, 23 So.3d 782, 787-88 (Fla. 2d DCA 2009). The district court is typically limited to reviewing “instances where the lower court did not afford procedural due process or departed from the essential requirements of law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). In order for a writ of certiorari to issue, a departure from the essential requirements of the law must be more than a simple legal error. Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000) (citing Stilson v. Allstate Ins. Co., 692 So.2d 979, 982 (Fla. 2d DCA 1997)). “A district court should exercise its discretion to grant certiorari review only when there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Kaklamanos, 843 So.2d at 889 (citing Ivey, 774 So.2d at 682). A “ ‘clearly established principle of law’ can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” Kaklamanos, 843 So.2d at 890. “[I]n addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.” Id.

III. Easy Way/Davis Analysis

The State argues that the circuit court departed from the essential requirements of the law by applying Easy Way instead of Davis. The State asserts that Easy Way was decided based on a county’s subjective enforcement of a general noise ordinance and the challenge in this case is based on a facial challenge of a statute that addresses safety on the highways. The State reasons that Davis is binding precedent because it addresses the specific statute that is under attack in this case. Specifically, the State asserts that the circuit court’s holding was due to the subjective application and arbitrary enforcement of the “plainly audible” standard in the ordinance. The State points to the language in Easy Way that states: “If actual experience with the ordinance were to demonstrate that it represents a subjective standard, prohibiting a volume that any individual person ‘within the area of audibility’ happens to find personally ‘disturbing,’ we would not hesitate to change our judgment accordingly.” Easy Way, 674 So.2d at 867 (quoting Reeves v. McConn, 631 F.2d 377, 385 (5th Cir.1980)).

We do not agree with the State’s position. The challenge in Easy Way was a facial challenge. 674 So.2d at 863. Although the court did quote the Reeves language cited above, it also stated that “the ordinance does not define its crucial terms ‘plainly audible’ so as to secure against arbitrary enforcement.” Id. at 866. The court reasoned that the “plainly audible” standard represented the subjective standard that was discussed in the Reeves decision — “any individual person ‘within the area'of audibility’'happens to find personally ‘disturbing,’ ” — not because the term “plainly audible” was being applied subjectively, but because the term “plainly audible” was a subjective term on its face; thus, the court found it vague. Id. at 867.

Because this case presents a facial challenge to the term “plainly audible” and because both Easy Way and Davis dealt with the issue of whether the term “plainly audible” is constitutional, we hold that the circuit court did not depart from the essential requirements of the law in applying the binding precedent from the Easy Way decision. We agree with the circuit court that whether the “plainly audible” standard is applied in a noise ordinance or in a traffic statute, the test for constitutionality is the same. Because we find the circuit court afforded procedural due process and did not violate clearly established principles of law, we deny the State’s petition. In doing so, we certify a question of great public importance:

IS THE “PLAINLY AUDIBLE” LANGUAGE IN SECTION 316.3045(l)(a), FLORIDA STATUTES, UNCONSTITUTIONALLY VAGUE, OVER-BROAD, ARBITRARILY ENFORCEABLE, OR IMPINGING ON FREE SPEECH RIGHTS?

IV. ' Content-Based Analysis

Additionally, while recognizing our agreement with the reasoning and conclusion reached by the circuit court, we note that section 316.3045 suffers from a more fundamental infirmity. In this case, Mr. Catalano argued that this statute should be found unconstitutional because it is not “content-neutral,” and there is no compelling governmental interest requiring disparate treatment of commercial or political speech versus amplified music. The State argues that either the statute in question is content-neutral, or that the distinctions drawn in the statute are permissible because of their lower threat to public safety and intrusiveness. At oral argument, the State attempted to distinguish the commercial and political speech exception in the statute by stating that the exception applied to vehicles and not the content of the speech. However, we find this a distinction without a difference. It is not the vehicle that the statute is seeking to restrict; it is the sound emanating from the vehicle. Thus, commercial and political speech may emanate from the vehicle at a louder volume than other types of speech, making the statute a-content-based restriction on free speech. The State has advanced no compelling state interest that can rescue the statute from being an unconstitutional suppression of protected speech.

A. Preliminary Discussion

As a starting point, it is necessary to first determine whether the First Amendment protects the conduct at issue in the challenged statute, playing music on a street or highway. The Supreme Court has clearly stated that the First Amendment applies to this form of speech. Ward v. Rock Against Racism, 491 U.S. 781, 790, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Although the First Amendment protects the right to broadcast recorded music, the government may, nevertheless, impose reasonable restrictions on the time, place and manner in which persons exercise this right, subject to certain provisos. Daley v. City of Sarasota, 752 So.2d 124, 126 (Fla. 2d DCA 2000). “Those provisos are that: 1) the restrictions are content-neutral; 2) they are narrowly tailored to serve a significant governmental interest, and 3) they leave open ample alternative channels of communication.” DA Mortg., Inc. v. City of Miami Beach, 486 F.3d 1254, 1266 (11th Cir.2007) (citing Ward, 491 U.S. at 791, 109 S.Ct. 2746). However, “ordinances that regulate speech based upon the content of the message are presumptively unconstitutional and are subject to a higher level of scrutiny as a result.” Id. at n. 8. (citing Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1258-59 (11th Cir.2005)).

B. The Statute is Not Content-Neutral

Analysis of the regulation of speech begins with whether the regulation is content-based or content-neutral. See KH Outdoor, LLC v. City of Trussville, 458 F.3d 1261, 1268-69 (11th Cir.2006). An intermediate level of judicial scrutiny is used where the regulation is unrelated to content. Turner Broad. Sys., Inc. v. Fed. Commc’ns Comm’n, 512 U.S. 622, 642-43, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). On the other hand, where a regulation suppresses, disadvantages or imposes differential burdens upon speech because of its content, “the most exacting scrutiny” must be applied. Id. Such content-based discrimination is “presumptively impermissible” and will be upheld only if it is narrowly tailored to serve a compelling state interest with the least possible burden on expression. City of Ladue v. Gilleo, 512 U.S. 43, 59, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994); Widmar v. Vincent, 454 U.S. 263, 270, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). “At the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence.” Turner Broad. Sys., 512 U.S. at 641, 114 S.Ct. 2445.

In DA Mortgage, the court upheld a county noise ordinance because it was content-neutral, was narrowly tailored to achieve a significant government interest, and left open ample alternative channels of communication. 486 F.3d at 1266-69. In upholding the statute against a challenge of being content-based, the court stated:

Accordingly, when we apply this standard to the ordinance at issue, we find, as the district court did, that the ordinance is content-neutral. On its face, it does not disallow certain types of recorded noise or particular •viewpoints. It does not distinguish, for example, between excessively loud singing, thunderous classical music recordings, reverberating bass beats, or television broadcasts of raucous World Cup soccer finals. It simply prohibits excessively loud noise from recorded sources, whether radio, television, phonographs, etc.

Id. at 1266. Unlike the statute in DA Mortgage, the statute in our case does distinguish between different types of recorded noise or particular viewpoints.

A case that is directly on point, and was cited favorably in Cannon, is People v. Jones, 188 Ill.2d 352, 242 Ill.Dec. 267, 721 N.E.2d 546 (1999). In that case, the court held that a sound amplification statute, which prohibited the use of sound amplification systems in motor vehicles that could be heard from a specified distance away from a vehicle and which contained an exception for vehicles engaged in advertising, was a content-based regulation of speech, in violation of the First Amendment. Id. at 551-51. In Jones, the Illinois Supreme Court, citing Carey v. Brown, 447 U.S. 455, 462, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980), noted that “generally, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based.” Id. at 550. The court struck the statute, finding, “the statute favors advertising messages over other messages by allowing only the former to be broadcast at a particular volume.” Id. at 552. In so ruling, the court rejected the State’s argument that the statute was content-neutral because it was not enacted with the purpose of discriminating against any particular expression. Id. The fundamental problem with the analysis, according to the court, was that “on its face” the statute discriminated based on content. Id. This is the same fundamental problem with the statute in our case.

Finally, the United States Supreme Court discussed the content-neutrality requirement for permissible “time, place or manner” regulations in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). In that case, the city refused to allow distribution of commercial publications through freestanding newsracks on public property but allowed the distribution of newspapers in that manner. Id. at 412-14, 113 S.Ct. 1505. The city argued that its regulation was designed to limit the total number of newsracks, for reasons of safety and aesthetics. Id. at 428-29, 113 S.Ct. 1505. Therefore, according to the city, the regulation was a permissible time, place and manner restriction. Id. The Court rejected this argument. Id. In so ruling, the Court gave the following illustration which is instructive in our case: “[A] prohibition against the use of sound trucks emitting ‘loud and raucous’ noise in residential neighborhoods is permissible if it applies equally to music, political speech, and advertising.” Id. at 428-29, 113 S.Ct. 1505 (emphasis added) (citing Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949)).

Turning our attention to the Florida statute at issue, on its face it is not content neutral. The statute excepts from its provisions “motor vehicles used for business or political purposes, which in the normal course of conducting such business use soundmaking devices.” § 316.3045(3). In other words, an individual using a vehicle for business purposes could, for example, listen to political talk radio at a volume clearly audible from a quarter mile; however, an individual sitting in a personal vehicle that is parked next to the business vehicle is subject to a citation if the individual is listening to music or religious programming that is clearly audible at twenty-five feet. Clearly, different forms of speech receive different treatment under the Florida statute. That is, the statute in question does not “apply equally to music, political speech and advertising,” which is what the Supreme Court requires in order for the statute to be deemed, “content-neutral.” See City of Cincinnati, 507 U.S. at 428, 113 S.Ct. 1505.

Given that the statute is a content-based restriction on protected expression, it is presumptively invalid and may be upheld only if it is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Jones, 242 Ill.Dec. 267, 721 N.E.2d at 550. We fail to see how the interests asserted by the State are better served by the statute’s exemption for commercial and political speech. As in Jones, the State provides no explanation as to why a noncommercial message broadcast at a particular volume poses a danger to the public, while a commercial or political message does not. Further, as with the statute in Jones, the Florida statute is peculiar in protecting commercial speech to a greater degree than noncommercial speech. Commercial speech is typically in a “subordinate position” in the scale of First Amendment values. U.S. v. Edge Broad. Co., 509 U.S. 418, 430, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993).

V. Conclusion

We deny the petition for certiorari because the circuit court afforded the parties due process and it did not depart from the essential requirements of the law in finding the statute unconstitutional. Additionally, we conclude that the statute is a content-based restriction on free expression which violates the First Amendment. We also certify a question of great public importance, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v).

Petition denied; question certified.

KELLY, J., Concurs specially with opinion.

RAIDEN, MICHAEL E., Associate Judge, Concurs with opinion.

KELLY, Judge,

Concurring specially.

I concur in parts I, II, and III of the majority opinion.

RAIDEN, MICHAEL E., Associate Judge,

Concurring.

I endorse Judge Black’s opinion without reservations. The statute’s failure to observe content neutrality is fatal. Further, while I am not totally convinced that the term “plainly audible,” as employed in subsection (a) of the statute, is unconstitutionally vague, I refrain from any further analysis because subsection (b) permits citations, at least “in areas adjoining churches, schools, or hospitals,” for sound that is “louder than necessary for the convenient hearing by persons inside the vehicle.” See § 316.3045(1)(b). I believe this language is subjective enough to run afoul of Easy Way of Lee County, Inc. v. Lee County, 674 So.2d 863 (Fla. 2d DCA 1996), even if subsection (a) standing alone might not be.

My decision to write separately is based on a marked difference between the present version of section 316.3045 and that construed in Davis v. State, 710 So.2d 635 (Fla. 5th DCA 1998). As noted in footnote two of Judge Black’s opinion, now this law can be violated by soundmaking equipment “plainly audible” from a distance of only twenty-five feet — that is, one fourth of the distance covered by the earlier version. See § 316.3045(1)(a). This substantial reduction makes me question whether section 316.3045 should be analyzed as a noise ordinance at all.

We have been made aware of two different courses of action taken by county courts faced with motions to invalidate section 316.3045. In the case at bar, the trial courts were asked to — and the circuit court, on appeal, did — apply Easy Way. However, our attention has also been directed to the unpublished “Order Granting Defendant’s Motion to Suppress” in State v. John O. Middlebrooks, Case No. 2008CT043699AXX (Palm Beach Cty. Ct. August 6, 2009), in which the trial court took testimony from an expert in audiology and “psychoacoustics.” I recognize that the decisions before us did not involve the taking of evidence and that we are not in a position to rule on the correctness of Mid-dlebrooks. Nevertheless, I find that decision worth mentioning because of the Palm Beach County Court’s concern that section 316.3045, as amended, now penalizes conduct that may not constitute a nuisance.

The county court in Middlebrooks was actually called upon to make two separate, if related, findings. It is clear from the opinion that the audiologist’s testimony was given great weight by the trial judge with respect to both these questions. First, the court tried the civil infraction on its merits. The officer had testified that he heard music emanating from Middle-brooks’s car from a distance of “well over 100 feet away,” whereas a passenger stated the music had been playing at a level low enough to permit normal conversation within the passenger compartment. The judge did not find the officer’s testimony sufficiently credible to convict. However, because the officer apparently discovered evidence of an unrelated crime or crimes post-stop, the county court also had to determine whether the stop was legally supportable. (The decision to stop and ticket a motorist requires only probable cause, not proof beyond reasonable doubt.) The county court resolved the motion to suppress by declaring section 316.3045 unconstitutional because, as amended, it had “ceased to operate with a legitimate governmental interest and now allows arbitrary and discriminatory enforcement.” It appears the audiologist also convinced the trial judge that sounds audible from twenty-five feet are, basically, not loud enough to justify police intervention.

The version of section 316.3045 passed upon in Davis is clearly a noise ordinance. Such enactments are justified by the proven effect of excessive noise upon the public health and safety. At such levels, it does not matter what is being broadcast. (Emphasis added.) The question thus arises why the statute was changed. This is an important question in the event the legislature seeks to revisit section 316.3045 in light of our holding. At oral argument, counsel for the State suggested the legislature may have been concerned that music played over a certain volume level might cause a distraction for the driver, not unlike the use of a cell phone or the playing of video equipment — that is, that the amended statute could be aimed more at the interior of the vehicle than the right of the world at large to remain free from unhealthful decibel levels. Absent clearer guidance, however, I am unwilling to speculate. Apart from the change in distance, the statute is the same one construed on free-speech grounds by the Davis court.

      . These cases were consolidated for purposes of this opinion because the circuit court issued the same opinion in both cases, and the briefs, the arguments, and the attorneys were identical on appeal. The only difference in these cases was that Mr. Catalano was issued a traffic citation under section 316.3045 on November 13, 2007, and Mr. Schermerhorn's citation was issued on April 11, 2008.

      . We note that in 2005, after the Davis decision was rendered, the Florida Legislature amended section 316.3045 to change the distance of the plainly audible standard from 100 feet to 25 feet. See ch. 05-164, § 9, Laws of Fla. At least one federal court case finds that Davis is nonbinding due to this amendment. See Cannon v. City of Sarasota, No. 8:09-CV-739-T-33TBM, 2010 WL 962934, at *3 (M.D.Fla. March 16, 2010) (distinguishing Davis as dealing with the constitutionality of the prior version of the statute and finding two counts in a civil complaint that challenged the constitutionality of section 316.3045, under a First Amendment content-based challenge, were sufficient to withstand a 12(b)(6) motion to dismiss).


source: Caselaw Access Project

author: EVANDER, J.

license: Public Domain

text:
    TTSI IRREVOCABLE TRUST, Appellant, v. RELIASTAR LIFE INSURANCE CO., Appellee.
    No. 5D10-1459.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    Amy M. Romaine, of A.M. Romaine, P.A., Viera, and Sylvia A. Grunor of Weiss, Grunor & Weiss, P.A., Maitland, for Appellant.
    Andrew V. Tramont and David E. Cha-ein of Tramont Guerra & Nunez, P.A., Coral Gables, for Appellee.
   EVANDER, J.

TTSI Irrevocable Trust was the named owner and beneficiary of an insurance contract procured on the life of Verlee Ten-nant. After determining, at a summary judgment hearing, that TTSI did not have an insurable interest in Ms. Tennant’s life, the trial court held: (1) the life insurance policy was void ab initio, and (2) TTSI was not entitled to a refund of any premiums paid. TTSI appeals from the final summary judgment, contending that the trial court erred in denying its request for a return of premiums paid. We affirm. Where a party wrongfully procures a life insurance policy on an individual in whom it has no insurable interest, the party is not entitled to a return of premiums paid for the void policy.

In October 2004, insurance agent Paul W. Moses, II, filled out an application with ReliaStar Life Insurance Company to insure the life of then 85-year-old Verlee Tennant. Mr. Moses was unrelated by blood or law to Ms. Tennant. He had served as Ms. Tennant’s broker from approximately 1993 to 1996 and had traded some existing annuities on her behalf in the spring of 2004. In the fall of 2004, Mr. Moses sought Ms. Tennant’s permission to take out a policy on her life with himself named as the beneficiary. Ms. Tennant agreed to the arrangement. Mr. Moses had Ms. Tennant sign an application for a life insurance policy that would pay $370,912 in life insurance proceeds to the named beneficiary upon her passing.

On the application, however, Mr. Moses did not list himself as the beneficiary. Rather, Mr. Moses designated “TTSI Irrevocable Trust, K.M. Kern, Trustee” as the owner and primary beneficiary of the policy. When asked in the application to describe the proposed policy owner’s relationship to the proposed insured, Mr. Moses wrote “Family Trust.” In fact, there was no relationship between Ms. Tennant and TTSI. The beneficiaries of the TTSI Irrevocable Trust were Mr. Moses and his children. The trustee, K.M. Kern, had never met nor had any relationship with Ms. Tennant.

In June 2005, ReliaStar issued the policy. The premiums were paid by TTSI.

In 2008, Ms. Tennant received correspondence from ReliaStar which included a copy of her application for the subject policy. Ms. Tennant informed ReliaStar that she did not know Mr. Kern and did not have a family trust. ReliaStar thereupon conducted an investigation and ultimately cancelled the policy based on its conclusion there was no insurable interest between Ms. Tennant and TTSI and therefore the policy was void ab initio as contrary to public policy. ReliaStar also informed Mr. Moses that the current accumulated value of the policy would be used to offset ReliaStar’s costs in issuing the policy and to recoup the commission paid to Mr. Moses and that no funds would be remitted in connection with the termination of the policy.

In January, 2009, TTSI filed a 3-count complaint against ReliaStar for breach of contract, anticipatory breach of contract, and declaratory relief, requesting that the court require ReliaStar to reinstate the policy. ReliaStar answered the complaint and later moved for summary judgment based on the argument that the policy was void ab initio because TTSI never had an insurable , interest in Ms. Tennant’s life. At the trial level, TTSI argued that Ms. Tennant was a “key client” of Mr. Moses and therefore it had an insurable interest in Ms. Tennant’s life. The trial court rejected TTSI’s argument and determined that no insurable interest existed. See § 627.404, Fla. Stat. (2004). That ruling is not challenged on appeal.

Where the owner of an insurance policy lacks an insurable interest in the life of the insured, the policy is void ab initio because it is considered a “wagering contract” and contrary to public policy. See, e.g., Knott v. State ex rel. Guar. Income Life Ins. Co., 136 Fla. 184, 186 So. 788, 789 (1939) (“[I]t has been uniformly held that a contract of insurance upon a life in which the insurer has no interest is a pure wager, that gives the insurer a sinister counter-interest in having the life come to an end.”); Lopez v. Life Ins. Co. of America, 406 So.2d 1155, 1158 (Fla. 4th DCA 1981) (“Florida law requires that an individual contracting for insurance on the life of another have an insurable interest ... The obvious purpose of that requirement is to prevent so-called ‘wagering’ contracts.”), approved, 443 So.2d 947 (Fla.1983); Aetna Ins. Co. v. King, 265 So.2d 716, 718 (Fla. 1st DCA 1972) (“The public policy of this state renders an insurance policy invalid when the insured has no insurable interest in the property or the risk insured on the grounds that same constitutes a wagering contract.”); Atkinson v. Wal-Mart Stores, Inc., No. 8:08-CV-691-T-30TBM, 2009 WL 1458020, at *3 (M.D.Fla. May 26, 2009) (“Florida courts have long held that insurable interest is necessary to the validity of an insurance contract and, if it is lacking, the policy is considered a wagering contract and void ab initio as against public policy.”).

TTSI argues that notwithstanding the invalidity of the insurance policy, it is still entitled to a refund of the premiums paid. In support thereof, TTSI cites to Gonzalez v. Eagle Ins., Co., 948 So.2d 1 (Fla. 3d DCA 2006), Perlman v. Prudential Ins. Co. of America, Inc., 686 So.2d 1378 (Fla. 3d DCA 1997), and Diaz v. Fla. Ins. Guar. Ass’n, Inc., 650 So.2d 675 (Fla. 3d DCA 1995) for the proposition that where a policy is rescinded or declared void, a refund of premiums paid, in part or in whole, is required in order to return to the status quo. These cases are readily distinguishable. In each of these cases, a party sought to rescind an insurance contract because of an alleged fraud in the inducement. Rescission is an equitable remedy where the primary obligation is to undo the original transaction and restore the former status of the parties. Billian v. Mobil Corp., 710 So.2d 984, 990 (Fla. 4th DCA 1998). Moreover, rescission is an elective remedy and the party may, but is not obligated to, exercise its right to rescind the transaction. See, e.g., Towers v. Clarendon Nat’l Ins. Co., 927 So.2d 913, 914 (Fla. 2d DCA 2006).

By contrast, the present case does not involve a voidable contract. Rather, neither party could elect to give effect to the policy at issue because it was void at the outset. Furthermore, as a general rule, contracts that are void as contrary to public policy will not be enforced by the courts and the parties will be left as the court found them. See, e.g., Harris v. Gonzalez, 789 So.2d 405 (Fla. 4th DCA 2001); Castro v. Sangles, 637 So.2d 989 (Fla. 3d DCA 1994). We see no reason to depart from the general rule where, as in the instant case, the party seeking to enforce the contract is the only party who engaged in deceptive and misleading conduct at the time the contract was entered into. See also Sec. Mut. Life Ins. Co. v. Little, 119 Ark. 498, 178 S.W. 418 (1915) (where party enters into unlawful contracts for insurance policies on the lives of persons on which it had no insurable interest, contracts are unenforceable and party is not entitled to recover amounts previously paid to insurer).

AFFIRMED.

GRIFFIN and JACOBUS, JJ., concur.

      . There is a factual dispute as to whether Ms. Tennant withdrew her consent prior to the submittal of the insurance application to Reli-aStar by Mr. Moses. The resolution of this factual dispute was unnecessary to the disposition of the summary judgment motion below or to this appeal.

      . Mr. Moses is also an attorney licensed to practice law in the State of Florida. This court is forwarding a copy of this opinion to The Florida Bar for its consideration.


author: PER CURIAM.

text:
    Pearl Marie CROFT, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2570.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The Appellant, Pearl Marie Croft, was convicted by a jury of attempted first-degree murder. She was sentenced to life imprisonment and designated a prison re-leasee reoffender. In this direct appeal, Croft challenges the legality of her sentence. She does not contest the PRR designation. Rather, she argues that the offense should have been classified as a first-degree felony, not a life felony. We agree and reverse.

The arguments at the hearing on Croft’s rule 3.800(b) motion centered around whether there was a valid basis for reclassifying the offense under section 775.087, Florida Statutes. The arguments on appeal maintain that focus. However, we think the record is clear that the parties and the court were, at the time of sentencing, simply mistaken as to the degree of the offense. That is, they were operating under the assumption that attempted murder is a life felony, when that offense is actually a first-degree felony, punishable by a maximum of 30 years’ imprisonment. See §§ 775.082, 777.04(4)(b), 782.04(l)(a), Fla. Stat. (2008). Having thoroughly considered the matter, we also conclude there was no valid basis for reclassification in this case, particularly in the absence of a special verdict reflecting sufficient findings by the jury.

Accordingly, the life sentence imposed for attempted first-degree murder is reversed. The cause is remanded for resen-tencing on that count, consistent with this opinion. The judgment and sentence are affirmed in all other respects.

AFFIRMED in part; REVERSED in part; and REMANDED for resentencing.

MONACO, C.J., EVANDER and JACOBUS, JJ, concur.

      . Fla. R.Crim. P. 3.800(b).


text:
    STATE of Florida, Appellant, v. Anastasios PATSAS, Appellee.
    No. 5D10-2844.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

We reverse the trial court’s sua sponte order dismissing a 1985 felony charge filed against Anastasios Patsas. The record reflects that the State did not receive notice or an opportunity to be heard prior to the rendition of the order of dismissal. The fundamental requisites of due process of law are notice and the opportunity to be heard. See, e.g., Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950).

ORDER OF DISMISSAL QUASHED.

SAWAYA, TORPY and EVANDER, JJ, concur.


text:
    Lorenzo WHITE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-4092.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    Lorenzo White, Bristol, pro se.
    Pamela J. Bondi, 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 nos. 2007-CF-008330 and 2007-CF-008451, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

GRIFFIN, SAWAYA and LAWSON, JJ., concur.


text:
    Rayfield LANE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4376.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    Rayfield Lane, Wewahitchka, pro se.
    No Appearance for Appellee.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

Appellant, Rayfield Lane, Jr., was adjudicated guilty of four counts of sexual battery and one count of aggravated assault in Seminole County Case No. 74-450. He was sentenced to life imprisonment for one of the sexual battery convictions. Since his judgment and sentence became final, Lane has attacked his judgment and/or sentence numerous times. Lane has at least 16 prior cases in this court, including six rule 3.850 appeals and two rule 3.800 appeals. After affirming the denial of Lane’s third rule 3.800(a) motion to correct sentence, we issued a show cause order directing Lane to demonstrate why he should not be barred from filing further pro se challenges to his judgment and sentence in this case. See State v. Spencer, 751 So.2d 47 (Fla.1999). After carefully considering Lane’s response, we find it unpersuasive. We conclude that Lane is abusing the judicial process and should be barred from further pro se filings.

We therefore prohibit Rayfield Lane, Jr., from filing with this court any further pro se pleadings concerning Seminole County Case No. 74-450. The clerk of this court is directed not to accept any further pro se filings from Lane concerning this case. Any additional pleadings must be filed by a member in good standing with The Florida Bar. See Johnson v. State, 652 So.2d 980 (Fla. 5th DCA 1995); Isley v. State, 652 So.2d 409 (Fla. 5th DCA 1995).

Future pro se filings PROHIBITED; certified opinion FORWARDED to the Department of Corrections.

MONACO, C.J., PALMER and JACOBUS, JJ. concur.


text:
    Willie K. PORTER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1074.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    Willie K. Porter, Perry, pro se.
    Pamela J. Bondi, 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 order denying his motion for postconviction relief in case nos. 2006-38195-CFAES and 2006-34569-CFAES, in the Circuit Court in and for Volusia County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, EVANDER and COHEN, JJ., concur.


author: GRIFFIN, J.

text:
    Ledor J. LEGENE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1089.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    Robert Wesley, Public Defender, and Robert C. Power, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   GRIFFIN, J.

Ledor J. Legene (“Defendant”] seeks a writ of mandamus to compel the trial court to set and hear Defendant’s motion to dismiss criminal charges based on alleged immunity from prosecution under sections 776.032, 776.012 and 776.013(3), Florida Statutes, the justifiable use of force and “stand your ground” statutes.

Defendant was charged with one count of aggravated battery with a deadly weapon and one count of aggravated assault with a deadly weapon. Defendant filed a motion to dismiss, claiming immunity from criminal prosecution under sections 776.032, 776.012 and 776.013(3), Florida Statutes. In his motion, Defendant set forth a factual scenario, which basically involved finding his daughter’s boyfriend inside Defendant’s locked residence. Upon discovery by Defendant, the boyfriend allegedly pushed him to the floor. Defendant then struck the boyfriend with a stick and later threatened the boyfriend outside the house.

The State filed a motion to strike the motion to dismiss, asserting that Defendant failed to provide an adequate factual basis to support the motion. The trial court held a hearing on the State’s motion to strike and granted the motion. Defendant thereafter filed his petition for writ of mandamus to obtain review of that order and to obtain an order requiring an evi-dentiary hearing. See Martinez v. State, 44 So.3d 1219 (Fla. 1st DCA 2010). In response, the State, citing to Dennis v. State, 51 So.3d 456 (Fla.2010), concedes that Defendant is entitled to an evidentia-ry hearing on its motion to dismiss. In light of this development, we grant Defendant’s petition for writ of mandamus to compel the trial court to conduct an evi-dentiary hearing on Defendant’s motion to dismiss, but because we are confident the trial court will conduct the required hearing, we withhold issuance of a formal writ for a period of thirty days.

Petition GRANTED, Issuance of writ WITHHELD.

LAWSON and EVANDER, JJ., concur.


text:
    Rosita R. MARTINEZ, Appellant, v. SCHOOL DISTRICT OF PALM BEACH COUNTY and F.A. Richard & Associates, Appellees.
    Nos. 1D10-6350, 1D10-6353, 1D10-6357, 1D10-6364, 1D10-6365.
    District Court of Appeal of Florida, First District.
    May 13, 2011.
    Patricia E. Thorne of Patricia E. Thorne P.A., West Palm Beach, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

Upon review of Appellant’s responses to this court’s January 7, 2011, order to show cause, and Appellees’ motions to dismiss, we conclude the order on appeal in each of these cases is a non-appealable, nonfinal order. See Fla. RApp. P. 9.180(b)(1). Accordingly, these appeals are DISMISSED for lack of jurisdiction.

LEWIS, CLARK, and ROWE, JJ., concur.


author: BENTON, C.J.

text:
    Ivy FOSSETT, Appellant, v. SOUTHEAST TOYOTA DISTRIBUTORS, LLC., Appellee.
    No. 1D10-2749.
    District Court of Appeal of Florida, First District.
    May 18, 2011.

      Stephen J. Pajcic, III and Benjamin E. Richard of Pajcic & Pajcic, P.A., Jacksonville, and William A. Bald of Dale, Bald, Showalter, Mercier & Green, P.A., Jacksonville, for Appellant.
    Dennis P. Dore and Bradley Little of Dore & Associates, Jacksonville, for Appel-lee.
   BENTON, C.J.

Ivy Fossett appeals the final summary judgment entered against her in a negligence action she brought against Southeast Toyota Distributors, LLC (SET). We affirm. The trial court ruled that SET had immunity from suit under section 440.11(2), Florida Statutes (2006). Even though the evidence before the summary judgment court did not rule out the possibility that, at the time of the accident, she was under the immediate supervision of another employee of the same help supply services company that had her on its payroll, the undisputed facts demonstrated that Ms. Fossett was under SET’s “general supervision” when she was injured.

The record before the trial court at the time it entered summary judgment consisted of Ms. Fossett’s deposition and a copy of a contract between SET and Adec-co, a help supply services company. According to her deposition, Ms. Fossett originally sought employment from SET itself, but was directed to Adecco, from whom SET leased employees. In answer to a question about how she had happened to apply to work for Adecco, she testified, “I looked in the phone book and called— actually, I was seeking to get on with Southeast Toyota, and I called — I was told that I had to contact Adecco.” Adecco hired her, then sent her to work at SET under the terms of the contract between SET and Adecco.

As an Adecco employee, Ms. Fossett was assigned to stand near the exit of an automated car wash on SET’s property, where she was to get into cars after they had been washed and drive them to an adjacent lot. After about three months on the job, a car mistakenly left in gear when sent through the car wash ran her over and caused serious injury. On that account, she claimed workers’ compensation benefits from Adecco (and eventually settled her claim for workers’ compensation benefits).

When Ms. Fossett also sued SET alleging SET’s negligence was responsible for her injury, SET moved for summary judgment. SET argued that, because it had contracted with Adecco to supply Ms. Fos-sett and other temporary employees to work for SET, SET was immune under section 440.11(2) from liability for simple negligence to any Adecco employee injured doing SET’s work. Section 440.11 provides, in relevant part:

(1) The liability [for workers’ compensation benefits] of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to any third-party tortfeasor and to the employee, the legal representative thereof
... and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death, except as follows:
(a) If an employer fails to secure payment of compensation as required by this chapter....
(b) When an employer commits an intentional tort that causes the injury or death of the employee....
(2) The immunity from liability described in subsection (1) shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer’s business. An employee so engaged by the employer shall be considered a borrowed employee of the employer, and, for the purposes of this section, shall be treated as any other employee of the employer. The employer shall be liable for and shall secure the payment of compensation to all such borrowed employees as required in s. 440.10, except when such payment has been secured by the help supply services company.

§ 440.11, Fla. Stat. (2006) (emphasis supplied). OSHA Standard Industry Code Industry Number 7363 defines a “help supply services company” as an entity “primarily engaged in supplying temporary or continuing help on a contract or fee basis.” St. Lucie Falls Prop. Owners Ass’n v. Morelli, 956 So.2d 1283, 1285 (Fla. 4th DCA 2007) (citing Sagarino v. Marriott Corp., 644 So.2d 162, 165 (Fla. 4th DCA 1994)).

The OSHA standard in effect on the date the statute was enacted controls. See State v. Camil, 279 So.2d 832, 834 (Fla.1973) (holding that a statute cannot prospectively incorporate by reference subsequently enacted federal law or subsequently adopted federal administrative rules). On the date section 440.11(2) took effect— October 1, 1989, see ch. 89-289, § 8, at 1749-50, 1786, Laws of Fla. — OSHA Standard Industry Code Industry Number 7363 listed employee leasing services, help supply services, temporary help services, and labor pools as examples of help supply services companies. See Office of Mgmt. & Budget, Exec. Office of the President, Standard Industry Classification Manual (1987), available at http://osha.gov/pls/imis/ sic_dmanual.html. “The help supplied is always on the payroll of the supplying establishments, but is under the direct or general supervision of the business to whom the help is furnished.” Morelli, 956 So.2d at 1285 (citing Sagarino, 644 So.2d at 165).

On appeal, Ms. Fossett does not dispute that Adecco is primarily engaged in supplying (temporary or continuing) help to other enterprises on a contract or fee basis, nor does she dispute that she was on Adecco’s payroll at the time of the industrial accident, doing SET’s work. She does argue, however, that the record does not dispel all doubt as to whether she was, as a matter of fact, under the direct or general supervision of SET when the accident occurred. In arguing this point, neither party contends that there is any dispute about the primary facts, or that they require further development. Both parties rely on the same evidence: Ms. Fos-sett’s deposition and the contract between SET and Adecco.

“Long before the enactment of the statutory special employment provision for employees of help supply services companies, the common law recognized the ‘borrowed servant’ doctrine.” Morelli, 956 So.2d at 1286. Under this common law doctrine, one employer can “lend” its employee to another “special employer.” A special employer qualifies as such where “(1) there was a contract for hire, either express or implied, between the special employer and the employee; (2) the work being done at the time of the injury was essentially that of the special employer; and (3) the power to control the details of the work resided with the special employer.” Id. (emphasis supplied) (citing Shelby Mut. Ins. Co. v. Aetna Ins. Co., 246 So.2d 98, 101 n. 5 (Fla.1971)). See also Coleman v. Mini-Mac Maint. Serv., Inc., 706 So.2d 393, 395 (Fla. 1st DCA 1998) (“Florida courts consider three factors when determining whether a worker was a borrowed servant: (1) whether a contract of hire, either express or implied, existed between the employee and the special employer; (2) whether the work done was essentially that of the special employer; and (3) whether the special employer has the right to control the details of the work”) (emphasis supplied).

At issue here, too, is the legal power or right to control the details of the work of the “borrowed servant.” See Hazealeferiou v. Labor Ready, 947 So.2d 599, 603 (Fla. 1st DCA 2007) (“In Florida, the [borrowed servant] doctrine’s specific application to employee leasing arrangements is embodied in section 440.11(2)”); Derogatis v. Fawcett Mem’l Hosp., 892 So.2d 1079, 1081 (Fla. 2d DCA 2004) (“A special employer may be immune from suit on the basis of the common law special employment relationship that is premised on the borrowed-employee doctrine or on the basis of the statutory special employment relationship, § 440.11(2).”).

The “general supervision” section 440.11(2) contemplates, in incorporating OSHA Standard Industry Code Industry Number 7363, is the legal power to direct the details of the work of the help supply services company employee. The crucial question is not whether a SET manager supervised Ms. Fossett in fact as she parked cars and waited in between, but whether SET or its designee had the legal right or power to control the details of her work.

The contract between SET and Adecco plainly states that “services to be performed by employees provided by [Adecco] will be performed under the direction, supervision and control of [SET].” The contract unequivocally gave SET the right to control Ms. Fossett’s work. Although Ms. Fossett testified on deposition that she was paid by Adecco, that she never received instruction from SET on how to do her job, and that her personal supervisor was an Adecco employee, the legal right of control the contract conferred on SET is dispositive. The present case turns on “general supervision,” not “direct supervision.” Any factual question about the extent to which SET exercised the right of control it undeniably enjoyed is immaterial.

Affirmed.

WEBSTER and VAN NORTWICK, JJ„ concur.


author: HAZOURI, J.

text:
    ENZYME ENVIRONMENTAL SOLUTIONS, INC., Jared Hochstedler, and Mark Murphy, Appellants, v. Steven D. ELIAS, Appellee.
    No. 4D10-3923.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Charles M. Greene and Allison G. Edwards of Charles M. Greene, P.A., Orlando, for appellants.
    Justin M. Pearson of Pearson & Associates, L.L.C., Coral Springs, for appellee.
   HAZOURI, J.

Enzyme Environmental Solutions, Inc., Jared Hochstedler and Mark Murphy appeal from a non-final order denying their motion to dismiss for lack of personal jurisdiction. The motion to dismiss was directed at a complaint filed by Steven D. Elias, alleging that these defendants were guilty of securities fraud, violation of the Florida Securities and Investor Protection Act, and conspiracy. The complaint also sought an accounting. In his Complaint, Elias alleged inter alia:

1. Plaintiff STEVEN D. ELIAS (“Elias”) is a citizen of Florida and resides in Broward County, Florida.
2. Upon information and belief, Defendant ENZYME ENVIRONMENTAL SOLUTIONS, INC. (“Enzyme”) is a Nevada corporation, located in Allen County, Indiana, and conducting business in Broward County, Florida.
3. Upon information and belief, Defendant JARED HOCHSTEDLER (“Hochstedler”) is a citizen of Indiana and resides in Allen County, Indiana. Defendant Hochstedler is the Chief Executive Officer of Defendant Enzyme.
4. Upon information and belief, Defendant MARK MURPHY (“Murphy”) is a citizen of Indiana and resides in Allen County, Indiana. Defendant Murphy is the President of Defendant Enzyme.
5. Venue is proper in Broward County, as the Plaintiff is located in Broward County and the harm caused by the Defendants occurred in Broward County-

The factual allegations were that Hochste-dler and Murphy, within the scope of their employment with Enzyme and individually, made false statements as early as January 2009 in press releases and on internet message boards that Enzyme had received offers to sell its stock to another company. As a result, the stock price increased, Elias bought in March 2009, and then the defendants made statements that they had refused the supposed offers and the stock dropped dramatically. Based upon this fabrication and fraudulent plan called a “pump and dump,” Elias was damaged.

The defendants filed a motion to dismiss for lack of personal jurisdiction. They argued that the allegations in the Complaint did not bring them within the ambit of the long-arm statute and there were not sufficient “minimum contacts” to satisfy due process. The three defendants filed Declarations pursuant to section 92.525, Florida Statutes (2009). Enzyme declared that its principal place of business is Indiana, all its directors and officers reside in Indiana, it has never maintained an office in Florida or conducted any business with Elias in Florida, and it does not have a registered agent in Florida. It does not own property, have a bank account, a telephone, or a post office box in Florida. It has not solicited business from Elias, met with him or had conversations with him in Florida, or anywhere else. It did not sell the stock to Elias.

Hochstedler declared that he lives in Indiana and has never resided, worked, or operated a business in Florida. He does not have a telephone, post office box, or office in Florida. He does have an interest in a timeshare condominium, which he has the right to use for one week every two years. He has never had any meetings, conversations, conducted any business, mailed anything to, or had any contact with Elias.

Murphy’s Declaration was substantially the same, except that he lived in Florida from 1988 until 1990.

In opposition to the motion to dismiss, Elias filed an affidavit in which he averred personal knowledge of the following:

2. When I purchased shares of the common stock of [Enzyme], I did so while in Broward County, Florida. I am also aware of other shareholders in Enzyme who purchased their Enzyme shares in Broward County, Florida.
3. The reason I decided to purchase Enzyme’s stock was due to press releases posted on the internet by the Defendants which contained false information, which I read on my computer in Bro-ward County, Florida, and due to other misleading statements made by the Defendants on their website, which I read on my computer in Broward County, Florida.
4. I have personally read numerous statements made by Enzyme and on behalf of Enzyme in which Enzyme states that its products are sold “nationwide.” Some examples are attached hereto as Exhibit “A.”
5. I have seen the Defendants’ interrogatory response where the Defendants admit that there are five different businesses located in Florida with which they have conducted business in the last five years, although it appears that number is actually much larger.
6. Enzyme claims to distribute its products nationwide through a company named Wow Green International, Inc. (“Wow Green”). Prior to their agreement with Wow Green, it appears Enzyme sold its products to consumers directly, and it appears highly likely that some of those consumers lived in Florida.
7. Wow Green’s presence in Florida is so substantial that Wow Green’s president, Jordan Zimmerman, lives in the Fort Lauderdale area. True and correct copies of some Wow Green information is [sic] attached hereto as Exhibit “B.”
8. Additionally, the United States Securities and Exchange Commission (the “SEC”) appears to agree with me that the Defendants have substantial contacts to Florida.
9. Due to the Defendants’ allegedly illegal activities in Florida, the SEC filed a lawsuit against Defendants Enzyme and Hochstedler, as well as the Defendants’ accomplices, in the United States District Court for the Middle District of Florida. A true and correct copy of such lawsuit is attached hereto as Exhibit “C.”
10. Defendants [Enzyme], and Hochstedler have answered the SEC’s lawsuit and have admitted jurisdiction in Florida. A true and correct copy of the answer is attached hereto as Exhibit “D.”
11. The court records indicate that the SEC lawsuit against Defendants Enzyme and Hochstedler is ongoing. In other words, the case in Florida in which Defendants Enzyme and Hochstedler have admitted jurisdiction continues to proceed at the same time as the Defendants attempt to contest jurisdiction before this Court.
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. 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.’ ”

See Two Worlds United v. Zylstra, 46 So.3d 1175, 1177 (Fla. 2d DCA 2010) (citations omitted).

The defendants argue that the second prong of Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla.1989), is not met because there are insufficient minimum contacts within the State of Florida to comport with due process. We agree.

Because we conclude that Elias’s allegations which attempt to establish personal jurisdiction fail to meet the test of sufficient minimum contacts in order to satisfy due process requirements, we need not address whether the complaint alleges sufficient jurisdictional facts to satisfy Florida’s long-arm statute.

“A court can exercise personal jurisdiction only if the nonresident defendant maintains ‘certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” ’ ’’Reiss v. Ocean World, S.A, 11 So.3d 404, 407 (Fla. 4th DCA 2009) (quoting Execur-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945))). “Adequate minimum contacts are established if the court finds that ‘the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.’ ” Reiss, 11 So.3d at 407 (quoting Worldr-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980)). “There must ‘be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.’ ” Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citation omitted)).

In Renaissance Health Publishing, LLC v. Resveratrol Partners, LLC, 982 So.2d 739 (Fla. 4th DCA 2008), this court discussed the issue of minimum contacts in defamation cases. This court stated:

The second Venetian Salami question is whether the defendants had sufficient minimum contacts with Florida so that the maintenance of a suit here does not offend “traditional notions of fair play and substantial justice.” “The requirement is satisfied if the defendant purposefully directs activities at Florida and litigation arises out of those activities, or the defendant purposefully avails himself of the privilege of conducting activities within the forum state.”
In Silver [v. Levinson, 648 So.2d 240 (Fla. 4th DCA 1994)], we held that a defendant who mailed a defamatory letter from Connecticut to six recipients in Florida had sufficient minimum contacts with Florida to be subject to suit here. Posting information on the Internet is different — “when a person places information on the Internet, he can communicate with persons in virtually every jurisdiction.” ALS Scan, Inc. v. Digital Serv. Consultants, Inc., 293 F.3d 707, 712 (4th Cir.2002). An interactive website which allows a defendant to enter into contracts to sell products to Florida residents, and which “involve[s] the knowing and repeated transmission of computer files over the internet,” may support a finding of personal jurisdiction.
... This case is distinguishable from internet defamation cases involving passive websites not designed to market products in the purported forum state.

Id. at 742 (citations omitted) (emphasis added). In Renaissance, we found there were sufficient minimum contacts because the purpose of the business defamation was to convince consumers to purchase the defendants’ products and not the plaintiffs. Although the defendants’ sales to Florida residents were only 2.4% of its total domestic sales, that commercial activity in Florida was sufficient to subject the defendants to jurisdiction because the disparagement was meant to enhance the defendants’ sales in this state, where the plaintiff has its corporate headquarters and the defendants could “reasonably anticipate being haled into court there.” Id. at 742 (citations omitted).

In the instant case, there is no evidence that the false statements were purposefully directed toward the residents of Florida. Assuming the defendants were actually trying to “pump and dump” their stock, they were targeting anyone and everyone who might go on the Internet to read about stocks on websites that publish information about stocks. The only basis for minimum contacts that Elias presents is the defendants’ “admitted business relationships with at least five different Florida businesses,” that they appear to have sold products in Florida, and that Enzyme and Hochstedler have agreed to jurisdiction in federal court albeit under federal SEC laws, not Florida’s long-arm statute.

In Elias’s affidavit, he fails to state any direct knowledge of any significant business transactions in Florida by the defendants. Much of Elias’s affidavit is mere speculation. The fact that the defendants have been sued in federal court in Florida by the SEC for alleged violations of sections of the Securities Act does not satisfy the requirement of establishing minimum contacts.

It therefore appears that Elias has not shown sufficient minimum contacts by the defendants with the State of Florida. We reverse and remand and direct the trial court to dismiss Elias’s complaint for lack of personal jurisdiction over the defendants.

Reversed and Remanded.

GROSS, C.J., and CIKLIN, J„ concur.


author: GROSS, C.J.

text:
    Tatyana NUDEL, Appellant, v. FLAGSTAR BANK, FSB, Unknown Spouse of Tatyana Nudel, Mortgage Electronic Registration Systems, Inc. as Nominee for Flagstar Bank, FSB, Palm Beach County, Adorno & Yoss, LLP, Unknown Tenant(s) in Possession, and All Other Unknown Parties, including, if a named Defendant is deceased, the personal representatives, the surviving spouse, heirs, devisees, grantees, creditors, and all other parties claiming, by, through, under or against that Defendant, and all claimants, persons or parties, natural or corporate, or whose exact legal status is unknown, claiming under any of the above named or described Defendants, Appellees.
    No. 4D10-3001.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Enrique Nieves of lee Legal, P.A., Royal Palm Beach, for appellant.
    William T. Viergever of Sonneborn Rut-ter Cooney & Klingensmith, P.A., West Palm Beach, for appellee Flagstar Bank, FSB.
   GROSS, C.J.

In this case we hold that a defendant is entitled to recover her attorney’s fees as a prevailing party under subsection 57.105(7), Florida Statutes (2009), after the court granted a motion to dismiss a mortgage foreclosure action and dismissed the case without prejudice.

On June 30, 2009, Flagstar Bank sued Tatyana Nudel to foreclose a mortgage. According to the mortgage, Flagstar was defined as the “lender” which lent Nudel $220,000; Mortgage Electronic Registration Systems, Inc., (“MERS”) was the “mortgagee” under the instrument, acting as a “nominee” for Flagstar; and Nudel was the “[bjorrower.” Under section 22 of the mortgage, the “lender” Flagstar was entitled to reasonable attorney’s fees and costs in foreclosure proceedings. MERS assigned the mortgage to Flagstar on August 21, 2009.

Nudel moved to dismiss the complaint, arguing that Flagstar lacked standing because MERS did not assign the bank the mortgage until after the bank filed the complaint. See Fla. R. Civ. P. 1.140(b). The circuit court agreed, granted the motion, and dismissed the case without prejudice on March 29, 2010. Nudel moved for attorney’s fees and costs on April 15, relying in part on the attorney’s fee provision in the mortgage. The circuit court denied the motion for fees, accepting Flagstar’s argument that Nudel had waived entitlement to fees under Stockman v. Downs, 573 So.2d 835 (Fla.1991), and Sardon Foundation v. New Horizons Service Dogs, Inc., 852 So.2d 416 (Fla. 5th DCA 2003), because she had not sought attorney’s fees in her motion to dismiss.

Initially, we hold Nudel did not waive her entitlement to attorney’s fees. It was proper for her to seek attorney’s fees in a motion filed after the entry of the dismissal without prejudice, because she had not yet filed a responsive pleading. In Stockman, the supreme court set forth a general rule that attorney’s fee “must be pled” or else they are waived. 573 So.2d at 837-38. Green v. Sun Harbor Homeowner’s Ass’n, 730 So.2d 1261, 1263 (Fla.1998), explained that when the Supreme Court used the phrase “must be pled” in Stockman, it referred to pleadings as those defined in Florida Rule of Civil Procedure 1.100(a) — complaints, answers, and counterclaims. Because a motion to dismiss is not a pleading, Stockman does not require the movant to raise the attorney’s fee claim in the motion; rather, “a defendant’s claim for attorney fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within thirty days following a dismissal of the action. If the claim is not made within this time period, the claim is waived.” Id. Nudel timely moved for attorney’s fees within thirty days of the dismissal, so she did not waive her claim.

Additionally, Nudel was entitled to recover her attorney’s fees. The mortgage between Nudel and Flagstar entitled Flagstar to reasonable attorney’s fees for enforcement. By operation of subsection 57.105(7), the contractual provision also allows attorney’s fees to Nudel if she is the prevailing party. See § 57.105(7) (“If a contract contains a provision allowing attorney’s fees to a party when he or she is required to take any action to enforce the contract, the court may also allow reasonable attorney’s fees to the other party when that party prevails in any action, whether as plaintiff or defendant, with respect to the contract.”).

Nudel is the prevailing party within the meaning of subsection 57.105(7). This court has held that a plaintiffs voluntary dismissal makes a defendant a “prevailing party” in the dismissed action even where the plaintiff refiles the case and prevails. In Alhambra Homeowners Ass’n v. Asad, 943 So.2d 316, 317-18 (Fla. 4th DCA 2006), an association sued some of its homeowners, but voluntarily dismissed its lawsuit without prejudice before a summary judgment hearing. The association subsequently re-filed the suit after unsuccessful mediation talks. Id. at 318. In the other, dismissed action, the homeowners moved for prevailing party attorney’s fees. Id. The circuit court found the homeowners to be the prevailing parties and awarded them fees. Id. Following Thornber v. City of Fort Walton Beach, 568 So.2d 914 (Fla.1990), this court affirmed. Id. at 318-20. We held that the homeowners were “entitled to recover attorney’s fees under a statute awarding fees to the prevailing party in litigation after the plaintiff took a voluntary dismissal without prejudice.” Id. at 317. This was so “even though the plaintiff subsequently refiled the identical lawsuit and ultimately prevailed.” Id.

For the purpose of determining a “prevailing party” under section 57.105(7), we see no reason to distinguish between a voluntary dismissal without prejudice and a court’s involuntary dismissal without prejudice. This same conclusion was reached in Bank of New York v. Williams, 979 So.2d 347 (Fla. 1st DCA 2008), where the first district affirmed an award of prevailing party attorney’s fees on facts similar to those in this case. There, the bank sued the defendant to foreclose a mortgage. Id. at 347. The defendant moved to dismiss because the bank failed to show that it owned the mortgage and promissory note and, thus, it lacked standing to sue. Id. The court dismissed a complaint and amended complaint without prejudice; “[w]hen the Bank declined to file a second amended complaint, the trial court dismissed the amended complaint with prejudice.” Id. The bank did not appeal this order, but instead instituted a new foreclosure action. Id. In the first action, the court awarded the defendant prevailing party attorney’s fees and costs. Id.

On appeal, the bank argued that, “because the same factual and legal issues raised in the dismissed action [were] also the subject of the new litigation, [the defendant] [could] [not] be the prevailing party.” Id. at 347-48. Relying on a voluntary dismissal without prejudice case, State ex rel. Marsh v. Doran, 958 So.2d 1082 (Fla. 1st DCA 2007), the first district rejected the bank’s argument. Id. at 348. “The refiling of the same suit after the voluntary dismissal does not alter the ap-pellees’ right to recover prevailing party attorney’s fees incurred in defense of the first suit.” Id. (quoting Doran, 958 So.2d at 1082 (citing, inter alia, Alhambra Homeowners Ass’n, 943 So.2d at 319)). Accordingly, the court held that the defendant was the prevailing party and affirmed her award. Id. We agree with Williams and conclude that Nudel was a prevailing party entitled to recover attorney’s fees.

Finally, we reject Flagstar’s argument of estoppel. Flagstar and Nudel were described as the “lender” and “borrower” respectively in the mortgage and they are bound by it. Flagstar may not seek affirmative relief under the mortgage and then take the position that provisions of the mortgage do not apply to it. See Ross v. Hacker, 284 So.2d 399 (Fla. 3d DCA 1973).

Reversed and remanded for further proceedings.

POLEN and DAMOORGIAN, JJ., concur.

      . We do not address the grounds for dismissal since Flagstar did not appeal that final order.


author: POLEN, J.

text:
    Elliot SHAPIRO, Appellant, v. Lionel TULIN, as Personal Representative of the Estate of Rocco DeStefano, Appellee.
    No. 4D10-774.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Richard C. Wolfe and Natasha Johnson of Ehrenstein Charbonneau Calderin, Miami, for appellant.
    Stanley G. Swiderski of Stanley G. Swid-erski, P.A., Hollywood, for appellee.
   POLEN, J.

Appellant, Elliot Shapiro, appeals the order of the trial court granting appellee’s, Lionel Tulin’s, motion to dismiss in this dispute over a contract to make a will. We find that the trial court erred when it dismissed appellant’s case with prejudice where the trial court looked beyond the four corners of appellant’s complaint in considering the motion to dismiss. Additionally, appellant was not afforded the opportunity to amend his complaint once as a matter of law, pursuant to rule 1.190(a), Florida Rules of Civil Procedure.

Appellant and Rocco DeStefano executed an “agreement” which contemplated a devise to either gentleman upon the death of the other party. The agreement required that, if DeStefano died first, certain jewelry would be given to appellant. If appellant died first, on the other hand, DeStefano would receive $100,000. The agreement further provided that, in the event either party failed to perform his respective obligation, the non-defaulting party would be a “secured creditor” in any claim against the estate. The agreement was signed by appellant, DeStefano, and DeStefano’s wife, all while in the presence of one another.

After DeStefano’s death, appellant presented his claim for the jewelry to Lionel Tulin, the personal representative of the DeStefano estate. Tulin filed an objection to the claim and refused to deliver the subject jewelry. As a result, appellant filed a complaint asserting three causes of action: replevin, breach of contract, and breach of fiduciary duty. In his complaint, appellant alleged that all conditions precedent were met, excused, or waived. Tulin, in turn, filed a motion to dismiss the complaint on three grounds: illegal gambling, barring of the breach of fiduciary duty claim under section 732.515, Florida Statutes, and failure to state a cause of action because the agreement did not comply with section 732.701, Florida Statutes. The trial court granted Tulin’s motion to dismiss based on his third point — the failure to comply with section 732.701 — and did not address points one and two. The trial court reasoned that the agreement upon which the complaint was based failed because it lacked the signatures of two attesting witnesses. This appeal followed.

“ ‘In reviewing an order granting a motion to dismiss ... [a] court may not go beyond the four corners of the complaint and must accept the facts alleged therein ... as true. All reasonable inferences must be drawn in favor of the pleader.’ ” Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (quoting Goodall v. Whispering Woods Ctr., LLC, 990 So.2d 695, 697 (Fla. 4th DCA 2008); Taylor v. City of Riviera Beach, 801 So.2d 259, 262 (Fla. 4th DCA 2001)).

A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party.

Fla. R. Civ. P. 1.190(a). Moreover, a motion to dismiss does not fall under the category of “responsive pleading” and, therefore, does not preclude a party from amending the complaint subsequent to the filing of such a motion. Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla. 3d DCA 2005).

The issue before this court is whether the trial court erred in granting Tulin’s motion to dismiss with prejudice because of its finding that two attesting witnesses did not sign the agreement. The complaint alleged that all conditions precedent — which would include the signatures of two attesting witnesses — were met, excused, or waived and, as this court has stated, such allegations must be accepted as true. As such, the trial court’s finding that section 732.701 was not complied with was based on facts not within the scope of the appellant’s complaint. Thus, because a court may not look anywhere but to the document on a motion to dismiss, and the trial court here clearly exceeded the boundaries of the four corners of appellant’s complaint in dismissing the claim on the basis that two attesting witnesses did not sign the agreement in accordance with section 732.701, the trial court erred in its dismissal of appellant’s claim.

Additionally, appellant pled generally that all conditions precedent were met and that he was not afforded the opportunity to amend his complaint to specifically plead the same in regards to the signatures of two attesting witnesses. Further, appellant contended that he asked for leave to amend his complaint once to cure the defects discussed in Tulin’s motion to dismiss, as a matter of course, and was denied this opportunity by the trial court. As noted above, a motion to dismiss is not a responsive pleading and will not affect a party’s ability to amend, pursuant to the Florida Rules of Civil Procedure. Appellant should have been afforded the right to amend his complaint to allege the compliance with all conditions precedent more specifically before the trial court dismissed his claim with prejudice.

Based on the foregoing, we find the trial court erred in dismissing appellant’s claim and we, therefore, reverse for further proceedings consistent with this opinion.

Reversed.

GROSS, C.J., and DAMOORGIAN, J„ concur.

      . Section 732.701, Florida Statutes, in part, provides:
      No agreement to make a will, to give a devise, not to revoke a will, not to revoke a devise, not to make a will, or not to make a devise shall be binding or enforceable unless the agreement is in writing and signed by the agreeing party in the presence of two attesting witnesses.
      § 732.701(1), Fla. Stat. (2010).


author: CIKLIN, J.

text:
    Kaye PEARSON and Bob Moss, Appellants, v. CATERPILLAR FINANCIAL SERVICES CORPORATION, a Delaware corporation, and Walt McCrory, an individual, Appellees.
    No. 4D09-3655.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Paul O. Lopez and Jonathan B. Lewis of Tripp Scott, P.A., Fort Lauderdale, for appellants.
    Elliot B. Kula of Greenberg Traurig, P.A., Miami, and Craig S. Barnett of Greenberg Traurig, P.A., Fort Lauderdale, for appellee Caterpillar Financial Services Corporation.
   CIKLIN, J.

This case involves two loan agreements and the personal guaranties signed by the appellants, Kaye Pearson and Bob Moss (the “Guarantors”). Because we find that the personal guaranties signed by the Guarantors could be reasonably interpreted two different ways, we reverse that portion of the summary judgment holding the Guarantors liable for all obligations under two separate loan agreements.

Chub Cay Club Associates, Ltd. (“Chub Cay Club”) financed its development of a resort community in the Bahamas in part through two loans from Caterpillar Financial Services Corp. (“Cat Financial”). The first loan of $6.3 million was procured to purchase utility equipment (the “Equipment Loan Agreement”) and was entered into on August 7, 2006. The second loan pertained to the construction of a facility (the “Construction Finance Agreement”) and was entered into on September 28, 2007. The Construction Finance Agreement provided a maximum aggregate sum of $10.8 million to be paid in draws.

On the same day the Construction Finance Agreement was executed, September 28, 2007, the Guarantors each executed a Personal Guaranty (referred to collectively as the “Personal Guaranties”) in favor of Cat Financial. Referring to Chub Cay Club as the “Obligor,” the pertinent section of the Personal Guaranties provided:

SECTION 1. Guaranty of Obligor’s Indebtedness. Guarantor hereby absolutely, irrevocably and unconditionally agrees to, and by these presents does hereby: (a) guarantee the prompt and punctual payment, performance and satisfaction of all present and future indebtedness and obligations of Obligor to Cat Financial which Obligor now owes Cat Financial or which Obligor shall at any time or from time to time hereafter owe Cat Financial when the same shall become due, in connection with or arising out of that certain Construction Finance Agreement dated AUGUST 31, 2007 (the “CFA ”), and whether representing, principal, interest and/or late charges or other charges of an original balance, an accelerated balance, a balance reduced by part payment or a deficiency after sale of collateral or otherwise; and (b) undertake and guarantee to pay on demand and indemnify Cat Financial against all liabilities, losses, costs, attorney’s fees, and expenses which may be suffered by Cat Financial by reason of Obligor’s default or default of the Guarantor (with all of Obligor’s indebtedness and/or obligations as stated above (including all costs, fees and expenses) being hereinafter individually and collectively referred to under this Guaranty as Obligor’s “Indebtedness”, which Indebtedness shall be conclusively presumed to have been created in reliance upon this Guaranty). THIS GUARANTY SHALL BE CONTINUING, ABSOLUTE, AND UNCONDITIONAL.

Additionally, the Personal Guaranties also contained language that they “shall be construed liberally in favor of Cat Financial and shall be governed and construed in accordance with the substantive laws of the State of Tennessee without regard to the conflicts of laws principles thereof.”

Chub Cay Club failed to make its payments as required under the terms of both the Equipment Loan Agreement and the Construction Finance Agreement. On February 8, 2008, Cat Financial served demand letters upon Chub Cay Club and the Guarantors demanding payment of the entire amounts owed under the equipment and construction loans, totaling $13,658,477.17 plus interest. The Guarantors did not comply with the demand for payment and Cat Financial filed suit on April 16, 2008.

On February 9, 2009, Cat Financial filed a motion for summary judgment with the trial court, arguing that no genuine issue of material fact existed as to the Guarantors’ obligations primarily because the obligations originated from written contracts, which courts are to interpret based on the words contained within the four corners of the writings.

On July 17, 2009, a hearing on the motion for summary judgment was held. Subsequently, on August 12, 2009, the trial court issued an order granting the plaintiffs motion for summary final judgment, which provided that the Personal Guaranties were unambiguous and that the contractual language in the Personal Guaranties, “all present and future indebtedness,” meant and included obligations under both the Equipment Loan and Construction Finance Agreements. The trial court also ruled that Tennessee law treated guaranties as “special contracts” whose words were to be “taken as strongly against the guarantor as the sense will permit.” Finally, the trial court found that the Guarantors’ affirmative defenses and counterclaims failed as a matter of law or because no genuine issue of material fact existed.

The summary judgment required the Guarantors to pay $14,627,007.49 to Cat Financial which the Guarantors have timely appealed.

The Guarantors argue that the language of the Personal Guaranties did not encompass the earlier Equipment Loan Agreement of August 2006 but rather only the subsequent Construction Finance Agreement of September 2007. Cat Financial argues that the Personal Guaranties were clear and unambiguous as to which financial obligations they were intended to secure.

“The standard of review for summary judgment orders is de novo.” Sulkin v. All Fla. Pain Mgmt., Inc., 932 So.2d 485, 486 (Fla. 4th DCA 2006). “This Court may reverse a trial court’s grant of summary judgment if it finds that there was a genuine issue of material fact and that the moving party was not entitled to judgment as a matter of law.” Palm Beach Pain Mgmt., Inc. v. Carroll, 7 So.3d 1144, 1145 (Fla. 4th DCA 2009) (citation and internal quotation marks omitted). Additionally, “[a]ll doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available.” Lander v. Smith, 906 So.2d 1130, 1132 (Fla. 4th DCA 2005) (citation and internal quotation marks omitted).

Regarding the interplay of contract interpretation and summary judgments, this court has stated,

If a contract’s terms are clear and unambiguous, the “language itself is the best evidence of the parties’ intent and its plain meaning controls,” warranting summary judgment. See Fecteau v. Se. Bank, N.A., 585 So.2d 1005, 1007 (Fla. 4th DCA 1991). If, however, there are “two reasonable interpretations” of a contract, “summary judgment is inappropriate because there is a genuine issue of material fact.” Id. This is because “ ‘[w]hen a contract is ambiguous and the parties suggest different interpretations, the issue of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the contract bearing upon the intent of the parties.’ ” Id. (quoting Bacardi v. Bacardi, 386 So.2d 1201, 1203 (Fla. 3d DCA 1980)).

Palm Beach Pain Mgmt., 7 So.3d at 1145-46.

Because the parties agreed that Tennessee law shall govern any questions with respect to contract interpretation, each side strenuously argues its own take on Tennessee law. The rules of construction, however, are fairly clear.

“A cardinal rule of contract interpretation is to ascertain and give effect to the intent of the parties.” Allstate Ins. Co. v. Watson, 195 S.W.3d 609, 611 (Tenn.2006) (citation and internal quotation marks omitted). The “plain meaning of the words in the document” should be used to ascertain the parties’ intent. Id. This means the “usual, natural, and ordinary meaning of the contractual language.” Johnson v. Johnson, 37 S.W.3d 892, 896 (Tenn.2001) (citation and internal quotation marks omitted). This requires courts to first determine whether the language used in the document is ambiguous. Allstate Ins. Co., 195 S.W.3d at 611. “If the language is clear and unambiguous, the literal meaning controls the outcome of the dispute. If, however, the words in a contract are susceptible to more than one reasonable interpretation, the parties’ intent cannot be determined by a literal interpretation of the language.” Id. (citation omitted). Additionally, “[contractual language is ambiguous only when it is of uncertain meaning and may fairly be understood in more ways than one.” Id. (citation and internal quotation marks omitted). Thus, an ambiguity is not present “merely because the parties may differ as to interpretations of certain” contract provisions. Johnson, 37 S.W.3d at 896. Finally, Tennessee law treats guaranties as special contracts in which “the words of the guaranty are to be taken as strongly against the guarantor as the sense will admit.” Farmers-Peoples Bank v. Clemmer, 519 S.W.2d 801, 805 (Tenn.1975).

In the instant case, the trial court, stating, “Simply put, ‘all’ means ‘all’,” found no ambiguity in the Personal Guaranties. The trial court focused on part of section 1 of the Personal Guaranties, which stated in pertinent part that the Guarantors:

[Guarantee the prompt and punctual payment, performance and satisfaction of all present and future indebtedness and obligations of Obligor to Cat Financial which Obligor now owes Cat Financial or which Obligor shall at any time or from time to time hereafter owe Cat Financial when the same shall become due, in connection with or arising out of that certain Construction Finance Agreement dated AUGUST 31, 2007....

The trial court essentially read this provision to mean that the Guarantors were guaranteeing any and all indebtedness between Chub Cay Club and Cat Financial, regardless of when the obligations accrued. While this may be a reasonable reading of the contract terminology, another reasonable reading of the same language is that the Guarantors were only guaranteeing indebtedness “in connection with or arising out of that certain Construction Finance Agreement dated AUGUST 31, 2007.” In other words, it was just as reasonable to interpret the language to mean that the Personal Guaranties only reached debts that originated from the Construction Finance Agreement and not the preceding Equipment Loan Agreement that was already in effect for over a year when the Personal Guaranties were executed. Just because Tennessee law strictly interprets guaranties against guarantors does not mean that the normal rules of contract interpretation are abrogated. See Samick Music Corp. v. Hoy, No. M2008-00441-COA-R3-CV, 2008 WL 4682216, *3 (Tenn.Ct.App. Oct.22, 2008) (finding that “[e]ven if the terms of the agreement are read ‘as strongly against the guarantor as the sense will admit,’ ... [s]ense will only permit us to go as far as the plain, unambiguous terms of the agreement allow”).

Cat Financial attempts to clear up any ambiguous language in the Personal Guaranties by referencing terms appearing in the Construction Finance Agreement. Cat Financial asserts that the terms “indebtedness” and “obligations” are defined in the Construction Finance Agreement, and therefore those terms should help define the liability within the Personal Guaranties. A provision of the Personal Guaranties, however, appears to limit the construction of its language, stating:

SECTION 9. Construction. This writing is intended as a final expression of this Guaranty agreement and is a complete and exclusive statement of the terms of that agreement, provided however, that the provisions of this Guaranty shall be in addition to and cumulative of, and not in substitution, novation or discharge of, any and all prior or contemporaneous written guaranties or other written agreements by Guarantor (or any one or more of them), in favor of Cat Financial or assigned to Cat Financial by others, all of which shall be construed as complementing each other. Nothing herein contained shall prevent Cat Financial from enforcing any and all such other guaranties or agreements in accordance with their respective terms.

This language may suggest that no outside terms or definitions are to be used to interpret or understand the Personal Guaranties. The language may not be able to be read to include the Construction Finance or Equipment Loan Agreements because neither of those agreements involved the Guarantors as parties, but was instead between Chub Cay Club and Cat Financial. Therefore, it appears that the intent of the Personal Guaranties is for the terms used within them to'be exclusive to them and not based on any definition found in the Construction Loan Agreement.

Even if we were to look to the definitions found within the Construction Finance Agreement, they do not necessarily render the Personal Guaranties unambiguous. First, Cat Financial points to the Construction Finance Agreement’s broad definition of “indebtedness” as indicating that the Personal Guaranties, when using the term “indebtedness,” also meant it broadly. However, “indebtedness” is defined in the Personal Guaranty as “all of Obligor’s indebtedness and/or obligations as stated above.” The “as stated above” language refers back to the ambiguous Section 1(a) of the Personal Guaranties which is the subject of this litigation. Additionally, “Obligations” is broadly, albeit confusingly, defined as well, but it remains unclear how this term is supposed to transfer over to the Personal Guaranties, especially in light of .the “Construction” section within the Personal Guaranties themselves.

It may very well be that the Personal Guaranties were meant to reach both of Chub Cay Club’s obligations to Cat Financial under the Equipment Loan and Construction Finance Agreements; however, because of the ambiguous language that could reasonably be interpreted two different ways, summary judgment was inappropriate to resolve this issue.

Reversed and remanded for further proceedings.

POLEN and HAZOURI, JJ., concur.


text:
    Teddy C. BLEVINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0597.
    District Court of Appeal of Florida, First District.
    May 18, 2011.

      Salvatore D. Mollica, Assistant Regional Counsel, Tallahassee, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the July 27, 2010, judgment and sentence in Bradford County Circuit Court case number 04-2009-CF-407-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

BENTON, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    Thomas E. SKORAN, Jr., Appellant/Cross-Appellee, v. SEACOAST UTILITY AUTHORITY and Florida League of Cities, Appellees/Cross-Appellants.
    No. 1D11-0946.
    District Court of Appeal of Florida, First District.
    May 18, 2011.
    Kenneth B. Schwartz of Kenneth B. Schwartz, P.A., West Palm Beach, for Appellant/Cross-Appellee.
    David M. Schweiger and Tamara M. Scrudders of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Ft. Laud-erdale, for Appellees/Cross-Appellants.
   PER CURIAM.

Upon review of Appellant’s response to this court’s March 1, 2011, order to show cause, we DISMISS this appeal and cross-appeal without prejudice to the right to seek review upon entry of a final order. See Mintz v. Broward Corr. Inst., 800 So.2d 343 (Fla. 1st DCA 2001) (holding order merely granting employer/earrier’s motion to dismiss is not an appealable final order); Truc v. Kimmins Corp., 889 So.2d 964, 964 (Fla. 1st DCA 2004) (dismissing, pursuant to Mintz, appeal of order granting employer/carrier’s motion to dismiss); see also Dedge v. Crosby, 914 So.2d 1055, 1056 (Fla. 1st DCA 2005) (order granting motion to dismiss with prejudice no more final than order granting motion to dismiss without prejudice).

DISMISSED.

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


text:
    Ericka D. WALKER, Appellant, v. TITAN INTERNATIONAL SECURITY, INC., and State of Florida, Unemployment Appeals Commission, Appellees.
    No. 4D10-475.
    District Court of Appeal of Florida, Fourth District.
    May 18, 2011.

      Ericka D. Walker, Lake Park, pro se.
    M. Elaine Howard, Deputy General Counsel, Tallahassee, for appellee, State of Florida, Unemployment Appeals Commission.
   PER CURIAM.

Affirmed. See Velazquez v. Unemployment Appeals Comm’n, 916 So.2d 1004 (Fla. 4th DCA 2006); Martinson v. Breit’s Tower Serv., Inc., 680 So.2d 599 (Fla. 3d DCA 1996).

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.