author: CIKLIN, J.

text:
    Eric WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3666.
    District Court of Appeal of Florida, Fourth District.
    Dec. 7, 2011.
    Rehearing Denied March 30, 2012.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Eric Walker appeals his convictions and life sentences for robbery with a deadly weapon and burglary of a dwelling with an assault or battery while armed with a firearm and wearing a mask. Walker raises three points on appeal. We affirm on all points and write only to discuss Walker’s assertion that the trial court abused its discretion in permitting the state to use a firearm as a demonstrative aid at trial even though it was not identical to the one used to commit the crimes.

At Walker’s trial, the victim testified that he arrived home at about 6:30 p.m. on January 2, 2008. He left the front door unlocked and went to his room where he placed his wallet and keys on the bed. While he was on his cell phone in the kitchen, he noticed that the front door was slightly opened. Thinking nothing of it at the time, he continued his phone conversation and walked back towards his bedroom.

As he reentered his room, someone grabbed him from behind and ripped the cell phone from his hand. The assailant then held a gun six inches from the victim’s face. The victim described the firearm as a “snub nose revolver type, brushed silver and was — to my belief a .88 revolver.” He said that he was familiar with firearms and believed that he was competent in identifying them. He explained, “judging by the size, the snub nose, as small as it was, I mean, I would say it would have had to have been a .38.”

The victim further testified that the gun was close enough to his face that he could see the bullets in the chamber. Over Walker’s objection, the state was permitted to use a .38 caliber gun as a demonstrative aid to show the jury how the victim could see ammunition in the gun with which he was threatened. Prior to allowing the state to use the firearm as a demonstrative aid, the trial court instructed the jury that the gun was being used by the state to demonstrate what the victim may or may not have seen, that the gun was not in any way related to the case being tried, and that no firearm was ever recovered by the police.

Deputy Mark Bouchard later testified that when he arrested Walker, the officer found a rag wrapped around eight rounds of .38 caliber ammunition in Walker’s back pocket.

The jury found Walker guilty as charged. The trial court subsequently sentenced Walker as a prison releasee reoffender to consecutive terms of life in prison on the armed burglary and armed robbery counts. Walker timely appealed the judgment and sentence.

On appeal, Walker argues that the trial court erred in permitting the state to use the .38 caliber revolver as a demonstrative aid. We disagree.

“The determination as to whether to allow the use of a demonstrative exhibit is a matter within the trial court’s discretion.” Chamberlain v. State, 881 So.2d 1087, 1102 (Fla.2004) (citation and quotation marks omitted). The standard for allowing a demonstrative aid into evidence is:

Demonstrative evidence is admissible only when it is relevant to the issues in the case.... [I]t is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time, or that it is such a reasonably exact reproduction or replica of the object involved that when viewed by the jury it causes them to see substantially the same object as the original.

Id. at 1102 (citation and quotation marks omitted).

In Chamberlain, the state’s witness had testified that on the night of the murders, she had seen the defendant holding a weapon with a flat black handle. Id. Over defense objection, the trial court permitted the prosecutor to display a police baton to the witness to aid her in describing the weapon she had seen to the jury. The witness testified that the weapon she saw the defendant holding on the evening of the murders was smaller than the one displayed to her at trial. In concluding that the trial court did not abuse its discretion, the supreme court noted that “the demonstrative aid was not admitted into evidence, and the State did not claim that it was the same weapon used in the murders. The State claimed only that it was similar.” Id.

Similarly, the demonstrative aid in this case was never admitted into evidence and the state never claimed it was the same weapon used in the murder. In fact, in this case, prior to allowing the state to use the demonstrative aid, the trial court thoroughly explained to the jury that a “firearm was not obtained in this case,” that “no firearm was ever recovered in any manner,” and that the firearm being shown to the witness was “not in any way related to this case.” As such, the trial court did not abuse its discretion in ruling that the firearm used by the state as a demonstrative aid was similar enough to the weapon that the witness had testified was used in the crimes. See id.; McKenney v. State, 967 So.2d 951, 957 (Fla. 3d DCA 2007) (finding that the trial court did not abuse its discretion in allowing the use of an AK-47 semiautomatic assault rifle for demonstrative purposes).

Walker argues that even if the firearm used at trial were an accurate reproduction of the gun used in the crimes, it was an abuse of discretion to permit the state to show the unrelated firearm to the jury because the demonstrative aid was not relevant to the issues in the case. According to Walker, the state used the aid only to prove that the gun was loaded, and that the question of whether the gun was loaded was not at issue. This was not the only relevancy of the weapon, however. The trial court correctly instructed the jury that the aid was being used to help the state demonstrate what the victim may or may not have seen. The question of whether the victim could properly identify the weapon as a .38 caliber revolver was relevant, as it tended to tie the .38 caliber bullets found on Walker at the time of his arrest to the firearm used in the robbery. Thus, the trial court did not abuse its discretion in determining that the demonstrative aid was relevant to the issues in the case, and we affirm the convictions and sentences.

Affirmed.

MAY, C.J., and STEVENSON, J., concur.

      . The trial judge instructed the jury as follows:
      A firearm was not obtained in this case. Was not ever take[n] into evidence in this case, no firearm was ever recovered in any manner. The state asked for the opportunity, and I granted the right to present to you a revolver firearm, which will be discussed. It is not in any way related to this case, it is simply being used to help the state demonstrate what the witness may or may not have seen. It's up to you to decide what a witness saw or didn’t see. But so this firearm that’s being used in this case is from law enforcement, it has nothing to do with this case, other than to help to describe the type of firearm that the witness is describing.
      Also noteworthy is, I think the testimony was, and it's obviously your choice or your decision on what the facts are, but the description was a snub nose revolver. This revolver is — has a longer barrel on it. So it’s — it’s in no way related to this case, other than that it is an example of what a revolver is, that is a .38 caliber. This gun is a .38 caliber revolver.


source: Caselaw Access Project

author: CONNER, J.

license: Public Domain

text:
    Jarrod Richard ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2344.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.
    Rehearing Denied March 27, 2012.

      Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Jarrod Richard Allen appeals the denial of his motion to dismiss eighteen counts of violating section 847.0138(2), Florida Statutes (2008). He argues that he was improperly charged with twenty counts of transmitting images harmful to minors when he sent only two instant messages to an undercover detective. Allen argues on appeal that section 847.0138(2) allows for only one unit of prosecution when multiple images are attached to one instant message transmission. We agree with the trial judge’s interpretation of the statute and affirm the decision of the trial court.

A Martin County Sheriffs Office undercover detective, conducting an online investigation by posing as a fourteen-year-old girl, received communications through Yahoo! Messenger from “blacksteelll8.” Blacksteelll8 was Allen, who identified himself as a sixteen-year-old male from Tampa. At the time, Allen was thirty-six and lived in an apartment in Altamonte Springs. Attached to two separate instant messages, Allen transmitted a total of twenty images of Caucasian and black penises to show size comparison.

Detectives from the Altamonte Springs Police Department accompanied the undercover detective to Allen’s apartment and asked to speak with Allen about the Internet investigation. During a voluntary interview, Allen admitted using the screen name “blacksteelll8” and sending images of nude males to underage females. The detectives then executed a search warrant and obtained several computers from Allen’s residence. Allen was arrested and charged with twenty counts of transmission of material harmful to a minor by electronics, in violation of section 847.0138(2), by sending two instant-message transmissions with ten images attached to each.

Allen moved to dismiss eighteen of the counts on the grounds that there were only two instant-message transmissions. At the hearing on the motion to dismiss, the undercover detective testified that Allen sent two separate instant messages with ten sexually explicit photographs attached to each. The detective testified that he had to download the photographs from the instant messages individually and that they were “transmitted individually.” Without a written order, the trial judge denied Allen’s motion to dismiss and gave his reasoning on the record:

In this case the uncontroverted testimony ... presented by the officer as the only one who testified in this matter is that he received 10 individual images .... [T]he uncontroverted evidence is that he received one at a time, he received images according to the testimony of 20 different images sent by the-allegedly by the Defendant and they were individually downloaded on his computer. It seems to make logical sense to that under the statute that a person who sends one image would be treated as someone who sent 6,000 images under the Defense argument and it would be treated the same and that doesn’t make logical sense, but my job is to just interpret or just to say exactly what the legislature said and they said anyone who sends “an,” meaning one image, is guilty of a third-degree [crime] and in this case there was more than “an,” one image sent, there w[ere] 20 images allegedly sent, therefore, it seems to be properly — charged and the motion to dismiss is denied, the record is made clear for any appellate purposes.

Allen pled guilty to each of the twenty counts, reserving his right to appeal the denial of his motion to dismiss. The trial judge sentenced Allen to 180 months in prison, followed by fifteen years of probation. The judge based the sentence on the number of counts of conviction. On appeal, Allen pursues his argument that his motion to dismiss eighteen of the counts should have been granted under his interpretation of section 847.0138(2).

“Questions of statutory interpretation are subject to de novo review.” Mendenhall v. State, 48 So.3d 740, 747 (Fla.2010). “[L]egislative intent is the polestar that guides a court’s statutory construction analysis.” Knowles v. Beverly Enters.-Fla., 898 So.2d 1, 5 (Fla.2004). In determining that intent, “we look first to the statute’s plain meaning.” Id. (quoting Moonlit Waters Apartments, Inc. v. Cauley, 666 So.2d 898, 900 (Fla.1996)).

The statute at issue provides:

[A]ny person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree ....

§ 847.0138(2), Fla. Stat. (2008). Allen contends that only two units of prosecution should be allowed against him because two transmissions occurred, irrespective of the number of attached photographs. The State maintains that each of the twenty pictures constitutes a separate violation or count.

The statute defines “transmit” as “to send to a specific individual known by the defendant to be a minor via electronic mail.” § 847.0138(l)(b), Fla. Stat. The statute also clarifies that “[t]he provisions of this section do not apply to subscription-based transmissions such as list servers.” § 847.0138, Fla. Stat. “Thus, electronic mail is the only regulated transmission mechanism,” and the Florida Supreme Court recognizes “electronic mail” to be “both email and electronic mail sent by instant messaging.” Simmons v. State, 944 So.2d 817, 325 & n. 7 (Fla.2006). Therefore, the instant messages transmitted by Allen to the undercover detective are encompassed by section 847.0138(l)(b). The statute has been interpreted to contain a geographic knowledge component: “[T]he Florida transmission statute provides that the sender who transmits the email containing material that is harmful to minors must either know or believe that the specific individual who is the recipient of the e-mail is a minor located in Florida. Id. at 332-33 (emphasis in original).

The undercover detective testified that he had to open each of the photographs attached to Allen’s email message individually. This indicates that the photographs were separate pictures attached to the message, although they were sent in one message. The photographs were not viewable with the message and had to be opened one by one, making them individual photographs amenable to being individual counts under section 847.0138. The statute states that the punishable conduct is transmitting “an image ... that is harmful to minors,” which plainly means each individual photograph. § 847.0138(2), Fla. Stat. (emphasis added).

In Grappin v. State, 450 So.2d 480 (Fla.1984) our supreme court held that when the article “a” precedes the item described in a statute, it is the intent of the Legislature to make each separate item subject to a separate prosecution. Subsequent to Grappin, our supreme court held in State v. Watts, 462 So.2d 813 (Fla.1985) that when the article “any” precedes the item, then only one prosecution per criminal episode can take place, even for multiple items. In Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990) we applied the “a/ any” test to section 827.071(5), Florida Statutes (1987), dealing with possessing “any” photograph that depicted sexual conduct by a child, and held only one unit of prosecution could lie against a father who possessed seven photographs of his minor daughter’s sexual conduct. Subsequent to our decision in Schmitt, the Legislature amended section 827.071 to punish possession of “a” photograph that depicted sexual conduct by a child. The Legislature was aware of the application of the “a/any” test by Florida courts when it enacted section 847.0138 in 2001. It seems clear the Legislature intended separate prosecutions for multiple images transmitted in one instant message when referencing “an image” (instead of “any image”) when it enacted section 847.0138.

The trial judge correctly analyzed that it would make no sense to consider twenty or 6000 photographs harmful to minors as only one unit of prosecution simply because they are attached to a single electronic transmission. That result would defeat the plain meaning of the statute. Accordingly, the trial judge correctly denied Allen’s motion to dismiss eighteen of the twenty counts with which he was charged.

Affirmed.

WARNER and POLEN, JJ., concur.

      . "To the extent that the term ‘electronic mail' is not sufficiently defined by the statute, we interpret it as including both email and instant message communications sent to a specific individual." Simmons, 944 So.2d at 329. "Thus, the statute does not apply to websites or other materials posted on the Internet for general public viewing.” Id.

      . The definition of “harmful to minors,” contained in section 847.001(6), derives from the constitutional obscenity standard from Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and its application in the context of juveniles in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Simmons, 944 So.2d at 325.

      . After Watts, Florida courts have applied the "a/any” test as dispositive on the issue of what is a unit of prosecution. See Pierce v. State, 681 So.2d 873 (Fla. 1st DCA 1996) (section 843.01 permits only one conviction of resisting an officer during a single incident, involving multiple officers); Hill v. State, 711 So.2d 1221 (Fla. 1st DCA 1998) ("a/any” test applied in the context of felony possession of firearms); Thibeault v. State, 732 So.2d 28 (Fla. 2d DCA 1999) ("a/any” test applied in the context of section 847.0133 punishing the transmission of obscene material to a minor). In Bautista v. State, 863 So.2d 1180, 1181 (Fla.2003), the supreme court clarified "the a/any test is not an infallible or exclusive indicator of legislative intent. Rather, absent clear legislative intent to the contrary, the a/any test serves as a valuable but nonexclusive means to assist the courts in determining the intended unit of prosecution.”

      . Allen’s double jeopardy argument is unavailing. "The Fifth Amendment guarantee against double jeopardy protects a defendant from, among other things, multiple punishments for the same offense." State v. Sholl, 18 So.3d 1158, 1162 (Fla. 1st DCA 2009). Because, under section 847.0138(2), each attached and transmitted photograph is a separate, punishable violation, there is no double jeopardy.


author: WARNER, J.

text:
    HOLLYWOOD MEDICAL CENTER, INC., d/b/a Hollywood Medical Center, a Florida Corporation, Appellant, v. Camillus ALFRED, as Personal Representative of the Estate of Ursuline Alfred, deceased and Ursuline Alfred, individually and on behalf of all the survivors of Ursuline Alfred, Appellees.
    Nos. 4D09-4878, 4D10-1003.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.
    Rehearing Denied March 27, 2012.

      Hinda Klein and Jonathan Abel of Con-roy, Simberg, Ganon, Krevans, Abel, Lur-vey, Morrow, & Schefer, P.A., Hollywood, for appellant.
    Keith Chasin of Law Office of Keith Chasin, Miami, for appellees.
   WARNER, J.

Hollywood Medical Center (“HMC”) appeals a final judgment in favor of Camillus Alfred as personal representative of the estate of his wife, Ursuline Alfred, based upon a jury verdict finding HMC liable for medical negligence in the death of Mrs. Alfred. HMC contends that the trial court erred in denying its motion for directed verdict, as Alfred failed to prove that any negligence on the part of the nursing staff of HMC affected the outcome, or that had the negligence not occurred, Mrs. Alfred more hkely than not would have survived. Instead, the evidence offered by the plaintiff showed that had the physician undertaken appropriate treatment at the time of the emergency admission, more likely than not Mrs. Alfred would have survived. We agree that no evidence supported causation and therefore reverse.

We summarize the facts presented in the plaintiffs case. Around 7:30 in the evening of May 18, 1996, 45-year-old Ursuline Alfred cried out “my head,” and her husband found her on the bathroom floor in a coma-like state. Alfred called emergency services which responded within minutes. The paramedics took her vital signs, which were near normal, and stabilized her, diagnosing her at the time as having a grand mal seizure. They transported her to HMC. Her oxygen level was well below normal, and they placed a breathing mask on her. Within a minute her level returned to normal. On the way, Mrs. Alfred became conscious enough to ask the paramedics to take off the mask. However, seconds before reaching the hospital she experienced another seizure, returning her to a postictal, or coma-like state. At 8:00 p.m. the paramedics recorded her vital signs at near normal levels. Their records show that she was delivered to the HMC emergency room at 8:08 p.m.

Plaintiff called Nurse Ackerly, who was on duty in the ER at the time of Alfred’s admission. Presented with the hospital records, Ackerly attempted to explain them, although fourteen years later she did not have specific recollection of the incident. The records revealed that the primary assessment of the patient was made at 8:16 p.m. The patient’s vital signs were recorded as a pulse rate in the low 40s, blood pressure rate of 49 over palp, which is very low, and a Glasgow coma score of 3, which is the lowest score which can be given. She had shallow breathing. Ackerly testified that this would make Mrs. Alfred a “level one” patient, meaning that she required the most intensive care, although “level two” was checked on the nursing notes by someone other than Ack-erly. She also testified that looking at the notes she identified as hers, they were intervening and treating Mrs. Alfred, not according to the level marked on her chart, but based on her vital signs. The emergency room physician, Dr. Schillinger, was at Mrs. Alfred’s bedside when Ackerly arrived, which was during the primary assessment. The emergency room staff also had the information from the paramedics and their treatment of Mrs. Alfred en route to the hospital.

With this information, Dr. Schillinger ordered that Mrs. Alfred be given valium intravenously to prevent an additional seizure. At 8:20 she was administered Atropine, a potent heart medicine to jump start the heart. At 8:22 she was administered epinephrine, a vasoconstrictor also used to help the heart-pumping action. There was some evidence presented in plaintiffs case that Dr. Schillinger made one unsuccessful attempt to intubate Mrs. Alfred. She was then administered Anectine, a powerful paralytic, in order to permit intubation. Shortly thereafter, Mrs. Alfred went into full cardiac arrest and was pronounced dead at 8:40.

Dr. Bruce Charash, an expert in cardiology, testified for the plaintiff as to Mrs. Alfred’s survivability had proper treatment been given. He testified that her death was preventable had she been intubated and put on a respirator and treated immediately upon presentation to the emergency room around 8:15 or 8:16. When her vital signs were first recorded in the ER, Dr. Charash testified that it was apparent that she was “unraveling.” This required her immediate intubation to get more oxygen to her heart. Intubation takes only seconds. Without an autopsy, no definitive cause of death could be determined, but Dr. Charash thought that Mrs. Alfred had suffered a pulmonary embolism which could have been survivable given her age and the fact that she had already survived for nearly an hour from her first seizure.

Nurse Cindy Cook testified as an expert on nursing care. She maintained that recording Mrs. Alfred as a level two patient was far below the standard of care. In addition, the fact that the nurses did not take vital signs immediately upon Mrs. Alfred’s entry into the ER at 8:08, or apparently any time up until 8:15, was reckless, given her obviously compromised state. Moreover, between 8:15 and 8:30 no vital signs were recorded, from which Cook inferred that none were taken, which was also a severe breach of the standard of care. Cook also said the nurses should have questioned the physician when he ordered the administration of valium because of Mrs. Alfred’s low heart rate. Cook did not testify to causation.

Finally, Dr. Vernon Sichewski testified as an expert emergency room physician. He maintained that the emergency room physician should have intubated Mrs. Alfred immediately upon arrival in the ER. Moreover, the doctor should not have administered valium to her at 8:15 unless he intubated her immediately. And he testified that the physician should never have administered anectine. He did not opine as to the nursing care received by Mrs. Alfred.

The hospital moved for a directed verdict both as to its vicarious liability for Dr. Schillinger and for its nursing staff. As to the nursing staff, the hospital contended that the plaintiffs experts testified that Dr. Schillinger was negligent in failing to intubate Mrs. Alfred at 8:15, and had he done so, Mrs. Alfred more likely than not would have survived the incident. However, no evidence was presented that any conduct of the nursing staff caused or contributed to the failure of Dr. Schillinger to do so. The trial court denied the motion. HMC and Dr. Schillinger then presented their defense in which their experts testified that they acted within the standard of care. It is not necessary to this opinion to detail that evidence.

During jury deliberations, Dr. Schilling-er settled with the plaintiff. The jury returned a verdict finding both Dr. Schil-linger and the hospital negligent. The court entered a final judgment for Alfred, from which HMC now appeals.

Although HMC raises several issues, we address only the denial of the motion for directed verdict, as that issue is dispositive of the case. The standard of review of an order denying a motion for directed verdict is de novo. Henry v. Hoelke, 82 So.3d 962, 965, 2011 WL 3477027 (Fla. 4th DCA 2011); Tarpon Springs Hosp. Found., Inc. v. Reth, 40 So.3d 823, 826 (Fla. 2d DCA 2010).

“To prevail in a medical malpractice case a plaintiff must establish the following: the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that said breach proximately caused the damages claimed.” Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). As to the nursing negligence, Alfred presented evidence of the standard of care through Nurse Cook that the nurses should have assessed Mrs. Alfred as a level one patient rather than a level two patient, should have recorded her vital signs earlier and more frequently, and should have questioned the doctor regarding the administration of valium when her vital signs were so compromised. Because they did not do any of these tasks, Nurse Cook testified that they breached the standard of care. What is missing here, as it was in Good-ing, is the third element, namely whether the breach of that duty proximately caused the damages claimed.

In Gooding, a patient presented at the hospital after experiencing abdominal pain. He had called his personal physician prior to his arrival at the emergency room, and the staff in the emergency room did not take a history or vital signs, believing that his personal physician was arriving to direct his care. Unfortunately, the patient had suffered an abdominal aneurism, went into cardiac arrest, and died. His wife sued the hospital for failing to take a history or administer any tests. Her expert testified that the hospital staffs inaction in failing to take a history and order tests fell below the standard of care, but he did not testify that immediate diagnosis and surgery more likely than not would have allowed the patient to survive. Because no such evidence was produced, the Florida Supreme Court ultimately held that the court should have directed a verdict because of the lack of evidence of causation. Specifically, the court held:

[A] plaintiff in a medical malpractice action must show more than a decreased chance of survival because of a defendant’s conduct. The plaintiff must show that the injury more likely than not resulted from the defendant’s negligence in order to establish a jury question on proximate cause. In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome.

Id. at 1020.

Applying Gooding to this case, it is apparent that Alfred failed to prove causation. He did not show that the breach of the standard of care by the nursing staff caused Mrs. Alfred’s death. What he showed was that the doctor’s failure to intubate Mrs. Alfred when her vital signs were crashing was negligent and more likely than not, had she been intubated, she would have survived. No one testified that the nurses had a duty to perform the intubation. No one testified that had the nurses checked the level one box on the nursing form or had they taken Mrs. Alfred’s vital signs immediately or more frequently, more likely than not she would have survived. In fact, Dr. Charash’s testimony as to the failure to intubate was dependent upon the crashing vital signs actually recorded at 8:15. Based upon those recorded vital signs, had the doctor acted more quickly in intubating Mrs. Alfred, she most likely would have survived. Thus, while the evidence supported a conclusion that the physician’s failure to act affected the outcome, no one testified that the nurses’ failures to act affected Mrs. Alfred’s outcome. Without such testimony in a medical malpractice case, the defendant is entitled to a directed verdict.

Alfred cites the supreme court’s decision in Cox v. St. Josephs Hospital, 71 So.3d 795 (Fla.2011), for support, although it is completely distinguishable. In that medical malpractice case involving the failure to administer a blood-clot-dissolving drug to a stroke victim, the plaintiffs expert testified that had the drug been administered the patient more likely than not would have survived with minimal brain damage. The Second District reversed a jury verdict in favor of the plaintiff, concluding that the expert’s testimony was speculative and unsupported by the statistical evidence which showed a success rate of the drug of less than fifty percent. The supreme court quashed the district court’s decision, concluding that it had departed from the court’s precedent and had imper-missibly reweighed the expert’s testimony. While acknowledging that an expert’s opinion cannot be based on mere speculation, the court detailed how the expert’s testimony was based upon the expert’s thorough review of the patient’s medical history. Moreover, the analysis of the statistical evidence was a controverted issue at trial and thus an issue for the jury to decide.

Unlike Cox, in this case no evidence was presented that had the nurses monitored the patient’s vital signs earlier and more carefully Mrs. Alfred would have survived. Therefore, we are not reweighing any evidence because there was none on the causation issue with respect to the nurses’ negligence.

For the foregoing reasons, we reverse the final judgment and remand for entry of judgment in favor of the hospital.

MAY, C.J., and GROSS, J., concur.


author: POLEN, J.

text:
    Donald JERVIS, Appellant, v. Joan M. TUCKER, Larry Thomas Tucker, Susan Joan Burrell a/k/a Susan Joan Burrell Moss and Sandra Lynn Gigler, Appellees.
    No. 4D10-392.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Rehearing Denied March 30, 2012.

      Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellant.
    Mark R. Manceri of Mark R. Manceri, P.A., Fort Lauderdale, for appellees.
   POLEN, J.

Appellant, Donald Jervis, beneficiary of Bernice J. Meikle’s trust and limited guardian to Meikle, timely appeals the trial court’s order granting summary judgment and determining that Meikle’s second amendment of her trust was invalid, where testamentary capacity was at issue. The court stayed within the four corners of the trust and determined that no genuine issues of material fact existed as to whether Meikle lacked the requisite capacity. We agree and affirm the trial court’s order.

Bernice J. Meikle executed a trust agreement in 1991. Meikle designated herself as the trustee and named her three siblings, including Jervis, and her sister-in-law as beneficiaries. Meikle later executed her will, identifying her closest living relatives as her brothers, sister, stepdaughter, and step-grandchildren. When Meikle executed her will, she executed the first amendment to her revocable trust agreement (“first amendment”). The first amendment granted cash gifts of $5,000 to each of Meikle’s three siblings and distributed the remainder of Meikle’s assets between her stepdaughter and step-grandchildren.

Years later, while Meikle was staying at a facility to rehabilitate from an injury, she began a friendly relationship with an on-site security guard. Meikle’s family and attorney believed that the guard was “disturbing her life and had been taking money from her.” The family determined that the guard was not a positive influence on Meikle, that she could not protect herself, and that the court needed to be involved. As a result, Jervis filed a petition to determine whether Meikle lacked capacity to handle her affairs. Jervis also sought limited guardianship. On October 30, 2000, the court entered an order determining incapacity as to Meikle and appointed Jer-vis as limited guardian of Meikle’s person and property. However, on December 27, 2001, without the presence or knowledge of Jervis, Meikle attempted to execute a second amendment to her revocable trust agreement (“second amendment”). In the second amendment, Meikle sought to reallocate the distribution of her assets.

After Meikle’s 2007 death, Joan M. Tucker, Larry Thomas Tucker, Susan Joan Burrell, and Sandra Lynn Gigler (collectively “appellees”) filed a complaint against Jervis as trustee of the Bernice J. Meikle Trust of 1991, as amended on October 27, 1997 and December 27, 2001, followed by first and second amended complaints; the finished product of which contained ten counts. The subject of the lawsuit was the second amendment to the trust — an amendment which changed the amounts each beneficiary was entitled to — for which Meikle never obtained approval from the court to execute. Appel-lees later filed a motion for summary judgment as to counts IV, IX and/or X of the second amended complaint. The trial court granted summary judgment as to count IV, which alleged that the second amendment was “void and of no legal effect.” This appeal followed.

Orders granting summary judgment are reviewed using the de novo standard of review. Coleman v. Grandma’s Place, Inc., 63 So.3d 929, 932 (Fla. 4th DCA 2011). “The movant carries the burden of showing that no genuine issue of material fact exists, making summary judgment appropriate.” Id. If the evidence shows that an issue of material fact exists such that different reasonable inferences can be drawn, the issue should go to the jury as the finder of fact. Id.

Jervis argues that, contrary to the trial court’s findings, the record evidence and opinions of treating physicians prove that Meikle had the requisite capacity to execute testamentary documents. Appellees assert that Meikle’s capacity at the time of the amendment was irrelevant because once she was declared incapacitated by the court, her capacity was not restored by court order prior to the amendment. This court held in Hendershaw v. Estate of Hendershaw, 763 So.2d 482 (Fla. 4th DCA 2000), that if the testator was competent at the time the will was executed, it can be properly admitted to probate. Id. at 484. “Testamentary capacity is determined only by the testator’s mental capacity at the time he executed his will.” Id. at 483. Here, Meikle’s treating physician, Dr. George Button, determined that she possessed the requisite capacity to execute testamentary documents. Dr. Strang, a licensed nursing home health care administrator with a certificate in geriatric case management with many years of medical schooling, testified that he examined Meikle and found that she did not lack testamentary capacity. However, the trial court disagreed, finding that Meikle was incapacitated at the time of the second amendment, and ordered summary judgment in favor of appellees, rendering the second amendment to the trust null and void.

“ ‘In construing the provisions of a trust, the cardinal rule is to try to give effect to the grantor’s intent, if possible/ ” Vetrick v. Keating, 877 So.2d 54, 58 (Fla. 4th DCA 2004). And “[w]here the terms of an agreement ... are unambiguous, its meaning and the intent of the maker are discerned solely from the face of the document, as the language used and its plan [sic] meaning controls.” In re Estate of Barry, 689 So.2d 1186, 1187-88 (Fla. 4th DCA 1997). Here, the first amendment to Meikle’s trust contains language which provides for the suspension of rights “[i]f, at any time during the continuance of [the] trust, Grantor is adjudicated incapacitated by a court of appropriate jurisdiction.”

The Grantor’s powers and those of Grantor/Trustee may be restored either by virtue of an order of an appropriate court having jurisdiction over Grantor, or upon the issuance and receipt by the Trustee of a written opinion from the physician or physicians on whose opinion the Trustee relied regarding the Grant- or’s capacity or if none are available, then two other licensed physicians who have examined the Grantor.

The plain meaning of the document shows that Meikle’s capacity must have been restored by the court in order to amend her trust once she was adjudicated incapacitated and the right to control her property was removed and the responsibility of her property became Jervis’, as her trustee. Without a court order restoring her rights, she must have obtained two opinions by licensed physicians. The court restored several of Meikle’s rights, but one which was not restored was that regarding property; therefore, Meikle needed to get two licensed physicians’ opinions to regain the power to handle her property. Dr. Button, a licensed physician who had met with Meikle many times, opined that she possessed capacity to amend the trust; however, Dr. Strang, a nursing home administrator with expert experience and medical schooling — but without a physician’s license — submitted the other opinion. This is contrary to what was unambiguously required.

Jervis relies on Chapman v. Campbell, 119 So.2d 61 (Fla. 2d DCA 1960), to support his position that because Meikle had testamentary capacity at the time she originally executed the trust, any past or future incapacities were immaterial. Id. at 64. Therefore, Jervis contends, the second amendment was valid. However, Chapman is not controlling in this case because, as this court discussed in In re Estate of Barry, unambiguous terms shall be interpreted to give meaning to the plain language, as intended by the grantor. The first amendment to the trust, a valid amendment made before the determination that Meikle was incapacitated, expressly stated that certain things had to occur in order to restore capacity in the event the court declared Meikle incapacitated. Because the proper proof to restore capacity to amend was not presented by Meikle, she did not have the power to amend her trust at the time she did. Accordingly, no genuine issue of material fact exists, as it is clear that Meikle’s power to control her property was never restored. The second amendment to her trust was improper because she lacked testamentary capacity at the time of the amendment.

Therefore, we affirm the trial court’s order granting summary judgment in favor of appellees as to count IV of their second amended complaint where the court stayed within the four corners of the trust and found that Jervis was unable to support his argument that Meikle had the requisite testamentary capacity to amend her trust a second time.

Jervis also moves for attorney’s fees pursuant to sections 736.1005, 736.1007, and 736.0816, Florida Statutes, and Florida Rule of Appellate Procedure 9.400. Of particular importance to this case, section 736.1005 provides that “[a]ny attorney who has rendered services to a trust may be awarded reasonable compensation from the trust.” § 736.1005(1), Fla. Stat. (2011). Section 736.1007 states that “[i]f the trustee of a revocable trust retains an attorney to render legal services in connection with the initial administration of the trust, the attorney is entitled to reasonable compensation for those legal services.” § 736.1007(1), Fla. Stat. (2011). The trial court oversees matters regarding attorneys’ fees and makes assessments as to such awards. We hold that if the trial court finds that counsel for appellant bene-fitted the trust, not just his client, through his representation, Jervis is entitled to attorneys’ fees, pursuant to Florida Statutes.

Affirmed.

STEVENSON and TAYLOR, JJ„ concur.

      . Appellees filed a cross-appeal of this matter. Appellant filed a motion to dismiss the cross-appeal on March 3, 2011 on the grounds that "an Order denying a motion for summary judgment is not an appealable non-final Order pursuant to 9.130." The court granted the motion to dismiss the cross-appeal, leaving the only appealable issue as the granting of summary judgment as to count IV of the second amended complaint filed by appellees.

      . Testamentary capacity is measured the same for both wills and trusts. See Levin v. Levin, 60 So.3d 1116, 1118-19 (Fla. 4th DCA 2011).


author: PER CURIAM.

text:
    Curtis McGRILL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3695.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Rehearing Denied March 30, 2012.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Curtis McGrill (McGrill) appeals a final order of the circuit court denying his motion for an alternative sentence and imposing a conviction and sentence. We reverse the order of the trial court, holding that a defendant whose criminal conduct is in •violation of section 893.13(2)(a) or (6)(a), Florida Statutes (2009), is not barred from obtaining an alternative sentence under section 948.20(1), Florida Statutes (2009), if his Criminal Punishment Code score-sheet total sentence points exceed fifty-two.

Factual Background

McGrill was charged with possession of cocaine in violation of section 893.03(2)(a)(4), Florida Statutes (2008), and section 893.13(6)(a), Florida Statutes (2008). His Criminal Punishment Code (CPC) scoresheet tallied 78.4 points. He pled no contest to the charges and filed a motion for an alternative sentence under section 948.20, Florida Statutes (2009).

At the hearing on McGrill’s motion, the state argued that Florida’s Drug Offender Probation statute did not apply to any person charged with a felony who scored fifty-two points or higher on his CPC scoresheet. McGrill argued that only offenders charged with a non-violent felony committed on or after July 1, 2009, were required to score fifty-two points or fewer. The contested portion of the statute is as follows:

If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a), or other nonviolent felony if such nonviolent felony is committed on or after July 1, 2009, and notwithstanding s. 921.0024 the defendant’s Criminal Punishment Code scoresheet total sentence points are 52 points or fewer, the court may either adjudge the defendant guilty or stay and withhold the adjudication of guilt.

§ 948.20(1), Fla. Stat. (2009).

The circuit court held that the statute was not ambiguous and that McGrill did not qualify under it. McGrill then entered a plea, but expressly reserved the right to appeal the court’s ruling.

Analysis

Because the circuit court, relying on its interpretation of the statute, denied McGrill’s motion as a matter of law, we review the court’s decision de novo. Nelson v. State, 16 So.3d 286, 288 (Fla. 4th DCA 2009).

We disagree with the trial court’s view that the statute is unambiguous. A statute is ambiguous if reasonable people could find different meanings from the same language. Blanton v. City of Pinellas Park, 887 So.2d 1224, 1230 (Fla.2004). This statute can reasonably be interpreted in at least two ways. First, the comma after “July 1, 2009” may be a joining comma. If this is the case, then the language “notwithstanding s. 921.0024 the defendant’s Criminal Punishment Code score-sheet total sentence points are 52 points or fewer,” modifies (1) defendants whose criminal conduct violated either s. 893.13(2)(a) or 893.13(6)(a) and (2) nonviolent felons who committed a felony on or after July 1, 2009. This comports with the state’s interpretation of the statute.

Second, the comma after “July 1, 2009” may simply exist because the rules of grammar dictate that, when writing a proper date, a comma is included after both the date and the year. If this is the case, then the language “notwithstanding s. 921.0024 the defendant’s Criminal Punishment Code scoresheet total sentence points are 52 points or fewer,” would apply only to offenders who committed a nonviolent felony on or after July 1, 2009. This is McGrill’s interpretation of the statute.

Having decided that section 948.20, Florida Statutes (2009), is inherently ambiguous, we turn to traditional tools of statutory interpretation. Blanton, 887 So.2d at 1224. “[L]egislative intent is the polestar that guides a court’s statutory construction analysis.” McLean v. State, 934 So.2d 1248, 1258-59 (Fla.2006) (alteration in original) (citations omitted). Prior to its amendment in 2009, section 948.20 made no mention of a defendant’s criminal score sheet:

If it appears to the court upon a hearing that the defendant is a chronic substance abuser whose criminal conduct is a violation of s. 893.13(2)(a) or (6)(a), the court may either adjudge the defendant guilty or stay and withhold the adjudication of guilt; and, in either case, it may stay and withhold the imposition of sentence and place the defendant on drug offender probation.

§ 948.20, Fla. Stat. (2004). The statute was amended so courts could, at their discretion, place certain non-violent felony offenders into post-adjudicatory treatment-based drug court programs. Ch.2009-64, § 7, Laws of Fla.

Furthermore, “[i]t is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992) (emphasis in original). The state’s interpretation of the statute would render a great deal of its language superfluous. A defendant whose criminal conduct solely violates section 893.13(6)(a) is a non-violent felon. There is no reason to set off offenders found to be in violation of section 893.13(2)(a) or (6)(a) if they are subject to the same restrictions as all other nonviolent felony offenders. If the legislature had intended that all offenders seeking an alternative sentence have a CPC score-sheet totaling fifty-two points or fewer, then it would have excised any language regarding section 893.13 when it amended section 948.20.

Additionally, “the rule of lenity requires that when language of a statute is susceptible of differing constructions, it must be construed most favorably to the accused.” State v. Hunter, 65 So.3d 1123, 1126 (Fla. 4th DCA 2011) (Warner, J., concurring) (citing § 775.021(1), Fla. Stat. (2008)). Section 948.20(1), when constructed in the light most favorable to the accused, does not require that a defendant whose criminal conduct is in violation of section 893.13(6)(a) have a CPC scoresheet totaling fifty-two points or fewer.

Our opinion should not be interpreted as holding that all offenders who seek an alternative sentence under section 948.20(1), and whose criminal conduct is in violation of s. 893.13(2)(a) or (6)(a), are entitled to one. McGrill’s CPC scoresheet reflects a significant amount of criminal history on his part. We hold only that McGrill’s scoresheet does not bar him from obtaining an alternative sentence; it is simply a factor the trial court should consider before deciding whether or not to impose an alternative sentence. See Nelson, 16 So.3d at 289.

POLEN, STEVENSON, and TAYLOR, JJ., concur.

      . The Florida Legislature amended section 948.20 in 2011 by changing the score sheet total sentence point requirement from 52 to 60. § 948.20(1), Fla. Stat. (2011). However, in all other aspects, the statute remains unchanged.


text:
    Roderick MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2711.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Rehearing Denied March 27, 2012.
    Roderick Mathis, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Downs v. State, 616 So.2d 444 (Fla.1993).

WARNER, STEVENSON and CIKLIN, JJ., concur.


author: GILLESPIE, KENNETH L., Associate Judge.

text:
    Audra W. POLAND and Steven Poland, her husband, Appellants, v. Susan S. ZACCHEO, Appellee.
    No. 4D09-5179.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Rehearing Denied March 30, 2012.

      Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach and Philip G. Thompson of Vassallo, Bilotta, Thompson, Thomas, Friedman & Davis, West Palm Beach, for appellants.
    Patrick B. Flanagan of Flanagan & Ma-niotis, P.A., West Palm Beach, for appel-lee.
   GILLESPIE, KENNETH L., Associate Judge.

Appellant, Audra Poland (hereinafter, “Poland”), appeals a jury verdict which awarded her a fractional percentage of damages she sought as a result of injuries sustained in an automobile accident. The appellee, Susan Zaccheo (hereinafter, “Zaccheo”) admitted negligence in causing the accident, but disputed the degree of Poland’s injuries and damages claimed as a result. On appeal, Poland contends that the trial court erred by limiting cross-examination of Zaccheo’s medical expert and by denying her request for a jury instruction pursuant to Stuart v. Hertz Corp. We agree in part, and reverse. Based on the record, we find that the trial court’s denial of full cross-examination of Zaccheo’s medical expert regarding the proximate cause of Poland’s injuries and resulting surgeries warrants reversal. We do not address the propriety of the trial court’s refusal to give the requested jury instruction.

On February 17, 2006, Poland and her daughter were driving home from a relative’s baseball game. Poland testified that when they came to a stop near an intersection, Zaccheo’s SUV impacted the rear of Poland’s automobile. Following the automobile accident, Poland complained of pain in her back and neck. After months of continued soreness, Poland took the advice of an orthopedic physician and had a disco-gram performed in December, 2006. After the surgery, the pain in Poland’s back, which was not operated on, became consistently worse. Even after having surgery performed on her lower back, Poland continued to experience severe back pain and constant muscle spasms.

At Poland’s trial to recover from Zac-cheo for her injuries, Zaccheo called a board-certified orthopedic surgeon to opine that the automobile accident had caused only a temporary cervical strain on Poland and that the majority of Poland’s injuries were attributable to preexistent disc bulges and degeneration associated ■with her morbid obesity. Zaccheo’s witness concluded that Poland suffered no permanent injuries to her neck or back as a result of the accident and would have no need for future treatment.

On cross-examination, Poland’s attorney attempted to question Zaccheo’s witness on his opinion as to whether Poland’s surgeries were related to the automobile accident. In this regard, the following exchange occurred sidebar:

Mr. Thompson [plaintiff]: Your Hon- or, this was asked in direct examination .... He asked. He said they had the surgery, and if the surgery was related to the automobile accident. So now I have to ask him what his opinion what that surgery was related to, if it is not relating to the automobile accident.
Mr. Berger [defense]: Okay. Your Honor, at that point—
Mr. Thompson [plaintiff]: He didn’t—
Mr. Berger [defense]: Wait a second. Guess what, at that point — it didn’t matter what type of surgery — at that point, I’m going to go into the 69-page opinion of the AMA that says that it’s a worthless surgery.
Mr. Thompson [plaintiff]: That’s hearsay.
Mr. Berger [defense]: It’s a fraudulent surgery.
Mr. Thompson [plaintiff]: It’s inadmissible—
Mr. Berger [defense]: And it’s what the AMA tells the doctors. It’s why Medicare will not pay for them.
The Court: Okay. What other areas do you have?
Mr. Thompson [plaintiff]: Your Hon- or, my last area is the surgery, because he got into it.
The Court: Is that what he is here to offer as—
Mr. Thompson [plaintiff]: It’s a major question about whether the surgery is related. Now, I have to ask him what the surgery is related to, if it is not related to the accident. It is clear that she had the surgeries, there is an ongoing impairment. He gave her an impairment rating—
Mr. Berger [defense]: He is going—
Mr. Thompson [plaintiff]: — from the surgery—
Mr. Berger [defense]: — medical malpractice by doing the surgery. That’s the road we are going down.
Mr. Thompson [plaintiff]: He’s making it that, because he had his doctor say it wasn’t related to the accident.
The Court: I am going to sustain the objection.

Thereafter, Poland’s attorney concluded his cross-examination and Zaccheo’s attorney conducted a re-direct examination, eliciting the witness’s testimony that it would be unusual or very improbable for a person to get multiple-level disc injuries from a car accident, and that there was another proximate cause for Poland’s impairment and injury.

The jury found both Zaccheo and Poland negligent, assigning Zaccheo 90% of the blame and Poland 10%. The jury awarded Poland $10,000 for past medical expenses and $4,400 for past lost earnings. Concluding that Poland did not sustain a permanent injury within a reasonable degree of medical probability as a result of the accident, the jury found no future medical expenses or lost earnings. Additionally, the jury did not award any damages for pain and suffering.

We review trial court decisions as to the scope of cross-examination on an abuse of discretion standard. See McCoy v. State, 853 So.2d 396, 406 (Fla.2003). “Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.” § 90.612(2), Fla. Stat. (2008); see also Boyd v. State, 910 So.2d 167, 185 (Fla.2005):

[Wjhen the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts ... or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief.

Coco v. State, 62 So.2d 892, 895 (Fla.1953) (quoting 58 Am. Jur. Witnesses, § 632, at 352 (1948)).

Here, the trial court judge limited the scope of the cross-examination of Zae-cheo’s final witness on the proximate cause of Poland’s injuries. At a minimum, we find that the lower court should have allowed Poland’s attorney to fully explore the witness’s opinion regarding the causation of Poland’s injuries in order to effectively refute the notion that Poland’s damages were not proximately caused by the accident. Since the trial court foreclosed Poland’s attempt to negate this notion, the witness’s theory was left unchallenged and could have led to the jury’s awarding Poland only a fractional portion of the damages she sought.

As such, we concur with Poland that the trial court abused its discretion in denying full cross-examination. As stated in Stotler v. State, “[i]f a portion of a transaction ... or event is brought out on direct examination, the remainder can be brought out on cross-examination.” 834 So.2d 940, 943 (Fla. 4th DCA 2003); see also Fleming v. Albertson’s Inc., 535 So.2d 682, 684 (Fla. 1st DCA 1988) (“It is well settled that a party against whom a witness is called is entitled to full and fair cross-examination of that witness upon a subject opened in direct examination.”); Boyd, 910 So.2d at 185 (“As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief....”).

Accordingly, we hold that while a trial judge may impose reasonable limitations on cross-examination, the trial judge must nonetheless permit full and fair cross-examination of matters testified to on direct examination. We find that the trial court’s denial of full cross-examination of Zac-cheo’s medical expert regarding the proximate cause of Poland’s injuries and resulting surgeries, which was a central and contested issue at trial, warrants reversal.

Reversed and remanded for a new trial.

POLEN and CONNER, JJ., concur.

      . Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977).

      . The trial court will be tasked with determining which jury instruction should be given, appropriately, based on the evidence presented at trial.

      . According to Zaccheo's witness, Poland’s height and weight (5'5.5" and 234 pounds) qualified her as morbidly obese.

      . The element at issue in Zaccheo's witness's cross-examination testimony was causation. For causation, "the plaintiff must show: 1) that the wrongful conduct in fact caused his injuries; and 2) that the resulting accident was a reasonably foreseeable consequence of the defendant's conduct.” Thomas D. Sawaya, Fla. Personal Injury & Wrongful Death Actions § 3:2 (2008-2009 ed.). It is the plaintiff's burden to prove that the damages are related to the injury. See id. § 3:10 ("As a general rule, the plaintiff has the burden of proving all of the essential elements of a negligence action including proximate causation. He is the one that makes the claim against the defendant and he is the one that must prove his allegations or fail in his attempt to recover.”).


author: GROSS, J.

text:
    Kathy Ann GARCIA-LAWSON, Ph.D., Appellant, v. Jeffrey P. LAWSON, Appellee.
    No. 4D10-2540.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Rehearing Denied March 27, 2012.
    Kathy Ann Garcia-Lawson, Palm Beach Gardens, pro se.
    No appearance required for appellee.
   GROSS, J.

The circuit court entered a final judgment of dissolution of marriage while two frivolous interlocutory appeals were pending, and before this court sua sponte dismissed the appeals. We reverse the final judgment because the circuit court did not have jurisdiction to render a final order disposing of the case.

This case is controlled by Florida Rule of Appellate Procedure 9.130(f), which provides:

In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.

Courts have interpreted this rule to mean that a trial court lacks the jurisdiction to render a final order while an appeal from a non-final order in the same case is pending and, if the trial court does so, the final order is a nullity. E.g., Dragomirecky v. Town of Ponce Inlet, 891 So.2d 633, 634 (Fla. 5th DCA 2005) (“[A]n order entered without jurisdiction is a nullity, and cannot be considered harmless error.” (citations omitted)); Connor Realty, Inc. v. Ocean Terrace N. Condo. Ass’n, 572 So.2d 4, 4 (Fla. 4th DCA 1990) (“[A] trial court may proceed in a cause pending a non-final appeal and dispose of any matter not in form or effect interfering with the power and authority of the appellate court to make its jurisdiction effective, but the trial court may do so only short of final disposition.” (emphasis in original) (citations omitted)).

As we wrote in Esposito v. Horning:

This may all sound like legal gobbledegook to some since, upon remand, the trial judge can be expected to re-enter a similar final judgment. We concede that may be true, but jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.

416 So.2d 896, 898 (Fla. 4th DCA 1982) (footnote omitted).

Hirschhorn v. Superior Realty of Florida, Inc., 450 So.2d 510 (Fla. 4th DCA 1984), illustrates the operation of Rule 9.130(f). There, this court reversed a final order that had been entered before a pending non-final appeal was dismissed. The trial court entered final judgment on May 10, 1988. Id. at 511. The non-final appeal was not dismissed until July 8, 1983. Id. Accordingly, the court “revers[ed] and remand[ed] this matter for further proceedings which may include reinstatement of the final judgment on a date subsequent to July 8,1983.” Id.

In the instant case, the trial court entered the final judgment on April 29, 2010. This court did not dismiss the non-final appeals until May 25, 2010, and November 18, 2010. As in Hirschhom, the trial court lacked the jurisdiction to enter the final judgment, since the non-final appeals were still pending.

We reverse the final judgment and remand the case to the circuit court. We note that, on remand, the trial court is authorized to re-enter the final judgment since the interlocutory appeals that prevented that court from disposing of the case have been resolved with finality.

MAY, C.J., and STEVENSON, J., concur.


text:
    Arlene PREUDHOMME, Appellant, v. Garth BAILEY, Appellee.
    No. 4D10-3262.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Rehearing Denied March 30, 2012.

      Robin Bresky and Sophia Blair of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Gene Reibman, Plantation, for appellee.
   WARNER, J.

The wife appeals the trial court’s final judgment of dissolution, claiming the court erred in dividing the assets, calculating income of the husband, awarding an inadequate amount of alimony, calculating child support payable by the wife, and including overly restrictive parenting provisions. Almost all of the determinations are not an abuse of discretion due to the credibility determinations made by the trial court. Nevertheless, the court did err in calculating stock due to the wife based upon its determination that a portion of the stock was marital property. It also erred in failing to determine whether property the husband owned in Jamaica was marital or non-marital property. Finally, it abused its discretion in parts of the parenting plan. On these issues we reverse.

This case involved a highly contentious divorce of a sixteen-year marriage involving three children, ages ten, five and four. The wife has a C.P.A. license but stayed home with the children after their birth, doing only some contract work. The husband traded and managed properties. The parties owned multiple properties, either individually or jointly, throughout the marriage, which were the subject of equitable distribution.

When the husband filed for divorce, things became very ugly between the parties. At a temporary hearing, the court ordered the father to be the custodial parent, with supervised visitation with the mother. Both parties took various parenting classes and anger management courses. The court appointed a guardian ad litem to investigate and report to the court. In her first report at trial, the guardian ad litem recommended shared parental responsibility with the husband having the ultimate decision-making authority. She initially recommended that the wife have unsupervised visitation. When the trial stretched on over several trial days spanning four months, the wife’s conduct toward the husband made the guardian ad litem change her recommendation to supervised visitation between the wife and the children. Nevertheless, the evidence also showed that the children loved their mother very much, and it was extremely stressful to them to have their visits with their mother so limited.

In its final judgment the court commented that much of the evidence was conflicting and facts were disputed. Thus, the court’s findings were based upon its conclusions as to the credibility of the witnesses. Several times during the court’s lengthy recitation of the facts as presented at trial, the court made observations of inappropriate reactions by the wife to the testimony. The court divided the various assets, after lengthy discussion of the evidence applicable to each. It awarded modest bridge-the-gap alimony and ordered the wife to pay child support, reduced from the guidelines amount.

The court ordered sole parental responsibility with the father, finding that the parties were “toxic” together. It also found that the mother’s behavior was “out of control” and the court was extremely concerned for the children’s welfare if visitations were to occur without supervision. It then ordered visitation to the wife for a maximum of four hours per week, plus a few hours on major holidays. The court also ordered that visitation would be forfeited if the assigned supervisor could not come, and no one from that particular agency was available. The court further limited the wife to two telephone calls per week of no more than fifteen minutes each (five minutes per child) and prevented her from attending any of the children’s activities and events. It prohibited her from petitioning for modification of the parenting plan unless she completed: (1) fifty-two weeks of individual psychological therapy; (2) another twenty-six weeks of joint psychological therapy with the children; (3) five additional sessions on child discipline; and (4) two eight-week sessions in parental effectiveness training.

With respect to the distribution of assets, we review the trial court’s equitable distribution of assets for abuse of discretion but accord a presumption of correctness to those findings where credibility is a factor, as it is here. See Rafanello v. Bode, 21 So.3d 867, 869 (Fla. 4th DCA 2009). A trial court’s legal conclusion that an asset is marital or non-marital is reviewed de novo. Mondello v. Torres, 47 So.3d 389, 392 (Fla. 4th DCA 2010).

In its equitable distribution, the trial court made many credibility determinations. Therefore, its determinations are presumed correct. Based upon the court’s findings, the court did not abuse its discretion in the awards it made, save for its conclusions with respect to the Grace Kennedy stock held by the husband in Jamaica.

As to the Grace Kennedy stock, the husband testified that he acquired 500,000 shares of stock by gift in 1996 but that by the time of the divorce he did not own any stock. The records custodian for the company testified at the hearing, however, and refuted that assertion. Copies of the records of the company, together with copies of transfer forms for the stock, were admitted into evidence. The books and records of the company showed that the husband owned 1,963,119 shares of stock as of the date of trial. The transfer form for the original 500,000 showed that consideration in excess of $5.5 million (Jamaican dollars) was paid for the transfer. After that, the records showed multiple bonuses of stock to shareholders from 1996 until his acquisition of additional stock of 275,-000 in 1999 and some additional purchases.

In its findings of fact, the trial court found that only 275,000 shares constituted a marital asset. It did not make a ruling or resolve the conflicting testimony as to the 500,000 original shares. However, those shares were transferred for consideration as reflected by the books of the corporation, just as were the 275,000 shares. Because of the failure of the trial court to resolve the conflicting evidence as to whether the original shares were a purchase or gift, the court did not properly determine whether they were a marital or non-marital asset. On remand, the court should make a finding with respect to the original 500,000 shares, which, according to the books of the corporation were also a purchase, just as the 275,000 shares of stock were purchased.

The court also found that most of the remaining additional shares were bonus shares. That statement is not supported by competent substantial evidence. In fact, at best the evidence shows that 299,999 shares of stock could be attributable to bonuses on the original shares. The remainder would be attributable to the combined original 500,000 plus the 275,000 added stock purchases. Even if the court were to determine that the original 500,000 shares were not a marital asset, the court erred in failing to attribute a portion of the bonus shares received after the second purchase of stock as marital stock. We reverse and remand for the trial court to apportion the stock acquired by shareholder bonuses after the acquisition of the 275,000 shares, noting that there is a discrepancy in the total number of shares stated on the books of the corporation and the list of stock acquisitions through gift, bonus, or purchase.

The wife also claimed that real property in Jamaica owned by the husband was marital, while the husband claimed that it was a gift. The court refused to make a determination, finding that the parties could litigate the matter in Jamaican courts. Because section 61.075(3)(a) and (b), Florida Statutes, requires the court to make clear identification of marital and non-marital assets, we reverse and remand for the court to make the necessary statutory findings. See Gladstone v. Gladstone, 733 So.2d 1090, 1091 (Fla. 4th DCA 1999).

With respect to alimony, we cannot find that the trial court abused its discretion. While the wife was not presently employed, she had exceptional skills and had considerable earning capacity. As to the court’s imputation of rental income in the calculation of her present income, the court does not appear to have made that credit. The court imputed to the wife a minimum wage for the purposes of child support plus the alimony it awarded. It did not impute the rental income to her. The court did not abuse its discretion.

Finally, we conclude that the court abused its discretion in its parenting plan by prohibiting the mother from petitioning for modification prior to completing fifty-two weeks of individual therapy followed by twenty-six weeks of therapy with the children. No competent substantial evidence supports the specific type and length of therapy ordered by the court. The court ordered therapy based upon the guardian ad litem’s concern that the wife needed intensive therapy to control her anger at the husband. Specifically, she was concerned that the wife would disparage the husband in front of the children, even though no one testified that the wife had done so thus far, despite the fact that she had disparaged the husband in emails and voicemails to the husband and the guardian ad litem. A court-ordered psychological assessment report suggested various parenting classes and individual therapy to help her process her interpersonal relationships and understand how her behaviors affect others, including her children. That report, referenced in the final judgment, concluded that any personality or behavioral patterns did not negatively impact her ability to independently parent, although they may impact her ability to co-parent. That was reinforced by the husband’s admission that the wife was a good mother to the children, although she was not able to communicate rationally with him.

The provisions of the final judgment do not permit modification of the severe limitations on visitation even if a psychologist were to determine that the mother has been able to deal with her anger issues in a shorter period of time, or even if the husband’s or children’s situation were to change. Moreover, as the trial court’s findings note, the children miss their mother very much, and for the most part her interactions with them have been appropriate. The children actually want to see their mother more, not less.

A trial court’s conclusions will not be disturbed on appeal unless there is no competent evidence to support them. See Artuso v. Dick, 843 So.2d 942, 944 (Fla. 4th DCA 2003). Here, however, there was no evidence to support the specific time restrictions on the wife’s ability to petition to modify the parenting plan which has severely impacted her ability to parent her children. The court could make any increase in her time with her children conditional on her successful completion of parenting courses or therapy, all of which were recommended either by the guardian ad litem or in the psychological report. It could not arbitrarily determine that the therapy must last a year and a half before the wife can seek more time with her children. To this extent the court’s parenting order is reversed for reconsideration. Because we are reversing on one aspect of the parenting plan, the court may reconsider the entire plan and take additional testimony as it deems appropriate on these issues.

As to the issues upon which we reverse, the case is remanded for further proceedings consistent with this opinion. In all other respects the judgment is affirmed.

DAMOORGIAN and CONNER, JJ„ concur.

      . We provide an example of how the bonuses should be apportioned, if the 500,000 shares were considered a gift. Bonuses of 299,999 shares on the 500,000 gift of stock were issued prior to the purchase of the 275,000 shares in 2000. Subsequent thereto, bonuses of 227,213 shares, 272,655 shares, and 327,-186 shares were issued, for a total of 827,054 in bonus stocks after the purchase in 2000. Thus, prior to the purchase the husband owned 799,999 as a result of the gift plus bonus stock. The court should attribute to the wife the shares of bonus stock received after the purchase of the 275,000 in proportion to the ratio between the amounts owned by the husband by gift and the amount purchased by the husband. The ratio of the 799,999 shares to 275,000 shares amounts to approximately 75/25. Applying that ratio to the shareholder bonuses of 827,054 shares, an additional 206,763 shares should have been attributed to the 275,000 marital shares, for a total of 481,763 shares. As the court awarded the wife half of the marital shares, she would be entitled to 240,882 shares. However, all the stock is not accounted for. The gift, purchase, plus bonuses, as set forth in the final judgment total only 1,902,053, whereas the court found that the husband owned 1,963,119 shares. The court should attempt to resolve this discrepancy if it can, or apportion the difference equitably between the parties. On the other hand, if the court finds that the original 500,000 of shares were purchased and are marital property, then the court can simply split the entire amount of stock equally between the parties.


text:
    Donesia BEST, Guerlande Exantus, et al., Appellants, v. EDUCATION AFFILIATES, INC. and Kimc Investments, Inc., d/b/a Med-Vance Institute, Appellees.
    No. 4D11-793.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.

      Matthew Seth Sarelson and Max M. Nelson of Sarelson Law Firm, P.A., Miami, and John Vail, Center for Constitutional Litigation, PC, Washington, D.C., for appellants.
    John S. Penton, Jr. and S. Jonathan Vince of Cole, Scott & Kissane, P.A., West Palm Beach, and Robert Lavet of Powers Pyles Sutter & Verville PC, Washington, D.C., for appellees.
   WARNER, J.

Appellants challenge the trial court’s order compelling arbitration of their dispute with appellee. While they claim that the record does not support a finding that they entered into the arbitration agreement, without a transcript of the hearing we cannot discern whether appellants demonstrated that a disputed issue of fact existed. See Linden v. Auto Trend, Inc., 923 So.2d 1281, 1283 (Fla. 4th DCA 2006). As to their claim that the agreement is invalid as a matter of public policy, the arbitration agreement provides that any issues regarding its validity shall be determined by the arbitrators. We affirm.

Appellants/plaintiffs are former students of MedVance Institute, a private, for-profit institution owned by appellees providing education in various non-professional medical fields. In October 2010, a group of six original plaintiffs filed a complaint against appellees “for breach of contract, breach of the covenant of good faith and fair dealing, fraud in the inducement; fraudulent misrepresentation, and for violating laws prohibiting misleading advertising ... and unfair and deceptive trade practices.” For the purpose of pleading breach of contract against MedVance, the plaintiffs alleged that they “entered into a binding contract with MedVance.”

MedVance filed a motion to compel arbitration and stay litigation, and served this motion on the plaintiffs. It alleged that “[e]aeh of the Plaintiffs signed a comprehensive Enrollment Agreement with Med-Vance. In the Enrollment Agreement, each Plaintiff agreed to an arbitration provision....” They requested arbitration under the Agreement. A hearing was scheduled for January 21, 2010. Nine days prior to the hearing, appellants filed an amended complaint joining nineteen other plaintiffs. MedVance responded by filing a motion to compel arbitration as to the new plaintiffs, attaching the agreements signed by the new plaintiffs. Med-Vance set the additional motion to compel for the same hearing time as the first one, noting that the enrollment agreements and arbitration clauses were identical in all of the contracts. The appellants filed no written response to either motion to compel arbitration.

The multi-page Enrollment Agreements attached to MedVance’s motion are all signed at the end of the contract and contain an arbitration clause, which states:

Arbitration-Exclusive Remedy: Student and MedVance Institute hereby agree that any dispute, controversy, or claim arising out of or relating to this Enrollment Agreement, its creation, interpretation, or the breach, termination or validity thereof, or any related matter involving Student’s enrollment with or attendance at MedVance Institute, regardless of whether such dispute arises or is made before, during or after Student’s attendance at MedVance Institute, and regardless of whether the dispute or claim is based on contract, tort, statute, regulation, rule or otherwise, shall be governed by Florida law and resolved exclusively and finally by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Rules, such arbitration to be held in the city in which the MedVance Institute School Student is attending is located. Any decision rendered in such arbitration proceedings will be final and binding on each of the parties, and judgment may be entered thereon in a court of competent jurisdiction. Student understands that the arbitrator shall not award injunctive relief, exemplary, consequential, punitive, incidental or indirect damages, or attorneys’ fees and each party irrevocably waives any such right to obtain such relief or recover such damages.
Arbitration shall be the exclusive remedy; both parties hereby expressly ayreeiny not to sue the other or pursue any dispute or claim in any federal, state, or local court or any other forum. The parties’ obliyation to use binding arbitration as the sole and exclusive means of resolving any and all demands or claims is an independent covenant and shall survive the termination of Student’s attendance at MedVance Institute and continue after the conclusion of Student’s relationship with MedVance Institute.

(emphasis in original). The Enrollment Agreements also include a separate limitation of liability clause, as well as a clause excluding incidental, consequential, and other damages.

The court held the hearing which was not recorded. In its order the court found that the plaintiffs had entered into a contract with MedVance, as set forth in their complaint, which included the arbitration clause. It also noted that the agreements for the nineteen additional plaintiffs were identical to those of the first six plaintiffs. As the plaintiffs did not raise any argument challenging the plain meaning of the arbitration clause, the court compelled arbitration.

In a motion for rehearing, the appellants argued that further evidence needed to be introduced to determine whether the enrollment agreements were valid. With their motion, appellants filed affidavits from the six original plaintiffs in which they alleged that they had no recollection of signing the enrollment agreements. The court denied the motion, and appellants have appealed pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(c)(iv).

“An order granting or denying a motion to compel arbitration is reviewed de novo.” DFC Homes of Fla. v. Lawrence, 8 So.3d 1281, 1282-83 (Fla. 4th DCA 2009) (citing Vacation Beach, Inc. v. Charles Boyd Constr., Inc., 906 So.2d 374, 376 (Fla. 5th DCA 2005)). However, “the trial court’s factual findings are reviewed under a competent, substantial evidence standard.” BDO Seidman, LLP v. Bee, 970 So.2d 869, 873-74 (Fla. 4th DCA 2007) (citing Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla. 4th DCA 2005)).

Chapter 682, Florida Statutes (2010), governs arbitration in commercial contract cases. Section 682.03 provides that once a party has filed a motion to compel arbitration,

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

§ 682.03(1), Fla. Stat. (2010). “[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citing Terminix Int’l Co., LP v. Ponzio, 693 So.2d 104, 106 (Fla. 5th DCA 1997)). Appellants argue the first element in this issue.

When there is a question of the validity of the arbitration agreement, the court must find that a valid arbitration agreement exists, but “[w]here the evidence is undisputed, no evidentiary hearing is necessary.” Houchins v. King Motor Co. of Fort Lauderdale, Inc., 906 So.2d 325, 329 (Fla. 4th DCA 2005). There are four ways in which a party may demonstrate that there is a disputed issue regarding the making of the agreement: (1) arguments of counsel at a hearing; (2) the filing of a written response in opposition to arbitration; (3) the filing of affidavits; and (4) review of documents furnished by counsel. Linden v. Auto Trend, Inc., 923 So.2d 1281, 1283 (Fla. 4th DCA 2006) (citations omitted).

Here there is no transcript of the proceeding of the hearing on the motion to compel; therefore, we are unable to resolve the factual issues presented to the trial court. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (“Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory.”) Appellants failed to file a written response to the motion, nor does it appear that they offered any other documents to the court to review. While they did proffer some affidavits with their motion for rehearing, the trial court is not compelled to consider evidence proffered for the first time in a motion for rehearing. See Pangilinan v. Broward Cty., 914 So.2d 1094, 1097 (Fla. 4th DCA 2005) (“[A] trial court does not abuse its discretion in determining that a counter-affidavit presented for the first time on rehearing of a summary judgment is too late.”); Willis v. L.W. Foster Sportswear Co., Inc., 352 So.2d 922, 924 (Fla. 2d DCA 1977) (“It is one thing for a court to receive an amended or supplementary affidavit on a motion for rehearing; it is quite another to allow a nonmovant to initially create an issue of fact at this late stage.”). Nor can we consider an issue raised for the first time in a motion for rehearing. See Trinchitella v. D.R.F., Inc., 584 So.2d 35 (Fla. 4th DCA 1991). Thus, this issue has not been preserved for appeal.

Appellants also argue that the court erred in compelling arbitration because the arbitration agreement is invalid on its face due to its limitation on remedies, contrary to public policy. We reject this argument, because the arbitration agreement in this case expressly delegated to the arbitrators the determination of the validity of the agreement. In Rent-A-Center, West, Inc. v. Jackson, — U.S. -, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010), the Supreme Court addressed a situation in which the plaintiff signed an arbitration agreement which gave the arbitrator “ ‘exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to any claim that all or part of this Agreement is void or voidable.’ ” 130 S.Ct. at 2775. The Court held that unless the plaintiff “challenged the delegation provision specifically, we must treat it as valid ..., leaving any challenge to the validity of the Agreement as a whole for the arbitrator.” Id. at 2779.

This Court analyzed Rent-A-Center in ATP Flight School, LLC v. Sax, 44 So.3d 248 (Fla. 4th DCA 2010), stating:

[T]he Supreme Court held that arbitration agreements which delegate authority to the arbitrator to resolve disputes relating to enforceability of the agreement are valid under the FAA. The Court went on to conclude that, unless a claimant specifically challenges the delegation of authority to the arbitrator, any challenge to the validity of the entire arbitration agreement, which the parties have assented to, was subject to arbitration and must be left to the arbitrator to resolve.

Id. at 253 (internal pin citations to Rent-A-Center omitted). The arbitration provision in this case is similar to the arbitration provision in ATP Flight School; thus, the same result should obtain. The appellants did not challenge the delegation provision itself in the complaint, nor is there a record from which to determine that they challenged it at the hearing. Therefore, Rentr-A-Center requires that the arbitrator determine issues of the validity of the contract.

While appellants have cited us both Shotts v. OP Winter Haven, Inc., — So.3d -, 2011 WL 5864830 (Fla.2011), and Gessa v. Manor Care of Florida, Inc., — So.3d -, 2011 WL 5864823 (Fla.2011), in support of the proposition that the issue of whether an arbitration agreement violates public policy is one for the court and not the arbitrator, in neither of those cases did the arbitration agreement specifically delegate to the arbitrators the determination of the validity of the contract, as the contract did here. Thus, both cases are distinguishable. In this case, with a specific delegation to the arbitrator of the issue of the validity of the contract, Rent-A-Center controls.

We affirm on all remaining issues raised.

DAMOORGIAN and CONNER, JJ., concur.


author: DAMOORGIAN, J.

text:
    Robert Malcolm MACLEOD, Appellant, v. Brenda Rose MACLEOD, Appellee.
    No. 4D10-697.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Rehearing Denied March 30, 2012.

      Robert Malcolm Macleod, Riviera Beach, pro se.
    Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Melinda P. Gamot of The Gamot Law Firm, P.L., Palm Beach Gardens, for appellee.
   DAMOORGIAN, J.

Appellant, Robert Macleod (“Former Husband”), appeals a final judgment of dissolution of marriage, raising issues related to equitable distribution, alimony, and attorney’s fees. On cross-appeal, Ap-pellee, Brenda Macleod (“Former Wife”), assigns error to an inconsistency between the attorney’s fee award and the equitable distribution schedule. Finding merit to Former Husband’s issue on appeal regarding the equitable distribution of a non-marital asset, we reverse and remand, concluding that the designation of the Nova Scotia cottage as a marital asset was not authorized by the parties’ post-marital agreement. We find no error in connection with the other issues raised by Former Husband and Former Wife, and affirm on those issues without further comment.

The Nova Scotia cottage was built by Former Husband’s family. Former Husband and his three siblings each inherited a 25% interest in the cottage. Thereafter, Former Husband withdrew approximately $61,000 from his non-marital trust to purchase his siblings’ respective interests. Throughout the marriage, title to the cottage remained in Former Husband’s name. The parties spent over $62,000 in marital funds to pay for the annual taxes, insurance and improvements to the cottage. The parties also enjoyed the use of the cottage during the marriage.

Former Husband and Former Wife entered into a post-marital agreement. The agreement provided that “any assets obtained by either of the parties through inheritance or parental gift, investments acquired from the proceeds of such assets, and any value accruing as a result of the use or investment of such assets [defined as protected assets] would be retained as each party’s separate assets.” However, under one exception to the agreement, protected assets “which are converted into tangible assets and used by Brenda and Malcolm shall no longer be protected.”

The trial court concluded that the cottage “lost its non-marital status” because the parties had used the cottage and improved it with marital funds. Once the court determined that the cottage was a marital asset, it equitably distributed it to Former Wife.

Former Husband argues that under the terms of the agreement, the cottage remained a non-marital “protected asset” because the cottage was never converted into a tangible asset. Former Wife counters that due to the family’s use of the cottage as well as the expenditure of marital funds to maintain and improve it, the cottage lost its status as a protected asset under the terms of the parties’ agreement.

“A postnuptial agreement is subject to interpretation like any other contract,” and a court’s interpretation of a contract is subject to de novo review. Chipman v. Chipman, 975 So.2d 603, 607 (Fla. 4th DCA 2008) (citations omitted).

We begin our analysis by noting that “[w]here the terms of a marital settlement agreement are clear and unambiguous, the parties’ intent must be gleaned from the four corners of the document.” Jones v. Treasure, 984 So.2d 634, 636 (Fla. 4th DCA 2008) (citation omitted). According to the plain language of the agreement, the cottage was not only required to be used, it also needed to be converted into a tangible asset before it lost its non-marital “protected asset” status. Conversion is defined as “[t]he act of changing from one form to another; the process of being exchanged.” Black’s Law Dictionary 356 (8th ed. 2004). While it is undisputed that the cottage was used by the parties, it was never converted into some other tangible asset.

Moreover, the act of maintaining or expending marital assets to maintain or improve the cottage did not result in a conversion. See Martin v. Martin, 923 So.2d 1236, 1238-39 (Fla. 1st DCA 2006) (“[improvements or expenditures of marital funds to a nonmarital asset does not transform the entire asset into a marital asset; rather, it is only the ‘enhancement in value and appreciation’ which becomes a marital asset.”) (citing Strickland v. Strickland, 670 So.2d 142, 143 (Fla. 1st DCA 1996)). “A party’s conduct regarding inherited real property is distinguishable from the inheritance of money, which can lose its status as a non-marital asset if commingled with marital funds.” Martin, 923 So.2d at 1238 n. 1 (citing Lakin v. Lakin, 901 So.2d 186, 190 (Fla. 4th DCA 2005)). Accordingly, the trial court erred by designating the Nova Scotia cottage as a marital asset.

On remand, the trial court shall determine the amount of appreciation in value of the cottage that resulted from the expenditure of the parties’ marital funds on the cottage. See § 61.075(6)(a)l.b., Fla. Stat. (2010) (“The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both,” is considered a marital asset or liability.); Martin, 923 So.2d at 1238-39 (“[T]o make an award for the enhancement in value and appreciation of a non-marital asset, the court must make specific findings as to the value of such enhancement and appreciation during the marriage, as well as which portion of that enhanced value is attributable to marital funds and labor.”) (citations omitted).

Furthermore, the trial court shall also reconsider its equitable distribution scheme, as well as other aspects of the final judgment, which may be impacted by our holding. See Hanks v. Hanks, 553 So.2d 840, 348 (Fla. 4th DCA 1989).

Affirmed in Part; Reversed in part and Remanded.

MAY, C.J., and HAZOURI, J., concur.