author: ORFINGER, C.J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Diane M. COOK, as Personal Representative of the Estate of Marqui Nichole Cook, et al., Appellee.
    No. 5D11-1555.
    District Court of Appeal of Florida, Fifth District.
    July 20, 2012.
    Rehearing Denied Aug. 20, 2012.

      Kara Berard Rockenbach, of Methe & Rockenbach, P.A., West Palm Beach, for Appellant.
    L. Edward McClellan, Jr., of McClellan & Batsel, P.A., Ocala; Jocelyn Poole, of Daniel L. Hightower, P.A., Ocala, for Ap-pellee.
   ORFINGER, C.J.

Marqui Cook, Tiffany Oliver, and Nikole Brown, all minors, attended a party at the Meek residence, which is insured by Citizens Property Insurance Company. According to the complaint filed in the case, the Meeks served or allowed alcoholic beverages to be served to the minors at the party in violation of section 856.015, Florida Statutes (2008). The minors became intoxicated, drove away from the party in a motor vehicle, and were involved in a serious car crash, resulting in the deaths of Ms. Cook and Ms. Oliver and serious injuries to Ms. Brown.

The personal representatives of the estates of Ms. Cook and Ms. Oliver (collectively, “Appellees”), filed a declaratory action against Citizens and its insureds, seeking a judicial decree interpreting the term “occurrence” in the Citizens insurance policy insuring the Meeks’ home. Appellees contended that under the policy, the $100,000 per occurrence limit applied to each drink consumed by each of the deceased minors in addition to a separate occurrence for the negligence of the Meeks for “allowing the minors to become intoxicated, and then to leave the Meek residence operating a motor vehicle while in an intoxicated state.” Citizens disagreed, arguing that there was only one occurrence, the ear crash. Both Citizens and Appellees moved for judgment on the pleadings. Relying on Koikos v. Travelers Insurance Co., 849 So.2d 263 (Fla.2003), the trial court ruled that “the complaint alleges multiple ‘occurrences’ under the Policy.” We conclude that there was only one occurrence, and therefore, reverse the final judgment.

We review the trial court’s interpretation of an insurance policy de novo. Trout v. Apicella, 79 So.3d 947, 948 (Fla. 5th DCA 2012); State Farm Mut. Auto. Ins. Co. v. Parrish, 873 So.2d 547, 549 (Fla. 5th DCA 2004). Insurance policies must be construed according to their plain language. Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003); Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000); see Thomas v. Prudential Prop. & Cas., 673 So.2d 141, 142 (Fla. 5th DCA 1996) (indicating that when interpreting insurance contract, it “must be read in light of the skill and experience of ordinary people, and given [its] everyday meaning”). However, if the policy language is susceptible to two reasonable interpretations — one providing coverage, the other limiting coverage — the policy is ambiguous. Ambiguous policy provisions are construed in favor of coverage and against the insurer. Flores v. Allstate Ins. Co., 819 So.2d 740, 744 (Fla.2002); Anderson, 756 So.2d at 34.

In relevant part, the liability portion of the Citizens homeowner’s insurance policy provides:

COVERAGE E — Personal Liability
If a claim is made or a suit is brought against an insured for damages based on “bodily injury” or “property damage” caused by an “occurrence” to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which the “insured” is legally liable....
SECTION II — CONDITIONS
1. Limit of Liability
a. Our total liability under Coverage E for all damages resulting from any one “occurrence” will not be more than the Coverage E limit of liability shown in the Declarations. This limit is the same regardless of the number of “insureds,” claims made or persons injured.
All “bodily injury” and “property damage” resulting from one accident or from continuous or repeated exposure to substantially the same general harmful conditions will be considered to be the result of one “occurrence.”

As in Koikos, which both parties cite to support their arguments, the Citizens’s policy defines an “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions, which results, during the policy period, in: a. ‘Bodily injury’; or b. ‘Property damage.’” The term “accident” is not defined under the policy.

The dispute here centers on what constitutes an “occurrence” under the Citizens policy. Citizens argues that there was only one occurrence for coverage purposes — the car crash. Appellees agree that the crash was an “occurrence,” but relying on Koikos and this Court’s decision in American Indemnity Co. v. McQuaig, 435 So.2d 414 (Fla. 5th DCA 1983), contend that the trial court properly determined that each alcoholic drink served or allowed to be served to Ms. Cook and Ms. Oliver at the Meek residence was a separate “occurrence” for which the Meeks and Citizens are liable.

In McQuaig, the insured, who claimed insanity, fired three shots from a shotgun, within a two-minute period. Two of the blasts struck Officer McQuaig, while the third shot struck another officer. 435 So.2d at 415. In agreeing with the insured that each shot constituted a separate occurrence, this Court explained the cause theory, holding:

American Indemnity does not question the application of the “cause theory” here but rather argues there was only one occurrence because the injuries were caused by one instrumentality of danger, the shotgun; they were caused in one very specific location and they occurred in one brief time period of less than two minutes duration. To support its contention that only one occurrence took place, American Indemnity cites, among others, the following: Southern Intern. Corp. v. Poly Urethane Ind., Inc., 353 So.2d 646 (Fla. 3d DCA 1977) (application of polyurethane to several roofs one occurrence).... In each of these eases, however, there was a single force, that once set in motion caused multiple injuries. Analogous to this would be if a single shot had injured both McQuaig and Pope. This was not the case. A shot was fired and Pope was injured. There was a time interval of approximately two minutes before another shot was fired which inflicted most of McQuaig’s injuries.

Id. In rejecting the argument that the insured’s insanity was the cause of all the injuries, this Court explained:

American Indemnity did not incur any liability because of Croskey’s insanity but rather liability attached when Cros-key fired the shots which resulted in injury to the two deputies. While Cros-key’s insanity may have been a factor, it is clear that the proximate cause of Pope’s injuries was the shotgun blasts which struck him and the proximate cause of McQuaig’s injuries was the shotgun blasts which struck him.

Id. at 416. Thus, we concluded that each of the three shotgun blasts fired at the two deputy sheriffs was a separate occurrence under the homeowner’s insurance policy because each blast caused immediate injury.

In Koikos, two people were shot by an assailant who fired multiple times in a restaurant. They filed separate lawsuits against Koikos, the restaurant’s owner, claiming that he negligently failed to provide adequate security at his restaurant. Koikos, in turn, sued his insurer, Travelers, in a declaratory judgment action. Koikos argued in favor of finding multiple occurrences under the policy, contending that the determination of the number of occurrences should be based on the immediate cause of injuries — the gunshots. In contrast, Travelers argued that the focus should be on Koikos’s underlying negligence — his alleged failure to provide appropriate security. Id. at 265, 267. The supreme court held that the proper focus should be on “the act that causes the damage,” the gunshots, not Koikos’s failure to protect his patrons. “Focusing on the immediate cause — that is the act that causes the damage — rather than the underlying tort — that is the insured’s negligence — is also consistent with the interpretation of other forms of insurance policies.” Id. at 271. In its opinion, the supreme court agreed with McQuaig and concluded that consistent with the “cause theory,” an “occurrence” is the immediate injury-producing act and not the underlying tortious omission. Id. at 271. Using this approach, the court held that the gunshots that struck the plaintiffs, not the insured’s negligence in failing to provide security, were the immediate cause of the injuries. Id. Consequently, “[t]he act which causes the damage constitutes the occurrence.” Phillips v. Ostrer, 481 So.2d 1241, 1247 (Fla. 3d DCA 1985); see New Hampshire Ins. Co. v. RLI Ins. Co., 807 So.2d 171,172 (Fla. 3d DCA 2002). In Koikos, the gunshots, not the negligent security, directly caused the injury to the plaintiffs. In McQuaig, again, the gunshots, and not the insanity of the shooter, were found to be the immediate cause of injury to the plaintiffs. Similarly here, the “immediate cause” of Ms. Cook’s and Ms. Oliver’s deaths was the car crash, not the Meeks’ “underlying activity” of allowing alcohol to be consumed by the minors at the party, although that was, no doubt, a factor.

The trial court’s ruling misinterprets Koikos and McQuaig by concluding that each drink provided to each deceased minor constituted a separate occurrence under the Citizens homeowners’ insurance policy. Instead, we conclude that there was only one occurrence causing the tragic deaths, i.e., the car crash.

REVERSED and REMANDED.

TORPY and EVANDER, JJ., concur.

      . Because the term "accident” is subject to differing interpretations, it must be construed favorably to Appellees and in favor of finding coverage. Koikos, 849 So.2d at 266-67.

        . We accept the allegations of the complaint as true for the purpose of our analysis.


source: Caselaw Access Project

author: BENTON, C.J.

license: Public Domain

text:
    Kevin A. MOREY, as personal representative of the estate of Carlton W. Morey, Jr. and as trustee of the amended and restated revocable trust of Carlton W. Morey, Jr. dated October 1, 2004, Appellant, v. EVERBANK and Air Craun, Inc., Appellees.
    No. 1D11-1401.
    District Court of Appeal of Florida, First District.
    July 24, 2012.

      Michael S. Drews of the Law Offices of Michael S. Drews, P.A., Jacksonville, for Appellant.
    David H. Peek and James H. Cummings of Smith, Gambrell & Russell, LLP, Jacksonville, for Appellee Everbank.
   BENTON, C.J.

As trustee of the Carlton W. Morey, Jr., Revocable Trust, Kevin A. Morey (Trustee), appeals the trial court’s ruling that life insurance proceeds payable to the trust were not, by virtue of the provisions on the subject in the trust instrument, exempt from the claims of creditors of the estate of his brother, Carlton W. Morey, Jr. (decedent), and also appeals the denial of a supplemental petition which sought reformation of the trust. We affirm.

The decedent executed the original trust declaration on January 19, 2000. The following month, he applied to Nationwide Life Insurance Company for two life insurance policies, each with death benefits in the amount of $250,000. His application for insurance named “Carl W. Morey-Trust” as the beneficiary of the “Traditional Life Policy” pertinent here. On October 1, 2004, he amended and restated the trust declaration to provide:

ARTICLE I. NAME AND REVOCA-BILITY OF THE TRUST
... This Trust may be referred to as “THE CARLTON W. MOREY, JR. REVOCABLE TRUST”....
ARTICLE V. DISPOSITION OF TRUST BALANCE SUBSEQUENT TO THE DEATH OF SETTLOR
Upon the death of Settlor ..., the Trustee shall pay over and distribute the trust estate as the same shall then consist as follows:
A. The Trustee shall pay to the domiciliary Personal Representative of the Settlor’s estate from time to time such sum or sums as such Personal Representative may certify to be required to pay the Settlor’s “death obligations” and such other obligations required to be paid under Florida law, which includes without limitation, the following:
1. The expenses of the Settlor’s last illness and funeral ... and the expenses of administering the Settlor’s estate ....;
2. All of the Settlor’s enforceable debts, excluding, however, debts secured by life insurance or real or personal property....
B.the Settlor’s estate, inheritance, succession and other death taxes....
C. After providing for the foregoing, the Trustee shall distribute to the Set-tlor’s Personal Representative ... such general cash bequests in such amounts as the Settlor may effectively bequeath by the Settlor’s Will. The Trustee shall also deliver to the Settlor’s Personal Representative any property in the Trust which is effectively specifically bequeathed or devised by the Settlor’s Will.
E. The balance of the Trust shall be disposed of in accordance with the below provisions.
G. Notwithstanding any provision in this Trust to the contrary: (1) After payment of all matters discussed above, the balance of the principal and undistributed income (the “residue”) shall be paid in trust for the benefit of Settlor’s children, NICOLE MOREY, AMANDA MOREY, AND DANIELLE MOREY (collectively, the “Beneficiaries” or “Beneficiary” as the context requires) under the terms and provisions of this sub-trust, which shall be known as the, “MOREY FAMILY TRUST.” The successor trustee of this Trust Agreement shall be the trustee of the MOREY FAMILY TRUST.

Among other things, the 2004 amendment and restatement created a new entity, the Morey Family Trust (as a subtrust of the Carlton W. Morey, Jr., Revocable Trust). The decedent did not, however, change the beneficiary of the life insurance policy, which remained the “Carl W. Morey-Trust.”

I.

After his brother’s death, the Trustee filed a petition requesting a determination that life insurance proceeds payable to the trust were exempt from all “death obligations” and unavailable to Mr. Morey’s estate or its creditors. Here, as below, the Trustee relies on this language in section 222.13(1), Florida Statutes (2008):

Whenever any person residing in the state shall die leaving insurance on his or her life, the said insurance shall inure exclusively to the benefit of the person for whose use and benefit such insurance is designated in the policy, and the proceeds thereof shall be exempt from the claims of creditors of the insured unless the insurance policy or a valid assignment thereof provides otherwise.

While the mere fact that life insurance proceeds are payable to a trust, rather than directly to a natural person, does not deprive them of their exempt status, section 733.808(1), Florida Statutes (2008), makes it clear that life insurance proceeds payable to a trust “shall be held and disposed of by the trustee in accordance with the terms of the trust as they appear in writing on the date of the death of the insured.”

We therefore consider the provisions of the Carlton W. Morey, Jr. Revocable Trust, at all times the designated beneficiary of the life insurance policy, as they existed on the date of the decedent’s death. As the learned trial judge concluded, the terms of the trust (and of the insurance policy) are straightforward and unambiguous:

7. ... It is undisputed by the parties, and it is apparent from the face of the Nationwide Policy, that the sole named beneficiary of the Nationwide Policy is the Morey Trust. In turn, Section V of the Morey Trust provides an express priority and order of distribution and payment of trust assets, mandating the payment of the Estate’s expenses and obligations before the distribution of the residue, if any, to the sub-trust known as the Morey Family Trust for the benefit of the Morey daughters.
8. The Court further finds that on December 19, 2005, the Decedent executed the First Amendment To The Carlton W. Morey, Jr. Amended And Restated Revocable Trust, expressly reaffirming the Decedent’s intent that his children named under Article V(G) of the Morey Trust would be residuary beneficiaries as described in the Morey Trust and the sub-trust created thereunder.

(Boldface deleted). While life insurance proceeds are not payable directly to the estate or subject to obligations of the estate merely by virtue of being directed to a grantor trust, here the clear and explicit terms of the trust make the policy proceeds available to satisfy obligations of the estate, pursuant to section 733.808(1).

A.

Conceding that section 733.808(1) provides “[s]ome support for the Trial Court’s ruling,” the Trustee contends nevertheless that, because section 733.808(1) does not mention section 222.13, “there is no indication by the Legislature that the terms of Section 733.808(1) override an exemption statute such as Section 222.13.” The two statutory provisions are not, however, in conflict. Section 222.13(1) makes an exemption from the decedent insured’s creditors available for life insurance policy proceeds, but does not require the policy’s owner to take advantage of the exemption.

In other words, the exemption rendering life insurance policy proceeds unavailable to satisfy estate obligations can be waived. The very statute that creates the exemption makes this clear:

Notwithstanding the foregoing, whenever the insurance, by designation or otherwise, is payable to the insured or to the insured’s estate or to his or her executors, administrators, or assigns, the insurance proceeds shall become a part of the insured’s estate for all purposes and shall be administered by the personal representative of the estate of the insured in accordance with the probate laws of the state in like manner as other assets of the insured’s estate.

§ 222.13(1), Fla. Stat. (2008). Section 222.13(1) does not prohibit life insurance proceeds’ paying the insured’s estate’s debts and other “death obligations,” nor does it prohibit directing payment of policy benefits to a trust for that purpose.

An insurance policy is a contract. The right to select the beneficiary of a life insurance policy is an aspect of the freedom to contract. The statutory exemption does not purport to restrict that freedom. The owner of an insurance policy may waive the section 222.13 exemption merely by designating the insured or one or more of the insured’s creditors as a beneficiary or beneficiaries, by naming the insured’s estate as a beneficiary of the policy or, as here, by naming as beneficiary a trust whose terms direct distribution of the trust assets to the personal representative, if requested.

B.

The Trustee also argues that the “general direction for payment of ‘death obligations’ in Article V(A) of the Trust ... does not trump the express exemption provided in Section 222.13.” But the Carlton W. Morey, Jr. Revocable Trust declaration contains more than a “general direction for payment of ‘death obligations.’ ” The entire structure of the trust bespeaks payment of “death obligations” as a primary purpose. Only once the personal representative’s demands have been met and only as to any residuum then remaining does the trust instrument give rise to the residuary subtrust of which the decedent’s daughters are named beneficiaries.

In construing the trust instrument, the document as a whole should be considered. See Bryan v. Dethlefs, 959 So.2d 314, 317 (Fla. 3d DCA 2007) (Interpretation of a trust instrument “is ascertained from the four corners of the document through consideration of ‘all the provisions of the [trust] taken together, rather than from detached portions or any particular form of words. This rule prevails whether the entire [trust] or some specific clause or part of it is being construed.’ ” (quoting Sorrels v. McNally, 89 Fla. 457, 105 So. 106, 109 (1925))); Roberts v. Sarros, 920 So.2d 193, 195 (Fla. 2d DCA 2006) (“In determining the settlors’ intent, the court should not ‘resort to isolated words and phrases’; instead, the court should construe ‘the instrument as a whole,’ taking into account the general dispositional scheme.” (quoting Pounds v. Pounds, 703 So.2d 487, 488 (Fla. 5th DCA 1997))).

The apparent intent and practical result of the decedent’s estate plan is the same as if the life insurance policy named the estate itself beneficiary and the will established a residuary trust. See generally Engelke v. Estate of Engelke, 921 So.2d 693, 697 (Fla. 4th DCA 2006) (describing “revocable trusts [as] merely will substitute devices”). Only after the estate is settled would any remaining assets of the Carlton W. Morey, Jr. Revocable Trust have been available to establish the Morey Family Trust.

C.

Finally, the Trustee’s reliance on homestead cases misses the mark. Insur-anee benefits are treated differently than homestead property. The Florida Constitution places restraints on the devise of homestead property for the benefit of the heirs: “Article X, § 4(c), of the Florida Constitution and F.S. 732.4015 provide that the owner of homestead property may not devise that property if survived by a spouse or a minor child.” Jeffrey A. Ba-skies & Tereina R. Stidd, Homestead, in Basic Estate Planning in Florida, § 6.12 (6th Ed. 2009).

The related, but distinct, constitutional exemption of homestead property from forced sale belongs to the “surviving spouse or heirs of the owner.” Art. X, § 4(b), Fla. Const. Accordingly, “if title to the homestead passes to a person who is a member of the class described as ‘the surviving spouse or heirs of the owner,’ the homestead will be exempt from forced sale for the claims of the deceased owner’s creditors.” Homestead at § 6.16. “After the decedent’s death, the heir has legal ownership of the property, and he or she may sell it without regard to decedent’s creditors or administrative expenses.” Estate of Shefner v. Shefner-Holden, 2 So.3d 1076, 1078 (Fla. 3d DCA 2009). See Monks v. Smith, 609 So.2d 740, 742 (Fla. 1st DCA 1992) (“Where a decedent is survived by a spouse or lineal descendants, homestead property is not regarded as an asset of the estate and is not subject to administration by a personal representative. Under such circumstances, the homestead passes to the heirs completely outside of the will, by operation of law.” (citations omitted)).

In the Engelke case, the court held that transfers of interests in homestead property to revocable grantor trusts did not destroy the property’s homestead character, so that the constitutional exemption from forced sale inured to the benefit of the heirs named as trust beneficiaries “upon the moment of the owner’s death.” 921 So.2d at 696. But insurance proceeds payable to a trust become trust assets to be “disposed of by the trustee in accordance with the terms of the trust.” § 738.808(1), Fla. Stat. (2008). With the exception of homestead (and other limitations not pertinent here), it “is an elementary principle that a person can dispose of his or her property by will [or transfer in trust] as he or she pleases so long as that person’s intent is not contrary to any principle of law or public policy.” McKean v. Warburton, 919 So.2d 341, 344 (Fla.2005).

II.

After the trial court ruled the life insurance proceeds were not exempt under the terms of the trust, the Trustee filed a supplemental petition for reformation of the trust to express the settlor’s purported intent that life insurance proceeds “be exempt, paid into the Morey Trust for the sole and exclusive use, benefit and protection of the Decedent’s children, ... and that such exempt proceeds would flow directly, without setoff or deduction of any kind, into the subtrust known as the Mor-ey Family Trust so that the Decedent’s children would receive the sole and exclusive benefit of the total amount of the insurance proceeds.” The trial court held an evidentiary hearing on the supplemental petition, concluded the Trustee failed to prove entitlement to reformation of the trust, denied the petition for reformation on that ground, and entered final judgment directing compliance with the trust provisions concerning disposition of trust assets.

Pursuant to section 736.0415, Florida Statutes (2008), a “court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law,” and “may consider evidence relevant to the settlor’s intent even though the evidence contradicts an apparent plain meaning of the trust instrument.” Reformation is available for a mistake in the form of expression or articulation — an error that “arises when a donative document includes a term that misstates the donor’s intention ..., fails to include a term that was intended to be included ..., or includes a term that was not intended to be included.” Restatement (Third) of Prop.: Wills & Other Donative Transfers § 12.1 cmt. i (2003).

The Trustee argues on appeal that the trial court erred in ruling that he failed to prove grounds for reformation of the trust, while not disputing that “the party seeking reformation at all times has the burden to prove, by clear and convincing evidence, that the trust, as written, does not reflect the settlor’s intent.” Reid v. Estate of Sonder, 63 So.3d 7, 10 (Fla. 3d DCA 2011). But “ ‘an appellate court may not overturn a trial court’s finding regarding the sufficiency of the evidence unless the finding is unsupported by record evidence, or as a matter of law, no one could reasonably find such evidence to be clear and convincing.’ Thus, in this case, it is not our function to conduct a de novo review of the evidence, but simply to determine whether there exists in the record competent substantial evidence to support the judgment of the trial court.” Id. (citations omitted). Reviewing the record in the present case, it is clear that a reasonable trier of fact could have been left — as the learned trial judge was — without a firm belief or conviction that the trust terms were contrary to the decedent’s intent at the time he executed the (last amendment to the) trust declaration.

Mr. Morgan, who drafted the trust instruments for the decedent, testified that the decedent, an experienced businessman, read everything before executing the trust amendments which created the Morey Family Trust. The amendments plainly refer to this subtrust’s receiving “the residue” and to the children’s receiving the “residuary estate as described in the Trust and in the subtrust.” Proof that the decedent reviewed the documents before executing them does not alone preclude an order of reformation. See Restatement (Third) of Prop.: Wills & Other Donative Transfers § 12.1 cmt. 1 (2003). But there is no evidence in the present case that the decedent was not fully capable of understanding the trust documents, as written.

“A reformation relates back to the time the instrument was originally executed [or amended] and simply corrects the document’s language to read as it should have read all along.” Providence Square Ass’n, Inc. v. Biancardi, 507 So.2d 1366, 1371 (Fla.1987). It was clear when the estate planning documents were executed that the estate would need cash to pay for liability and casualty insurance, maintenance and operating expenses, and to make payments of principal, interest, and taxes to prevent foreclosures. Mr. Morgan testified that the decedent’s primary asset in 2000 was a retail business, and that one of his primary concerns at that time was that his estate have liquidity so that “there wouldn’t have to be a fire sale of any business.”

The decedent’s estate did consist mainly of illiquid assets: Among the estate assets were seven corporations and one limited liability company operating a number of for-profit businesses, including twenty-six rental properties and another apartment complex. Excluding exempt homestead property, the estate’s estimated fair market value exceeded $8,000,000 (before offsetting liabilities were taken into account). The amended estate inventory also indicated the decedent had over twenty-five vehicles, owned either individually or by closely held corporations. Insurance proceeds payable directly to the estate amounted to perhaps a tenth of the estate’s total liabilities.

The record leaves no doubt that the decedent had great affection for his daughters and great concern for their welfare. Orderly administration of the estate would, after all, have inured to the benefit of the daughters, if estate assets had exceeded liabilities and the residuary estate had poured over. In the circumstances, however, the trial court could reasonably conclude that the primary purpose of the life insurance policy payable to the Carlton W. Morey, Jr. Revocable Trust was to provide liquidity, if needed, in order to maintain and preserve real properties and businesses for the estate, and otherwise to facilitate administration of the estate so that estate assets could be sold in some orderly fashion. More to the point, the trial court was entitled to find that the Trustee did not clearly and convincingly prove otherwise.

The trial court did not err in ruling that deterioration in the decedent’s financial circumstances between the time he executed estate planning documents and the date of his death — which in the event resulted in a lack of any residuum with which to fund the Morey Family Trust — did not constitute a “mistake” requiring reformation of the trust documents. Reformation is not available to modify the terms of a trust to effectuate what the settlor would have done differently had the settlor foreseen a change of circumstances that occurred after the instruments were executed. See, e.g., Restatement (Third) of Prop.: Wills & Other Donative Transfers, at cmt. h (2003) (Reformation is not “available to modify a document in order to give effect to the donor’s post-execution change of mind ... or to compensate for other changes in circumstances.”).

Affirmed.

THOMAS, J., and SANTURRI, THOMAS R., Associate Judge, concur.

      . No copy of the original version is in the record.

      . The application named "Florida Home A/C & Appliances” as beneficiary of a "Second Traditional Life Policy.” On a separate part of the application titled "Q. REMARKS," an insurance agent wrote that the "applicant is applying for (2) 250,000 Term policies. One of them for the trust to benefit his daughters, the other one for the continuation of the business.”

      . A First Amendment to the restated trust, that Carlton W. Morey, Jr. executed on December 19, 2005, provided it was "Settlor’s intent Settlor's children named under Article V(G) receive his residuary estate as described in the Trust and in the subtrust described therein.”

      . See generally § 733.808(4), Fla. Stat. (2008).

      . Life insurance proceeds payable to a trust "shall not be deemed to be part of the decedent's estate, and shall not be subject to any obligation to pay the expenses of the administration and obligations of the decedent's estate or for contribution required from a trust under s. 733.607(2) to any greater extent than if the proceeds were payable directly to the beneficiaries named in the trust.” § 733.808(4), Fla. Stat. (2008).

      . The purpose and effect of the document as a whole establishes the context in which each specific provision must be read. Illustrative on this point is Engelke v. Estate of Engelke, 921 So.2d 693, 697 (Fla. 4th DCA 2006) ("Here, the provisions of the revocable trust effective upon Paul’s death provided generally that the trustee would pay any expenses that the estate could not pay. Yet the trust also specifically directed that the homestead be available to Judy during her lifetime with Paul's children to receive it following the termination of Judy’s interest. The trust cannot be read as requiring the sale of the homestead. In fact, the opposite conclusion must be drawn.”).

      . If the owner of homestead property is survived by a minor child, "the devise of homestead property is absolutely prohibited.” Jeffrey A. Baskies & Tereina R. Stidd, Homestead, in Basic Estate Planning in Florida, § 6.12 (6th Ed. 2009). If no minor child survives, but the owner is survived by a spouse, "the homestead property may be devised, but only to the surviving spouse.” Id. "[Hjomestead does not become a part of the probate estate unless a testamentary disposition is permitted and is made to someone other than an heir, i.e., a person to whom the benefit of homestead protection could not inure.” Harrell v. Snyder, 913 So.2d 749, 751 (Fla. 5th DCA 2005).

      . If, however, neither spouse nor minor child survives, the decedent need not devise homestead property to an heir, in which case the homestead exemption from forced sale is extinguished. See Cutler v. Cutler, 994 So.2d 341, 346 n. 3 (Fla. 3d DCA 2008). See also Engelke, 921 So.2d at 696 ("It is only when the testator directs that a freely devisable homestead be sold and distributed to a devi-see that the constitutional protection from creditors is disregarded. In such a case, the decedent has devised money and not the homestead itself. Otherwise, the homestead protections against forced sale ■ attach upon the moment of the owner's death.” (citation omitted)); Knadle v. Estate of Knadle, 686 So.2d 631, 632 (Fla. 1st DCA 1996) (holding that a decedent, survived by adult children but no spouse, could direct by will that homestead property be sold and the sale proceeds be added to his estate with the result that the sale proceeds lose their homestead character and become subject to the claims of creditors).

      .The Engelke court explained:
      We note that iii this case while Paul's residence was held in a revocable trust, it was owned by a "natural person” for purposes of the constitutional homestead exemption. Because Paul retained a right of revocation, he was free to revoke the trust at any point in time. Accordingly, he maintained an ownership interest in his residence, even though a revocable trust held title to the property.

        Engelke, 921 So.2d at 696.

      . "This standard is an intermediate standard of proof between the ‘preponderance of the evidence’ standard used in most civil cases, and the ‘beyond a reasonable doubt standard’ of criminal cases, requiring the evidence ‘[to] be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.’ ” Reid v. Estate of Sonder, 63 So.3d 7, 10 (Fla. 3d DCA 2011) (citations omitted).

      .The time the governing documents were executed is the pertinent point in time. The Restatement provides the following illustration:
      3. G's will devised his government bonds to his daughter, A, and the residue of his estate to a friend. Evidence shows that the bonds are worth only half of what they were worth at the time of execution of the will and that G would probably have left A more had he known that the bonds would depreciate in value.
      This evidence does not support a reformation remedy. G's mistake did not relate to facts that existed when the will was executed.
      Restatement (Third) of Prop.: Wills & Other Donative Transfers § 12.1 cmt. h, illus. 3 (2003).

      . The trial court raised the question whether what counsel really sought was an amendment to the insurance policy: "It's more like you’re asking me to reform the terms of the insurance policy beneficiary designation than you are the terms of the trust by sending the money to a different trust rather than the residuary of the original trust.”
      The Morey Family Trust was never named a beneficiary of the life insurance policy. Nor did the decedent make any other change of beneficiaries in the insurance policy after the trust amendments that created the Morey Family Trust.

      . An amended estate inventory put the estimated fair market value of the real property at $7,350,500.

      . The Carlton W. Morey, Jr. Revocable Trust was the residuary beneficiary under the decedent’s will.

      . Between the time the Nationwide policies were issued in 2000 and the decedent's death in 2008, his financial situation seems to have taken a turn for the worse. The personal representative of the decedent's estate filed a petition for authority to retain special counsel for the estate for the purpose of filing federal bankruptcy proceedings for several of the businesses (including the limited liability company and Carl Morey Properties, Inc., which owned real properties).


author: PER CURIAM.

text:
    John COGBILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2068.
    District Court of Appeal of Florida, First District.
    July 24, 2012.
    John Cogbill, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, — So.3d —, 2012 WL 2849485 (Fla.2012).

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.


author: WOLF, J.

text:
    STATE of Florida, Petitioner, v. Charles Alan OWENS, Respondent.
    No. 1D11-4508.
    District Court of Appeal of Florida, First District.
    July 24, 2012.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Petitioner.
    Charles Alan Owens, pro se, Respondent.
   WOLF, J.

The State filed a petition for writ of certiorari challenging the trial court’s order granting respondent’s motion to transfer his case to another county where he had other charges pending. The trial court granted the motion on the basis of judicial economy without the State’s consent. We find the order departs from the essential requirements of the law and causes material injury to the petitioner throughout the proceedings below, leaving no adequate remedy on appeal from a final order. See State v. Lozano, 616 So.2d 73, 74 (Fla. 1st DCA 1993) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987)).

Section 910.035(1), Florida Statutes (2011), reads in pertinent part:

A defendant arrested or held in a county other than that in which an indictment or information is pending against him or her may state in writing that he or she wishes to plead guilty or nolo contendré, to waive trial in the county in which the indictment or information is pending, and to consent to disposition of the case in the county in which the defendant was arrested or is held, subject to the approval of the prosecuting attorney of the court in which the indictment or information is pending.

Section 910.035(1), Florida Statutes (2011) (emphasis added). The Third District recently quashed an order to transfer that was granted on the basis of judicial economy under section 910.035(1), reasoning:

Although consolidation may be more efficient, consolidation and venue are entirely different issues. The defendant does not have the right to choose venue from the counties in which the crimes allegedly took place, and the interests in practicality, efficiency, expense, or convenience are not operative determinative factors.

State v. Losada, 89 So.3d 1104 (Fla. 3d DCA 2012) (emphasis added) (citation omitted) (granting petition for writ of cer-tiorari and quashing an order to transfer that was issued without the State’s consent and on the basis of judicial economy). As such, we grant the petition and quash the order under review.

PETITION GRANTED AND ORDER QUASHED.

RAY and MAKAR, JJ., concur.


author: DAVIS, Judge.

text:
    William TURKALI, Appellant, v. The CITY OF SAFETY HARBOR and Pinellas County, Appellees.
    No. 2D11-3649.
    District Court of Appeal of Florida, Second District.
    July 25, 2012.
    Lee Wm. Atkinson and Jacqueline H. Palik of Forizs & Dogali, P.A., Tampa, for Appellant.
    Jay Daigneault of Frazer, Hubbard, Brandt, Trask, Yacavone, Metz, & Daig-neault, L.L.P., Dunedin, for Appellee City of Safety Harbor.
    John E. Schaefer, Assistant County Attorney, County Attorney’s Office, Clear-water, for Appellee Pinellas County.
   DAVIS, Judge.

William Turkali challenges the final judgment entered in favor of the City of Safety Harbor and Pinellas County by which his claim under the Bert Harris Private Property Protection Act (“The Act”) was dismissed. We affirm.

Mr. Turkali owns waterfront residential property in Safety Harbor. His parcel consists of approximately 0.25 acres (some of which was unusable due to being under water) and includes a 2700-square-foot single-family residence. Representatives of the City approached Mr. Turkali with a request that he agree to have his property included in the Safety Harbor Community Development District. In return, the City promised to designate the property ROS (retail/office/service), which allowed for several diverse uses, imposed no density restrictions, and permitted buildings to be up to three-stories tall. Mr. Turkali accepted the invitation, which meant that the City would not have to initiate an eminent domain proceeding to include his property in the new development plan.

In 2006, the City proposed to amend the Community Development Plan. The amendments down-planned the subject property, i.e., eliminated significant valuable uses available to the property owner under the ROS designation. Under the new plan, the property could only be used for single-family detached dwellings. After the City approved the amendments, the plan was submitted to Pinellas County for approval. The County rejected the plan twice before ultimately approving it in March 2009.

In response, Mr. Turkali filed a notice of intent to file an action against the City and County under the Act. To his notice, Mr. Turkali attached an appraisal as required by the statute. When there was no resolution of his claim, Mr. Turkali filed his complaint, seeking damages for the loss in the value of his property due to the amending of the land use designation by the new development plan. He alleged that the value of his land was significantly diminished because the new single-family residential designation of his property reduced the property’s value as compared to the potential values for the many ROS uses.

The City and the County both moved to dismiss Mr. Turkali’s claim. The trial court twice granted the motions to dismiss without prejudice to Mr. Turkali’s amending his complaint. However, when he filed his third amended complaint, which was substantially identical to the second amended complaint, the trial court dismissed Mr. Turkali’s cause of action with prejudice upon motion by the City and County. He now challenges that dismissal with prejudice.

In its final order, the trial court cited two grounds for dismissing the complaint. First, the trial court determined that as a matter of law, Mr. Turkali could not state a cause of action under the Act without first seeking use of his property for purposes other than a single-family residence. The court concluded that because the Act is limited to “as applied” challenges, any claim that Mr. Turkali might have under the Act would not be ripe until he petitioned for a variance through an administrative proceeding and the variance was denied. Second, the trial court determined that the appraisal attached to the notice of claim (which was attached to the third amended complaint) was not a “valid, bona fide appraisal” for the purposes of the Act. Because we agree with the trial court that the appraisal was invalid, we affirm the trial court’s dismissal with prejudice without addressing the ripeness of Mr. Turkali’s claim.

Pursuant to the Act,

[w]hen a specific action of a governmental entity has inordinately burdened an existing use of real property or a vested right to a specific use of real property, the property owner of that real property is entitled to relief, which may include compensation for the actual loss to the fair market value of the real property caused by the action of the government.

§ 70.001(2), Fla. Stat. (2008). The Act provides that the action must be filed within one year of the application of the ordinance to the subject property. § 70.001(11). Additionally, the owner must file a presuit notice to the political entity at least 180 days prior to filing the action. § 70.001 (4)(a). This notice must include a “bona fide, valid appraisal that supports the claim and demonstrates the loss in fair market value to the real property.” Id.

In the instant case, Mr. Turkali timely filed his presuit notice and provided an appraisal showing both the value of his property before the new use regulations passed and the value after the new limitations were imposed. The City and the County maintain that this appraisal is deficient because it conditions the property’s preordinance and postordinanee values on the potential of bundling the property with several adjoining properties for one joint ROS use. We agree.

The appraisal does not provide opinions as to the value of just Mr. Turkali’s parcel before and after the enactment of the new use restrictions. As such, the appraisal did not provide the City and the County the means by which to evaluate the potential claim for the purpose of making a settlement offer prior to the filing of a suit. See § 70.001(4)(c) (“During the ... 180-day-notice period, unless extended by agreement of the parties, the governmental entity shall make a written settlement offer.... ”). Because the procedures of the Act were negated by the deficient appraisal, Mr. Turkali’s presuit notice was invalid and he cannot state a cause of action under the Act. Accordingly, the trial court properly dismissed his complaint. Since this was his third amended complaint and was essentially the same as his second amended complaint, the trial court was within its discretion to dismiss with prejudice. See Kohn v. City of Miami Beach, 611 So.2d 538, 539 (Fla. 3d DCA 1992) (“[A]s an action progresses, the privilege of amendment progressively decreases to the point that the trial judge does not abuse his [or her] discretion in dismissing with prejudice. While there is no magical number of amendments which are allowed, we have previously observed that with amendments beyond the third attempt, dismissal with prejudice is generally not an abuse of discretion.” (citation omitted)).

Having determined that the trial court properly dismissed the complaint, we need not reach the issue of whether a variance must be sought and denied as a condition precedent to filing an “as applied” challenge to the ordinance.

Affirmed.

NORTHCUTT and VILLANTI, JJ., Concur.

      . § 70.001, Fla. Stat. (2008).

      . A 2011 amendment to the Act changed the presuit notice deadline to 150 days prior to filing the action. Ch.2011-191, § 1, Laws of Fla.

      . Attached to the appraisal was an earlier appraisal made prior to the enactment of the restrictions. This was dated 2008, but there was no appraisal as to the value as of the date of the enactment and no opinion as to the value of the parcel after the enactment.


author: KHOUZAM, Judge.

text:
    Dwight ROSS, Appellant, v. Elaine ROSS, Appellee.
    No. 2D11-714.
    District Court of Appeal of Florida, Second District.
    July 25, 2012.

      Dwight Ross, pro se.
    Elaine Ross, pro se.
   KHOUZAM, Judge.

Dwight Ross, the Former Husband, appeals the final judgment of dissolution of his marriage to Elaine Ross. He argues that the trial court erred in denying his motion for rehearing and amendment of judgment as untimely. Because his motion was timely served, we reverse the denial and remand for consideration of the motion on the merits. This disposition renders the remaining issues on appeal moot.

The trial court filed a Final Judgment of Dissolution of Marriage and Other Relief on December 13, 2010. The Former Husband, who is incarcerated, provided a motion for rehearing and amendment of judgment to prison officials on December 21, 2010. On January 6, 2011, the trial court denied the Former Husband’s motion as untimely.

Florida Family Law Rule of Procedure 12.530 provides that “Motions for new trial and rehearing and amendments of judgments shall be governed by Florida Rule of Civil Procedure 1.530.” Florida Rule of Civil Procedure 1.530(b) specifies that motions for rehearing “shall be served not later than 10 days after ... the date of filing of the judgment.” The same period of time applies for motions to amend the judgment. See Fla. R. Civ. P. 1.530(g).

In Florida, courts presume a legal document from an incarcerated person was timely served and filed if “it contained a certificate of service showing that the document was placed into the hands of prison officials for mailing on a specific date and if the document would have been timely filed or served had it been received by the court on that date.” Wimbush v. Pasco Cnty. Sheriff's Office, 829 So.2d 296, 297 (Fla. 2d DCA 2002) (citing Thompson v. State, 761 So.2d 324, 326 (Fla.2000)). This “mailbox rule” applies to documents from inmates in both civil and criminal cases. Id. (citing Griffin v. Sistuenck, 816 So.2d 600 (Fla.2002)).

Here, the Former Husband’s motion was timely served. The Final Judgment was filed December 13, 2010, and the Former Husband’s motion bears a stamp and certificate of service indicating that it was provided to prison officials on December 21, 2010. Accordingly, the motion was timely served and we remand for the trial court to consider it on the merits.

Reversed and remanded.

NORTHCUTT and BLACK, JJ., Concur.


author: GERBER, J.

text:
    Johnathan EDWARDS-FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2505.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant appeals his conviction for aggravated assault while possessing and discharging a firearm. He primarily argues that the trial court erred in: (1) overruling his Confrontation Clause objection to a deputy’s testimony recounting the statement of an alleged victim who did not testify at trial; and (2) sustaining the state’s objection to his attempted cross-examination of a detective who testified that the alleged non-testifying victim’s statement was consistent with the statement of a second alleged victim who testified at trial. We agree with these arguments. We reverse and remand for a new trial.

The deputy testified that he responded to a 911 call regarding shots fired in a residential neighborhood. When the deputy arrived at the scene, the two alleged victims flagged him down from a vehicle in the street. The deputy asked the men for the shooter’s location. The men pointed to the defendant’s house. The deputy went to the defendant’s house and detained the defendant without incident.

The deputy then returned to the alleged victims to find out what happened. When the state asked the deputy what the alleged non-testifying victim said, the defendant raised hearsay and Confrontation Clause objections. The state responded that any hearsay would fall under the excited utterance exception. The state did not respond to the Confrontation Clause objection. The trial court overruled the objections. The state then questioned the deputy regarding the alleged non-testifying victim’s statement:

STATE: [Deputy], we left off and I asked the question, what did [the alleged non-testifying victim] that day tell you about what had happened?
DEPUTY: Okay. [The alleged non-testifying victim] got his friend to drive them to where he used to live.... They got to the residence, went up to the door, knocked on the door. [The defendant] came to the door, said he didn’t want to speak to them. They knocked again wanting to know, hey, I’m here to get some of my stuff from the residence. At that point they saw [the defendant] approach the door. They ... heard gunshots. They turned and ran and ran down the street.

The deputy’s testimony corroborated the testimony of the second alleged victim, who testified earlier in the trial.

A detective later testified regarding the formal statements which the alleged victims provided. The state asked the detective if the alleged victims’ statements were consistent with one another. The detective responded: “They were.” Later, the detective added: “I can’t say 100 percent for sure that everything, but ... they generally were the same account of what happened.” The detective then recounted the defendant’s statement claiming self-defense. According to the defendant, the men banged on the door. He saw a bulge in one of the men’s pants and thought it was a gun. He shot at the men because he thought they were trying to kill him.

The defendant attempted to cross-examine the detective about what the defendant believed were inconsistencies between the alleged victims’ statements. The state objected on the ground that the defendant was improperly attempting to impeach the alleged non-testifying victim. The defendant responded: “[The state] brought up if [the detective] observed any inconsistencies in the alleged victims’ statements and I’m asking if he did. And he said he didn’t, but I’m trying to point them out to him.... ” The court sustained the state’s improper impeachment objection.

The jury acquitted the defendant of aggravated assault as to the alleged non-testifying victim, but convicted the defendant of aggravated assault as to the alleged testifying victim.

This appeal followed. The defendant argues that the trial court erred in: (1) overruling his Confrontation Clause objection to the deputy’s testimony recounting the alleged non-testifying victim’s statements implicating the defendant; and (2) sustaining the state’s objection to his attempted cross-examination of the detective when the state opened the door to the alleged consistency between the alleged victims’ statements. We review the Confrontation Clause argument de novo. See McWatters v. State, 36 So.3d 613, 637 (Fla.2010) (“In considering a trial court’s ruling on admissibility of evidence over an objection based on the Confrontation Clause, our standard of review is de novo”) (citation and quotations omitted). We review the “open door” argument for an abuse of discretion. See Maharaj v. State, 78 So.3d 63, 66 (Fla. 4th DCA 2012) (“The standard of review of a determination of whether a party has opened the door is abuse of discretion as limited by the rules of evidence.”) (citation omitted).

We agree with the defendant’s Confrontation Clause argument. The Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)). The United States Supreme Court has distinguished testimonial statements from nontestimonial statements as follows:

Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Davis, 547 U.S. at 822, 126 S.Ct. 2266 (footnote omitted).

Here, the statements which the alleged nontestifying victim made after the deputy detained the defendant were testimonial. Once the deputy detained the defendant, there was no ongoing emergency. Instead, the deputy’s primary purpose of questioning the alleged nontestifying victim was to establish what occurred between the defendant and the alleged victims for a later criminal prosecution. Thus, the trial court erred in overruling the defendant’s Confrontation Clause objection. Compare Davis, 547 U.S. at 829-30, 126 S.Ct. 2266 (wife’s statement to officers regarding her husband’s domestic battery was testimonial because the officers separated the husband from the wife before she made the statement; thus, there was no emergency in progress and the primary, if not the sole, purpose of the interrogation was to investigate a possible crime), with Michigan v. Bryant, — U.S. —, 131 S.Ct. 1143, 1165-67, 179 L.Ed.2d 93 (2011) (shooting victim’s statement to officers identifying the shooter was nontes-timonial because the police did not know the shooter’s location or the extent of the threat which he posed; thus, there was an ongoing emergency and the primary purpose of the interrogation was to enable the police to address the emergency).

The trial court’s error is subject to the harmless error test. “The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). Here, the state has not shown there is no reasonable possibility that the error did not contribute to the conviction. The deputy’s testimony about the non-testifying victim’s statement bolstered the testifying victim’s trial testimony and conflicted with the defendant’s post-arrest statement claiming self-defense.

We also agree with the defendant’s “open door” argument. The eviden-tiary principle of “opening the door”:

allows the admission of otherwise inadmissible testimony to qualify, explain, or limit testimony or evidence previously admitted. This principle is premised on considerations of fairness and the truth-seeking function of a trial. In order to open the door, the witness must offer misleading testimony or make a specific factual assertion which the opposing party has the right to comet so that the jury will not be misled.

Maharaj, 78 So.3d at 66-67 (emphasis added; citation omitted).

Here, the detective made a specific factual assertion that the alleged victims’ statements were consistent with one another. When the state asked the detective if the alleged victims’ statements were consistent with one another, the detective responded: “They were.” Later, the detective added: “I can’t say 100 percent for sure that everything, but ... they generally were the same account of what happened.” (emphasis added). The defendant sought to correct that factual assertion on cross-examination by pointing out what the defendant believed were inconsistencies between the alleged victims’ statements. The trial court erred in prohibiting the defendant from doing so.

This error also is subject to the harmless error test. The state has not shown there is no reasonable possibility that this error did not contribute to the conviction either. The detective’s testimony about the consistency between the alleged victims’ statements bolstered the testifying victim’s trial testimony and conflicted with the defendant’s post-arrest statement claiming self-defense.

Based on the foregoing, we reverse the defendant’s conviction and sentence and remand for a new trial.

Reversed and remanded for a new trial.

DAMOORGIAN and CIKLIN, JJ., concur.

      . We have considered the defendant’s other two arguments on appeal and conclude without further discussion that those arguments lack merit.


author: LAGOA, J.

text:
    GENERAL STAR INDEMNITY COMPANY, Petitioner, v. ATLANTIC HOSPITALITY OF FLORIDA, LLC, Respondent.
    No. 3D11-3199.
    District Court of Appeal of Florida, Third District.
    July 25, 2012.

      Berk, Merchant & Sims and William S. Berk and Melissa M. Sims; White & Case and Raoul G. Cantero and John-Paul Rodriguez, for petitioner.
    Ginsberg & Schwartz and Arnold R. Ginsberg, for respondent.
    Before LAGOA, SALTER, and FERNANDEZ, JJ.
   LAGOA, J.

General Star Indemnity Company (“General Star”) seeks certiorari review of an order overruling its objections to discovery of materials concerning its business practices and policies. We grant the petition and quash the order.

General Star issued a commercial property insurance policy to Atlantic Hospitality of Florida, LLC (“Atlantic”). Hurricane Charlie damaged Atlantic’s property, and Atlantic submitted a claim to General Star. General Star paid Atlantic $1.4 million on its claim. Atlantic subsequently filed an action against General Star for additional funds, asserting claims for breach of contract, declaratory judgment, and breach of the implied covenant of good faith and fair dealing. General Star answered and raised several affirmative defenses to Atlantic’s complaint.

General Star’s petition arises from a supplemental request for production propounded by Atlantic. That request sought, among other documents, the production of “[a]ll training manuals, company policy memoranda, and guidelines relating to the underwriting and administration of the subject insurance policies and/or estimating, adjusting and payment of claims under the subject insurance policies.” Following a hearing, the trial court entered an order overruling General Star’s objections to this discovery.

In its petition for a writ of certiorari, General Star contends that the trial court’s order must be quashed because it allows disclosure of “classic bad faith materials,” which are not subject to discovery until there has been a resolution of the underlying coverage claim.

General Star’s contention is well taken. “Discovery directed to an insurer’s business [policies or] practices ... is premature ‘unless there has been a determination of liability and extent of damages owed the insured under the first-party insurance policy.’ ” Phoenix Ins. Co. v. Trans World Forwarding, Inc., 19 So.3d 430, 430 (Fla. 3d DCA 2009) (quoting Gov’t Emps. Ins. Co. v. Rodriguez, 960 So.2d 794, 795 (Fla. 3d DCA 2007)); accord Granada Ins. Co. v. Ricks, 12 So.3d 276, 277 (Fla. 3d DCA 2009) and cases cited therein; State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So.3d 809, 810 (Fla. 4th DCA 2010). Certiorari is appropriate to quash a discovery relating to an insurer’s business practices and policies prior to such determination. See Phoenix Ins., 19 So.3d at 430; Rodriguez, 960 So.2d at 795-96; Liberty Mut. Ins. Co. v. Farm, Inc., 754 So.2d 865, 866-67 (Fla. 3d DCA 2000); Old Republic Nat’l Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So.2d 818 (Fla. 5th DCA 2003); see also State Farm Fla. Ins. Co. v. Seville Place Condo. Ass’n, 74 So.3d 105, 109 (Fla. 3d DCA 2011) (en banc) (reaffirming holding that premature bad faith discovery may cause irreparable harm).

Because the discovery order under review compels the production of materials concerning the insurer’s business policies and practices before there has been a determination of coverage and the extent of loss, we grant the petition and quash the order. This holding is in accordance with our decision in Geico General Insurance Co. v. Rodriguez, 23 So.3d 1212 (Fla. 3d DCA 2009). In Rodriguez, the insured’s bad faith claim purported to plead both statutory and common law duties of good faith. Although the trial court abated the bad faith claim, it nonetheless permitted discovery related to that claim to proceed. This Court granted certiorari and quashed the discovery order. As to the statutory aspect of the insured’s bad faith claim, we applied the familiar rule that such discovery “may not be commenced until such time, if ever, as the insured’s coverage and extent of loss have been determined.” Id. at 1213. Although we declined to automatically apply this rule to the “common law” aspect of the insured’s bad faith claim (as QBE Insurance Co. v. Chalfonte Condominium Apartment Ass’n, 94 So.3d 541, 2012 WL 1947863 (Fla.2012), was pending before the Florida Supreme Court), we also quashed the discovery order regarding the common law claim because of its similarity to the impermissible discovery related to the statutory aspect of the claim. Rodriguez, 23 So.3d at 1213.

Here, Atlantic’s bad faith claim asserts only a common law cause of action for breach of the implied covenant of good faith and fair dealing. Rodriguez, however, is applicable here and requires quashing of the discovery order, as the Florida Supreme Court in Chalfonte recently confirmed that “first-party claims [for breach of the implied warranty of good faith and fair dealing] are actually statutory bad-faith claims that must be brought under section 624.155 of the Florida Statutes.” Id. at 549. Moreover, as a result of Chalfonte, Atlantic’s common law claim cannot survive before the trial court, furnishing a separate ground for quashing the discovery order as the requested materials now are irrelevant to Atlantic’s remaining claims below. See, e.g., Gov’t Emps. Ins. Co., 960 So.2d at 795; Allstate Ins. Co. v. Swain, 921 So.2d 717 (Fla. 3d DCA 2006); State Farm Fire & Cas. Co. v. Valido, 662 So.2d 1012, 1013 (Fla. 3d DCA 1995); State Farm Fla. Ins. Co. v. Gallmon, 835 So.2d 389 (Fla. 2d DCA 2003).

Accordingly, we grant the petition, holding that the trial court’s order is a departure from the essential requirements of law causing irreparable harm for which there is no remedy on appeal.

Petition granted and order quashed.

      . Atlantic's coverage claim remains pending below.

      . General Star provided Atlantic with the claims file when the case was in federal court.


author: GROSS, J.

text:
    INTRAMED, INC., a Florida corporation, Appellant, v. Minnie GUIDER, Appellee.
    No. 4D11-455.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Scott A. Cole and Kristen A. Tajak of Cole, Scott & Kissane, P.A., Miami, for appellant.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Todd R. McPharlin and Melissa Medrano of Kelley Uustal, PLC, Fort Lauderdale, for ap-pellee.
   GROSS, J.

In this pharmaceutical malpractice case, Minnie Guider contended that Intramed, Inc. negligently filled her prescription with the wrong drug. Ultimately, the defendant admitted liability and the case went to trial on damages. Guider recovered a verdict of $1,948,843.50; of this amount, $1,425,920 was for future medical expenses and $395,000 was for future pain and suffering for the ninety-two year old plaintiff. We reverse for a new trial on damages. Serial improprieties in the plaintiffs closing argument, when combined with the procedural prejudice of the untimely disclosure of an expert, operated to deny the defendant a fair trial.

I

Guider filed her complaint on December 23, 2009. The defendant served its answer and affirmative defenses on January 12, 2010. Guider noticed the case for trial oh March 12, and the court set the case for jury trial on a three-week calendar beginning on August 2. While the pretrial order required expert witness disclosure no later than ninety days prior to trial, the parties’ attorneys acted as if the requirement was more honored in the breach than the observance. Between May 4 and May 19, Guider disclosed four experts, one identified as a “Primary Care physician for over ten years” and the rest identified as “treating physicians.”

On June 11, Guider filed a motion for speedy trial due to “her age and medical condition” under section 415.1115, Florida Statutes (2010), which provides that a party “over the age of 65” in a civil action “may move the court to advance the trial on the docket.” The trial court granted the motion and set the trial on August 16. At the defendant’s request, the trial was reset as the number-one trial for September 27, 2010. In July, Guider provided a witness list that listed as experts only the four doctors she disclosed in May. Over the summer, both parties worked on discovery based on the May through July disclosures.

On August 23, Guider served a new expert witness list that added Dr. Craig Lichtblau, without specifying his connection to the case. Two days later, Guider’s attorney sent defense counsel a letter identifying Lichtblau as “a medical doctor and rehabilitation specialist” who would be “testifying regarding the Plaintiffs need for future care.” On September 1 and September 8, Guider served new expert witness' lists adding two additional experts. The parties were unable to schedule a deposition for Dr. Lichtblau in August and early September.

Given the impending trial date, the defendant moved to strike the new experts or, in the alternative, for a continuance. At the September 17 hearing on the motion, the trial court denied the motion for continuance, stating, “Let me tell you about continuances. This lady is ninety-two years old. When we set the date, I made it crystal clear that this case was going.” At that time, the court also denied the motion to strike the experts and did not permit an examination of Guider under Florida Rule of Civil Procedure 1.360.

At his September 23 deposition, Licht-blau disclosed that he had first treated Guider in March, 2010. Lichtblau opined that Guider’s life expectancy was from four to ten years, that she would need twenty-four hour care, seven days a week, for the rest of her life, at a cost of between twenty-five dollars and thirty-five dollars an hour. Lichtblau obtained his cost figures from his staff minutes before the deposition and then created his opinion.

Later, the defendant moved in limine to preclude Dr. Lichtblau’s testimony about future medical care and treatment. Guider had been cared for by her family and did not list future medical expenses as an item of claimed damage in her answers to interrogatories. The defendant argued that the plaintiff first injected future cost-of-care figures into the case through Licht-blau, who based his opinion on information he obtained the day of the September 23 deposition. The trial court denied the motion. Guider’s late disclosure of Lichtblau prevented the defendant from securing a rebuttal expert.

At trial, Guider published Licht-blau’s deposition about life expectancy and the cost of her future care; he was the plaintiffs only witness on cost of her future care. His opinion on life expectancy exceeded the 4.1 year time period derived from the mortality tables. The trial court sustained Guider’s objection to having the defendant’s expert opine on life expectancy because it was a new opinion. The plaintiffs life expectancy was a significant issue in the case; based on Dr. Lichtblau’s opinion about future cost of care, the jury’s verdict suggests that it found that Guider’s life expectancy was between 4.7 and 6.5 years.

Section 415.1115 allows a trial judge, “after a consideration of the age and health of the party” to “advance the trial on the docket.” A party’s request to advance the trial under the statute is akin to a defendant’s demand for a speedy trial under Florida Rule of Criminal Procedure 3.191, where a defendant is deemed to have represented that he “has diligently investigated the case” and is “timely prepared for trial.” Fla. R.Crim. P. 3.191(g). Where a party seeks to take advantage of section 415.1115, she should be largely finished with the disclosure obligations of civil discovery. A party may not use section 415.1115 as a shield from the consequences of late discovery disclosure and a sword to cut off the opposition’s ability to prepare for trial.

Here, after securing an early trial setting under the statute, Guider waited until August 23 to disclose Dr. Lichtblau. The attorneys’ summer vacation schedules complicated the setting of a deposition, which did not occur until September 23, four days before trial. Dr. Lichtblau was the plaintiffs most significant damages witness. The trial court abused its discretion in failing, at the very least, to grant a continuance to allow the defendant to secure a rebuttal expert and to arrange for a rule 1.360 examination of Guider.

II

During the closing argument, plaintiffs attorney made a number of comments that switched the focus of the case from proper issues—the plaintiffs life expectancy and past and future damages—to punishing the defendant for the “wrongful conduct” of defending the case in court. These are some of counsel’s arguments:

The only way to get this company to care is to force them to pay all of the harms they have caused. That’s what the law is for, to get a company to care, to change, to do what is right.
They have never taken responsibility. They have been forced to admit they sent the wrong medication ... and they still take zero responsibility.
How did they respond? Have you heard sorry once in this courtroom, we are sorry we sent you the wrong medication? ... Not one time have you heard that, not from there, not anywhere.
There are things your verdict cannot fix ... But you can fix the harms that were caused her, the way they defend this case.
[The defendant] will get off cheap. [The defendant] will sweep it under the rug. [The defendant] will move on. [The defendant] won’t change. [The defendant] won’t care.
It doesn’t matter what [the defendant] do[es] as a company. [They] can get off cheap if [they] want. Slap on the wrist. How do you ask her that? How do you defend yourself that way? How does a company defend itself that way?

The trial court’s rulings early in the closing argument green lighted this theme for plaintiffs counsel.

The closing argument shifted the focus of the case from compensating the plaintiff to punishing the defendant. The life expectancy of the plaintiff and the cost of her future care were legitimate issues for the defense. The purpose of damages here was to compensate, not to make the defendant care, “take responsibility,” or say it was sorry. Counsel’s arguments improperly suggested that the defendant should be punished for contesting damages at trial and that its defense of the claim in court was improper. See Carnival Corp. v. Pajares, 972 So.2d 973, 977-78 (Fla. 3d DCA 2007); State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So.2d 377, 380 (Fla. 3d DCA 2005); Chin v. Caiaffa, 42 So.3d 300, 309 (Fla. 3d DCA 2010); Health First, Inc. v. Cataldo, 92 So.3d 859 (Fla. 5th DCA 2012). The closing argument was designed to inflame the emotions of the jury rather than prompt a “logical analysis of the evidence in light of the applicable law.” Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1028 (Fla.2000).

When viewed together, the errors in this case could be harmless only if the appellee could demonstrate that it is more likely than not that the errors “did not influence the trier of fact and thereby contribute to the verdict.” Special v. Baux, 79 So.3d 755, 771 (Fla. 4th DCA 2011), rev. granted sub nom. Special v. W. Boca Med. Ctr., 90 So.3d 273 (Fla.2012). The untimely disclosure of Dr. Lichtblau compromised the defendant’s ability to defend on the issue of damages. The closing argument urged the jury to punish the defendant for having the temerity to be in court. The jury’s verdict found significant damages and indicated a long life expectancy under the circumstances. The errors were not harmless.

We therefore reverse the final judgment and remand for a new trial on damages. We have fully considered the issue regarding the Continuous Quality Improvement manual and find no error.

POLEN, J„ and BLOOM, BETH, Associate Judge, concur.

      . The pretrial order provided in pertinent part:

        NO LATER THAN NINETY (90) DAYS PRIOR TO TRIAL — EXPERT WITNESS DISCLOSURE (Filed with the Clerk and served on all counsel). The parties shall furnish opposing counsel with the names and address, along with complete and updated curriculum vitae of all expert witnesses to be called at trial; and all information regarding expert testimony that is required by Fla. R. Civ. P. 1.280(b)(4)(A)....

      . Indeed, on appeal, Guider takes the position that Lichtblau was a “treating physician.” Prior to its inclusion on the August 23 witness list, Dr. Lichtblau’s name did not appear in any of Guider’s responses to numerous interrogatories or requests for production.


author: HAZOURI, J.

text:
    Scott GALE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-233.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, 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.
   HAZOURI, J.

Scott Gale appeals his convictions on charges of tampering with a victim in violation of a condition of pretrial release. He was charged by information with count one, tampering with a victim, counts two and three, violations of a condition of release. The charges were based on allegations that after being released from jail on the condition of no contact with his wife, he texted her, telephoned her, and went within 500 feet of her residence. Gale was acquitted of count three of the information, which alleged that he had contact with and/or went within 500 feet of his wife on a particular date.

Gale raises six points on appeal. We address only point four wherein he contends that the court erred in allowing prior bad act evidence which we find to be prejudicial and reverse for a new trial. Our reversal makes the remaining points on appeal moot.

The testimony at trial revealed that Gale was arrested and charged with domestic battery. As a condition of his release pending trial, Gale was ordered not to have any contact with his wife; however, Gale was allowed phone contact regarding his children.

According to the wife, on the day of Gale’s release, she started receiving multiple phone calls and text messages from him, most of them regarding the car being used by the wife. Gale texted the wife that he sold the car and that the new owner needed to pick it up. During a telephone call he initiated, he told her if she didn’t follow through with the charges and drop the restraining order, he would give her a simple divorce and let her move with the kids; otherwise, things would go downhill.

Gale denied sending any threatening messages to his wife or making any threatening statements to her, and stated that he communicated with her only about helping the children. However, Gale admitted that he sent her a text message regarding making arrangements for the purchaser of the car to pick it up, as well as other text messages not related solely to the children. He asked her to drop the restraining order, a civil matter, so he could transport the children to and from school. He did not ask her to drop the criminal charge.

As to the issue of admission of prior bad acts, the wife was allowed to testify over objection that she returned home after a separation, and that Gale was still physically and emotionally abusive, she was under his control and could not see friends or family, and further her use of the car was limited. Her testimony continued over objection that when she was on the computer, Gale grabbed her by her wrist, turned her head around, and screamed at her. Gale asserts that the testimony was improper evidence of prior bad acts. We agree.

The trial court erred in allowing the wife to testify about events that caused her to seek a domestic violence injunction against Gale. The wife’s allegations that Gale had been physically and emotionally abusive to her in the past were not relevant to or inextricably intertwined with the charged offenses. On the tampering charge, the state merely had to prove that Gale did some act with the intent to influence the victim (his wife) in relation to a pending case or investigation. As to counts two and three, violation of pretrial release order, the state merely had to prove that there was an order of pretrial release and that Gale did some act that violated the order. The state was not required to show what facts the domestic violence arrest was based upon.

Character evidence is inadmissible to prove a person acted in conformity with that character trait, section 90.404(1), Florida Statutes (2009), and some factual evidence is inadmissible when relevant only to prove bad character or propensity, section 90.404(2)(a), Florida Statutes (2009). The state asserts that the prior bad acts were inextricably intertwined with the charges. The “inextricably intertwined” rule is a rule of necessity: “Evidence necessary to describe the manner in which a criminal offense took place or how it came to light is generally admissible as relevant evidence even though it might otherwise be objectionable as prior bad act evidence because it is ‘extricably intertwined’ with the underlying crime.” See Shively v. State, 752 So.2d 84, 85 (Fla. 5th DCA 2000) (citations omitted). Detailed evidence referred to by the wife was not necessary to describe the charges against Gale. The prior bad acts were inadmissible because they were classic propensity evidence that showed Gale’s bad character. Furthermore, on this record we cannot say that the error was harmless. See Good win v. State, 751 So.2d 537, 547 (Fla.1999) (erroneous admission of collateral crimes is presumptively harmful error); State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict, or alternatively stated, there is no reasonable possibility the error contributed to the conviction).

We therefore reverse and remand for a new trial.

GROSS and CONNER, JJ., concur.


author: ALTE NBERND, Judge.

text:
    Quentin BURNEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2629.
    District Court of Appeal of Florida, Second District.
    July 27, 2012.

      James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   ALTE NBERND, Judge.

Quentin Burney appeals his judgments and sentences for battery on a law enforcement officer and disorderly conduct. He received a sentence of five years’ imprisonment for the battery conviction and time served for the disorderly conduct conviction. We affirm the judgment and sentence for disorderly conduct because Mr. Burney did not preserve any issues related to this conviction for appeal. We reverse the judgment and sentence for battery on a law enforcement officer. Normally, this reversal would result in a conviction for misdemeanor battery on remand. However, Mr. Burney appears to have several prior convictions for battery, and the information charged this offense as both battery on a law enforcement officer, a third-degree felony, and battery by a defendant with a prior battery conviction sufficient to elevate the battery charge to a third-degree felony. §§ 784.07(2)(b), .03(2), Fla. Stat. (2008). Therefore, on remand the trial court shall conduct additional proceedings to determine whether Mr. Bur-ney should be convicted of battery as a misdemeanor or a felony and shall resen-tence him accordingly.

At approximately 10:30 a.m. on June 24, 2009, Mr. Burney walked into a convenience store connected to a gasoline station. The store manager knew Mr. Burney as “Skip.” When Mr. Burney entered the store, the manager was talking with a friend who happened to be an off-duty police officer. The officer was not in uniform. There may have been a customer or two in the store, but they did not testify, and there is no evidence that Mr. Burney had any significant conversations with any of them.

It is apparent that Mr. Burney has some psychological issues. When he entered the store, he was ranting about a woman who was pumping gasoline. Inside the store, Mr. Burney continued his tirade, using profanity, but he did not direct his invectives to anyone in particular. Mr. Burney then approached the off-duty officer with apparent knowledge that the man was a law enforcement officer. He spoke profanely to the officer, who told Mr. Burney that there was no reason to speak in such a manner. The officer’s comments seem only to have provoked Mr. Burney, who continued with his verbal barrage and then left the store.

While continuing to yell at everyone within earshot, Mr. Burney got into his truck. He drove off of the property but returned almost immediately. When he returned, he reentered the store and confronted the off-duty officer, placing his own face nose-to-nose with the officer’s face. When Mr. Burney’s nose made contact with the officer, the officer pushed Mr. Burney back with his left hand just as Mr. Burney struck the coffee cup in the officer’s right hand, spilling hot coffee all over the officer. At that point, the officer arrested Mr. Burney for disorderly conduct and battery.

As mentioned earlier, the State charged this offense as a single count that incorporated both battery on a law enforcement officer and felony battery. At the beginning of trial, Mr. Burney’s attorney sensibly asked that the trial court sever the felony battery charge from the battery on a law enforcement officer charge in order to avoid reference to Mr. Burney’s prior battery convictions. Thus, the trial court charged the jury only on the lesser offense of misdemeanor battery; the jury was not instructed on felony battery or given an opportunity to find that Mr. Burney had the predicate battery conviction necessary to support a felony battery conviction. The jury convicted Mr. Burney of battery on a law enforcement officer.

On appeal, Mr. Burney argues that he was entitled to an acquittal on the charge of battery on a law enforcement officer. Mr. Burney maintains that the State failed to prove that the officer he touched was engaged in the lawful execution of a legal duty at the time of the battery. We must agree. Although Mr. Burney appears to have known that his victim was a police officer and probably targeted him because of this fact, under the language of the statute, that is not enough to transform this battery into a battery on a law enforcement officer.

Section 784.07(2) defines battery on a law enforcement officer as follows:

Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer ... while the officer ... is engaged in the lawful performance of his or her duties, the offense for which the person is charged shall be reclassified as follows:
(b) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.

(Emphasis added.)

Thus, “[a] conviction for battery on a law enforcement officer requires proof that the officer was ‘engaged in the performance of a lawful duty’ .... ” Nicolosi v. State, 783 So.2d 1095, 1096 (Fla. 5th DCA 2001) (citing Taylor v. State, 740 So.2d 89 (Fla. 1st DCA 1999)). But an officer’s “off-duty” status is “not a limitation upon his right to exercise police authority in the presence of criminal activity.” State v. Robinson, 379 So.2d 712, 715 (Fla. 5th DCA 1980). When working an off-duty job, a police officer can engage in the performance of a lawful duty. See, e.g., State v. Hartzog, 575 So.2d 1328 (Fla. 1st DCA 1991) (off-duty officer working as department store security guard engaged in lawful duty where officer assisted in investigation of alleged shoplifter); Hughes v. State, 400 So.2d 533 (Fla. 1st DCA 1981) (off-duty officer working as department store security guard engaged in lawful duty where officer attempted to apprehend shoplifter); Robinson, 379 So.2d 712 (off-duty officer working as security guard at jai alai fronton engaged in lawful duty where officer assisted other officers who were struggling to maintain custody of a man under arrest). However, an off-duty officer’s detention of an individual does not constitute the performance of a lawful duty where there was no criminal activity, investigation of criminal activity, or suspicion of a weapon. See, e.g., J.A.S.R. v. State, 967 So.2d 1050 (Fla. 5th DCA 2007) (off-duty officer working as park security guard did not engage in performance of lawful duty where officer was not effecting arrest and there was no suspicion of criminal activity or a weapon); Nicolosi, 783 So.2d 1095 (off-duty officer working as nightclub bouncer was not engaged in performance of lawful duty where there was no proof of criminal activity or investigation of criminal activity prior to the battery).

In this case, the off-duty officer was not working in any capacity, on or off duty. He was patronizing the store as a private citizen. When Mr. Burney’s angry rant rattled the store manager, the off-duty officer, in his capacity as a private citizen, spoke to Mr. Burney in an attempt to calm him down. The State did not prove that Mr. Burney had engaged in criminal activity or that he appeared to be armed prior to the battery. When the battery occurred, the officer had not yet stepped from his role as a private citizen into his role as an officer because nothing criminal had yet occurred. Because the officer was not engaged in the performance of a lawful duty when Mr. Burney impermissibly touched him, this battery did not constitute battery on a law enforcement officer.

The judgment and sentence for battery on a law enforcement officer are reversed with instructions that the trial court grant a judgment of acquittal as to that offense and then resolve the matter of the remaining battery.

Affirmed in part, reversed in part, and remanded.

KELLY and VILLANTI, JJ., Concur.

      . At the point of the battery, Mr. Burney had merely engaged in shouting and profane speech that did not rise to the level of disorderly conduct. See Smith v. State, 967 So.2d 937 (Fla. 2d DCA 2007) (evidence insufficient to support conviction for disorderly conduct where bank patron yelled profanity and threats, causing other customers to express annoyance); Barry v. State, 934 So.2d 656 (Fla. 2d DCA 2006) (evidence insufficient to support conviction for disorderly conduct where defendant yelled obscenities and shook his finger in a police officer’s face and the public confrontation slowed traffic).


text:
    Harold Mitchell DEEDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-649.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Harold Mitchell Deedrick appeals from the judgment and sentence entered after a jury found him guilty of battery and possession of a firearm by a convicted felon. We affirm Deedrick’s convictions without discussion. However, we remand for correction of a scrivener’s error in the judgment reflecting a guilty plea to the charges. The judgment should reflect a finding of guilty following a trial by jury.

JUDGMENT AFFIRMED; REMANDED for correction of scrivener’s error.

TORPY, LAWSON and COHEN, JJ., concur.


text:
    Jonathan BELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2446.
    District Court of Appeal of Florida, Fifth District.
    July 27, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Jonathan Bell timely appeals from his convictions for attempted second-degree murder, attempted robbery with a firearm, aggravated battery with a deadly weapon, aggravated assault with a deadly weapon, and possession of a firearm by a convicted felon. We affirm the convictions and sentences without discussion but remand with directions that the trial court correct an error in the judgment as it relates to the attempted robbery with a firearm conviction. As the State concedes, the judgment erroneously reflects conviction for a completed robbery with a firearm rather than an attempted robbery with a firearm. Bell is entitled to a judgment that correctly reflects the crimes for which he was convicted. Cf. Davis v. State, 529 So.2d 1251, 1252 (Fla. 5th DCA 1988).

AFFIRMED; REMANDED FOR ENTRY OF CORRECTED JUDGMENT.

ORFINGER, C.J., LAWSON and JACOBUS, JJ., concur.


author: WHATLEY, Judge.

text:
    C.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1334.
    District Court of Appeal of Florida, Second District.
    July 27, 2012.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gina M. Girardot, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

C.W. appeals her adjudication of delinquency for the offense of battery on a law enforcement officer. C.W. argues, and the State correctly concedes, that reversal is required because C.W. was never informed of her right to counsel as required by Florida Rule of Juvenile Procedure 8.165.

At C.W.’s arraignment on December 22, 2010, C.W. indicated that she had hired attorney Greg Hagopian. The trial court asked if she was sure that she was going to have him represent her and noted that the attorney had not filed any pleadings. C.W.’s trial was then set for January 13, 2011, less than a month later.

Before the beginning of the trial on January 13, the trial court asked C.W. where her attorney was and she responded, “Pm not sure.” The trial court then questioned C.W.’s father, who stated that Mr. Hagopi-an was not representing his daughter yet because they had not given him any money. The trial court explained that “[tjhere’s a difference between wanting someone to represent you and paying someone to represent you and actually hiring that person and having that person as your lawyer.” The trial court then stated that “today is the trial date.... And we’re going to trial.”

After the trial but prior to sentencing, an attorney was hired to represent C.W. The attorney filed a motion for rehearing, arguing that C.W. did not understand that the trial was going to take place on January 13, she did not have legal representation at the trial, she had neither received discovery nor demanded it, and she did not have her witnesses present for trial. At the hearing on the motion, it was noted that C.W. was seventeen years old, she was a high school student, she had no prior delinquency record, and she had no legal training. The trial court asked for input from the prosecutor, who responded regarding C.W.’s lack of counsel, “If you’re gonna obtain counsel, you’re gonna have it here for your trial because we’re not going to continue the case. All the witnesses are here, ready to go.” The trial court then noted that there was a representation made at arraignment that Mr. Hagopian had been hired. The trial court then noted, “I’m not sure what happened between December 22nd and January 13th with Mr. Hagopian, but that paperwork suggests that you were given the date of January 13th, with the understanding that that was a trial date and you showed up, but without Mr. Hagopian for your lawyer.” The trial court then denied the motion for rehearing, finding that “[C.W.] did indeed have a fair trial.”

Florida Rule of Juvenile Procedure 8.165 provides as follows:

(a) Duty of the Court. The court shall advise the child of the child’s right to counsel. The court shall appoint counsel as provided by law unless waived by the child at each stage of the proceeding. Waiver of counsel can occur only after the child has had a meaningful opportunity to confer with counsel regarding the child’s right to counsel, the consequences of waiving counsel, and any other factors that would assist the child in making the decision to waive counsel. This waiver shall be in writing.
(b) Waiver of Counsel.
(1) The failure of a child to request appointment of counsel at a particular stage in the proceedings or the child’s announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any subsequent stage of the proceedings.
(2) A child shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the child’s comprehension of that offer and the capacity to make that choice intelligently and understandingly has been made.
(3) If the child is entering a plea to or being tried on an allegation of committing a delinquent act, the written waiver shall also be submitted to the court in the presence of a parent, legal custodian, responsible adult relative, or attorney assigned by the court to assist the child, who shall verify on the written waiver that the child’s decision to waive counsel has been discussed with the child and appears to be knowing and voluntary.
(4) No waiver shall be accepted if it appears that the party is unable to make an intelligent and understanding choice because of mental condition, age, education, experience, the nature or complexity of the case, or other factors.
(5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the party appears without counsel.

It appears that no part of this rule was complied with by the trial court. “[R]ule 8.165 provides that counsel is required at each stage of the proceedings, a juvenile defendant must be advised of his right to counsel, and if he chooses to waive counsel, the court must conduct a thorough inquiry to determine if the waiver was freely and intelligently made.” State v. T.G., 800 So.2d 204, 210-11 (Fla.2001).

In J.M.B. v. State, 800 So.2d 317, 318 (Fla. 2d DCA 2001), this court held that there was no effective waiver of counsel where the trial court’s inquiry under rule 8.080 was incomplete. In the trial court simply informed the appellant that he had the right to have an attorney represent him at trial. This court noted that “[t]he failure to comply with rule 8.165 is fundamental error.” Id. at 318-19. Here, compliance with rule 8.165 was not merely incomplete, it was nonexistent.

Accordingly, we reverse C.W.’s adjudication of delinquency and remand this case for a new trial.

DAVIS and MORRIS, JJ., Concur.